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Show NEW MEXICO 517 due diligence or reasonable cause for delay.53 Upon completion of the project to the satisfaction of the State engineer, the engineer shall issue a license to the applicant for the right to use the amount of water that has actually been put to beneficial use, but not to exceed the amount applied for in the original permit.54 As a related item, the New Mexico court in a recent decision recognized the right of a city to appropriate water for future use, subject to the condi- tion that the water be applied to beneficial use within a reasonable time.55 (5) Judicial review of administrative decision.-Any user ag- grieved by a decision of the State engineer may, within 30 days, appeal to the district court for a review of the State engineer's de- cision. It is provided that the proceeding shall be a trial de novo (new trial), and the evidence taken in the hearing before the State engineer may be considered as original evidence subject to legal ob- jection, the same as if it were originally offered in the district court.56 Recent decisions of the New Mexico Supreme Court suggest that in such appeals the district court is entitled to give weight to the find- ings of the State engineer.57 The district court is limited in its re- view to the evidence which was before the engineer and may not hear new or additional evidence, but must determine whether the engineer's decision is substantially supported by the evidence sub- mitted to him.58 (6) Bights-of-way.-A New Mexico statute provides that any person may exercise the right of eminent domain to acquire a right- of-way for the construction, operation, and maintenance of facilities for the storage and conveyance of water for beneficial purposes.59 In upholding the individual's right to condemn land under this statute, the New Mexico Supreme Court held that the right to use water for irrigation purposes is a public use.60 In a more recent decision it was held that the application of water to a beneficial use, in this case for industrial purposes, is a public use, and thus the in- dividual's right of condemnation was upheld.61 In an action by a city to condemn a community acequia, it was ruled that since the ditch was already devoted to a public purpose, the city had no right to condemn it for another public use.62 However, an existing canal may be enlarged through eminent domain by someone other than the owner for the purpose of carrying additional water.63 The New Mexico court has ruled that an easement may be aban- doned where there has been a nonuse of the easement, coupled with an intention to give up the right.64 The owner of the easement can make no changes in its dimensions, location, or use which would 53 New Mexico Stat., sees. 75-5-5, 75-5-7, 75-5-13. "New Mexico Stat., sec. 75-5-12. ^State v. Crider, 78 N.M. 312, 431 P. 2d 45 (1967). 66 New Mexico Stat., sees. 75-6-1 to 75-6-3 ; New Mexico Const, art. 16, sec. 5. 57 Spencer v. Bliss, 60 N.M. 16, 287 P. 2d 221 (1955) ; Heine v. Reynolds, 69 N.M. 398, 367 P. 2d 708 (1962). *» G. M. Kelley v. Carlsbad Irrigation Dist., 71 N.M. 464, 379, 74 N.M. 373, 394 P. 2d 139 (1964). 59 New Mexico Stat., sec. 75-1-3. 80 Young v. Bugger, 23 N.M. 613, 170 Pac. 61 (1918). 81 Kaiser Steel Corp. v. W.&. Ranch Co., 81 N.M. 414, 467 P. 2d 986 (1970). mAlbuquerque v. Garcia, 17 N.M. 445, 130 Pac. 118 (1913). 63 New Mexico Stat., sec. 75-5-14. upoaey v. Dove, 57 N.M. 200, 257 P. 2d 541 (1953). |