Corporations formed under this article for the purpose of furnishing and supplying water for any of the purposes mentioned in Section 62-2-1 NMSA 1978, shall have, in addition to the powers hereinbefore mentioned, rights as follows:
A. to cause such examinations and surveys for their proposed reservoirs, canals, pipelines and ditches to be made, as may be necessary to the selection of the most eligible locations and advantageous routes, and for such purpose, by their officers, agents and servants, to enter upon the lands or water of any person, or of this state;
B. to take and hold such voluntary grant of real estate and other property, as shall be made to them in furtherance of the purposes of such corporation;
C. to construct their canals, pipelines or ditches upon or along any stream of water;
D. to take and divert from any stream, lake or spring the surplus water, for the purpose of supplying the same to persons, to be used for the objects mentioned in Section 62-2-1 NMSA 1978, but such corporations shall have no right to interfere with the rights of, or appropriate the property of any persons except upon the payment of the assessed value thereof, to be ascertained as in this article provided: and provided, further, that no water shall be diverted, if it will interfere with the reasonable requirements of any person or persons using or requiring the same, when so diverted;
E. to furnish water for the purposes mentioned in Section 62-2-1 NMSA 1978, at such rates as the bylaws may prescribe; but equal rates shall be conceded to each class of consumers;
F. to enter upon and condemn and appropriate any lands, timber, stone, gravel or other material that may be necessary for the uses and purposes of said companies.
History: Laws 1887, ch. 12, § 17; C.L. 1897, § 484; Code 1915, § 1042; C.S. 1929, § 32-422; 1941 Comp., § 72-205; 1953 Comp., § 68-2-5.
ANNOTATIONSCompiler's notes. — The 1915 Code compilers substituted the words "this article" for "this act." They presumably refer to Code 1915, ch. 23, art. 3, the effective provisions of which are compiled as 62-1-1 to 62-1-5 and 62-2-1 to 62-2-22 NMSA 1978, while the original reference to "this act" meant Laws 1887, ch. 12, the effective provisions of which are compiled as 62-2-1 to 62-2-19, 62-2-21 and 62-2-22 NMSA 1978.
Sections 62-2-1 to 62-2-22 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 2 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.
Cross references. — For eminent domain proceedings, see 62-2-16 to 62-2-18 and Chapter 42A NMSA 1978.
For need for certificate of convenience and necessity before construction or operation of utility, see 62-9-1 NMSA 1978.
For excavation damage to underground utility lines and related facilities, see 62-14-1 to 62-14-8 NMSA 1978.
For appropriation of water, see 72-5-1 to 72-5-39 NMSA 1978.
Irrigation companies may go upon private lands to make a preliminary survey for right-of-way by eminent domain, to divert surplus water, unappropriated and subject to diversion, for this is a public purpose, and it is not necessary that the distributing company shall itself be a consumer, provided the water is used beneficially within a reasonable time. The burden of proving such facts is with the company. Albuquerque Land & Irrigation Co. v. Gutierrez, 1900-NMSC-017, 10 N.M. 177, 61 P. 357, aff'd, 188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588 (1903).
Strangers may not raise question of interference with other appropriators. — The question whether the appropriation of water interferes with the rights of other appropriators cannot be raised by strangers not parties to the action. Albuquerque Land & Irrigation Co. v. Gutierrez, 1900-NMSC-017, 10 N.M. 177, 61 P. 357, aff'd, 188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588 (1903).