Title: The New Mexico Law of Water Rights
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Title: The New Mexico Law of Water Rights
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Language: English
Publisher: Wells A. Hutchins, LLB Production Economics Research Branch Agricultural Research Service US Dept. of Agruculture
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - The New Mexico Law of Water Rights (John H. Bliss, State Engineer of New Mexico, in Cooperation with Production Economics Research Branch, Agricultural Research Service, US Dept. of Agriculture (JDV Box 39)
General Note: Box 29, Folder 23 ( Water Statutes - Other States - 1900s ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004753
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Full Text

T technical Ueport


,iuber


THE NEW MEXICO LAW OF WATER RIGHTS,

By
Wells A. Hutchins, LL.B.
Production Economics Research Branch
Agricultural Research Service
United States Department of Agriculture


STATE


John H. Bliss
ENGINEER OF NEW


MEXICO


In cooperation with


UNITED


Production Economics Research Branch
Agricultural Research Service
STATES DEPARTMENT OF AGRICULTURE


Santa Fe, New Mexico
1955


__i_~ I


c.-s .: 70 .I V Waer tVanaym nt'I
_S. !L Fi~~orJ~da 3 ". ,,rae Maven Dsrict





A 6


18 -




When an application to appropriate water is approved by the
district court, "on appeal the appellate court will presume, in the
absence of anything in the record to the contrary, that there is
unappropriated water available to supply the requirements under the
permit." 77/

The question of public interest was considered in a case de-
cided in 1910. 78/ The court believed that matters of public
interest went beyond questions as to whether the project was dangerous
to public health or safety. The purpose of the entire statute was to
obtain the greatest possible benefit to the public. It is for the
public interest, said the court, that investors should be protected
against making worthless investments in New Mexico, and especially
that they should not be led to make them through official approval
of unsound enterprises. If unappropriated water is available for
only 5,000 or 6,000 acres, the public interest would not be served
if a project for the irrigation of 14,000 acres with that water should
receive official approval which might enable the sale of stock reason-
ably sure to become worthless and the sale of land that could not be
irrigated, yet could be sold at the price of irrigated land. It was
believed that the question of relative costs of water of two competing
projects was not conclusive on the question of public interest, but
that it should be taken into account. It was suggested, however,
that when the cost of irrigating a small portion such as one-sixth of
a project might be, say, only $5 per acre, while the cost to irrigate
the other five-sixths might be $10 per acre, the increased cost to
the owners of the one-sixth portion under a plan that would provide
for the entire project would be no reason for refusing the owners of
the five-sixths portion the privilege of irrigating their lands.

While the board of water commissioners was in existence, it was
held that the board was not called upon to review the discretion of
the State Engineer, but that upon appeal the board determined for
itself the question as to whether the application should be approved
or rejected. 79/ The hearing in the district court likewise was
de novo, without review of the discretion of the State Engineer or
the board.


Completion of Appropriation

Diversion and Use of Water

To constitute a valid prior appropriation of water, there must
be (1) a rightful diversion and (2) an application of the water to
some beneficial use. 80/ "And neither of these is sufficient without
the other."

77/ Rio Puerco Irr. Co. v.*Jastro, 19 N. Mex. 149, 155, 141 Pec. 874 (1914).
78/ Young C Norton v. u- nderlider, 15 N. Mex. 666, 667-668, 110 Pac. 1045 (1910).
79/ Fraers' evelopent Co. Rayado Lnd & lrr. Co., 18 N. Mex. 1, 9, 133 Pac. 104 (1913). Laws
1907, sees. 70 to 77, provided for a board of three water commlssloners whose duty was to hear and determine
appeals from the acts and decisions of the .;tate Engineer. Their decisions were final, subject to appeal to
the district court. The board was abolished by Laws 1923, ch. 28; State. 1953, Ann., sec. 75-2-11.
80/ Albuquerque LAnd & Irr. Co. v. Gutlerrer, 10 N. Mex. 177, 240, 61 Pac. 357 (1900). See also
Murphy v. Kerr, 296 Fed. ; 536, 542(D. N. Mex., 1923); Hinderllder v. IA pllata river & Cherry Creek D1tch Co.,
304 U. S. 92, 98 (1938).








- 19 -


Under the arid region doctrine of appropriation, the intent of
the claimant must coincide with the diversion and use of the water. 81/
(Intent as a measure of the appropriative right is discussed under
"The appropriative right Measure of the right," p. 25-27.) The mere
intention, however, is not sufficient to initiate a right under the
arid region doctrine. 82/ There must be a "first step" to initiate
the right -- a substantial act giving notice of the proposed appro-
priation, to be followed by diligent prosecution of the enterprise.

