SURVEY OF NEW t1EXICO HATER LAH
Submitted to Professor Bruce Kra mer
Independent Research
by
Damon Richards
612
I. INTRODUCTION
1.
Importance Of Hater
Water is one of our most important natural resources.
People have
recently become more cognizant of our need to discontinue rapid depletion
of dwindling supp 1i es of nonrepli ni shab 1e or s 1owly rep 1i ni shi ng natura 1
resources.
Our a\'Jareness, ho\':ever, anpears to only encompass hydrocarbons.
Humanity can survive, as it has in the past, without petroleum resources,
but we cannot and have never survived without water.
it is evident that a re-evaluation of our priorities
From this perspective
natural
regardin~
;
resource conservation and allocation is necessary.
l~ater
is an inte0ral part of everyday lives.
It is most often
thought of being important for oral consumption, but it also has many
other valuable purposes.
It is applied to crops, without which
have no fruit_or vegetables.
\'!e
vJOuld
It is needed for consumption by farm
animals and wildlife without which we would have no meat.
Water is also
used for domestic purposes such as washinq clothes and dishes.
It is also
used in manufacturing, industry, and recreation such as swimming, fishing,
and boating.
It is used to generate electrical power.
as a medium for transportation.
Another purpose is
A use that is often overlooked but is
very important is as a transporting agent to carry waste in.
From the
extent of these uses it is easy to conclude that water affects each
person •s 1i fe everyday, even
\~i thout
the 1i bera 1 construction The Supreme
Court gives the interstate commerse clause.
Although there is a hydrologic cycle, 1 in which used water is re:ycled by nature so that it can once again be put to use, there is still
2
a need to control the use of \o.Jater since nature is unpredictable and
as the population of the v10rl d increases the needs wi 11 becor.1e greater
and the possibility of contamination vlill also increase.
Since this
resource is invaluable it is not surprising that la\'IS have evolved to
maximize the quantity and uses to 'f'Jhi ch the \'later may be put for the
benefit of the most people, without undue depletion.
the need for 1aws governing the rights to
~later
i·iew
i~exico
sav.J
vJhi 1e in its infancy
and dra'rling from its historical background has developed an excellent
public water right system governing the management of both underground
and surface waters.
2.
Scope
If one morning you woke up and discovered you were completely
vJi thout \'later you VJoul d ca 11 the city uti 1i ty office or check your v.Je 11
to determine the reason for the 1oss.
If you discovered that others were
sti 11 receiving vtater but you \'Jere not, you waul d become anory because
you have just as much right to the v.1ater as anyone else.
this supposed right carne from?
~·!here
does
---
This paper will attempt to explain hm·J
rights to water deve 1oped in New r-1ex i co, and once deve 1oped hov1 they
are appropriated, regulated, and enforced.
This is intended only as a
general survey of NevJ r·1exico 111ater la\J regarding the amounts and uses
to which water may be applied.
Topics which will not be covered are;
quality of ilater, navigable v1aters, vJater economics, interstate conflicts
and compacts, Pueblo P-i gilts Doctrine, ovmership of stream beds, federalstate relations, Indian '.later rights, artesian conservacy districts,
ditches, and drainage districts.
6~14
3
3. Backqround Information
Basically, there are two quite different doctrines governing the
right to extract and use the water of surface watercourses in the
United States. 2 The doctrine of prior appropriation and the riparian
doctrine are the titles given to these systems. 3 The riparian system
originated in fuedal
land law in abundantly watered and humid reoions
'
in England, 4 thus the riparian riqhts are governed by the common law. 5
·._~
The fundamental premise of the riparian doctrine is that each m-1ner of
land bordering on a watercourse has the
rig~t
to use of the water in the
watercourse.6 Under the English Rule each landowner had the right to have
the water flow past his lands undiMinished in quantity and unimpaired
in quality. 7 Hm41ever, under the AnP.rican Rule, the landovmer is required
v
·~)
to make a reasonab 1e use of the ., ater and 1i abi 1 i ty is imposed on the
upper ri pari an 0\•lner for unreasonab 1e use. 8 The r.1aj ori ty of eastern
·'
states follow the American Rule, but some still follo\'t the Enqlish Rule.
Generally, the riparian riqht oriqinates from the physical location of
the 1and abutti nq a body of \'later, therefore a ri oari an oNner may not
exercise his ri qht on nonri pari an 1ands. lO Th e r1. par1. an
o~mer
has th e
right of use, a usufruct, in the water, as distinguished from a rioht
to the corpus of the water. 11 The right to use exists whether or not
the water is actually used, 12 and the rights may be obtained under the
COI'J'IITion la\·J of prescription. 13 The riparian riqht is measured
specific quantity of vtater,
14
by
a
but riparians are "correlative co-sharers"
in uncertain quantities.lS
615
9
4
The prior appropriation doctrine is mainly distinguished from the
riparian doctrine by its priority of right feature. 16 Appropriative
rights are governed primarily by statute and priority is usually fixed by
application for a permit. 17 In short, "first in time, first in legal
right" governs the appropriation.l8 An appropriation is defined as a
11
state administrative grant that allows use of a specific quantity of
water for a specific beneficial purpose, if water is available in the
source free from claims of others with earlier appropriations ... 19 The
appropriative right is separate from landownership and may be lost by
nonuse, but by the same token the place of use may be chanqed or the right
20
may even be sold.
Appropriation la\ts developed in the arid western
states where the rule of priority insures those \"lho have already obtained
rights to the water will not have their use of the scarce water taken
from them by a ne\'tcomer who settles or buys 1and abutti nq the watercourse upstream from them. 21
Vari9us degrees of the riparian and appropriative doctrines have
been recognized by state legislatures, and have resulted in four categories controlling the use of surface waters.
The first is "pure appro-
priation" which is sometimes called the "Colorado Doctrine." The
second is known as the "California Doctrine" which recognizes both
riparian rights and appropriation but usually limit· all new uses to
appropriation la\-'IS.
Another category is made up of riparian states that
control all new uses by administrative permits. The remaining states are
common la\'/ riparian with many statutes to helo control the water rights. 22
6_16
surrace wa"Lercourses.
1nere are many caasslTlCa'tlons or
unaer~rouna
\'tater with various tenns used to describe each. The discussion here vlill
involve four classifications of groundv1ater, 23 which must be distinguished in order to detennine which la\·t vrill be applied to each.
The first,
underground streams, is defined as a watercourse vii th a definite and kno\'m
channel buried in the ground and discoverable from the surface without
excavation, .and generally law of surface water applies to these streams. 24
The same law applies to the underflow of surface streams, which is the
subsurface portion of a \'latercourse. 25 The third type is percolatinq
\·Jaters, which are those waters \'thi ch "ooze, seep, or fi 1ter through the
soil v1ithout a defined channel ... 26 Artesian water is the fourth classification and is defined as water under sufficient hydrostatic pressure
to rise above the saturated zone 27 and is often considered to be perco1ating water. 28 These percolating waters are not subject to the laws of
surface water,29 and several different doctrines have arisen to ~overn
them. The English rule of "absolute ownership"
allo~,s
the m.,rner of the
soil to own all that is beneath the surface of his land. 30 The reasonable-use rule limits use to the needs and necessities of the owner's own
land. 31 The correlative-rights doctrine allov1s land ov1ners coequal
and proportionate rights to their overlying ownership, and does not
allow one's use, although reasonable, to reduce significantly a neighbor's
use. 32 The prior appropriation doctrine limits the use of underground
water by statute. 33
617
i
_.-J
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.:
'"
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I
6
I I. HISTORY AND
OE'!ELOP~~ENT
The various doctrines pertaining to watercourses and groundwater
as set out above are by no means complete, but they are sufficiently
enli9htening to understand the many theories \•lhich evolved.
Each state,
including New r·1exico, has had the opportunity to select the vrater
system it desires by legislation.
t1any states have relied on the history
in their respective areas in order to adopt the system that is best
suited for its unique needs.
f.1ost
of New r1exico•s \'later la\'t has been
held to be merely "declaratory of existing la\'.J, 1134 and therefore based
on hi story.
The earliest knrn-.:n inhabitants of the area now
as New r·1exico,
the Pueblo aborigines, were discovered by early Spanish explorers. 35 It
knm<~n
is natural ,. to believe that New Mexico's \'tater la\'1 systems were originated
by these Spaniards, but they were not.
A Spanish explorer, Espejo, in
1532-1583, tells of already existing irriqation ditches supplying the
pueblos near Socorro. 36
It is important to point out that the pueblos were
run like communes, so the inhabitants assumably shared equal responsibility for the care and use of the water system.
In 1598, Juan de Onate
placed the first Spanish settlement within the boundaries of what is
now the United States at San Juan,
Ne~r
Me xi co, and by August of that year
the Spaniards and natives began work on further development of irrigation
ditches.37 Although the natives of this area had used irrigation ditches
for both domestic and agricultural purposes before the arrival of the
Spaniards, 38 the Spanish settlers brought with them a skilled system of
irrigation.
6_18
7
Spain is believed to have received its knm-1ledge of irrigation from
the r1oors who conquered Spain in 711 A.D., and brought with them their water
laws \'lhich dated back to 2000 years B.C. vthen Hammurabi introduced
; rri qati on to improve agriculture during the Go 1den /l.ge of Babylonia. 38
The common proprietorship of water supplies, irrigation ditches, and
administration of the system by each community was an important feature
of the
r~oorish
and Spanish laws, and since this was compatible with the
native's system, the native's customs were modified but not extinguished. 39
Hhen f.'texico .. separated from Spain, and formed the f1exican Republic, the
.I
Spanish law for the most part continued in force.
This sets the stage for the estab 1i shment of the Terri tory of Nev1
Mexico from the Mexican Republic's domination. On May 13, 1846 President
Tyler declared ~~ar on ~1exico. 40 nriqadier General Kearney \'las to lead
r1issouri volunteers to take New Hexico, and his instructions \'/ere; "Should
you conquer and take possession of New Mexico ••• you will establish a
temporary civil government ••• it is forseen that what relates to the
civi 1 government wi 11 be a di ffi cult and unpleasant part of your duty,
and much must necessarily be left to your own discretion." 41 After
Brigadier General Kearney had secured New Mexico he organized a provisional
government on September 22, 1846, that has become kno\"m as the "Kearney
Code ... 42 The code states in relevant part that, "The la\'/S heretofore in
force concerning v.'atercourses ••• sha 11 continue in force. "43
A few years later on September 9, 1850, New r'1exico v1as established as
44
a territory.
One of the first acts of the legislature in 1852 provided
that all streams and rivers known as acequias (ditches) were declared to
6.19
8
.
. 45
be pu bl 1c acequ1as.
In 1880, the le9islature provided for election of
commissioners to measure the lands and regulate the amount of labor to
be performed by 1andrn·mers who shared the \"'ater from the aceoui as. 46 Various
legislative changes in 1874, 1887, 1895, 1897, and 1903 expanded
the lav1s of water rights and public O\'tnership of the \·rater. 47
It
\~tas
not unti 1 1898 that the Ne-1 t1exi co Terri tori a1 Supreme Court
\1as finally confronted with making a decision as to the type of water
48
•
f or r•~e\'1 r1·ex1co.
•
appropr1ate
In United States v Rio Grande Dam & Irriqation Co., 49 the court stated,
·
·
·
· t 1on,
·
h
s.vs t em, r1par1an
or pr1or
appropr1a
tat
~ras
,•
"The law of
p~ior
appropriation existed under the Mexican Republic at
the time of the acquisition of New
r~exi co
11
•••
and the Kearney Code con-
tinued in force all the laws of watercourses.SO. Thereby the court
adopted the prior appropriation system. The court appears to have been
convinced their,_ declaration was simply a continuance of an established
rule, for later in the opinion they add that, 11 The doctrine of orior
appropriation has been the settled law of this territory by legislation,
custom, and judicial decision." 51
How well founded is the decision of the court? Up to this point
1istory has shown that the natives, Spanish and r1exican laws purported
:o only control irrigation systems and public O\'mership of acequias.
t has not been proven that these laws were necessarily based on prior
ppropriation. 52 There are various ways the doctrine of prior appropriations
auld have developed. The court overlooks the possibility that the doc"ine may have sprung up and become the accepted custom \<ti thin the fifty
~ar
span bet\•/een the promulgation of Kearney •s Code and the adjudication
62~)
9
of this case.
If this was the situation, clearly the court's sweepinq
adoption of the prior appropriation doctrine was misfounded.
There are many possibilities as to the origin of the doctrine, but
only a feN
\~i 11
be presented here.
First, it is pass i b1e that the doc-
trine accompanied the irrigation laws of Spain as an "um·Jritten law," because if it was written in the Las Siete Partidas, 53 a Spanish code
promulgated as the law of Spain in 1348 and sanctioned in 1505, surely
a historian or an authority would have discovered it by nm-1.
there is a
po~~1bility
Second,
that prior appropriation was in effect under the
native's water system and was incorporated into the Spanish-Mexican laws.
Another theory of the origin of prior appropriation is based on
the idea that the better right was by earliest land grant from the
sovreign to old Spanish settlements or individuals. 54 A noted author
:>n water 1a"', Frank Tre 1ease, be 1i eves there is no reason to 1ook at the
>panish la\'1 because he suggests the
s~stem
of appropriation was developed
who promulgated rules and adopted customs to regulate the
1se of water to ~Jash gold. 55 If this theory is correct it would support
~miners,
he proposition set forth earlier of the misfounded reliance by the
ew Mexico Territorial Supreme Court, because the big gold rush days \"/ere
Jt until 1849. The Arizona Supreme Court apparently gave up trying to
:plain the origin of the right to appropriate and finally stated that
. ht antedates h1story
.
. SG Regard1ess of th e
1e r1g
an d even t ra d1. t 1on.
cient history and origin of the doctrine New
~·1exico
recognized the
ght of prior appropriation simply because it was a part of recent
;tory and had become the local rule and custom of the area.
621
57
/
10
As mentioned earlier, Kearney's Code Nas the first attempt to
I
J
establish laws after the acquisition of New ~1exico from the Republic
of t1exico, 58 and it was soon follovted by Ne\'1 Hexico Territory legislation. 59
Apparantly this early legislation had the effect of establishing the
appropriation doctrine because the Territorial Supreme Court in 1898
stated that the doctrine had already been adopted by legislation.6° The
authority of the legislature to adopt provisions in derogation of the
common law riparian doctrine was questioned in the case of Yeo v Tweedy. 61
The contention \·las that when New Mexico made a sweeping adoption of the
••'
common law in 1876, riparian rights became vested and that the legislature could not act in subversion of vested riparian rights. 62 The
court concluded that the legislature did not intend to adopt the riparian
system because it is not compatible with the conditions, circumstances,
and necessities of this ar.ea and that the judicial decision in 1898 in
. .
