October 15, 2014 – Dr. Nathan E. Boyd Estate, by James Scott Boyd, Personal Representative, and James Scott Boyd, Individually v. United States, Elephant Butte Irrigation District, and City of Las Cruces, No. 32,119

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _____________
Filing Date: October 15, 2014
NO. 32,119
DR. NATHAN E. BOYD ESTATE,
by JAMES SCOTT BOYD, Personal
Representative, and JAMES SCOTT
BOYD, Individually,
Plaintiffs-Appellants,
v.
UNITED STATES, ELEPHANT BUTTE
IRRIGATION DISTRICT, and CITY
OF LAS CRUCES,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF DONA AÑA COUNTY
James J. Wechsler, Presiding Judge
Robert S. Simon
Albuquerque, NM
for Appellants
Kenneth J. Gonzales, United States Attorney
Ruth Fuess Keegan, Assistant United States Attorney
Albuquerque, NM
Environment and Natural Resource Division,

U.S. Department of Justice
Ignacia S. Moreno, Assistant Attorney General
Matthew Littleton, Attorney Appellate Section
Washington, D.C.
for Appellee United States
Law Office of Steven L. Hernandez, P.C.
Steven L. Hernandez
Las Cruces, NM
for Appellee Elephant Butte Irrigation District
Stein & Brockmann, P.A.
Jay F. Stein
Seth R. Fullerton
Santa Fe, NM
City of Las Cruces
Harry “Pete” Connelly
Marcia Driggers
Las Cruces, NM
for Appellee City of Las Cruces
OPINION

ZAMORA, Judge.
{1} 	James Scott Boyd, in his individual capacity, and as representative for the
Estate of Dr. Nathan E. Boyd (Boyd) appeals from the district court’s order dismissing
his claims to water rights in the Lower Rio Grande adjudication area. Boyd was
permitted to intervene in ongoing water rights adjudication proceedings in the district
court. The district court dismissed Boyd’s claims on the grounds that Boyd failed to
assert a cognizable claim to water rights, and that Boyd’s claims were barred by the
principles of res judicata. We affirm.
I. 	BACKGROUND
{2} 	Boyd’s claimed water rights stem from activities of his predecessor in interest,
the Rio Grande Dam and Irrigation Company (the Company) over a century ago. In
1891, an Act of Congress (the 1891 Act) granted rights of way through public lands
to irrigation companies. See Act of March 3, 1891, ch. 561, 26 Stat. 1101. The
Company was formed in 1893 to build a network of dams, canals, and reservoirs for
irrigation of the area surrounding the Lower Rio Grande. See Boyd v. United States,
No. 96-476L, slip op. at 2 (Fed. Cl. Apr. 21, 1997). In 1895, the Company received
permits from the Secretary of the Interior and began work on the irrigation project. To
help finance an irrigation project along the Rio Grande, the Dam and Irrigation and
Land Company Limited (the English Company) was created, and in 1896, the

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Company leased all of its rights in the project to the English Company. Id. The
English Company also acquired control of all of the Company’s stock. The English
Company later transferred all rights and interests in the Company to Dr. Nathan Boyd.
{3} 	Also in 1896, the Secretary of the Interior issued a suspension order or embargo
suspending work on the irrigation project. The United States sought to enjoin the
Company from completing the irrigation project and was granted a temporary
injunction. Id. at 3. After a hearing, the injunction was dissolved and the suit was
dismissed. Id. The Supreme Court of the Territory of New Mexico affirmed the
dismissal, however, the United States Supreme Court reversed and remanded the case
to the district court for a determination regarding the irrigation project’s impact of the
navigability of the Rio Grande. United States v. Rio Grande Dam & Irrigation Co.,
174 U.S. 690, 695-96, 710 (1899).
{4} 	The district court determined that completion of the irrigation project would not
substantially diminish the navigability of the Rio Grande and dismissed the United
States’ complaint. The United States appealed to the Supreme Court of the Territory
of New Mexico, which affirmed the dismissal and remanded the case back to the
district court for additional hearings. United States v. Rio Grande Dam & Irrigation
Co., 1900-NMSC-042, ¶ 15, 10 N.M. 617, 65 P. 276, rev’d, 184 U.S. 416, 425.