The principle that while diversion of the water is one of the
necessary elements of an appropriation, nevertheless the appropria-
tion is not complete until the water has been applied to the bene-
ficial use intended, was thus phrased by the supreme court: 83/

Diversion is one of several elements necessary
to a legal appropriation of water, and while
a valid appropriation may follow immediately upon
the diversion of water from a stream by reason of
a concurrence of the other necessary elements, it
is still but an element of that appropriation, and
is not equivalent to it. Water may be diverted
from a stream, and still not be appropriated, and
it is only when diversion is accompanied or fol-
lowed by application to some beneficial purpose,
that the water is appropriated so as to prevent a
subsequent appropriator from acquiring a right to
its use. *

The court held in 1945 that waters impounded in a reservoir in
a public watercourse -- some of the water being intended to be used
for irrigation downstream, and some held in storage for flood control
-- were not appropriated simply because so impounded. 84/ It was
repeated that to constitute an appropriation there must be a diversion
and application to beneficial use. "These waters are not appropriated
until application to use has been effected."



Doctrine of Relation

The doctrine of relation was thus expounded by the Territorial
supreme court in one of its earliest decisions concerning rights to
the use of water -- a decision that was rendered prior to the enact-
ment of'any statute prescribing a method for appropriating water: 85/

81/ Harkey v. Smith, 31 N. Mex. 521, -25, ~-27 Pac. .5 (1926), Snow v. 4hal, 18 N. Mex. 681, 694,
140 Pac. O4l (9114).
82/ Farmers' Development Co. v. Kavad,. Iain & Irr. C ., 28 N. Mex. 357, 369, 213 Puc. 202 (1923).
83/ Millhetser v. LOg%, 10 N. Mex. 9". 9 l. -,1 -. Ill (19'00). See State ex rel. Community Dttches
v. Tularosa Community Ditch, 19 N. Mex. 352, 371, 113 ac. 207 (1914).
84/ State ex rel. State Game c',Immisi,,n v. Red Rlier Valley Co., 51 N. Mex. 207, 223-224, 182 Pac.
(2d) 421 194J -1947). The court id It tis all vi :..l.li mT'ier untill it is beneficially applied to the
purposes for which its presence affords au p (tetial] ;,s *
85/ Keeney v. Carillo, 2 N. Mex. 480, 491 (IhS'). tSe mHnderlider v. L FPlata River & Cherry Creek
Ditch Co., 3--4 U.S. 92,9-i71938).


I








- 21 -


of the claim, subject to diligent prosecution to completion of the
necessary work for application of the water to beneficial use, regard-
less of any action taken with respect to the statute of 1907 by the
claimant under the unauthorized advice of the Territorial Engineer.


Diligence

The supreme court has held that lack of time and means requisite
to a completion of the work incident to an appropriation within a
reasonable time is no excuse for failing to exercise due diligence. 89/
The court in a case decided in 1914 looked into the water statute of
1907 for possible change in the standards of diligence, and stated
that: 90/

Financial inability is not under the statute, as
it was not without the statute, such a cause as
will excuse lack of diligence in the prosecution
of the work. *

The 1907 statute referred to by the court in the foregoing quota-
tion authorized extensions of time for the completion of works equal
to the time during which work was prevented by the operation of law or
other causes beyond control of the permitted. This section was so
amended in 1941 as to authorize greater leniency and to add prevention
of work by "acts of God" to the other permissible causes of exemption. 91/


Gradual or Progressive Development

An appropriation is not necessarily measured by the area of land
the appropriator irrigated in any given year. 92/ The supreme court
stated that:

The appropriator would be entitled to increase,
from year to year, his use of the water, pro-
vided such enlarged use was originally claimed
at the time of initiating the appropriation, and
the intending appropriator proceeded with reason-
able diligence to apply the water to the use in-
tended. But where such appropriator, for illus-
tration, only originally intended to irrigate
forty acres of land, and he applied water on such
land, this forty acres would be the limit of his
right as such appropriator under his original appro-
priation. *

89/ Keeney v. Carillo, 2 N. Mex. 480, 493 (1883). The court stated later, in Rio Puerco Irr. Co.
v. Jastro, 19 N. Mex. 149, 153, 141 Pac. 874 (1914): "The authorities all agree that the mere lack of
means with which to prosecute the work is not a sufficient excuse for delay."
90/ Rio Puerco Irr. Co. v. Jastro, 19 N. Mex. 149, 155, 141 Pac. 874 (1914).
91/ N. Mex. Stats. 1953, Ann., sec. 75-5-7, ,riginally Laws 1907, ch. 49, sec. 29. Sec. 75-5-13
authorizes extensions of time upon proper showing of d.ue dlligence or reasonable cause for delay In case
of completion of construction, application of water to beneficial use, or other reasonable purpose.
92/ State ex rel. Community Ditches v. rulaross C.mmunity Dttch, 19 N. Mex. 3:,2, 371, 143 Pac. 207
(1914).








