2019 New Mexico Statutes
Chapter 72 - Water Law
Article 5 - Appropriation and Use of Surface Water
Section 72-5-28 - Failure to use water; forfeiture.

A. When the party entitled to the use of water fails to beneficially use all or any part of the water claimed by him, for which a right of use has vested for the purpose for which it was appropriated or adjudicated, except the waters for storage reservoirs, for a period of four years, such unused water shall, if the failure to beneficially use the water persists one year after notice and declaration of nonuser given by the state engineer, revert to the public and shall be regarded as unappropriated public water; provided, however, that forfeiture shall not necessarily occur if circumstances beyond the control of the owner have caused nonuse, such that the water could not be placed to beneficial use by diligent efforts of the owner; and provided that periods of nonuse when irrigated farm lands are placed under the acreage reserve program or conservation reserve program provided by the federal Food Security Act of 1985, P.L. 99-198, shall not be computed as part of the four-year forfeiture period; and provided, further, that the condition of notice and declaration of nonuser shall not apply to water that has reverted to the public by operation of law prior to June 1, 1965.

B. Upon application to the state engineer at any time and a proper showing of reasonable cause for delay or for nonuse or upon the state engineer finding that it is in the public interest, the state engineer may grant extensions of time, for a period not to exceed three years for each extension, in which to apply to beneficial use the water for which a permit to appropriate has been issued or a water right has vested, was appropriated or has been adjudicated.

C. Periods of nonuse when water rights are acquired by incorporated municipalities or counties for implementation of their water development plans or for preservation of municipal or county water supplies shall not be computed as part of the four-year forfeiture statute.

D. A lawful exemption from the requirements of beneficial use, either by an extension of time or other statutory exemption, stops the running of the four-year period for the period of the exemption, and the period of exemption shall not be included in computing the four-year period.

E. Periods of nonuse when the nonuser of acquired water rights is on active duty as a member of the armed forces of this country shall not be included in computing the four-year period.

F. The owner or holder of a valid water right or permit to appropriate waters for agricultural purposes appurtenant to designated or specified lands may apply the full amount of water covered by or included in the water right or permit to any part of the designated or specified tract without penalty or forfeiture.

G. Periods of nonuse when water rights are acquired and placed in a state engineer-approved water conservation program, by an individual or entity that owns water rights, a conservancy district organized pursuant to Chapter 73, Articles 14 through 19 NMSA 1978, a soil and water conservation district organized pursuant to Chapter 73, Article 20 NMSA 1978, an acequia or community ditch association organized pursuant to Chapter 73, Article 2 or 3 NMSA 1978, an irrigation district organized pursuant to Chapter 73, Articles 9 through 13 NMSA 1978 or the interstate stream commission shall not be computed as part of the four-year forfeiture period.

H. Water deposited in a lower Pecos river basin below Sumner lake water bank approved by the interstate stream commission or an acequia or community ditch water bank shall not be computed as part of the four-year forfeiture period.

History: Laws 1907, ch. 49, § 42; Code 1915, § 5701; C.S. 1929, § 151-154; Laws 1941, ch. 126, § 16; 1941 Comp., § 77-526; 1953 Comp., § 75-5-26; Laws 1957, ch. 91, § 1; 1965, ch. 250, § 1; 1967, ch. 182, § 1; 1978, ch. 153, § 1; 1987, ch. 113, § 1; 1991, ch. 102, § 1; 1996, ch. 36, § 1; 1997, ch. 134, § 1; 1998, ch. 37, § 1; 2002, ch. 77, § 2.

Cross references. — For exemption of state water rights held for highway and airport purposes from risk of forfeiture for failure to beneficially use same, see 72-5-38 NMSA 1978.

For provision that conservancy district rights are not lost by prescription, adverse possession or nonuse, see 73-17-21 NMSA 1978.

For the Food Security Act of 1985, P.L. 99-198, see Titles 7, 15 and 16 of the United States Code.

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

The 2002 amendment, effective May 15, 2002, added Subsection H.

The 1998 amendment, effective May 20, 1998, in Subsection F, substituted "the" for "such" and inserted "an individual or entity that owns water rights,"; and, in Subsection G, inserted "a soil and water conservation district organized pursuant to Chapter 73, Article 20 NMSA 1978".

The 1997 amendment, effective June 20, 1997, made a stylistic change in Subsection F and rewrote Subsection G.

The 1996 amendment, effective May 15, 1996, substituted "for a period not to exceed three years for each extension" for "not to exceed a term of one year for each extension" in Subsection B.

The 1991 amendment, effective June 14, 1991, added Subsection G.

The 1987 amendment, effective June 19, 1987, in Subsection A substituted "reserved program provided by the Food Security Act of 1985, P.L. 99-198" for "program provided by the Soil Bank Act" and made a minor language change in Subsection F.

Rights vested prior to the water code are subject to forfeiture. — Water rights that vested prior to the adoption of the New Mexico constitution are not immune from statutory forfeiture or common law abandonment. State ex rel. Office of the State Engineer v. Elephant Butte Irrigation Dist., 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.

