State v. Red River Valley Co. , 51 N.M. 207 ( 1945 )

On Motion for Rehearing. On consideration of motion for rehearing our conviction as to the correctness of the result reached in the majority opinion is not weakened, but strengthened rather. It is asserted by appellee in its motion for rehearing, that the Pablo Montoya Grant was public domain of the United States from July 4, 1848, the effective date of the Treaty of Guadalupe Hidalgo, 9 Stat. 922, until March 3, 1869, the date of the Act of Congress, 15 Stat. 342, confirming the grant, and probably up to the date of the patent, which was April 20, 1877. Then appellee, assuming the truth of its assertion, contends that the United States owned both the land and the unappropriated water composing the grant, at the date of its confirmation or patent, and that all water thereon not theretofore appropriated to some beneficial use, became the property of appellee as assignee of the United States, and that the Mexican-Spanish law is not involved.

As a basis for this conclusion it is said that the original Mexican grant was void because at the date of the purported grant by officials of the Mexican territory of New Mexico to Pablo Montoya (1824), those officials were without power to make the grant, and therefore the land remained the property of the Mexican government until its cession to the United States. In support of this claim appellee cites Hayes v. United States,170 U.S. 637, 18 S. Ct. 735, 42 L. Ed. 1174.

There are a number of answers to this contention, any one of which is decisive and opposed to appellee's contention.

First. The appellee requested the court to find, and the court did find, the following facts:

"That the Pablo Montoya Grant was made by the Republic of Mexico prior to the American occupation, was favorably reported to Congress by the Surveyor General of New Mexico, was confirmed by Act of Congress approved March 3, 1869, was surveyed under the direction of the United States, and was patented by the United States April 20, 1877; that the confirmation, survey and patent of said grant were without any exceptions whatever, and the said survey and patent described only the exterior boundaries of the grant and included everything within such exterior boundaries, including the South Canadian and Conchas Rivers which were not meandered in said survey or in any manner excluded from the patent or the grant."

By the terms of Articles 8 and 9 of the Treaty of Guadalupe Hidalgo and Article 5 of the Gadsden Treaty, 10 Stat. 1031, the United States was bound to protect the private rights of property which had been acquired by Mexican citizens in the ceded territory. Under these treaties perfect titles to grants of land needed no confirmation by the political authorities of the United States to establish their validity. Ainsa v. New Mexico Arizona R. Co., 175 U.S. 76, 20 S. Ct. 28, 44 L. Ed. 78; Board of Trustees, etc. v. Brown, 33 N.M. 398, 269 P. 51.

The foregoing finding judicially determined that the grant in question was made by the Republic of Mexico, not by some unauthorized person in its name. If so made, the grant will be assumed to be perfect, needing no confirmation.

A history of this grant, as shown by the record and the statutes of the United States, is not out of place here.

For the purpose of providing for the establishment of existing rights acquired under the Mexican Government in the Territory of New Mexico, and to segregate them from the public lands of the United States, the Congress enacted the act of July 22, 1854, establishing the office of surveyor general of New Mexico and providing for his jurisdiction and duties, as follows:

"That it shall be the duty of the Surveyor-General, under such instructions as may be given by the Secretary of the Interior, to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico; and, for this purpose, may issue notices, summons witnesses, administer oaths, and do and perform all other necessary acts in the premises. He shall make a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same under the laws, usages, and customs of the country before its cession to the United States; * * * which report shall be laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty of eighteen hundred and forty-eight between the United States and Mexico. * * *" 10 Stat. 309.