- 47 -


that in the absence of a provision making the State subject to the
statute of limitations, no title by adverse possession can be ac-
quired against either the State or the United States, no matter how
long continued, the court held (at 56 N. Mex. 197) that:

Thus, the mere fact that the plaintiffs and
their predecessors in title made improvements on
land owned by the United States and later by the
State and thereafter used the water of the springs
in question, continuously for over sixty years,
did not vest them with an easement.


GROUND WATERS




New Mexico was not the first State to enact ground-water
legislation. However, the New Mexico statute, after having been
declared unconstitutional and subsequently reenacted in corrected
form, was the first of the Western State ground-water administra-
tive acts to be put into extensive operation and has set the pattern
for much of the subsequent legislation in that field in the West.
The constitutionality of the present statute was sustained, under
attack, nearly 20 years after its enactment.


APPROPRIATION OF GROUND WATER


Extant Legislation

Statutory Provisions

The ground-water appropriation statute now in effect was enacted
in 1931 to replace legislation enacted in 1927 which had been declared
invalid because of technical defects. 203/ There have been some amend-
ments and additions to the 1931 law, chiefly in 1953.

The act declares (sec. 75-11-1) that:

The water of underground streams, channels,
artesian basins, reservoirs, or lakes, having
reasonably ascertainable boundaries, are hereby
declared to be public waters and to belong to
the public and to be subject to appropriation
for beneficial use.

The legislature in 1953 added several provisions to the ground
water statutes. Except for the section containing an emergency
clause, these are included in the 1953 codification as follows: 204/

203/ N. 3ex. taws 1931, ch. 131; Stats. 1953, Ann., sers. 75-11-1 to 75-11-12.
S54/ N. Xex. Laws 1953, ch. 64; Stats. 1953, Ann., secs. 75-11-19 to 75-11-22.


C~









- 48 -


75-11-19. For the purposes of this act [75-
11-19 to 75-11-22] all underground waters of the
state.of New Mexico are hereby declared to be
public waters and to belong to the public of the
state of New Mexico and to be subject to appropri-
action for beneficial use within the state of New
Mexico. All existing rights to the beneficial use
of such waters are hereby recognized.

75-11-20. No person shall withdraw water from
any underground source in the state of New Mexico
for use in any other state by drilling a well in
New Mexico and transporting the water outside the
state or by drilling a well outside the boundaries
of the state and pumping water from under lands
lying within the territorial boundaries of the
state of New Mexico.

75-11-21. No permit and license to appro-
priate underground waters shall be required ex-
cept in basins declared by the state engineer to
have reasonably ascertainable boundaries.

75-11-22.. The state engineer and the
attorney general or the various district attorneys
are authorized and directed to use any and all
legal means necessary to enforce the provisions of
this act [75-11-19 to 75-11-22].

Beneficial use is declared in the 1931 act to be the basis, the
measure, and the limit to the right to the use of the waters described
in the act (sec. 75-11-2).

Intending appropriators for irrigation or industrial uses of
water are required to make application to the State Engineer for
permits. If no objections are filed, and the State Engineer finds
that there are unappropriated waters in the designated ground-water
source, or that the proposed appropriation would not impair exist-
ing water rights attaching to such source, he issues a permit to
appropriate all or part of the waters applied for, subject to the
rights of prior appropriators from that source of supply. If protests
are filed, the State Engineer holds a hearing before granting or
denying the application. (Sec. 75-11-3.)

The statute recognizes existing rights based upon application
of the water to beneficial use, and the priorities of such rights
(sec. 75-11-4). Claimants of vested ground-water rights may file
declarations of their claims secss. 75-11-5 and 75-11-6). Changes
in location of wells or use of water may be made with the approval
of the State Engineer, after hearings, upon showing that the change
will not impair existing rights (sec. 75-11-7). Ground-water rights
not exercised.for four years are declared to be forfeited (sec. 75-








- 49 -


11-8). Appeals from decisions of the State Engineer may be taken to
the courts (sec. 75-11-10). The State Engineer formulates rules and
regulations for administering the act (sec. 75-11-11).