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{5} 	The United States supplemented its complaint in the district court, alleging that
the Company had forfeited its interest in the irrigation project because the project had
not been completed within the five-year time frame set forth in Section 20 of the 1891
Act. The Company failed to respond to the supplemental complaint and the district
court entered a default judgment, finding that the Company had forfeited its rights to
complete the project and permanently enjoined the Company from attempting to
complete the project. United States v. Rio Grande Dam & Irrigation Co., 1906-
NMSC-013, ¶ 3, 13 N.M. 386, 85 P. 393, aff’d sub nom. Rio Grande Dam &
Irrigation Co. v. United States, 215 U.S. 266 (1909). The forfeiture was affirmed by
both the Supreme Court of the Territory of New Mexico and the United States
Supreme Court. Rio Grande Dam & Irrigation Co., 1906-NMSC-013, ¶ 47; Rio
Grande Dam & Irrigation Co., 215 U.S. at 278.
{6} 	Despite the passage of many years, the English Company and Boyd continued
to pursue related claims, including an action in the United States Court of Federal
Claims. See Boyd, No. 96-476L, slip op. at 5. In that case, Boyd alleged that the
United States’ control over irrigation works that began as part of the Company’s
irrigation project constituted a taking of his property and sought just compensation
and punitive damages. Id. Boyd also alleged fraud. Id. The court held that Boyd’s

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taking claims were barred by the statute of limitations and that it did not have
jurisdiction as to the fraud claims. Id. at 8, 10.
{7} 	Most 	recently 	Boyd 	intervened 	in 	ongoing 	water 	rights 	adjudication
proceedings 	before 	the 	Third 	Judicial 	District 	Court 	of 	New 	Mexico. 	That
adjudication involved water rights to the Lower Rio Grande Stream System, to which
the United States of America, the Elephant Butte Irrigation District (EBID), the City
of Las Cruces, and the State of New Mexico Office of the State Engineer were all
parties. The district court issued an order commencing an expedited inter se
proceeding to determine Boyd’s claims. The order directed Boyd to file a statement
of claim, describing in detail all of the water rights claimed in the Lower Rio Grande
adjudication area. For each water right claimed, Boyd was to specify “the elements of
the water right including[:] the priority date, source of water, purpose of use, place of
use, point of diversion, location and amount of irrigated acreage, the amount of water
claimed and the bases for the elements of the claimed water right(s).”
{8} 	After Boyd filed his statement of claims, the United States and EBID moved to
dismiss Boyd’s claims pursuant to Rules 1-012(B)(1), (6) NMRA. The City of Las
Cruces also moved to dismiss, alleging that Boyd had failed to comply with the
requirements of the district court’s case management order and with the requirements
for a decree as described in NMSA 1978, Section 72-4-19 (1907). The district court

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granted the motions to dismiss, finding that Boyd had failed to state a claim upon
which relief could be granted and that his claims were barred by the principles of res
judicata. This appeal followed.
II. 	DISCUSSION
{9} 	As a preliminary matter, we note that Boyd’s arguments regarding his claimed
water rights are interwoven with discussion of the water rights of other “Claimants.”
However, the district court’s order on appeal in this case pertains only to claims
brought by Boyd. Accordingly, we do not address Boyd’s arguments related to the
water rights claims of other parties.
{10} 	Boyd makes a number of arguments in support of reversal. His arguments
center on the assertion that the federal government seized irrigation infrastructures,
rights-of-way, and water rights from his predecessor in interest in the early 1900s.
Because our review is limited to the district court’s decision to dismiss Boyd’s claims
based on (1) Boyd’s failure to state a claim upon which relief can be granted; and (2)
principles of res judicata, we only consider Boyd’s arguments related to those issues.
A. 	Failure to State a Claim
1. 	Standard of Review
{11} 	“A district court’s decision to dismiss a case for failure to state a claim under
Rule 1-012(B)(6) is reviewed de novo.” Valdez v. State, 2002-NMSC-028, ¶ 4, 132

