Beneficial use shall be the basis, the measure and the limit of the right to the use of water.

ANNOTATIONS

Establishment of an existing water right. — To establish an existing water right, a claimant must demonstrate his intent to appropriate the water and show that he has actually diverted the water and applied it to beneficial use. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001.

Where plaintiff who claimed an existing water right was not currently diverting or using water to which he claimed a right, but rather based his claim to water rights on the water rights and irrigation work from his predecessor in interest, who diverted irrigation water over one hundred years prior to the existing cause of action, plaintiff failed to establish an existing water right by failing to show that he had actually diverted the water and applied it to beneficial use. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001.

Water treated as natural resource for commerce clause analysis purposes. — For purposes of constitutional analysis under the commerce clause, water is to be treated the same as other natural resources. City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds, 563 F. Supp. 379 (D.N.M. 1983).

Prohibition of out-of-state export of ground water unconstitutional. — New Mexico's prohibition of the out-of-state export of ground water, derived from N.M. Const., art. XVI, §§ 2 and 3, and former Section 72-12-19 NMSA 1978, which statute, with minor exceptions, expressly prohibited the transport of ground water from New Mexico for use in another state, is unconstitutional, as such an embargo violates the commerce clause of U.S. Const., art. I. City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds, 563 F. Supp. 379 (D.N.M. 1983).

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).

"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.

"Beneficial use" construed. — Beneficial use is the use of such water as may be necessary for some useful and beneficial purpose in connection with land from which it is taken. No one has right to use or divert water except for beneficial use. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Conservation is beneficial use. — Attainment of state conservation purposes by state game commission is such a purpose as to constitute a useful or beneficial application of waters. United States v. Ballard, 184 F. Supp. 1 (D.N.M. 1960).

Quantity of appropriation measured by amount applied to beneficial use. — Amount of water which has been applied to a beneficial use is a measure of quantity of appropriation. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

Measuring water rights. — Where the state engineer utilized aerial photographs dating back to 1935 to measure water rights by the amount of water being placed in beneficial use and did not measure water that was declared and was not being beneficially used, the state engineer followed the basis of measurement required by the New Mexico constitution. Montgomery v. State Eng'r, 2005-NMCA-071, 137 N.M. 659, 114 P.3d 339, aff'd in part, rev'd in part, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.

Appropriator can take only such water as he can beneficially use. Worley v. United States Borax & Chem. Corp., 1967-NMSC-129, 78 N.M. 112, 428 P.2d 651.

Measure of right to appropriate water is actual beneficial use; that is, the amount of water necessary for effective use for purpose to which it is put under particular circumstances of soil conditions, method of conveyance, topography and climate. State ex rel. Reynolds v. Mears, 1974-NMSC-070, 86 N.M. 510, 525 P.2d 870.

A city cannot take for storage a quantity of water greatly in excess of its current needs and sales to other water users on the strength of mere speculation as to the demands of possible sales in the future. Such storage for possible future exchange is unreasonable and does not constitute a beneficial use. Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981).

No one is entitled to receive water for a use not recognized as beneficial. Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981).

Excessive diversion is not beneficial use. — No matter how early a person's priority of appropriation may be, he is not entitled to receive more water than is necessary for his actual use. An excessive diversion of water, through waste, cannot be regarded as a diversion to beneficial use. Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981).

Intended future use. — The concept of beneficial use requires actual use for some purpose that is socially accepted as beneficial. An intended future use is not sufficient to establish beneficial use if the water is not put to actual use within a reasonable span of time. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

Diversion alone is not beneficial use. — There must be an ultimate, actual beneficial use of the water resulting from the diversion. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

Mere diversion of water into a canal or ditch, without applying water to irrigating a crop or other valid use, does not satisfy the requirement of a beneficial use. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

Preparatory use. — Running water over land without growing crops or irrigating native grasses may constitute a preparatory use of the water for a period of time, but doing so for a number of years can only be characterized as waste. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

Diversion for irrigation. — Diversion of water into irrigation ditches or flooding the land with the diverted water does not, by itself, constitute irrigation for the purpose of establishing beneficial use; diversion for the purpose of irrigation contemplates that something will be grown. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

When water is diverted for agricultural purposes, the vesting of water rights occurs when crops are cultivated and not when preparatory steps are taken in anticipation of cultivation. State ex rel. Martinez v. McDermett, 1995-NMCA-060, 120 N.M. 327, 901 P.2d 745.

New Mexico’s groundwater forfeiture statute allows for partial forfeiture of water rights. — Forfeiture is an essential enforcement mechanism for New Mexico’s beneficial use doctrine, and there is no distinction between partial forfeiture and forfeiture. Beneficial use is the measure of the water right, whether a water owner has ceased to use all of a water right or has ceased to use part of a water right, and therefore where petitioner, for more than four years, used only three acre-feet per year of water for livestock purposes from a claimed 394 acre-feet per year water right, the special master did not err in finding that New Mexico’s groundwater forfeiture statute, 72-12-8 NMSA 1978, allows for partial forfeiture and that petitioner forfeited his water rights above the three acre-feet per year for failure to put the water to beneficial use. State ex rel. Off. of St. Eng’r v. Romero, 2022-NMSC-022, aff’g 2020-NMCA-001.

