2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 14 - Conservancy Districts; Definitions; Organization and Management
Section 73-14-5 - Petition; place of filing; signatures; contents; land included.

A. Before any district shall be established under this act, a petition shall be filed in the office of the clerk of the court vested with jurisdiction, in a county in which all or a part of the lands embraced in said proposed district are situated, signed by the owners of more than one-third of the real property in such proposed district, in either acreage or value, as shown by the last preceding assessment roll of the county or counties wherein such district is proposed to be created.

B. Whenever a proposed district shall include territory extending into more than one judicial district, the petition for the organization of said district shall be filed in the office of the clerk of the court in and for that county which has the greatest valuation of real property within the proposed district, as shown by the tax rolls of the respective counties.

C. Such a petition may also be signed by any private corporations owning lands within the proposed district, or by the governing body of any public corporation lying wholly or partly within the proposed district, in such manner as it may prescribe, and when so signed, such petition shall fill all the requirements of representation upon such petition of the owners of land of such public corporation, as they appear upon the tax rolls; and thereafter it shall not be necessary for individuals within said public corporation to sign such a petition.

D. Any city interested in some degree in the improvement, upon proper action by its governing body, may alone file the petition required by this section.

E. The petition shall set forth:

(1) the proposed name of said district;

(2) that property within the proposed district will be benefited by the accomplishment of one or more of the purposes enumerated in Section 73-14-4 NMSA 1978;

(3) a general description of the purpose of the contemplated improvement, and of the territory to be included in the proposed district; such description need not be given by metes and bounds or by legal subdivisions, but it shall be sufficient to enable a property owner to ascertain whether his property is within the territory proposed to be organized as a district; said territory need not be contiguous, provided it be so situated that the organization as a single district of the territory described is calculated to promote one or more of the purposes enumerated in Section 73-14-4 NMSA 1978;

(4) said petition shall pray for the organization of the district by the name proposed.

F. No petition with the requisite signatures shall be declared null and void on account of alleged defects, but the court may at any time permit the petition to be amended to conform to the facts, by correcting any errors in the description of the territory or in any other particular.

G. Several similar petitions or duplicate copies of the same petition for the organization of the same district may be filed and shall together be regarded as one petition. All such petitions filed, prior to the hearing on the first petition filed, shall be considered by the court the same as though filed with the first petition.

H. A guardian, conservator or personal representative of an estate who is appointed as such under the laws of this state, and who as such guardian, conservator or personal representative is entitled to the possession of the lands belonging to the estate which he represents, may, on behalf of his ward or the estate which he represents, upon being thereunto authorized by the proper court, sign and acknowledge the petition in this act mentioned and may act in respect to the said lands to the same extent and in the same manner as a private owner might act.

I. For the inclusion in any existing district of territory beyond its boundaries, the same procedure as specified for the organization of a district may be followed by the landowners of the said territory; provided, however, approval and consent thereto by the court shall first have been obtained. Such territory may also be included by the appraisers of such existing district as hereinafter provided. In the event that all of the landowners of such territory desire to have the same included in such district, a petition signed by each of them shall be filed in the court which has jurisdiction over such district, and upon approval and consent thereto by the court, no further proceedings except the order of the court including such territory in such district shall be necessary. Provided, however, the directors of the district may be heard before the court on any objections the district may have to the inclusion of such territory therein because of the change in official plan and the appraisal of the benefits and damages.

J. In determining whether a requisite number of landowners have signed the petition, the court shall be governed by the names as they appear upon the tax roll, which shall be prima facie evidence of such ownership.

K. No land shall be included or proposed to be included in any such district which is so situated that it cannot reasonably be drained, flooded or irrigated as an integral part thereof by or from any stream or waters to be controlled thereby, and is more than two miles distant from any lands above described.

L. No district formed under the provisions of Chapter 140, Laws of New Mexico, 1923, or formed under the provisions of this act, for the protection and conservation of property in the Rio Grande valley, shall include any lands south of the Elephant Butte dam; provided that any district formed under said Chapter 140, Laws of New Mexico, 1923, shall retain all rights to impound and control the water of the Rio Grande or other streams or waters, or to acquire rights and property incident thereto that it now possesses, whether within or without the district as hereby limited and defined. Except as otherwise provided herein, the boundaries of any such district heretofore created shall be limited and confined to the territory as herein defined.

History: Laws 1927, ch. 45, § 202; C.S. 1929, § 30-202; 1941 Comp., § 77-2705; 1953 Comp., § 75-28-5; Laws 1971, ch. 51, § 1; 1975, ch. 257, § 8-132.

Compiler's notes. — For meaning of "this act", see compiler's notes to 73-14-1 NMSA 1978 and 73-14-3 NMSA 1978..

Laws 1927, ch. 45, § 910, compiled as 73-17-23 NMSA 1978, repealed Laws 1923, ch. 140, relating to establishing conservancy districts to cooperate with the federal government under federal reclamation law.

Cross references. — For the Probate Code, see 45-1-101 NMSA 1978.

The 1975 amendment, effective July 1, 1976, substituted "conservator or personal representative" for "executor or administrator" in two places near the beginning of Subsection H.

No unconstitutional delegation of legislative power. — The Conservancy Act (Laws 1927, § 45) is not unconstitutional under contention that under it the individual petitioners, by fixing the boundaries of the district are empowered to determine whether or not the property included will be benefited, thereby causing an unlawful delegation to them of the legislative power, as the petitioners must allege and the conservancy court must find that the property described in the petition will be benefited, not merely some of the property described. In re Arch Hurley Conservancy Dist., 1948-NMSC-001, 52 N.M. 34, 191 P.2d 338.

