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Territory for a period three years from the date of said notice, within which time the proper officers of the United States shall file plans for the proposed work in the office of the territorial engineer for his information, and no adverse claim to the use of water required in connection with such plans, initiated subsequent to the date of such notice, shall be recognized under the laws of the Territory, except as to such amount of the water described in such notice as may be formaily released in writing by an officer of the United States, thereunto duly authorized; Provided, That in case of failure to file plans of the proposed work within three years, as herein required, the waters specified in the notice given by the United States to the territorial engineer shall become public waters, subject to general appropriations.
Sec. 41. The standard of measurement of the flow of water shall be the cubic foot per second of time; the standard of measurement of the volume of water shall be the acre-foot, being the amount of water upon an acre covered one foot deep, equivalent to forty-three thousand five hundred and sixty cubic feet. The miner's inch shall be regarded as one-fiftieth of a cubic foot per second in all cases, except when some other equivalent of the cubic foot per second has been specifically stated by contract, or has been established by actual measurement or use.
Sec. 42. When the party entitled to the use of water fails to beneficially use all or any part of the water claimed by him, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, except the water for storage reservoirs, for a period of four years, such unused water shall revert to the public and shall be regarded as unappropriated public water.
Sec. 43. In the issuance of permits to appropriate water for irrigation or in the adjudication of the rights to the use of water for such purpose, the amount allowed shall not be in excess of the rate of one cubic foot of water per second for each seventy acres, or the equivalent thereof, delivered on the land.
Sec. 44 All water used in this Territory for irrigation purposes, except as otherwise provided in this act, shall be considered appurtenant to the land upon which it is used, and the right to use the same upon said land shall never be severed from the land without the consent of the owner of the land; but by and with the consent of the owner of the land, all or any part of said right may be severed from said land, and simultaneously transferred, and become appurte. nant to other land, or may be transferred for other purposes, without losing priority of right theretofore established, if such changes can be made without detriment to existing rights, on the approval of an application of the owner to the territorial engineer. Before the approval of such application, the applicant must give notice thereof by publication, in the form required by the territorial engineer, once a week for four consecutive weeks in a newspaper of general circulation in the stream system in which the tract or tracts of land may be situated.
Sec. 45. An appropriator of water may use the same for other than the purpose for which it was appropriated, or may change the place of diversion, storage, or use, in the manner, and under the conditions, prescribed in Sections 25 and 44 of this act.
Sec. 46. Every ditch owner shall when requested so to do by the territorial engineer, construct and maintain a substantial headgate at the point where the water is diverted, and shall construct a measuring device, of a design approved by the territorial engineer, at the most practicable point or points for measuring, and apportioning the water as determined by the territorial engineer. The territorial engineer may order the construction of such device by the ditch owner, and if not completed within twenty days thereafter, refuse to deliver water to such owner. The taking of the water by such ditch owner, after refusal by the territorial engineer to deliver water to him, until the construction of such devise and the approval thereof by the territorial engineer, shall be a misdemeanor. Such devices shall be so arranged that they can be locked in place, and when locked by the territorial engineer or his authorized agent, for the measurement or apportionment of water, it shall be a misdemeanor for any authorized person to interfere with, disturb or change the same.
Sec. 47. Any person, association or corporation interfering with or injuring or destroying any dam, head-gate, weir, benchmark or other appliance for the diversion, carriage, storage, apportionment, or measurement of water, or for any hydrographic surveys, or who shall interfere with any person or persons engaged in the discharge of duties connected therewith, shall be guilty of a misdemeanor, and shall also be liable for the injury or damage resulting from such unlawful act. The territorial engineer or any authorized assistant shall have power to arrest any person offending against the provisions of this Section, and deliver him to the nearest peace officer of the county. It shall be the duty of the person making the arrest to make complaint at once before the court having jurisdiction thereof. The territorial engineer, the water masters, and their authorized assistants, and agents
may enter upon private property for the performance of their respective duties, doing no unnecessary injury thereto.
Sec. 48. The unauthorized use of water to which another person is entitled, or the wilful waste of water to the detriment of another, or the public shall be a misdemeanor. It shall also be misdemeanor to begin to carry on any construction of works for storing or carrying water until after the issuance of permit to appropriate such waters, except in the case of construction carried on under authority of the United States.
Sec. 19. The owner or owners of any ditch, canal, or other structure for carrying or storing water, shall construct a substantial bridge where the same crosses any public road, with a passageway not less than fourteen feet wide; or reconstruct the road in a substantial manner and in a convenient location for public travel. Any violation of the provisions of this Section shall be a misdemeanor. The county commissioners shall be authorized to construct such bridge or road, if not built by the owner of the work within three days after the obstruction of the road, and may recover, the expense thereof and costs in a civil suit, unless the same shall be paid by the owner of the works within ten days after demand therefor. The county commissioners may make reasonable requirements as to the size and character of such bridges along public highways, or for the necessary reconstruction of roads, and upon failure to comply therewith, may do the necessary work and collect the expense thereof and costs as hereinbefore provided. After the construction of such bridge or road as part of a public highway, the same shall be maintained by the county commissioners. The owner or owners of any ditch, canal or other structure for carrying or storing water shall keep the same in good repair at the crossing of any highway or publicly traveled road or at other places where the water therefrom may flow over or in any wise in jure any road or highway; and the commissioners shall re. quire necessary repairs for the protection of the roads to be made or shall make them at the expense of the owners of such works and collect the expense thereof and costs as herein provided.
