Irrigation laws of New Mexico online

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BANCROFT
LIBRARY

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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA



Irrigation Laws of
New Mexico




Compiled by the State Engineer for the Board of
Water Commissioners, July, 1920.






IRRIGATION LAWS



OF THE



STATE OF NEW MEXICO



WITH



An Index of Decisions of the State Board of Water

Commissioners

Opinions Renedered by the Attorney General
and Water Decisions by the
Supreme Court



Compiled by the State Engineer for the Board

of Water Commissioners

July, 1920



Members of State Board of Water
Commissioners

FRANCIS G. TRACY, Chairman Carlsbad, N. M.

NUMA C. FRENGER Las Cruces, N. M.

NICACIO ORTEGA Chimayo, N. M.

A. J. FISCHER, Clerk Santa Fe, N. M



L. A. GILLETT, State Engineer Santa Fe, N. M.

BRADLEY M. THOMAS, Law Clerk Santa Fe, N. M.



Santa Fe New Mexican Publishing Corporation, Santa Fe, N. M.



INDEX



Section

Appropriation waters subject to ., , 1

Applications see water rights.

Assignments of water rights 45

Pages
Attorney General opinions, index of - 104

Section

Beneficial use - ... 2

Bridges to be constructed by owners of ditches 58

Board of Water Commissioners, how created _ 70

Board of Water Commissioners, duties of 71

Board of Water Commissioners, decisions, appeal from, action

or non-action 73 7 4

Board of Water Commissioners, may make rules and regulations 75

Board of Water Commissioners, per diem and expenses 76

Board of Water Commissioners, shall appoint clerk : 7T

Pages

Board of Water Commissioners, index of decisions 98

Board of Water Commissioners, rules of 114

Section

Community ditches, existing, not affected 28

Community ditches, point of diversion, how changed _ 205

Construction work, time for completion of one fifth 36

Construction work, when completed - 37

Construction work, unsafe method of procedure 39 40

Certificate of construction, when issued _ 38

Community customs, rules, etc , _ 65

Ditch owner shall construct headgate 55

Destruction of headgates, weirs, dams, etc 56



Decisions State Board of Water Commissioners, index of, 48

Decisions Supreme Court , 109

Section

Enlargement of existing structures 3 69

Extension of time for construction 36- 37, 41 to 44

Extension of time for construction works started previous to act 85

Fees _ ~ 9

Hydrographic Surveys, to be made by State Engineer 19 20



Hydrographic Surveys, suit to determine rights, decreed 21 to 26

Hydrographic Surveys, moneys, how provided and expended 23

Headgate, ditch owner shall construct 55

Headgate, destruction of 56

Irrigation Districts:

Section

When irrigation district may be formed. Proviso : 148

Petition to be filed with Board of County Commissioners; con-
tents of. Bond to accompany. Publication of petition 150

Procedure of County Commissioners. Call for election. District
to contain three divisions. Board of directors of district. Each
division election precinct. Appointment of judges and clerks.
Proviso 151

Publication of notice of election. Contents of. Legal Voters. Form
of ballot, etc 152

County Commissioners to canvass votes, and issue order. Order

to be filed. Election precincts and polling places 153

Regular election in district. Date of. Officers elected to take oath.

Filing of. Bond. Form of 154

Office of board of directors. Location. Polling places. Posting
of notices of, for election subsequent to organization of dis-
trict. Officers to be appointed 155

Judge of election . Powers. Oath. Who may administer. Officers

to take. Hours for voting _ 156

Return. Form. Rejection. When. Board of directors to meet

and canvass returns. Postponement. Result 157

Secretary of board of directors to make return. Statement. Con-
tents of. Vacancy in board of directors. How filled 158

Directors to organize as board.. Duties of. Powers. To make
report to Territorial Engineer. Fee to accompany. Engineer
to examine and report. Board of directors may appeal. Addi-
tional powers of board. Rules and Regulations to be printed.
Apportionment of water. Proviso 159

Meetings of board. Quorum. Records. Additional powers 160

Title to property to be vested in irrigation district. Exemption

from taxes. Proviso '.. 160

Board to take conveyances, etc. May sue and be sued. When.

district legally organized, etc _ 161

Bond issue. When. Notice of election. Publication. Proviso.
Ballot. Form of. Vote for bonds. Issue. Amont. Expiration.
Payments, etc. Proviso - 162