Water forfeited by nonuse. — Beneficial use is the basis, measure and limit of the right to use water in New Mexico, and unused water rights may be forfeited. United States ex rel. Acoma & Laguna Indian Pueblos v. Bluewater-Toltec Irrigation Dist., 580 F. Supp. 1434 (D.N.M. 1984), aff'd, 806 F.2d 986 (10th Cir. 1986).

Proper test for abandonment of water rights. — Clear and convincing evidence of an unreasonably long period of nonuse constitutes circumstantial evidence of intent to abandon a water right strong enough to warrant a presumption of abandonment. The burden is on the party asserting abandonment to establish the unreasonably long period of nonuse by clear and convincing evidence. When the presumption of intent to abandon a water right has been established by clear and convincing evidence showing an unreasonably long period of nonuse, the burden shifts to the rights-holder to rebut the presumption. The necessity of evidence to rebut the presumption of abandonment is vindication of the constitutional mandate of beneficial use, and thus the evidence must show more than an expression of desire or intent but some actual fact, condition, or act that excuses the nonuse, or reveals actions inconsistent with an intent to abandon the water right. State ex rel. Off. of State Eng'r v. Intrepid Potash, Inc., 2025-NMSC-040, aff'g 2024-NMCA-024, 544 P.3d 276.

New Mexico adopts "anti-speculation" as a feature of water law jurisprudence. — To avoid a conclusion that one is speculating water, the water rights holder must apply the water to beneficial use. The desire of a water rights holder to use its water later, when it is financially profitable, is the antithesis of beneficial use and is not an excuse for nonuse sufficient to rebut the presumption of abandonment. State ex rel. Off. of State Eng'r v. Intrepid Potash, Inc., 2025-NMSC-040, aff'g 2024-NMCA-024, 544 P.3d 276.

Abandonment was supported by substantial evidence. — Where defendants were granted rights to over 34,000 acre feet/year (afy) of nonconsumptive water and an additional 19,000 afy of consumptive water from the Pecos river for industrial use at a refinery in Loving, New Mexico, and where the water was beneficially used for cooling heated ore and for sluicing undissolved waste salts for forty years, until 1973, when defendants closed the Loving refinery, there was substantial evidence to support the district court's finding that defendants abandoned all but 150 afy of its water rights in the Pecos river where the evidence showed that no water was put to beneficial use at the Loving refinery, the licensed place of use, for the licensed purpose of use for over forty years, and that defendants' speculation of its water rights did not excuse its abandonment. State ex rel. Off. of State Eng'r v. Intrepid Potash, Inc., 2025-NMSC-040, aff'g 2024-NMCA-024, 544 P.3d 276.

The district court did not deprive appellants of due process in its forfeiture of water rights adjudication. — In consolidated appeals that arose from appellants' attempt to modify the point of diversion of water rights that had been dormant for decades, and where, in case 1, the district court, following an expedited inter se proceeding, concluded that appellants, through their predecessors, forfeited all Pecos river water rights in excess of 5,813.6 acre-feet per year and abandoned all but 150 acre-feet per year of the remaining water rights, and where, in case 2, the appellants appealed the district court's denial of their joint motion to intervene in writ of mandamus proceedings filed by appellees seeking that the office of the state engineer suspend or cancel preliminary authorizations for appellants to use the water rights pending the final determination of applications to change the point of diversion of their water rights, the district court did not deprive appellants of due process, because the procedure used in the expedited inter se proceeding properly safeguarded appellants' protected property rights by providing notice of the proceeding to all parties and providing appellants with an opportunity to be heard by allowing appellants to proffer evidence regarding its use of the water rights. Appellants also failed to argue that there was a risk of an erroneous deprivation of its water rights after the trial, and thus failed to demonstrate that there was a reasonable likelihood that the outcome might have been different with additional evidence. Carlsbad Irrigation Dist. v. D'Antonio, 2024-NMCA-024, cert. granted.

The district court did not err in its forfeiture adjudication. — In consolidated appeals that arose from appellants' attempt to modify the point of diversion of water rights that had been dormant for decades, and where, in case 1, the district court, following an expedited inter se proceeding, concluded that appellants, through their predecessors, forfeited all Pecos river water rights in excess of 5,813.6 acre-feet per year and abandoned all but 150 acre-feet per year of the remaining water rights, and where, in case 2, the appellants appealed the district court's denial of their joint motion to intervene in writ of mandamus proceedings filed by appellees seeking that the office of the state engineer suspend or cancel preliminary authorizations for appellants to use the water rights pending the final determination of applications to change the point of diversion of their water rights, the district court did err in its forfeiture adjudication, because there was substantial evidence to support the court's decision that appellants stopped beneficially using the nonconsumptive water rights in 1948 after appellants installed cooling towers and no long needed the water to cool potash ore at its refinery, and there was substantial evidence to support the court's conclusion that appellants forfeited the remaining water rights after 1963, based on a water master report provided by appellants that showed there was a nonuse period of at least four years for nonconsumptive and consumptive use water rights. Moreover, the record supports that no circumstances beyond appellants' control excused the nonuse. Carlsbad Irrigation Dist. v. D'Antonio, 2024-NMCA-024, cert. granted.

