2023 New Mexico Statutes › Chapter 72 - Water Law › Article 1 - Water Rights in General › Section 72-1-2 - [Water rights; appurtenant to land; priorities.]

Beneficial use shall be the basis, the measure and the limit of the right to the use of water, and all waters appropriated for irrigation purposes, except as otherwise provided by written contract between the owner of the land and the owner of any ditch, reservoir or other works for the storage or conveyance of water, shall be appurtenant to specified lands owned by the person, firm or corporation having the right to use the water, so long as the water can be beneficially used thereon, or until the severance of such right from the land in the manner hereinafter provided in this article. Priority in time shall give the better right. In all cases of claims to the use of water initiated prior to March 19, 1907, the right shall relate back to the initiation of the claim, upon the diligent prosecution to completion of the necessary surveys and construction for the application of the water to a beneficial use. All claims to the use of water initiated thereafter shall relate back to the date of the receipt of an application therefor in the office of the territorial or state engineer, subject to compliance with the provisions of this article, and the rules and regulations established thereunder.
History:
Laws 1907, ch. 49, § 2; Code 1915, § 5655; C.S. 1929, § 151-102; 1941 Comp., § 77-102; 1953 Comp., § 75-1-2.
ANNOTATIONS
Compiler's notes.
— The term "this article," as used by the 1915 Code compilers, presumably refers to Code 1915, ch. 114, art. I, the provisions of which are presently compiled as 19-7-26, 72-1-1, 72-1-2, 72-1-5, 72-2-1 to 72-2-7, 72-2-9, 72-2-10, 72-3-1 to 72-3-5, 72-4-1, 72-4-13, 72-4-15, 72-4-17 to 72-4-19, 72-5-1 to 72-5-4, 72-5-6 to 72-5-24, 72-5-26 to 72-5-31, 72-5-33, 72-7-1 to 72-7-3, 72-8-1 to 72-8-6 and 72-9-1 to 72-9-3 NMSA 1978.
Cross references.
— For severing of water rights from land,
see
72-5-23 NMSA 1978.
For beneficial use of water in streams,
see
N.M. Const., art. XVI, §§ 1 to 3.
Deed silent as to water rights.
— Where grantor divided a parcel of land into fifteen adjoining lots and conveyed a lot to each of grantor's children; each deed granted the grantee the right to water from a well located on one of the lots; defendant acquired title to one of the lots from an heir of grantor; the deed to defendant contained no language regarding water rights or the well; and there was no evidence that the land acquired by defendant was used for irrigation, defendant did not have a right to use water from the well because the deed to defendant did not expressly grant water rights.
Roybal v. Lujan de la Fuente
, 2009-NMCA-114, 147 N.M. 193, 218 P.3d 879.
Water right developed under mining lease.
— Where a mining lease was silent on the subject of the ownership of water rights developed under the lease and on the subject of whether the lessee was the agent of the lessor for purposes of developing water rights, water rights developed by the lessee were owned by the lessee.
Hydro Res. Corp. v. Gray
, 2007-NMSC-061, 143 N.M. 142, 173 P.3d 749.
Water rights are separate and distinct from the ownership of land
and, except for irrigation water rights, are not appurtenant to land.
Hydro Res. Corp. v. Gray
, 2007-NMSC-061, 143 N.M. 142, 173 P.3d 749.
Property rights incident to water rights.
— New Mexico does not recognize a limited livestock forage right implicit in a vested water right or a limited livestock forage right implicit in a right-of-way for the maintenance and enjoyment of a vested water right.
Walker v. United States
, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Effect of state engineer's denial of protest.
— Service of decision denying protest on attorney rather than on protestant, where protestant's well was mentioned in application to change use of existing rights, did not adjudicate protestant's rights to the well.
Garbagni v. Metro. Inv., Inc.
, 1990-NMCA-070, 110 N.M. 436, 796 P.2d 1132, cert. denied, 110 N.M. 330, 795 P.2d 1022.
Section incorporated doctrine of relation into statutory law
affecting surface waters.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Doctrine of relation.
— The doctrine of relation, as it applies to claims to water under the western concept of prior appropriation embodies two features: (1) embarking in good faith on a project to appropriate water; and (2) consummating the project without unnecessary delay by exercising reasonable diligence in constructing facilities, diverting water, and completing the appropriation by applying the water to beneficial use. Meeting these requirements, a would-be appropriator attains a vested right to use the water with a priority date measured as of the time the project commenced.
