2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 2 - Ditches or Acequias
Section 73-2-64 - Interference with ditch; illegal water use; penalty; failure to prosecute; injunctive relief.
A. A person shall not, contrary to the order of the mayordomo or commission, cut, break, stop up or otherwise interfere with any community ditch or dam in this state, or any contra or lateral acequia thereof, or take or use water from the same contrary to such orders. A person who violates a provision of this section is guilty of a misdemeanor, and, on complaint made before the nearest magistrate court, a warrant may issue for his arrest, as in case of any other offense against the state.
B. A criminal complaint for violations 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. Upon conviction of a violation, the defendant shall be fined not less than three hundred dollars ($300) or more than one thousand dollars ($1,000) and in default of the payment of said fine, shall be confined in the county jail for a period of not less than five nor more than thirty days.
C. 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 or the mayordomo or commission of the ditch or acequia 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.
E. It is the duty of the mayordomo in charge of any such ditch or acequia to prosecute in the name of the state any violation of this section whenever the mayordomo acquires knowledge thereof, and the mayordomo's failure so to do shall be deemed a misdemeanor; provided, however, that if the district attorney chooses to prosecute, the mayordomo shall not be required to do so. On conviction of violating the provisions of this subsection, the mayordomo shall be fined in a sum not less than twenty-five dollars ($25.00) or more than fifty dollars ($50.00) or by imprisonment in the county jail for not less than ten or more than thirty days.
History: Laws 1923, ch. 81, § 1; C.S. 1929, § 151-465; 1941 Comp., § 77-1460; 1953 Comp., § 75-14-61; 2005, ch. 186, § 2.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Section 35-1-38 NMSA 1978 abolished the office of justice of the peace, transferred the jurisdiction, powers and duties of said justices to the magistrate court and provided that all statutory references to "justice of the peace" shall be construed to refer to the magistrate court.
Cross references. — For general proscription of interference with use of waterworks, see 72-8-3 NMSA 1978.
The 2005 amendment, effective June 17, 2005, provided in Subsection A that a person shall not, contrary to the order of the mayordomo or commission of a ditch or acequia, interfere with any community ditch or acequia and that a person who violates this section is guilty of a misdemeanor; provided in Subsection B that a criminal complaint for violation of Subsection A may be made by the district attorney, mayordomo or commission of the ditch or acequia to a magistrate court and increased the penalty for a conviction to not less that $300 and not more than $1,000; added Subsection C to provide that in addition to 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 a violation of Subsection A; added Subsection D to provide that the remedies provided in this section are not exclusive remedies and that the district attorney, mayordomo, or commission of the ditch or acequia may apply for an injunction restraining any person from violating Subsection A; and provided in Subsection E that if the district attorney chooses to prosecute a violation of this section, the mayordomo shall not be required to do so and that on a conviction of a violation of Subsection E, the mayordomo shall be fined not less that $25 and not more that $50.
Authority of mayordomo to petition for injunctions. — 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; and defendants claimed that the lawsuit was invalid because the association had not authorized the filing of the lawsuit at an advertised meeting as required by the Open Meeting Act, Chapter 10, Article 15 NMSA 1978, the lawsuit was not invalid because 73-2-64(D) NMSA 1978 authorizes the mayordomo acting alone to apply for injunctions restraining any person from interfering with the ditch. Parkview Cmty. Ditch Ass'n v. Peper, 2014-NMCA-049.
Authority of the district court to authorize a person who is not an elected officer of the association to enforce the acequia statute. — Where defendants installed a new headgate on the association's acequia system without obtaining the approval of the association or the mayordomo; the person acting as mayordomo and a commissioner on behalf of the association obtained a temporary restraining order prohibiting defendants from continuing work on the ditch; the district court ordered defendants to submit plans and surveys of the headgate to the person acting as mayordomo for review and to make findings regarding the adequacy of the headgate; and defendants claimed that the person acting as mayordomo had not been properly elected by the association as mayordomo and did not have authority to make findings about the headgate or to compel compliance with those findings; and the district court expressly declined to determine whether the person acting as mayordomo had been duly elected as mayordomo, the person acting as mayordomo was acting under the authority of the district court's order, not 73-6-64 NMSA 1978, and the district court's order did not contravene the acequia statute. Parkview Cmty. Ditch Ass'n v. Peper, 2014-NMCA-049.
Attorney fees. — 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; and the district court awarded the association attorney fees, the award of attorney fees was not authorized by 73-2-23 or 73-2-64 NMSA 1978. Parkview Cmty. Ditch Ass'n v. Peper, 2014-NMCA-049.
Civil offense created under former law. — Section 36, 1897 C.L. (now repealed), provided for a "fine" not to exceed ten dollars and, for nonpayment thereof, for a sentence of fifteen days' labor on public works; the section did not create a criminal offense but rather a civil one, and suit should be brought by the overseer (mayordomo). Territory v. Baca, 1882-NMSC-002, 2 N.M. 183; Territory v. Tafoya, 1882-NMSC-001, 2 N.M. 191.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts § 33.
Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.
