Supreme Court of New Mexico
Decision Information
Cross v. Erickson - cited by 46 documents
Durand v. Carlsbad Irrigation Dist. - cited by 8 documents
Ferran v. Jacquez - cited by 50 documents
Ingram v. Malone Farms, Inc. - cited by 45 documents
Kelley v. Carlsbad Irrigation Dist. - cited by 103 documents
McGee v. State ex rel. Reynolds - cited by 41 documents
Decision Content
DERRICK V. REYNOLDS, 1964-NMSC-085, 74 N.M. 181, 392 P.2d 13 (S. Ct. 1964)
R. S. DERRICK, Appellant, Appellee,
vs.
S. E. REYNOLDS, State Engineer of New Mexico, Appellant
No. 7391
SUPREME COURT OF NEW MEXICO
1964-NMSC-085, 74 N.M. 181, 392 P.2d 13
April 27, 1964
Proceeding for review of a decision of the state engineer denying application for permit to change partial point of diversion. The District Court, Chaves County, George L. Reese, Jr., D.J., rendered a decision from which an appeal was taken. The Supreme Court, Carmody, J., held that it was error to permit introduction of new or additional evidence in district court.
COUNSEL
Earl E. Hartley, Atty. Gen., Santa Fe, Charles D. Harris, Sp. Asst. Atty. Gen., Roswell, for appellant.
JUDGES
Carmody, Justice. Noble and Moise, JJ., concur.
OPINION
{*181} {1} The state engineer raises the single question attacking the scope of review permitted in the district court upon an appeal from a denial of an application for a permit to change partial point of diversion.
{2} We note that this error was not raised in the trial court, but appellee, by failing to file any brief, has not questioned the right of appellant to change his position; therefore in this situation we will consider the merits because "it appears that a wrong principle of law was applied below." Ferran v. Jacquez, 1961, 68 N.M. 367, 362 P.2d 519.
{3} The trial court's judgment reversing the order of the state engineer was entered approximately two months before our decision in Kelley v. Carlsbad Irrigation District, 1963, 71 N.M. 464, 379 P.2d 763. Nevertheless, additional evidence having been considered by the trial court, Kelley is controlling. We have consistently followed the Kelley case in Durand v. Carlsbad Irrigation District, 1963, 71 N.M. 479, 379 P.2d 773; McGee v. State ex rel. Reynolds, {*182} 1963, 72 N.M. 48, 380 P.2d 195; Cross v. Erickson, 1963, 72 N.M. 73, 380 P.2d 520; and Ingram v. Malone Farms, Inc., 1963, 72 N.M. 256, 382 P.2d 981.
{4} On this authority, it was error to permit the introduction of new or additional evidence on appeal from the state engineer's decision. Therefore, the case must be reversed and remanded to the district court, in order that a proper review may be given.
{5} It is so ordered.