All acequias, public or private, when completed, shall be the property of the persons who may have completed such acequias or ditches, and no person or persons who may desire to use the waters of such acequias or ditches shall be allowed so to do without the consent of a majority of the owners of such acequias or ditches, and upon payment of a share proportionate to the primary cost of such acequia or ditch to the amount of the land proposed to be irrigated, or the quantity of water proposed to be used: provided, that the provisions of this section shall not apply to any acequias or ditches, public or private, that may pass from the limits of any one county to within the lines of any other county.
History: Laws 1882, ch. 30, § 1; C.L. 1884, § 15; C.L. 1897, § 21; Code 1915, § 5733; C.S. 1929, § 151-403; 1941 Comp., § 77-1407; 1953 Comp., § 75-14-7.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Section recognizes only two methods of acquiring right in ditch: first, by initial joinder of landowners in construction of the ditch and contributing cash or labor, or both; and second, by consent of owners of said ditch and payment for carrier space in the ditch. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.
Second method required where landowner has additional acreage to irrigate. — New landowner or one who has additional acreage that could be irrigated from community ditch has no right to additional interest in the ditch until he has secured consent of majority of the owners of said ditch and has arranged to pay for additional carrier space in the ditch. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.
Ownership of ditch and water separate rights. — Rights of ownership of the ditch are rights separate and apart from rights of ownership of water that the ditch conveys. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.
Owners may not hold rights to surplus waters. — If ditch carried double the amount of water claimed by original appropriators, or which they intended to use, such surplus waters could not be divided into water rights and parceled out to members, to be held by them for sale or speculation. State ex rel. Cmty. Ditches v. Tularosa Cmty. Ditch, 1914-NMSC-069, 19 N.M. 352, 143 P. 207.
Owner of community ditch has in effect an easement for purpose of transporting water. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.
Courts cannot readjust shares in interest in community ditch corporation in proportion to water rights of the landowners using the ditch, or in proportion to number of acres irrigated by each, as that would in effect destroy vested property rights and create new property rights. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.
Property rights recognized by section secure. — While this section and Section 73-2-14 NMSA 1978 contain some language which might appear conflicting, the latter section merely provides two alternative methods of voting, and does not destroy any property rights which this section recognized. Holmberg v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785.
Reallocated use of easement proper. — When the district court changed the ditch rotation cycle from eighteen days to fifteen days, it did not divest owner of its real property interest in the ditch structure, which owner still owns jointly with another as tenants in common. The court simply reallocated usage of the easement for water flow through the ditch in conformity with the particular purpose for which the ditch was created, through an exercise of the court's equitable power so that the easement satisfied the purpose for which it was created. Olson v. H & B Props., Inc., 1994-NMSC-100, 118 N.M. 495, 882 P.2d 536.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts §§ 3, 4, 31, 32, 48, 50; 45 Am. Jur. 2d Irrigation §§ 52, 55.
28 C.J.S. Drains § 75; 93 C.J.S. Waters §§ 1, 129.