Constitutionality

The constitutionality of the 1931 statute was taken for granted
for years after its enactment, chiefly because of the statements of
the supreme court in the previous decision in YEO v. TWEEDY, 205/
noted below. However, the validity of the statute was finally con-
tested by defendants in three suits brought by the State for the
purpose of enjoining the unlawful use for irrigation purposes of
waters drawn from the Roswell Artesian Basin and the valley fill
above it, and was sustained in 1950 in the case of STATE ex. rel.
BLISS v. DORITY. 206/

The Dority case.--The New Mexico Supreme Court held in the
DORITY case that the State Engineer has jurisdiction over the waters
of underground sources named in the statute and declared to be public
waters. It was held (at 55 N. Mex. 18-19) that the State Engineer's
jurisdiction to determine the outer boundaries of such bodies of
ground water since the passage of the 1931 act is implicit in that
act, and that no judicial determination of the boundaries is neces-
sary to the exercise of such jurisdiction. It was further held (at
55 N. Mex. 19) that the statutory manner of acquiring any right to
the use of water from such sources is exclusive; that the court had
so held with reference to the general irrigation law of 1907 207/;
that the same legal principles applied to the ground waters in liti-
gation in the instant case; and hence, that no right to the use of
such water had been obtained by its use by the defendants in violation
of the statute.

The principal question raised in the case was whether the statute
of 1931 was unconstitutional on the grounds that it authorized the
State to deprive persons of their property without due process of law,
denied them the equal protection of the laws, and authorized the
taking of private property for public use without just compensation.
The court stated (at 55 N. Mex. 19-28) that the whole argument of
such invalidity was based on the assumption that the waters covered
by the statute belonged to the owners of the overlying land, but that
that question had been settled by the New Mexico Supreme Court in
YEO v. TWEEDY. Furthermore, the correctness of the statement in YEO v.
TWEEDY to the effect that it has always been the law in New Mexico
that the waters described in the statute belonged to the public and
were subject to appropriation was considered of little importance,
because the waters involved in the instant suit had been reserved for
the people of New Mexico to be disposed of under its laws and court

205/ Yeo v. Tweedy, 34 N. Mex. 6111 286 Pac. 970 (1929, 1930).
206/ State ex rel. Bliss v. Dority, 55 N. Mex. 12, 225 Pac. (2d) 1007 (1950). ppeal dismissed for
the want of a substantial Federal question: Dcrlty v. State of New Mexico ex rel. Bliss, 341 U. 924
(1951).
207/ CitinegHarkey v. Smith, 31 N. Mex. 521, 247 Pac. 550 (1926).


I









- 50 -


decisions pursuant to the Congressional Desert Land Act. 208/ The
Desert Land Act was not intended to be limited to waters on the sur-
face of the earth; waters of underground streams with defined bound-
aries always have been subject to appropriation. No interest in
waters that might be used for irrigation was conveyed by a United
States patent. The court said (at 55 N. Mex. 28): "We hold that
under the Federal law and that of New Mexico the waters described in
Sec. 1 of the Act of 1931 are subject to appropriation under that Act."

The supreme court dismissed the contention that the statute of
1931 was vague and uncertain in making waters "having reasonably
ascertainable boundaries" the standard by which the public character
of ground water is determined (at 55 N. Mex. 28-30). The word
"reasonably" was construed in the sense of "sufficiently". The east,
south, and west boundaries of the basin in litigation had been deter-
mined. The lands of the defendants lay toward the south end of the
basin, and there were hundreds of wells to the north. The court held
that the establishment of the three boundaries, and the circumstance
that the north boundary existed but could be ascertained with pre-
cision only by the unnecessary drilling of wells, made for all practi-
cal purposes a sufficient establishment of the boundaries of the basin.
Furthermore, the 1931 statute had been in effect for 19 years, and
had been successfully applied in the administration of a number of
ground-water sources covering several hundred thousand acres and in-
volving irrigated lands of the value of many millions of dollars. The
court said (at 55 N. Mex. 30) that:

It would be anomalous indeed if this court,
after such a history of successful application of
the statute should now determine that it is void
for vagueness and uncertainty. The statute is
not void for the reasons stated.

The court held likewise that the decision in YEO v. TWEEDY had
become stare decisis. It had been held in that case that even in
the absence of statute, the waters of an artesian basin the boundaries
of which have been ascertained, were subject to appropriation. The
supreme court stated, in the instant case (at 55 N. Mex. 31), that:

There is another consideration which requires
the affirmance of the trial court's decree. The
decision of Yeo v. Tweedy, supra, has become a
rule of property. In the nineteen years since that
decision it may be assumed that many thousands of
acres of the one hundred thousand irrigated with
water from the Roswell Artesian basin and the
valley fill have been sold to purchasers who relied
on that decision-as determining title to the right to
use the water here involved, and the water rights
to which would be injured or destroyed if Yeo v.

208/ 19 Stat. L. 377 (March 3, 1877).


