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Show 745 owner or developer to continue the water supply otherwise than by contract, grant, dedication, or condemnation.191 An intending appro- priator must make application to the State Engineer for a permit; upon completion of works the State Engineer issues to the permittee a certificate of construction, and upon application of the water to beneficial use, a license to appropriate the water.192 Apparently this is the exclusive procedure for appropriating waters to which the statute applies.193 The water right is forfeited if the holder fails to use the water beneficially for a period of four years, except in the case of water for storage reservoirs; but the present statute contains a proviso to the effect that forfeiture shall not necessarily occur if circumstances beyond the control of the holder have caused nonuse, such that the water could not be placed to beneficial use by his diligent efforts.194 Stockmen or stock owners who construct water tanks or ponds having a capacity of 10 acre-feet or less, for watering stock, are exempted from the requirements of the water appropriation statute.195 An early statute, still extant, accords certain preference rights to the use of waters to unincorporated communities in which the population exceeds 3,000.198 The riparian doctrine has been consistently rejected in New Mexico. The Territorial supreme court held that the common law as to rights 191N. Mex. Stats. 1941, Ann., § 77-525. 192 N. Mex. Stats. 1941, Ann., §§ 77-501 to 77-521. 188 See Farmers' Development Co. v. Rayado Land & Irr. Co., 28 N. Mex. 357, 368, 213 Pac. 202 (1923). 194 N. Mex. Stats. 1941, Ann., § 77-526. The proviso was enacted in 1941: N. Mex. Laws 1941, ch. 126. Prior to the enactment of this proviso, the section had been construed by the New Mexico Supreme Court in several cases. The court held in 1911 that this legislation was declaratory of previous judicial law, except that previously no specific time limit had been set: Hagerman Irr. Co. v. McMurry, 16 N. Mex. 172, 179-180, 113 Pac. 823 (1911). The court held later that this section refers to quantity of water and not to period of use; that is, the appropriator under the present statute may hold his right by using, in good faith, at any time during the year, the quantity of water so appropriated: Harkey v. Smith, 31 N. Mex. 521, 528-529, 247 Pac. 550 (1926). In 1937 it was stated that when water fails to reach the point of diversion without the fault of the appropriator and he is at all times ready and willing to put the water to the usual beneficial use, there is no forfeiture of his right for nonuser: New Mexico Products Co. v. New Mexico Power Co., 42 N. Mex. 311, 321, 77 Pac. (2d) 634 (1937). In 1950 the court held that a forfeiture did not take place where, throughout the periods of nonuse, irrigation was impractical or impossible because of droughts: Chavez v. Gutierrez, 54 N. Mex. 76, 213 Pac. (2d) 597, 600 (1950). Referring to § 77-526 of the 1941 Compilation, which contained the proviso above noted, the court stated: "Our statutes recognize the unfairness in loss of a water right through nonuse where conditions beyond the control of the owner of such right prevent use." 1MN. Mex. Stats. 1941, Ann., § 77-803. Applied in: First State Bank of Alamogordo v. McNew, 33 N. Mex. 414, 427, 269 Pac. 56 (1928). 1BSN. Mex. Laws 1889, ch. 70; Stats. 1941, Ann., § 14-4501. |