The owner of any artesian well which is being beneficially used or which under existing water rights may be beneficially used, who causes, suffers or permits the waters therefrom after coming to the surface of the earth to waste as herein defined, shall be guilty of a misdemeanor. Such waste is also hereby declared to be a public nuisance, and in the event of the failure or refusal of the owner of the well to abate the same, within ten (10) days from receipt of notice by registered mail, return receipt requested, from the state engineer, artesian well supervisor or artesian conservancy district, if the well is situated therein, such officials having jurisdiction may abate such nuisance in a summary manner without further notice by properly fitting the well with necessary valves or other devices or or [by] doing whatever shall be necessary to control the flow of water therefrom and prevent such waste, and the cost thereof shall be a lien against the land upon which the well is situated, as well as any land the owner or owners of which have a legal right to the use thereon of all or a part of the water from such well insofar as the interests of the several owners may appear, together with all improvements thereon from the time the work is begun or labor and materials necessary to abate the nuisance are furnished, subject only to regularly assessed taxes and liens of record prior to the time of the commencement of the work; provided, however, a claim of lien therefor under oath of the state engineer, artesian well supervisor or an officer of an artesian conservancy district, as the case may be, is filed in the office of the county clerk of the county wherein such well is situated, within five days from the time of the completion of the work, said claim of lien to be addressed to the owner or owners of the land upon which the well is situated, and to whom it may concern, giving a description of the land to be charged with the lien, the nature of the work, the time commenced and the time completed, together with the cost thereof. Said lien may be foreclosed in the same manner as provided by law for the foreclosure of mortgages at any time after one year but not more than three years from the date of filing the same. The county clerk shall make no charge for filing the claim of lien, and no costs shall be taxed against the plaintiff in any foreclosure proceeding on account thereof.

History: Laws 1935, ch. 43, § 8; 1941 Comp., § 77-1208; 1953 Comp., § 75-12-8.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For abatement of public nuisance constituted by abandoned artesian wells, see 72-13-7 NMSA 1978.

For penalty for violation of this section, see 72-13-12 NMSA 1978.

For public nuisances, generally, see 30-8-1 NMSA 1978.

For abatement of nuisances, see 30-8-8 NMSA 1978.

For foreclosure of mortgages, see Chapter 39, Article 5 NMSA 1978.

"Beneficial use". — Beneficial use is use of such water as may be necessary for some useful and beneficial purpose in connection with land from which it is taken. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Excess use. — When landowner exceeds beneficial use, he is appropriating to himself that which belongs to others who are entitled to like use, and to that extent is obstructing necessary use of water so as to interfere with its beneficial use, which is declared to be a public nuisance. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

No surface owner possesses right to extract subterranean water in excess of quantity necessary to supply beneficial uses to which it has been appropriated by him. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Waste beyond district boundaries. — Section does not permit artesian conservancy district to summarily abate waste of waters from artesian basin where well is situated beyond territorial boundaries of district. Pecos Valley Artesian Conservancy Dist. v. Peters, 1945-NMSC-029, 50 N.M. 165, 173 P.2d 490, appeal after remand, 1948-NMSC-022, 52 N.M. 148, 193 P.2d 418.

Lien priorities. — Lien for expenses incurred for work and repairs upon artesian well under Laws 1912, ch. 81 (since superseded) to prevent waste of water did not take precedence over prior recorded mortgage; such lien was not tax lien, but was referable to police power. Eccles v. Will, 1918-NMSC-020, 23 N.M. 623, 170 P. 748.

Law reviews. — For article, "Centralized Decisionmaking in the Administration of Groundwater Rights: The Experience of Arizona, California and New Mexico and Suggestions for the Future," see 24 Nat. Resources J. 641 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 148.

94 C.J.S. Waters § 313.