When board may sell bonds. To hold meeting and decide amount

of. Notice of sale of by publication. Proposals. Sale 163

Bonds. How paid 164

Board of directors to meet annually and determine amount of

money necessary for maintenance for ensuing year 165

ii



Duty of assessor. Assessments. List of. Those exempt 166

Board of County Commissioners to certify levies to commission-
ers of each county embracing any portion of district. Rate

of levy to be increased. Special taxes 167

County treasurer ex-officio district treasurer. Liability of. Duties.
Accounts to keep, etc. Report of district treasurer to board

of directors monthly. Proviso 168

Revenue laws of Territory applicable for purposes of this act 169

Construction of canals, etc. Publication of notice. Contents of
notice. Contracts to be let to whom. Approval of work by

board r , 170

Payment of claims. Proviso. Record of warrants, etc 171

Funds for defraying expenses of organization, management, etc.,

to be raised by levy and assessment. Proviso 172

Power to construct: Right-of-way, etc 173

Board of directors. Compensation. Directors or officers not to
be interested in any contract. Receipt of bonds, gratuity or

bribe. Felony. Penalty , 17 4

Board of directors, etc, not to incur debts in excess of provisions

of act. Void .'. _ 175

Distribution of water. Insufficient supply 176

Restriction as to diversion of waters , 177

Boundaries of irrigation district. Change of 178

Petition by property holder adjoining to have land included in

district. Form of 179

Secretary of district to publish notice of filing of petition. Con-
tents of. Petitioner to advance costs 180

Board to hold meeting and hear objections. Failure of interested

persons to show cause, deemed assent 181

Board of directors to require petitioners to pay pro rata share of

all previous bonds, interest, etc r 182

Board of directors may reject petition or include. Change of boun-
daries. Survey. Proviso _ 183

Board to order change. Copy of order with plat of district show-
ing change to be filed for record, etc, 184

Petition to be recorded in minutes r * 184

Guardian, etc., may sign petition and show cause 185

Re-division of district. Numbering of. Directors. Election of, etc 186

Exclusion of land included in district. Procedure. Effect of _ 187

Petition for exclusion of lands. Contents of _ 188

Notice of filing to be published. Where. Posting of. Contents
of. Expiration of time to show cause. Petitioner to advane

funds to pay costs _ - _ 189

Board to hear objections. Result - ..... 190

Denial of petition. Granting of petition. Proviso _..._ 191

Certified copy of order with plat to be filed _ _ _ 192

Division of district. Election, etc. ... - 193



Petition for dissolution of district. Procedure, etc. Ballots. Form of. 194

Canvass of vote. Certificate to be recorded. Result 195

Sale of bonds of district 196

Proceedings for approval of bond issue, etc 197

Hearing of petition, etc. Procedure -...., - 198

Demurrer. Provisions of Code of Civil Procedure applicable.

Rules of pleading and practice -...._ - 199

Finding of court _ - 200

"District" defined for purposes of act 201

License to appropriate , 41

Liens on lands _ _ _._ 61

Lands under U. S. projects, how sold , 63

Misdemeanor, destruction of diversion or storage works 56

Misdemeanor, what shall constitute _ 57

Misdemeanor, unlawful to obstruct use of works - , 64

Misdemeanor penalties - 60

Misdemeanor, violation of Section 75 79

Pages
Opinions of Attorney General, index of - -....- ,. _ 104

Section

Proofs of publication _ _ ,. 34

Penalties for violation of this act...... 60

Right-of-way, by the U. S. and others _ 3

Rights-of-way, how acquired by county commissioners _ 19

Records of office of State Engineer. _ _ 10

Rules and regulations, office of State Engineer 11

Report of Hydrographic Survey by State Engineer _ _ '...... 20

Rules, community customs, etc. - 65

State Engineer, qualifications, duties, etc 4, 5, 7, 8

State Engineer, fees * _ . 9

State Engineer, records, how kept __ _ _ _ 10

State Engineer, supervisor of apportionment of water 12 13

State Engineer, to co-operate with Boards of County Commis-
sioners - - ~ - 19

State Engineer, legal advisers of _ _ 47

State Engineer, or assistant, power to make arrests 56

State Engineer, appeal from action of ~ 72 83

Stock watering purposes, not affected by act...... _ 29

Pages
Supreme Court decisions, index of - -....- 109

Territorial Engineer, see State Engineer.