The district court did not err in the abandonment adjudication. — In consolidated appeals that arose from appellants' attempt to modify the point of diversion of water rights that had been dormant for decades, and where, in case 1, the district court, following an expedited inter se proceeding, concluded that appellants, through their predecessors, forfeited all Pecos river water rights in excess of 5,813.6 acre-feet per year and abandoned all but 150 acre-feet per year of the remaining water rights, and where, in case 2, the appellants appealed the district court's denial of their joint motion to intervene in writ of mandamus proceedings filed by appellees seeking that the office of the state engineer suspend or cancel preliminary authorizations for appellants to use the water rights pending the final determination of applications to change the point of diversion of their water rights, the district court did err in its abandonment adjudication, because there was substantial evidence to support the district court's decision based on appellants' nonuse of their water rights for an unreasonable period of time, creating a presumption of abandonment, and appellants failed to rebut this presumption by offering proof of some fact or condition excusing such nonuse or evidence of an intent not to abandon. Carlsbad Irrigation Dist. v. D'Antonio, 2024-NMCA-024, cert. granted.

Use must be reasonable. — Use of water must not only be beneficial to lands of appropriator, but it must also be reasonable in relation thereto. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.

No matter how early a person's priority of appropriation may be, he is not entitled to receive more water than is necessary for his actual use. Excessive diversion of water through waste cannot be regarded as diversion to beneficial use. State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983; Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981).

Generally regarding eminent domain. — In determining whether use would inure to benefit of general public or only a few individuals, the public use being furthered is not distribution of waters but the ultimate use of the water. The ultimate use of public waters in aid of coal mining is not a beneficial or public use so as to confer power of eminent domain for a right-of-way to divert such water. W.S. Ranch Co. v. Kaiser Steel Corp., 388 F.2d 257 (10th Cir. 1967), rev'd on ground that federal action should be stayed awaiting state decision, 391 U.S. 593, 88 S. Ct. 1753, 20 L. Ed. 2d 835 (1968).

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 (42-1-31 and 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 S. Ry., Inc. v. Baucis Ltd. Liab. Co., 1998-NMCA-002, 124 N.M. 430, 952 P.2d 31.

Liability for negligent use of water. — Beneficial use is the basis, measure and limit of right to use of water under this section, and when waters are willfully and negligently allowed to run on lands of others, liability attaches. Holloway v. Evans, 1951-NMSC-082, 55 N.M. 601, 238 P.2d 457.

Lease of water by irrigation district is beneficial use. — Leasing or renting of water by irrigation district together with use thereof by lessee is beneficial use within requirement of this section. 1964 Op. Att'y Gen. No. 64-01.

Remainder subject to further appropriation. — By limiting right to use of water to a "beneficial use," constitution grants to appropriator only that quantity of water which is so applied, the remainder being subject to further appropriation for like purposes. 1915 Op. Att'y Gen. No. 15-1508.

Water right forfeited by nonuse. — There is no power under New Mexico water law to acquire a water right and hold it without using it. Water right is a usufructuary right which can be forfeited by nonuse. 1964 Op. Att'y Gen. No. 64-01.

State engineer to protect instream flows. — Neither the New Mexico constitution nor statutes governing appropriation and use of surface water prohibit the state engineer from affording legal protection for instream flows for recreational, fish or wildlife, or ecological purposes, by conditioning approval of a transfer of an existing water right to an instream use on the installation of gauging devices. 1998 Op. Att'y Gen. No. 98-01.

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

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 comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).

For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).

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).

For article, "The Law of Prior Appropriation: Possible Lessons for Hawaii," see 25 Nat. Resources J., 911 (1985).

For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).

For note, "The Milagro Beanfield War Revisited in Ensenada Land & Water Ass'n v. Sleeper: Public Welfare Defies Transfer of Water Rights," see 29 Nat. Resources J. 861 (1989).

For note, "Contract for Nonbeneficial Use: New Mexico Water Law Is Drowned Out by Contract," see 32 Nat. Resources J. 149 (1992).

For article, “So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and the Endangered Species Act”, see 44 Nat. Resources J. 29 (2004).

For article, “Water Transfer between North and South Carolina: An Option for Policy Reform”, see 45 Nat. Resources J. 441 (2005).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 330 to 332.

Measure and elements of damages for pollution of well or spring, 76 A.L.R.4th 629.

93 C.J.S. Waters § 172.