McGee v. State

380 P.2d 195 (1963)

72 N.M. 48

Taft McGEE and Marguerite McGee, his wife, and Carl Russell, Appellees, v. STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, Appellant.

No. 6820.

Supreme Court of New Mexico.

March 22, 1963.

Earl E. Hartley, Atty. Gen., Santa Fe, Charles D. Harris, J. Lee Cathey, Special Asst. Attys. Gen., Roswell, for appellant.

Brown & Brainerd, Roswell, William M. Siegenthaler, Artesia, for appellees.

COMPTON, Chief Justice.

The State Engineer appeals from a judgment of the district court of Eddy County reversing his decision denying appellees' application for an extension of time within which to make application of surface waters from the Pecos River to beneficial use under license number 746.

The scope of review is brought into question. The record merely discloses that the State Engineer denied the application February 18, 1958 without any hearing whatsoever. The applicants then appealed the decision of the engineer to the district court where additional evidence was submitted by various witnesses from which the court reached a contrary conclusion. Judgment was entered accordingly and this appeal followed.

We fully treated the extent and scope of review by district courts in our recent case, Kelley v. Carlsbad Irrigation District and Pecos Valley Artesian Conservancy District, N.M., 379 P.2d 763, in which we said that the district court in reviewing the decision of the State Engineer is not permitted under the statute, Section 75-6-1, N.M.S.A. 1953 Comp., to hear new or additional evidence. On authority of this case, the judgment must be reversed in order *196 that the trial court may correctly review the order of the State Engineer.

The cause will be remanded to the district court to vacate the judgment and proceed in a manner not inconsistent herewith.

IT IS SO ORDERED.

CARMODY and CHAVEZ, JJ., concur.