2019 New Mexico Statutes
Chapter 72 - Water Law
Article 9 - Application of Water Act of 1907
Section 72-9-1 - Vested and existing rights; protection.

Nothing contained in this article shall be construed to impair existing vested rights or the rights and priority of any person, firm, corporation or association, who may have commenced the construction of reservoirs, canals, pipelines or other works, or who have filed affidavits, applications or notices thereof for the purpose of appropriating for beneficial use, any waters as defined in Section 72-1-1 NMSA 1978, in accordance with the laws of the territory of New Mexico, prior to March 19, 1907; provided, however, that all such reservoirs, canals, pipelines or other works and the rights of the owners thereof shall be subject to regulation, adjudication and forfeiture for nonuse as provided in this article.

History: Laws 1907, ch. 49, § 59; Code 1915, § 5717; C.S. 1929, § 151-170; Laws 1941, ch. 126, § 23; 1941 Comp., § 77-801; 1953 Comp., § 75-8-1.

Compiler's notes. — The 1915 Code compilers substituted the term "this article" for "this act." "This act" would refer to Laws 1907, ch. 49, 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, 72-5-3, 72-5-4, 72-5-6 to 72-5-24, 72-5-26 to 72-5-28, 72-5-33, 72-7-1 to 72-7-3, 72-8-1 to 72-8-6, 72-9-1 to 72-9-3 NMSA 1978. "This article" would refer to the same sections and, in addition, to 72-5-2, 72-5-29 to 72-5-31 NMSA 1978.

"Beneficial use". — "Beneficial use" is measure and limit of right to use of waters covered by this act. State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

Applicability. — Class or kinds of work referred to in this section do not include small community ditches or acequias, which involve no danger to life or property, and which are of comparatively insignificant cost. Pueblo of Isleta v. Tondre, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.

Sections compared. — Substance and intent of Section 72-12-4 NMSA 1978 and this section are the same. State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

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.

Section protects rights initiated before enactment of act. City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.

Relation back of prior claim. — If claim to water was actually initiated prior to March 19, 1907, then right to appropriate would relate back to initiation of claim upon diligent prosecution to completion of necessary surveys and construction for application of water to beneficial use. Farmers Dev. Co. v. Rayado Land & Irrigation Co., 1923-NMSC-004, 28 N.M. 357, 213 P. 202, explained, State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

Landowner was entitled to take water for irrigation where water right relied upon was initiated in 1903 by filing of affidavit with county clerk, prior to enactment of the Water Code of 1907. State ex rel. Bliss v. Davis, 1957-NMSC-102, 63 N.M. 322, 319 P.2d 207.

Priority in underground water right. — Landowner who lawfully began developing underground water right and completed it with reasonable diligence acquired water right with priority date as initiation of his work even though 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.

Dismissal of action improper. — Where neither party had filed application to appropriate water prior to plaintiff's bringing of suit to enforce appropriation rights, trial court should not have dismissed action for plaintiff's failure to exhaust administrative remedies; failure to obtain permit would not necessarily affect acquisition of water rights by appropriation. May v. Torres, 1974-NMSC-018, 86 N.M. 62, 519 P.2d 298.

Law reviews. — For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).

For article, "The Impact of Recent Court Decisions Concerning Water and Interstate Commerce on Water Resources of the State of New Mexico," see 24 Nat. Resources J. 689 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 121, 130.

Implied easement or servitude of flowage on severance of tract, 16 A.L.R. 1074.

Rights and privileges in land bordering on navigable water, of grantee or licensee of public, 53 A.L.R. 1191.

Extinguishment of implied or prescriptive easement in respect of water by sale of servient estate of purchaser without notice, 174 A.L.R. 1241.

Remedy of tenant against stranger for wrongfully interfering with his possession, 12 A.L.R.2d 1192.

Loss of private easement by nonuser or adverse possession, 25 A.L.R.2d 1265.

Relative riparian or littoral rights respecting the removal of water from a natural, private, nonnavigable lake, 54 A.L.R.2d 1450.

Easement by prescription in artificial drains, pipes or sewers, 55 A.L.R.2d 1144.

Public right to use share of inland navigable lakes between high and low water mark, 40 A.L.R.3d 776.

Loss of private easement by nonuse, 62 A.L.R.5th 219.

93 C.J.S. Waters § 157.