2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 2 - Ditches or Acequias
Section 73-2-21 - Commissioners' powers and duties; mayordomo's duties.
A. The commissioners shall:
(1) assess fatigue work or tasks of all parties owning water rights in such community ditches or acequias;
(2) have power to contract and be contracted with;
(3) make all necessary assessments to provide funds for the payment of the salary of the mayordomo and other legitimate expenses incident to the proper conduct and maintenance of the acequias under their charge;
(4) make contracts for obtaining water for irrigation purposes in connection with their ditches, such contracts to be ratified by a vote of a majority of the owners of water rights in the ditches;
(5) have general charge and control of all affairs pertaining to the same, together with the power to receive money in lieu of such fatigue or task work at a price to be fixed by them; and
(6) immediately upon taking office, provide bylaws, rules and regulations not in conflict with the laws of the state for the government of the ditch or acequia, a printed copy of which shall be furnished to each owner of a water right in such ditch.
B. The mayordomo or superintendent shall, under the direction of the commissioners, be the executive officer of the ditch and shall:
(1) have the superintendence of all work thereon, the distribution of the waters thereof and the collection of fines, if any, and of amounts to be paid in lieu of fatigue or task work;
(2) perform such other duties in connection with the ditch as may be prescribed by the rules and regulations of the same or as may be directed by the commissioners; and
(3) make full written reports of all money received, expended and how expended, and of all activities performed as such officer to the commissioners of the ditch, semiannually, on the first Monday in June and the last Monday in September; provided, further, that the mayordomo shall make such further reports as may be required by the ditch commissioners.
C. The treasurer of the ditch commissioners shall make reports to the ditch commissioners of the money received, expended and how expended, and kept in the custody of the treasurer, and of all activities performed as such officer as are herein required of the mayordomo.
D. The commissioners shall receive and pass upon the reports of the mayordomo and the treasurer provided for in this section before their term of office expires. If the reports are found to be true and correct, they shall approve them; otherwise they shall reject them, respectively. All proceedings of the commissioners relating to all subjects whatsoever shall be reduced to writing in a book or books kept for that purpose, and all books and papers so kept by the commissioners and all reports made, filed or kept as herein required shall always be and remain public property, and shall be subject to the inspection of all persons therein concerned.
E. Pursuant to the rules or bylaws duly adopted by its members, an acequia or community ditch may require that a change in point of diversion or place or purpose of use of a water right served by the acequia or community ditch, or a change in a water right so that it is moved into and then served by the acequia or community ditch, shall be subject to approval by the commissioners of the acequia or community ditch. The change may be denied only if the commissioners determine that it would be detrimental to the acequia or community ditch or its members. The commissioners shall render a written decision explaining the reasons for the decision. If the person proposing the change or a member of the acequia or community ditch is aggrieved by the decision of the commissioners, he may appeal the decision in the district court of the county in which the acequia or community ditch is located within thirty days of the date of the decision. The court may set aside, reverse or remand the decision if it determines that the commissioners acted fraudulently, arbitrarily or capriciously, or that they did not act in accordance with law.
History: Laws 1895, ch. 1, § 4; 1897, ch. 44, § 1; C.L. 1897, § 11; Laws 1903, ch. 44, § 1; Code 1915, § 5754; C.S. 1929, § 151-424; 1941 Comp., § 77-1421; Laws 1945, ch. 47, § 1; 1953 Comp., § 75-14-21; Laws 1977, ch. 247, § 198; 1981, ch. 337, § 1; 2003, ch. 82, § 2; 2003, ch. 135, § 2.
ANNOTATIONSCross references. — For penalties against delinquent owners, see 73-2-25 NMSA 1978.
For commissioners' duties in connection with apportionment of waters supplying two or more ditches, see 73-2-47 to 73-2-51 NMSA 1978.
For duties of ditch officers in certain counties, see 73-3-4 NMSA 1978.
For appeals to the district court, see Rule 1-074 NMRA.
The 2003 amendment, effective March 1, 2004, added subsection designations throughout and added the provisions in Subsection E.
Laws 2003, ch. 82, § 2 and Laws 2003, ch. 135, § 2, both effective March 1, 2003, enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 135, § 2. See 12-1-8 NMSA 1978.
The 1981 amendment deleted the former second paragraph which read "The books, records and accounts of both the mayordomo and commissioners shall be audited by an auditor approved by the secretary of finance and administration at least once each year" and, in the third sentence in the remaining language, substituted "money" for "moneys" and "of " for "as" following "custody."
The 1977 amendment added the section heading and substituted "secretary of finance and administration" for "state comptroller".
Standard of review of the decision of commissioners of acequias is constitutional. — The standard of review in an appeal to the district court from a decision by the commissioners of an acequia, which permits the district court to set aside, reverse or remand the decision if the district court determines that the commissioners acted fraudulently, arbitrarily or capriciously, or that the commissioners did not act in accordance with law, does not violate either N.M. Const., art. XVI, § 5 or the equal protection clause of art. II, § 18. Pena Blanca P'ship v. San Jose Cmty. Ditch, 2009-NMCA-016, 145 N.M. 555, 202 P.3d 814, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.
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.
Legal expenses of controversy between commissioners proper expense. — Expense incurred, consisting of attorney's fees and costs in controversy between certain commissioners of a community ditch corporation, is a proper expense to be paid by water users in proportion to their interests in the ditch. State ex rel. Sanchez v. Casados, 1921-NMSC-101, 27 N.M. 555, 202 P. 987.
Bylaw allocating repair payments invalid. — Bylaw of a ditch company which provides that those farther from the inlet contribute a greater portion for repairs than those nearer the inlet is invalid. State ex rel. Black v. Aztec Ditch Co., 1919-NMSC-057, 25 N.M. 590, 185 P. 549.
Proper to make assessment to repay certain loan. — This section and Section 73-2-56 NMSA 1978, taken together, entitle commissioners to make an assessment for repayment of a loan directed to the change of location, expansion or reconstruction of a community ditch. 1964 Op. Att'y Gen. No. 64-95 (rendered before enactment of Section 73-2-22 NMSA 1978).
Commissioners possess power to make new regulations without consulting the voters who have elected them. 1916 Op. Att'y Gen. No. 16-1750.
Standard for water distribution is beneficial use. — Mayordomo must distribute acequia water according to beneficial use by ditch owners. Acreage of land with water rights is controlling factor in apportioning water to members of acequia association, but other matters may also be considered. 1974 Op. Att'y Gen. No. 74-23.
