All natural waters flowing in streams and watercourses, whether such be perennial, or torrential, within the limits of the state of New Mexico, belong to the public and are subject to appropriation for beneficial use. A watercourse is hereby defined to be any river, creek, arroyo, canyon, draw or wash, or any other channel having definite banks and bed with visible evidence of the occasional flow of water.
History: Laws 1907, ch. 49, § 1; Code 1915, § 5654; C.S. 1929, § 151-101; Laws 1941, ch. 126, § 1; 1941 Comp., § 77-101; 1953 Comp., § 75-1-1.
ANNOTATIONSCross references. — For appropriation of water, see N.M. Const., art. XVI, § 2.
Purpose of Water Code. — Water Code of 1907 had for its purpose the conservation, protection and development of public waters of state and their application to beneficial uses. State ex rel. Red River Valley Co. v. District Ct., 1935-NMSC-085, 39 N.M. 523, 51 P.2d 239.
Water Code of 1907 was merely declaratory of law as it had already been established in this jurisdiction by repeated judicial decisions, except that by those decisions the time within which the application was to be made was not any definite period, but a reasonable time, depending, to some extent, on the circumstances of the particular case. Hagerman Irrigation Co. v. McMurry, 1911-NMSC-021, 16 N.M. 172, 113 P. 823.
Water Code of 1907 was merely declaratory of law. — Section was merely declaratory of existing law. Yeo v. Tweedy, 1929-NMSC-033, 34 N.M. 611, 286 P. 970.
New Mexico has comprehensive system for adjudication of water rights. U.S. ex rel. Acoma & Laguna Indian Pueblos v. Bluewater-Toltec Irrigation Dist., 580 F. Supp. 1434 (D.N.M. 1984), aff'd, 806 F.2d 986 (10th Cir. 1986).
Arid-region doctrine, regarding appropriation of water, was modified by Water Code of 1907, so that here the right to use of water, both as to volume and periods of annual use, was regulated either by permit of state engineer or decrees of the courts. Harkey v. Smith, 1926-NMSC-011, 31 N.M. 521, 247 P. 550.
Waters affected. — This section expressly limits the operation of chapter 49, Laws 1907, to natural public waters within the territory which are flowing in streams and watercourses; it excludes seepage water. Vanderwork v. Hewes, 1910-NMSC-031, 15 N.M. 439, 110 P. 567.
State controls water use because it does not part with ownership; it only allows a usufructuary right to water. Jicarilla Apache Tribe v. U.S., 657 F.2d 1126 (10th Cir. 1981).
"Public waters". — Natural waters flowing in streams and watercourses in New Mexico are public waters subject to adjudication and waters flowing into New Mexico via interstate streams and diverted in New Mexico are public waters of this state. State ex rel. Reynolds v. Luna Irrigation Co., 1969-NMSC-111, 80 N.M. 515, 458 P.2d 590.
Surface waters entering New Mexico after impoundment and subsequent release by Arizona irrigation company were public waters. State ex rel. Reynolds v. Luna Irrigation Co., 1969-NMSC-111, 80 N.M. 515, 458 P.2d 590.
Seasonal flow through ravine. — Where surface water in hilly region or high bluffs seeks outlet through gorge or ravine during rainy season, and by its flow assumes definite and natural channel, such accustomed channel through which water flows possesses attributes of natural watercourse; flow of water need not be continuous, and size of stream is immaterial. Jaquez Ditch Co. v. Garcia, 1912-NMSC-018, 17 N.M. 160, 124 P. 891.
Applicability of adjudication provisions to other waters. — Other waters than those mentioned in this section may be and are public waters, and rights not brought immediately within the administrative provisions of this Water Code may still be subject to its adjudication provisions. El Paso & R.I. Ry. v. District Ct., 1931-NMSC-055, 36 N.M. 94, 8 P.2d 1064.
