By Paula Garcia, NMAA Executive Director
The acequia easement is generally known as the "bordo" of the acequia which is the land on either side of the acequia that is a passageway up and down the length of the acequia. This bordo serves a very important role as it provides access to the acequia for essential functions such as the annual cleaning. An acequia easement is a right-of-way along the length of the ditch and its extent is defined in state law as whatever is adequate for reasonable maintenance, use, and improvements.
The acequia easement also includes the right to gain access to the ditch through traditional points of access, even when that includes crossing a person's property. Both of these elements of the acequia easement are important during the time when acequias do the annual spring cleaning.
According to state law, an acequia has a legal easement as long as it has been used historically, since its establishment, for at least five continuous years. Once an easement is established, it remains intact. Acequias generally have easements that originated between the 1600s and 1800s. The easement exists because of historic use regardless of whether the acequia has documented this easement.
The springtime often brings to the surface some misunderstandings or disagreements about the nature and extent of acequia easements. To avoid these problems, it is helpful for acequia commissioners and mayordomos to keep their parciantes informed about the acequia easement. Some acequias will define their easement in their bylaws and others will include a description of the easement in a mailout, flyer, or letter to the parciantes and pertinent landowners.
Another approach is to have a map of the acequia easement on file in a public place such as the office of the County Clerk. If the acequia creates such a map, every effort should be made to ensure it is accurate and consistent with the historic practices of the acequia. Some acequias are exploring more extensive methods of documentation with the County Clerk so that the easement is included in the title search.
Not all landowners will acknowledge the acequia easement. However, acequia easements are well established in law and acequias have significant powers to protect and enforce their easements. If there is a disagreement about the nature or extent of an easement, the acequia can first seek to resolve the dispute through communication with the landowner. If necessary, the acequia may have to take legal action to enforce the easement. State law provides several remedies including criminal penalties and injunctive relief. Acequias can contact NMAA for referrals to attorneys that can assist in this regard.
The most important protection for an acequia easement is its continued use by the acequia. The spring cleaning is a good time to reaffirm the significance of the acequia to the continued survival of agricultural and community traditions of growing food and working together to bring water to the fields and crops of the whole community.