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Show PERCOLATING WATERS 645 New Mexico In Vanderwork v. Hewes,112 the first New Mexico decision concerning percolating waters, the court was faced with a situation where admittedly percolating or seepage waters rose to the surface and ran off the land to an adjacent tract. Both landowners were using the water, but a third party claimed a statutory right to appropriate it as diffused surface water and to carry it to his lands. The court ruled against this contention, because the Territorial Engineer was without power under the statutes to allocate this water, inasmuch as it was not in a watercourse or seepage from some constructed works. The court rejected the California rule of correlative rights on the ground that it applied to percolating waters in large identifiable basins, but indicated that if that were the fact in other situations, this rule might be persuasive.113 In the Vanderwork case, the New Mexico court followed what appears to be the English rule in regard to the rights of the owner of the land on which the water rose. It allowed the owner of the adjacent tract to utilize all he wanted of the water which flowed to his land, holding his rights inferior to those of his neighbor; and held that the appropriator was entitled to the common law appropriation of any surplus, subject to the wants of the others.114 Although the court appeared to announce the English rule of absolute ownership with regard to the land where the water rose, this was not a competition between adjacent well owners and cannot be construed as a rejection of the American rule of reasonable use. The question of American rule versus English rule had not been resolved at the time New Mexico passed ground water legislation which, without defining percolating waters, declares all ground waters to be public waters, prohibits their removal for transportation outside New Mexico, and specifies that no permit and license shall be required to appropriate ground waters-except those in basins declared by the State Engineer to have reasonably ascertainable boundaries.115 In a subsequent act,116 the legislature provided that when a person was drilling a well or had drilled one and thereby proved the existence of a water supply in an area that the State Engineer thereafter declared to be an underground water basin, such person may protect his rights by filing an application therefor with the State Engineer. The priority relates to the date the person first drilled the well or wells. This is the same result reached in a 112 Vanderwork v. Hewes, 15 N. Mex. 439, 110 Pac. 567 (1910). 113110Pac. at 569. 114110Pac.at570. 11SN. Mex. Stat. Ann. §§ 75-11-19 to 75-11-22 (1968). 116Id. § § 75-11-26 to 75-11-36. Sections 75-11-33 and 75-11-34 were repealed by Laws 1967, ch. 308, § 7. |