Section

United States, right-of-way, how acquired _ - 3

United States, co-operates on hydrographic surveys 8

iv



United States, construction works, not subject to inspection 39

United States, water rights, how acquired by 49

United States, works of, land under to be sold in farm units _ 61

Water Master, how and when appointed 14

Water Master, appeal from acts or decision of _ 15

Water Master, how paid ........ 16

Water Master, reports to State Engineer 17

Water Master, not appointed until rights are adjudicated - 66

Water Rights, beneficial use the limit 2

Water Rights, to use water, how acquired 27, 32, 33, 34

Water Rights, grounds of rejection , 35

Water Rights, assignments of - - 45

Water Rights, suits, how determined _ - 46

Water Rights, limitation of deferred use 51

Water Rights, change of diversion and use....... r _ 32, 53, 54

Water Rights, to seepage water from constructed works -.. 62

Water Rights, existing ,not impaired by act 67

Water Rights, all papers shall be filed in county 78

Water Rights, to return flow _ .:_ 82

Water, surplus salable r 48

Water, standards of measures of _ ~ 50

Water, appurtenant to the land - - , ~ 53

Water, when delivered from one drainage area to another 68 79



Constitutional Provisions.

Adopted January 21st, 1911



ARTICLE XVI

Irrigation and Water Rights.

Section 1. All existing rights to the use of any waters in
this state for any useful or beneficial purposes are hereby
recognized and confirmed.

Sec. 2. The unappropriated waters of every natural stream,
perennial or torential, within the State of New Mexico, is here-
by declared to belong to the public and to be subject to ap-
propriation for beneficial use. In accordance with the law
of the State, priority of appropriation shall give the better
right.

Sec. 3. Beneficial use shall be the basis, the measure and
the limit of the right to the use of water.

Sec. 4. The Legislature is authorized to provide by law for
the organization and operation of drainage districts and sys-
tems.



IRRIGATION LAWS OF NEW MEXICO



As Amended to Date



Section 1. (Sec. 5654, 1915 Code.) All natural waters flow-
ing in streams and water courses, whether such be perennial,
or torrential, within the limits of the state of New Mexico, be-
long to the public and are subject to appropriation for bene-
ficial use.

Act of Mar. 19, '07; L. '07, C. 49, 1.

See Sec. 5731.

For constitutional provision see Art. XVI, 2.

Cited in Turley v. Furman, 16 N. M 262< 114 Pac. 278, holding proposed
diversion of waters in Colorado for use in New Mexico is not within the
jurisdiction of the Territorial Engineer.

This section expressly limits the operation of the act of 1907 to natural
public waters within the territory of New Mexico, with the further limitation
Vhat it is water flowing in streams and water courses.

Vanerwork v. Hewes, 15 N. M. 439, 110 Pac. 567.

For a discussion of water rights prior to the adoption of this statute.

See Hagerman Irrigation Co. v. McMurray, 16 N. M. 179, 113 Pac 823.

An arroyo which comes out of hills in a well defined channel is a natural
water course although water does not run in it during the entire year.

Ditch Co. v. Garcia, 17 N. M. 160; 124 Pac. 891.

Sec. 2. (Sec. 5655, 1915 Code.) Beneficial use shall be the
basis, the measure and the limit of the right to the use of water,
and all waters appropriated for irrigation purposes, except as
otherwise provided by written contract between the owner of
the land and the owner of any ditch, reservoir or other works
for the storage or conveyance of water, shall be appurtenant
to specified lands owned by the persons, firm or corporation
having the right to use the water, so long as the water can be
beneficially used thereon, or until the severance of such right
from the land in the manner hereinafter provided in this article.
Priority in time shall give the better right. In all cases of claims
to the use of water initiated prior to March 19, 1907, the right
shall relate back to the initiation of the claim, upon the diligent
prosecutiion to completion of the necessaary surveys, and con-
struction for the application of the water to a beneficial use.
All claims to the use of water initiated thereafter shall relate
back to the date of the receipt of an application therefor in
the office of the territorial or state engineer, subject to com-
pliance with the provisions of this article, and the rules and
regulations established thereunder.

Act of Mar. 19, '07; L, '07, C. 49, 2.

For constitutional provisions see Art. XVI, 3.

For further provisions making water appurtenant to land see Sec. 5703.



