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Show 516 NEW MEXICO New Mexico has also given recognition to another water rights doctrine which is unusual in the west. This is the concept of pueblo water rights. Such a right is considered to be the paramount right of an American city, as a successor of a Spanish or Mexican pueblo (municipality), to use the water which naturally occurs within the limits of the old pueblo for the use of the inhabitants of the city.41 While this doctrine was found applicable to one New Mexico commu- nity,42 it was found inapplicable to two of New Mexico's major cities.43 b. CURRENT PROCEDURE (1) Exclusiveness of the procedure.-In 1907, New Mexico en- acted a comprehensive statute governing the appropriation of waters from a watercourse. This legislation, with certain amendments, is the law governing the appropriation of water today,44 and is the exclusive procedure by which a right can be acquired.45 In order to initiate a right, an application to appropriate must be filed with the State engineer for some recognized beneficial purpose.46 The applicant may appropriate water for use by others as well as him- self.47 The priority of the appropriator's right dates from the time the right is initiated (application filed) with the State engineer.48 (2) Procedural steps.-Notice of a proposed appropriation is given by publication and any interested user may protest the granting of the application, after which the matter is set for hearing.49 (3) Criteria for approval.-In order to approve an application to appropriate, the State engineer must find that there is unappro- priated water available in the source. Further, the State engineer may refuse to approve an application for surface water if he is of the opinion that the approval would be contrary to the public in- terest.50 The question of what constitutes the public interest was con- sidered in one early case, and the court concluded that matters of public interest went beyond questions of whether the project was dangerous to public health or safety, and encompassed an evaluation of all of the facts and circumstances surrounding competing pro- posals for water use in order to determine which proposal better served the public interest.51 Also, the engineer may approve an appli- cation for a lesser quantity of water than applied for, or he may vary the period of annual use of the water.52 (4) Perfecting an application.-If the application is approved, the applicant is given a specific time within which to construct his works and place the water to beneficial use. This time may be ex- tended by the engineer upon a proper showing by the applicant of « Oardwright v. Pub. Serv. Co., 66 N.M. 64, 343 P. 2d 654 (1959). 42 Id. i3New Mexico Products Co. v. New Mexico Power Co., 42 N.M. 311, 77 P. 2d 634 (1937) ; City of Albuquerque v. Reynolds, 71 N.M. 428, 379 P. 2d 73 (1962). 44 New Mexico Stat., sees. 75-5-1 to 75-5-37. 43 Farmers' Development Co. v. Rayaldo Land & Irr. Co., 28 N.M. 357, 213 Pac. 202 (1923). 4(3 New Mexico Stat., sec. 75-5-1. "Albuquerque Land & Irr. Co. v. Gutierrez, 10 N.M. 177, 61 Pac. 357 (1900). 48 New Mexico Stat., sees. 75-1-2 and 75-5-1. 49 New Mexico Stat., sees. 75-5-4, 75-5-41, 75-5-5. 50 New Mexico Stat., sees. 75-5-5, 75-5-6. si Young & Norton v. Hinderlider, 15 N.M. 666, 110 Pac. 1045 (1910). 52 New Mexico Stat., sec. 75-5-5. |