State ex rel. Office of State Eng'r v. Gray
, 2021-NMCA-066.
Doctrine of relation applied.
— In a case that arose as an inter se proceeding within the Lower Rio Grande general stream adjudication initiated by the state of New Mexico in 1996, and where, in 2014, cross-appellants asked the adjudication court to establish an expedited inter se proceeding to address water rights claimed by appellants at the copper flat mine (the mine) near Hillsboro, New Mexico, and where appellants, after the expedited inter se proceeding was established, filed their statement of claims asserting that their predecessors in interest had placed 1,019 acre-feet of water to beneficial use before the mine became operational and an additional 1,267 acre-feet of water during the time the mine was in operation and requested entry of an order recognizing a vested interest in approximately 2,300 acre-feet with priority dates starting in 1975 and, alleging that certain appellants intended to recommence operations at the mine as soon as all permit and regulatory requirements were met, asked the adjudication court to declare that they were entitled to a reasonable amount of time to develop an additional 5,200 acre-feet of water rights in accordance with the mining plan created by their predecessors in interest, the adjudication court did not err in refusing to recognize appellants' claimed right under
Mendenhall
, because the facts and circumstances of the case support the adjudication court's legal conclusion that the predecessors' actions extinguished any inchoate water rights under
Mendenhall
, and, after buying their predecessors' interest in water rights, appellants did essentially nothing to put any water to beneficial use. Under the doctrine of relation, it was appellants' obligation to put water to beneficial use within a reasonable time, but the decades-long delay in putting the claimed water to beneficial use extinguished any inchoate water rights appellants may have owned.
State ex rel. Office of State Eng'r v. Gray
, 2021-NMCA-066.
Failure to prove abandonment of vested water rights in inter se proceeding.
— In a case that arose as an inter se proceeding within the Lower Rio Grande general stream adjudication initiated by the state of New Mexico in 1996, and where, in 2014, cross-appellants asked the adjudication court to establish an expedited inter se proceeding to address water rights claimed by appellants at the copper flat mine (the mine) near Hillsboro, New Mexico, and where appellants, after the expedited inter se proceeding was established, filed their statement of claims asserting that their predecessors in interest had placed 1,019 acre-feet of water to beneficial use before the mine became operational and an additional 1,267 acre-feet of water during the time the mine was in operation and requested entry of an order recognizing a vested interest in approximately 2,300 acre-feet with priority dates starting in 1975 and, alleging that certain appellants intended to recommence operations at the mine as soon as all permit and regulatory requirements were met, asked the adjudication court to declare that they were entitled to a reasonable amount of time to develop an additional 5,200 acre-feet of water rights in accordance with the mining plan created by their predecessors in interest, the adjudication court did not err in concluding that appellants did not abandoned their vested rights in the water attributable to the mining project, because the facts of the case support the adjudication court's finding that appellants sought to revive the mine and protect the vested rights they purchased from their predecessors in interest.
State ex rel. Office of State Eng'r v. Gray
, 2021-NMCA-066.
State controls water use
because it does not part with ownership; it only allows a usufructuary right to water.
Jicarilla Apache Tribe v. United States
, 657 F.2d 1126 (10th Cir. 1981).
New Mexico has not recognized inchoate water rights
granted by Mexico or Spain.
State ex rel. Martinez v. City of Las Vegas
, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.
Irrigation water rights.
— Water rights for irrigation remain appurtenant to land until severed.
Turner v. Bassett
, 2005-NMSC-009, 137 N.M. 381, 111 P.3d 701.
Exception to ownership rule.
— This section and 72-5-22 NMSA 1978 evince an intent to create a limited statutory exception to the general rule that water rights and land ownership are distinct property rights. The statutory exception links ownership of the land with water rights, but only if the water is beneficially used on that land for irrigation purposes.
KRM, Inc. v. Caviness
, 1996-NMCA-103, 122 N.M. 389, 925 P.2d 9.
No administrable water right unless determination of acreage to which right appurtenant.
— There cannot exist an administrable water right for 90 acres of a 224-acre tract unless there is first a determination of the acreage to which the right is appurtenant.