6
N.M. 667, 54 P.3d 71. “A Rule [1-0]12([B])(6) motion is only proper when it appears
that plaintiff can neither recover nor obtain relief under any state of facts provable
under the claim.” Id. (internal quotation marks and citation omitted). “In reviewing
a district court’s decision to dismiss for failure to state a claim, we accept as true all
well-pleaded factual allegations in the complaint and resolve all doubts in favor of the
complaint’s sufficiency.” Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, ¶ 6, 279
P.3d 772 (internal quotation marks and citation omitted).
2. 	Boyd’s Claims to Water Rights
{12} 	Boyd argues that the district court erred in finding that he failed to state a
cognizable claim to an existing water right. We disagree. The purpose of water rights
adjudication in New Mexico is to determine existing water rights. See N.M. Const. art.
XVI, § 1 (“All existing rights to the use of any waters in this state for any useful or
beneficial purpose are hereby recognized and confirmed.”); see also State ex rel.
Reynolds v. Pecos Valley Artesian Conservancy Dist., 1983-NMSC-044, ¶ 2, 99 N.M.
699, 663 P.2d 358 (“The object of an adjudication suit is to determine all claims to the
use of the water in a given stream system.”).
{13} 	To establish an existing water right, a claimant must demonstrate his intent to
appropriate the water and he must show that he has actually diverted the water and
applied it to beneficial use. See State ex rel. Reynolds v. Miranda, 1972-NMSC-003,

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¶ 9, 83 N.M. 443, 493 P.2d 409 (holding that “man-made diversion, together with
intent to apply water to beneficial use and actual application of the water to beneficial
use, is necessary to claim water rights by appropriation in New Mexico”); see also
Snow v. Abalos, 1914-NMSC-022, ¶ 12, 18 N.M. 681, 140 P. 1044 (holding that the
continuing right to divert and utilize water must be preceded by “[t]he intention to
apply to beneficial use, the diversion works, and the actual diversion of the water”);
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014-NMCA-032, ¶ 43,
320 P.3d 492 (“There must be an ultimate, actual beneficial use of the water resulting
from the diversion.” (internal quotation marks and citation omitted)), cert. denied by
Carangelo v. N.M. State Eng’r, 2014-NMCERT-002, 322 P.3d 1062.
{14} 	Boyd’s claims, which are based on the Company’s initial work on the irrigation
project 	in 	1896, 	cannot 	serve 	as 	the 	basis 	for 	existing 	water 	rights. 	Boyd
acknowledges that he is not currently diverting or using the water to which he claims
rights and that neither he nor the Company has diverted or distributed irrigation water
for more than one hundred years. Boyd also acknowledges that the district court
entered a decree of forfeiture as to the Company’s rights to its irrigation project and
water rights which was affirmed by both the Supreme Court of the Territory of New
Mexico and the Supreme Court of the United States in 1909. See Rio Grande Dam &
Irrigation Co., 1906-NMSC-013, ¶ 47; Rio Grande Dam & Irrigation Co., 215 U.S.

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at 277. Nonetheless, Boyd argues that his claimed rights remain intact because
governmental interference prevented the Company from completing the project and
fully developing its water rights. We are not persuaded.
{15} 	Boyd’s argument relies primarily on what he calls the Mendenhall doctrine,
referring to State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362
P.2d 998. Boyd contends that, under Mendenhall, water rights cannot be forfeited for
non-use where certain circumstances prevent the owner from perfecting those rights.
We find Boyd’s reliance on Mendenhall misplaced.
{16} 	In Mendenhall, a landowner drilled a well and used the water supply to irrigate
crops. Id. ¶ 3. Shortly before the landowner completed construction of the irrigation
works, the State Engineer declared the lands to be part of the Roswell Artesian Basin.
Id. ¶¶ 1-3. A statutory suit for adjudication of rights to water in the basin was filed.
Id. ¶ 3. The district court found that the landowner had not acquired a valid right to
irrigate because the irrigation works were not complete at the time the waters were
declared as part of the Basin. Id. ¶ 4. Our Supreme Court held that the landowner, who
lawfully initiated development of his water right and diligently carried it to
completion, did acquire a valid water right with a priority date as of the beginning of
his work, notwithstanding the fact that the lands involved were put into the declared
basin before work was completed and water put to beneficial use. Id. ¶ 29.

