Existing water rights based upon application to beneficial use are hereby recognized. Nothing herein contained is intended to impair the same or to disturb the priorities thereof.

History: Laws 1931, ch. 131, § 4; 1941 Comp., § 77-1104; 1953 Comp., § 75-11-4.

"Based upon". — Term "based upon" includes entire procedure necessary to accomplish beneficial use of water, initiation of right to final act of irrigating land. State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

"Beneficial use" is measure and limit to right to use of waters covered by this act. State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

Section protects rights which were initiated before enactment thereof. City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.

Rights recognized. — Section is not limited to recognition of rights to water which had previously been put to beneficial use; it also recognizes rights "based upon application to beneficial use." State ex rel. Reynolds v. Mendenhall, 1962-NMSC-173, 68 N.M. 467, 362 P.2d 998.

Sections compared. — Substance and intent of this section and Section 72-9-1 NMSA 1978 is the same. State ex rel. Reynolds v. Mendenhall, 1962-NMSC-173, 68 N.M. 467, 362 P.2d 998.

Only unappropriated waters subject to appropriation. — State engineer can only grant permits to appropriate waters which are not already appropriated. Templeton v. Pecos Valley Artesian Conservancy Dist., 1958-NMSC-131, 65 N.M. 59, 332 P.2d 465.

Test for establishing water rights under this section requires the developer to: (1) legally commence drilling a well prior to declaration of the basin; (2) proceed diligently to develop the water pursuant to a plan; and (3) apply the water to beneficial use. State ex rel. Reynolds v. Rio Rancho Estates, Inc., 1981-NMSC-017, 95 N.M. 560, 624 P.2d 502.

Priority of right. — Landowner who lawfully began developing underground water right and completed it with reasonable diligence acquired water right with priority date as initiation of his work even though lands involved were placed within declared artesian basin before work was finished and water put to beneficial use. State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 261.

93 C.J.S. Waters §§ 183, 184.