Establishment of an existing water right. — To establish an existing water right, a claimant must demonstrate his intent to appropriate the water and show that he has actually diverted the water and applied it to beneficial use. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001.
Where plaintiff who claimed an existing water right was not currently diverting or using water to which he claimed a right, but rather based his claim to water rights on the water rights and irrigation work from his predecessor in interest, who diverted irrigation water over one hundred years prior to the existing cause of action, plaintiff failed to establish an existing water right by failing to show that he had actually diverted the water and applied it to beneficial use. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001.
Artificial waters are not subject to appropriation. Hagerman Irrigation Co. v. East Grand Plains Drainage Dist., 1920-NMSC-008, 25 N.M. 649, 187 P. 555.
Act does not regulate community acequias constructed prior to passage thereof, as to right to change point of diversion from stream into acequias. Pueblo of Isleta v. Tondre, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.
Interstate irrigation project. — Irrigation project upon waters of natural stream running from Colorado into New Mexico, when point of diversion, head gate and about six miles of irrigation ditch were in Colorado, was not within jurisdiction of territorial engineer of New Mexico. Turley v. Furman, 1911-NMSC-030, 16 N.M. 253, 114 P. 278.
Right to take water in individual user. — Right of water user to take water from public stream is a several right owned and possessed by the individual user, although ditch may have been constructed by joint labor. Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044.
Property right. — Water right is property and held to be real property by most authorities, and ten-year statute of limitations controls actions regarding such right. N.M. Prods. Co. v. N.M. Power Co., 1937-NMSC-04842 N.M. 311, 77 P.2d 634.
Stream and underground water rights identical. — Legislature has provided somewhat different administrative procedure for securing appropriator's rights to stream water and underground water, but substantive rights, when obtained, are identical. City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
Claim under Water Code. — Right of one claiming right to use of water for irrigation purposes under Water Code of 1907 does not relate back to earlier date than filing of application, as required by said act. Farmers Dev. Co. v. Rayado Land & Irrigation Co., 1923-NMSC-004, 28 N.M. 357, 213 P. 202.
Initiation of rights prior to passage of Water Code. — Where individual had initiated rights under general law and was prosecuting the same with diligence when the 1907 law went into effect, such right was recognized by and excluded from operation of the 1907 act. Farmers Dev. Co. v. Rayado Land & Irrigation Co., 1923-NMSC-004, 28 N.M. 357, 213 P. 202.
Determination of beneficial use is a question of fact. Jicarilla Apache Tribe v. U.S., 657 F.2d 1126 (10th Cir. 1981).
Beneficial uses may include recreation, fish and wildlife purposes. — The holding of Jicarilla Apache Tribe v. U.S., 657 F.2d 1126 (10th Cir. 1981), does not broadly stand for the proposition that using San Juan Chama Project water for recreation, fish and wildlife purposes is not "beneficial" under federal and state law. Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003).
Protection of endangered species is a beneficial use. — Diverting San Juan Chama Project water to prevent jeopardy to an endangered species of minnow is a "beneficial" use under New Mexico law. Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003).
Equitable apportionment is the doctrine of federal common law that governs disputes between states concerning their rights to use the water of an interstate stream. When both states recognize the doctrine of prior appropriation, priority becomes the "guiding principle" in an allocation between competing states, but state law is not controlling. Colo. v. N.M., 459 U.S. 176, 103 S. Ct. 539, 74 L. Ed. 2d 348 (1982), reh'g denied, 459 U.S. 1229, 103 S. Ct. 1418, 75 L. Ed. 2d 471 (1983).
In the determination of an equitable apportionment of the water of the Vermejo river between Colorado and New Mexico the rule of priority is not the sole criterion. While the equities supporting the protection of established, senior uses are substantial, it is also appropriate to consider additional factors relevant to a just apportionment, such as the conservation measures available to both states and the balance of harm and benefit that might result from a diversion sought by Colorado. Colo. v. N.M., 459 U.S. 176, 103 S. Ct. 539, 74 L. Ed. 2d 348 (1982), reh'g denied, 459 U.S. 1229, 103 S. Ct. 1418, 75 L. Ed. 2d 471 (1983).
