Vanderwork v. Hewes

Citations

• 15 N.M. 439
• 110 P. 567

Syllabus

<p>SYLLABUS.</p> <p>1. Laws of 1907, chapter 49, sec. 12, relates to public and unappropriated waters within the Territory flowing in streams and water courses.</p> <p>2. Section 1, chapter 49, Act of 1907, does not give the territorial engineer the power to grant application for seen-age water.</p> <p>3. Section 53, chapter 49, Laws of 1907, gives the territorial engineer power to grant permits for such seepage water only as comes from “constructed works” and this is true regardless of whether the owner of the land upon which the water appeared, applied for Us appropriation or not. -</p> <p>4. “Constructed works” refers to constructed reservoirs and ditches. ¡</p> <p>5. An artesian well is not “constructed works” under chapter 49, Act of 1907.</p> <p>6. Where seepage or percolating waters are from an unknown source the territorial engineer has no jurisdiction over such waters and no power to grant a permit to use them.</p> <p>7. A small quantity of water percolating to the surface and forming a small basin and coming from a source unknown is part of the land and each land owner can do with it as he chooses.</p> <p>8. The owners of -such land and such waters need not apply' to the territorial engineer tor a permit to appropriate the water and the applying of this water to their lands is an appropriation thereof.</p> <p>9. The Act of 1907, chapter 49, does not empower the territorial engineer to authorize another applicant to go upon lands held in private -ownership, construct ditches and appropriate seepage water or waters from snows, rain or springs, not traceable to or fi’om a stream or water course, or from constructed works.</p> <p>, 10. If any surplus exists, after owner of land on which seepage water exists, has appropriated all he desire's to a beneficial use, and such seepage water is permitted to enter the land of another, that other has a perfect right to appropriate it also to a beneficial use, but his rights are subject to the prior right of first owner