The commissioners of any community ditch may alter, change the location of, enlarge, extend, or reconstruct such ditch for the purpose of providing greater efficiency in irrigation to the water users of said ditch, or when any part thereof shall have been destroyed by rain or in any other manner or for the purpose of increasing the cultivable [cultivatable] area, provided that such alteration, change of location, enlargement, extension or reconstruction shall be affected [effected] only upon the consent in writing of a majority of the water users of said community ditch, filed with such commissioners, such majority to be determined by the same rule as applies to the election of commissioners of the acequia, and provided that such alteration, change of location, enlargement or extension shall in no wise impair the rights of prior water users from said community ditch, and provided further that the expense incurred in any such alteration, change of location, enlargement or extension shall be borne pro rata by those beneficially interested in same.

History: Laws 1919, ch. 39, § 1; C.S. 1929, § 151-457; 1941 Comp., § 77-1452; 1953 Comp., § 75-14-53.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For voting rules relating to election of commissioners, see 73-2-14 NMSA 1978.

Former provisions (Code 1915, §§ 5739 to 5743) were held unconstitutional in that they made no provision for notice to the owner of the meeting of the appraisers for the purpose of fixing damages, nor for opportunity to be heard thereon. Janes v. West Puerto de Luna Cmty. Ditch, 1917-NMSC-080, 23 N.M. 495, 169 P. 309.

Just compensation and proper procedures required. — Fact that ditch commissioners are given the right to alter, change location of, enlarge, extend or reconstruct a ditch under conditions set forth in this section cannot be construed as giving them authority to take private property for these uses without just compensation (contrary to N.M. Const., art. II, § 20) and without regard to procedures required by Sections 42A-1-17 and 72-1-5 NMSA 1978. Marjon v. Quintana, 1971-NMSC-045, 82 N.M. 496, 484 P.2d 338.

Specific statutes on condemnation of ditch control over more general condemnation statute for water facilities found in Section 72-1-5 NMSA 1978. 1969 Op. Att'y Gen. No. 69-96.

Condemnation handled by magistrate court. — Condemnation for a ditch which involves change of location, alteration, enlargement, extension or reconstruction thereof is handled by a magistrate court. 1969 Op. Att'y Gen. No. 69-96.

Commissioners may borrow for certain ditch purposes. — Provisions of this section and Section 73-2-21 NMSA 1978, taken together, entitle commissioners to make assessment for repayment of a loan directed to the change of location, expansion or reconstruction of a community ditch. 1964 Op. Att'y Gen. No. 64-95 (opinion rendered before enactment of Section 73-2-22 NMSA 1978).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts § 21.

28 C.J.S. Drains § 58.