Constitutionality of former law. — Laws 1923, ch. 140, §§ 202, 205 (repealed), regarding petitions for the establishment of conservancy districts and hearings on said petitions, did not violate U.S. Const., amend. XIV, to N.M. Const., art. II, § 2 or art. XI, § 8 (art. XI, § 8 now repealed). In re Proposed Middle Rio Grande Conservancy Dist., 1925-NMSC-058, 31 N.M. 188, 242 P. 683.

Legislative purpose not abused. — The true legislative purpose of the Conservancy Act (Laws 1927, ch. 45) was not abused by applying it to a strip of railroad right of way on account of incidental benefits that will be derived. In re Arch Hurley Conservancy Dist., 1948-NMSC-001, 52 N.M. 34, 191 P.2d 338.

Inclusion of certain Rio Grande valley lands not prohibited. — This section does not prohibit inclusion of lands in the Rio Grande valley in the north of Santa Fe county in conservancy districts organized for irrigation only. Cater v. Sunshine Valley Conservancy Dist., 1928-NMSC-061, 33 N.M. 583, 274 P. 52.

Effect of repeal of prior law on refiled petition. — Where petition was filed for the organization of a district under the 1923 Conservancy Act before its repeal by Laws 1927, ch. 45, but before action, and by order of the court, the petition was withdrawn after the repeal and refiled as an original petition, proceeding was under Laws 1927, ch. 45, even though the prayer was inapt. Cater v. Sunshine Valley Conservancy Dist., 1928-NMSC-061, 33 N.M. 583, 274 P. 52.

Effect of substantial change in property to be included. — In the formation of water conservancy districts which will result in the imposition of taxes or other assessments upon the property included therein, a substantial change in the property to be included from that described in the petition or petitions for the creation of such districts vitiates the petition or petitions and requires their dismissal. Rancho Del Rio Grande Conservancy Dist. v. Tres Rios Ass'n, 1975-NMSC-024, 87 N.M. 482, 535 P.2d 1333.

Once the people have weighed the merits of the proposal to establish a water conservancy district as embodied in the petition and each has estimated the burden and benefit for himself, it would be grossly unfair to permit changes to be made by eliminating property belonging to numerous individuals and municipalities, thus multiplying the cost per acre foot of water to the user; this would materially and substantially amend the signer's original petition without his authority, subjecting him to additional burdens, and cannot be approved. Rancho Del Rio Grande Conservancy Dist. v. Tres Rios Ass'n, 1975-NMSC-024, 87 N.M. 482, 535 P.2d 1333.

Result of excluding certain lands from petition for creation of a water conservancy district is that the signatures of all persons on originating petitions become a nullity, since after the exclusions the petitions no longer describe the territory to be included in the proposed district. It cannot be assumed that any one of the petitioners would have affixed his signature to the originating petitions had he known that the district to be created would be substantially different from that made known to him by the instrument which he signed as an originating petitioner. Rancho Del Rio Grande Conservancy Dist. v. Tres Rios Ass'n, 1975-NMSC-024, 87 N.M. 482, 535 P.2d 1333.

All property in petition must be benefited. — The petitioners must allege and the conservancy court must find that the property described in the petition will be benefited by the organization of the conservancy district - not some of the property described in the petition, but all of it, and upon finding some of the lands would not be benefited, the conservancy court should have dismissed the petition; when it permitted the amendment of the petition and the creation of a new and different district, it exceeded its authority. Rancho Del Rio Grande Conservancy Dist. v. Tres Rios Ass'n, 1975-NMSC-024, 87 N.M. 482, 535 P.2d 1333.

Petition proposal must be specific. — To make the support evidenced by the filing of a petition for the creation of a water conservancy district meaningful, and to comply with the notice requirements of due process, the proposal in the petition must be specific; otherwise, a citizen cannot form an intelligent opinion as to whether to sign and has no way of knowing what he is petitioning for or what he is agreeing to pay and the effect of his signing upon others who also will be taxed. Rancho Del Rio Grande Conservancy Dist. v. Tres Rios Ass'n, 1975-NMSC-024, 87 N.M. 482, 535 P.2d 1333.

Signatures by private and public corporations. — Petition to establish and organize a conservancy district must be signed by owners of more than one-third of the real property in the proposed district, in either acreage or value, as shown by the last preceding tax roll of the county wherein the district is to be created, but Subsection C of said section plainly authorizes private corporations and governing bodies of public corporations, lying wholly or partly within the proposed district and owning lands therein, to sign such petition in a representative capacity, thereby dispensing with the requirement that the petition be signed by landowners individually. In re Sandia Conservancy Dist., 1953-NMSC-056, 57 N.M. 413, 259 P.2d 577.

Incidental benefits to lands included in district. — The Conservancy Act specifically provides for the inclusion of lands that will not be directly benefited by the establishment or enlargement of a district. A district may be established or enlarged if some of the lands to be included will receive only incidental benefits. The lands to be incidentally benefited, however, must not lie more than two miles from the lands to be irrigated, drained, or protected from flooding as an integral part of the district. 1978 Op. Att'y Gen. No. 78-13.

Extension of La Plata conservancy district to include Farmington and Aztec precluded. — Subsection K of this section would preclude the extension of the boundaries of the La Plata conservancy district to include Farmington and Aztec since nearly all of the land within the limits of Farmington, Aztec, and the surrounding area proposed to be included within the boundaries of the La Plata conservancy district is located more than two miles from district land that would be drained, irrigated, or protected from flooding by the district or Animas-La Plata project facilities. 1978 Op. Att'y Gen. No. 78-13.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality and construction of statute which leaves to determination of private individuals boundaries of territory to be erected into water districts, 70 A.L.R. 1064.

94 C.J.S. Waters § 319(2).