Any five persons who desire to form a company for the purpose of constructing and maintaining reservoirs and canals or ditches and pipelines for supplying water for irrigation, mining, manufacturing, domestic and other public uses, including cities and towns, and for the improvement of lands in connection therewith shall make and sign articles of incorporation that shall be acknowledged before the secretary of state or some person authorized by law to take the acknowledgment of conveyances of real estate. When so acknowledged, the articles shall be filed with the secretary of state.

History: Laws 1887, ch. 12, § 1; C.L. 1897, § 468; Code 1915, § 1026; C.S. 1929, § 32-406; 1941 Comp., § 72-201; 1953 Comp., § 68-2-1; 2013, ch. 75, § 23.

Compiler's notes. — Prior to the 1915 Code, this section provided for filing of articles with the secretary of the territory.

Sections 62-2-1 to 62-2-22 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 2 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.

Cross references. — For municipal water facilities, see 3-27-1 to 3-27-9 NMSA 1978.

For municipal water or natural gas associations, see Chapter 3, Article 28 NMSA 1978.

For use of waters and regulation of water by municipalities, see 3-53-1 to 3-53-5 NMSA 1978.

For certification of water and wastewater plant operators, see 61-33-1 to 61-33-9 NMSA 1978.

For community springs, tanks, reservoirs and ponds, see 72-10-1 to 72-10-10 NMSA 1978.

The 2013 amendment, effective July 1, 2013, required that articles of incorporation of water companies be filed with the secretary of state; added the title of the section; in the first sentence, after "towns, and for the", deleted "purpose of colonization and the" and after "lands in connection therewith" deleted "for either or both of said objects, either jointly or separately"; and in the second sentence, after "filed with the", deleted "state corporation commission" and added "secretary of state".

Diversion of water for domestic purposes is public purpose. — The diversion and distribution of water for irrigation and other domestic purposes is a public purpose. Albuquerque Land & Irrigation Co. v. Gutierrez, 1900-NMSC-017, 10 N.M. 177, 61 P. 357, aff'd, 188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588 (1903).

Legislature has impliedly declared condemnation for water conveyance is for public use. — The legislature, in Section 72-1-5 NMSA 1978, has given to persons, firms, associations and corporations the right to condemn land right-of-way for the purpose of conveying water for beneficial uses. Since the power of eminent domain cannot be exercised without a "public use" being present, the legislature has impliedly declared such a "public use" to be present in such conveyance of water. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.

Company seeking to divert water need not own lands to be irrigated. — It is not necessary that the company seeking to divert the water be the owner of the lands to be irrigated, or be employed by the owners, provided the water is used beneficially within a reasonable time. Albuquerque Land & Irrigation Co. v. Gutierrez, 1900-NMSC-017, 10 N.M. 177, 61 P. 357, aff'd, 188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588 (1903).

Application need not be made in name of all persons to be benefited. — Sections 62-2-1 to 62-2-22 NMSA 1978 relating to the incorporation of waterworks companies and the powers which such companies may exercise, do not require that an application to appropriate public waters for a beneficial use must be made by or in the names of all persons who may ultimately use or be benefited by such use. Mathers v. Texaco, Inc., 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.

Applicant may acquire right-of-way through existing ditch. — An applicant for the appropriation of waters for irrigation purposes may acquire by condemnation proceedings the right to use of the project, and a right-of-way through an existing ditch or canal of another appropriator, by enlargement. 1915 Op. Att'y Gen. No. 15-1508.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waterworks and Water Companies § 1 et seq.

Public utility acts, applicability to municipal corporation operating water plant, 18 A.L.R. 946.

Liability of water distributor for damage caused by water escaping from main, 20 A.L.R.3d 1294.

Water distributor's liability for injury due to condition of service lines, meters, and the like, which serve individual consumer, 20 A.L.R.3d 1363.

94 C.J.S. Waters § 248.