2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 2 - Ditches or Acequias
Section 73-2-11 - [Community ditches made corporations; ditches taking water from common source.]

All community ditches or acequias shall for the purposes of this article be considered as corporations or bodies corporate, with power to sue or to be sued as such. And every one of said community ditches beginning at the dam or entrance of the water, in continued course to the end of the same, shall be considered as one ditch or acequia only, to be superintended by three commissioners and one mayordomo as now provided by law, except that where two community ditches or more take water from a common ditch or head, they shall be and remain separate and under separate management.

History: Laws 1895, ch. 1, § 1; C.L. 1897, § 8; Laws 1903, ch. 98, § 1; Code 1915, § 5744; C.S. 1929, § 151-414; 1941 Comp., § 77-1411; 1953 Comp., § 75-14-11.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For meaning of "community ditch", see 73-2-27 NMSA 1978.

For status of community ditch associations as political subdivisions of state, see 73-2-28 NMSA 1978.

For apportionment of water when two ditches obtain water from same source, see 73-2-47 NMSA 1978.

Community ditches are domestic corporations. — Community ditches or acequias are as much domestic corporations as are drainage districts organized under the provisions of Section 73-6-1 NMSA 1978 et seq. In re Dexter-Greenfield Drainage Dist., 1915-NMSC-097, 21 N.M. 286, 154 P. 382.

Ditch corporations are involuntary public quasi-corporations, with no powers except those expressly conferred by statute or such as are impliedly necessary to the performance of those statutory powers. Candelaria v. Vallejos, 1905-NMSC-019, 13 N.M. 146, 81 P. 589.

Words "for the purposes of this act [article]" are words of limitation, and such corporations so created have and possess no powers not thereby either expressly or impliedly granted them. Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044.

Acequia has no power to acquire or hold title to water rights. Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044.

No power to litigate them in lieu of individual owner. — Section for administrative convenience gave legal status to community ditches in order to facilitate distribution of waters and maintenance of ditches and laterals. It did not attempt to interfere with rights theretofore owned by the individual, and the individual is a proper and necessary party in an action for adjudication of water rights, where such rights are exercised through a community ditch. Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044.

No power to bind owner to judgment. — While a community acequia does not own water rights of individual consumers, where community acequia enjoins another such acequia from diverting water, such judgment is not subject to attack, although erroneous, but individual consumers under the acequia, not parties to the suit, are not bound by the injunction. Acequia Del Llano v. Acequia De Las Joyas Del Llano Frio, 1919-NMSC-001, 25 N.M. 134, 179 P. 235.

Community may represent members in other common-interest situations. — Community ditch may represent its members before court where parties represented have common interest with community body, interests of body are not antagonistic to those of members and no issue is raised as to respective water rights of individual users. La Luz Cmty. Ditch Co. v. Town of Alamogordo, 1929-NMSC-044, 34 N.M. 127, 279 P. 72.

Community acequia has right to condemn right of way for a ditch. City of Albuquerque v. Garcia, 1913-NMSC-006, 17 N.M. 445, 130 P. 118.

Community acequia may change course of ditch. — Section does not confer upon officer or majority interested in ditches thereby incorporated, any powers as to changing ancient course of the same against consent of owners to be injuriously affected by such change. Candelaria v. Vallejos, 1905-NMSC-019, 13 N.M. 146, 81 P. 589, but see Section 73-2-56 NMSA 1978.

There can be but one community corporation for each acequia, which may sue or be sued only when officers are elected according to law. State ex rel. Cmty. Ditches v. Tularosa Cmty. Ditch, 1914-NMSC-069, 19 N.M. 352, 143 P. 207.

Ditch held as tenancy in common. — When a community ditch at the lower end of another ditch has either by contract or condemnation enlarged the upper ditch, ownership along the line of the common ditch must be that of tenancy in common, which would entitle the lower ditch to work, repair and maintain the common ditch to same extent as the owners of the upper ditch. Halford Ditch Co. v. Indep. Ditch Co., 1916-NMSC-058, 22 N.M. 169, 159 P. 860.

Description in a written instrument calling for acequia as boundary carries title, in absence of words importing a different intention, to the center of the acequia. Tagliaferri v. Grande, 1911-NMSC-052, 16 N.M. 486, 120 P. 730.

Acequias are political subdivisions. — Acequia is a form of public corporation and qualifies as a political subdivision of the state. 1964 Op. Att'y Gen. No. 64-95.

Acequias have powers expressly delegated or necessarily implied. — Like all other political subdivisions, an acequia is competent to exercise whatever powers the legislature has delegated to it, expressly, or by necessary implication. 1964 Op. Att'y Gen. No. 64-95.

Ditch corporations are involuntary public quasi-corporations. — Community ditches belong to a class of corporations known as public involuntary quasi corporations that exist under general laws of the state, which apportion its territory into local subdivisions for the purpose of civil and governmental administration, and impose on the people residing in said several subdivisions precise and limited public duties and clothe them with restricted corporate functions, coextensive with the duties devolved upon them. 1963 Op. Att'y Gen. No. 63-112.

Community acequia has right to borrow funds. — Borrowing of funds by community ditch to improve, rehabilitate or extend its facilities for irrigation is necessarily implied from powers granted to it. 1964 Op. Att'y Gen. No. 64-95 (opinion rendered prior to adoption of Section 73-2-22 NMSA 1978).

Since an acequia is a political subdivision of the state, Section 72-14-29 NMSA 1978 expressly approves lending of funds to it provided that the acequia conforms in all necessary respects with the statutory scheme governing it and that the purpose of the loan is one permitted by Section 72-14-29 NMSA 1978. 1964 Op. Att'y Gen. No. 64-95.

Community ditch corporations exist for administrative purposes only and have the power to tax the holders of water rights for services and improvements. 1963 Op. Att'y Gen. No. 63-112.

Law reviews. — For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 94 C.J.S. Waters § 339.