Any person may bring an action in the district court of the county in which any such well is situated for damages or for injunctive relief with respect to any claimed impairment of existing water rights due to an appropriation of nonpotable water under this act [72-12-25 through 72-12-28 NMSA 1978].

When such suit has been filed, the court shall order the joinder of the state engineer as a party thereto on the motion of any party, and if so joined the court shall direct the state engineer to present such evidence bearing upon the issues of the case as is reasonably available to him.

History: 1953 Comp., § 75-11-40, enacted by Laws 1967, ch. 86, § 4.

Cross references. — For provision excluding aquifer containing nonpotable water at depth of 2,500 feet or more from underground water basins, see 72-12-25 NMSA 1978.

Severability. — Laws 1967, ch. 86, § 5, provided for the severability of the act if any part or application thereof is held invalid.

Rights vested prior to the water code are subject to forfeiture. — Water rights that vested prior to the adoption of the New Mexico constitution are not immune from statutory forfeiture or common law abandonment. State ex rel. Office of the State Engineer v. Elephant Butte Irrigation Dist., 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.

Where landowners were the owners of land that had been acquired in1881 by United States patents; the landowners claimed that the land had been irrigated prior to 1881 and that the date of appropriation was at least 1881; and although portions of the property had been farmed and irrigated prior to 1956, after 1956 the land was not farmed and water has not otherwise been put to beneficial use on any of the land, the landowner's water rights were subject to forfeiture and common law abandonment. State ex rel. Office of the State Engineer v. Elephant Butte Irrigation Dist., 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 256.

Measure of damages for interference with percolating waters, 35 A.L.R. 1222, 55 A.L.R. 1385, 109 A.L.R. 395.

Measure and element of damages for pollution of well or spring, 76 A.L.R.4th 629.

93 C.J.S. Waters § 169.