Equitable apportionment applies to claim of diversion for future uses. — The flexible doctrine of equitable apportionment clearly extends to a state's claim to divert water for future uses. Whether such a diversion should be permitted will turn on an examination of all factors relevant to a just apportionment. Colo. v. N.M., 459 U.S. 176, 103 S. Ct. 539, 74 L. Ed. 2d 348 (1982), reh'g denied, 459 U.S. 1229, 103 S. Ct. 1418, 75 L. Ed. 2d 471 (1983).
Pueblo rights doctrine. — The "pueblo rights doctrine," providing that any municipality tracing its origins to a Spanish or Mexican pueblo grant, particularly after 1789, has a prior and paramount right to all waters of nonnavigable streams flowing through or by the pueblo to the extent necessary to serve its future growth, is invalid. Cartwright v. Pub. Serv. Co., 1958-NMSC-134, 66 N.M. 64, 343 P.2d 654, overruled by State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.
What law governs water rights. — Provisions of New Mexico constitution, statutory law of New Mexico and case law of federal, territorial and state courts govern acquisition of water rights of all parties including federal government, state game commission and individual defendants. U.S. v. Ballard, 184 F. Supp. 1 (D.N.M. 1960).
Jurisdiction of suit. — Where water rights of stream system had not been adjudicated under Water Code of 1907, but were more than twenty years old when code was enacted, district court had jurisdiction of suit for obstruction of flow and appropriation of waters of creek. N.M. Prods. Co. v. N.M. Power Co., 1937-NMSC-048, 42 N.M. 311, 77 P.2d 634.
Trial court erred in dismissing suit for failure to exhaust administrative remedies, where parties sought adjudication of their respectively claimed rights to use of waters of a draw; fact that neither party had secured a permit from state to beneficially use the waters did not necessarily prevent acquisition by either or both of rights to beneficial use by appropriation, nor did it necessarily prevent acquisition of rights to use of these waters by either as against the other. If claimed rights were acquired pursuant to common-law appropriations prior to the enactment of state's first water code, those rights were in no way dependent on existence of application to or permit from state engineer. May v. Torres, 1974-NMSC-018, 86 N.M. 62, 519 P.2d 298.
Effect of former law. — General law for appropriation of water for the arid states was not affected by the enactment of Laws 1905, chs. 102 and 104 (now repealed and superseded). Farmers Dev. Co. v. Rayado Land & Irrigation Co., 1923-NMSC-004, 28 N.M. 357, 213 P. 202.
Laws 1905, ch. 104 (now superseded) was permissive in character, applying only to such claims to the right of use of water as were initiated under it; it was not exclusive and did not preclude a claim under the general law, nor deprive a claimant of the doctrine of relation. Farmers Dev. Co. v. Rayado Land & Irrigation Co., 1923-NMSC-004, 28 N.M. 357, 213 P. 202, explained State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Access to public waters. — A private landowner cannot prevent persons from fishing in a public stream that flows across the landowner's property, provided the public stream is accessible without trespass across privately owned adjacent lands. 2014 Op. Att'y Gen. 14-04.
Taking of sand. — If state or its contractor takes sand from sand bar in middle of Chama river near highway project, it should obtain consent of abutting property owners. 1938 Op. Att'y Gen. No. 38-1902.
Actual appropriation as better right. — Prior actual appropriation of water to beneficial use, open and visible, will give better right to the water than could be obtained under approved application to state engineer for right to appropriate. 1914 Op. Att'y Gen. No. 14-1271.
Law reviews. — For article, "An Institutional Framework for a Water Market in the Elephant Butte Irrigation District," see 49 Nat. Resources J. 219 (2009).
For student article, "Herrington v. State: Straightening Out the Tangled Doctrines of Surface Water to Groundwater Transfers in New Mexico," see 48 Nat. Resources J. 697 (2008).