1
the Rio Grande Dam & Irrigation merely announce d a1rea dy ex1st1ng
aw. 63
t
The court therefore he 1d that New r1exi co had never adopted the riparian
system. 64 The dissent by Judge Parker is interesting in that he points
out the water in question in this case was situated in the eastern part
"1
of New
~1exi co
which was acquired from the Repub 1i c of Texas Nho had
•
65
adopte d the riparian doctr1ne.
Hhen the question of appropriation came before the Supreme Court of
the United States their analysis was similar to the territorial courts but
it had an additional basis. The Court recognized the need for appropriation
of flowing waters for mining purposes and agriculture in the reclamation of arid lands but based its decision on the Homestead Act of 1866
622
66
11
and the Desert Land Act of 1877
67
which in effect recognized the local
68
customs, laws, and decisions in respect to prior appropriation.
As a sidenote, it is interesting that in 1935 these Acts were held to
have conveyed all the non-navigable waters to the states and thereby
,,....;
subject to the states' plenary control, but in 1955 it Nas held that the
Acts were not applicable to reserved lands by the United States; the
result has been confusion in the determination of Federal-State rights to
69
govern water.
In 1903, the Supreme Court of the United States recognized that the
waters belonged to the public and the legislation of a territory, as
well as a state, is sufficient to regulate the use of water.70 Subsequently the courts reinforced these judicial decisions by stating the
judicial detenninations did not make the law, they 11 0nly recognized the
law as it had been established and applied by the people" through
custom. 71 Furthermore those courts stated that the type of appropriation
adopted in New Mexico was the pure fonn or 11 Colorado Doctrine 11 of
appropriation,
72
in \'lhich application for a permit to appropriate \'later
must be submitted to the state and it is only upon approval that one
can appropriate \'Ia ter to a beneficia 1 use.
Prior appropriation became the custom of this area because of its
hot arid climate in which rainfall is minimal and temperatures are high
73
juring the summer months.
Settlement and econ~mic development of this
·later-deficient region was dependent on successful farminq by irrigation,
;uccessful mining, and sufficient municipal water supplies, which in turn
74
~ere a11 dependent on the rf ght to di vert and aPP ron ri ate 1·1a ter. The
riparian riaht of continued streamflo"'' and use beino limited to the stream75
)ank \'/ere not suitahle for irriqation purposes.
The cnurts in New r·-1exico
.J
623
12
have relied heavily on the custom and local rules, which were already
in effect to uphold legislation which provides prior appropriation on
the grounds that it is merely declaratory of existing law •
.,,.
jn 1907 a comprehensive act on surface water regulation was passed
the legislature and it is the basis for the current statutes on surface
waters. 76 In 1931 the first statutes that passed constitutional muster
were adopted which pertain to regulation of underground water. 77 The
by
s i gni fi cance of \'later 1egis 1ati on in New Me xi co today is evident by the
598 pages of legislation and additional pages of rules and regulations. 78
The Constitution of the State of New Mexico was adopted on January
21, 1911, and the territory achieved statehood on January 6, 1912.79
The framers, aware of the importance of v1ater and its distribution,
devoted Article XVI to "Irrigation and Water Rights.''
It recoqnizes all
existing rights to the use of water as long as the use is for a beneficial
purpose;BO states that beneficial use shall be the basis, the measure, and
the limit of the right to use water;82 authorizes the legislature to
make laws pertaining to drainage districts and systems;83 and a 196~,-
amendment allows trials de nevo.84
Ne\I'J
~1exico,
throuqh the wisdom of the framers of its Constitution
and its legislatures, has provided a prior appropriation system regarding
both the surface and underground waters.
The courts have zealously
defended the prior appropriation system based on shaky history and a
strong custom, as well as recognizing it is the best suited doctrine
for their climate.
624
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13
I I I.
P.PPROPP-IATION OF '·lATER
Through history the surface \t!ater itself has belonoed to the
..
·'
community or public, as already noted.85 The early territorial legisla. .d
tion perpetuate d t h1s
1 ea, 86 and the framers of the New Mexico Con-
stitution provided that the "l·1ater of every natural stream, perennial
or torrenti a1, within the state of
N~w
\1exi co, is hereby rlecl ared to
belonfl to the public ••• u87 Hhen challenged, this Constitutional provision
was upheld
as
only "declaratory of prior existing la~·."88 Since this
.I
provision only referred to surface waters, it was soon asserted that
specific mention of surface waters amounts to an exclusion of all other
waters by negative implication. 89
In Yeo v. T\'Jeedy90
private m·mers of lands overlying the underground
water basin were arguing they had a vested property rights in the corpus
of the ground\a1ater \'Jhi ch was incident to their ownership of 1and, and
since this vested property right antedated the enactment of the Constitution
or legislation pertaining to groundwater the enactments violated their
vested property rights.91
The leqislation referred to stated:
"All
waters in this state found in underground streams, channels, artesian
basins, reservoirs, or lakes, the boundaries of which may be reasonably
ascertained ••• are hereby declared to be public waters and to belong
to the public.u92 In a len9thy opinion the court rejected the claim of
absolute ownership under the doctrines of "capture," "reasonable use,"
or 11 Correlative rights," and once a9ain depending on history, custom, and
625
14
the arid climate decided both the statute and the Constitution were only
"declaratory of existing law." 93 Amazingly enough the court declared
the 1927 groundwater statute to be technically void because it enlarged
the jurisdiction of the state engineer, but still held that the groundwater
in the artesian basin \'Jas subject to appropriation even without the statute •
A later statute95 cured the consitutional defect, \IJaS upheld by
.I./
judicial decision, 96 and is still a part of the current statutes. 97 A
1953 statute, 98 hm~Jever, declared "all underground waters to be public
\'laters and subject to appropriation for beneficia 1 use. 11 The two current
statutes are_, seemingly contradictory in that one states "Only underground
waters within reasonably ascertainable boundaries are public," 99 and the
other states that "all underground v:aters are public,"
-
100
They are only
distinguished by the fact that the first requires approval of application
to the state in order to apply the water to a beneficial use 101 while the
latter does not. 102
A question arises as to which statute is applicable to percolating
water and underflow of a surface stream. As long as the percolating
water is close to or above an area that has been declared to have a
reasonably ascertainable boundary, the construction of the first statute
103
will probably be broad enough to include it. After all, if the court
will declare an artesian basin to be public water subject to appropriation without a valid statute, 104 it will likely incorporate percolating
waters into a new valid statute. Most western states, who have had
occasion to rule on the laws applicable to underflow of a surface stream,
626
94
15
agree that this water is subject to the same laws as the surface stream
105
waters rather than groun~1ater.
Even though it is generally said that all the waters of the state,
106
both ground and surface water, belong to the public,
there is some
water that is not or may not be public. There is a questionable classification of water that appears to be excluded from public ownership by
Constitutional provisions. Article XVI, section two of the Nev1
~1exico
Constitution states, "The unappropriated \"'ater of every natural stream
•••
is hereby declared to belong to the public and be subject to appropriation
for beneficial use, in accordance \•tith the laws of the state. Priority
of appropriation shall give the better right,nl07 and section one provides,
"All existing rights to use of any waters in this state for any useful or
beneficial purpose are hereby recognized and confinned.ul08 By using the
phrase, "unappropriated water," 109 the framers may have been reiterating
their recognition that some of the \'laters had a1ready been appropriated
as stated in section one. 110 However, it seems that these waters which
_..
were already appropriated prior to the adoption of the Constitution are
excluded from pub 1i c m·mershi p, and therefore v1oul d not be subject to
the appropriation la\'IS of the state.
If this proposition is proven true
it \'lill raise many issues as to the rights of the private m·mers of these
prior existing water· rights to transfer, divert, store, or use these
waters for whatever purpose they desire free of state controls.
A special statute lll controlling ownership of artificial surface
water codifies the result in Hagerman Irrigation Company v. East Grand
Plains Drainage District,ll2 which states that artificial surface water
\'lhi ch is created by man is the persona 1 property of the
m~ner
as 1ong as
it is confined to his land but once it is deposited in a stream it becomes
627
16
subject to public ov:nership, and the appropriator of water from that
stream cannot require the cant i nuous flow of such \"Ia ter to the stream. 113
Artificial surface water is defined as those waters "due to escape, seepage, loss, waste, drainage, or percolation from constructed works
•••
which depend for their continuance upon the acts of man."ll4
~1ost
springs are public but \"later \•lhich comes from a natural spring
and does not establish a definite channel but sinks into the soil is
personal property and not subject to appropriation.ll5
The public does not have continuous ownership of the water throughout
its hydrologic cycle.
There must be a point at which the public gives
up their ownership, othen,lise everything that has water in it, such as the
plants, animals, clouds, and human beings, would be subject to ownership
by the public.
The point in time of change of O\·mership is compared to
fish in a stream:
They are not subject to private ownership until caught.
116
Likewise, once water is impounded and reduced to possession by artificial
means it becomes personal property, and may be subject to purchase, sale,
or even larceny, no matter what it is to be stored or transferred in. 117
However, thirty years later the court held that although water from tv'o
streams had been artificially impounded by a dam, it remained public
\"'ater unti 1 there was actua 1 appropriation of the water by both diversion
and application to a beneficial use. 118
'
The court did not say and it is ,.~ ,,'-~
.\ :.
·~
. "' !
not clear whether this later case overruled the earlier one, and there are
~o
statutes \'lhich address this subject.
The two cases may be distinguished
1 a major point, in that the defendant in the earlier case was demanding
1
rep~innan right to the continuous flm·J of water in the stream, 119 but
n the second case all that was being requested was the right to fish
n a reservoir.
120
In both cases the dam \'las built directly on the stream.
628
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This leaves open the question of ownership of water once it is impounded
by artificial works without a true diversion from the stream. The first
case would appear to allow
person~l
ownership of the water because it had
been artificially impounded, but the later case appears to require an
actual application to a beneficial use.
In summary, most water is owned by the pub 1i c but it vii 11 become
personal property when it is diverted from the stream.
If there has
been no true diversion the time of personal ovmership is in conflict.
629
18
IV. THE APPROPRIATIVE Rif,HT ('·JATER RIGHT)
1. Nature of the Right
Long ago Kinney, a noted author on water rights and irrigation, defined a v1ater right as The exc 1us i ve independent property right to the
11
use of water appropriated according to the law from any natural stream,
based upon possession and the right continued so long as the water is
actually app 1i ed to some beneficia 1 use or purpose. ul21 The tenn water
right may be somewhat of a misnomer because the right is not to specific
water flowing in the stream; it is simply a right to take and use the water.l 22
The corpus of the water in a stream belongs to the state in trust for the
pub 1i c, but the right to its flow and use is a property right kno\'tn as a
usufruct or a usufructuary right or water right. 123 The \A/ater right is
generally considered to be real property, and is usually a private right
rather than belonging to the public like the corpus of the water.l24 Naturally the water right is an "exclusive right \-Jhich distinguishes it
11
from vipari·anism.l25 The New Mexico Supreme Court has decided the water
right is a freeheld interest rather than just a possessory interest,l2 6
but note that this freeheld interest is conditional. It is an incorporeal
hereditament, solely usufructuary,l 27 but it is not an easement because the
appropriative right is distinct and exists independently apart from the
ownership of the 1and. 128 The water right a1so is dis ti net from the property
rights in canals, ditches, pipelines, and reservoirs by which the water is
Hverted. 129
The general rule that the appropriative right is appurtenant to the
articular land in which the water is applied to a beneficial use,
as recognized by an early case in the federal court,l30 which is not
fnding precedent on the state courts.
Twenty years later the New Mexico
IPreme Court adopted this rule after citing a Texas case as authority. 131
630
19
In between this time period the Court had held that a riqht to use water
for raising livestock on qovernment land was not necessarily appurtenant
to a particular section of land.l32 These cases may be distinauished by
the fact that one case involved qovernment lands so the use of the water
was only a possessory riqht,l33 whereas in the other case the 1and \Alas
private and the use of water was an incorporeal hereditament to a freeheld interest.l34
A statute now provides in part that:
11
All water used in this state for irrigation purposes ••• shall be
considered appurtenant to the land upon which it is used and
the right to use the same upon said land shall never be severed
,/
from the land without the consent of the owner of the land, but
by and with the consent of the owner of the land, all or any part
of said right may be severed from said land, and simultaneously
transferred, and become appurtenant to other land, or may be
transferred, for other purposes, vJi thout 1os i ng priority of right
theretofore established ••• ul35
An earlier statute with siMilar wording was upheld by the Court,l36
and more recently the Court has stated that this section on surface water
and another section on aroundwater expressly recognize that water
ri~hts
on certain lands may be severed from those lands and become appurtenant
to other 1ands or even transferred for other purposes and uses. 13 7 HO\'Iever,
if title to the land with the appurtenant water riqht is transferred the
title carries with it all of the water rights for irrigation purposes un1ess the water right is expressly reserved. 138 The consent of the ovmer
11
of the land 11 has been construed to include a written election by remaindermen before severence of the water right may be perfected.l39 These sectionsl40
only apply to the use of water for irri9ation purposes and do not touch on
631
20
whether or not use of water for domestic, industrial, or stock raisinq
purposes is appurtenant to the land or if it can be severed from it.
Before continuing it is important to reiterate a few basic points of
the character of the appropriative right in order to distinquish it from
other property rights.
First,the water right is not the right to the corpus
of the water in the natural stream, or in the underqround basin; it is
sinply the right to take and use water for a specified purpose.l41 The water
right is also distinct from the property right in the canal, ditches, pipe1i nes and reservoirs by \'thi ch the \'later is carried to the 1and it is to be
used on.l42 Third, the water riqht is appurtenant to the land and is severable from thi-irrigated land on which the water is to be put to beneficial~use.l43
2. Acquisition of the Right
The cornerstone of the appropriative system is the maxim that at beb1een
appropriators, priority of application shall give the better riqht. This
maxim is so important it was included both in the Constitution 144 and in
statutes, 145 and was reco~nized by judicial decision as early as 1900. 146
This rule of "first in time, first in right"
fonnulated by custom. 147
'tJas
prompted by necessity and
There are two main ways to acquire an appropriative riqht.
method of
ac~uiring
The current
the right to beneficial use of water is by application
to the state en0ineer for a permit to aporopriate, but note the application
fonns are different for surface water148 and groundwater. 149 The state
engineer may
re~uire
detailed information as to the amount of water to be
used, time period of annual use, the use for which it shall be applied, etc.,
and even maps, olans, and specifications. 150 If the applicant follov:s all
the statutory mandates and the right is eventually granted by the state
engineer, the priority claim relates back to the date of the receipt of
the application in the state engineer's office. 151
632
.
