N.M. Stat. » Chapter 72 — Water Law

N.M. Stat. § 72-12-2

[Right to use waters.]

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Beneficial use is the basis, the measure and the limit to the right to the use of the waters described in this act [72-12-1 to 72-12-10 NMSA 1978].

History: Laws 1931, ch. 131, § 2; 1941 Comp., § 77-1102; 1953 Comp., § 75-11-2.

ANNOTATIONS

Compiler's notes. — For cases dealing with water rights and use thereof, see notes to 72-12-1 NMSA 1978.

Appropriation measured by beneficial use. — Amount of water which has been applied to beneficial use is measure of quantity of appropriation. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Entitlement only to water needed. — No matter how early person's priority of appropriation may be, he is not entitled to receive more water than is necessary for his actual use; excessive diversion of water, through waste, cannot be regarded as diversion to beneficial use, within meaning of N.M. Const., art. XVI, §§ 1 to 3. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Waste not countenanced. — Law will not countenance diversion of volume of water from artesian well which, by reason of waste resulting from permitting it to run uncontrolled for 24 hours a day over grazing lands without irrigation system, or through pipes to water troughs fitted with float feeds or other means of control to prevent waste therefrom, is many times that which is actually consumed for useful or beneficial use. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Use of water must be beneficial to lands of appropriator, and must also be reasonable. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983. Forfeiture of unused rights. — Rights to water not used for four years, absent extenuating circumstances, are forfeited, policy of this section being to foster greatest good for greatest number. State ex rel. Reynolds v. S. Springs Co., 1969-NMSC-023, 80 N.M. 144, 452 P.2d 478.

Right to prescribe use. — State as owner of water has right to prescribe how it may be used. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Total ban on interstate transportation of ground water cannot be supported. — Taken as a whole, New Mexico's scheme of water regulation demonstrates a genuine effort to promote optimum utilization of its diminishing water resources. This effort, which is unquestionably legitimate and highly important, may justify limited, nondiscriminatory burdens on interstate commerce, but cannot support a total ban on the interstate transportation of ground water. City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds, 563 F. Supp. 379 (D.N.M. 1983).

Priority of underground water right. — Landowner who lawfully began developing underground water right and completed it with reasonable diligence acquired water right with priority date as initiation of his work even though lands involved were placed within declared artesian basin before work was finished and water put to beneficial use. State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

No "water right" arises from private property pond. — Nowhere in Chapter 72, Article 12, is there any indication that a "water right" subject to impairment, and which provides standing to protest another's application for a permit, arises from the mere existence of a pond on private property. Town of Silver City v. Scartaccini, 2006-NMCA- 009, 138 N.M. 813, 126 P.3d 1177.

Source of pond water. — Unless shown otherwise by the person claiming some sort of a private right, the source of pond water, if no surface source is shown, is presumed to be underground water that is shared by other members of the public within the hydrologic model boundary. Town of Silver City v. Scartaccini, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177.

Law reviews. — For note, "New Mexico State Engineer Issues Orders on Mine Dewatering," see 20 Nat. Resources J. 359 (1980).

For comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).

For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 152. Liability of landowner withdrawing groundwater from own land for subsidence of adjoining owner's land, 5 A.L.R.4th 614.

93 C.J.S. Waters § 93.

Notes of Decisions
Cited in 11 cases (1 in the last 5 years), 1983–2022 · leading case: Hanson v. Turney
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Hanson v. Turney (2004) nmctapp · cites it 2× “”); NMSA 1978, § 72-12-2 (1931). Beneficial use is “the use of such water as may be necessary for some useful and beneficial purpose in connection with the land from which it is taken.”
New Mexico v. General Electric Co. (2004) nmd · cites it 2× “The State serves as the watermaster, the gatekeeper, the overseer of the process of appropriation for beneficial use. As counsel suggests, it acts as the trustee: it owns the resource, but holds it not for itself, but for the use and benefit of the public.”
Turner Ex Rel. Manzano Resources v. Bassett (2005) nm · cites it 2× “XVI, § 3; NMSA 1978, § 72-12-2 (1931); § 72-5-22; § 72-5-23.”
State Ex Rel. State Engineer v. Romero (2019) nmctapp · cites it 2× “XVI, §§ 1-3, and the previous compilation of Section 72-12-2). {29} In 2 Clesson S. Kinney, A Treatise on the Law of Irrigation & Water Rights § 1118, at 2021-22 (2d ed.”
Sun Vineyards, Inc. v. Luna County Wine Development Corp. (1988) nm “The New Mexico Constitution provides that “Beneficial use shall be the basis, the measure and the limit of the right to the use of water.”
City of El Paso Ex Rel. Public Service Board v. Reynolds (1983) nmd “(1978), subject to appropriation for beneficial use, § 72-12-2 N.M.Stat.Ann. (1978). The State Engineer has the responsibility for measuring, appropriating and distributing the public waters of the state.”
Hydro Resources Corp. v. Gray (2006) nmctapp · cites it 2× “XVI, § 3; see also NMSA 1978, § 72-12-2 (1931); Martinez, 2004-NMSC-009, ¶ 34 , 135 N.”
United States v. Plains Electric Generation & Transmission Cooperative, Inc. (1988) nmctapp · cites it 2× “XVI, § 3 and NMSA 1978, § 72-12-2 (Repl.1985) (declaring that beneficial use is the basis, measure and limit to the right to use water).”
Town of Silver City v. Scartaccini (2005) nmctapp · cites it 2× “The term “water right” in Section 72-12-3(D) in the context of a protest, the term “rights” in the context of applications for use of water under Section 72-12-1, and the term “right” in NMSA 1978, § 72-12-2 (1931), in regard to beneficial use, exist within a statutory…”
Application of Plains Elec. Gen. & Trans. (1988) nmctapp · cites it 2× “XVI, § 3 and NMSA 1978, § 72-12-2 (Repl. 1985) (declaring that beneficial use is the basis, measure and limit to the right to use water).”
Aquifer Science v. Verhines (2022) nmctapp · cites it 2× “{42} Also, as we noted above, Section 72-1-2 and Section 72-12-2 already provide that “beneficial use” is “the basis, the measure and the limit of the right to the use of water,” Aquifer Science’s construction of the phrase “not contrary to conservation” to simply mean…”
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