2018 New Mexico Statutes
Chapter 72 - Water Law
Article 4 - Surveys, Investigations and Adjudication of Rights
Section 72-4-15 - Determination of water rights; copies of hydrographic surveys; suits to determine right of appropriation.]

Upon the completion of the hydrographic survey of any stream system, the state engineer shall deliver a copy of so much thereof as may be necessary for the determination of all rights to the use of the waters of such system together with all other data in his possession necessary for such determination, to the attorney general of the state who shall, at the request of the state engineer, enter suit on behalf of the state for the determination of all rights to the use of such water, in order that the amount of unappropriated water subject to disposition by the state under the terms of this chapter may become known, and shall diligently prosecute the same to a final adjudication: provided, that if suit for the adjudication of such rights shall have been begun by private parties, the attorney general shall not be required to bring suit: provided, however, that the attorney general shall intervene in any suit for the adjudication of rights to the use of water, on behalf of the state, if notified by the state engineer that in his opinion the public interest requires such action.

History: Laws 1907, ch. 49, § 20; Code 1915, § 5673; C.S. 1929, § 151-120; 1941 Comp., § 77-404; 1953 Comp., § 75-4-4.

Compiler's notes. — The term "this chapter" was substituted for "this act" in the 1915 Code. "This act" referred 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. The term "this chapter" had reference to the 1915 Code, ch. 114 (§§ 5654 to 5814), which sections are now compiled in articles 1 to 5 and 7 to 11 of chapter 72 and articles 2, 3 and 4 of chapter 73 NMSA 1978.

Cross references. — For duty of state engineer to make hydrographic surveys of state stream systems, see 72-4-13 NMSA 1978.

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

Purpose. — It was evident design of legislature, by this act, to have adjudicated and settled by judicial decree, all water rights in state and to have determined amount of water to which each water user was entitled, so that distribution of water could be facilitated and unappropriated water be determined, in order that it might be utilized. Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044.

Parties. — General stream adjudications may be initiated by private claimants, but all water users whose rights may be affected must be joined. Rosette, Inc. v. United States Dep't of the Interior, 2007-NMCA-136, 142 N.M. 717, 169 P.3d 704, cert. denied.

Use of water regulated. — Right to use of water, both as to volume and periods of annual use, is regulated either by permit of state engineer or decrees of courts. Harkey v. Smith, 1926-NMSC-011, 31 N.M. 521, 247 P. 550.

Only courts have power and authority to adjudicate water rights. State ex rel. Reynolds v. Lewis, 1973-NMSC-035, 84 N.M. 768, 508 P.2d 577.

Hearing required. — Nothing less than hearing where evidence could be offered and received to establish claims concerning conflicting priority dates of rights found to exist would comply with requirements of due process. State ex rel. Reynolds v. Allman, 1967-NMSC-078, 78 N.M. 1, 427 P.2d 886.

Denial of due process. — Since former action against owners of water rights had been consolidated with later action against canal company, and water rights of owners in prior case carried priority date as of commencement of well while well rights adjudicated to canal company carried priority date from formation of ditch, denying right to owners, at hearing, to establish applicability of doctrine of relation back in showing priority date to be that of original appropriation of water from same source constituted denial of due process. State ex rel. Reynolds v. Allman, 1967-NMSC-078, 78 N.M. 1, 427 P.2d 886.

Requirements for entrance of decree. — No decree as required by Section 72-4-19 NMSA 1978, declaring priority, amount, purpose, periods and place of use, and specific tracts of land to which water right is appurtenant, together with other necessary conditions, can be entered until hydrographic surveys have been completed and all parties impleaded, at which time further hearing to determine relative rights of parties, toward each other, will be held. State ex rel. Reynolds v. Sharp, 1959-NMSC-080, 66 N.M. 192, 344 P.2d 943.

Step by step procedure encompassing entire basin and all matters required to be decreed by Section 72-4-19 NMSA 1978 is substantial compliance with requirements of adjudication statutes, and reasonable and practical way to accomplish desired purposes. State ex rel. Reynolds v. Sharp, 1959-NMSC-080, 66 N.M. 192, 344 P.2d 943.

Priority of right to underground water. — 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.

Use of water limited. — The United States, in setting the Gila national forest aside from other public lands, reserved the use of such water as may be necessary for the purposes for which the land was withdrawn, but these purposes did not include recreation, aesthetics, wildlife preservation, or cattle grazing. United States v. N.M., 438 U.S. 696, 98 S. Ct. 3012, 57 L. Ed. 2d 1052 (1978).

Jurisdiction to adjudicate water rights. — Statutory suit to adjudicate water rights of stream system is all embracing, and includes claimed rights of appropriators from artesian basin within system; and jurisdiction of district court, in suit pending, excluded jurisdiction of another court as to claimants not impleaded, and as to appropriators from artesian basin. Unknown claimants could be impleaded. El Paso & R.I. Ry. v. District Ct., 1931-NMSC-055, 36 N.M. 94, 8 P.2d 1064.

Damage suit in district court. — Suit for damages for obstruction of flow and appropriation of waters of creek was properly brought in district court, although rights to use of waters of creek had not been adjudicated under this act, as plaintiff had had use of the water for more than twenty years before this act was enacted. N.M. Prods. Co. v. N.M. Power Co., 1937-NMSC-048, 42 N.M. 311, 77 P.2d 634.

Law reviews. — For comment, "Indian Pueblo Water Rights Not Subject to State Law Prior Appropriation," see 17 Nat. Resources J. 341 (1977).

For note, "Reserved Water Rights and Our National Forests," see 19 Nat. Resources J. 433 (1979).

For article, "The Administration of the Middle Rio Grande Basin: 1956-2002," see 42 Nat. Resources J. 939 (2002).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 258.

93 C.J.S. Waters §§ 194 to 205.