__,
21
The other method of acquisition of water rights is protected by the
Constitution by its confinnation of "all existing \'later rights" for a
beneficial purpose. 152 The statutes declare that "Claims to the use of
\~ater
initiated prior to r1arch 19, 1907, the right shall relate back to
the initiation of the claim." 153 These existing water rights are also
154
and to community ditches which were already
recognized in ground\'Jater,
constructed. 155 Also, the existing vested rights and priorities in
construction of reservoirs, canals, pipelines, and other \'larks \'lhich
were commenced before t1arch 19, 1907 are recognized. 156 The methods of
. ., OT th ese ves t ed r1g
. hts are s1m1
. .1 ar for sur f ace waters 157
dec 1ara t 1on
158
and groundwaters.
.The statutes require a prior actual appropriation
for beneficial use, 159 but do not require the appropriation to be conL"
tinuous. The forfeiture statute, 1GO may not apply to failure to beneficially use the water in question because it applies only to the ri9ht
which has been "appropriated or adjudicated" and furthemore requires
notice from the state en9ineer.
It appears that this right cannot be
forfeited and there has been no case on the possible abandonment of a
vested right prior to 1907.
The most extensive adjudication in the area of existing water
rights prior to 1907 is based on the "Doctrine of Relation" or relation
back. The doctrine was recognized as applicable to appropriative rights
in 1883, which was prior to any statutory provisions. 161
,-
later it \"las
'
noted as being universally applied by courts in avid
states in the
appropriation of water, but that it does not apply if the intending
appropriator does not use reasonable diligence in prosecuting his work. 162
Statute now provides that the right shall relate back to the initiation
633
22
of the claim was prior to March 19, 1907, and if after this date it
shall relate back to the date of receipt of the application with the
provise that the application is subject to compliance with other
provisions of the statutes. 163
The case of
Fa~er's
Develonment Comoanv v. Ravade Land and
Irriqation Comoanv, 164 presented the question of who had the prior
• 1-'
right when the defendant started his work before the plaintiff started
his and also before the 1907 statutes
~ere
-
enacted although he did not· '
complete construction of his ditches until after the enactment of the
statutes at ·which roint the plaintiff had filed for appropriation under
the tenns of the statutes. 165 The Idourt concluded that the claim prior
.
to the enactment of the statutes related back to the initiation of the
'')
work and was superior to the claim initiated under the statutes which
only
relat~d
back to the date of filing the application rather than to
initiation of the works.l66
In 1961 , the NeVI t1exi co Suprer1e Court he 1d that the statute a11 m~Iing relation back was only relevant to surface waters but the legislative intent allo'IJed expansion of the doctrine to grounm1aters. 167
~
However, the court did not distinguish the relation back to the filing
of the application under the act and the relation back to the initiation
of the actua 1 work prior to the act, therefore the Court a11 O\'!ed
relation back to the initiation of the work. 168 The possible reason the
court allm·Jed relation back to the actual work instead of filinq of
the application leads into the next topic.
The reason is that the
application was not required for the area v1here the groundv1ater
located.
634
\•las
S
., .
,.
23
3. Water Subject to the Appropriative Pight
Not all v1aters are subject to appropriation, and brief surrmary of
these waters fo 11 0\'IS.
As noted earlier' 1()g both statute 170 and case
1aw171 provide that artificial waters are not public waters and are
thereforP- not subject to appropriation.
Underqround \'raters thnt have
reasonably ascertainable boundaries are public and subject to appropriation for beneficial use 172 upon approval of an application, 173 but
underground water that is not within reasonably ascertainable boundaries
is public and subject to appropriation for beneficial use but no app• t 1on
•
• .,, requ1re
• d • 174
1s
11ca
• /.
Jnappropr1ated water II belongs to the pu b11c
and is subject to appropriation for a beneficial use, 17 5 but the prior
II I I
•
existing appropriative ri9hts may not be subject to state controls.
Stock owners who build water tanks or ponds which have a capacity of ten
acre-feet of water or 1ess and are bui 1t to capture surface \·taters for
the purp~se of watering stock are exempt from the statutory requirements. 176
Note that the use to
~rhi ch
grounm1ater wi 11 be put may be the deciding
factor in whether or not an appropriative right is required.
If the
--)
water is to be used only for watering of livestock, or irrigating non/
commercial trees, lawn, or garden or use for household and other domestic'
purposes, mandatory language, "shall," requires the state engineer to
issue a permit to the applicant. 178 Now that it has been explained
~1hat
water is subject to the appropriative right and VJhether or not an
application is necessary, the next focus of our discussion \•till be upon
the conveyance of this appropriative right.
635
24
4. Conveyance, Transfer, and Change of Puroose
Since the water right is aprurtenant to the land, the transfer of
title of land in any manner carries with it all the water rights appurtenant thereto for irrigation purposes. 179 There is a possibility,
however, that the water rights will not accompany the land title if
they have been "previously alienated in the manner provided by lavt." 180
\
'
I.·-
There are three statutes that allow surface water riqhts to be alienated
from the 1and. 181 The first pro vi des +"or the severence of the ,-.,ater
right from the land if certain requireMents are met. 182 These requirements are a·s follo~Js:
(1) consent of the landovmer; (2) changes can be
made without detriment to existing rights; and (3) approval of the
application by the state engineer a+"ter the ovmer gives notice by
publication. 183 The transferee receives the same priority of right
184
established by the transferer.
The second laHful method of severence
I
is for the appropriator to chanqe the purpose of use of the water or
change the place of diversion upon approval of the state engineer.l85
This in effect a11 ows a trans fer of the \··tater rights for other purposes
and uses.l86 The rationale for this transfer is based upon the inherent
right within the water right as property to change its n1ace of diversion
or use as lonq as other water users are not impaired by the change. 187
The third method is simply an extension of the previous one but it eliminates the procedural requirements when there is an emergency, such as
crop loss.l88 Water for storage reservoirs is exempt from the prohibition
on the transfer of ownership or assignment of a vtater
ri~ht
by special
provision.l 89 These statutes obviate the subjective factual question of
the intent of the owners to transfer the water ri9ht which presented a
190
Problem in an earlier case.
636
25
The water right in under9round waters can likewise be transferred.
Again, the change of location of the well or change in use of water is
subject to the state engineer's approval upon a sho\'Jing that the change
vtill not impair existing rights and the proper procedures are followed. 191
The application must include a description of the present and nroposed
well locations, description of the land the water rights are trans~erred
from and transferred to, 192 and if only a portion of the water riohts are
transferred the lands must be surveyed· and maps prepared. 193 A license
is necessary to appropriate Nater for the new place or use, 194 hut no
license is necessary \·then replacement wells 195 or supplemental wells 196
~·
are involved.
Generally since the water right is real property it cannot be transferred to someone e1se except by a written instrument. 197 The New t1exi co
statutes expressly provide that any permit or license can be assigned if
-!>.
done so by one of the methods set out above, but they also demand that
in order for the assignment 11 to be bindin9, except to the parties
involved, it must be filed for record in the office of the state engineer.ul98
It is generally accepted that a \·later right itself may be mortgaged and
it is also subject to the mortgage on the land that it is appurtenant to. 199
Speci a1 provision a11 ows the o\'mer of a \'later right to 1ease a11 or
any part of it 200 upon approval of application statinq the use and location of use to which the water will be put. 201
5. Elements and Limits of the Right
There are many historical, statutory, and judicial limits and
elements placed on the right to use the water.
637
The origin and reason
26
for these limits and elements lies in the necessity of this arid reqion
for the maximum beneficial use of the scarce water supplies;
these
liMits are inherent in the prior appropriation system in order for it to
be effective.
Priority is the first element and also acts as a limit.
The Constitution sets out the basic rule that ''Priority of appropriation
shall give the better right." 202 This languaqe is also echoed in the
statutes. 203 The various methods of acquiring the aporopriative right
have been discussed.2°4 There are basicly two classifications for
acquiring priority.
Claims of water rights prior to
r~arch
19, 1907
have a priority date as of the time the water was actually put to a
beneficial use.205 Those claims after ~1arch 19, 1907 have a priority
date based upon receipt of application in the state engineer's off{~e. 206
The significance of the priority date Pill be discussed later, 207 but
"""
let it suffice for now that in years of draught
what little water that is
available goes to the appropriator
~lith
the earliest priority date.
The main restriction and element of the appropriative right is
placed on the use of the \'later.
--
The Constitution declares, Beneficial
11
use shall be the basis, the measure, and the limit of the right to the
use of water, .. 208 and that public waters are 11 Subject to appropriation
for beneficial use ... 2° 9 Like'.-tise, the language of beneficial use permeates the statutes for both surface 210 and ground\~ater.211
The application of water to a beneficial use is the sine gua non of
a water right under the doctrine of prior appropriation, 212 but there is
little guidance as to what will be considered a 11 beneficial use." The
statutes do not make an attempt to define beneficial use, but various
provisions may be applicable in determining some of the uses the legislature believes fit within the term.
A statute pertaining to underground
638
. 27
water uses mandatory language in requirin9 the state engineer to issue
a pennit to anyone who applies for the use of \·tater for v1aterin9 livestock,
for i rri gati on of not to exceed one acre of non-commercia 1 trees, 1awn,
213
or garden or for household or other domestic uses.
The state engineer
may issue permits on a temporary, basis for prospecting, minino, construction of public works, highways and roads, or drilling operations
designed to discover or develop the natural resources of the state.2 14
Statutes also impliedly recognize irrigation,215 industrial purposes, 216
and county \"later supply systems217 as beneficial uses •
.-'
Case la\1/ only slightly enlar9es the realm of beneficial uses. The
attainMent of state conservation purposes,218 huntinq, fishin9, and recreation,219 and Pueblo Rights (city or municipal rights to water),220 have
I
been recoqni zed.
r
The use of Nater for qenerati on of e1ectri ca 1 power has
not yet been decided.
The determination of \!-that constitutes a beneficial
use will be resolved on a case-by-case basis considerin9 the totality
of the facts. 221
The arid region doctrine \'lhich states that beneficial use, as to
both quantity of water and periods of time of use, is the measure of
the right, \'Jas modified by statute.222 In Harkey v. Smith, 223 the limit
of the right to beneficial use was determined to be set by grant or
permit from the state engineer, 224or decree of the court. The reasoning
behind this decision is that the Constitution merely declares the "basis
of the right to the use of water, and in no manner prohibits the regulation of the enjoyment of the right" and furthermore the doctrine of
seasonal appropriation is not well adapted to
~eneral
aqriculture be-
cause it \'lould limit the fanner to growing only one crop year after
Year.225
639
.r:.
·. '._}
28
The power of the state engineer in granting a permit is solely
to detennine if there is unappropriated Nater available and if so,
to set the time for completion of the project within five years and actual
aoplication of water to beneficial use within four years after completion of the project. 226 Upon inspection of the project the state
engineer shall issue a license to the m·mer of the permit to "appropriate
water to the extent and under the condition of the actual application
thereof to beneficial use.n227 The point is that the state engineer does
not have the power to determine if the use is a beneficial use, he can
only grant the permit or license based upon the application.
Thereby
the courts are 1eft with detenni nation of what is or is not a beneficia 1
use. It appears that beneficial use would be a fact question for the
jury's determination.228 The courts state they are the only ones under
New
~1exico
]av1s that are given the pm·rer and authority to adjudicate
.... ·.) ~·
,.
·,
... ,;
.~·
water rights,22 9 and the state engineer concedes that he does not have
the authority to adjudicate \'-later riqhts. 230
The significance of the term"beneficial use .. is obvious in that it
•
1s
I
used to describe three important aspect of the right; the basis, the
measure, and the limit.231 First, beneficial use is the basis of the right
to use \-tater.
This distinguishes the appropriative ri9ht from the
riparian right.232 The right to use of water in the appropriation system
in New Mexico does not depend on the location of the land owned, instead
it is generally based on priority of application to a beneficial use.233
Beneficial use is the measure of the right to use Nater comprises
:he second aspect.
The quantity of \'later allowed to be used is distin9-
---~
29
uished from the amount beneficially used.
For irrigation purposes the
state engineer or court is to allovJ only the amount of water v1hich will
result in the most effective use of available water that is consistent
with qood agricultural practices in order to prevent waste. 234 The
idea is to only
allo~t
the amount that can be beneficially used.
Even if
the amount allowed is greater than the amount that is needed, the
appropriator can take only so much water as he can beneficially use. 235
An attempt at explaining the quantity of beneficial use has resulted
in this definition:
for
"The amount of \/ater necessary for effective use
1
to which it is put under the particular circumstance of
the·~urpose
soil condition, method of conveyance, topography, and climate.u236
As nebulous as this sounds it is clearer than the standard definition
\'lhich states:
"Beneficial use as determined by our courts is the use
of such water as may be necessary for some useful and beneficial purpose in connection \•lith the land for which it is taken.n237 In a fairly
recent case the Court opined that the amount of water necessary for
cultivation of the land, called "duty" of water, should be detennined
by the following essential factors:
(1) amount of water diverted; (2)
place of diversion as related to use; (3) amount necessary for a particular crop or land; {4) season of the year; and (5) general irrigation
water-using practices followed in the area.238 Although the statutes239
set out the basis for allowance of water rights for irriqation, the
'('"•li ._,
court must have thought these guides were too broad and the factors
above are in the
fonn;~
of a strong suggestion to the state engineer of
\-!hat he should consider in arriving at an allO\'lance.
Although these
30
factors are to detenni ne the duty of \'Jater, the purpose of setting the
duty is in effect to set the maximum possible beneficial use.
The last aspect is that beneficial use is the limit of the right to
the use of water.
This aspect is closely related to the measure of
the water right, so the discussions may somewhat overlap.
The standard
measurement of the volume of water is the acre-foot,24J and up to three
acre-feet per annum is allowed for beneficial uses such as domestic
needs, stock watering, and irrigation of not more than one acre of lawn,
noncommercial trees or garden.241This is an example of beneficial use
being the limit of the right to appropriate water, because although the
~
appropriator is a11 0\'led up to three acre-feet (one acre-foot is equi va 1ent
to 43,560 cubic feet242), he may only use the actual amount that is put
to beneficia 1 use, even if the quantity a11 owed· exceeded the amount
beneficially used.
The converse of this statement, ho\'Jever, is not true,
i.e., the appropriator cannot put to beneficial use more water than he
has been allowed.
The \'later right for irrigation purposes is explicitly
limited to the amount beneficially used 11 and the amount allowed shall
not exceed such amount ... 243
A pair of cases that date as far back as 1914 recognized that beneficial use was the limit on the water right.