The Surveyor-General acting within the authority conferred by Congress examined into the validity of the Pablo Montoya Grant and filed his decision on November 20, 1860, which is in part as follows:

"This grant, filed April 11, 1860, was called up for investigation, November 6, 1860, in the office, Don Pablo Montoya, deceased, original claimant, petitioned the provincial deputation of the Territory of New Mexico for a grant of land lying in Red River in the County of Taos, * * *

"On the 19th day of November, 1824, the provincial deputation answered in due form the petition of the said Don Pablo Montoya, and granted the lands petitioned for according to the laws and usages of the Mexican Government. The original grant to Don Pablo Montoya now being in the archives of this office, the verbal testimony which was taken here, proving the signatures to the papers, and the occupancy of the land up to the death of Montoya, some fourteen years, and the hostility of the Indians after that time, which forced his family to return, prove the validity of the claim, and the right of his heirs to the full enjoyment of this property. * * * Therefore, in view of these clearly defined points in this case, this office approves of this claim, and to the fullest extent recommends to the Congress of the United States the final confirmation of this claim to the petitioners, the children and grand-children, the heirs at law of Don Pablo Montoya, deceased."

Thereafter, by the act of March 3, 1869, the Congress of the United States confirmed this grant as private land claim "No. 41" and further provided:

"That such confirmation shall only be construed as a quitclaim or relinquishment of all title or claim on the part of the United States to any [state] lands not improved by or on behalf of the United States, and not including any military or other reservation embraced in either of the said claims, and shall not affect the adverse rights of any person or persons to the same, or any part or parcel thereof."

Thereafter, on the 20th day of April, 1877, a patent was issued to the heirs of Pablo Montoya, covering the Pablo Montoya Grant, in which is recited the decision of the Surveyor-General and the confirmation of the grant by Congress. The patent recites that the United States "Have given and granted and by these presents do give and grant unto the said children and grand-children, the heirs at law of Don Pablo Montoya, deceased, and to their heirs and assigns the tract of land embraced and described in the foregoing survey." This recital is limited by the confirming act, which authorized the issuance of a patent quitclaiming the interest of the United States in the grant, and reserving to all third persons any interest they might have therein.

Aside from the findings of the trial court that the land was granted by the Republic of Mexico to Pablo Montoya, the question of its validity was considered and determined by the legally constituted authorities of the United States upon the application of Pablo Montoya or his heirs.

The congressional confirmation and United States patent as between the United States and the heirs of Pablo Montoya, was conclusive as to the validity of the Mexican grant. Only third persons could question the grantee's title. Board of Trustees of Anton Chico Land Grant v. Brown, 33 N.M. 398, 269 P. 51; Beard v. Federy, 3 Wall. 478, 18 L. Ed. 88.

In Hayes v. United States, 170 U.S. 637, 18 S. Ct. 735, 739,42 L. Ed. 1174, the Supreme Court said:

"Reviewing such acts (congressional land grants acts), the conclusion was reached that it was the intention of Congress that a claimant should not be required to offer proof as to the authority of the officials executing a public grant, but that the court should, in deciding upon a claim, assume as a settled principle that a public grant is to be taken as evidence that it issued by lawful authority. And in the Peralta Case [U.S. v. Peralta, 60 U.S. 343], 19 How. 343 [15 L. Ed. 678] in a proceeding under the act of March 3, 1851, relating to lands in California, the doctrine of the Arredondo Case [U.S. v. Arredondo, 6 Pet. 691, 8 L. Ed. 547] was applied."

The above had reference to the manner of confirming Mexican land grants before the establishment of the Court of Private Land Claims, which had jurisdiction of the controversy in the Hayes Case.

The question of the validity of grants made by the officials of the Territory of New Mexico in 1823 and 1825 was before this court in Stoneroad v. Beck, 16 N.M. 754, 120 P. 898. It was held by this court that the authorities of the Territory of New Mexico were not authorized to issue either patent involved in that case, and that both were void under the Mexican law. However, the grants had been confirmed by act of Congress and patents issued, based upon alleged void Mexican grants. It was determined that both being void originally under Mexican law, that as the United States patents had issued, each had the same standing, applying the principles of Southern Pacific R. Co. v. United States,183 U.S. 519, 22 S. Ct. 154, 46 L. Ed. 307.

But the Supreme Court of the United States, in reversing this court (Jones v. St. Louis Land Cattle Co., 232 U.S. 355,34 S. Ct. 419, 420, 58 L. Ed. 636), stated:

"The act of Congress was not a gratuity, it was intended to be a discharge of the obligations of the treaty between the United States and Mexico. It was a confirmation of rights which existed,and as they existed." (My emphasis.)