F








- 51 -


Tweedy is overruled. Whether it stated the correct
rule of law (and we? are of the opinion that it did),
it is now a rule of property that we will not dis-
turb. *

With respect to the ownership of the waters involved in the
instant litigation, the court concluded (at 55 N. Mex. 31) as
follows:

The parties have stipulated in this court to
facts that show all lands of defendants involved
here were patented after March 1877, the date of
the Desert Land Act; and before the Act of 1931.
We have concluded that the water involved was re-
served, on or before the date the Desert Land Act
became effective, to the State of New Mexico as
trustee for the public, and subject to its use by
the public at any time thereafter, by authority of
the state statutes, even though passed after the
date of the patents to the lands of the defendants.
The patents to defendants' lands carried no right
to the use of water, except as to that actually
applied to the reclaiming of land under the Desert
Land Act, and not thereafter abandoned. All other
water belonged to the State as trustee for the
public.


Court Decisions Prior to Legislation

The New Mexico Supreme Court, in the earliest decision in which
it discussed rights to the use of ground waters--one of the very few
ground-water decisions rendered prior to the enactment of the 1927
legislation--differentiated, in both law and fact, between definite
underground streams and percolating ground waters. 209/ Waters
artificially drained from a marsh into the natural channel of a
canyon, in which the water flowed partly on the surface and partly
under the surface tosprings on which appropriations had been made,
were held to be part of a defined underground stream, and not a case
of percolating water within the meaning of the law. The court held
that a well-defined and constant stream in a subterranean channel is
protected as much as though it ran through a natural channel on the
surface, and that such a stream supplying a spring cannot be diverted
to the injury of the holder of a prior appropriative right relating
to the spring. The law regarding percolating waters was different,
said the court, because of their diffusion through the earth and the
resulting difficulty of controlling them.

A later case -- VANDERWORK v. HEWES and DEAN 210/ -- involved
water originating from seepage but diffused over the ground, which
the court called seepage water or spring water from some unknown

209/ Keeney v,. Crillo, 2 N. Mex. 480, 495-496 (1883).
110/ Vanderwork v. Hwes and Dean, 15 N. Yex. 439, 445-449, 110 Pac. 567 (1910).








- 52 -


source, and which was treated in the case as percolating water. The
water formed a small basin on the tract of land on which it came to
the surface, sometimes receding and sometimes spreading to an ad-
joining tract on which it was put to use by the owner with the consent
of the owner of the land on which the water rose. A third party
attempted to appropriate the water, by a ditch through the land of
the party on which the water arose, pursuant to the State statutory
appropriation procedure. The supreme court held that the only seep-
age water subject to appropriation under permit from the Territorial
Engineer was seepage water from constructed works, which did not
apply to this present situation. With respect to rights to the use
of percolating water, in small quantity from a source unknown, the
court said (at 15 N. Mex. 446) that: "It must be conceded, that for
many years, the law as to such waters has been that the water was
a part of the land and that each land owner could do with it as he
chose."

The court in VANDERWORK v. HEWES and DEAN differentiated the
situation before it from that to which the doctrine of reasonable
use, as defined in the California case of KATZ v. WALKINSHAW, 211/
should apply. That is, the California case involved rights to the
use of percolating water from large areas of land saturated with
artesian water. Also, in the instant case, the water while on the
land on which it rose, and on the adjoining land on which it was
being used, was not subject to appropriation by anyone without the
consent of those landowners, so as to deprive them of the use of
the water on their land. The rights of the adjoining landowner were
subject to the prior right of the owner of the land on which the
water rose to apply all of the water to a beneficial use on his own
lands. The court suggested that any surplus above such beneficial
use could be appropriated by the adjoining landowner, and that any
surplus after the use of both such landowners was subject to appropri-
ation in accordance with the general western law of prior appropri-
ation. 212/

The court decisions rendered prior to the enactment of the
ground-water appropriation statute, therefore, indicated (1) that
the rules governing rights to underground streams and those relating
to percolating waters were not the same, and (2) that diffused per-
colating waters were subject to the beneficial use of the landowner.
In fact, the decision in VANDERWORK v. HEWES and DEAN apparently
leans toward the strict English or common-law rule of absolute owner-
ship for small flows from unknown sources, although it indicates a
question in the mind of the court as to whether a surplus over the
landowner's needs might be subject to nonstatutory appropriation by
an outside party.

The law of ground waters in both legislative and judicial fields
has developed greatly since the decision in VANDERWORK v. HEWES and

211/ Katz v. Walkinshaw, 141 Calif. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903).
212/ he supreme court stated later, In Yeo v. Tweedy, 34 N. Mex. 611, 624, 286 Pec. 970 (1929,
1930), that in the Vanderwork case the court had left open the question as to whether the water there In-
volved, seeping from an unknown source, was subject to appropriation at all.










- 53 -


DEAN. In the DORITY case, decided in 1950 (see "The DORITY case,"
p. 49-51), the court concluded that the waters therein involved had been
reserved to the State as trustee for the public on or before the date
of the Desert Land Act, and observed that the land patents of defend-
ants gave them no right to water other than that actually applied in
reclaiming land under the Desert Land Act. All other water, said
the court, belonged to the State as trustee for the public. This last
statement is partly dictum, inasmuch as the only waters involved in
the DORITY case were those of an artesian basin and the overlying
shallow ground waters, but it may well reflect the current trend of
thought.



