2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-23 - Water appurtenant to land; change of place of use.

All water used in this state for irrigation purposes, except as otherwise provided in this article, shall be considered appurtenant to the land upon which it is used, and the right to use it upon the 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 the right may be severed from the land, simultaneously transferred and become appurtenant to other land, or may be transferred for other purposes, without losing priority of right theretofore established, if such changes can be made without detriment to existing water rights and are not contrary to conservation of water within the state and not detrimental to the public welfare of the state, on the approval of an application of the owner by the state engineer. Publication of notice of application, opportunity for the filing of objections or protests and a hearing on the application shall be provided as required by Sections 72-5-4 and 72-5-5 NMSA 1978.
History:
Laws 1907, ch. 49, § 44; Code 1915, § 5703; C.S. 1929, § 151-156; Laws 1941, ch. 126, § 17; 1941 Comp., § 77-522; 1953 Comp., § 75-5-22; Laws 1985, ch. 201, § 5.
ANNOTATIONS
Compiler's notes.
— The 1915 Code compilers substituted "this article" for "this act," presumably thereby extending the reference to include all the provisions of Code 1915, ch. 114, art. I, not solely those derived from Laws 1907, ch. 49. The provisions of said art. I are 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 appropriation of natural waters,
see
72-1-1 NMSA 1978.
For publication of legal notice,
see
Chapter 14, Article 11 NMSA 1978.
For state engineer,
see
72-2-1 NMSA 1978.
The 1985 amendment
substituted "right to use it upon the land" for "right to use the same upon said land" near the beginning, "part of the right may be severed from the land, simultaneously transferred" for "part of said right may be severed from said land, and simultaneously transferred" near the middle, inserted "water" preceding, and "and are not contrary to conservation of water within the state and not detrimental to the public welfare of the state" following, "rights" near the end of the first sentence, deleted the former second sentence which read, "Before the approval of such application, the applicant must give notice thereof by publication, in the form required by the state engineer, once a week for three consecutive weeks in a newspaper of general circulation in the stream system in which the tract or tracts of land may be situated", and added the present second sentence.
Transfer from surface to groundwater rights.
— As long as the net depletion from groundwater pumping is offset by retirement of surface rights for the system as a whole, there is no new appropriation of basin water and an application to change the diversion point and place and purpose of use from surface water rights to groundwater rights within the same basin is not a new appropriation.
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
In a fully-appropriated basin, new depletions do not automatically constitute impairment as a matter of law.
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
The state engineer must consider all declared water rights at the move-to location in the impairment analysis or extinguish non-party declarants' water rights.
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
Tempelton doctrine source requirements
do not apply to statutory transfers. Templeton supplementary wells service the original parcel, while statutory transfers may apply to new uses for the water over significant distances. 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.
Section was recognition of law
relative to waters used for irrigation, established by general custom; a water right could not be owned in common with other water users.
Snow v. Abalos
, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044.
Right severable and transferable.
— This section and Section 72-5-24 NMSA 1978 expressly recognize that right to use water upon certain lands may be severed from such lands and become appurtenant to other lands, or may be transferred for other purposes and other uses.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Considerations in transfer applications.
— General public interest is not a proper consideration in transfer applications. Once there has been proper application to the state engineer, detriment to existing water rights is the only basis on which an application can lawfully be denied.
Ensenada Land & Water Ass'n v. Sleeper
, 1988-NMCA-030, 107 N.M. 494, 760 P.2d 787, cert. quashed, 107 N.M. 413, 759 P.2d 200.
Severance.
— Section 72-5-23 NMSA 1978 requires consent of landowner and approval of state engineer to sever water rights.
Turner v. Bassett
, 2005-NMSC-009, 137 N.M. 381, 111 P.3d 701.
Findings required for transfer.
— A transfer of water rights only requires the state engineer to make a finding of the three factors in this section.
Montgomery v. N.M. State Eng'r
, 2005-NMCA-071, 137 N.M. 659, 114 P.3d 339,
aff'd in part
,
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
New depletion of surface water at move-to site in a fully appropriated stream system is not per se impairment.
Montgomery v. N.M. State Eng'r
, 2005-NMCA-071, 137 N.M. 659, 114 P.3d 339,
aff'd in part
,
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
Right to particular silt content.
— An owner of surface water rights does not have a right to receive a particular silt content that has existed historically.
Ensenada Land & Water Ass'n v. Sleeper
, 1988-NMCA-030, 107 N.M. 494, 760 P.2d 787, cert. quashed, 107 N.M. 413, 759 P.2d 200.
Water rights transferred or moved under a permit
become appurtenant only when final proofs and surveys are filed.
Sun Vineyards, Inc. v. Luna County Wine Dev. Corp.
, 1988-NMSC-075, 107 N.M. 524, 760 P.2d 1290.
Consent of remaindermen.
— Election in writing of remaindermen to permit removal of water right was tantamount to consent of fee simple owners to severance of water right from land, within meaning of this section.
Lowe v. Adams
, 1966-NMSC-223, 77 N.M. 111, 419 P.2d 764.
Adjudication decree.
— In determination of petition to change purpose and point of diversion of certain adjudicated water rights, state engineer was required to accept court's decree as to nature and extent of rights sought to be transferred; and petitioner was not required to offer proof of nature and extent of rights sought to be transferred other than as specified by adjudication decree.
W.S. Ranch Co. v. Kaiser Steel Corp.
, 1968-NMSC-041, 79 N.M. 65, 439 P.2d 714.
Since water rights had been adjudicated by prior decree, purchaser of certain water rights who petitioned state engineer to change point of diversion was only entitled to amount of water that was available at former point of diversion.
W.S. Ranch Co. v. Kaiser Steel Corp.
, 1968-NMSC-041, 79 N.M. 65, 439 P.2d 714.
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.
Law reviews.
— For student article, "Herrington v. State: Straightening Out the Tangled Doctrines of Surface Water to Groundwater Transfers in New Mexico," see 48 Nat. Resources J. 697 (2008).
For article, "Hip Deep: A Survey of State Instream Flow Law from the Rocky Mountains to the Pacific Ocean," see 43 Nat. Resources J. 1151 (2003).
For comment on
Mathers v. Texaco, Inc.,
77 N.M. 239, 421 P.2d 771 (1966), see 7 Nat. Resources J. 433 (1967).
For note, "Common Law Remedies for Salt Pollution," see 15 Nat. Resources J. 353 (1975).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For article, "The Political Economy of Institutional Change: A Distribution Criterion for Acceptance of Groundwater Rules," see 25 Nat. Resources J. 867 (1985).
For article, "The Law of Prior Appropriation: Possible Lessons for Hawaii," see 25 Nat. Resources J. 911 (1985).
For article, "Adapting to the Changing Demand for Water Use Through Continued Refinement of the Prior Appropriation Doctrine: An Alternative Approach to Wholesale Reallocation," see 29 Nat. Resources J. 435 (1989).
For article, "Transfer of Water Rights," see 29 Nat. Resources J. 457 (1989).
For note, "The Milagro Beanfield War Revisited in
Ensenada Land & Water Ass'n v. Sleeper:
Public Welfare Defies Transfer of Water Rights," see 29 Nat. Resources J. 861 (1989).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters §§ 233, 243, 244.
93 C.J.S. Waters § 188.