Abstract
In New Mexico, the water law of prior appropriation rules. As a result, no individual holds a complete right to ownership of water in New Mexico. Instead, New Mexico landowners hold only a right to put appropriated waters to beneficial use. Appropriation of waters requires diversion, a distinct feature that prevents landowners from claiming natural watercourses flowing through their property boundaries. The unappropriated waters of the state are then vested in the state via public trust, to be used and enjoyed by the public. This public right to use often abuts landowner property rights, as water flows over and through the boundaries of private property. The stage is set for two competing property interests—a public right to the reasonable enjoyment of the state’s waters, and a private right of landowners to exclude others in the pursuit of the efficient use of their property. The right to exclude is a core stick in the bundle of rights possessed by landowners that can often be asserted without rhyme or reason. In 2018, the New Mexico State Game Commission promulgated N.M.A.C., Section 19.31.22, a regulation recognizing landowners’ robust right to exclude the public from non-navigable streams within their property lines, creating a legal means to privatize sections of New Mexican water. This practice of privatizing New Mexico’s streams was unequivocally rebuked by the 2022 New Mexico Supreme Court (“NMSC”) decision in Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission. The decision, relying on the 1945 case State ex rel. State Game Commission v. Red River Valley Co., reaffirmed the public’s property rights in the unappropriated waters of the state. This Note summarizes the history of public use rights in the non-navigable streams of New Mexico and the consistent adoption of Spanish colonial surface water law by the successive sovereigns of the New Mexico territory. The Note then analyzes the stark contrast between the consistent substantive surface water law of New Mexico with the claimed historical practices of recognizing riparian water rights in the state. In furtherance of this analysis, the Note discusses Sanchez v. Torrez, a current federal case challenging the enforcement of the Adobe Whitewater decision and the federal trial court’s opinion which reaffirmed New Mexico’s state sovereign prerogative to dictate the surface water law within its territory.
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Recommended Citation
Loren Vigil,
Wading in the Waters: The Public’s Use Rights in Non-Navigable Streams,
66
Nat. Res. J.
356
(2026).
Available at:
https://digitalrepository.unm.edu/nrj/vol66/iss2/10
