2018 New Mexico Statutes
Chapter 72 - Water Law
Article 4 - Surveys, Investigations and Adjudication of Rights
Section 72-4-1 - County drains; duty of state engineer; preliminary surveys; eminent domain; surveys on private property; damage.

When requested by any of the boards of county commissioners of any of the counties of the state, it is the duty of the state engineer, either himself or by an authorized assistant engineer, to cooperate with the county commissioners in the engineering work required to lay out, establish and construct any drain to be used by any county or counties or portions of the same, for the purpose of diverting flood waters, lakes, watercourses, and in general to aid and assist the counties of this state or their authorized officers in making preliminary surveys and establishing systems of drainage or any other engineering work; and whenever the board of county commissioners of any county shall by order determine to lay out, establish and construct any drain to be used by any county or counties or portions of the same, for the purpose of diverting flood waters, lakes or watercourses or to establish systems of drainage, which shall require that private property be taken or damaged, the county may exercise the right of eminent domain to take and acquire real or personal property, right-of-way and privilege within or without its corporate limits, necessary for its corporate purposes, in the manner provided by the Eminent Domain Code [42A-1-1 through 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 state and of the county shall have the right to enter upon the property 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 any drain or drainage system.

History: Laws 1907, ch. 49, § 18; 1909, ch. 129, § 1; Code 1915, § 5672; C.S. 1929, § 151-119; 1941 Comp., § 77-401; 1953 Comp., § 75-4-1; Laws 1981, ch. 125, § 55.

Cross references. — For exercise of eminent domain to obtain beneficial use of water, see 72-1-5 NMSA 1978.

For the state engineer, see 72-2-1 NMSA 1978.

For engineer's right to enter private property, see 72-8-1 NMSA 1978.

For constitutional provision relating to eminent domain, see N.M. Const., art. II, § 20.

For injuries by county surveyor, see 4-42-2 NMSA 1978.

For penalty for interference with county surveyor, see 4-42-6 NMSA 1978.

For county flood control, see Chapter 4, Article 50 NMSA 1978.

For eminent domain procedure, see Chapter 42A, Article 1 NMSA 1978.

For surveyor's right to enter private and public lands, and responsibility incident thereto, see 61-23-30 NMSA 1978.

For drainage districts, see Chapter 73, Article 6 NMSA 1978.

Effect of federal court decree. — Where bill and decree in suit brought in federal court indicate that suit was brought to adjudicate rights (if any) of all parties thereto to use of water flowing in stream system, federal court decree was res judicata as between parties to federal suit and their privies, despite fact that stipulation between certain parties and plaintiff's predecessor in title had not been signed by defendants or their predecessors. Bounds v. Carner, 1949-NMSC-008, 53 N.M. 234, 205 P.2d 216, distinguished, Cartwright v. Pub. Serv. Co., 1958-NMSC-134, 66 N.M. 64, 343 P.2d 654, overruled on other grounds, State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Defendant public service company and intervener town of Las Vegas were not barred from pleading as a defense the doctrine of Pueblo Rights, in suit by Galinas River water users seeking damages and injunction against company's use of water, and apportionment thereof, by alleged res judicata effect of previous decree in federal court, where that court had specifically provided that its decree would affect only the property and rights of those specifically named in the decree. Cartwright v. Pub. Serv. Co., 1958-NMSC-134, 66 N.M. 64, 343 P.2d 654, overruled on other grounds, State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts § 7.

Right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land, 95 A.L.R.3d 752.

94 C.J.S. Waters § 234.