New Mexico Statutes
Article 5 - Appropriation and Use of Surface Water
Section 72-5-29 - [Rights of residents of upper valleys of stream systems.]

To the end that the waters of the several stream systems of the state may be conserved and utilized so as to prevent erosion, waste and damage caused by torrential floods, and in order that the benefits of the use of such waters may be distributed among the inhabitants and landowners of the country along said streams as equitably as possible without interfering with vested rights, the natural right of the people living in the upper valleys of the several stream systems to impound and utilize a reasonable share of the waters which are precipitated upon and have their source in such valleys and superadjacent mountains, is hereby recognized, the exercise of such right, however, to be subject to the provisions of this article.
History: Laws 1909, ch. 128, § 1; Code 1915, § 5684; C.S. 1929, § 151-135; 1941 Comp., § 77-527; 1953 Comp., § 75-5-27.
Compiler's notes. — The compilers of the 1915 Code substituted "this article" for "Chapter 49 of the acts of the Thirty-seventh Legislative Assembly of New Mexico," presumably extending the reference to include all the provisions of Code 1915, ch. 114, art. I, not solely those derived from Laws 1907, ch. 49. The provisions of said art. I are presently compiled as 19-7-26, 72-1-1, 72-1-2, 72-1-5, 72-2-1 to 72-2-7, 72-2-9, 72-2-10, 72-3-1 to 72-3-5, 72-4-1, 72-4-13, 72-4-15, 72-4-17 to 72-4-19, 72-5-1 to 72-5-4, 72-5-6 to 72-5-24, 72-5-26 to 72-5-31, 72-5-33, 72-7-1 to 72-7-3, 72-8-1 to 72-8-6 and 72-9-1 to 72-9-3 NMSA 1978.
Interpretation. — Section 72-5-29 NMSA 1978 concerns appropriation of flood waters under certain specific circumstances. An application to appropriate those flood waters is required and an appropriation of those flood waters is appropriate only if that appropriation would not interfere with prior appropriations. Section 72-5-29 NMSA 1978 did not create a super status water use that supersedes the normal appropriation process. Waterfall Cmty. Water Users Ass'n v. N.M. State Eng'r, 2009-NMCA-101, 147 N.M. 20, 216 P.3d 270.
No superseding natural right to appropriate water in a fully appropriated stream system was created. — Where plaintiff applied for 320 acre-feet per year of surface water from a spring that is within the Pecos River stream system for use in a community water system serving a residential subdivision adjacent to the spring; plaintiff claimed that the water would be returned to the Pecos River stream system through individual liquid waste disposal systems; and the Pecos River stream system was fully appropriated, the plaintiff did not have a superseding natural right to waters from the spring under Section 72-5-29 NMSA 1978. Waterfall Cmty. Water Users Ass'n v. N.M. State Eng'r, 2009-NMCA-101, 147 N.M. 20, 216 P.3d 270.
Law reviews. — For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 351.
Right to hasten the flow and increase the volume of water in a stream by alterations or improvements in the bed, 9 A.L.R. 1211.
Exclusion of general public by use made by owner of upland, not connected with navigation, of the shore between high and low water mark, 10 A.L.R. 1053, 107 A.L.R. 1347.
Flowage of streams, prescriptive right of lower as against upper owner to, 53 A.L.R. 201.
Liability for damages from obstruction of stream by debris or waste, 29 A.L.R.2d 447.
Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.
Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.
93 C.J.S. Waters § 186.

Structure New Mexico Statutes