In State ex rel. Communitr
Ditches or Aceguias of Tularosa Townsite v. Tularosa Community Ditch Co.244
The Court pointed out that it is only by application of the water to a
beneficial use that water is allowed to be used at all, so an appropriator
can only have a water right to so much of the water as he applies to
beneficial use. 245 The court in Snow v. Abalos 246 makes it clearer to
understand by stating:
11
No one is entitled to waste water, when his
642
31
requirements have been satisfied, he no longer has a right to the use
of \•later, ••• "247 A landmark case, State ex rel. Erickson v. ~kClean, 248
was decided in 1957, which aided in clarification and importance of
beneficial use as the measure and limit of the water right.
Underground
Hater from an artesian basin was being used from a well to irrigate the
land
r~r. ~~cClean
0\Amed before 1919 but since that time the \'tater had
been a11 O\'led to fl 0\'/ out on 250 to 300 acres every \"!inter to make fresh
water for horses and irriqate grass for the horses.
In 1940 a pump was
put on the well to control its flow, and the land was cultivated for
farming.
The state engineer brought suit asking for injunctive relief
because the \'later right \'las forfeited and because use of the \":ater \'..Jh i ch
constitutes waste is not beneficial use. The court concluded that
"no matter ho\'J early a person's priority of appropriation may be he is
not entitled to receive more v1ater than is necessary for his actual use, ..
and that waste is not a beneficial use, so no right can be acquired in
this excess water that is wasted. 249 The court distinguishes this case
from those which allow irrigation of native grasses by stating it is
the method of watering here that is wasteful and a non-beneficial use,
and states that use of the water must not only be beneficial to the lands
of the appropriator, but it must also be reasonable in relation to the
lands.250 The impact of the requirement of the reasonableness of beneficia 1 use has not been detenni ned by the New Me xi co courts, hov.,rever,
they may find the California Supreme Court's construction of the terms
to be persuasive. The California Court has stated that what may be a
6·13
32
reasonable beneficial use where water is present in excess of all needs
would not be a reasonable beneficial use in an area of great scarcity and
need, and that what is beneficial use at one time may, because of changed
conditions, become a waste of water at a later time.251
Should the New
Mexico court follow the California Court's lead, there would be a Constitutional question as to whether or not the added requirement of
"reasonableness"\\•ould be an attempt to divest rights accrued under the
Constitution and whether the minimum rights afforded the public under
the Constit_ution could be minimized even further.
There could also be
.i
the possible question of "separation of powers" since the addition of
reasonableness, if constitutional, should be within the realm of the
legislative responsibility rather than judicial.
The appropriative right to water cannot be acquired simply by puttin9
the water to a beneficial use; there are other requirements that must
also be met.
In 1900, the courts noted that diversion is a necessary
element to a legal appropriation,252 and in 1926 the element of intent to
apply the water to a beneficial use was injected. 253 In 1922 the court
was asked to reconsider the requirement of a diversion in the case of
State ex rel. Reynolds v. Niranda. 254 Lorenzo t-1iranda allm1ed his cattle
to graze in a wash that flowed intermittently across his property, and
he would cut and store the grass in the fall season for winter use. The
court
~tas
urged to adopt the Co 1ora do vi ettl that required only the intent
to use the water and actual application of the water to a beneficial
use.2S5 Instead the court followed an early Nevada case, 256 and held
that to constitute a va 1i d appropriation of \'later in New
t~exi co
for
33
agricultural purposes, there must be a man-made diversion, an intent
to apply water to a beneficial use, and actual application of water to a
beneficial use. 257 To these requirements the statutes add that if construction of \'IOrks is necessary to acquire a license the state engineer
can set a time limit in the pennit, 258 and construction of the \·torks must
be diligently prosecuted. 259 The diversion requirement serves the three
following purposes:
(1) it provides objective proof of intent to
appropriate the \·Jater for beneficial use; (2) diversion is a practical
notice to others on the stream that a water right is being asserted;
and (3) there is an assumption that dedication of water to uses \':hich
require diversions will result in better allocation of resources. 260
./
P~l though
the concept of "beneficia 1 use" is fundamenta 1 to the
doctrine of prior appropriation and diversion is not 261 (as noted above
in the Colorado law), the concept of diversion has raised many questions •
....
Earlier discussion on the determination of whether water is publicly or
privately ovmed revo 1ves in 1arge part on whether or not there has been a
diversion.262 Another problem, change in the point of diversion, has
been the topic of many cases. Statutes were drafted to help resolve the
issue. 263 It tlas consistently been the rule regarding surface \oJaters
that a "water right is a property right and inherent therein is the right
to
change~the
place of diversion, storage, or use of the water, if the
rights of other water users will not be injured therebi~
264
There are
substantial restrictions in this rule in that other water users must not
be injured by the change in point of diversion, and the statutes require
an application be submitted and approved by the state engineer. 265 There
is relief provided from all the procedural aspects of application if the
state engineer finds an emergency exists because a delay would result
645
34
in "crop loss or other serious economic loss'' to the applicant" and if the
state engineer further finds that "no forseeable detriment exists to
rights of others having valid and- existing water rights."266
Cases 267 and statutes 268 apply similar requirements to ground\•!ater
for the change of location of a well. The statutes governing change in
point of diversion 269 or change in well location 270 do not qrant; rather
they restrict the right of an appropriator to change his point of
diversion or \11'ell location. 271 The applicant is not required to prove
. t ed wa t ers ava1"1 abl e272 because a change 1n
. po1n
. t
t here are unappropr1a
of diversion' or well location is not an attempt at a new appropriation, 273
'
'
\
therefore although there is a change the appropriator retains his priority
date. The applicant does have the burden to prove that the change will
not impair existing rights of others. 274
The question of impairment has led to significant liti9ation.
The question of impairment depends on the facts of each case275 and is
to be determined by the state engineer. 276 Upon a finding of impairment
there is no need for the state engineer to determine the degree of
impairment. 277 The state engineer does have the authority to approve an
application subject to condition in order to prevent impairMent. 278 The
lm•1ering of the \'tater table is not per se inpairment. 279 In the case
of City of Roswell v. Berry,2 80 the state engineer determined that the water
table would be lo\o'lered 0.16 feet \'lhich would have onl.Y a "negligible
effect" on the chemica 1 qua 1i ty of Berry's
\'Ia ter,
was no impainnent of Berry's water riqhts. 281
and therefore there
Later the case of In re
City of Ros\'lell282 involved the desires of the city to change well location from \•:ells with high salinity to wells with low salinity. The Court
616
\
-.•...,'
'
---
35
held that although the quantity of appropriation Nould be the same, the
point of the new \"tells would cause more salinity for irrigating appropriators, and that an increase in salinity results in decrease of yield
per unit of water used; thus, other appropriator's riqhts were impaired
even though the city offered to reduce its quantity of rights by 25%. 283
These two cases have inserted the issue of quality of the water rather
than just quantity of the \'later, so the decision of the state engineer
as to impairment involves many factors other than just the amount to be
used.
.~-
Although there were emergency provision statutes for surface waters,
the court would not find implied authority of the state engineer to
issue emergency permits for change of well location in the absence of
statute pertaining explicitly to orounm~aters.284 A year later three
statutes
I
\'tere~enacted
to allow reolacement wells and supplemental wells
to be drilled without waiting for publication and hearings if an emergency existed.285 These statutes are interesting because they allow the
drilling to be performed before or after some preliminary procedures
depending on whether the rep 1acement we 11 is within one hundred feet of the
old \'Jell , 286 or if it is greater than one hundred feet a'~ay, 287 or if
it is a supplemental \'lell.288 A unique tl"tist is added to the first statute
mentioned above because other water users are provided the remedy of
289 d f th
•
. . th e dr1"11 1n9,
.
damages rather than be1ng
ab1e to enJ01n
an ur ermore ,
the state engineer is not even required to make a finding as to \."thether or
not there is impairment prior to the drilling.
36
Another question which has arisen from the act of diversion
revolves around storage works and distribution of water through water
Norks. Hells Hutchins traces the "puhlic acequia" (coJ11Tiunity ditch)
back to irrigation and domestic needs of the early natives and Spaniards. 290
The communities would elect a mayordomo (superintendant) to manage the
distribution of \·later and repair of the ditches in vthich everyone was
required to contribute labor and materials. 291 In these early times the
.
waten~orks \\~ere
ovmed as tenants in common by a11 who jointly use: the
water therefl','om, 282 but rem~~b·e·~~hat ovmership of the ditch is separate /
\._______
and distinct from ownership of the water or \'later right.
The result of
this was that community acequias were held to belong to the public and
i,,./
293
thereby under regulation of the state.
In 1900 it was already recognized that ditches, other than community acequias, for diverting, carrying, delivering, and distributing water could be owned and operated
by a non-consumer.294
In 1923, joint ownership of the ditch by owners
of water rights as \'/ell as ovmership by an independent person or cor-poration who contracts with the \\later right owners to bring them water
were recognized.295 Thus, there are at least three types of irrigation
works ownership- public, private mutual, and private independent.
The statutes provide that a person, firm, association, or corporation can be the owner of \•tater works and the term 11 \'later works" includes
canals, ditches, flumes, aqueducts, pipelines, acequias, reservoirs, or
other works. 296 Uhere owners have the ri qht to use of the works and one
neglects to do his share of the work or pay for his share of the materials
the others can after ten days notice perform the work or make the payment
and receive a lien on the deliquent owner's share in the works. 297
648
37
In the construction of works a registered qualified engineer must be in
charge298 and the completed works must pass inspection of the state
engineer. 299 The owners of any works for storage, diversion, or
carriaqe of water can make application to store excess water, but as
trustee of the right they must deliver the excess to others when needed.
300
The most important and far reachinq aspect of this area of diversion
by water works is found in the right of eminent domain.
In 1900, the
Territorial Supreme Court of Ne\'1 t1exico recognized in arid regions the
construction of systems of reservoirs, canals, and ditches for domestic
.. '
use or use in i rri gating 1ands is a pub 1i c rurpose and the right of
eminent domain is a necessity for such purposes.3°1
The rationale
behind this condemnation of a land right-of-way for construction of
water works lies in the idea that beneficial use of water is a public use
so the water right
m~mer
should not be denied the access to apply the
water to a beneficial use.302 The statute is very broad in stating:
The United States, the State of Ne\'1 Mexico or any
person, firm, association, or corporation, may exercise
the right of eminent domain, to take and acquire land
right-of-way for the construction, maintenance, and
operation of reservoirs, canals, ditches, flumes, aqueducts, pipelines or other works for the storage or conveyance of water for beneficial uses, including the right
to enlarge existing structures, and to use the same in
common with the former owner; •••• 303
649
38
This includes every person having a water right, and does not distinguish
304
. d un der th e ac t or pre-ex1st1ng
. .
.
rig hts acqu1re
r1ghts.
Another statute allows the m•tner of any water works to deliver
water and supply appropriators by taking either above or below the part
of delivery, a quantity of water equivalent to that delivered, less a
proper deduction for evaporation and seepage which is to be determined by
the state engineer.305 Other water users cannot be injured by this
exchange.306
In interpreting the eminent domain statute307 and this
exchange statute, 308 the court decided the land right-of-way can be
condemned even by a junior appropriator, and the ditch company can
deliver the \'later to junior appropriators but there must be compensation
for both of these. 309
6. Relative Rights Among Appropriators
An appropriator with a water right which has an earlier priority
date than another appropriator is referred to as a senior appropriator.
The appropriator vii th the most recent priority date is known as the
junior appropriator.
Generally, the senior appropriator is entitled
to use of the water and the junior appropriator only receives \-/hat water
is remaining after the senior appropriator needs have been supplied. 310
The New ~1exico Constitution 311 and statutes 312 recoqnize this principle
by stating that
11
priority of appropriation shall give the better right."
The senior appropriator is limited to applying the water for a beneficial
use and once he has met his requirement he is not entitled to any
water in excess of this aMount, since use of the excess water belonos to
..
6f)0
(..
39
the junior appropriators. 313 The senior appropriator is entitled only
to his
require~ent
of beneficial use and once it is satisfied he no longer
has a right to the use of the water but must pernit the junior appro. t or t o use 1. t • 314 Th e sen1or
. appropr1a
. t or 1s
. not ent1t
. 1ed to waste
pr1a
315
water.
The common remedy of the senior appropriator is to bring an
action to enjoin the junior appropriator from using the water.316 Once
suit is brought, the burden of proof is on the senior appropriator to
show that his application of the water is to a beneficial use, then the
burden shifts to the junior appropriator to prove there is surplus water
that may be .. 'taken v.rithout injuring the senior appropriator's rights. 317 ,·
The statutes pertaining to change of point of diversion318 or
well location 319 seem to necessitate a showing that the change will not
ir:1pa i r any rights, \'lhether junior or senior to the app 1i cant's. A c1oser
look shows that the phrase "existing rights" is used in both statutes.
There is the possibility that this phrase might only be in reference to
the applicant's rights, which would make the statutes meaning read;
the applicant must prove that there is no impairment of a senior appropriator's rights.
_l!l Harley v. United States Borax and Chemical Corporation320,
the Court initiated the requirement that a senior appropriator
a der.tand for sufficient water to fill his needs.
~ust
make
The downstream senior
appropriator who used water to irrigate his crops claimed that the upstream junior appropriator failed to
allo~r
sufficient water to reach
his point of diversion. The Court held that the senior appropriator
has no right to have the water reach his diversion point if he does not
651
40
need it, and if he needs it and it is not reaching him, he must make his
/
32
needs known .} ·the prob 1em \A!i th this decision is that the Court does not
decide whether the demand should be made to the state engineer, the
water master, the junior appropriator, or a combination of them.
7. Loss of the Right
Abandonment, forfeiture, prescription (adverse possession), and
estoppel are four ways an appropriative right can be lost. To constitute
an abandonment the o\'mer must relinquish his right \'tith the intention
to abandon it. 322 Usually the abandonment is voluntary since it involves
intent, but in New Mexico after a long period of nonuse the burden
of proof shifts to the holder of the water right to show reasons for
nonuse, and an intent to abandon will be inferred in the absence of a
good excuse. 323 In State ex rel. Reynolds v. South Springs Co.,3 24
the period of nonuse was 26 years but the reason was because the spring
from which the appropriator diverted his water had dried up.
It is
evident that the court made its determination solely on the unreasonable
period of nonuse because clearly the excuse for nonuse was sufficient.
There is a statutory forfeiture provision in \'lhich unused \<Jater
(except for vtater in a storage reservoir) reverts to the pub 1i c and is
considered unappropriated water \'lhen the owner of the water right fails
to beneficially use all or any part of his right for a period of four
years. 325 At first glance this provision appears to have some teeth in
it, but upon further inspection numerous exceptions and restrictions
lessen its force.
