SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR

SENATE BILL 102

47th legislature - STATE OF NEW MEXICO - first session, 2005

AN ACT

RELATING TO WATER; PROVIDING PROCEDURES FOR PROSECUTING VIOLATIONS OF LAWS CONCERNING THE MISUSE OF WATER AND INTERFERENCE WITH EASEMENTS FOR OR ACCESS TO CERTAIN IRRIGATION DITCHES; CREATING AND INCREASING PENALTIES; PROVIDING FOR CIVIL REMEDIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 73-2-5 NMSA 1978 (being Laws 1933, Chapter 65, Section 1, as amended) is amended to read:

     "73-2-5. DITCH OVER LAND OF ANOTHER--EASEMENT--RIGHT OF SERVIENT OWNER--PENALTY.--

          A. Hereafter in all cases where there has been a continuous use of a ditch for the purposes of irrigation for five years, it shall be conclusively presumed as between the parties that a grant has been made by the owners of the land, upon which such ditch is located, for the use of the same and it is unlawful to interfere with that easement or prevent access to the ditch by the owner of the dominant estate as provided by law; provided that nothing herein contained shall be construed to prevent the owner of a servient estate from making any alterations or changes in the location of any ditch upon his land, so long as such [alternation] alteration or change of location shall not interfere with the use of or access to such ditch by the owner [or owners] of the dominant estate [or estates].

          B. In the case of a community ditch or acequia, a criminal complaint for a violation of the provisions of Subsection A of this section may be made by the district attorney or the mayordomo or commission of the ditch or acequia to the magistrate court in the county where the violation occurred. A person convicted of violating the provisions of Subsection A of this section is guilty of a misdemeanor and on conviction, the defendant shall be fined not less than three hundred dollars ($300) nor more than one thousand dollars ($1,000) or sentenced up to ninety days imprisonment in the county jail, or both.

          C. In the case of a community ditch or acequia, in addition to criminal prosecution, the district attorney or the mayordomo or commission of the ditch or acequia may file a civil complaint seeking a civil penalty not to exceed five thousand dollars ($5,000) for knowingly, intentionally or willfully violating the provisions of Subsection A of this section.

          D. The remedies provided for in this section shall not be construed as limiting the right of the party bringing the civil or criminal complaint from seeking damages. In addition to the remedies provided in this section, the district attorney, mayordomo or commission of the ditch or acequia or owner of the dominant estate may apply to the district court of the county where the ditch or acequia is completely or partially located or where the defendant resides for a prohibitory or mandatory injunction restraining any person from violating or continuing to violate the provisions of Subsection A of this section; provided, however, that the applicant shall not be required to post bond in seeking such injunction."

     Section 2. Section 73-2-64 NMSA 1978 (being Laws 1923, Chapter 81, Section 1) is amended to read:

     "73-2-64. INTERFERENCE WITH DITCH--ILLEGAL WATER USE--PENALTY--FAILURE TO PROSECUTE--INJUNCTIVE RELIEF.--[Any]             A. A person [not the owner or duly authorized representative of the owner of a water right in any community ditch of this state, or any such owner or representative, who] shall not, contrary to the order of the mayordomo [or commissioner or other person in charge], cut, break, stop up or otherwise interfere with any community ditch or dam in this state, or any contra or lateral acequia thereof, or take or use water from the same contrary to such orders [shall be]. A person who violates a provision of this section is guilty of a misdemeanor, and, on complaint made before the nearest [Justice of the Peace] magistrate court, a warrant shall issue for his arrest, as in case of any other offense against the state [and on].

          B. A criminal complaint for violations of the provisions of Subsection A of this section may be made by the district attorney or the mayordomo or commission of the ditch or acequia to the magistrate court in the county where the violation occurred. Upon conviction of a violation, the defendant shall be fined [in a sum of] not less than [($10.00) nor] three hundred dollars ($300) or more than [($50.00)] one thousand dollars ($1,000) and in default of the payment of said fine, shall be confined in the county jail for a period of not less than five nor more than thirty days [and].

          C. In addition to criminal prosecution, the district attorney or the mayordomo or commission of the ditch or acequia may file a civil complaint seeking a civil penalty not to exceed five thousand dollars ($5,000) for knowingly, intentionally or willfully violating the provisions of Subsection A of this section.

          D. The remedies provided for in this section shall not be construed as limiting the right of the party bringing the civil or criminal complaint from seeking damages. In addition to the remedies provided in this section, the district attorney or the mayordomo or commission of the ditch or acequia may apply to the district court of the county where the ditch or acequia is completely or partially located or where the defendant resides for a prohibitory or mandatory injunction restraining any person from violating or continuing to violate the provisions of Subsection A of this section; provided, however, that the applicant shall not be required to post bond in seeking such injunction.

          E. It is [hereby made] the duty of the mayordomo [or other person] in charge of any such ditch or acequia to prosecute in the name of the state [of New Mexico] any violation of this [Act] section whenever he [shall obtain] acquires knowledge thereof, and his failure so to do shall be deemed a misdemeanor [and]; provided, however, that if the district attorney chooses to prosecute, the mayordomo shall not be required to do so. On conviction [thereof] of violating the provisions of this subsection, the mayordomo shall be fined in a sum not less than [($25.00) nor] three hundred dollars ($300) or more than [($50.00)] one thousand dollars ($1,000) or by imprisonment in the county jail for not less than ten [nor] or more than thirty days."

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