It was then stated that the report of the surveyor general approving the Mexican grants was the basis of the act of Congress confirming them, and further:

"The proceedings, therefore, for the confirmation of titles derived from Mexico, commenced with the surveyor general, and were consummated by the confirming act, the surveyor general deciding in the first instance. The petition to him `is the commencement of proceedings, which necessarily involve the validity of the grant from the Mexican government.' Congress, however, constituted itself the tribunal of ultimate decisions of the validity or invalidity of the claim, as, of course, it might do in the discharge of the treaty obligations, or delegate that duty to the judicial department. * * *

"The confirmation, therefore, cannot be disassociated from what preceded it, and it may be said of such direct confirmation * * * through special tribunals created by Congress, that it constitutes a declaration of the validity of the claim under the Mexican laws, and that the claim is entitled to recognition and protection by the stipulations of the treaty."

It thus appears that a confirmation by Congress under the congressional act involved, determined that a Mexican grant was valid, and when so determined the courts are not authorized to go behind this adjudication, unless the rights of third persons are involved, as in Board of Trustees v. Brown, supra. At the time of the grant the question was solely a political one, determinable alone by the political department of the government and its judgment was final. Appellee cites Hayes v. United States, supra, in support of its contention. But in the Jones case, [232 U.S. 355, 34 S. Ct. 421] the Supreme Court of the United States said:

"We are not called upon to consider the power of the territorial officers (referring to New Mexico as a territory of Mexico). The validity of the grants has been pronounced by Congress, and we are only required to consider their relation to each other and the public domain;"

And substantially the same doctrine was stated in the Hayes Case, hereinbefore quoted.

It may be, and probably is, true that the territorial deputations of the Mexican Territory of New Mexico were without power to grant land during the years of 1824 to 1828. Chaves v. United States, 175 U.S. 552, 20 S. Ct. 201, 44 L. Ed. 269; United States v. Vallejo, 1 Black 541, 17 L. Ed. 232; Hayes v. U.S. supra; Board of Trustees v. Brown, supra. But that question was not, and could not be, raised in this case, not only for the reasons before stated; but under well settled rules of law, the appellee will not be permitted, when its interest may be adversely affected, to deny the source of its title as vouched for by the Mexican claimant, after the United States Government, relying thereon, confirmed the grant as legal and subsisting at the date of cession to this country.

The validity of the Mexican grant having been determined by the authorities, and in the manner provided by law, this court, upon the record before us, is bound by that adjudication.

The rights of appellee to the water and fishery are exactly the same as those of the owner of any valid Mexican grant confirmed by Congress prior to the Act of 1891, 26 Stat. 854, establishing the Court of Private Land Claims.

It is next asserted that "The United States owned both land and water on its public lands and all water rights on such lands must come within some act of Congress, and no act of Congress has ever recognized the public rights as determined in the decision in the case at bar."

In support of this proposition, dictum first stated in Howell v. Johnson, C.C., 89 F. 556, 558, is quoted by appellee, as follows:

"The legislative enactment of Wyoming was only a condition which brought the law of congress into force. The national government is the proprietor and owner of all the land in Wyoming and Montana which it has not sold or granted to some one competent to take and hold the same. Being the owner of these lands, it has the power to sell or dispose of any estate therein or any part thereof. The water in an innavigable stream flowing over the public domain is a part thereof, and the national government can sell or grant the same, or the use thereof, separate from the rest of the estate, under such conditions as may seem to it proper."

This case was followed in California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 162, 55 S. Ct. 725, 731,79 L. Ed. 1356, in which the Supreme Court said:

"As the owner of the public domain, the government possessed the power to dispose of land and water thereon together, or to dispose of them separately. Howell v. Johnson, C.C., 89 F. 556, 558. The fair construction of the provision (Desert Land Act of March 3, 1877) now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the states and territories named."