Sec. 3. (Sec. 5656, 1915 Code.) The United States, the State
of New Mexico, or any person, firm, association or corporation,
may exercise the right of eminent domain, to take and acquire
land right-of-way for the construction, maintenance and oper-
ation of reservoirs, canals, ditches, flumes, acqueducts, pipe
lines or other works for the storage or conveyance of water
for beneficial uses, including the right to enlarge existing
structures, and to use the same in common with the former
owner; any such right-of-way for canal, ditch, pipe line, or
other means for the conveyance of water shall in all cases
be so located as to do the least damage to private or public
property consistent with proper use and economical construc-
tion. Such land and right-of-way shall be acquired in the
manner provided by law for the condemnation and taking of
private property in the State of New Mexico for railroad, tele-
graph, telephone and other public uses and purposes. The
engineers, and surveyors, of the United States, the State, and
of any person, firm or corporation shall have the right to enter
upon the lands and waters of the State and of private persons
and of private and public corporations, for the purpose of mak-
ing hydrographic surveys and .examinations and surveys nec-
essary for selecting and locating suitable sites and routes for
reservoirs, canals, pipe lines, and other water works, subject
to responsibility for any damage done to such property, in
making such surveys.

Act of Mar. 19, '07; L. '07, C. 49, 3.

Cited in City of Albuquerque v. Garcia et al., 17 N .M. 445; 130 Pac. 118.

The terms of this section and section 5719 are broad and include every
person having a water right and the right of condemnation given is not
limited to those whose rights are acquired or regulated by the act of which
they are a part. The right of eminent domain under these sections extends
to community ditches constructed prior to the passage of this act.

Pueblo of Isleta v. Tondre, 137 Pac. 86



Sec. 4. (As amended by L. 1919, Chap. 46.)

"There shall be a state engineer who shall be a
technically qualified and experienced hydraulic engineer, and
who shall be appointed by the governor and such appointment
confirmed by the senate. He shall hold office for the term of
two years from and after his appointment, or until his successor
shall have been appointed, and shall have qualified. He shall be
subject to removal only for cause. He shall have general super-
vision of the water of the state and of the measurement, ap-
propriation, and distribution thereof, and such other duties as
are required by this article. He shall receive a salary of three
thousand dollars per annum and actual necessary traveling ex-
penses while away from his office in the discharge of official
duties. The office of the state engineer shall be located at the
seat of government. ,He shall not engage in any private prac-

5

I



tice except as consulting engineer; Provided, however, that
he may establish a schedule of fees for drawing plans, prepar-
ing specifications and giving expert advice and other services
as consulting engineer, and charge such fees for services, mak-
ing a report to the state auditor of all fees and compensation
paid to him for such services; Provided, further, that when
the total amount collected for such services as consulting en-
gineer as hereinbefore defined shall have amounted to the sum
of two thousand dollars, that any fees collected thereafter,
during any one year, shall be turned into the treasury of the
State.

Sec. 2. All Acts or parts of acts in conflict herewith are
hereby repealed.

Sec. 5. (Sec. 5658, 1915 Code.) The state engineer may employ
assistants and purchase materials and supplies for the proper
conduct and maintenance of his office and department, in
pursuance of appropriations as made from time to \,ime for
such purposes. The salaries and expenses of the office of the
state engineer shall be paid at the 'same time and in the same
manner as those of otheT officers of the state.

Act of Mar. 19. '07: L. '07, C. 49, 5.
20 N. M. 579; 151 Pac. 233.

Sec. 6. (Sec. 5659, 1915 Code.) Before entering upon the
duties o his office the state engineer shall take the oath as
prescribed by law for state officials. He shall file with the
secretary of the state, a bond, in the penal sum of ten thoussand
($10,000) dollars, to be approved by the attorney general, and
conditioned upon the faithful discharge of his duties, and for
delivery to his successor of all property belonging to the public
then in his possession or control.

Act of Mar. 19, '07; L. '07, C. 49, 6.
For oath see Constitution, Art. XX, 1.

Sec. 7. (Sec. 5660, 1915 Code.) All claims for services ren-
dered, expenses incurred, or materials or supplies furnished
under the direction of the state engineer and which are pay-
able from the funds appropriated for the prosecution of the
work under his direction and supervision shall be approved
by the state engineer and properly vouchered and filed in the
office of the state auditor, who shall, if he finds the same
to have been inc'urred in accordance with law, audit and
allow such claims and issue his warrant on the treasurer in
payment thereof.

Act of Mar. 19, '07; L. '07, C 49, 7.
20 N. M. 579; 151 Pac. 233.

Sec. 8. (Sec. 5661, 1915 Code.) The state engineer shall pre-
pare and deliver to the govenor, on or before November 30th
of the year preceding the regular session of the legislature,
and at other times when required by the governor, a full re-



port of the work of his office including a detailed statement
of the expenditures thereof to and including October 31st,
with such recommendations for legislation and appropriation
as he deems advisable.

