Whenever the owner of a ditch, canal, pipeline, reservoir or other works shall turn or deliver water from one stream or drainage into another stream or drainage, such owner may take and use the same quantity of water, less a reasonable deduction for evaporation and seepage to be determined by the state engineer, and such owner may be required by the state engineer to construct and maintain suitable measuring flumes or devices at the point or points where said water leaves its natural stream or watershed, or is turned into another stream or watershed. Where the rights of others are not injured thereby, it shall be lawful for the owner of any reservoir, canal or other work, to deliver water into any ditch, stream or watercourse, to supply, appropriations therefrom and to take in exchange therefor, either above or below such point of delivery, a quantity of water equivalent to that so delivered, less a proper deduction for evaporation and seepage to be determined by the state engineer; provided, such owner shall, under the direction of the state engineer, construct and maintain suitable measuring devices at the points of delivery and diversion.

History: Laws 1907, ch. 49, § 60; Code 1915, § 5718; C.S. 1929, § 151-171; 1941 Comp., § 77-524; 1953 Comp., § 75-5-24.

Cross references. — For penalty for diversion of water to other valleys, see 72-8-5 NMSA 1978.

For state engineer, see 72-2-1 NMSA 1978.

Diversion into ditch. — Where appropriation is made by any means, owner may divert water into any existing ditch, and can take it out, less loss by seepage and evaporation, either above or below point of delivery into existing ditch, to supply his appropriation. Miller v. Hagerman Irrigation Co., 1915-NMSC-069, 20 N.M. 604, 151 P. 763.

Application for appropriation would be granted, since applicant proposed to return amount of drainage water, equal to amount of water appropriated, to underground basin; under this plan basin waters would not be depleted, nor would rights of existing appropriators be impaired. Reynolds v. Wiggins, 1964-NMSC-252, 74 N.M. 670, 397 P.2d 469.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 11, 228, 281.

Joint liability for diversion caused by acts of independent tortfeasors, 9 A.L.R. 947, 35 A.L.R. 409, 91 A.L.R. 759, 35 A.L.R. 412, 91 A.L.R. 759, 91 A.L.R. 763.

Liability of one who diverts stream into new channel for overflow, 12 A.L.R. 187.

De minimis non curat lex as applied to diversion of water, 44 A.L.R. 191.

Liability for cutting off flow of water to spring, 55 A.L.R. 1412, 109 A.L.R. 395, 109 A.L.R. 404.

Covenant against encumbrances, easement of right to dam water as breach of, 64 A.L.R. 1496.

Estoppel to complain of diversion, 74 A.L.R. 1129.

Right of appropriator of water to recapture water which has escaped or is otherwise no longer within his immediate possession, 89 A.L.R. 210.

Diversion of water from subterranean stream for public supply, 109 A.L.R. 416.

Method or means of diversion, appropriation of water as creating right to continue, as against subsequent appropriator, 121 A.L.R. 1044.

Liability for obstruction or diversion of subterranean waters in use of land, 29 A.L.R.2d 1354.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.

Extinguishment by prescription of natural servitude for drainage of surface waters, 42 A.L.R.4th 462.

93 C.J.S. Waters § 181.