All the inhabitants of the state of New Mexico shall have the right to construct, either private or common acequias, and to take water for said acequias from wherever they can; with the distinct understanding, to pay the owner through whose land said acequias have to pass a just compensation taxed for the land used.

History: Laws 1874, ch. 10, § 1; C.L. 1884, § 17; C.L. 1897, § 23; Code 1915, § 5737; C.S. 1929, § 151-407; 1941 Comp., § 77-1401; 1953 Comp., § 75-14-1.

Cross references. — For special provisions governing acequias in certain counties, see 73-3-1 to 73-3-11 NMSA 1978.

For exercise of eminent domain to acquire ditches, see 72-1-5 NMSA 1978.

For application for appropriation of water, see 72-5-1 NMSA 1978.

I. GENERAL CONSIDERATION.

Used ditch is dedicated as such. — Irrigation ditch used for conducting water for irrigation of lands, when in actual use as such, is so dedicated. City of Albuquerque v. Garcia, 1913-NMSC-006, 17 N.M. 445, 130 P. 118.

City may not condemn for another use. — City has no power to condemn community acequia in actual use for conducting water for irrigation of lands and to appropriate same to the use of the public for a street. City of Albuquerque v. Garcia, 1913-NMSC-006, 17 N.M. 445, 130 P. 118.

State legislation may not destroy United States' riparian rights. — In the absence of specific authority from congress, a state cannot by legislation destroy the right of the United States, as owner of lands bordering on a stream, to the continued flow of its waters. United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S. Ct. 770, 43 L. Ed. 1136 (1899).

Permissive use vests no property rights. — Since use by a party of a ditch classified for irrigation by the irrigation district was permissive only, use for such purpose is subject to termination at will and vests in such party no property right as against the public. Board of Cnty. Comm'rs v. Sykes, 1964-NMSC-183, 74 N.M. 435, 394 P.2d 278.

User may not claim right of eminent domain. — Relocation of borrowed ditch, use of which for purpose of irrigation was permissive only and subject to termination at will, was not a matter of public interest or concern, and the taking of private property of defendant upon which to relocate a ditch, where there was no obligation, duty or right to relocate, is not a public use. Board of Cnty. Comm'rs v. Sykes, 1964-NMSC-183, 74 N.M. 435, 394 P.2d 278.

Acequias and community ditch associations subject to this article are subject to audit under the Audit Act (Section 12-6-1 NMSA 1978 et seq.). 1990 Op. Att'y Gen. No. 90-30.

Ditch commissioners must prove public necessity for taking. — In taking land for public use when either building a new ditch or enlarging or extending a ditch, burden would be on ditch commissioners (see Section 73-2-11 NMSA 1978) to prove public necessity for the taking. 1969 Op. Att'y Gen. No. 69-96.

Specific provisions on condemnation of ditch control over more general condemnation statute found in Section 72-1-5 NMSA 1978. 1969 Op. Att'y Gen. No. 69-96.

Inverse condemnation suit proper. — In event that ditch commissioners were to take land without initiating condemnation proceedings, landowner may institute his own suit for inverse condemnation and receive just compensation for the taking. 1969 Op. Att'y Gen. No. 69-96.

Law reviews. — For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).

For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts § 3 et seq.; 45 Am. Jur. 2d Irrigation §§ 44, 57, 78; 78 Am. Jur. 2d Waters §§ 135, 195, 199.

Power of state to exact fee or require license for taking water from stream, 19 A.L.R. 649, 29 A.L.R. 1478.

Canal as attractive nuisance, 36 A.L.R. 162, 39 A.L.R. 486, 45 A.L.R. 982, 53 A.L.R. 1344, 60 A.L.R. 1444.

Easement for irrigation canal as breach of covenant against encumbrances, 64 A.L.R. 1499.

Irrigation ditch as charging purchaser of servient estate with notice of easement, 74 A.L.R. 1250.

Constitutionality of statutes relating to surface water, 85 A.L.R. 465.

Railroad company's right to permit construction of irrigation ditch over part of its right-of-way, 94 A.L.R. 530, 149 A.L.R. 378.

Liability for overflow or escape of water from reservoir, ditch or artificial pond, 169 A.L.R. 517.

Right of riparian owner to construct dikes, embankments or other structures necessary to maintain or restore bank of stream, 23 A.L.R.2d 750.

Liability of abutting landowner for injury to municipal employee engaged in constructing or repairing sewers or drains, 58 A.L.R.3d 1085.

Extinguishment by prescription of natural servitude for drainage of surface waters, 22 A.L.R.2d 1047.

28 C.J.S. Drains § 2 et seq.; 93 C.J.S. Waters §§ 129, 210.

II. COMMUNITY ACEQUIAS.

Purpose in formation of community acequias. — Community acequias were formed or maintained for the more effectual or convenient exercise of political power within certain boundaries or localities, to whom the electors residing therein are, to some extent, granted power to locally self-govern themselves. 1963 Op. Att'y Gen. No. 63-112.

Community acequias fall within definition of political subdivision. — The term political subdivision is comprehensive and denotes any division of a state made by proper authorities thereof, acting within their constitutional powers, for purposes of carrying out a portion of those functions of state which by long usage and inherent necessities of government have always been regarded as public, and community acequias fall within this definition. 1963 Op. Att'y Gen. No. 63-112.

Community acequias have power of eminent domain. 1963 Op. Att'y Gen. No. 63-112.

Municipality has no power of eminent domain over community acequias since that property is already devoted to a public use. 1963 Op. Att'y Gen. No. 63-112.