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Show NEW MEXICO 523 3.7 Diffused Surface Waters There appears to be no statute in New Mexico relating to the right to use diffused surface water, but one case held that the land- owner has a right to capture and use such water; and, with respect to disposal of diffused surface water, it has been held that an upper owner may not artificially collect diffused surface water and dis- charge it on his lower neighbor in a manner that would injure the lower landowner.110 New Mexico, by statute, defines seepage, drainage, and wastewaters as artificial surface waters which escape from constructed works and which depend for their continuance on the acts of man. Such waters are primarily private and are subject to beneficial use by the owner. But, if the owner does not use this water for a period of 4 years after its appearance and it finds its way back into the watercourse, then it may be appropriated. However, the owner is not required to maintain the supply.111 4. Ground Water The early cases in New Mexico discussing ground water distin- guished water in definite underground streams from percolating ground water. The former has always been considered subject to appropriation while the language in some of the early cases sug- gested that percolating water belonged to the owner of the soil.112 Legislation was first enacted to control the use of ground water in 1927. However, in a subsequent court action this legislation was held to be unconstitutional because of certain technical defects in the act.113 New legislation was enacted in 1931 and, though it was not challenged until 20 years later, the constitutionality of this act was upheld.114 This 1931 legislation, as subsequently amended, forms the basis of the current New Mexico ground water law. An amendment enacted in 1953 provides that all underground waters of the State are declared to belong to the public and subject to appropriation for beneficial use.115 However, no permit or license to appropriate is required, except in basins declared by the State engineer to have reasonably ascertainable boundaries. Therefore, the regulatory power granted the engineer under the act does not extend to an area until he has defined the boundaries of the basin.116 The 1931 act specified that the classes of water to be regulated were underground streams, channels, artesian basins, reservoirs, or lakes having reasonably ascertainable boundaries.117 However, certain no For the proposition that a landowner may capture and use diffused surface water, see Walker v. New Mexico d 8. P. R. R.. 165 U.S. 593 (1897) ; and for the proposition that diffused surface waters cannot be artiflcally collected and discharged in a manner to damage another, see Rim v. Town of Alamaaordo, 42 N. Mex. 325, 77 P. 2d 765 (1938) and Martinez v. Cook, 56 N. Mex. 343, 244 P. 2d 134 (1952). m New Mexico Stat., sec. 75-5-26; also see Reynolds v. Wiggins, 74 N.M. 670, 397 P. 2d 469 (1964). 112 Hutchins, The New Mexico Law of Water Rights. 51-53 (1955). ™>Yeo v. Tweedy, 34 N. Mex. 611, 286 Pac. 970 (1930). "*Bliss v. Doritv, 35 N. Mex. 12. 225 P. 2d 1007 (1950). 118 New Mexico Stat., sec. 75-11-19. 118 New Mexico Stat., sec. 75-11-21; McBee v. Reynolds, 74 N. Mex. 783, 399 P. 2d 110 (1965). 117 New Mexico Stat., sec. 75-11-1. |
