2018 New Mexico Statutes
Chapter 72 - Water Law
Article 4 - Surveys, Investigations and Adjudication of Rights
Section 72-4-17 - Suits for determination of water rights; parties; hydrographic survey; jurisdiction; unknown claimants.

In any suit for the determination of a right to use the waters of any stream system, all those whose claim to the use of such waters are of record and all other claimants, so far as they can be ascertained, with reasonable diligence, shall be made parties. When any such suit has been filed the court shall, by its order duly entered, direct the state engineer to make or furnish a complete hydrographic survey of such stream system as hereinbefore provided in this article, in order to obtain all data necessary to the determination of the rights involved. Money heretofore spent on hydrographic surveys by the state engineer, but not assessed against the water users on the effective date of this act, shall not be assessed against the water users. The court in which any suit involving the adjudication of water rights may be properly brought shall have exclusive jurisdiction to hear and determine all questions necessary for the adjudication of all water rights within the stream system involved; and may submit any question of fact arising therein to a jury or to one or more referees, at its discretion; and the attorney general may bring suit as provided in Section 72-4-15 NMSA 1978 in any court having jurisdiction over any part of the stream system, which shall likewise have exclusive jurisdiction for such purposes, and all unknown persons who may claim any interest or right to the use of the waters of any such system, and the unknown heirs of any deceased person who made claim of any right or interest to the waters of such stream system in his lifetime, may be made parties in such suit by their names as near as the same can be ascertained, such unknown heirs by the style of unknown heirs of such deceased person and said unknown persons by the name and style of unknown claimants of interest to water in such stream system, and service of process on, and notice of such suit, against such parties may be made as in other cases by publication.

History: Laws 1907, ch. 49, § 21; Code 1915, § 5674; Laws 1917, ch. 31, § 1; 1919, ch. 131, § 3; C.S. 1929, § 151-122; 1941 Comp., § 77-406; 1953 Comp., § 75-4-6; Laws 1965, ch. 124, § 3.

Compiler's notes. — The words "in this article" following "hereinbefore provided" were inserted by the compilers of the 1915 Code, and refer to Code 1915, ch. 114, art. I (§§ 5654 to 5730) 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 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 service of process, including service by publication, see Rule 1-004 NMRA.

For joinder of parties, see Rules 1-019 and 1-020 NMRA.

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

Geothermal resources. — In an action to adjudicate underground water rights, the state district court does not have subject matter jurisdiction to determine whether heat in water is a geothermal resource belonging to the United States or an attribute of a water right controlled by the State of New Mexico. Rosette, Inc. v. U.S. Dep't of the Interior, 2007-NMCA-136, 142 N.M. 717, 169 P.3d 704, cert. denied, 2007-NMCERT-003, 141 N.M. 401, 156 P.3d 39.

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.

This section does not preclude trespass actions between individual water users under certain circumstances. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Simple trespass claim cannot be initiated while general stream adjudication is pending and cannot be used to challenge the results of a general stream adjudication in which the litigants to the trespass action had participated as parties. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Procedure all-embracing. — Procedure for adjudication of water rights provided for in Laws 1907, ch. 49, is all-embracing (including alleged rights of appropriation from artesian basin in stream system). State ex rel. Reynolds v. Sharp, 1959-NMSC-080, 66 N.M. 192, 344 P.2d 943.

The district court properly adjudicated senior water rights first. — Where the Navajo Nation, the United States, and the state of New Mexico reached an agreement settling the Navajo Nation's claims to water in the San Juan river basin, and where federal legislation to approve and implement the settlement agreement was enacted by congress, and where the New Mexico legislature appropriated funds to pay New Mexico's cost of the settlement agreement and authorized the New Mexico state engineer to seek judicial approval regarding the state's share of the water, and where the district court approved the settlement agreement, concluding that the settlement agreement was fair, adequate, reasonable, and consistent with the public interests as well as all applicable laws, the district court did not err in treating appellants' cross-claims as objections to the settlement, because the expedited inter se procedure allows the district court flexibility to adjudicate the senior water rights first, and then address junior claims, which allows the district court to hear all claims against the state engineer so it can be determined how much water the state will have to allocate. State ex rel. State Engineer v. San Juan Agricultural Water Users Ass'n, 2018-NMCA-053, cert. granted.

