All existing rights to the use of any waters in this state for any useful or beneficial purpose are hereby recognized and confirmed.

ANNOTATIONS

Comparable provisions. — Idaho Const., art. XV, § 1.

Montana Const., art. IX, § 3.

Utah Const., art. XVII, § 1.

Wyoming Const., art. VIII, § 1.

The federal reserved water rights doctrine does not apply to state lands that the federal government granted and conveyed to New Mexico in trust for purposes of supporting New Mexico schools. State of N.M. ex rel. State Eng'r v. Comm'r of Public Lands, 2009-NMCA-004, 145 N.M. 433, 200 P.3d 86, cert. denied, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124, cert. denied, 556 U.S. 1208, 129 S. Ct. 2075, 173 L.Ed 2d 1134 (2009).

New Mexico has not recognized inchoate water rights granted by Mexico or Spain. State v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47, rev'g 1994-NMCA-095, 118 N.M. 257, 880 P.2d 868.

"Water" construed. — Waters of underground streams, channels, artesian basins, reservoirs and lakes, the boundaries of which may be reasonably ascertained, are included within the term "water" as used in this section. State ex rel. Reynolds v. Mears, 1974-NMSC-070, 86 N.M. 510, 525 P.2d 870; McBee v. Reynolds, 1965-NMSC-007, 74 N.M. 783, 399 P.2d 110.

Water rights law extends to all parties. — New Mexico constitution and statutory law and case law of federal, territorial and New Mexico courts govern acquisition of water rights of all parties, including United States, state game commission of New Mexico and individual defendants. United States v. Ballard, 184 F. Supp. 1 (D.N.M. 1960).

Pueblo Indians excepted. — Water uses by pueblo Indians in New Mexico are not controlled by state water law or prior appropriation. New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976), cert. denied, New Mexico v. United States, 429 U.S. 1121, 97 S. Ct. 1157, 51 L. Ed. 2d 572 (1977).

Expanding nature of pueblo right is not an existing right within the meaning of this section. State v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47, rev'g 1994-NMCA-095, 118 N.M. 257, 880 P.2d 868.

Rights prior to water code protected. — Landowner was entitled to take water for irrigation where water right relied upon was initiated in 1903 by filing of affidavit with county clerk, prior to enactment of the water code (72-9-1 NMSA 1978), which carried a savings clause for prior existing rights. State ex rel. Bliss v. Davis, 1957-NMSC-102, 63 N.M. 322, 319 P.2d 207.

Trial court erred in dismissing for failure to exhaust administrative remedies suit in which parties sought adjudication of claimed rights to use of waters of a draw. Fact that neither party had secured permit from state did not necessarily prevent acquisition by either or both of rights to beneficial use of waters from the draw by appropriation nor prevent acquisition of rights to use of waters by either as against the other. If claimed rights were acquired pursuant to common-law appropriations by parties or their predecessors in interest prior to enactment of state's water code (72-9-1 NMSA 1978), those rights were in no way dependent on existence of application to or permit from state engineer. May v. Torres, 1974-NMSC-018, 86 N.M. 62, 519 P.2d 298.

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 Eng'r 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 Eng'r v. Elephant Butte Irrigation Dist., 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.

State may regulate water rights. — State may in exercise of police power require license of any person drilling well in area determined by state engineer to be an underground source, the boundaries of which have been determined to be reasonably ascertainable. State v. Myers, 1958-NMSC-059, 64 N.M. 186, 326 P.2d 1075.

Conservancy Act (Laws 1923, ch. 140, § 201, now repealed) was not repugnant to this section. In re Proposed Middle Rio Grande Conservancy Dist., 1925-NMSC-058, 31 N.M. 188, 242 P. 683.

Eminent domain proper where water storage and conveyance for beneficial uses. — Beneficial use is of primary importance, not the particular purpose (ultimate use) to which water is put. Beneficial uses would be impossible to accomplish without means to transport or convey water from its source to place of utilization. Thus out of necessity the right of eminent domain is provided (72-1-5 NMSA 1978) for storage and conveyance of water for beneficial uses, not for irrigation or domestic purposes alone, but for all beneficial uses. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986, superseded by statute, Santa Fe Southern Railway Inc. v. Baucis Ltd. Liability Co., 1998-NMCA-002, 124 N.M. 430, 952 P.2d 31.

Limited riparian rights in New Mexico. — Riparian rights cannot be said to exist in such country as New Mexico to full extent of their recognition and existence at common law. 1916 Op. Att'y Gen. No. 16-1803.

Subsequent appropriations may not diminish riparian owner's supply. — Riparian owner, so far as he has any use for water flowing in his stream, must not have that right impaired by appropriations of water made subsequent to his beginning use of the water so that what he acquires will be materially diminished. 1916 Op. Att'y Gen. No. 16-1803.

Consent prerequisite to taking sand from river. — If state or its contractor takes sand from sand bar in middle of Chama river near highway project, it should obtain consent of abutting property-owners. 1938 Op. Att'y Gen. No. 38-1902.

Law reviews. — For comment, "Water Rights - Failure to Use - Forfeiture," see 6 Nat. Resources J. 127 (1966).

For student symposium, "Constitutional Revision - Water Rights," see 9 Nat. Resources J. 471 (1969).

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

For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976).

For article, "Water Law Problems of Solar Hydrogen Production," see 18 Nat. Resources J. 521 (1978).

For article, "Economics and the Determination of Indian Reserved Water Rights," see 23 Nat. Resources J. 749 (1983).

For article, "Patterns of Cooperation in International Water Law: Principles and Institutions," see 25 Nat. Resources J. 563 (1985).

For article, "The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights," see 32 Nat. Resources J. 825 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 230, 318.

Construction and application of rule requiring public use for which property is condemned to be "more necessary" or "higher use" than public use to which property is already appropriated - state takings, 49 A.L.R. 5th 769.

93 C.J.S. Waters § 157.