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Show 518 NEW MEXICO increase the burden or would damage the servient estate, except through eminent domain proceedings.65 Likewise, the owner of the servient estate cannot change an easement except with the consent of the owner of the easement.66 3.2 Nature and Limit of Rights a. NATURE OF RIGHT ACQUIRED The corpus of water while running in a natural watercourse be- longs to the public, or to the State in trust for the public, and private ownership does not extend to public streams while flowing in the watercourse. The appropriator's right is a right to divert from the stream that quantity of water to which he has a right to use.67 While the appropriative right is a right only to the use of water, neverthe- less a water right is considered to be real property.68 As between appropriators, priority of appropriation gives the better right. Under the doctrine of relation, the priority of the right relates back to the initiation of the right if the appropriation gives the better right. Under the doctrine of relation, the priority of the right relates back to the initiation of the right if the appropriation is perfected with due diligence.69 Beneficial use is the basis, the measure, and the limit of the right to use water in New Mexico.70 In early decisions, it was held that an appropriator's right could not be measured by the capacity of his ditch but, rather, the quantity of water which was actually ap- plied to beneficial use and that when an increased supply is devel- oped, the developer by virtue of his labor is entitled to the increased flow.71 b. LIMITATION ON THE RIGHT While an appropriator is entitled to his beneficial use requirements, he is not allowed to waste water.72 The appropriation statute provides by way of limitation on all rights that the State engineer shall allow to be diverted no more irrigation water than that amount which, consistent with good agricultural practices, will result in the most effective use of the available water, in order to prevent waste.73 Also, a right is limited in time as well as in quantity of water. An appropriator whose right is limited to a part of the year cannot prevent the appropriation of the same source of water by another user during other periods of the year.74 The right of a junior appropriator is subservient to prior rights and can only be exercised after prior rights are fully satisfied. However, the owner of a prior right is not entitled to any water in excess of his beneficial use requirements, and junior appropriators ^Posey V. Dove, 57 N.M. 200, 257 P. 2d 541 (1953). ™ Arch'ibeck v. Mongiello, 58 N.M. 749, 276 P. 2d 736 (1954). w Snow v. Abalos, 18 N.M. 681, 140 Pac. 1044 (1914). 88 New Mexico Products Go. v. New Mexico Power Co., 42 N.M. 311, 77 P. 2d 634 (1938). 69 New Mexico Const, art. XVI, sec. 2 ; Murphy v. Kerr, 296 Fed. 536, (D. New Mexico, 1923). 70 New Mexico Const, art. XVI, sec. 3 ; New Mexico Stat. sec. 75-1-2. 71 Millheiser v. Long, 10 N.M. 99, 61 Pac. Ill (1900) (beneficial use the measure); Keeney v. Carillo, 2 N.M. 493 (1883) (developed water). ™8now v. Abalos, 18 N.M. 681, 140 Pac. 1044 (1914). 7sNew Mexico Stat., sec. 75-5-17. ™Harkey v. Smith, 31 N.M. 521, 247 Pac. 550 (1926). |