Artificial surface waters, as distinguished from natural surface waters, are hereby defined for the purpose of this act as waters whose appearance or accumulation is due to escape, seepage, loss, waste, drainage or percolation from constructed works, either directly or indirectly, and which depend for their continuance upon the acts of man. Such artificial waters are primarily private and subject to beneficial use by the owner or developer thereof; provided, that when such waters pass unused beyond the domain of the owner or developer and are deposited in a natural stream or watercourse and have not been applied to beneficial use by said owner or developer for a period of four years from the first appearance thereof, they shall be subject to appropriation and use; provided, that no appropriator can acquire a right, excepting by contract, grant, dedication or condemnation, as against the owner or developer compelling him to continue such water supply.
History: Laws 1907, ch. 49, § 53; Code 1915, § 5712; C.S. 1929, § 151-165; Laws 1941, ch. 126, § 21; 1941 Comp., § 77-525; 1953 Comp., § 75-5-25.
ANNOTATIONSCompiler's notes. — The term "this act" refers to Laws 1941, ch. 126, the provisions of which are presently compiled as 19-7-26, 72-1-1, 72-2-5, 72-2-6, 72-4-20, 72-5-1, 72-5-3, 72-5-4, 72-5-6 to 72-5-9, 72-5-14, 72-5-17, 72-5-20, 72-5-23, 72-5-24, 72-5-27, 72-5-28, 72-5-32, 72-5-33, 72-8-4, 72-9-1, 72-9-3 and 72-9-4 NMSA 1978.
Cross references. — For state engineer, see 72-2-1 NMSA 1978.
"Constructed works". — "Constructed works," as used in this section, refers to constructed reservoirs and ditches. Vanderwork v. Hewes, 1910-NMSC-031, 15 N.M. 439, 110 P. 567.
Artesian well is not "constructed works" within meaning of this section. Vanderwork v. Hewes, 1910-NMSC-031, 15 N.M. 439, 110 P. 567.
Drainage waters are private and not subject to appropriation. In re Langenegger, 1958-NMSC-073, 64 N.M. 218, 326 P.2d 1098.
Ownership of percolating water. — When small quantity of water percolates to surface and forms small basin, and comes from source unknown, it belongs to owner of land from which it percolates and forms basin, and such landowner could appropriate it to own use without application to territorial engineer. Vanderwork v. Hewes, 1910-NMSC-031, 15 N.M. 439, 110 P. 567.
Engineer's jurisdiction does not extend to seepage water from unknown sources. Vanderwork v. Hewes, 1910-NMSC-031, 15 N.M. 439, 110 P. 567.
Treated sewage effluent is in the same category as water which has drained or seeped or percolated from a treatment plant and which depends for its continuance upon the acts of man. Reynolds v. City of Roswell, 1982-NMSC-133, 99 N.M. 84, 654 P.2d 537.
Once sewage effluent actually reaches a water course or underground reservoir, a city has lost control over the water and cannot recapture it. Reynolds v. City of Roswell, 1982-NMSC-133, 99 N.M. 84, 654 P.2d 537.
Law reviews. — For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
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. — 78 Am. Jur. 2d Waters § 234.
Grantor of railroad right-of-way, or his privy, right of to recover damages for interference with surface water by construction of road, 19 A.L.R. 487.
Surface water, right to drain into natural watercourse, 28 A.L.R. 1262.
What constitutes natural drainway or watercourse for flow of surface water, 81 A.L.R. 262.
Surface water, constitutionality of statute relating to, 85 A.L.R. 465.
Overflow or escape of water from reservoir, ditch or artificial pond, liability for, 169 A.L.R. 517.
Loss of private easement by nonuser or adverse possession, 25 A.L.R.2d 1265.
Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.
93 C.J.S. Waters § 129.