Assessment, Easement, Interference
and Illegal Use of Water Violations:
Overview of Presentation
 Internal Administrative Action
 Discussion
 Citation
 Withholding water (Assessments)
 Withholding right to vote (Assessments)
 Civil Complaint
 Assessment, Easement, and Interference Violations
 Criminal Complaint
 Easement and Interference Violations
Collecting Assessments
Progressive Enforcement:
Internal actions for assessment violations
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Verbal Agreements
First Citation: Stop Violation
Second Citation: Penalty
Authority:
 73-2-21
 Mayordomo oversees distribution of water, collection of fines, and
labor assessments
 73-2-25, 73-3-6
 Withholding of water for failure to pay assessment for labor
 73-2-14, 73-3-3
 Withholding of vote for delinquent assessment
 73-2-25
 $100-$200 for continuing to use water after notice of failure to pay labor
assessment
Citation Form: Type of Violation
Citation Form: Penalty
Civil Action for Collection of Assessments
 73-2-26
 After due notice (e.g. citations)
 Failure to do work or failure to pay any amount assessed
 Civil action for amount assessed
 Mayordomo, superintendent, or ditch officials
 Magistrate or district court
 Attorneys fees if successful
 Continued use of water and failure to pay after
judgment: $200 recoverable in magistrate court
Easement Violations
Examples of Easement Violations
 Building fences across acequias
 Building structures within the easement or across the
acequia
 Blocking access to the acequia through a traditional
point of access
Progressive Enforcement:
Internal actions for easement violations
 Verbal Agreements
 First Citation: Stop Violation
 Second Citation: Penalty - fine, penalty, damages or
injunction in magistrate and/or district court
 Authority:
 73-2-5 (A) Definition of acequia easement violation
“it is unlawful to interfere with [the] easement or prevent access to the
ditch by the owner of the dominant estate as provided by law”
 72-8-3. Interference with right-of-way
“…it shall be unlawful to place or maintain any obstruction that shall
interfere with the use of the [ditch], or prevent convenient access
thereto”
Civil and Criminal Complaint:
Easement Violations
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73-2-5 (B): Criminal complaint
 DA, mayordomo, or commission
 Magistrate court
 Misdemeanor $300-$1,000 (and/or)
 Up to 90 days imprisonment in county jail
73-2-5 (C): Civil complaint
 DA, mayordomo, or commission
 Up to $5,000
73-2-5 (D): Damages and Injunction
 DA, mayordomo, commission, or owner of dominant estate
 District court
Interference with the Acequia
and
Illegal Use of Water
 73-2-64
 “A person shall not, contrary to the order of the mayordomo
or commission, cut, beak, stop up or otherwise interfere
with any community ditch or dam in this state, or lateral
acequia thereof, or use water from the same contrary to
such orders”
Progressive Enforcement:
Internal actions for interference and illegal use of water
 Verbal Agreements
 First Citation: Stop Violation
 Second Citation: Penalty – fine, penalty, damages or
injunction in magistrate and/or district court
 Authority:
 73-2-64: “A person shall not…cut, beak, stop up or
otherwise interfere with any community ditch…or lateral
acequia thereof”
 73-2-64: “A person who violates [this section] is guilty of
a misdemeanor”
Criminal and Civil Complaint:
Interference with the Acequia and Illegal Use of Water
 73-2-64 (B): Criminal complaint
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DA, mayordomo, or commission
Magistrate court
$300-$1,000
Default: 5 -30 days in county jail
 73-2-64 (C): Civil complaint
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DA, mayordomo, or commission
Up to $5,000
“knowingly, intentionally, and willfully violating” statute
 73-2-64 (D): Damages and Injunction
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DA, mayordomo, or commission
District court
 73-2-64 (E): Duty of mayordomo to prosecute unless DA chooses to
prosecute
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Failure to prosecute is a misdemeanor
$25-$50, or
10-30 days in jail
The Civil Suit Process:
Documents, Filing Deadlines, Fees
Initial Steps Involving Acequia Suits
Step 1: File Complaint in Magistrate Court
 Document: Complaint
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2-103.(D) Form of complaint. The
complaint shall be in substantially the
form approved by the court administrator
and the supreme court.
2-201. (A) How commenced. A civil
action is commenced by filing with the
court a complaint consisting of a written
statement of a claim or claims setting
forth briefly the facts and circumstances
giving rise to the action.
Filing Fee: $77 one-time fee
The Civil Complaint
Civil Complaint:
Failure to Pay Assessments
Civil Complaint:
Easement Violation
Civil Complaint:
Interference/Illegal Water Use
Step 2: Clerk dockets the complaint
Step 3: Court issues summons and service
packet to plaintiff for service
 Document: Service Packet includes the summons, return of
service, copy of complaint, answer form
Step 4: Plaintiff responsible for service
 May contact Sheriff’s Dept. and pay $25 fee or have someone 18
or older and who is not a party serve defendant
 Document: Completed Return of Service filed with court by
person who served defendant
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Plaintiff should contact the court to find out if defendant was
served
If Return of Service is not returned and filed with the court:
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judge will not take any action
case could be delayed or dismissed
The Summons and Return
Step 5: Defendant may file an answer or
responsive pleading within 20 days of
receiving summons
 Document: Answer
2-302. (B) The answer shall describe in concise
and simple language the reasons why the
defendant denies the claim of the plaintiff as well
as any defenses he may have to the claim of the
plaintiff.
or
Defendant may file counterclaim against
Plaintiff
 2-302.
(D) If the defendant possesses a claim or
claims against the plaintiff at the time the action
is begun, they may be asserted in the answer as a
counterclaim or setoff. The facts and
circumstances giving rise to the claim or claims
must be briefly described, in the form of answer
approved by the supreme court.
The Answer
Counterclaim
Step 6: Court may enter default judgment if defendant does not
answer complaint within 20 days of receiving complaint,
or
If, the defendant answers, the court may enter judgment based
on the pleadings if there is no objection
State Magistrate Court
 Some complaints may be filed either in magistrate or
state district court, but district court may not allow
parciantes to proceed without an attorney
 Claims greater than $10,000 cannot be heard in
magistrate court