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reservoirs, canals, pipe lines or other works and the rights of the owners thereof shall be subject to regulation, adjudication and forfeiture for abandonment, as provided in this act. Sec. 60. Whenever the owner of a ditch, canal, pipe line, reservoir, or other works shall turn or deliver water from one stream or drainage into another stream or drainage, such owner may take and use the same quantity of water, less a reasonable deduction for evaporation and seepage to be determined by the territorial engineer, and such owner may be required by the territorial engineer to construct and maintain suitable measuring flumes or devices at the point or points where said water leaves its natural stream or water shed, or is turned into another stream or water shed. Where the rights of others are not injured thereby, it shall be lawful for the owner of any reservoir, canal, or other work, to deliver water into any ditch, stream, or water course, to supply, appropriations therefrom and to take in exchange therefor, either above or below such point of delivery, a quantity of water equivalent to that so delivered, less a proper deduction for evaporation and seepage to be determined by the territorial engineer; Provided, Such owner shall, under the direction of the territorial engineer, construct and maintain suitable measuring devices at the points of delivery and diversion.
Sec. 61. Whenever in accordance with the provisions of this act, any person, firm, association or corporation shall enlarge an existing canal, acequia, reservoir, or other works, in order to use the same in common with the former owner, such person, firm, association or corporation, shall have and enjoy the right to the use and benefit of the quantity of water added to the capacity of such structure or work by such enlargement. Where two or more owners are using or have the right to use the same canal, acequia, reservoir or other water works, and one or more of such owners shall fail or neglect to do his or their proper share of the work or to furnish and pay for his or their proper share of the materials necessary for the maintenance, repair and operation thereof, anyone or more of such owners may, after ten days, notice, proceed to perform such work, and furnish such materials, and may recover from each delinquent owner his proportionate share of the cost of such work and materials by a suit in any court of competent jurisdiction, and shall have a lien therefor upon such delinquent owner's share in said canal, acequia, reservoir or other works enforceable in the same manner as provided by law for the enforcement of mechanic's liens.
Sec. 62. There is hereby created a board of water commissioners to consist of three members who shall be appoint
ed by the Governor of the Territory of New Mexico, by and with the the advice and consent of the Legislative Council, from different sections of the Territory, and who shall hold office for four years, or until their succesors shall be appointed and qualified. Each member of such board before assumming the duties of his office shall take the oath as prescribed by law for territorial officials, conditioned upon the faithful discharge of his duties. Such board shall, if there be pending before it business so requiring, meet at the of fice of the territorial engineer on the first Monday of May, August, November and February of each year, and shall hold special meetings whenever called by a majority of the board, either at the Territorial Capital or elsewhere as the business of the board may require.
Sec. 63. It shall be the duty of said board to hear and determine appeals from the actions and decisions of the territorial engineer in all matters affecting the rights, priorities and interests of water users and owners of, or parties desiring to construct canals, reservoirs, or other works for the conveyance, storage or appropriation of waters in this Terri tory. Any applicant or other party dissatisfied with any decision, act or refusal to act of the territorial engineer may take an appeal to said board; Provided, Notice of such appeal shall be served upon the territorial engineer and all parties interested within thirty days after notice of such decision, act or refusal to act, and unless such appeal is taken within said time, the action of the territorial engineer shall be final and conclusive. Notice of such appeal may be served in the same manner as summons in actions brought before the district courts of the Territory, or by publication in some newspaper printed in the county or water district wherein the work or point of desired appropriation in question is situated, once a week for four consecutive weeks, the last publication to be at least twenty days prior to the date when such appeal may be heard.
Sec. 64. It shall be the duty of the territorial engineer, upon notice being filed in his office of such appeal to forthwith transmit or produce before said board the papers, maps, plats, field notes and other data in his possession affecting the matter in controversy, or certified copies thereof, which copies shall be admitted in evidence by said board or by any court in this Territory as of equal validity with the originals.
Sec. 65. The decision of said board, upon any such appeal, shall be filed in the office of the territorial engineer, who shall thereafter act in accordance with such decision. The decision of said board shall be final, subject to appeal
to the district court of the district wherein such work, or point of desired appropriation, is situated, to be taken within sixty days from the date of such decision, upon notice served in the manner and within the time in this act provided for service of notice of appeal from decisions or acts of the territorial engineer, and upon filing a cost bond in such sum as the board may fix, with two or more sureties to be approved by the clerk of said board. If for any good reason said board should fail to meet and act upon any such appeal within ninety days after the filing of notice thereof with the clerk of said board, the case may be taken before the district court of the district wherein the work done or point of desired appropriation in controversy is situated upon petition and by writ of certiorari directed to said board and served upon the clerk thereof; Provided, That notice of the filing of such petition and the application for said writ shall be served upon all parties interested in the manner herein provided for service of notice of appeals to said board.