Appropriability of Artesian Waters

Effect of Act of 1927

The New Mexico legislature in 1927 enacted a statute relating
to the appropriation and control of certain ground waters, the first
section of which provided that: 213/

All waters in this State found in underground
streams, channels, artesian basins, reservoirs, or
lakes, the boundaries of which may be reasonably
ascertained by scientific investigations or surface
indications, are hereby declared to be public waters
and to belong to the public, and subject to appro-
priation for beneficial uses under the existing laws
of this State relating to appropriation and benefi-
cial use of waters from surface streams.

The decision in YEO v. TWEEDY 214/ held the 1927 act void on
technical grounds, but it laid the basis for the passage of an act
free from the objectionable features.



Appropriability in Absence of Statute

The supreme court stated in YEO v. TWEEDY that the doctrine
of appropriation, which had long since been adopted in New Mexico
with reference to surface waters, was best adapted to the condi-
tion and circumstances of the State; and the logical consequence
was that the same doctrine should be applied to definite bodies

213/ N. Mex. Laws 1927, ch. 182. It will be noted that the first section of the statute as reen-
acted in 1931 follows closely the language of this 1927 declaration of public, appropriable ground waters,
the only important changes being the elmlnsation of the ascertainment of boundaries "by scientific Investi-
gAtions or surface indications," and of the reference to existing laws relating to appropriations from sur-
face streams.
214/ Yeo v. Tweedy, 34 N. Mex. 611, 615-617, 619-621, 286 Pac. 970 (1929, 1930). The ground on
which the 1927 act was held void, at 34 N. Mex. 627-629, was that the extension of provisions of existing
law was in contravention of a provision of the State constitution to the effect that no law should be
revised or amended or the provisions thereof extended by reference to its title only, but that each section
thereof as revised, amended, or extended should be set out in full. It was therefore held that the exten-
sion within the 1927 statute, being prohibited by the constitution and not being within any exception to
that prohibition, could not be sustained.









- 54 -


of artesian waters. As to the superiority of the appropriation
doctrine over the doctrine of correlative rights with respect to
ground waters in artesian basins, reservoirs, or lakes, the
boundaries of which may be reasonably ascertained, it was stated
(at 34 N. Mex. 620) that:

Such bodies of subterranean water are the
principal resource of the localities where they
occur. Their employment to the best economic
advantage is important to the state. According
to the "correlative rights" doctrine, each
overlying owner would have the same right--the
right to use whenever he saw fit. The right does
not arise from an appropriation to beneficial use,
which develops the resources of the state. It is
not lost or impaired by nonuse. Regardless of the
improvements and investments of the pioneers,
later comers or later developers may claim their
rights. The exercise of those rights which have
been in abeyance will frequently destroy or impair
existing improvements, and may so reduce the rights
of all that none are longer of practical value,
and that the whole district is reduced to a condi-
tion of non-productiveness. The preventive for
such unfortunate and uneconomic results is found
in the recognition of the superior rights of prior
appropriators. Invested capital and improvements
are thus protected. New appropriations may thus
be made only from a supply not already in benefi-
cial use. Nonuse involves forfeiture. A great
natural public resource is thus both utilized and
conserved.

The court concluded (at 34 N. Mex. 624) that "the waters of an ar-
tesian basin whose boundaries have been ascertained are subject to
appropriation." It was further concluded that the 1927 law, while
objectionable in form, was declaratory of existing law, and was
fundamentally sound. 215/

The supreme court decided in YEO v. TWEEDY, therefore, that
the ground-water statute of 1927 was declaratory of existing law
and was fundamentally sound, but was technically void; and that
the waters of an artesian basin the boundaries of which had been
ascertained were subject to appropriation even without the aid of
the statute.

215/ There was one dissenting opinion, in which it was considered that the English common-law rule,
as modified, was the law in New Mexico prior to passage of the 1927 act, and that therefore legislation
could not take away the vested right of the owner of overlying land to abstract percolating water without
license from the State.








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Effect of Act of 1931

The legisl-ture, at the session in 1931 following the decision
in YEO v. TWEEDY, passed a new act with the features which the
court held objectionable eliminated. With certain amendments and
additions, this statute is in operation. 216/ This has been
discussed under "Extant legislation," p. 47-51.

A decision rendered in the year in which the present statute
was enacted concerned chiefly a question of jurisdiction. 217/ It
was held that a statutory suit to adjudicate water rights of a stream
system is all-embracing and includes claims of appropriations from an
artesian basin within such system; and that the jurisdiction of the
court in which the adjudication suit is pending is exclusive of the
jurisdiction of another district court to entertain a suit by artesian-
water appropriators attacking the right of a stream appropriator as-
serted in the pending adjudication. The new 1931 law was referred to,
but its validity was not in issue.

