BY JIM KIMMONS

LEGAL ASPECTS

New Mexico has been very active in the last decade in trying to adjudicate all water rights in the state.  There are still properties out there that will carry a comment in the “for sale” listing that this land has “historical water rights.”  What that means is that they have not been adjudicated, and there may or may not actually be water rights that can be counted upon and legally transferred.  It can require proof that the water use dated before 1907 to get grandfather status.  Needless to say, affidavits to prove use back 100 years can be a bit difficult to obtain.

The purchaser of property in New Mexico should first look for proof that the water rights appurtenant to the property have been adjudicated.  If that is not the case, great caution should be exercised if water rights are important.  There should also be documentation that the water right is recorded in the name of the current seller.  This gets missed more often than one might expect.  Though it may be mentioned in the deed, there is still a document necessary for the state, or a permit per se for the right.  Until a legal transfer of ownership of a water right is recorded at the State Engineer’s Office, the ownership of the right still rests with the last recorded owner.  Sometimes that’s easily correctable, and sometimes it’s not.  If it’s mentioned without break in a chain of deeds, it’s probably going to be easy to resolve.  If not, an attorney can work on it before one makes a purchase. Also, make any purchase offer contingent upon water rights being legally transferable.

HISTORY

In attempting to resolve disputes over water in New Mexico, a great deal of history is involved.  The Native Americans were obviously here long before anyone else, including the Spanish.  However, questions exist as to how organized and engineered their distribution systems were.  It is knownm they used water and, in some areas of the state, they had large canals for distribution.  However, in other areas there is little or no evidence of systems of ditches or canals dating back that far.  This is important in deciding rights, as New Mexico, among other criteria, uses the “first in time – first in right”, or prior appropriation doctrine.  Since so many acequia ditches are supplied by rivers and streams, it’s an important issue when there are disputes over claims to major water sources.

LAW AND LOCAL CUSTOM CREATE CONFUSION

The acequia associations that manage the huge system of irrigation ditches in the state are actually subdivisions of the State of New Mexico.  This limits the ability to sue them, and increases their powers in managing ditches and water flows.  Fred Waltz, a Taos, NM attorney with 30 years of experience in land and water issues, says that many of the issues about which he is consulted have to do with a lack of understanding of local custom and its relation to the legal side of water rights.

Someone from another part of the country will purchase their dream parcel for current enjoyment and future retirement.  One of the most important factors in choosing it might have been the irrigation ditch that flows through it.  It’s even possible that the landowner will not have rights to use the water from the ditch, but it’s still of value in that there are a number of beautiful trees growing along the ditch that wouldn’t otherwise be able to exist in this arid climate.  The new owner puts up a nice fence around the property and comes home one day to find a group of people with shovels going up and down the driveway.  They have also cut down a couple of the nicest trees.  What this new resident didn’t know is that these people have a right to access in order to properly maintain the ditch.  They may have even used the driveway to get a piece of heavy equipment back to the ditch to get that tree out of the way.  Knowing the customs and laws from the beginning, this landowner could have placed a gate in their fence at or near the ditch for the use of the cleaning crew.  And, as far as the trees, there’s no recourse there either.  The acequia crew has the right to remove any impediment to proper flow of water or to maintenance of the ditch.

Another mistake new landowners make is to place culverts in ditches for driveways or other access.  Unfortunately, they usually don’t know seasonal flow rates and the culverts are too small.  They become restricted and the yard, or even perhaps their home, gets flooded at some point.  It’s unlikely that there will be any financial culpability on the part of the acequia association.  Or this property owner might just come home one day to find the culvert entirely removed.  Again, that’s their right, so it’s good to learn about these things before purchase or land use planning.  Many a gas, electric or telephone line has been buried across a ditch, only to be broken during the annual ditch maintenance.  It’s the owner’s problem, not those in charge of the ditch.

Other customs can be quite a revelation to newcomers.  The easement rights for the acequia are not only for the ditch, but as mentioned before, for access to maintain it.  This easement is normally “what is reasonable and necessary”, rather than a defined width of tract or other measure.  If the mayordomo, or ditch supervisor, believes that it’s necessary to bring in a piece of heavy equipment, and doing so requires running over ten feet of your prize rose bushes, that’s the way it will be in most cases. 

There are also sharing arrangements for water between ditch associations.  So, what you have on paper as a specified amount of water right may or may not be supplied in some years.  If three major ditch associations share a source, and water is low one year, agreements may be in place to favor one or another of the ditches, thus reducing your right.  And last but not least, those in charge of the ditch you use for water can have priorities for use in low flow years.  If an acequia sets its priority as livestock watering, then your garden can be denied water in a poor flow year.

It’s evident that there is a great deal of prior history, current law and local custom influencing water rights in New Mexico.  Any prospective land purchaser would be wise to do the research necessary and get the appropriate documentation to assure their right to use surface water.  It would be wise not to stop there.  A courtesy visit to the mayordomo of your ditch association, with questions as to how you can be a good ditch citizen, could go a long way toward avoiding future problems.

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A New Mexico real estate broker based out of Taos, Jim Kimmons is the author of Real Estate Business Guide for About.com.

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