In Ickes, Sec'y, v. Fox, 300 U.S. 82, 57 S. Ct. 412, 417,81 L. Ed. 525, the Supreme Court stated:

"The Federal government, as owner of the public domain, had the power to dispose of the land and water composing it together or separately; and by the Desert Land Act of March 3, 1877 * * *,if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the government title to a parcel of land was not to carry with it a water right; but all nonnavigable waters were reserved for the use of the public under the laws of the various arid-land states." (My emphasis.)

In neither case was the "ownership" of water involved. So far as I am informed no court has ever held that lands granted by a United States patent carried title to running water passing through them. In those states in which the common law of riparian rights is in force, the patents of the United States conveyed to the grantee "no property in the water itself, but a simple usufruct while it passes along." United States v. Rio Grande Dam Irrigation Co., 174 U.S. 690, 19 S. Ct. 770, 775, 43 L. Ed. 1136. Likewise, patents to land in the arid states have never been held to convey as property the running water on the granted land.

But we need not trouble ourselves about the question of the ownership of water in running streams on public lands. Appellee's patent was dated April 20, 1877, after the Desert Land Act (Act of March 3, 1877, 19 Stat. 377, 43 U.S.C.A. § 321 et seq.) had become effective. Assuming that the appellee's title is from the United States, unaffected by any previous Mexican grant, the title to the flowing water was not included in the conveyance; for by the Desert Land Act, "* * * if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately." Ickes, Sec'y, v. Fox, supra. Appellee obtained no title to water or to its use by virtue of the patent from the United States.

The appellee states:

"The Mexican laws have no application. We recognize that the laws or customs of the Republic of Mexico might constitute local customs or laws within the meaning of the Act of Congress of July 26th, 1866, above referred to, and that a water right acquired by individuals or by a corporation for mining, agricultural, manufacturing or similar purposes under such laws or customs would be entitled to the protection of the Act of Congress referred to. This is the effect of the decision in Boquillas Land Cattle Co. v. Curtis, 213 U.S. 339, 29 S. Ct. 493, 53 L. Ed. 822, but in no other way can the laws or customs of the Republic of Mexico have any application."

It is certain that the customs and laws of the Republic of Mexico are the basis for the public control of water in New Mexico, but whether any rights greater than those mentioned by appellee remained in the public, I do not find it necessary to determine. It was stated in the case cited:

"So far as the claim is rested on the original grant and the Mexican law, it may be disposed of in a few words, without going into all the questions that would have to be answered before an opposite conclusion could be reached. `Whatever may have been the general law throughout the Republic of Mexico on the subject of water, it is reasonably certain that, in the state of Sonora, the doctrine of appropriation, as now recognized, was to some extent in force by custom. In this territory irrigation was practiced in the Santa Cruz Valley prior to the cession, and it is well known the right of appropriation without regard to the riparian character of the lands was there in force probably from the time when the Spaniards first settled in the valley. Our statutes, as well as those of New Mexico, seem to have had their origin in the Mexican law as modified by custom.' This is the statement of the territorial court, and we know nothing to control it. It is not met by arguments as to the general character of Mexican law, or by inference from the situation and nature of the grant. * * *

"But, while it is true that in Beard v. Federy, supra [3 Wall. 478, 491, 18 L. Ed. 88, 92], Mr. Justice Field calls such a patent a quitclaim, we think it rather should be described as a confirmation in a strict sense. `Confirmation is the approbation or assent to an estate already created, which, as far as is in the confirmer's power, makes it good and valid; so that the confirmation doth not regularly create an estate; but yet such words may be mingled in the confirmation, as may create and enlarge an estate; but that is by the force of such words that are foreign to the business of confirmation.' Gilbert, Tenures, 75. It is not to be understood that when the United States executes a document on the footing of an earlier grant by a former sovereign, it intends or purports to enlarge the grant. The statute under which the Mexican title was decided to be good speaks of confirmation throughout, and, in the most pertinent passage, directing a patent to be issued, says that it shall be issued `to the confirmee.' Act of March 3, 1891, Chap. 539, § 10, 26 Stat. at L. 854, 859, U.S.Comp. Stat. 1901, pp. 766, 771. It would be possible, perhaps, to argue to the contrary from provisions in §§ 8 and 13, that the confirmation shall only work a release of title by the United States, but we are satisfied that the true intent of the statute and the reason of the thing are as we have said." Boquillas Land Cattle Co. v. Curtis, supra [213 U.S. 339, 29 S. Ct. 494].