Some of the exceptions are as follows:
652
(1) there is no
41
forfeiture if the nonuse is beyond the control of the m·mer in spite
of diligent efforts on his part; (2) the acreage is under a reserve or
conservation program provided by the Soil Bank Act; (3) the state engi\..
neer can extent the time upon proper showing of delay or he finds it is
within public interest; (4) municipalities are implementing a water
development plan; and (5) when nonuser is on active duty as a member
326
of the armed forces.
The most siqnificant restriction requires the
state engineer after the four years of nonuse to give ~:. rri tten notice of
the nonuser for a period of one year and if the v1ater is sti 11 not put to
beneficial tise then and only then will it revert to the public. 327 Thus:
the period for forfeiture is actually five years and only after notice
and declaration of nonuser given by the state engineer. The lack of
notice was probably the reason the rule of abandonment was used in the
South Sprinqs Co. case 328 rather than forfeiture.
The Court noted in
that case that the difference in forfeiture and abandonment is that forfeiture can occur involuntarily from the nonuse of water and the intent
of the appropriator is unimportant.329 The Court violated this general
rule by declaring an abandonment although nonuse was involuntary.
ny
naming this nonuse as abandonment the forfeiture provisions did not need
to be complied vlith.
Exceptions to the forfeiture statute have been frequently recognized
by the courts especially since the burden of proof is on the person who
claims a right has been lost by nonuse.330 One recognized exception
exists when the appropriator is at all times ready and \•tilling to out
the water to a beneficial use but the water fails to reach his point of
653
42
diversion without fault of the appropriator. 33 1 Neither does forfeiture
occur when there are drought conditions and the appropriator used the
water v1hen it was available through an erodinq channel. 332
In one case
the court held that the owner is not to be penalized by forfeiture
simply because there are a number of dry years.333 Also, the issue of
forfeiture will not be decided if the notice requirements of the statute
are not complied with.334 At the other end of the spectrum a forfeiture
was declared, not because the water was not used, but because it was not
applied to a beneficial purpose.335
-
The wording of the forfeiture statutes, especially the grouncf\.1ater
statute; 36 rai~es the question of whether partial nonuse v-rill allm-1
partial forfeiture.
If an appropriator has an allotment of three acre-
feet of water but only beneficially uses two acre-feet for a period of
years wi 11 he 1ose the right to the unused acre-foot of water or wi 11
he lose all three acre-feet, or not lose anything at all? The surface
water forfeiture statute337 authorizes the loss of "any part" of the
right claimed if it is not applied to beneficial use, so in the above example the appropriator could lose one acre-foot of his right so his allowance would then only be two acre-feet. This does not encourage the proper
use of the water, because once the appropriator receives notice from the
state engineer he will apply the extra acre-foot to any purpose he can
think of in order to use it and thereby not forfeit it. The appropriator
should not be punished for good agricultural practices which require
less water or for continuous years of plentiful rain (very unlikely in
New Mexico).
The underground statute338 refers to the water right and not
654
43
0 part of it, so presuMably the \'thole right vJill be forfeited, but it
5
not clear whether this can occur upon partial nonuse or only upon
.otal nonuse.
~ter,"
The statute only says "fai 1ure to beneficially use the
so an arguement can be made that the statute means failure to
,eneficially use "all" vtaters appropriated will result in forfeiture of
:he entire ri qht.
An early case held that a prescriptive right to a water right had
10t been es tab 1i shed and parenthetically added that they were not sure
•such a right could be acquired under (New f1exico) law."339 A later
:ourt decided that a11 the circumstances must be considered in deternininq the acts that \'muld lead to a prescriptive right and no such
acts ~.rere present. 340 Another case noted that to get adverse possession
the use must be "open, uninterrupted, peaceab 1e, notorious, adverse,
~der
a claim of right, and continue for a period of ten years with the
kno\'.'ledqe or imputed knowled9,e of the
m~mer,"
but since the plaintiff
did not plead all the necessary elements the plea
shovJ a prescriptive right.341
~
~1as
insufficient to
Apparantly the court recognizes the ability
gain a prescriptive right in a water right, but the appropriate case
has not yet arisen in which the acts and pleadings are sufficient to
find such a right.
Estoppel is recoonized and is decided on principles of equity and
~ood conscience.342
Generally, the rule states that Nhen one has
induced another or has knowledge that another is in the course of commi ttin9 an act infrinqing on his rights and fails to do anything even though
655
44
he knovts of the facts, he is estopped to deny his actions. 343 For
public policy reasons this concent does not apply to the
st~te
sovrei~n
or the state engineer even if he neglects or oMits to do his
duty. 344 Also nonuser, abandonment, and waste cannot be used to estop
the United States or any of its public officers for neqlect of their
345
.
dut 1es.
Condemnation is the on 1y other \·lay a water right can be taken from
the owner.
This is not actually a loss of the right like previous
examples because here there is compensation for the right.
There are
several restrictions on this statutory right. Only county coMmissioners can condemn water rights for public use. 346 The water ri2ht to be
condemned must be within the county limits and can only be condemned
for development of a county \·tater supply system. 347
656
_~
45
V. ADMINISTRATION
A~O
ADJUDICATION
The legislature has established basic guidelines that
~overn
administration and procedural requirements involved in both surface
water and underground water.
Since these waters are situated diff-
erently there must necessarily be varied rules for their administration.
The first topic to be discussed will be the general duties of the
state engineer.
Secondly, the administrative processes involved in
qoverning surface waters will be surveyed.
Next, rather than set out
all the rules for groundwater administration, only the procedures that
are different from surface water regulations vri 11 be mentioned.
Fourthly,
the statutory procedures for adjudication of water riqhts will be set
out. Lastly, the significance and future
cases will be explored.
im~act
of some landmark
Remember this is just a summary of the adminis-
trative procedures, for a complete understanding one should read the
~
statutes.
New Mexico adopted the "Colorado Doctrine" \'lhich is a permit and
license system wherein the applicant must go to a state official and
receive a pennit to appropriate \"later.34B This permit system was first
applied under a state government under Elwood Mead, the state engineer
of Wyoming, in 1890.349 The New Mexico statutes in the area of water
administration were enacted in 1907. The state engineer has general
supervision of waters of the state and of the measurement, appropriation,
and distribution of the water. 350 He is appointed for a b~o year term
and subject to removal only for cause.351
He is empowered to adopt
rules and regulations, especially in the area of hearing procedures.
352
46
In relation to hearings he has subpoena power and the authority to
35 3 Th• e s t at e en~1neer
· t hear1nq
. exam1ners.
.
.
has aut hor1ty
. to 1ssue
.
appo1n
permits and license to appropriate water, to place conditions on the
permit, and to surervise the apportionments.354
If necessary for eco-
nomical and satisfactory apportionment he may divide the state in
confonnity \'lith drainaqe areas into vtater districts and appoint a watermaster over each district upon receipt of application by the majority
of the users in the district.355 Although the state engineer can
appoint the watermaster, the watermaster must be removed if a majority
of the water users sign a petition.356 The state engineer also has the
authority to appoint a \rtatermas ter for temporary or pennanent service
if in his opinion the public safety or interest of water users require
it.357 He can also request every ditch m·mer to construct and rnaintain
a headgate and measuring device at his diversion point.358
In addition to the authority mentioned above the state engineer has
various duties.
Hhen county commissioners request help in establishing
a drainage system, he must cooperate with them in making surveys,
plans, and engineering work.359 He is also directed to make hydrographic
surveys and investigation if each stream system and \'tater supply system
in the state. 360He must record all his compilations from available data
of the determination, development, and adjudication of water supplies
in the state, and must keep these. records as well as other records open
to public inspection.361
He also has the duty upon appeal to supply
the district court with all papers, maps, notes and data in his possession
affecting the case.362
658
47
The state engineer plays an integral role in acquisition, change
of purpose, and change in point of diversion of surface water.
Before
beginning construction any person must submit an application to the state
engineer containing information the legislature and state engineer
deem appropriate.363 The engineer shall instruct the applicant to publish notice in the local newspaper once a week for three consecutive
weeks, unless he determines the application does not comply with the
requirements, or he feels an approval would be contrary to public
interest. 364 The purpose of this notice lies in the opportunity for
other water users to object or protest the granting of the permit and
if there is timely objection the state engineer will set a hearing. 365
\~hether
there is or is not a hearing he must determine whether there is
unappropriated water available for the benefit of the applicant.366
The applicant does not have to prove there is unappropriated water
~:.
....
available, but it would be a good idea to do so if possible.
If in the
opinion of the state engineer there is unappropriated water available
he shall grant a permit, but if there is none he shall reject the application.367 The permit will set out the time within which the construction of works will be completed (in no case can it exceed five years),
and a time within which water shall be applied to a beneficial use (in
no case to exceed four years from the completion date of the Horks). 368
In issuance of a pennit for irrigation purposes he must set an allowance
in accordance with good agricultural practices and he has the power to
vary the periods of annual use.369 The state engineer has the prn~er to
grant extensions for both of these time periods, and to require changes
659
48
if he believes the ~orks to be unsafe. 370 After the works are inspected
and found in satisfactory condition, he shall issue a certificate of
construction that sets out the capacity 1i mi ts on the v:orks. 371
He
then inspects the works with the water in it and issues a license to
appropriate the water to a beneficial use as set out in the permit. 372
The pennit, certificate, and license must be recorded in the office of
the county clerk, and if the \\'ater right is transferred the assignment
must be filed in the state engineer's office. 373 For any change of
purpose, change of point of diversion, or change of place of use the
,;
appropriator must obtain approval of the state engineer by proving there
\'Jill be no impairment to existing rights.374 He rlUst also approve the
application of the use to which leased water rights will be applied.375
The first legislation in 1927 purporting to regulate use of groundwater was_ declared unconstitutional in 1930 for technical reasons. 376
In 1931 the defective parts were cured and subsequently was upheld as
constituti ana 1. 377 There v1as a 1ag of 24 years bet\•Jeen the 1907 statutes
to regulate the use of surface water and the 1931 statutes on qround\'Jater.
Although all underground waters are declared to be public, the state
engineer does not have authority to issue permits for all the water.378
The state engineer only has the regulatory pm;rer to issue pennits or
license~to appropriate the underground water that he has declared to be
'
within reasonably ascertainable boundaries and the boundaries defined.379
The state engineer has declared 26
undergrou~~d·~·~sins. 380
The doctrine
of relation back applies when work to drill a well is commenced prior to
the declaration of the basin, thus the appropriator has a priority date
660
'~
..
~
49
prior to the declaration date even thouqh the well was not completed
381
The state engineer has no discretion in issuance
until aftenr1ards.
of permits for domestic use, livestock use, or irrigation of one acre
or less of noncommercial trees, garden, or lawn.382 This statute has
the possibility of allowing an over-appropriation of the waters in a
basin, but without it no one would be able to move into rural areas unless
they hauled their water to their rural house.
The application procedures and findings required by the state
engineer in order to issue a permit are similar to surface water procedures, ex.cept a certificate of construction is not required.3 83 In
order to change the location of a Nell, change in purpose, drill areplacement or supplemental well the appropriator must seek approval from
the state engineer. 384 For a change in we11 location or change in purpose
the approval must come before the act is carried out, and the applicant
must prove there will be no impairment of existing rights. 385 A replacement well within one hundred feet of the existing well can be drilled
prior to application to the state engineer if an emergency situation
exists as long as the applicant notifies the state engineer of the
facts prior to drilling. 386 A replacement well can be drilled over one
hundred feet from the original well in an emergency only after the state
engineer has received the application and found there will be no
impairment to existing rights, but the appropriater does not need to wait
for the three week publication period before drilling.3B7 The emergency
supplemental well regulations are similar to those of the replacement
well over one hundred feet from the existing we11. 388
661
50
·)
/
A license must be received a driller to drill for water within a
declared basin. 389 Evidently no license is required for drilling in
areas that have not been declared as having reasonably ascertainable
boundaries. The application procedures must be follo\'Jed to get a license,
and once a license is received it is subject to suspension or revocation. 390
Furthermore, the state engineer can bring a suit for daMages if the conditions of the license are breached by the driller, or he can ask for
injunctive relief for unauthorized drillino.391
The requirement of
obtaining a drilling license has been upheld as constitutiona1. 392
A separ.~te article in the statutes sets out a different system of
/.
administration of artesian waters Nhich have been declared to be public. 393
These waters are v.fi thin the concurrent power and authority of the state
engineer and a duly established artesian conservancy district to enforce
the regulatory provisions. 394 If no conservancy district is established
the county commissioners upon approval of the state engineer may employ
a well superviser to enforce the rules and regulations, promulgated by
the state enoineer.395
Out of the 12 nrovisions
in this article four
.
of them deal with the definition and prevention of \•taste. 396
Remember the state engineer only has authority to issue permits and
license to those who make application to appropriate \'later for a beneficial use after the statutes setting up the permit system v1ere enacted.
All surface water rights prior to 1907 are recognized and confi nned, 397
and groundwater rights existing prior to 1931 are recognized.398 As
noted previously, the Constitution only declares the "unappropriated
surface water" to be public and subject to appropriation for a beneficial
662
51
use. 399
It appears that the state engineer has no control over these
v1ater rights.
However, once a conflict over the rights coMes to court
and the court adjudicates the respective rights for a beneficial use that
decision will be binding on the approrriator.
Since the Constitution
only made reference to surface waters, it appears that qroundwater
rights which existed prior to 1931 \·lould not enjoy the same degree
of freedom as the surface water rights.
This assumption may be overcome
by the case of City of Albuquerque v. Reynolds.400 The Court in this
landmark decision has declared that although aopropriator's rights
regarding streams and underground
~1aters
may be secured under different
administrative procedures, substantive rights obtained are identical;
like~lise,
jurisdiction and duties of the state engineer relating to
streams and underground Haters are the same. 401
The main import of
this ho 1ding is couched in the ide a that grounch·Jater and surface
waters have the same substantive riqhts.
Since these rights are iden-
tical and the 1907 existing surface water rights are constitutionally
vested, the practical result is that the 1931 existing qroundwater
rights should enjoy the same substantive rights as the existing surface
water rights because both vested prior to statutory administrative
procedures.
Statutory procedures detail the adjudication of \'later rights.
There are several routes that can be taken to ultimately arrive in
the district court for adjudicative proceedings.
