NMCA: Underground water rights may be partially forfeited

A landowner contended that he owned 394.85 acre-feet of underground water rights in the now-abandoned town of Cutter, New Mexico. The evidence at trial showed that a railroad had previously used the water, but that for 34 years the water was not used for anything other than livestock use. A special master found, and the district court agreed, that all non-livestock water rights had been forfeited under NMSA 1978, Section 72-12-8(A). That statute provides that a water right owner who makes no beneficial use of the water right for four years forfeits that right. The landowner appealed, apparently arguing that the underground water right could not be partially forfeited.

In State of N.M. v. Office of the State Engineer (opinion by Judge Julie Vargas), the Court of Appeals held that Section 72-12-8(A) allows the partial forfeiture of underground water rights. The Court first noted that statutes governing surface water rights explicitly provide for the partial forfeiture of those rights. Although Section 72-12-8(A) does not include a reference to partial forfeiture, the Court relied on background principles of water law — e.g. that one does not have a right to water in excess of actual use — in holding that the statute does allow for partial forfeiture. The Court then held that substantial evidence supported the special master’s findings that there had been a partial forfeiture.

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