Any permit or license to appropriate water may be assigned, but no such assignment shall be binding, except upon the parties thereto, unless filed for record in the office of the state engineer. The evidence of the right to use water from any works constructed by the United States, or its duly authorized agencies, shall in like manner be filed in the office of the state engineer, upon assignment; provided, that no right to appropriate water, except water for storage reservoirs, for irrigation purposes shall be assigned, or the ownership thereof in anywise transformed, apart from the land to which it is appurtenant, except in the manner specially provided by law: provided, further, that the transfer of title of land in any manner whatsoever shall carry with it all rights to the use of water appurtenant thereto for irrigation purposes, unless previously alienated in the manner provided by law.
History: Laws 1907, ch. 49, § 36; Code 1915, § 5695; C.S. 1929, § 151-148; 1941 Comp., § 77-521; 1953 Comp., § 75-5-21.
ANNOTATIONSCross 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.
Meaning of terms. — The phrases "in the manner specially provided by law" or "in the manner provided by law" used by the legislature in this section mean in accordance with existing statutory procedure. McCasland v. Miskell, 1994-NMCA-163, 119 N.M. 390, 890 P.2d 1322, cert. denied, 119 N.M. 354, 890 P.2d 807.
Irrigation water rights are appurtenant to land. — The only exception to the general rule that water rights are separate and distinct from the land is water used for irrigation. Irrigation water rights are appurtenant to the land, meaning that any conveyance of the land will carry the water right with it unless the water right is expressly reserved by the grantor. Walker v. United States, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882, abrogating First State Bank v. McNew, 1928-NMSC-040, 33 N.M. 414, 269 Pac. 56 and KRM, Inc. v. Caviness, 1996-NMCA-103, 122 N.M. 389, 925 P.2d 9; Hydro Res. Corp. v. Gray, 2007-NMSC-061, 143 N.M. 142, 173 P.3d 749.
Exception to ownership rule. — This section and Section 72-1-2 NMSA 1978 evince an intent to create a limited statutory exception to the general rule that water rights and land ownership are distinct property rights. The statutory exception links ownership of the land with water rights, but only if the water is beneficially used on that land for irrigation purposes. KRM, Inc. v. Caviness, 1996-NMCA-103, 122 N.M. 389, 925 P.2d 9.
Intent to transfer water rights. — In absence of valid intention of owner of water rights, used in connection with and incident to possessory rights in public land, to transfer such rights to homestead entryman of said land, there is no transfer of water right. First State Bank v. McNew, 1928-NMSC-040, 33 N.M. 414, 269 P. 56, abrogated, Walker v. U.S., 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.
Water rights not appurtenant. — The water rights did not pass to the buyer since the water had never been used for irrigation on the land the seller sold to the buyer, and since there were no allegations that the continued commercial use of the water rights was indispensable to the continued enjoyment of the land sold to the buyer. KRM, Inc. v. Caviness, 1996-NMCA-103, 122 N.M. 389, 925 P.2d 9.
Law reviews. — For article, "The Energy-Water Nexus: Socioeconomic Considerations and Suggested Legal Reforms in the Southwest," see 50 Nat. Resources J. 563 (2010).
For comment on Mathers v. Texaco, Inc., 77 N.M. 239, 421 P.2d 771 (1966), see 7 Nat. Resources J. 433 (1967).
For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 241 to 245.
93 C.J.S. Waters § 190.