Sec. 50. Whenever any appropriator of water has the rightof way for the storage, diversion, or carriage of water, it shall be unlawful to place or maintain any obstruction that shall interfere with the use of the works, or prevent convenient access thereto. Any violations of this section shall be a misdemeanor.
Sec. 51. All violations of the provisions of this act, declared herein to be misdemeanors, shall be punished by a fine not
exceeding one hundred dollars ($100.00) nor less than ten dollars ($10.00), or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment, and any justice court of the county in which such misde. meanor has been committed shall have jurisdiction thereof.
Sec. 52. All liens on land, provided for in this act shall be superior in right to all mortgages or other incumbrances placed upon the land and the water appurtenant thereto or used in connection therewith, after the passage of this act.
Sec. 53. In the case of the seepage of water from any constructed works, the owner of such works shall have the first right to the use thereof upon filing an application with the territorial engineer as in the case of an original appropiation, but if such owner shall not file said application within one year after the completion of such works, or the appearance upon the surface of such seepage water, any party desiring to use thesameshall make application to the territorial engineer, as in the case of unappropriated water, and such party shall pay to the owner of such works reasonable charge for the storage or carriage of such water in such works; Provided, That the appearance of such seepage water can be traced beyond reasonable doubt to the storage or carriage of water in such works.
Sec. 54. There is hereby granted, over all the lands now or hereafter belonging to the Territory, a right-of-way for ditches or canals and for tunnels, tramways, and telephone and electrical transmission lines, constructed by authority of the United States. All conveyances of territorial lands hereafter made shall contain a reservation of such right-ofway for such ditches, canals and other works constructed, commenced, or for which applications are on file at the date of such conveyance.
Sec. 55. No lands belonging to the Territory, within the a reas to be irrigated from works constructed or controlled by the United States, or its duly authorized agencies, shall hereafter be sold except in conformity with the classitication of farm units by the United States, and the title to such lands shall not pass from the Territory until the applicant therefor shall have fully complied with the provisions of the laws of the United States and the regulations thereunder concerning the acquisition of the right to use water from such works and shall produce the evidence thereof duly issued. After the withdrawal of lands by the United States for any irrigation project, no application for the purchase of territorial lands within the limits of such withdrawal shall be accepted, except upon the conditions prescribed in this section. Any territorial
lands needed by the United States for irrigation works shall be conveyed to the United States without charge.
Sec. 56. There is hereby appropriated out of any moneys in the territorial treasury, except the fund for the payment of interest on the bonded debt, and exclusive of the Hydrographic Survey Fund hereinbefore provided, the sum of $3,500.00 annually, or so much thereof as may be necessary, for the payment of the salaries and expenses of the territorial engineer, and the services of assistants and expenses of the ottice and department of the territorial engineer, as provided by this act. All claims for services rendered and expenses incurred and materials and supplies furnished under the provisions of this act shall be audited by the territorial auditor for payment and be paid by the territorial treasurer in accordance with the provisions of the general statutes as to the auditing of claims against the Territory.
Sec. 57. In all cases where local or community customs, rules and regulations have been adopted and are now in force and in all cases where such rules ard regulations may be adopted from time to time by the majority of the users from a common canal, lateral, of irrigation system, and have for their object the economical use of water and are not detri. mental to the public welfare, such rules and regulations shall govern the distribution of water from such ditches, laterals and irrigation systems to the persons entitled to water therefrom, and such customs, rules and regulations shall not be molested or changed, unless so desired by the persons interested and using said custom or customs, but nothing in this section shall be taken to impair the authority of the territorial engineer and water master to regulate the distribution of water from the various stream systems of the Territory to the ditches and irrigation sys. tems entitled to water therefrom under the provisions of this act.
Sec. 58. No water master shall be appointed under this act, until the prior rights to the use of water have been determined in one or more stream systems in this Territory under the provisions of this act.
Sec. 59. Nothing contained in this act shall be construed to impair existing, vested rights or the rights and priorities of any person, firm, corporation or association, who may have commenced the construction of reservoirs, canals, pipe lines or other works, or who have filed affidavits, applications or notices thereof for the purpose of appropriating for beneficial use, any waters as defined in Section 1 of this act, in accordance with the laws of the Territory of New Mexico, prior to the passage of this act; Provided, however, That all such