| OCR Text |
Show 614 OTHER WATERS AT THE SURFACE not subject to appropriation.256 "The law of appropriating water does not apply to springs which do not have a well defined channel through which the water can flow." The waters of the small springs in litigation, which did not flow from the tract but sank into the ground, were not included within the constitutional and statutory declarations of appropriable waters. Such waters, under the holding in the Vanderwork case belong to the owner of the land upon which the springs occur. "However," continued the supreme court in the Burgett case, "if the water rises to the surface and thereafter flows in a stream so as to form a definite channel, it may be appropri- ated."257 The springs in the Burgett case were situated on land owned by the State of New Mexico. Title to this land had been conveyed to the State by the United States after the first purported appropriation of the spring waters by a settler on adjacent public land for use thereon. This settler was predecessor in title of the plaintiffs. After stating the general principle that in the absence of a provision making the State subject to the statute of limitations, no title by adverse possession can be acquired against either the State or the United States, no matter how long continued, the court held, "Thus, the mere fact that the plaintiffs and their predecessors in title made improve- ments on land owned by the United States and later by the State and thereafter used the water of the springs in question, continously for over sixty years, did not vest them with an easement."258 In its opinion in this case, the supreme court concentrated most of its attention on two general principles: (1) the law of appropriation of spring waters, and (2) nonacquisition of an easement by adverse possession against either the State or Federal government. The court mentioned neither the Congressional acts of 1866, 1870, and 1877,259 nor the interesting question of their applicability or nonapplicability to Hunter's appropriation of these spring waters while the land on which they occurred was (1) still part of the public domain and (2) had become so before the United States granted it to the State of New Mexico. Possibly the court felt that the 1866 Congressional requirement concerning vested and accrued water rights recognized "by the local customs, laws, and decisions of courts" was inapplicable here because the State had not then committed itself on the question of appropriating spring water and, when it did, held that spring waters that sank in the soil from which they rose were not subject to appropriation. Notwithstanding this, some comment would have been preferable. ^Burgett v. Calentine, 56 N. Mcx. 194, 196-197, 242 Pac. (2d) 276 (1951). 257 56 N. Mex. at 196. The only New Mexico case cited was Keeney v. Carillo, 2 New Mex. 480(1883). 2S856N. Mex. at 197. 25914 Stat. 253, § 9(1866); 16 Stat. 218(1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). |
