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Show 522 NEW MEXICO b. ABANDONMENT As pointed out above, the New Mexico court has noted the distinc- tion which exists between statutory forfeiture and abandonment. Abandonment requires both an intent to abandon as well as nonuse of the water. However, the failure to use a water right for an un- reasonable time can be construed as evidence of an intent to abandon it.101 C. ADVERSE USE Some question exists as to whether a water user may lose his right to another by adverse possession. In one decision the New Mexico court concluded that no right had been acquired by adverse posses- sion and questioned whether "such a right can be acquired under our law."102 In subsequent decisions, the court has concluded that, under the facts presented, rights by adverse possession had not been established.103 d. estoppel The New Mexico court has announced, as a general matter, that where one by his conduct has led another to take a position detrimen- tal to his interest in the development and use of water, he is estopped to deny his action, provided he has full knowledge of the facts.104 However, the concept of estoppel has been found to be inapplicable to the State engineer in the enforcement of the State's water laws.105 3.5 Storage Waters, Artificial Lakes, and Ponds By statute, any person intending to construct a dam which will exceed 10 feet in height or which will impound more than 10 acre- feet of water must comply with the statutory provisions relating to the appropriation and utilization of water. However, stock dams where the maximum storage capacity does not exceed 10 acre-feet, or silt retention dams which do not impound or divert water for beneficial use, are excluded from the provisions of this statute.106 3.6 Springs Springs which arise at the surface and form a definite channel have always been considered to be subject to the appropriation doc- trine.107 Also, a spring which flows into a watercourse may be appro- priated as a part of the water supply for the watercourse.108 How- ever, the New Mexico court has said that waters from a spring which do not have a well-defined channel and merely sink into the soil are not subject to appropriation.109 instate ex rel. Reynolds v. South Springs Co., 80 N. Mex. 144, 452 P. 2d 478 (1969). i°* Pioneer Irrigating Ditch Co. v. Blashek, 41 N. Mex. 99, 64 P. 2d 388 (1937). i°3 Bounds v. earner, 53 N. Mex. 234, 205 P. 2d 216 (1949) ; Martinez v. Mundy, 61 N. Mex. 87, 295 P. 2d 209 (1956). 10*La Luz Community Ditch Co. V. Town of Alamagordo, 34 N. Mex. 127, 2i£t Pac. 72 (1929). Ms Erickson v. McLean, 62 N. Mex. 264, 308 P. 983 (1957). 106 New Mexico Stat., sec. 75-5-30. iot Keeney v. Carillo, 2 N. Mex. 480 (1883). ™*Burgett v. Calentine, 56 N. Mex. 194, 242 P. 2d 276 (1951). i<*>Burgett v. Calentine, 56 N. Mex. 194, 242 P. 2d 276 (1951). |