Notice of inter se proceeding satisfied constitutional due process. — Where the Navajo Nation, the United States, and the state of New Mexico reached an agreement settling the Navajo Nation's claims to water in the San Juan river basin, and where federal legislation to approve and implement the settlement agreement was enacted by congress, and where the New Mexico legislature appropriated funds to pay New Mexico's cost of the settlement agreement and authorized the New Mexico state engineer to seek judicial approval regarding the state's share of the water, and where the district court approved the settlement agreement, concluding that the settlement agreement was fair, adequate, reasonable, and consistent with the public interests as well as all applicable laws, no due process violation occurred because the threshold question in evaluating a due process challenge is whether there is a deprivation of liberty or property, and in this case, appellants could not have suffered any loss of property rights where there was a reasonable basis to conclude that the settlement agreement provided the Navajo Nation with an amount of water less than the amount that was federally authorized. Moreover, the measures taken by the state satisfied the procedural requirements of due process. State ex rel. State Engineer v. San Juan Agricultural Water Users Ass'n, 2018-NMCA-053, cert. granted.

United States may be sued in water rights adjudication matters. — Merely because a water rights adjudication will proceed over time and will join necessary defendants does not mean that the adjudication is not within the scope of the McCarran Amendment, 43 U.S.C. § 666, which allows the United States to be sued in water rights adjudication matters. U.S. ex rel. Acoma & Laguna Indian Pueblos v. Bluewater-Toltec Irrigation Dist., 580 F. Supp. 1434 (D.N.M. 1984), aff'd, 806 F.2d 986 (10th Cir. 1986).

Scope of adjudication. — For purposes of determining the geographical scope of the adjudication under this section, if the adjudication satifies the requirements of the McCarran Amendment, 43 U.S.C. § 666, it will satisfy this section because both statutes are intended to avoid piecemeal litigation by including all claimants to the water source. Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-009, 115 N.M. 229, 849 P.2d 372.

"Stream system". — Although adjudication of only a segment of a main stem of the Rio Grande would not satisfy the requirements of the McCarran Act, 43 U.S.C. § 666, and this section, which require joinder of the United States as a defendant, since separate water was required to be delivered to this same segment of the river under the Rio Grande Compact this segment could be considered a "separate stream system" for purposes of satisfying this section. Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-009, 115 N.M. 229, 849 P.2d 372.

Requirements for 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 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 the 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.

Hearing necessary. — 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 the requirements of due process. State ex rel. Reynolds v. Allman, 1967-NMSC-078, 78 N.M. 1, 427 P.2d 886.

Joinder of users required. — All water users whose rights may be affected must be joined in an adjudication. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

In order to avoid a conflict with this section and to protect the legislative purpose of comprehensive stream adjudication, a trespass claim should not be entertained if it necessarily requires the determination of the rights of other water users who are not joined in the action. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Denial of due process. — Where 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.

Venue. — Venue for a suit governing the adjudication of water rights was properly brought in the county having jurisdiction over the stream system pursuant to Section 38-3-1(D)(1) NMSA 1978 as opposed to the county wherein the state engineer had his offices pursuant to Section 38-3-1(G) NMSA 1978. Because the county district court wherein the stream system was located properly had venue over the water rights adjudication pursuant to Section 38-3-1(D)(1) NMSA 1978, this section required that that court have exclusive jurisdiction over all questions relating to the water rights involved, including those against the state engineer. Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-009, 115 N.M. 229, 849 P.2d 372.

Party was not deprived of relief because of laches where, though knowing of operation of pumping plants by riparian owners it did not know these were being so operated without permits until advised thereof by state engineer within two years of time suit was filed. Carlsbad Irrigation Dist. v. Ford, 1942-NMSC-042, 46 N.M. 335, 128 P.2d 1047.

New action required. — District court was without jurisdiction to entertain petition in statutory proceeding to adjudicate water rights over which it had expressly surrendered further jurisdiction, and under circumstances it must be made subject of new and independent action. Village of Springer v. Springer Ditch Co., 1943-NMSC-053, 47 N.M. 456, 144 P.2d 165.