Before these are
discussed it is imperative to recognize that the New
r~exico
legislature
has authorized the state engineer to make initial findings, and determine
.nf):l
tl.u
52
if there is unappropriated
\'Ia
ter from v1h i ch a new app 1i cation can be
satisfied.4° 2 He has the authority to appoint hearin~ examiners, conduct
hearings, and make a decision on the records presented him.403 His
decisions in these hearings do not have a concluding effect as to the
rights of the parties,404 because he is acting in an administrative
capacity, and his findings are not judicial determinations.405
One statutory procedure for adjudication begins by the state
engineer requiring an applicant for appropriative rights to publish
notice in the local newspaper.406 If timely objection or protest is
filed by the other appropriators the state engineer sets up a hearing, /
keeps a record of it, and makes a determination upon the facts presented.407
The parties have the riqht to appeal any action of the state enqineer,408
because only the courts have the power to adjudicate water rights 409
since actions to determine water rights are in the nature of a suit to
quiet title to realty.410 No appeal can be taken to the district court
until the state enqineer has held a hearing and entered his decision in
the hearings.411
This appeal to the district court \·fill allm-1 the
parties a trial de neva as cases originally docketed in the district
court. 412
If a \AJatermaster has been appointed to a district he has supervisory
power over the apportionment of \'raters, and any decision he makes can be
appealed to the state engineer. 41 3 /\fter the hearing by the state engi-.-.
neer an appeal can be taken to the district court. 414
Although these hearings afford all other appropriators an opportunity to present their claims and attempt to prove their existing
rights will be impaired, they are also provided nonstatutory remedies.
53
The
right ovmer can maintain an action seeking injunctive relief if
his right is impaired. 415 The existing appropriator also has the right
~later
to seek damages for impairment of his existing ri9hts without first
exhausting all administrative procedures available to him.41 6
The state engineer also has authority to request judicial action
when needed. After preparation of hydrographic surveys of streams or
underground water and presentation of these materials to the attorney
general, suit will be initiated at the state engineer's request in order
to determine all the rights of the use of such water. 417 Upon adjudica.. '
/.
tion the findings of the court are binding on all parties. 418 If a
suit is initiated by private parties the attorney general shall intervene
on behalf of the state if the state engineer believes the oublic interest
requires such action.419 The state engineer may also seek injunctive
relief.if the water is diverted, Norks are built, or water is aoplied
in violation of any statute.420
In any suit for determination of a right
to the use of waters of any stream system all claimants, as far as they
can be ascertained with reasonable diligence, shall be made parties. 421
Statutory provisions also access criminal liability, a misdeameanor,
for various actions.422 Some of these are as follo~Js:
(1) injuring
works; (2) interference with use of works; (3) unauthorized use or waste
of water; (4) appropriation of ground water without a permit; and (5) change
of location of well without complying with statutes.
A few cases within the last 22 years have significantly affected the
relative rights of surface
~tater
appropriators
and ground water appropria,·
\
tors.
~
The court announced a concept in the case of +em{31 eten·-\J. --Pecos
665
54
Valley Artesian Conservancy District 423 which has become known as the
"Templeton Doctri ne 11 in New t·1exi co. 424 Surface appropriators wished to
change their point of diversion from a drying upstrea~,· to an underground
source. The Court found that the headwaters from the stream sank into
the ground and became a part of the underground basin, and that the
waters only arose again into the stream once the underground basin was
full or there was a flood. 425 The holding was that the request to drill
wells was not a request for a ne\'1 appropriation in the underground
basin, but merely a request to follo\'1 the source of their original
appropriation
and that the surface appropriator can follow this water
..... in making a change in his point of diversion provided that it does not
,,;
impair existing rights. 426 The Court determined there \'JOul d be no impainnent of existing rights.427 By allo\'Jing the surface right holder to
follow his source it appeared the distinction of classification between
groundwater and surface water could be eliminated.428
A fe\'1 years later in the case of ~Albuquerque v. Reynolds,429
the city was contending that the state engineer could not protect prior
appropriators of surface
~later
underground appropriators.
from impairment caused by subsequent
The Court decided the prior appropriator to the
surface water could enjoin a junior groundwater appropriator from taking
water which would impair the surface appropriator's rights. 430 The
most important part of this case is encompassed in Judge Reese's majority
opinion that the court in the Templeton case held "that a prior appropriator of stream
\~ater
had the right to follow the stream \1ater to its
underground source and the right to drill wells and take underground
606
55
water necessary to fill his prior stream right, regardless of detriment
to other underground water appropriators whose rights were subsequent
in time to the stream right ... 431 It seems that although the Templeton
court found there was no impairment, they really based their decision upon
the priority of the appropriation and equity.
Since the surface appro-
priator had a senior right and the junior underground appropriator had
caused the surface stream to dry up, the junior appropriators, even if
their rights are impaired, must bear the effects of another well.
A subsequent case also recognized the classification of qroundwater
is distinct from surface water. In the case of Kelley v. Carlsbad
lrriqation District, 432 the court held that one having a water right in
.,•
a surface flO\,,, which has been lost to the underground reservoir by
seepage or percolation, can neither tranfer his surface ri9ht nor change
his point of diversion to the underground reservoir.433 One critic
suggests that although Kelley did not expressly overrule Templeton,
it practically rejected the "Templeton Doctrine" as being contrary to
existing law.434 However, the Templeton case is distinguished from the
Kelley case, because in Kelley there was no shm'ling that if the underground water was not intercepted it would become part of the surface water. 435
From these cases it became evident the senior surface appropriator must
prove the underground water to which he wishes to change his point of
diversion, if not intercepted, would percolate into the river or stream
from which he oriqinally appropriated, rather than having the traditional
benefits of his prior appropriation.436
667
56
In the case of Lanoeneogar v. Carlsbad Irriqation District,4 37
\he court was confronted with the additional question of the riqhts of
the surface appropriator to take
~nderground
water when it is shown that
the underground basin is supplied from two sources, one of v1hich interferes \'lith the surface appropri ator• s stream fl ovJ, but the other one
has no re 1ati on to the stream fl ov1.
The tria 1 court divided the aqui fer
into two sources and limited the surface appropriator to a percentaqe of
the water from the source which had a relation to the diMinished stream
fl O\A!. 438 The New t1exi co Supreme Court overturned the tria 1 court and
stated that' the surface appropriator has the right to pursue any source
J
above his point of diversion, and that the aquifer should be considered
in its entirety as the source.439
It made no difference that the surface
appropriator's rights were junior to the ground water appropriator's
rights because even a junior appropriator has a right to pursue the source
of the water from which the appropriations were made.440 This case
negates the idea that Templeton was decided on the priority determination,
so the only rationale left to support the doctrine is that the facts
of the case deemed it equitable.
These cases exemplify the complexity involved in the administration
of water riqhts.
From these cases another problem is seen to exist.
Does
a surface right owner with a priority date before 1907 need to submit
an application for a supplemental Nell? Only "unappropriated water" is
subject to public ownership and control of the state engineer. 441 If
the surface right holder was appropriating water before 1907 the water
from which he receives his appropriation is not public and not subject
668
57
to state control so there would be no need for an application since the
water he appropriated from has moved from surface to underqround.
The above cases have all pertained to recharqeable underground basins.
Anonrechargeable basin derives its replinishment of water solely from
precipitation as the surface so practically there is no net recharqe. 442
The case of r·1athers v. Texaco 443 involved an application to appropriate
\•tater from a nonrechargeab 1e basin for secondary oi 1 recovery.
The
state engineer calculated the amount of water that could be withdrawn
and still leave one-third of the water in
stora~e
at the end of forty
years, but the protestants claimed their rights waul d be imoai red because any taking from a nonrechargeable basin could never be replaced.444
The court held that the administration of a nonrechargeable basin
requires the fixing of a rate of vrithdrawal which
~fill
result in a
determination of the economic life of the basin at a selected time.445
··-~
The determination of a time dimension" is important because othen-Jise
11
any takinq \-'/Ould constitute impainnent. This decision is unique because
it departed with the sustained yield operation in which the lowering
of the water 1evel s was only penni tted to the extent that such 1owe ring
could be accomplished without affecting the safe yield of the basin
446
or the perpetual satisfaction of the right.
6G9
58
VI. CONCLUSION
Ne\'1 f1exi co is proud of its hi story and customs and cl i nos
.. to them
by both constitutional and statutory provisions.
The courts realize
this and also strive to perpetuate the traditions, customs, and past
laws.
Often states are torn betv1een continuance of their existinq laws
and resort to more modern ideas which are often based on more contemporary
po 1icy and astute 1ogi c.
Hov1ever, New Mexico •s water 1aw sys tern \'/as
developed in accordance with the needs of this hot arid region and have
proved not only to be continually satisfactory, but also to be a model
for other states.
This does not signify that while other states water
supplies will repidly deplinish Nev-1 f·1exico vlill have an abundance of
water due to their stringent state controlled allocation procedures.
It does imply that New
~1exico
already has a \'IOrking system in operation
to protect its valuable natural resource, water, while other states are
still in developmental and experimental stages with the incident delays
and cost, as well as judicial construction, clarification, and decisions
as to the constitutionality of each statute.
Ne\'J
~1exico
\·later law
through history, constitutional provisions, statutes, and adjudication
has developed into a very effective means for protection, allocation,
and distribution of its water.
59
FOOTNOTES
1. See F. Trelease, Water Law, 50 (2d ed. 1974"' (hereinafter cited as
J
Trelease,
~ater
law)
•
2. .!.£.at 10.
~f.
·Hutchins,
~rater
3.
1
Riohts Laws in the Nineteen \·!estern States, 157 (1971).
4.
1 R. Clark, Haters and \·!ater Riohts, § 4.3 at 34 (1967).
5. J. H. Bird, The Aopronriative Riaht as Common law. Irrioation and
Drainaqe and Water Resources Planninq and Manaqement, 81, 85 (1978).
6. C. Mevers &A. Tarlock, Water Resource Manaqement, 52 (1971).
7.
Id.at 53.
8.
Tre1ease, Uater
9.
1 Clark supra§ 51.3 at 291.
La~1
10. 1 H. Farnham, The
suora at 10.
la~1
of
~1.!aters
and
~Jater
Riahts, § 62 at 278-285 (1904).
11. 2 Hutchins supra at 23
12. Tre1ease supra at 11.
13. Meyers supra at 75.
14. 1 Hutchins supra at 158.
15. 1 Clark supra § 51.9 at 299.
16. F. Trelease, legal Contributions to Water Resources Develooment,
lectures on Law in Re 1at ion to ~·!a ter Resources Use and Deve 1opment
5, 6 (1966) (hereinafter cited as Trelease, Leqal Contributions).
17. Bird supra at 85.
18. 1 Hutchins suora at 157.
6-
~A.~1
'-
60
19. Tre1ease, Water Law supra at 19.
20. Trelease, Legal Contributions
supra at 7.
21.
IQ. at 6, 7.
22.
Tre1ease, Water Law supra at 11-12.
T
•
• --
·-
23. 1 Hutchins suora at 21, 22.
24.
1 C1ark s up r a § 52. 2 at 32 3; 1 Hutch i ns ; s up ra at 235 •
25.
1 Hutchins: supra at 23.
26.
1 Clark supra§ 52.2 {B) at 326).
27.
l· Hutchins
28.
1 Clark supra§ 52.2 {B), at 337.
29.
~.;1
30.
1 Clark supra § 52.2 {B) at 328.
l'
•·
supra at 23.
Hutchins, supra at 236.
.
31 • I d. at 329.
32.
Id. at 330.
33.
I d. at 327.
34. Yeo v.
T~1eedy,
34 N.r·1. 64,
- -,
35. See H. Haines, His tory of Ne\'J
286 P. 970, 972 (1929).
~1exi co
( 1891).
36. H. E. Bolten, Spanish Exoloration in the Southwest. 178 (1909).
37. W. A. Hutchins, The Communit Ace uia: Its Ori9in and Development,
31. Sw. Hist. Q. 261, 275 1938 Hereinafter cited as Hutchins,
Community Aceguia).
38. Smith, The Valley Hater Suit and its Impact on Texas Hater Policr:
Some Practical Advice for the Future, 8 Tex. Tech L. Rev. 571,579
(1976) citino from Ware's Roman Water Law § 15 (1905) (translated
from the Pandects of Justinian).
61
39.
40.
Hutchins, Communi~y Acequia supra at 263, 264, 266.
Haines supra at 168.
====
41.
I d. at 170.
42.
Id. at 175.
43.
I d.
44.
Act of September 9, 1850, ch. XLIX, 9 Stat 446.
45.
United States v. Rio Grande Dam & Irri9ation Co., 9 N. r~. 292,_,__,
51 P. 674, 678 (1898), rev'd on other qrounds, 174 U.S. 690 (1899.
46.
Hutchins, ·=community Acequia=i:if·262.
47.
Id. at.267; United States v. Rio Grande Dam & Irriqation Co.,
9N. t~-. 292,
, 51 P. 674, 678 (1898), rev'd on other arounds,
174
690 (1899).
u.s.
48.
United States v. Rio Grande Dam & Irriqation Co., 9 N.M. 292,
51 P. 674 (1898), rev'd on other grounds 174 U.S. 690 (1899).
49.
I d.
50 • I d • at
--,
51 P • at 678.
51.
Id. at
, 51 P. at 679.·
52.
1 Hutchins sunra at 162.
53.
See Note, Haters and ~~atercourses, 7 Tex. L. Rev. 524, 525 (1928).
54.
1 Hutchins suora at 162.
55.
Trelease, Leoal Contributions supra at 5.
56.
Clough v. '·Jinq, 2 Ariz. 371,
57.
United States v. Rio Grande Dam & Irrigation Co., 9 N.~1. 292, _ _ ,
51 P. 674, 679 (1898).
58.
-See note 41
59.
See notes 42-44 suora, and accompanying text.
- -,
17 P. 453, 455-56 (1888).
suora.
62
60.
United States v. Rio Grande nam ?l( Irrigation Co., 9 ~~.~1. 292,
,
51 P. 674, 679 (1898)",rev'd on other qrounds 174 u.s. 690 (189._..9...-).-
61.
34 N.M. 611, 286 P. 970 (1930).
62.
I d. at
63.
Id. at
, 286 P. at 972-73.
64.
Id. at
, 286 P. at 972-78.
65.
I d. at
, 286 P. at 978-79.
66.
Act of July 26, 1866, ch. 262, 39, 14 Stat. 253.
67.
Act of r1arch 3, 1877, ch. 107, 19 Stat. 377.
68.
U.S~.·
69.
See Comment, New ~1exico's National Forests and the Implied Reservation Doctrine, 16 Nat. Resource J. 975, 979 (197ijf.
70.
Gutierres v. Albuquerque Land
553 (1903).
71.
Snow v. Abales, 18 N.M. 681,
- -,
286 P. at 972.
v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 704 (1899)_.
\'
& Irrigation
--,
Co., 188 U.S. 545,
140 P. 1044, 1048 (1914).
72. Id. at
, 140 P. at 1048; State ex rel State Game Commission v.
Red River Valley Co., 51 N. M. 207,
, 182 P. 2d 421, 430 (1945).
73. Trelease, Legal Contributions supra at 7.
74.
