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Show NEW MEXICO 521 from and, in exchange, an equivalent quantity of water may be taken either above or below the point of delivery, less a proper deduction for evaporation and seepage. This right of exchange is subject to the proviso that other rights are not injured by the exchange.92 The New Mexico Supreme Court held this exchange provision unconsti- tutional insofar as it purported to take private property without due process of law. The court recognized that the State had the right to compel the owner of a ditch to permit the carriage of water of others as a public duty, but only upon the payment of just com- pensation. However, the court concluded that, as to natural water- courses, it could see no objection to the statutory exchange provi- sion.93 3.4 Loss of Rights a. STATUTORY FORFEITURE A New Mexico statute provides that when the owner of a water right fails to beneficially use all or a part of his right for a period of 4 years (except the waters in storage reservoirs), the unused water reverts to the public and is again considered as unappropri- ated public water. There are certain exceptions provided for in the statute, and the State engineer, upon application and a showing of reasonable cause for nonuse, may grant extensions not to exceed a term of 1 year for each extension.94 A recent legislative amendment has restricted the application of the doctrine of forfeiture. With respect to nonuse after 1965, forfeiture can only occur after 4 years of nonuse and 1 year written notice from the State engineer.95 The New Mexico court has noted the fundamental difference be- tween statutory forfeiture and abandonment. A forfeiture occurs from the nonuse of the water and the intention of the appropriator is unimportant, whereas an abandonment cannot occur without an intent to abandon or forsake the right.96 The forfeiture statute provides that a forfeiture shall not neces- sarily occur if circumstances beyond the control of the owner have caused the nonuse, so that the water could not be placed to beneficial use by the diligent efforts of the owner.97 In one case it was held that a, forfeiture did not occur where drought conditions caused a shortage of water and erosion of the channel made it increasingly difficult to get the water to the irrigated land.98 Where the water fails to reach the appropriator's point of diversion there will be no loss of the water right.99 Since forfeitures are not generally favored by the law, the burden is upon the person asserting that a right has been lost by nonuse to prove it so.100 82 New Mexico Stat., sec. 75-5-24. »3 Miller v. Hagerman Irr. Co., 20 N. Mex. 604, 151 Pac. 763 (1915). 8* New Mexico Stat., sec. 75-5-26. 95 New Mexico Stat., sees. 75-5-26 and 75-11-8. 96 State ex rel. Reynolds y. South Springs Co., 80 N. Mex. 144, 452 P. 2d 478 (1969). "New Mexico Stat., sec. 75-5-26. »s Chavez v. Gutierrez, 54 N. Mex. 76. 213 P. 2d 597 (1950). 88 New Mexico Products Go. v. New Mexico Power Co., 42 N. Mex. 311, 77 P. 2d 634 (1937). ioo Jones v. Anderson, 81 N. Mex. 423, 467 P. 2d 995 (1970). |