2023 New Mexico Statutes › Chapter 72 - Water Law › Article 1 - Water Rights in General › Section 72-1-5 - Eminent domain; entry on property.

The United States, the state or any person, firm, association or corporation may exercise the right of eminent domain, to take and acquire property [and] right-of-way [rights-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; any such right-of-way for canal, ditch, pipeline or other means for the conveyance of water shall in all cases be so located as to do the least damage to private or public property consistent with proper use and economical construction. Such property and right-of-way shall be acquired in the manner provided by the Eminent Domain Code [42A-1-1 to 42A-1-33 NMSA 1978]. Subject to the provisions of Sections 42A-1-8 through 42A-1-12 NMSA 1978, the engineers and surveyors of the United States, the state and of any person, firm or corporation shall have the right to enter upon the lands and waters of the state and of private persons and of private and public corporations, for the purpose of making hydrographic surveys and examinations and surveys necessary for selecting and locating suitable sites and routes for reservoirs, canals, pipelines and other waterworks.
History:
Laws 1907, ch. 49, § 3; Code 1915, § 5656; C.S. 1929, § 151-103; 1941 Comp., § 77-103; 1953 Comp., § 75-1-3; Laws 1981, ch. 125, § 54.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For constitutional provision relating to eminent domain,
see
N.M. Const., art. II, § 20.
For eminent domain procedure,
see
Chapter 42A, Article 1 NMSA 1978.
For appraisal of land taken upon reconstruction of ditch,
see
73-2-57 to 73-2-62 NMSA 1978.
Constitutionality.
— Beneficial use of water is a public use, and condemnation of a right-of-way to make such beneficial use possible does not violate N.M. Const., art. II, § 20.
Kaiser Steel Corp. v. W.S. Ranch Co.
, 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Water is placed in unique category in state constitution.
Kaiser Steel Corp. v. W.S. Ranch Co.
, 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Question of "public interest" is judicial one,
presumption being that a use is public if the legislature has declared it to be such.
Kaiser Steel Corp. v. W.S. Ranch Co.
, 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Legislature in this section has impliedly declared the conveying of water for beneficial uses to be a "public use."
Kaiser Steel Corp. v. W.S. Ranch Co.
, 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Scope of right.
— Terms of this section and Section 72-5-15 NMSA 1978 are broad, and include every person having a water right, and there is nothing in terms of either section restricting class of persons entitled to enjoy right of condemnation to those persons who are seeking either to initiate a right, or whose rights are regulated by terms of the act.
Pueblo of Isleta v. Tondre
, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.
A right-of-way over private property for the use of a water right is limited to "storage or conveyance" of the water but does not include the right to move cattle to the water and incidentally have them graze along the way.
Walker v. United States
, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Private property cannot be taken for ditch without payment.
— Fact that ditch commissioners are given right to alter, change location of, enlarge, extend or reconstruct ditch under conditions set forth in Section 73-2-56 NMSA 1978 cannot be construed as giving them authority to take private property for such uses without just compensation, contrary to N.M. Const., art. II, § 20, and without regard to statutory procedures.
Marjon v. Quintana
, 1971-NMSC-045, 82 N.M. 496, 484 P.2d 338.
Recovery of damages was property owner's exclusive remedy
where corporation appropriated private property to provide right-of-way for beneficial use of water prior to condemnation proceeding.
Kaiser Steel Corp. v. W.S. Ranch Co.
, 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Irrigation right-of-way.
— Individual with only a permissive license to use an old highway borrow ditch had no right to have irrigation ditch constructed and relocated at public expense on private lands of another upon the widening of the road; if he wanted an irrigation right-of-way he could seek acquisition thereof by condemnation pursuant to this section and 73-2-1 NMSA 1978 et seq.
Board of Cnty. Comm'rs v. Sykes
, 1964-NMSC-183, 74 N.M. 435, 394 P.2d 278.
Dam and reservoir.
— Interstate stream commission was entitled to institute proceedings in name of state for condemnation of land for erecting a dam and reservoir to impound and conserve water.
State ex rel. Red River Valley Co. v. Dist. Ct.
, 1935-NMSC-085, 39 N.M. 523, 51 P.2d 239.
Municipality may not condemn operating acequia to build public street
in its place, since ditch is already serving public purpose.
City of Albuquerque v. Garcia
, 1913-NMSC-006, 17 N.M. 445, 130 P. 118;
City of Raton v. Pollard
, 270 F. 5 (8th Cir. 1920), distinguished.
Court of appeals erred in refusing to stay federal court
action in diversity suit alleging that individual who claimed authority under this section to use water rights granted by state was guilty of trespass, until state law issues could be settled in a declaratory judgment suit then pending in state court.
Kaiser Steel Corp. v. W.S. Ranch Co.
, 391 U.S. 593, 88 S. Ct. 1753, 20 L. Ed. 2d 835 (1968).
Appropriation of unused waters.
— Under N.M. Const. and this section, company operating ditch or canal for irrigation purposes under Laws 1887, ch. 12 (Section 62-2-1 NMSA 1978 et seq.), cannot prevent another from exercising right of eminent domain to enlarge the existing structure so that he may have beneficial use of waters not appropriated by prior claimant. 1915 Op. Att'y Gen. No. 15-1508.
Community ditches.
— Since community ditches are political subdivisions of the state under the power of eminent domain they may condemn land for the construction of ditches. 1969 Op. Att'y Gen. No. 69-96.
Section does not specifically authorize condemnation of public property.
1969 Op. Att'y Gen. No. 69-96.
Specific statutes on condemnation of ditch control
over more general condemnation statute for water facilities found in this section. 1969 Op. Att'y Gen. No. 69-96.
Private property cannot be taken for ditch without payment
of just compensation. 1969 Op. Att'y Gen. No. 69-96.
Inverse condemnation.
— If ditch commissioners take land without initiating condemnation proceedings, landowner may institute his own suit for inverse condemnation and receive just compensation for the taking. 1969 Op. Att'y Gen. No. 69-96.
Removal of ditch to widen highway.
— Where a privately owned irrigation ditch or a community acequia or ditch interferes with widening of public highway, there being no other means of providing safe and convenient travel on the right-of-way, state highway commission [state transportation commission] could require removal of ditch or acequia under eminent domain, as rule that property devoted to one public use cannot be condemned for another public use has no application against the sovereign. 1952 Op. Att'y Gen. No. 52-5624.
Law reviews.
— For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 26 Am. Jur. 2d Eminent Domain § 202 et seq.
Private owner, exercise of eminent domain for purpose of irrigating land of, 9 A.L.R. 583, 27 A.L.R. 519.
Pollution of water of well as result of flooding of property under right of eminent domain, 106 A.L.R. 989.
Obstruction or diversion of, or other interference with, flow of surface water as taking or damaging property within constitutional provision against taking or damaging without compensation, 128 A.L.R. 1195.
Highway officers' personal liability for interference with water rights, in construction or maintenance of highway, 27 A.L.R.3d 794.
29A C.J.S. Eminent Domain § 38.