State ex rel. Reynolds v. Holguin
, 1980-NMSC-110, 95 N.M. 15, 618 P.2d 359.
"Beneficial use".
— Use of water for domestic purposes, including stock watering, is a "beneficial use" of water.
First State Bank v. McNew
, 1928-NMSC-040, 33 N.M. 414, 269 P. 56,
overruled by
Walker v. United States
, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Attainment of state conservation purposes by the state game commission constitutes a useful or beneficial application of waters of New Mexico.
United States v. Ballard
, 184 F. Supp. 1 (D.N.M. 1960).
No right to receive water for nonbeneficial use.
— No one is entitled to receive water for a use not recognized as beneficial.
Jicarilla Apache Tribe v. United States
, 657 F.2d 1126 (10th Cir. 1981).
Determination of beneficial use is a question of fact.
Jicarilla Apache Tribe v. United States
, 657 F.2d 1126 (10th Cir. 1981).
Maximum utilization is fundamental requisite.
— Because water conservation and preservation is of utmost importance, maximum utilization is a fundamental requisite of "beneficial use."
Jicarilla Apache Tribe v. United States
, 657 F.2d 1126 (10th Cir. 1981).
Excessive diversion not beneficial use.
— No matter how early a person's priority of appropriation may be, he is not entitled to receive more water than is necessary for his actual use. An excessive diversion of water, through waste, cannot be regarded as a diversion to beneficial use.
Jicarilla Apache Tribe v. United States
, 657 F.2d 1126 (10th Cir. 1981).
Capacity of reservoir.
— Private power and water company lost rights to unsold capacity of reservoir, not put to beneficial use because not appurtenant to land, upon tax sale.
San Luis Power & Water Co. v. State
, 1953-NMSC-096, 57 N.M. 734, 263 P.2d 398.
Public land subject to water rights.
— One who makes a filing on unoccupied public land takes it subject to any vested and accrued water right for domestic, mining, agricultural, manufacturing or other purposes, which are recognized by the local laws, customs and decisions of courts.
First State Bank v. McNew
, 1928-NMSC-040, 33 N.M. 414, 269 P. 56,
overruled by
Walker v. United States
, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Water rights transferred or moved under a permit
become appurtenant only when final proofs and surveys are filed.
Sun Vineyards, Inc. v. Luna Cnty. Wine Dev. Corp.
, 1988-NMSC-075, 107 N.M. 524, 760 P.2d 1290.
Transfer of possessor and water rights.
— One holding possessory right to public land for grazing purposes by virtue of an implied license from federal and state laws, and the ownership of sufficient living permanent water for cattle, intending to make a permanent water right incident to the public land, may sell and verbally transfer such water rights with such possessory right in the land.
First State Bank v. McNew
, 1928-NMSC-040, 33 N.M. 414, 269 P. 56,
overruled by
Walker v. United States
, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Water rights not included in "improvements".
— Judicial announcement that purchaser of government public land is entitled to improvements on premises when taking possession does not apply to water rights.
First State Bank v. McNew
, 1928-NMSC-040, 33 N.M. 414, 269 P. 56,
overruled by
Walker v. United States
, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Rights of senior and junior appropriators.
— A downstream senior appropriator is entitled to use water to the extent of the senior appropriator's needs and within the senior appropriator's appropriation if needed. If the downstream appropriator does not need the amount of water authorized for use under the senior appropriator's appropriation, the senior appropriator has no right to have the water reach the senior appropriator's diversion point. In such a situation, upstream junior appropriators may use the water.
Worley v. United States Borax & Chem. Corp.
, 1967-NMSC-129, 78 N.M. 112, 428 P.2d 651.
Priority in underground water rights.
— Landowner who lawfully began developing underground water right and completed it with reasonable diligence acquired a water right with priority date as the initiation of his work even though the lands involved were placed within declared artesian basin before work was finished and water put to beneficial use.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
To establish agricultural water right a man-made diversion was needed;
turning of cattle into natural wash for grazing, or cutting of grass, was insufficient.
State ex rel. Reynolds v. Miranda
, 1972-NMSC-003, 83 N.M. 443, 493 P.2d 409.
Templeton doctrine.
— Core requirements for a successful Templeton supplemental well include a valid surface water right, surface water fed in part by groundwater, junior appropriators intercepting that groundwater by pumping, and a proposed well that taps the same groundwater that was the source of the applicant's original appropriation.