See notes 39, 55 supra, and accompanying text.
75.
See notes 6, 21 supra, and accompanying text.
76.
N.M. Stat. Ann.s§ 72-1-1 to 72-11-1.
77.
78.
.!£. §§
M· 5§
79.
Act of January 6 2 1912 , 37
'
72- 12-1 to 72- 1 3- 12 •
72-1-1 to 73-8-60; State Enoineer, Groundwater Rules and
Regulations; State Enqineer, Surface Hater Rules and Requlations.
80. N. M.
81.
.
Canst~
5tat • 1723.
art. XVI,§ 1.
I d. § 2.
82. .!!!·
§ 3•
6~?4
63
83.
.!i·
§ 4.
84. Id. § 5.
-
85.
See notes 35-72 supra, and accompanyinq text.
86.
See notes 58-65 supra, and accompanying text.
87.
N. M. Canst. art. XVI, § 2.
88.
State ex rel State Game Commission v. Red River Valley, 51 N.M. 207,
-~' 182 P 2d 421, 427 (1945) ; Yeo v. T~reedy, 34 N.M. 611,
,
286, P. 970, 972 (1930).
89.
Yeo v. Tweedy, 34 N.M. 611 '.
90.
I d.
"
, 286 P. 970, 972 (1930).
/.
-
91.
I d. at
92.
Id. ; 1927 N.M. Laws ch. 182, § 1 (similar to N.M. S.A, ~ 72-12-1
1978) •
93.
Yeo v. Tweedy, 34 N.~~. 611,
94.
Id. at
95.
1931
96.
Bliss v. Dority, 35 N.M. 12, 225 P. 2d 1007 (1950).
97.
N.M. Stat. Ann.§ 72-12-1 (1978).
98.
N.M. Stat Ann. § 75-11-19 (1953) (similar to N.M. Stat. 1\,nn. §
, 286 P. at 971.
--,
N.r~.
- -,
286 P. 970, 971, 972, 975 (1930).
286 P. at 977.
Laws, ch. 131.
72-12-18 (1978)
•
99. N.M. Stat. Ann. ~ 72-12-1 (1978).
100.
Ji.
§ 72-12-18.
-
101. Id.1§ 72-1-2, 72-5-3, 72-12-3.
102. Id. § 72-12-20.
-
103, Id. ~ 72-12-1.
-
104. Yeo v. Tweedy, 34 N.M. 611,
lOS. 1 Hutchins supra at 236.
- -,
286 P. 970, 975, 977 (1930).
64
106.
Flint, Groundwater La\·J and Administration: A Ne\'t t·1exico Viewpoint,
14 Rocky Mountain Min. L. Inst. 545 (1968).
107.
N. M. Canst. art. XVI, § 2.
108.
-I d.
109.
~ 1.
I d. ~ 2.
110. I d. ~ 1.
111. N. r1. Stat Ann. ~ 72-5-27 (1978).
112.
25 N.M. 649, 187 P. 555 (1920).
113. N. M. Stat. Ann. § 72-5-27 (1978).
114.
.:
Id.
115. See Burqett v. Calentine, 56 N.M. 194, 242 P. 2d 276 (1951).
116. Hagennan Irrigation Co. v. r·1c r1urry, 16 N.M. 172,
, 113 P.
823, 825 (1911).
-----117.
I d • at
--,
11 3 P• at 82 5 •
118. State ex rel. State Game Commission v. Red River Valley Co., 51
N.M. 207, 182 P. 2d 421 (1945).
119. Hagerman Irrigation Co. v. t·1d·1urry, 16
823, 825 (1911).
N.~1.
172, _ _ , 113 P.
120. State ex rel State Game Corm1ission v. Red River Valley Co., 51
N.M. 207,
, 182 P. 2d 421, 424 (1945).
121. 1 C1 ark supra § 53.1 at 347.
122. Snow v. Abalgs, 18 N.M. 681, _ _ , 140 P. 1044, 1048 (1914).
123. f4urphy v. Kerr, 296 F. 536, 541 (D. N.M. 1923).
124. New Mexico Products Co. v. Ne\'J f·1exi co Power Co., 42 N.r~. 311,
. , 77 P. 2d 634, 641 (1938).
125. Murphy v. Kerr, 296 F. 536, 541 (D.N.H. 1923).
64
126.
Hagennan Irriqation Co. v. f·~c~1urry, 16 N.t·~. 172
'
825 (1911).
127.
Murphy v. Kerr. 296 F 536, 541 (0. ~t.~·1. 1923).
128.
First State Bank of Alamoaordo v. r~cNew, 33 N.r1. 414,
,
-----269 P. 56, 66 (1928).
129.
Id.
130.
Murphy v. Kerr, 296 F. 536, 549 (D. N.M. 1923).
131.
Carlsbad Irrigation nistrict v. Ferd, 46 N.M. 335,
2d 1047, 1051 (1942).
132.
First State Bank of Alamogordo v. ~kNe\•t, 33 N.M. 414,
p~ 56, 62 (1928) •
- -'
113 p. 823'
, 128 P.
, 269
..-
,/
133.
I d. at 59.
134.
Murphy v. Kerr, 296 F. 536, 541 {D. N.M. 1923).
135.
N.M. Stat Ann. ~ 72-5-23 (1978).
136.
Middle Rio Grande \!ater Users Assn v. r.1iddle Rio Grande Conservancy
District, 57 N.M. 287,
, 258 P. 2d 391, 398-99 (1953).
137.
t1athers v. Texaco Inc., 77 N.t·1. 239, 421 P. 2d 771, (1966).
138.
Harley v. United States Borax & Chemical Corp., 78 N.~·1. 112, 428
P. 2d 651 (1967).
139.
Lm~te v. Adams, 77 N.t~. 111, 419 P. 2d 764 (1966).
140.
N.
141.
Snow v. J\balos, 18 N.t-1. 681,
142.
Murphy v. Kerr, 296 F. 536, 542-43 (D. N.M. 1923).
143.
N. M. Stat Ann.§§ 72-1-2, 72-5-23 (1978).
144.
N. M. Canst. art XVI, § 2.
145.
N. M. Stat Ann. § 72-1-2 (1978).
r1.
Stat ft.nn. ~§ 72-1-2, 72-5-23 (1978).
, 140 P. 1044, 1048 (1914).
65
146. r1i11heiser v. Long, 10 N.f·"· 99, _ _ , 611 P. 111, 113 (1900).
···--......
147. Lindsey v. t1cC1ure, 136 F. 2d 65, 69 (D. N.r1. 1943).
--
148. N.
~1.
149 •
.!£.
150.
li. ~
1.!!· §
151.
§
Stat Ann. 5§ 72-5-1, 72-12-3 (1978).
72-12-3.
72- 5- 1 ' 72- 12- 3 •
72-1-2.
152. N. r·~. Canst. art. XVI, ~ 1.
153. N. M. Stat Ann.~ 72-1-2 (1978).
154.
I d• ~ T2- 12- 4 •
155.
Id. § 72-5-2.
156.
Id. § 72-9-1.
157.
Id.
§
72-1-3.
158. I d • § 72- 12- 5 •
"":_
159.
.!£. ~
160.
Id. § 72-5-28.
72- 1- 2 , 72-9- 1 , 72- 12-4 •
161. Keeney v. Carillo, 2 N.M. 480,
--,
(1885).
162. Rio Puerco Irrioation Co. v. \.Jastro, 19 N.~1. 149,
, 141 P. 874,
876 (1914).
~
-163. N. r4. Stat Ann. ~ 72-1-2 (1978).
164. 28 N. ~1. 357, 213 P. 202 (1923).
165. _!i. at _ _ , 213 P. at 204.
166.
.!!!·
at _ _, 213 P. at 206-07.
167. State ex rel Revnolds v. t·1endenha11, 68 N.r1. 467,
, 362 P. 2d
998, 1002 ( 1961).
--
168. _!i. at _ _ , 362 P. 2d at 1003.
66
169. See notes 112-14 supra, and accornpan.vi nq text.
170. ~1."1. Stat 1\.nn. ~ 72-5-27 (1978).
171.
Vanden-~ork
v. Hewes, 15 N.~1. 439, 110 P. 567 (1910); Paoennan
Irriqation Co. v. East Grand Plains Drainaoe Dist., 25 N.M. 649,
187 P. 555 (1920).
172. N. M. Stat 1\nn. ~ 72-12-1 (1978).
173.
.!£. -~
72-12-1' 72-12-3.
174. 1.£.-~§ 72-12-18, 72-12-20.
175. N. ~'- Const. art XVI, § 2.
176. N. M. Stat Ann. ~ 72-9-3 (1978).
177. lj_. s§ 72-1-6, 72-1-7.
178.
Id. § 72-12-1.
179.
-Id.
180.
Id.
181.
.!.£. ~
§ 72-5-22.
72-5-23 to 72-5-25.
182. .!5!,. ~ 72-5-23.
183.
-Id.
184. Id.
185. Id. ~ 72-5-24.
-
186. Hathers v. Texaco, 77 N.r~. 239,
187 • Cl odfe 1ter v. Reyno 1ds, 68 r1. ~1. 61 ,
(1961).
, 421 P. 2d 771, 778 (1966).
, 358 P. 2d 626, 629
188. N. M. Stat. Ann. § 72-5-25 (1978).
189. ld. ~ 72-5-22.
-
190. First State Bank v. HcNew, 33 N.~·1. 414, 269 P. 56 (1928).
67
191.
N. rt St~t 1\nn. § 72-12-7 (1978).
192. State Enqineer, Groundwater Rules and Requlations § 2-5.
193.
Id. § 2-10.
194.
I d.
§
2-11 •
19 5• tJ • i·~ • Stat Ann • ~ 72- 12.; 22 , 72~ 12- 23 ( 19 78 ) •
196 • Id. ~ 72-12-24.
197. 1 Hutchins s uora at 483.
198.
N. ~1. Stat Ann.,. § 72-5-22 (1978).
199. 1 Hutchins suora at 482.
200. N. M. Stat. Ann. § 72-6-3 (1978).
201. .!s!_.
~§
72-6-4 t 72-6-5.
202.
N. r.1. Canst. art XVI § 2.
203.
N. rt Stat Ann.§ 72-1-2 (1978).
204. .!E._. S§ 72-1-2 t 72-5-3.
205.
11·
206.
Id.
§ 72-1-2.
207. See notes 310-21 infra, and accomoanyi ng text.
~1.
Const. art. XVI, § 3.
208.
N.
209,
-Id.
210.
N.H. Stat 1\.nn • .§§ 72-7-1 to 72-1-5, 72-5-1, 72-5~13, 72-5-17,
§ 2.
72-5-27,
72-5-28.
211. ~-f~ 72-12-1 -5, 72-12-18, 72-12-20.
680
68
212.
Tre1ease, The Conceot of Reasonahle neneficial Use in the Source
of Surface Streams. 12 1.Jyoming L. J. 1, 6 (1957).
213 • N• ~1. Stat Ann • ~ 7 2- 1 2-1 ( 1 97 8) •
214.
I d.
215.
Id. § 72-12-3.
216.
I d.
217.
-I d.
§ 72-4-3.
218. United
. States v. Ballard, 184 F. Supp. 1, 12 (D. N.M. 1960).
219.
State ex rel State Game Commission v. Red River Valley Co.,
51 N. M. 207,
, 182 P. 2d 421, 429 (1945).
220.
Cartwright v. Public Service Co., 66 N.
654, 668 (1958).
221. Tre 1ease, _1_2_
222.
~!yomi nq
64, _ _ , 343 P. 2d
L. J. supra· at 7.
·····--------
Harkey v.
r~.
Smith 31 N. M. 521,
--,
247 P. 550, 553 (1926).
223. 31 N. M. 521, 247 P. 559 (1926).
224. Id. at _ _ , 247 P. at 553; see N.r~. Stat Ann.§ 72-5-6 (1978).
225.
I d. at
--,
247 P. at 552-53.
226. N. M. Stat 1\.nn.§§ 72-5-6, 72-12-3 (E).
227.
-Id.
§
228.
-I d.
§ 72- 4- 18.
72-5-13.
229. State ex re1 Reynolds v. Lewis, 84 N.M. 768, _ _ , 508 P. 2d 577,
581 (1973).
230.
Public Service Co. v. Reynolds, 68 N.H. 54, _ _ , 354 P. 2d 621,
625' ( 1960) •
231. N. M. Canst. art. XVI § 3; N. r~1. Stat Ann. f§ 72-1-2, 72-12-2 (1978).
232. Comment supra note 69 at 976.
233. N. M. Stat Ann.~ 72-1-2 (1978).
69
234.
!d. § 72-5-8.
235.
Worley v. United States Borax & Chemical Corp., 78 N. r~. 112,
428 p. 2d 651 ( 1967).
236.
State ex re1 Reynolds v. Mears, 86 N.M. 510,
875 (1974).
237.
State ex rel Erickson v. Mclean, 62 N.M. 264, _ _ 308 P. 2d 983,
989 (1957).
238.
State ex rel Reyno 1ds v. Mears, 86 N. ~1. 510, _ _ , 525 P. 2d 870,
876 (1974).
239.
N.M. Stat Ann. ~ 72-5-18 (1978).
- -,
525 P. 2d 870,
I d. § 72- 5- 19 •
... ··
241. State Enqi neer, Groundwater Ru1 es and Reoul ati ons § 1-5.
240.
242.
N. M. Stat. Ann.
243.
Id. § 72-5-18.
244.
19 N. M. 352, 143 P. 207 {1914).
245.
Id. at
246.
18 N. M. 681, 140 P. 1044 {1914).
247.
Id. at
248.
62 N. M. 264, 308 P. 2d 983 {1957).
249.
-ld.
250.
Id.
251.
See Tulare Irriqation District v. Lindsay-Strathmore Irrigation
District, 3 Cal~ 2d 489, 45 P. 2d 972 {1938).
252.
r~i11heiser v. Long, 10 N.t~. 99,
253.
Harkey v. Smith, 31 N.M. 521, _ _ , 247 P. 550, 551 (1926).
254.
83 N. M. 445, 493 P. 2d 409 (1972).
255.
-Id.
256.
at
at
§ 72-5-19 {1978)·.
' 140 p. at 1049.
' 140 p. at 1049.
- -,
--,
308 P. 2d at 987.:
, 61 P. 111, 113 (1900).
493 P. 2d at 410.
~1a1sh v. Hal1ace, 26 Nev. 299, 67 P. 914 (1902).
6'!.?
C>t•v.~
70
257.
State ex rel Reynolds v. t1iranda, 83 N.M. 445,
, 493 P. 2d
409,411 (1922).
------
258.
N. M. Stat J\.nn. § 72-5-6 (1978).
259.
Id. § 72-5-8.