This would seem to indicate that the appellee has only the title and rights conferred by the Mexican grant. Appellee cites H.N.D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744, as holding that in confirming Mexican land grants the title and rights acquired by the act of confirmation are not limited by conditions or limitation imposed by the laws of Spain or Mexico. The land involved in the case mentioned was concededly public land at the time of the cession, and title had never passed from the Mexican Government. But whether it had or not, it is immaterial in this case.

In 1907 the legislature of New Mexico enacted a comprehensive law for the control of water in streams and water courses entitled "An Act to Conserve and Regulate the Use and Distribution of the Waters of New Mexico," etc., which provided among other things:

"Section 1. All natural waters flowing in streams and water courses, whether such be perennial, or torrential, within the limits of the Territory of New Mexico, belong to the public and are subject to appropriation for a beneficial use.

"Sec. 2. Beneficial use shall be the basis, the measure and the limit of the right to the use of water * * *." Ch. 49, N.M.L. 1907.

This was carried into the Constitution, written in 1910, as follows:

"The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use in accordance with the laws of the state. Priority of appropriation shall give the better right." Sec. 2, Art. 16, N.M. Const.

The common law was adopted as the rule of practice and decision in the Territory of New Mexico in 1876, Laws 1876, c. 2, § 2. Of this act this court, through Mr. Justice Roberts, in Beals v. Ares, 25 N.M. 459, 185 P. 780, 788, said:

"When the legislature in 1876 adopted the common law as the rule of practice and decision, the whole body of that law as limited in the case of Browning v. Estate of Browning, supra, [3 N.M. (Gild.) 659, 9 P. 677] came into this jurisdiction. Where it found a statute counter to its provisions, it yielded to the statute, but it gave way only in so far as the statute conflicted with its principles. In so far as was possible it operated in conjunction and harmony with the statutes. If the statute conflicted with it, it bided its time and upon repeal of the statute became again operative. In other words, the common law, upon its adoption, came in and filled every crevice, nook and corner in our jurisprudence where it had not been stayed or supplanted by statutory enactment, in so far as it was applicable to our conditions and circumstances. Where a statute existed at that time, patterned after the civil law, or copied from some other state or country and it conflicted with the common law, such common law occupied all the field of jurisprudence not actually covered by the statute, and, upon repeal of such statute, the common law immediately took possession and resumed its sway over the rights and remedies theretofore regulated by such statute."

Justice Roberts' statement that the common law fills "every crevice, nook and corner" of the law except the statutes is not quite accurate. Before we had any statute on the subject of the ownership or use of water, and after the adoption of the common law as the rule of practice and decision in this jurisdiction, the territorial Supreme Court had accepted as the law of the Territory those rules that custom had established for its use, patterned after the Spanish-Mexican law, wholly unknown to the common law. The Albuquerque Land Irrigation Co. v. Gutierrez, 1900, 10 N.M. 177, 61 P. 357, affirmed in 188 U.S. 545,23 S. Ct. 338, 47 L. Ed. 588.

Regarding the acts of Congress recognizing the right to the use of water in streams and lakes on public lands, it was further stated in California-Oregon Power Co. v. Beaver, etc. Co., supra:

"The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain. * * *

"If the acts of 1866 and 1870 did not constitute an entire abandonment of the common-law rule of running waters in so far as the public lands and subsequent grantees thereof were concerned, they foreshadowed the more positive declarations of the Desert Land Act of 1877, which it is contended did bring about that result." * * *

"* * * The fair construction of the provision now under review (Act of 1877) is that Congress intended to establish the rule that for the future the land should be patented separately; and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the states and territories named. * * *

"Nothing we have said is meant to suggest that the act, as we construe it, has the effect of curtailing the power of the states affected to legislate in respect of waters and water rights as they deem wise in the public interest. What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since `Congress cannot enforce either rule upon any state,' * * * the full power of choice must remain with the state."