A later case that was heard by the supreme court on two appeals
involved questions of administrative control of artesian waters. The
court on the first appeal referred to the "sound reasoning" of the
holding in YEO v. TWEEDY that legislative enactments classifying the
waters of underground streams, channels, artesian basins, reservoirs,
or lakes, having reasonably ascertainable boundaries, as public and
subject to appropriation, are merely declaratory of the state of the
law prior to such legislation, and that such waters, except for phys-
ical differences, are affected with all the incidents of surface
waters as to use, appropriation, and administration. 218/ Defendant's
well was drilled outside the defined boundaries of an artesian basin,
and without a permit. The court stated (at 50 N. Mex. 189) that:

It may be granted, as already conceded, that no
permit is necessary for drilling in such terri-
tory. But it does not follow that, where such well
taps waters of an artesian basin or other under-
ground stream whose available supply of waters al-
ready has been exhausted by prior appropriation,
the well owner acquires a valid right to the use
of such waters as against the body of prior appro-
priators. *

The court concluded that the plaintiff artesian conservancy district
had the right to maintain a suit to enjoin the use of water from
defendant's artesian well which tapped the waters of the artesian
basin supplying the lands embraced within the district, even though
the well was drilled.on land outside of the territorially defined
boundaries of the basin as well as outside the boundaries of the dist-
rict.

216/ N. Mex. Stats. 1953, Ann., seca. 75-11-1 to 75-11-12.
517/ E1 Peso & R. 1. R. v. District Court, 36 N. Mex. 94, 99-100, 8 Pec. (2d) 1064 (1931, 1932).
18/ Pecos Vlley Artesin Conservenc Dist. v. Peters, 50 N. Mex. 165, 182, 189, 190, 173 Pac.
(2d) 490 1945, 1946).









- 56 -


On the second appeal in the foregoing case, the supreme court
followed the rule that in contests over water rights, prior appropri-
ators who complain of injury must prove that their use of water is
reasonable and beneficial, and that the new appropriator then must
show the surplus from which water may be taken without injuring prior
rights. 219/

In a proceeding by the State of New Mexico to enjoin the mis-
application of ground waters, the supreme court sustained the trial
court in enjoining the defendant from misapplying the waters. 220/

The constitutionality of the 1931 statute was sustained in 1950,
on all points considered in STATE ex rel. BLISS v. DORITY. 221/ This
has been discussed above.


Appropriability of Shallow Ground Waters

The application of the 1931 ground-water statute to shallow
ground-water areas had been open to some question prior to the
decision in STATE ex rel. BLISS v. DORITY, but was decided in that
case with respect to the overlying valley fill in the Roswell Artesian
Basin. 222/ The waters in litigation consisted of an artesian basin
lying between confining strata, the waters of which were commonly re-
ferred to as artesian water; and an underground reservoir or lake in
the valley fill overlying such artesian basin, the waters of which
were commonly referred to as shallow ground water. About 45,000 acres
were irrigated from shallow ground water and 55,000 acres from ar-
tesian water in the area. The lands of the defendants were located
within the external boundaries of both ground-water sources. Defend-
ants contended that the statute had no application to shallow ground
water. The court stated (at 55 N. Mex. 30-31) that:

It is said that the valley fill is not a res-
ervoir or lake, and therefore is not within Sec. 1
of the Act; that "no one ever heard of a lake or
reservoir with a sloping water table." One defini-
tion of a reservoir is "A place where water is col-
lected and kept for use when wanted." (Webster).
Whether the water table "slopes" we need not deter-
mine. We will assume that the law of gravitation
will take care of that. We know that'the valley
fill is a reservoir from which billions of gallons
of water are pumped to irrigate annually 45,000
acres of land, so it must be collected there; and
the legislature aptly called such containers of
water, reservoirs or lakes. *

219/ Pecos Valley Artesian Conservancy Dist. v. Peters, 52 N. Mex. 148, 152, 154, 159, 193 Pac.
(2d) 4187T948). The court stated that the district must have proved first the quantity of water legally
appropriated by its water users and the quantity within their appropriattons now necessary for their
reasonable use; and that having introduced substantial evidence to prove those facts, the burden of proof
then would shift to the well owner to establish that there was surplus water which he might beneficially
use. No attempt had been made by the district to make such proof.
220/ State ex rel. Bliss v. Casarez, 52 N. Mex. 406, 407-409, 200 Pac. (2d) 369 (1948).
221/ State ex rel. Bliss v. Dority 55 N. Hex. 12, 225 Psc. (2d) 1007 (1950).
-22/ 55 N. Mex. at 15, 30-31.