Where landowners were the owners of land that had been acquired in1881 by United States patents; the landowners claimed that the land had been irrigated prior to 1881 and that the date of appropriation was at least 1881; and although portions of the property had been farmed and irrigated prior to 1956, after 1956 the land was not farmed and water has not otherwise been put to beneficial use on any of the land, the landowner's water rights were subject to forfeiture and common law abandonment. State ex rel. Office of the State Engineer v. Elephant Butte Irrigation Dist., 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.

Abandonment. — To prove abandonment, a party must show that the owner relinquished the water rights with the intention to forsake such rights. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

Section was merely declaratory of law as it had already been established by judicial decisions, the time for the application to be a reasonable time. Hagerman Irrigation Co. v. McMurry, 1911-NMSC-021, 16 N.M. 172, 113 P. 823.

Section is forfeiture statute for nonuse of water rights under certain circumstances. Jones v. Anderson, 1970-NMSC-044, 81 N.M. 423, 467 P.2d 995.

Continual use as basis of title to water rights. — Continuance of title to water right is based upon continuing beneficial use, and where right is not exercised for four years, statute declares that right to unused portion is forfeited. State ex rel. Reynolds v. South Springs Co., 1969-NMSC-023, 80 N.M. 144, 452 P.2d 478.

Nonuse for four years constitutes abandonment. Yeo v. Tweedy, 1929-NMSC-033, 34 N.M. 611, 286 P. 970.

Intention not required. — Element of intention is required in doctrine of abandonment; this is not so in forfeiture. State ex rel. Reynolds v. S. Springs Co., 1969-NMSC-023, 80 N.M. 144, 452 P.2d 478.

Unused water reverts to public. — The failure to use water right for unreasonable time is evidence of intention to abandon it; if nothing is done to utilize water rights within four year period of limitations, such unused water is reverted to the public and shall be regarded as unappropriated public water. State ex rel. Reynolds v. S. Springs Co., 1969-NMSC-023, 80 N.M. 144, 452 P.2d 478.

Pueblo rights doctrine is incompatible with New Mexico water law. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Pueblo rights doctrine interferes with the necessity of utilizing water for the maximum benefits. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

"Reasonable time". — A municipality may be given a more substantial "reasonable time" for its population growth than a typical water user would have to complete an appropriation. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

Reasonable time for development of water use relates back to the date of showing an intent to appropriate by acquiring a permit. Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981).

Nonuser resulting from drought. — When suit was brought to enjoin another from using water from river through certain ditch because of nonuser, evidence that nonuser resulted from droughts sufficiently established that forfeiture should not be decreed. Chavez v. Gutierrez, 1950-NMSC-004, 54 N.M. 76, 213 P.2d 597.

Since there was no showing of abandonment or forfeiture, nor was any particular reason given why existing water right should have been considered to be impaired, and year or years in question were particularly dry ones, and there was no water available, owner of water right would not be penalized. W.S. Ranch Co. v. Kaiser Steel Corp., 1968-NMSC-041, 79 N.M. 65, 439 P.2d 714.

Failure to reach diversion point. — When water fails to reach point of diversion without fault of appropriator, and he is at all times ready and willing to put water to usual beneficial use, there is no forfeiture of his right for nonuser. N.M. Prods. Co. v. N.M. Power Co., 1937-NMSC-048, 42 N.M. 311, 77 P.2d 634.

Federal water right. — Abandonment and waste by federal park service of right to use water from certain spring, which right was purchased by United States in 1934, is controlled by congress as this right is property of the United States, and property of the United States may not be lost through laches or neglect of its officers and employees. United States v. Ballard, 184 F. Supp. 1 (D.N.M. 1960).

Injunction not appropriate. — Waste, nonuser and abandonment were not bars to United States' cause of action against individual landowners seeking injunction enjoining them from using wells so as to deprive United States of flow of certain spring, but should be considered with granting of equitable relief; since there was no threat of loss of available water to any party at present or in foreseeable future, there was not sufficient showing of great and irreparable damage so as to justify injunctive relief. United States v. Ballard, 184 F. Supp. 1 (D.N.M. 1960).

Engineer's authority. — Since an engineer has no authority to cancel alleged water rights, he has no authority to compel respondent to restore undescribed entries in records canceled by his predecessor. Turley v. State Eng'r, 1935-NMSC-075, 39 N.M. 472, 49 P.2d 1135.

Water rights of owner in community ditch are subject to forfeiture provisions of this section; failure to use water because of failure to pay assessment would not constitute circumstances beyond control of water right owner. 1967 Op. Att'y Gen. No. 67-47.

Law reviews. — For comment, "Water Rights Failure to Use Forfeiture," see 6 Nat. Resources J. 127 (1966).

For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).

For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976).

For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).

For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).

For article, "Possible Solutions: Policy Tools to Achieve Flexibility to Meet New Conditions, Preliminary Thoughts for Coping with Future Droughts," see 39 Nat. Resources J. 175 (1999).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 334.

Discontinuance of use of water, rights of user to, 112 A.L.R. 230.

93 C.J.S. Waters § 193.