September 26, 2022

Use it or lose it: NM Supreme Court rules unused water rights can be lost even if some of the water is used

Kit Leong/Shutterstock

New Mexico State Supreme Court

New Mexicans who do not use all of their groundwater rights for a certain length of time can lose the rights to the unused portion, according to a new ruling out of the state Supreme Court.

A well that once provided water to steam engines on a bustling railroad in the now-defunct railroad and mining town of Cutter, located in Sierra County near Truth or Consequences, ceased operations. Since then, only three acre-feet of water per year has been used and the water rights have been transferred to a new owner.

This water came from a well built to supply the railroad and livestock. Cutter dates back to the late 1800s when it formed as a mining community. In 1880, a railroad depot was constructed. This allowed for cows and ore to be shipped in and out of the town. The Atchison, Topeka, and Santa Fe Railroad Company had a well drilled in the 1920s to supply water for the steam engines and local livestock. When mining came to an end, so did use of the well.

According to court documents, the railroad stopped using the well in the 1960s, shortly before Cutter became a ghost town.

Toby Romero acquired rights to the groundwater in 1994 from the railroad company. His goal was to sell those water rights. At that time, he filed a declaration of water rights with the Office of the State Engineer for nearly 395 acre feet of water. He calculated this based on 1944 railroad traffic.

Court documents state that the calculation was “grossly different from a hydrographic survey of the Lower Rio Grande Basin conducted three years later, which calculated the Well’s usage as three acre-feet per year for livestock watering.”

Romero has tried to put the water to use, including marketing it to Spaceport America. In 2009, he submitted an application for change of water usage, which he later withdrew without receiving a response. In 2010, the Office of the State Engineer informed him that he did not have the water rights.

A special master assigned to the case calculated that the railroad had rights to about 108 acre feet of water and that about three acre feet had been used annually for watering livestock. The special master also found that water from the well had not been used for anything other than livestock from 1960 until 1995. 

The special master report recommended only using the well for livestock water.

But Romero argues that the use of the well for watering livestock preserved the full water rights that the railroad company had once used.

The court found that not using the majority of the water rights resulted in what is known as partial forfeiture. 

In the ruling, Judge David Thomson wrote that use is the measure of the water right.

That means that because the railroad was no longer using the water for the steam engines, only the rights to the water used for livestock remained in place when Romero bought the property.

This upheld a previous ruling by a district court.

New Mexico law states that water rights can be forfeited if the water is not used for four consecutive years.

When water rights are forfeited, they go back to the state and can be appropriated to someone else.

The law was amended so that the Office of the State Engineer must provide a year’s notice to the water right holder, but that does not apply to water rights that were not used for four consecutive years prior to 1965.