By Olivia Romo, NMAA Staff
Acequias have historic, centuries old easements also known as derechos de entrada y salida or derechos de pasar. Acequia easements are recognized in state law, yet there are many disputes that arise over these issues. A modern challenge acequias face is that many newcomers are unaware that acequia easements exist within their property and perceive their private property as being invaded during cleaning or conducting maintenance to the ditch, when the ditch is merely fulfilling its duties.
What is an acequia easement?
An acequia easement runs along both sides of the main ditch and its laterals. State law says that the width of the easement must be adequate to allow for reasonable maintenance, use, and improvements to the ditch. The easement carries with it the rights to access the entire length of the ditch, to maintain and use the ditch in a reasonable manner, and to make reasonable improvements. This right includes the use of heavy equipment or machinery like Bobcats if reasonably needed to do maintenance or make improvements. The acequia easement also includes the right to gain access to the ditch through traditional points of access, even when that access is across a person's property. Without this "Right-of-Way" access provided by State statute, it would be detrimental to the survival of acequia systems throughout the state if you could not access problem areas over another's property. Thus it is important to understand and recognize this significant right awarded to acequias in order to continue delivery of water to its parciantes and to avoid conflict that can be costly and time consuming.
What Legal Documentation is required to defend an Acequia Easement?
According to state law, an acequia has a legal easement after it has been continuously used for irrigation for five years. Once an easement is established, it remains intact. Acequias generally have easements that date back several hundreds of years. No legal documents are required. The easement exists because of historic use regardless of whether the acequia has documented the easement. However, there are two proactive ways that acequias can document their easement.
1. Include a section in the bylaws that defines the acequia easement and traditional point of access. Ensure that all parciantes receive a copy of the bylaws so they know about the declared feet or regulations of the easement and repercussions for violating the easement.
2. File a map of the acequia easement including all laterals, points of diversion, points of access, and desagues, with your county clerk. You can use an available map or draw one of your own. Ask your county clerk where the map will be filed, so that you can advise people how to access it. The information will likely not appear on title searched unless current parcel and owner information for each piece of property is also provided.
What is a violation of acequia easement laws?
Acequia officers should monitor any actions by landowners that may be violations of the acequia easement laws. Examples of violations include:
1. Building a fence across the acequia that prevents walking or using equipment along the length of the ditch
2. Building a structure like a house, deck, or corral within the easement or across the acequia
3. Blocking a traditional access route to the acequia. A landowner, particularly a new one, may attempt to prevent acequia officials, cleaning, or maintenance crews from crossing his/her property to get to the acequia. It may be a good idea to educate a new property owner if there is a traditional access route across his or her property (NMAA has a template letter to send to new property owners).
4. Locking a gate to the easement
5. Allowing a dog or animal to create a potential threat within the easement
6. Overgrowth of trees and vegetation along the bank within the easement
What can Acequia Commissioners/Officials do if there is a dispute with a landowner over an acequia easement?
If a landowner is in violation of an acequia easement law, the first thing an acequia should do is communicate with that landowner. This communication should be initiated by an acequia official, and can be verbal or written. Keep a written record of any verbal communication. In many cases, a suitable understanding can be reached with the landowner through simple communication and negotiation. However, in some cases such an understanding is not reached and the acequia must pursue other legal remedies.
Any person who interferes with the easement or prevents the acequia's convenient access to the easement commits a criminal misdemeanor and may be prosecuted in accordance with the laws of New Mexico. It is crucial that acequia officers understand their powers and duties to protect acequia easements within their prospective acequia. Lack of knowledge of legal aspects of easements may lead to future disputes that cost both time and money. It is also important that officers inform parciantes about easements and traditional points of access that affect them directly in order to avoid these potential future conflicts.
It is advisable that a notice go out to landowners informing them of the spring cleaning date. If a landowner has land through which the cleaning crew must cross, it is a good idea to inform the landowner that you will be crossing the property on cleaning day(s). It may also be helpful if the cleaning crew remains in a group and refrain from traversing the acequia unless it is a part of official business. Lastly, if an infrastructure project is about to be undertaken it would also be ideal to contact landowners prior to the construction providing them a time period of when the work is going to be done.
If acequia officials have any more questions or concerns about an easement situation on their ditch, please feel free to contact the New Mexico Acequia Association at (505) 995-9644.
Note: Piece includes excerpt from the Mayordomia Handbook/Field Guide & Acequia Governance Handbook, Educational Material produced by NMAA.