Existing Water Rights Can Be Established Only Upon Proof of Use.

The plaintiff claimed that he possessed water rights because of the activities of his predecessor in interest, which occurred more than one century ago.  He pursued the claims by filing an action in the United States Court of Federal Claims, which denied his claim after finding that it was barred by the statute of limitations. He then intervened in an ongoing water rights adjudication to which the United States and the State of New Mexico were both parties. The other parties sought to dismiss the plaintiff’s claim, and the district court granted the motion, finding that the plaintiff had failed to establish his right and that his claims were barred by res judicata. On appeal, the court affirmed. To establish an existing water right a claimant must demonstrate his intent to appropriate water and show that he actually diverted the water and applied it to beneficial use. The plaintiff had not shown that he or his predecessor had diverted water for more than 100 years.  The plaintiff did not show that the government had interfered with his rights. His predecessor had forfeited its water rights in 1903. The court also found that the action was barred by res judicata. In re Boyd Estate, No. 32,119, 2014 N.M. App. LEXIS 99 (N.M. Ct. App. Oct. 15, 2014).

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