2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 2 - Ditches or Acequias
Section 73-2-14 - Ditch elections; votes.

The election for acequia or community ditch officers under this article shall be held by the outgoing commissioners under rules and regulations to be prescribed by them. Only those having water rights in the acequia or ditch and who are not delinquent in the payment of their assessments, and fail to [sic] proffer such delinquent assessment at the time they offer to vote, shall be allowed to vote; but votes may be cast by written proxy and shall be in proportion to the interest of the voter in the ditch or water, or in proportion to the number or amount of his water rights.

History: Laws 1895, ch. 1, § 3; C.L. 1897, § 10; Code 1915, § 5753; Laws 1921, ch. 129, § 1; C.S. 1929, § 151-423; 1941 Comp., § 77-1414; 1953 Comp., § 75-14-14.

Bracketed material. — The bracketed material was inserted by the compiler and it is not part of the law. The bracketed word "[sic]" was inserted following "and fail to" because the sentence as it reads seems to allow those who "fail to proffer" their assessments to vote.

Compiler's notes. — The 1915 Code omitted a proviso which read: "Provided, That the owners of any community ditch, which is not now under the direction of commissioners, shall select persons (not more than three) to hold the first election under the provisions hereof."

The term "this article" refers to Chapter 114, Article II, "Community Ditches", §§ 5731 to 5786, Code of 1915, now compiled as 73-2-1 to 73-2-4, 73-2-6 to 73-2-12, 73-2-14, 73-2-16 to 73-2-21, 73-2-25, 73-2-27, 73-2-30 to 73-2-55 and 73-2-63 NMSA 1978. See also "A Brief History of the NMSA 1978 in the Foreword to the NMSA 1978.

Cross references. — For elections in certain counties, see 73-3-3 NMSA 1978.

Combination of voting methods is prohibited. — Section 73-2-14 NMSA 1978 provides two alternative voting methods and does not permit an election to be held using a combination of the methods. Bounds v. Hamlett, 2011-NMCA-078, 150 N.M. 389, 258 P.3d 1181.

Hybrid form of voting is invalid. — Where the community ditch association's bylaws based voting on each member's ditch time or water rights, whichever gave the member the greater number of votes, the bylaws created a hybrid form of voting rights that was contrary to by Section 73-2-14 NMSA 1978. Bounds v. Hamlett, 2011-NMCA-078, 150 N.M. 389, 258 P.3d 1181.

Election of officers did not require a record of how voters voted. — Where defendants installed a new headgate on the association's acequia system without obtaining the approval of the association or the mayordomo; the mayordomo and a commissioner on behalf of the association obtained a temporary restraining order prohibiting defendants from continuing work on the ditch; defendants claimed that the association's meeting to elect officers violated the Open Meeting Act, Chapter 10, Article 15 NMSA 1978, because the minutes of the meeting did not record how each member voted as required by 10-15-1(G) NMSA 1978 and that consequently, the commissioner and the mayordomo were not properly elected as officers and lacked standing to file the petition for injunction on behalf of the association; in the association's practice, each person meeting the voter requirements of 73-2-14 NMSA 1978 was accorded one vote; and the voters did not represent others, they represented their own interests in the ditch, the election of the commissioner and the mayordomo was not void because the purpose of recording the "yeas and nay's" of votes as required by 10-15-1(G) NMSA 1978 was not relevant where the recording of the votes would not serve the purpose of greater accountability. Parkview Cmty. Ditch Ass'n v. Peper, 2014-NMCA-049.

Domestic use might not be considered. — Domestic use is so small, when compared to the other use to which water is applied by appropriator, that legislature possibly did not take such use into consideration in regulating right to vote. State ex rel. Cmty. Ditches v. Tularosa Cmty. Ditch, 1914-NMSC-069, 19 N.M. 352, 143 P. 207.

Section does not destroy recognized property rights. — This section merely provides two alternative methods of voting; it does not destroy any property rights which Section 73-2-7 NMSA 1978 recognizes. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.

Corporation nonentity where election provisions not followed. — Where pretended community corporation was not the community corporation created by statute and authorized to administer the affairs of the community acequia by reason of noncompliance with statutory provisions for election of officers, such pretended corporation was a nonentity, without interest in suit to oust another from control of acequia. State ex rel. Cmty. Ditches v. Tularosa Cmty. Ditch, 1914-NMSC-069, 19 N.M. 352, 143 P. 207.

Voting power proportional to voter's interest. — In election of acequia commissioners, voting power is in proportion to voter's interest. 1916 Op. Att'y Gen. No. 16-1750.

Interest is amount of water owned and used. — Each water user shall vote at these elections in proportion to amount of water he owns and which he has used during the preceding year. If he owns more water than he used upon his land, he is restricted in his voting to water rights actually used by him. 1921 Op. Att'y Gen. No. 21-3210.

Amount of work done has nothing to do with the right to vote, which is determined by writ of measurement by which interests are established. 1921 Op. Att'y Gen. No. 21-3210.

Law reviews. — For note, "Who Controls New Mexico's Acequias? Acequia Government and Wilson v. Denver," see 40 Nat. Resources J. 727 (2000).