2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 2 - Ditches or Acequias
Section 73-2-5 - Ditch over land of another; easement; right of servient owner; penalty.

A. Hereafter in all cases where there has been a continuous use of a ditch for the purposes of irrigation for five years, it shall be conclusively presumed as between the parties that a grant has been made by the owners of the land, upon which such ditch is located, for the use of the same and it is unlawful to interfere with that easement or prevent access to the ditch by the owner of the dominant estate as provided by law; provided that nothing herein contained shall be construed to prevent the owner of a servient estate from making any alterations or changes in the location of any ditch upon his land, so long as such alteration or change of location shall not interfere with the use of or access to such ditch by the owner of the dominant estate. For the purposes of this section, the easement created pursuant to this section shall be adequate to allow for reasonable maintenance, use and improvements to the ditch.

B. In the case of a community ditch or acequia, a criminal complaint for a violation of the provisions of Subsection A of this section may be made by the district attorney or the mayordomo or commission of the ditch or acequia to the magistrate court in the county where the violation occurred. A person convicted of violating the provisions of Subsection A of this section is guilty of a misdemeanor and on conviction, the defendant shall be fined not less than three hundred dollars ($300) nor more than one thousand dollars ($1,000) or sentenced up to ninety days imprisonment in the county jail, or both.

C. In the case of a community ditch or acequia, in addition to criminal prosecution, the district attorney or the mayordomo or commission of the ditch or acequia may file a civil complaint seeking a civil penalty not to exceed five thousand dollars ($5,000) for knowingly, intentionally or willfully violating the provisions of Subsection A of this section.

D. The remedies provided for in this section shall not be construed as limiting the right of the party bringing the civil or criminal complaint from seeking damages. In addition to the remedies provided in this section, the district attorney, mayordomo or commission of the ditch or acequia or owner of the dominant estate may apply to the district court of the county where the violation occurred for an injunction restraining any person from violating or continuing to violate the provisions of Subsection A of this section.

History: Laws 1933, ch. 65, § 1; 1941, ch. 155, § 1; 1941 Comp., § 77-1405; 1953 Comp., § 75-14-5; 2005, ch. 186, § 1.

The 2005 amendment, effective June 17, 2005, provided in Subsection A that it is unlawful to interfere with the easement or prevent access to the ditch by the owner of the dominant estate as provided by law and that the easement shall be adequate to allow for reasonable maintenance, use and improvement of the ditch; added Subsection B to provide that in the case of a community ditch or acequia, a criminal complaint may be made by the district attorney, mayordomo or commission of the ditch or acequia to a magistrate court and prescribes penalties for violations of Subsection A; added Subsection C to provide that in the case of a community ditch or acequia, in addition to a criminal prosecution, the district attorney, mayordomo or commission of the ditch or acequia may file a civil complaint seeking a civil penalty of not more that $5,000 for violation of Subsection A; and added Subsection D to provide that the remedies provided in this section are not exclusive remedies and that the district attorney, mayordomo, commission of the ditch or acequia, or owner of the dominant estate may apply for an injunction restraining any person from violating Subsection A.

Purpose of section. — The purpose of this section is to resolve disputes between parties with interests in a ditch, owners of the ditch land and owners of a ditch easement, and an easement between private interests is expressly within its purview. Cox v. Hanlen, 1998-NMCA-015, 124 N.M. 529, 953 P.2d 294, cert. denied, 124 N.M. 418, 952 P.2d 19.

Applicability. — Section 73-2-27 NMSA 1978 does not apply to this section. Cox v. Hanlen, 1998-NMCA-015, 124 N.M. 529, 953 P.2d 294, cert. denied, 124 N.M. 418, 952 P.2d 19.

Inception of five-year period. — The five-year period for creating an easement applies after the creation of a relationship between parties with different rights to a ditch rather than the creation of the ditch itself. Cox v. Hanlen, 1998-NMCA-015, 124 N.M. 529, 953 P.2d 294, cert. denied, 124 N.M. 418, 952 P.2d 19.

Where multiple interests in a ditch did not exist when it was constructed, this section did not apply until additional interests to the ditch property were created, and, as the 1941 amendment, permitting a servient owner to make alterations or changes in the ditch was then in effect, it was applicable to a dispute between the property owners. Cox v. Hanlen, 1998-NMCA-015, 124 N.M. 529, 953 P.2d 294, cert. denied, 124 N.M. 418, 952 P.2d 19.

Dominant owner entitled to use land water flows over. — Dominant owner is not entitled only to beneficial use of the water; this section plainly defines the right acquired as a grant by the dominant owner to use the land over which the right is claimed. Archibeck v. Mongiello, 1954-NMSC-104, 58 N.M. 749, 276 P.2d 736.

Alterations of dominant owner must alter subject of easement. — Alterations that dominant estate owner may make to meet changed conditions of surrounding property must be alterations of the subject of the easement itself, for it is the changed condition of the surrounding property which has diminished enjoyment of the easement, and it is alteration of that easement which can render easement effectual. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541.

Dominant owner may not burden servient tenement nor change character of servitude. — As the right to the ditch or other artificial watercourse is an easement, no change can be made against landowner over whose land the ditch passes that is burdensome to the servient tenement or that changes the character of the servitude; even if enlargement or change would benefit servient estate, the owner thereof has a right to be his own judge of whether he will permit it. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541.

Reasonable entry for repair and maintenance. — The owner of the dominant estate created by express provision had the right to reasonably enter the servient estate to repair and maintain the right of way and remove natural obstructions interfering with its use. Cox v. Hanlen, 1998-NMCA-015, 124 N.M. 529, 953 P.2d 294, cert. denied, 124 N.M. 418, 952 P.2d 19.

Section is not applicable to ditches used solely for drainage purposes. Archuleta v. Jacquez, 1985-NMCA-077, 103 N.M. 254, 704 P.2d 1130.

Proviso does not control prior easement. — The 1941 amendment to this section, which added the proviso, was not controlling where easement was established prior to its enactment. Archibeck v. Mongiello, 1954-NMSC-104, 58 N.M. 749, 276 P.2d 736.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts §§ 29, 30; 45 Am. Jur. 2d Irrigation §§ 78 to 81, 104.

Character of easement in respect of water as one in gross or appurtenant, 89 A.L.R. 1187.

Agreement in respect of water rights in stream as creating a mere personal obligation, covenant running with the land or an easement, 127 A.L.R. 835.

Assignability and divisibility of easement in gross or license in respect of land or water, 130 A.L.R. 1253.

Rights and duties of owners inter se with respect to upkeep and repair of water easement, 169 A.L.R. 1147.

28 C.J.S. Drains § 59; 94 C.J.S. Waters §§ 349, 350.