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{17} 	The present case is distinguishable from 	Mendenhall 	because here, the
Company, by failing to answer the United States’ supplemental complaint before the
district court in 1903, forfeited its water rights and did not diligently carry out its
project to completion.
B. 	Boyd’s Claims of Fraud and Conspiracy
{18} 	Boyd denies that his water rights were forfeited or abandoned. He asserts that
the United States government and the Company’s attorneys entered into a conspiracy
to fraudulently “void” the Company’s water rights. According to Boyd, the “U.S.’s
Attorneys” conspired with the Company’s attorneys to file a supplemental complaint
in the initial navigation litigation, which the Company’s attorneys purposely failed to
answer. As a result, the district court entered the default judgment in favor of the
United States and ordered the forfeiture of the Company’s water rights. Boyd contends
that because the forfeiture action was the direct result of conspiracy and fraud by the
United States and the Company’s attorneys, it is invalid. We are not persuaded.
{19} 	Our review of the record reveals that one of the Company’s attorneys may have
suggested a legal strategy to the U.S. Attorney for forfeiture of the Company’s water
rights. Subsequently, the Company’s attorneys failed to answer the United States’
supplemental complaint for forfeiture and as a result, the district court entered a
decree declaring the Company’s water rights to be forfeited. These facts—by

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themselves—do not establish a conspiracy between the United States and the
Company’s attorneys to commit fraud. See Cain v. Champion Window Co. of
Albuquerque, LLC, 2007-NMCA-085, ¶ 28, 142 N.M. 209, 164 P.3d 90 (explaining
the three elements of conspiracy: “(1) that a conspiracy between two or more
individuals existed, (2) that specific wrongful acts were carried out by [the d]efendants
pursuant to the conspiracy, and (3) that [the p]laintiffs were damaged as a result of
such acts” (alterations, internal quotation marks and citation omitted)); see also State
ex rel. Peterson v. Aramark Corr. Servs., LLC, 2014-NMCA-036, ¶ 39, 321 P.3d 128
(stating 	that 	the 	elements 	of 	fraud 	are 	“that 	the 	other 	party 	(1) 	made 	a
misrepresentation of fact . . . (2) with the intent to deceive and to induce the injured
party to act upon it, (3) and upon which the injured party actually and detrimentally
relies” (omission in original) (internal quotation marks and citation omitted)).
{20} 	If a fraud was indeed perpetrated, it was a fraud on the Company by its own
attorneys, the remedy for which would not be for this Court to reverse the Third
Judicial District’s 1903 decree of forfeiture as Boyd suggests. Rather, the Company
could have brought an action against its attorneys for malpractice. See Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396 (1993) (stating that
“clients must be held accountable for the acts and omissions of their attorneys”); see
also Resolution Trust Corp. v. Ferri, 1995-NMSC-055, ¶ 17, 120 N.M. 320, 901 P.2d

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738 (stating that the “remedy for attorney failure lies in malpractice suit.”). To the
extent that Boyd alleges fraud against the United States, the Federal Tort Claims Act
“provides the exclusive remedy for tort actions against the federal government[.]”
Rehoboth McKinley Christian Healthcare Servs., Inc. v. U.S. Dep’t of Health &
Human Servs., 853 F. Supp. 2d 1107,1112 (D.N.M. 2012) (internal quotation marks
and citation omitted). Accordingly, Boyd does not have a cause of action for fraud
against the United States in state court. We conclude that Boyd’s claims of conspiracy
and fraud are irrelevant and are unsupported by the record.
C. 	Res Judicata
{21} 	The doctrine of claim preclusion, or “res judicata is founded on principles of
fairness and justice.” Kirby v. Guardian Life Ins. Co. of Am., 2010-NMSC-014, ¶ 61,
148 N.M. 106, 231 P.3d 87 (emphasis omitted). It “ensures finality, advances judicial
economy, and avoids piecemeal litigation.” Bank of Santa Fe v. Marcy Plaza Assocs.,
2002-NMCA-014, ¶ 14, 131 N.M. 537, 40 P.3d 442. “The principle of claim
preclusion precludes a claim when there has been a full and fair opportunity to litigate
issues arising out of that claim.” Tunis v. Country Club Estates Homeowners Ass’n,
Inc., 2014-NMCA-025, ¶ 19, 318 P.3d 713 (internal quotation marks and citation
omitted), cert. denied, 2014-NMCERT-001, 321 P.3d 936. Res judicata applies if four
elements are met: “(1) the parties must be the same, (2) the cause of action must be the