260.
Note, Appropriation by the State of r1inifllum F1m·Js in
Streams, 15 Nat. Resource J. 809, 817 (1975).
261.
Note, Prere uisite of Man Made Diversion in the A pro riation of
Water Rights, 3 Nat. Resource J. 170 1973 •
262.
See notes 116-120 supra, and accompanying text.
263.
N. M. ...Stat Ann.~§ 72-5-23 to 72-5-26 (1978) •
264.
Lindsey v. HcClure, 136 F. 2d 65, 70 (0. N.M. 1943); C1adfelter
v. Reynolds, 68 N. M. 61,
, 358 P. 2d 626, 629 (1961).
Ne~1
f·1exico
265. N. M. Stat Ann. § 72-5-24 (1978).
266.
-Id.
267.
In re Bro\Am, 65 N. M. 74,
268.
N. M. Stat. Ann. § 72-5-24 (1978).
269.
Id. § 72-5-24.
270.
-Id.
271.
In re
272.
Clodfelter v. Reynolds, 68 N. M. 61, _ _ 358 P. 2d 626, 630 (1961).
273.
Public Service Co. v. Reynolds, 68 N. M. 54, _ _ , 358 P. 2d 621,
625 (1960).
§ 72-5-25.
§ 72-12-4.
Bro~m,
65 N.
~1.
74,
274. Spencer v. Bliss, 60 N. r1. 16,
275.
, 332 P. 2d 475, 477 (1958).
, 332 P. 2d 475, 477 (1958).
--,
287 P. 2d 221, 224 (1955).
City of Roswell v. Berry, 80 N.M. 110, _ _ ,452 P. 2d 179, 185 (1969).
276. Heine v. Reynolds, 69 N.M. 398, _ _ , 367 P. 2d 708, 710-11 (1962).
6P·3
71.
277.
In re City of Ros~rel1, 86 N.~1. 249, _ _ , 522 P. 2d 796, 801 (1974).
278. W. S. Ranch Company v. Kaiser Stell Corp., 79 N.M. 65,
P. 2d 714, 718 (1968).
, 439
279.
Mathers V. Texaco, Inc. , 77 N. M. 239,
, 421 P. 2d 771 , 776
(1966).
------
280.
80 N. t~. 110, 452 P. 2d 179 {1969).
281.
Id. at
282.
86 N.M. 249, 522 P. 2d 796 (1974).
283.
Id. at
284.
In re Bro\'m, 65 N. M. 74, _ _ , 332 P. 2d 475, 477 (1958).
285.
N. t1. Stat. Ann. §§ 72-12-22 to 72-12-24 ( 1978).
286.
I d. § 72-12-22.
287.
Id; § 72-12-23.
- -,
--,
452 P. 2d at 184-85.
522 P. 2d at 798-99, 802.
288. ld.· .§ 72-12-24.
289. ]!!. § 72-12-22.
290. Hutchins, Community Acequi a supra at 273.
291. Snow v. Abalos, 18 N. M. 681,
292.
- -,
140 P. 1044, 1048 (1914).
Id.
293, State ex rel Black v. Aztec Ditch Co., 25 N.~1. 590, _ _ , 185 P.
549, 552 (1919).
294. Albuquerque Land & Irriqation Co. v. Guiterrez, 10 N.r4. 177, ___ ,
61
P. 357 {1900).
295. Hurphy v. Kerr, 296 F. 536, 545 (D. "'.M. 1923).
296. N. r~. Stat. Ann.~§ 72-5-15, 72-1-5 (1978).
297.
-Id.
298.
-Id.
299.
Id.§§ 72-5-10 to 72-5-12,
300.
I d • ~ 72- 5- 17 •
§ 72-5-9.
684
;'
72
301.
Albuquerque Land & Irrigation Co. v. Guiterrez, 10 NJ~. 177,
,
61 P. 357, 359 (1900).
--
302.
Kaiser Steel Corp. v. H.S. Ranch Co., 81 N.M. 414,
, 467 P.
2d 986, 989-90 (1970).
------
303.
N. M. Stat. Ann.§ 72-1-5 (1978).
304.
Pueblo of Isleta v. Tondre, 18 N.M. 388,
, 137 P. 86, 88-89
(1913).
------
305.
N.~1.
306.
.!!!·
307.
I d.
§
308.
-Id.
§ 7-5-26.
Stat Ann. § 7-5-26 (1978).
7-1-5.
.,.~
,;
309.
Miller v. Hagerman Irrigation Co., 20 N.M. 604,
, 151 P. 763,
766 (1915).
------
310.
Harkey v. Smith, 31 N.M. 521, 247 P. 550, 553 (1926).
311.
N. M. Canst. art. XVI, § 2.
312.
N. M. Stat Ann. § 72-1-2 (1978).
313.
State ex re1 Community Ditches v. Tularosa Community Ditch, 19
352, 143 P. 207 (1914).
314.
Snow v. Abalos, 18 N.r~. 681,
315.
Id.
316.
Pecos Valley Artesian Conservancy Dist. v. Peters, 52 N.M. 148,
_ _ , 193 P. 2d 418 (1948).
317.
-Id.
318.
N. H. Stat. Ann. § 72-5-24 (1978).
319.
Js!.
320.
78 N.M. 112, 428 P. 2d 651 (1967).
321.
I d. at
at
- -,
- -,
140 P. 1044, 1049 (1914).
193 P. 2d at 421.
§ 72-12-7.
--,
428 P. 2d at 654.
6f5
N.M.
73
322.
State ex rel P.eynolds v. South Sprinqs Co., 80 N.M. 144,
P. 2d 478, 480 (1969).
323.
Id. at
324.
80 N. M. 144, 452 P. 2d 478 (1969).
--,
, 452
452 P. 2d at 482.
325. N. r~. Stat. Ann. § 72-5-28, 72-12-8 (1978).
326.
Id.
327.
I d.
328. State ex rel Reynolds v. South Springs Co., 80 N.M. 144, 452 P. 2d
478 ( 1969).
329.
Id. at
__ ,
- -,
452 P. 2d at 481.
,/
330. Jones v. Anderson, 81 N.M. 423,
331. Ne\\' Hexi co Products Co. v. Ne'tJ
77 p. 2d 634 ' 641 ( 19 37) •
-~1exi co
, 467 P. 2d 995, 996 (1970).
Power Co., 42
N.~1.
311,
,
--
332. Chaves v. Gutierrez, 54 N.r1. 76, _ _ , 213 P. 2d 597, 600 (1950).
333. \4. s. Ranch Co. v. Kaiser Steel Corp., 79 N.M. 65,
714' 717 ( 1968) •
334. State ex re1 Reynolds v.
874 (1974).
~1ears,
86 N.M. 510,
, 439 P. 2d
, 525 P. 2d 870,
335. State ex re1 Erickson v. ~clean, 62 N.M. 264, 308 P. 2d 983 (1957).
336. N.M. Stat. J\nn.
§
72-12-8 ( 1978).
337. .!.£!.. § 72-5-28.
338.
-ld.
§ 72-12-8.
339. Pioneer Irrigation Ditch Co. v. Blashek, 41 N.M. 99,
P. 2d 388, 390 (1937).
, 64
340. r~artinez v. r~undy, 61 N.M. 87, _ _ 295 P. 2d 209, 214 (1956).
341. t1artinez v. Cook, 56 N.M. 343,
342.
, 244 P. 2d 134, 140 (1952).
La Luz Community Ditch Co. v. Town of Alamogordo, 34 N. ~1. 127,
_ _ , 279 p. 72' 78 (1929).
6P6
74
343.
Id. at
344.
State ex re1 Erickson v.
989 (1957).
345.
United States v. Ballard, 184 F. Supp. 1, 12 (D. N.M. 1960).
346.
N.M. Stat. Ann. § 72-4-2 (1978).
347.
I d.
348.
See Yeo v. Tweedy; 34 N.M. 611, 286 P. 970 (1930).
--,
279 P. at 78-80.
~,clean,
62 r1.!1. 264, _ _ , 308 P. 983,
349. Trelease, Leoal Contributions supra at 8.
350.
N.M. Stat Ann.$§ 72-2-1, 72-2-9, 72-9-2 (1978).
351.
Id. ~-·72-2-1.
352.
.!.£. §§
.i
72-2-8' 72-2-12.
353. _!i. ~ 72-2-12' 72-2-14.
354.
Id. ~§ 72-2-9, 72-3-1; City of Albuquerque v. Reynolds, 71 N.M.
428, 379 P. 2d 72 (1963).
355.
N. M. Stat. Ann.
356.
I d.
357.
I d.
358.
ld. § 72-5-20.
§
72-3-1 (1978).
359. Id. § 72-3-2.
360.
.!£.
361.
~.~§ 72-4-13, 72-2-7.
362.
-Id. § 72-7-2.
363.
1.£.
364. _!i.
§ 72-4-13.
§ 72-5-1.
j§
365. Id. §
366.
72-5-4' 72-5-7.
72-5-5~
Id. § 72-5-6.
,. t7
~
~),'''
75
367 •
.!i· ~§
368.
.!.!!·
369.
Id. § 72-5-18.
370 •
.!£. f§
371.
-Id.
372.
Id. § 72-5-13.
373.
.!.!!· r§
374.
Id. §§ 72-5-23 to 72-5-25.
375.
1£. ~ 72-6-4, 72-6-5 •
72-5-6, 72-5-7.
§ 72-5-6.
72-5-6, 72-5-8, 72-5-9, 72-5-11, 72-5-14.
§ 72-5-10.
72-5-21, 72-5-22.
..
_.·
~.t·1.
376.
Yeo v. Tweedy, 34
377.
Bliss v. Dority, 35 N.M. 12,
378. N.
t~.
Stat Ann.
611,
~§'··72-12-1,
-- 286
- -,
P. 970, 977 (1930).
225 P. 2d 1007, 1018 (1950).
72-12--18, 72-12-20 (1978).
379.
.!i· ~
380.
State Enoineer, Ground'lrater Rules and Reou1ations §7-17 to 7-26.
381.
See Reynolds v. f'1endenha11, 68 N.M. 467, 362 P. 2d 998 (1961).
72-12-1 , 72-12-20.
382. N. M. Stat. Ann. § 72-12-1 {1978).
383.
Id.
~
72-12-1 to 72-12-3.
384. ~.}§ 72-12-7, 72-12-22 to 72-12-24.
385.
Id. § 72-12-7.
386.
Id. § 72-12-22.
387.
Id. ~ 72-12-23.
388.
Id. ~ 72-12-24.
389.
Id. ~ 72-12-12.
390.
1£.)§
72-12-12, 72-12-13.
391.
~.j§
72-12-14, 72-12-15.
688
76
392.
State v. Myers 64 N.M. 186, 326 P. 2d, 1075 (1958).
393.
N. M. Stat. Ann.§ 72-13-2 (1978).
394.
g.
395. ~- ~ 72-13-2, 72-13-3.
396.
g. ~
397.
-Id.
398.
N. M. Stat. Ann.,:§ 72-12-4 (1978).
399.
N. M. Canst. art. XVI, § 2.
400.
71 N. H. 428, 379 P. 2d 73 (1962).
72-13-6 to 72-13-9.
§ 72-1-2; N._.r1_, Canst. art. XVI, §'1.
,,-
- -,
/
401.
Id. at
379 P. 2d at 79.
402.
N. r·1. Stat. Ann.~~ 72-5-6, 72-5-7, 72-12-3 (1978).
-···
403.
I d. ~ 72-2- 12 •
404.
3 s. Wiel, Water Rights in the Western States,§ 1194 at 1106
(3d ed. 191 •
405.
Fellows v. Shultz, 81 N.M. 496,
406.
N. M. Stat. Ann.~ 72-5-4, 72-12-3 (1978).
407.
.!!!- ~§
72-5-5' 72-12-3' 72-12-17.
408.
Js!. j
72-5-31 ' 72-12-10.
- -,
469 P. 2d 141, 143 (1970).
409. State ex rel Reynolds v. Lewis, 84 N.t·1. 768,
, 508 P. 2d 577,
581 (1973).
-410. Pecos Valley Conservancy Dist. v. Peters, 52 N.M. 148, _ _ ,
193 P. 2d 418, 421 (1948).
411. N. M. Stat. Ann. ~ 72-2-16 (1978).
412.
-Id.
§ 72-7-1; -~:....-.;..~-N. M. Canst. art. XVI,~ 5.
413. N. r~. Stat. Ann.~ 72-3-2, 72-3-3 (1978).
77
414.
Id. § 72-3-3.
415.
~Harkey v. Smith, 31 N.M. 521, 247 P. 550 (1926).
416.
Tevis v. f1cCrary, 72 N.~1. 134, _ _ , 381 P. 2d 208, 209 (1963).
417.
N. H. Stat. Ann.~§ 72-4-13, 72-4-15 (1978).
418.
.!Q.. ~ 72-4-15' 72-4-17.
419.
.liLa.
420.
Id. ~ 72-5-39.
421.
_!&. ~ 72-4-17.
422. ~.§~ 72-8-1 to 72-8-6, 72-12-11, 72-13-12.
423.
65 N.M. 59, 332 P. 2d 465 (1958).
424.
Flint, Groundwater Law and Administration: A New t·1exico View oint,
14 Rocky Mountain Min. L. Inst. 545, 557 1968 •
425.
Templeton v. Pecos Valley Artesian Conservancy Dist., 65 N. M. 59,
, 332 P. 2d 465, 470 (1958).
-426.
I d. at
- -,
332 P. 2d at 471.
427.
Id. at
428.
Comment, The Rise and Fall of Ne\-J Mexico's Tern leton Doctrin~, 6
Nat. Resource J. 325, 328 1966 •
429.
71. N.
430.
I d. at
, 379 P. 2d at 79-81.
431.
I d. at
, 379 P. 2d at 80.
432.
76 N. M. 466, 415 P. 2d 849 (1966).
433.
Id. at
434.
Comment supra note 428, at 332.
435.
Kelley v. Carlsbad Irrigation District, 76 N.M. 466,
P. 2d 849, 853 (1966).
436.
Flint supra at 561-62.
437.
82 N.M. 416, 483 P. 2d 297 (1971).
, 332 P. 2d at 469.
~1.
428, 379 P. 2d 73 (1962).
, 415 P. 2d at 853.
690
, 415
78
438. I d. at
, 483 P. 2d at 300.
439. I d. at
-
, 483 P. 2d at 301.
440. Id. at
, 483 P. 2d at 303.
441. N. M. Canst. art XVI, ~ 2.
442. Flint supra at 564.
443. 77 N. M. 239, 421 P. 2d 771 (1966).
444. Id. at
, 421 P. 2d at 775.
445. Id.
446. Flint supra at 567.
..~
6!)1