Varela, 040114 NMAGO, AGO 14-04
Docket Nº | AGO 14-04 |
Case Date | April 01, 2014 |
Court | New Mexico |
All the natural waters flowing in streams and watercourses, whether such be perennial or torrential within the limits of the state of New Mexico, belong to the public and are subject to appropriation for beneficial use. A watercourse is hereby defined to be any river, creek arroyo, canyon draw or wash, or any other channel having definite banks and bed with visible evidence of the occasional flow of water.See NMSA 1978, § 72-1-1 (1907, as amended through 1941). The Water Code of 1907 was merely declaratory of the law existing at that time. Hagerman Irrigation Co. v. McMurry, 1911-NMSC-021, ¶ 4, 113 P. 823, 824. The prior appropriation doctrine was subsequently incorporated in the New Mexico Constitution:
The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state.N.M. Const, art. XVI, § 2. By contrast, some states follow the riparian doctrine, which entitles the owner of land contiguous to a watercourse to have that water flow by or through the owner's land "undiminished in quantity and unpolluted in quality," except that any such owner may make whatever use of the water that is reasonable with respect to the needs of other water users. Colorado, 459 U.S. at 179. Riparian ownership of water has never been recognized in New Mexico. Hagerman Irrigation Co., 191 l-NMSC-021, ¶ 6, 113 P. at 825, and prior appropriation continues to be the law in this state. Even though the New Mexico Constitution declares all the waters in the state to be public, there continues to be some confusion and misunderstanding of what this means for public waters crossing the private property of a landowner. The question addressed in this opinion arises from the tension between the rights of the public and the rights of private landowners. ANALYSIS: The New Mexico Supreme Court addressed a question similar to that presented here in 1945. The question decided in State ex rel. State Game Commission v. Red River Valley Company was whether the public had the right "when properly authorized by the State Game Commission, to participate in fishing and other recreational activities in the waters in question" even though the banks on both sides of those waters were owned by a private company via patent from the U.S. government.
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