Sec. 66. In case of such appeal to the district court it shall be the duty of said board to certify to said court the record of all proceedings with reference to the matter in controversy together with all papers, maps, plats, field notes, and other documents and exhibits filed with said board. The costs in such cases to be taxed the same as costs in cases in the district court and at the same rates and that the same shall be paid in accordance with the judgement of the board or court in each case. All cases removed into the district court in pursuance of this section shall be tried de novo, except that evidence which may have been taken in the hearing before the territorial engineer and said board and transcribed, may be considered as original evidence in the district court, and the court shall allow all amendments which may be necessary in furtherance of justice in all cases, appealed by petition or certiorari, or otherwise, and may submit any question of fact arising therein to a jury, or to one or more referees at its discretion.
Sec. 67. Said board may adopt and use a seal and make rules for the hearing and determination of appeals not inconsistent with law and the provisions of this act. Any member of said board or the clerk thereof, or any referee appointed by said board to take testimony may administer oaths to witnesses; and the board or any such referee shall have the power to order or summon witnesses to appear and testify before it or such referee, and to produce books, papers and documents. Any person, or the officer or agent of any corporation who shall fail or refuse to appear and testify or to produce the papers and documents as required
by any summons or order of said board or referee appointed by said board to take testimony, shall be guilty of a misdemeanor and upon conviction thereof before any district court of this Territory, shall be fined in a sum not less than fifty nor exceeding one hundred dollars, or by imprisonment in the county jail not to exceed three months, or by both such fine and imprisonment, in the discretion of the court.
Sec. 68. Each member of said board shall receive five dollars per day while in attendance at meetings thereof, and actual traveling expenses while in the discharge of his duties; Provided, That no member shall receive pay for more than sixty days' service in any one year.
Sec. 69. The board shall appoint a clerk, who may be also a clerk or assistant to any other territorial officer, and who shall receive a salary not to exceed fifty dollars per month for his services as clerk to said board. The board may purchase necessary stationery and office supplies to an amount not to exceed one hundred dollars in any one year. The salary of the clerk, the per diem of the members of the board and the expenses of the members and office as herein provided, shall be paid at the time and in the same manner as those of other officers of the Territory.
Sec. 70. There is hereby granted upon and over all the lands now or hereafter belonging to the Territory of New Mexico, a right-of-way for canals, acequias, storage reservoirs or other water works, to any person, firm, association or corporation, desiring to construct and use the same, and who shall comply with the provisions of this act. Any person, firm, association, or corporation, desiring to construct and use a canal, acequia, reservoir, or other water works, upon or over lands belonging to the Territory of New Mexico, shall file with the territorial engineer an application as in the case of other appropriations, together with a map or plat describing such lands and if, upon investigation, the territorial engineer shall determine that such application is made in good faith, and that the party making the same is able to construct, maintain, and beneficially use the canal, acequia, reservoir, or other water works described in the application, he shall grant a permit in such form as he may adopt, giving to the applicant the right to use the lands described for such purposes; such permit may be assigned, and shall be subject to forfeiture for abandonment as in the case of other appropriations mentioned in this act.
Sec. 71. All permits, decrees and documents granting, defining or limiting, water rights and rights of owners of canals, reservoirs and works for conducting, storing or appropriating water in this Territory shall be recorded in the
office of the probate clerk and ex-officio recorder of the county in which the property, canal, reservoir or work is situated. When so recorded, copies of such permits, decrees and documents certified by the county recorder shall be admitted in evidence in any court of the Territory as of equal validity with the original.
Sec. 72. It shall hereafter be unlawful for any person, company or corporation to divert the waters of any public stream in New Mexico for use for reservoirs or other purposes in a valley other than that of any such stream, to the impairment of valid and subsisting prior appropriations of such waters.
Any violator of this section, shali upon conviction be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or imprisonment in the county jail for not less than one month nor more than three months, or both, in the discretion of the court.
Sec. 73. An act of the 36th Legislative Assembly of the Territory of New Mexico, entitled "An Act creating the of fice of Territorial Irrigation Engineer, to promote irrigation development and conserve the waters of New Mexico for the irrigation of lands and for other purposes," approved March 16, 1905, and all others acts and parts of acts in conflict with this act, are hereby repealed, and this act shall be in full force and effect from and after its passage.
AN ACT PROVIDING FOR THE PRINTING OF THE RULES OF THE SUPREME COURT AND MAKING AN APPROPRIATION THEREFOR. H. B. No. 27; Approved March 19, 1907.
Sec. 1. Appropriation for printing rules of supreme court.
Be it enacted by the Legislative Assembly of the Territory of New
Section 1. That the sum of one hundred dollars ($100.00), or so much thereof as may be necessary, is hereby appropriated out of any funds in the hands of the territorial treasurer, not needed for the payment of interest on the bonded debt, for the purpose of printing the rules of the supreme and district courts of the Territory of New Mexico.