Res judicata. — Even though all of numerous water right owners were not made parties, decree of federal court which adjudicated water rights was res judicata in view of provision of statute which provided for eventuality that some persons might not be made parties to such suit. Bounds v. Carner, 1949-NMSC-008, 53 N.M. 234, 205 P.2d 216, but see Cartwright v. Public 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.

State engineer has regulatory interest in adjudication litigation. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Trespass actions. — A trespass action by a community ditch association against a ski company did not require that the association seek a full-stream adjudication and join other water users as defendants. La Madera Cmty. Ditch Ass'n v. Sandia Peak Ski Co., 1995-NMCA-025, 119 N.M. 591, 893 P.2d 487.

Pueblo water rights doctrine. — Application of the pueblo water rights doctrine, without consideration of the underlying facts, is insufficient to support a grant of summary judgment. City of Las Vegas v. Oman, 1990-NMCA-069, 110 N.M. 425, 796 P.2d 1121, cert. denied, 110 N.M. 282, 795 P.2d 87.

Water uses by Pueblo Indians are not controlled by state water law or prior appropriation. N.M. v. Aamodt, 537 F.2d 1102 (10th Cir. 1976), cert. denied, N.M. v. U.S., 429 U.S. 1121, 97 S. Ct. 1157, 51 L. Ed. 2d 572 (1977).

State's constitutional disclaimer of all right and title to Indian lands applies only to a proprietary interest in such lands and does not apply to a nonproprietary intent in subjecting the United States to a state action involving a general water right adjudication. Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 426 (1979).

Subject matter jurisdiction of state courts in water rights adjudications. — Subject matter jurisdiction governing general water rights adjudication, including that of federally reserved water rights, involving the joinder of the United States as proper party defendant to represent the interests of the reserved water rights, is allowable in state courts, there being implicit modification of the Enabling Act, § 2, to that extent, as necessary. Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 426 (1979).

United States is the proper party defendant in any general water rights adjudication proceeding, whether brought in federal court or state court, relating to federally created water rights, including those reserved for use by Indian tribes. Indian tribes using the reserved waters are granted the right of intervention in any such adjudication, to be represented by private counsel independent of any possible conflict of interest. Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 426 (1979).

Federal law governs adjudication of federal water rights. — Where the general water rights of the San Juan river and its tributaries in New Mexico sought to be adjudicated include those which are federally owned and established, federal law governs in determining the extent and status of such rights. Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 426 (1979).

Exclusive jurisdiction may not be avoided by another district court. — Once an adjudication of water rights by one district court has been made, a separate district court may not subsequently impose a trust on the water rights granting rights not recognized by the original court, and thereby deprive the original court of its exclusive jurisdiction. Ulibarri v. Hagan, 1982-NMSC-101, 98 N.M. 676, 652 P.2d 226.

Finding required to dismiss for lack of exclusive jurisdiction. — Before the district court can dismiss an action seeking an adjudication of water rights in a spring on the basis that another district court has exclusive jurisdiction, it must be satisfied that a prior order actually was entered declaring that the spring is part of the stream system involved in the prior action. Ulibarri v. Hagan, 1982-NMSC-101, 98 N.M. 676, 652 P.2d 226.

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.

Proposed legislation unconstitutional. — Where exclusive jurisdiction has been given to judiciary to determine water rights, separation of powers doctrine forbids legislature from granting any such rights; therefore, proposed legislation attempting to grant water right of two acre inches per acre-foot to those holding water rights in artesian basin would be unconstitutional. 1971 Op. Att'y Gen. No. 71-23.

When statutes provide for judicial determination of water rights, legislative act enlarging water rights of one group might be treated as a taking of property of another group without due process of law. 1971 Op. Att'y Gen. No. 71-23.

No continuing jurisdiction. — Water adjudication statutes do not make provision for reservation or exercise of continuing jurisdiction after decree adjudicating waters has been entered. 1939-40 Op. Att'y Gen. No. 39-3285.

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

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

93 C.J.S. Waters §§ 194, 195, 199.