1 *


57 -




The court included the waters of the valley fill, as well as the
artesian basin, in its assumption that many thousands of acres of
land to be irrigated therefrom had been sold to purchasers who relied
on the decision in YEO v. TWEEDY, and in holding that that decision
had become a rule of property that now would not be disturbed.


REGULATION OF WELL DRILLING



Sections providing for the regulation of the drilling of wells
for water from an underground stream, channel, artesian basin, reser-
voir, or lake, the boundaries of which had been determined and pro-
claimed by the State Engineer, were added to the ground-water statute in
1949. 223/ The statute makes it unlawful to drill or to begin the
drilling of such a well without a license issued by the State Engineer.
The act contains prohibitions against the permitting by a landowner of
the drilling of such a well on his land except by a licensed driller;
against the production of water through a well drilled in violation of
the act; and against the application of water from such underground
source to land having no valid water right for the purpose to which
the water is applied. The State Engineer is authorized to apply for
and obtain injunction to restrain such unlawful acts.



REGULATION OF ARTESIAN WELLS


Present Statutes

Enforcement

All artesian waters that have been declared to be public waters
are placed under the supervision and control of the State Engineer;
but where artesian conservancy districts have been organized, such
districts have concurrent power and authority with the State Engineer
to enforce such regulation so far as the waters to be conserved and
controlled by such districts are affected. 224/ It is specifically
provided that the regulatory act is not to be construed to affect the
provisions of the statute relating to 'the appropriation of ground
waters. 225/ An artesian well for the purpose of the act is defined
as "an artificial well which derives its water supply from any arte-
sian stratum or basin." Waste is defined for the purposes of the
act. 226/

223/ H. Mex. Laws 1949, ch. 178; Stats. 1953, Ann., sees. 75-11-13 to 75-11-18.
2 / N. aex. State. 1953, Ann., sees. 75-12-1 to 75-12-12.
25/ N. Max. State. 1953, Ann., secs. 75-11-1 to 75-11-12.
226/ N. Mex. Stats. 1953, Ann., sec. 75-12-6. Waste is the causing or permitting of any artesian
water to reach any pervious stratum above the artesian strata before coming to the surface, or causing or
permitting any artesian well to discharge unnecessarily upon the surface, unless the waters are to be
placed to beneficial use through a constructed irrigation system. The use of such water for ornamental
ponds or fountains is exempted.


i









- 58 -


Artesian Conservancy Districts

A statute provides for the organization of artesian conservancy
districts for the purpose of conserving the waters in artesian basins,
the boundaries of which have been scientifically determined by investi-
gations, and where such waters have been beneficially appropriated. 227/
A district may include all lands overlying any such artesian basin
and any lands outside the boundaries of the basin upon which waters
therefrom are being used under appropriations; and two or more closely
related artesian basins or reservoirs may be included in the same
district.

An artesian conservancy district is authorized to maintain a
suit to enjoin the use of water taken from an artesian well drilled
on land outside the boundaries of the district, but alleged to be
supplied by the artesian basin underlying the lands within the bound-
aries of the district, to the detriment of the water users of the
district. 228/ In the maintenance of such a suit, the district must
first prove the quantity of water legally appropriated by its water
users and now necessary for their reasonable use. 229/ If that is
done, the defendant has the burden of proving that there is surplus
water which he may beneficially use.


Exercise of Police Power

A statute enacted in 1909 230/ (superseded by the present act)
provided for the repair, by the well supervisor, of artesian wells
which were wasting water, the cost of repair to become a lien on the
land. The validity of this act was sustained by the supreme court
as a valid exercise of the police power of the State, not violative
of either the Federal or the State constitution. 231/ The ownership
of the water was not in issue in the case, or discussed by the supreme
court. The detriment to the public of wasting water and contributing
to the waterlogging of lands was the justification for the legislation
regulating artesian wells.

227/ N. Max. Stats. 1953, Ann., secs. 75-13-1 to 75-13-24.
128/ Pecos Valley Artesian Conservancy Dist. v. Peters, 50 N. Mex. 165, 168, 190, 173 Pac. (2d) 490
(1945, 194-).
229/ Pecos Valley Artesian Conservancy Dist. v. Peter;, 52 N. Mex. 148, 154, 193 Pac. (2d) 418 (1948).
253/ N. ex. Laws 1909, p. 177.
231/ Eccles v. Ditto, 23 N. Mex. 235, 240-249, 167 Pac. 726 (1917). The court held in Eccles v.
Will, 23 N. MXez. 3, 6256- 6, 170 Pac. 748 (1918), that a lien for the repair of a well did not take pre-
edence over a prior recorded mortgage, the statute being silent on the matter.




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