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Show 574 OTHER WATERS AT THE SURFACE user of the original flow-are not subject to any rights of use of the waste water acquired by persons after the waste water has left the land of origin. That is to say, the owner of the land of origin is not required "to continue or maintain conditions so as to supply the appropriation of waste water at any time or in any quantity, when acting in good faith."51 The user of the waste water does not become vested with any control of the irrigation ditches or of the water flowing therein on the land of origin. The original landowner cannot be compelled to continue wasting water for the benefit of any claimant of the waste water flowing from his land." New Mexico.- Rights to use seepage water appearing from an unknown source were involved in a decision rendered by the Territorial Supreme Court in 1910.53 The water increased in extent until it crossed a road and entered adjoining land of a party who used the water for irrigation of such land. A third party applied to the territorial engineer for a permit to appropriate the water. The supreme court held that the then existing statute concerning appropriation of seepage water applied only to seepage from constructed works, which was not the case here. Therefore, the territorial engineer had no authority to issue a permit to appropriate the water. This water, while on the land on which it rose and on the land on which it was being used was not subject to appropriation by any other party without the consent of the owners of such lands. The court concluded that the rights of the existing user were subject to the prior right of the party on whose land the water rose to apply the water to a beneficial use thereon, the surplus being appropriable for use by the adjoining user. Any surplus that might exist beyond the requirements of these two parties would not be subject to appropriation under the statute, but if appropriable at all without their consent, would be governed by the general Western law of prior appropriation. Drainage water flowing in an artificial drainage system has been held not subject to appropriation as against the owner of the works. The creator of such flow is the owner of the water so long as it is confined to his own property. When such waters are deposited in a natural stream and the creator of the flow has lost dominion over the same, they then become a part of the stream and are subject to appropriation and use therefrom; but the appropriator can acquire no right as against the creator of the flow to require him to continue supplying such waters to the stream. Artificial waters are not appropriable under the statutes or constitution of New Mexico, nor in the absence of statute.54 "Ryan v. Gallio, 52 Nev. 330, 344-345, 286 Pac. 963 (1930). "In re Bassett Creek & Its Tributaries, 62 Nev. 461, 466, 155 Pac. (2d) 324 (1945). 53 Vanderwork v. Hewes & Dean, 15 N. Mex. 439, 445449,110 Pac. 567 (1910). "Hagerman In. Co. v. East Grand Plains Drainage Dist., 25 N. Mex. 649, 653-658, 187 Pac. 555 (1920). |