Herrington v. State of N.M. ex rel. Office of the State Eng'r
, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258.
Downstream supplemental well.
— A Templeton supplemental well need not, in all cases, be positioned upstream of a surface point of diversion.
Herrington v. State of N.M. ex rel. Office of the State Eng'r
, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258.
Claim under act.
— Right of one who claims right to use of water for irrigation purposes under this act does not relate back to date earlier than his application.
Farmers Dev. Co. v. Rayado Land & Irrigation Co.
, 1923-NMSC-004, 28 N.M. 357, 213 P. 202.
Claim prior to act.
— Where individual initiated rights under general law and was prosecuting the same with diligence when the 1907 law went into effect, such right was recognized by and excluded from operation of the 1907 act.
Farmers Dev. Co. v. Rayado Land & Irrigation Co.
, 1923-NMSC-004, 28 N.M. 357, 213 P. 202.
Water rights not appurtenant.
— The water rights did not pass to the buyer since the water had never been used for irrigation on the land the seller sold to the buyer, and since there were no allegations that the continued commercial use of the water rights was indispensable to the continued enjoyment of the land sold to the buyer.
KRM, Inc. v. Caviness
, 1996-NMCA-103, 122 N.M. 389, 925 P.2d 9.
Pueblo rights doctrine.
— Defendant water company and intervenor town of Las Vegas had a priority in Gallinas River waters' use, over users who had brought suit, under pueblo rights doctrine.
Cartwright v. Public Serv. Co.
, 1958-NMSC-134, 66 N.M. 64, 343 P.2d 654,
overruled by
State ex rel. Martinez v. City of Las Vegas
, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.
There was no Spanish grant of pueblo rights whereby city of Santa Fe could claim superior rights to use water from Santa Fe creek or river.
N.M. Prods. Co. v. N.M. Power Co.
, 1937-NMSC-048, 42 N.M. 311, 77 P.2d 634,
distinguished Cartwright v. Pub. Serv. Co.
, 1958-NMSC-134, 66 N.M. 64, 343 P.2d 654,
overruled by
State ex rel. Martinez v. City of Las Vegas
, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.
Pueblo water rights doctrine.
— Application of the pueblo water rights doctrine, without consideration of the underlying facts, is insufficient to support a grant of summary judgment.
City of Las Vegas v. Oman
, 1990-NMCA-069, 110 N.M. 425, 796 P.2d 1121, cert. denied, 110 N.M. 282, 795 P.2d 87 (containing discussion of pueblo water rights doctrine and history of Gallinas River water rights).
Owner of water right has duty to comply with law.
State ex rel. Reynolds v. S. Springs Co.
, 1969-NMSC-023, 80 N.M. 144, 452 P.2d 478.
State engineer.
— After original approved application for water, it is within discretion of state engineer to order commencement of work and to grant extensions of time. 1914 Op. Att'y Gen. No. 14-1198.
Beneficial use of water is determined by ultimate use
to which the water is put rather than by distribution of the water among the people. 1974 Op. Att'y Gen. No. 74-23.
Law reviews.
— For article, "The Energy-Water Nexus: Socioeconomic Considerations and Suggested Legal Reforms in the Southwest," see 50 Nat. Resources J. 563 (2010).
For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976).
For article, "The Law of Prior Appropriation: Possible Lessons for Hawaii," see 25 Nat. Resources J. 911 (1985).
For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).
For note, "Contract for Nonbeneficial Use: New Mexico Water Law Is Drowned Out by Contract," see 32 Nat. Resources J. 149 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 230.
Trespass, injunction against repeated or continuing trespasses in cases involving water rights, 60 A.L.R.2d 310.
Liability of person obstructing stream, ravine or similar area by debris or waste, for damages caused by flooding or the like, 29 A.L.R.2d 447.
Construction or maintenance of sewers, water pipes or the like by public authorities in roadway, street or alley as indicating dedication or acceptance thereof, 52 A.L.R.2d 263.
Implied covenant or obligation of lessor to furnish water or water supply for business needs of the lessee, 65 A.L.R.2d 1313.
Way by necessity where property is accessible by navigable waters, 9 A.L.R.3d 600.
Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.
93 C.J.S. Waters §§ 182 to 185.