Act of Mar. 19, '07; L. "07, C. 49, 8.

Sec. 9. (Sec. 5662, 1915 Code.) The state engineer shall re-
ceive the following fees, to be paid by him into the hydro-
graphic survey fund of the state treasurer provided for in this
article upon the last day of March, June, September and
December of each year.

Fees for Application for Permit to Appropriate Water.

(a) For filing and examining an application for permit to
appropriate water where the project is chiefly for diversion
and direct use of the water, ten dollars if the amount claimed
does no exceed five cubic feet per second and one dollar for
each cubic foot of water per second in excess of five. For filing
and examining an application for permit to appropriate water
where the project is chiefly for storage of flood waters, ten
dollars for each one thousand acre feet or fraction thereof of
storage capacity, such fees to include the filing and examina-
tion of maps, field notes, proofs of publication and all other
papers relating to the application up to the recording of the
permit to appropriate water.

Fees for Application for Water for Power Only.

(b) For filing and examining an application for permit to
appropriate water for power purposes only, when the water is
returned to the river bed undiminished in quantity and made
available for irrigation purposes, ten dollars if the quantity
does not exceed five cubic feet of water per second of time,
and an additional charge of twenty-five cents for each cubic
foot of water per second of time in excess of five.

Fee for Recording, Permit, Certificate of Construction, License
to Appropriate, and Miscellaneous Papers.

(c) For recording and issuing any permit, certificate of
construction or license to appropriate, five dollars. For issuing
any miscellaneous, water right instrument or copy of any doc-
ument recorded in his office, one dollar for the first one hun-
dred words or fraction thereof, and fifteen cents for each ad-
ditional one hundred words or fraction thereof.

Fee for Miscellaneous Filings.

(d) For filing any other paper necessarily forming a part
of the permanent record of the water right application, per-
mit or license one dollar.



Fee for Examination of Plans and Specifications.

(e) For examinating in connection with any water rights
application the plans and specifications for dam, one dollar
for each one thousand dollars or fraction thereof of the esti-
mated cost of such dam. For a canal or other water conduit
ten dollars where the capacity does not exceed fifty cubic feet
of water per second and ten dollars for each additional fifty
cubic feet or fraction thereof per second of time.

Pees for Blue Prints and Permit to Extend Time.

(f ) For a blue print copy of any map accompanying an ap-
plication for a permit to appropriate water, two dollars for
each sheet thereof.

(g) For the issuing of a permit for an extension of time, ten
dollars.

Fees for Inspecting Dam Sites, Rating- Ditches and Other Work.

(h) For inspecting dam sites, or construction work as re-
quired by law, ten dollars per day and actual and necessary
traveling expenses. Fees for any' inspection deemed neces-
sary by the state engineer and not paid on demand shall be
a lien on any land or other property of the owner of the works
and may be recovered by the state engineer in any court of
competent jurisdiction.

(i) For rating ditches, ten dollars per day and actual and
necessary traveling expenses.

(j) For such other work as may be required of his office
such reasonable fees as the character and extent of the work
shall justify.

Fees When Payable, Disposition, Refund.

The filing fees provided for in this section shall be deposited
with the state engineer at the time of filing the application and
upon the approval of such application the fees shall be paid
into the state treasury by the state engineer for the credit of
the hydro graphic survey fund. In the event that the applica-
tion is rejected the fees so deposited less the sum of five
dollars shall be returned to applicant. If the application be
approved for a portion of the amount of water claimed the
state engineer shall retain the proper amount of fees based
upon the amount of water for which permit is granted and
return the balance to applicant.

Act of Mar. 15, '03; L. '13, C. 62, 1.

Sec. 10. (Sec. 5663, 1915 Code.) The records of the office
of the state engineer are public records, shall remain on file in
his office, and shall be open to the inspection of the public at
all times during business hours. Such records shall show all
applications filed, with date of filing, and shall show in full
all permits, certificates of completion of construction, and li-



censes issued, together with all action thereon, and all action or
decisions of the state engineer affecting any rights or claims to
appropriate water. Certified copies of any record or papers on
file in the office of the state engineer shall be evidence qually
with the originals thereof; and when introduced as evidence
shall be held as of the same validity as the originals.

Act of Mar. 19, '07; L. '07, C. 49, 10.

Sec. 11. (Sec. 5664, 1915 Code.) The state engineer, subject