The old customs and rules were continued in force by the courts as the law of this jurisdiction until they were, in whole or in part, enacted into statutes or incorporated into the state constitution. See Ch. 49, N.M.L. 1907 and Sec. 2, Art. 16, N.M. Const.

On the principal question the appellee contends that the declaration of public ownership of waters in streams in this statute and in the Constitution, means "public" ownership only in the sense that they might be appropriated for irrigation and other public uses; that is "has no application to fishing rights," which it is asserted are common law rights and are the exclusive property of the owner of the bed of the stream.

On the other hand appellant contends that appellee has not now, and never has had, any exclusive right to fish in the water on the Pablo Montoya Grant or in any part of the Conchas Lake; that all the waters involved belong to the public, from which it follows, as appellant asserts, the public has a common right to fish therein if it can be done without trespassing on private property. If appellee owns the beds of the streams on the Pablo Montoya Grant, as claimed by it, (a question I do not decide) it obtained no interest of any kind (riparian or otherwise) in the water flowing over those beds by virtue of its United States patent. This water was reserved to the people by federal laws. California-Oregon Power Co. v. Beaver etc. Co., supra.

I do not doubt but that the water of non-navigable streams had been severed from the public domain of the arid west long before the passage of the desert land act of 1877, by prior acts of Congress as well as by the government's recognition of the customs, laws and court decisions of the western states in relation thereto as intimated in the Ickes Case, and in California-Oregon Co. v. Beaver, etc., Co., supra. If appellee has any fishing rights in the Conchas Lake, it is only by virtue of the statute of 1876 adopting the common law as the rule of practice and decision in this jurisdiction.

The early cases involving fishing rights followed the common law in holding that the beds of fresh water streams where the tide did not ebb and flow belonged to the riparian owners, and in one or two early cases this was held to apply to the Mississippi River. But it was soon discovered that the common law was not suitable to this country, in which there were fresh water navigable streams thousands of miles in length. I have referred to the decisions of the United States Supreme Court, but call particular attention to People ex rel. Loomis v. The Canal Appraisers, 33 N.Y. 461, overruling earlier New York cases, and McManus v. Carmichael, 3 Iowa 1, in which practically all of the cases to that time were reviewed. In New York, Iowa, and many other states, the civil law, which held that all streams navigable in fact were navigable in law, was adopted with the conclusion that such streams were public streams and that the public had the right to resort thereto for fishing and other purposes that did not interfere with navigation. Regarding the adoption of the civil law the New York court said:

"The rule of the civil law, as already observed, is well defined, of universal recognition on the continent of Europe, and, we have clearly seen, better adapted to the state of things on the continent of America than that which arose from the condition of the waters of the island of Great Britain. * * *

"Navigable rivers, in the language of the civil law, are not merely rivers in which the tide flows and reflows, but rivers capable of being navigated, that is navigable in the common sense of the term. In the words of the Digest, a navigable river is `statio iturve navigio,' or, as Lord Mansfield observed, `ex facto oritur jus.' The Code Napoleon defines, with precision, rivers navigable and those not navigable, and the soil of the former belongs to the nation, and that of the latter, and islands which may be formed therein, to the proprietors of the shore on that side where the island is formed. * * * We have now ascertained the doctrine of the common law, and that of the civil law, upon the subject now under consideration, and have traced the same to their respective sources. We have seen, in applying the principles of the common law to the waters of this continent, how great has been the embarrassment of courts and judges and text writers; how variant have been the conclusions reached by them, and how contradictory and unsatisfactory have been the reasons for the results arrived at."

It does not always follow that the owner of the bed of a stream owns the fishing rights therein. It is the law of England at the present time, and generally in this country, that the fact of ownership of the bed of a stream is not the criterion for the determination of the right to fish therein. The question depends upon whether the waters are public or private. Wyatt et al. v. Attorney General [1911] A.C. 489, 21 Ann.Cas. 775, affirming the Supreme Court of Canada in holding that the public and not the owner of the bed of a navigable stream owns the fishing rights therein. This case is followed by an annotation in 21 A.E.Ann.Cas. entitled "The right of fishing in a navigable river is generally in the public, even though the bed thereof may be owned by the owners of land along the river."