For article, "Resolving Conflict in Non-Ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resources Law," see 48 Nat. Resources J. 257 (2008).
For essay, "Water, Theology, and the New Mexico Water Code," see 48 Nat. Resources J. 227 (2008).
For article, "An Environmental Pool for the Rio Grande," see 47 Nat. Resources J. 615 (2007).
For article, "Hip Deep: A Survey of State Instream Flow Law from the Rocky Mountains to the Pacific Ocean," see 43 Nat. Resources J. 1151 (2003).
For article, "A Reservoir Runs Through It: A Legislative and Administrative History of the Six Pueblos' Right to Store 'Prior and Paramount Water at El Vado'," see 47 Nat. Resources J. 733 (2007).
For article, "Changing Interpretations of New Mexico Constitutional Provisions Allocating Water Resources: Integrating Private Property Rights and Public Values," see 26 N.M. L. Rev. 367 (1996).
For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
For comment on State ex rel. Reynolds v. Miranda, 83 N.M. 443, 493 P.2d 409 (1972), see 13 Nat. Resources J. 170 (1973).
For comment, "Wrestling with Water Quantification in Western States," see 14 Nat. Resources J. 423 (1974).
For note, "Appropriation by the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).
For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976).
For note, "Brantley v. Carlsbad Irrigation District: Limits of the Templeton Doctrine Affirmed," see 19 Nat. Resources J. 669 (1979).
For note, "Access to Sunlight: New Mexico's Solar Rights Act," see 19 Nat. Resources J. 957 (1979).
For note, "Access to Sunlight: New Mexico's Solar Rights Act," see 10 N.M.L. Rev. 169 (1979-80).
For comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).
For comment, "Do State Water Anti-Exportation Statutes Violate the Commerce Clause? or Will New Mexico's Embargo Law Hold Water?", see 21 Nat. Resources J. 617 (1981).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For note, "Ninth Circuit Rules That Disclaimer States Lack Jurisdiction Over Indian Water Rights Under the McCarran Amendment," see 23 Nat. Resources J. 255 (1983).
For article, "The Impact of Recent Court Decisions Concerning Water and Interstate Commerce on Water Resources of the State of New Mexico," see 24 Nat. Resources J. 689 (1984).
For note, "Water Law - Public Trust Doctrine," see 24 Nat. Resources J. 809 (1984).
For article, "Managing River Systems: Centralization Versus Decentralization," see 24 Nat. Resources J. 1043 (1984).
For book review, "Water in the Hispanic Southwest: A Social and Legal History, 1550-1850," see 25 Nat. Resources J. 551 (1985).
For article, "Patterns of Cooperation in International Water Law: Principles and Institutions," see 25 Nat. Resources J. 563 (1985).
For comment, "Is There a Future for Proposed Water Uses in Equitable Apportionment Suits?", see 25 Nat. Resources J. 791 (1985).
For note, "Indian Water Law: The Continuing Jurisdictional Nightmare," see 25 Nat. Resources J. 841 (1985).
For note, "Transboundary Liability Goes with the Flow? Gasser v. United States: The Use and Misuse of a Treaty," see 30 Nat. Resources J. 955 (1990).
For article, "The Public Trust Doctrine and Community Values in Water," see 32 Nat. Resources J. 515 (1992).
For article, "The Forest Service, Water Yield and Community Stability: Defining the Contours of an Agency Commitment to Include Land Grant Communities in the Timber Management Process," see 39 Nat. Resources J. 819 (1999).
For article, " 'Whisky's fer Drinkin'; Water's fer Fightin'!' Is it? Resolving a Collective Action Dilemma in New Mexico," see 43 Nat. Resources J. 185 (2003).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 49.
Title to beds of natural lakes or ponds, 23 A.L.R. 757, 112 A.L.R. 1108.
93 C.J.S. Waters §§ 3, 157.