contents; verification; filing; recording; presumption.
Any person, firm or corporation claiming to be an owner of a water right which was
vested prior to the passage of Chapter 49, Laws 1907, from any surface water source
by the applications of water therefrom to beneficial use, may make and file in the office
of the state engineer a declaration in a form to be prescribed by the state engineer
setting forth the beneficial use to which said water has been applied, the date of first
application to beneficial use, the continuity thereof, the location of the source of said
water and if such water has been used for irrigation purposes, the description of the
land upon which such water has been so used and the name of the owner thereof. Such
declaration shall be verified but if the declarant cannot verify the same of his own
personal knowledge he may do so on information and belief. Such declarations so filed
shall be recorded at length in the office of the state engineer and may also be recorded
in the office of the county clerk of the county wherein the diversion works therein
described are located. Such records or copies thereof officially certified shall be prima
facie evidence of the truth of their contents.
History: 1953 Comp., § 75-1-2.1, enacted by Laws 1959, ch. 222, § 1; 1961, ch. 250, §
1.
ANNOTATIONS
Compiler's notes. — The provisions of Laws 1907, ch. 49, are presently compiled as
19-7-26, 72-1-1, 72-1-2, 72-1-5, 72-2-1 to 72-2-7, 72-2-9, 72-2-10, 72-3-1 to 72-3-5, 72-
4-1, 72-4-13, 72-4-15, 72-4-17 to 72-4-19, 72-5-1, 72-5-3, 72-5-4, 72-5-6 to 72-5-24, 72-
5-26 to 72-5-28, 72-5-33, 72-7-1 to 72-7-3, 72-8-1 to 72-8-6, 72-9-1 to 72-9-3 NMSA
1978.
Cross references. — For filing and recording of changes of ownership in water rights,
see 72-1-2.1 NMSA 1978.
For the state engineer, see 72-2-1 NMSA 1978.
Effect of declarations. — Admission of the declarations called for by this section would
at most satisfy the burden of going forward; it would satisfy the burden of proof only if
not rebutted by the state. Because these declarations go to the flood flows, and
groundwater is not a source of flood flow, there can be no relation back on such flood
flow. State ex rel. Martinez v. Lewis, 1994-NMCA-100, 118 N.M. 446, 882 P.2d 37.
Community ditch commissioners do not condemn land by filing declaration of
water rights hereunder. 1969 Op. Att'y Gen. No. 69-96.
Law reviews. — For article, "Water Rights Problems in the Upper Rio Grande
Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16
Nat. Resources J. 975 (1976).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see
23 Nat. Resources J. 25 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 93 C.J.S. Waters § 184.
Notes of Decisions
Montgomery v. Lomos Altos, Inc., 2007 NMSC 002 (N.M. 2006).
· cites it 2× “We hold that under the facts of this case, the hearing examiner had no authority to ignore the above-mentioned water rights declarations at these springs. {29} We agree with Applicants and the State Engineer that beneficial use is the measure, basis, and limit of a water right,…”
Walker v. United States, 79 Fed. Cl. 685 (Fed. Cl. 2008).
· cites it 3× “” See N.M. Stat. Ann. § 72-1-3 (“Such records or copies thereof officially certified shall be prima facie evidence of the truth of their contents.”
Montgomery v. New Mexico State Eng'r, 114 P.3d 339 (N.M. Ct. App. 2005).
· cites it 4× “Thus, we rule that the State Engineer's findings were not an adjudication of forfeiture or abandonment of declared water rights that are not being put to beneficial use. {28} Protestants did not offer any evidence apart from the declarations to rebut Applicants' prima facie case…”
State Ex Rel. Martinez v. Lewis, 882 P.2d 37 (N.M. Ct. App. 1994).
· cites it 4× “BURDEN OF PROOF Finally, Appellants argue that the declarations filed by Herbert and Michael Corn, Appellants’ Exhibits VI-P and VI-Q, are prima facie evidence of their right under NMSA 1978, Section 72-1-3 (Repl.”
Sacramento Grazing Ass'n v. United States, 96 Fed. Cl. 175 (Fed. Cl. 2010).
· cites it 2× “The Declaration of Ownership must state “the beneficial use to which said water has been applied, the date of first application to beneficial use, the continuity thereof, the location of the source of said water and if such water has been used for irrigation purposes, the…”
Romero v. State, 642 P.2d 172 (N.M. 1982).
“During the time that the purchase contract was in effect, the property was subject to taxation pursuant to § 72-1-3, N.M.S.A.1953 (Repl.Vol.1961) (repealed 1974 N.”
Bd. of Equalization v. Heights Real Est. Co., 391 P.2d 328 (N.M. 1964).
· cites it 12× “the district court of Bernalillo County, which construed § 72-1-3, N.M. S.A., 1953 Comp., as requiring the county 'assessor to place lands being purchased under contract from the State of New Mexico on the tax assessment roll at 16% of the total contract price paid for said…”
State Eng'r of New Mexico v. Diamond K Bar Ranch, LLC, 2016 NMSC 036 (N.M. 2016).
· cites it 2× “See NMSA 1978, § 72-1-3 (1961) (stating that a holder of a pre-1907 water right may file a declaration of the right); § 72-5-1 (requiring anyone “hereafter intending to acquire the right to the beneficial use of any waters” to apply for a permit to appropriate water).”
Hair v. Motto, 478 P.2d 554 (N.M. 1970).
· cites it 2× “Section 72-1-3, N.M.S.A., 1953 (1969 Supp.”
Santa Fe Water Resource All., LLC v. D'Antonio, 2016 NMCA 035 (N.M. Ct. App. 2015).
· cites it 2× “See NMSA 1978, § 72-1-3 (1961) (“Any person, firm or corporation claiming to be an owner of a water right which was vested prior to the passage of Chapter 49, Laws 1907,.”
State Eng'r v. Diamond K Bar Ranch, LLC, 2016 NMSC 36 (N.M. 2016).
· cites it 2× “See NMSA 1978, § 72-1-3 (1961) (stating that a holder of a pre-1907 water right may file a declaration of the right); § 72-5-1 (requiring anyone “hereafter intending to acquire the right to the beneficial use of any waters” to apply for a permit to appropriate water).”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.