The principal American case on this question is Willow River Club v. Wade, 100 Wis. 86, 76 N.W. 273, 42 L.R.A. 305. I call attention to the following texts in further support of this proposition:

"In accordance with the general rules announced in the preceding sections, it is not disputed that the public has a prima facie right to fish in all navigable streams, just as it has in other public waters, even though the beds thereof may be owned by the riparian owners. A riparian owner has no exclusive right to a fishery in tidal or navigable waters. Hence, a stranger has a right to row a boat upon navigable streams flowing through private property and to take fish from the water, provided he does not trespass on the adjacent property." 22 A.J., Fish and Fisheries, Sec. 16.

"As a general rule all the members of the public have a common and general right of fishing in public waters, such as the sea and other navigable or tidal waters, and no private person can claim an exclusive right to fish in any portion of such waters, except in so far as he has acquired such right by grant or prescription, as discussed in § 9, infra. This rule applies notwithstanding the title to the bed of such a stream is in the riparian owner, and notwithstanding his ownership of the abutting upland carries with it the right of access to deep water." 36 C.J.S., Fish, § 6.

And see annotation in 60 L.R.A. 481 entitled "Right to fish."

The only question remaining that is material to a decision is whether the waters involved in this suit are public waters.

I am unable to find in the declarations of public ownership of water in the laws and constitution of this state, from which I have quoted, any reservation of fishing rights or any other right existing at common law in connection with the usufructs of public water flowing by or through the lands of any person.

Water has been classified as "public" and "private," depending upon the rights to its use. No right to the use of water was conveyed to appellee by his patent, nor did it obtain any under the act of 1876 adopting the common law as the rule of practice and decision in this state. Under the federal statutes enacted while this was a territory, the declaration of public ownership of water was recognized and protected by the refusal of the government to convey any interest or right therein to patentees. Whether the legislature could confer fishing rights to the owners of lands adjacent to streams consistently with the constitution, I do not decide; but see Hume v. Rogue River Packing Co., 51 Or. 237, 83 P. 391, 92 P. 1065, 96 P. 865, 31 L.R.A., N.S., 396, 131 Am. St. Rep. 732, and 22 A.J. "Fish Fishery" Sec. 12.

However this may be, no person has the right to approach public water through private property, or fish in public water while on private property without the consent of the owner; but he may fish in public water if he does not trespass upon the lands of another; and fishing in public water from a boat is not a trespass upon the property of the owner of the underlying land. Willow River Club v. Wade, supra; Diversion Lake Club v. Heath,126 Tex. 129, 86 S.W.2d 441.

The appellee contends that the decision in the Diversion Lake Club Case is not authority here because the river which was dammed to make the Modina Lake was navigable in law, though not in fact; from which it was concluded that the water was public. But what difference does it make whether the public character of the water resulted from a declaration of the legislature that the stream was navigable, from which the inference that the water was public would follow; or that the declaration of its public character was made direct without the necessity of an inference? In either case the water was public, and the fact that the underlying soil belonged to individuals did not affect public rights therein, as the Texas court held.

It is said that "Another birthright of Anglo-Saxon (?) jurisprudence has been stricken down" by this court. If this were true, it would not be the first to fall by court action. The Supreme Court of the United States, and the courts of most of the states, have "stricken down" the claim that the right of fishery belongs to the owners of lands adjacent to thousands of miles of fresh water streams in this country, and no doubt these decisions were met with the same cry of destruction of ancient "birthrights." In truth the common law of private water in running streams has never been a part of the jurisprudence of New Mexico. These waters have always been public, and they have been confirmed as such by our statutes and constitution.

I concur in the proposed disposition of the case in the opinion by Mr. Chief Justice MABRY. The motion for rehearing is denied.

MABRY, C.J., and LUJAN, J., concur.