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same, (3) there must have been a final decision in the first suit, and (4) the first
decision must have been on the merits.” Id. ¶ 20 (internal quotation marks and citation
omitted). “Whether the elements of claim preclusion are satisfied is a legal question,
which we review de novo.” Id. (internal quotation marks and citation omitted).
{22} 	In this case, the forfeiture action was litigated extensively in the Third Judicial
District Court, the Supreme Court of the Territory of New Mexico and in the United
States Supreme Court. See Rio Grande Dam & Irrigation Co., 215 U.S. 266; see also
United States v. Rio Grande Dam & Irrigation Co., 1906-NMSC-013. Boyd also
litigated a taking claim in the Federal Court of Claims. Boyd, No. 96-476L, slip op.
at 5.
{23} 	In light of these prior decisions, the district court found that res judicata applied
because: (1) the parties did not dispute that the first element had been met (that the
parties in all the suits were the same); (2) the cause of action in the earlier decisions
was the same, stemming from the Company’s initial claims irrigation project and
related water rights; (3) the prior decisions were final because the initial forfeiture was
a final order of the district court, as it was subsequently affirmed by the Territory of
New Mexico Supreme Court and Boyd was denied post-judgment relief; and (4) the
prior decisions were on the merits of Boyd’s claims because both appellate courts

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evaluated the merits of the forfeiture and ruled on that basis. We agree with the district
court’s reasoning with respect to the second, third and fourth elements.
{24} 	The critical issue before this court is the first res judicata element. Boyd asserts
that, in its order to dismiss, the district court incorrectly stated that the parties did not
dispute that this element had been met. According to Boyd, he has continually alleged
that because Dr. Boyd himself was not a party to the forfeiture proceedings, the first
element of res judicata is not satisfied. He reiterates that argument on appeal.
{25} 	“Res judicata prevents a party or its privies from repeatedly suing another for
the same cause of action.” Deflon v. Sawyers, 2006-NMSC-025, ¶ 2, 139 N.M. 637,
137 P.3d 577. Because Dr. Boyd was not a named party in the previous litigation, we
must determine whether he was in privity with the Company, which was a party to the
litigation.
There is no definition of “privity” which can be automatically applied in
all cases involving the doctrines of res judicata and collateral estoppel.
Thus, each case must be carefully examined to determine whether the
circumstances require its application. This is so, notwithstanding the
general assumption that res judicata applies only if the parties in the
instant action were the same and identical parties in the prior action
resulting in a judgment. Privity requires, at a minimum, a substantial
identity between the issues in controversy and showing that the parties
in the two actions are really and substantially in interest the same.
Id. ¶ 4 (internal quotation marks and citation omitted). Privity may exist where the
parties have a “concurrent relationship to the same property right” or a “successive

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relationship to the same property or right.” Id. (internal quotation marks and citations
omitted).
{26} 	In the present case, Boyd asserts that the Company transferred its interests in
the irrigation project to the English Company, which in turn transferred the same
interests to Dr. Boyd. Boyd’s claims necessarily depend on his assertion that he is
successor in interest to the water rights of the Company. This puts him in privity with
the Company and accordingly, for the purposes of res judicata, he is considered the
same party. Therefore, we conclude that all four elements of res judicata are met and
that Boyd’s claims are precluded as a result.
III. 	CONCLUSION
{27} 	For the foregoing reasons, we affirm the decision of the district court.
{28} 	IT IS SO ORDERED.
_______________________________
M. MONICA ZAMORA, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
____________________________
J. MILES HANISEE, Judge