JUDICIAL DEVELOPMENTS

October 2009

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New Mexico Court Holds Mutual Use of Well under Well Share Agreement to be an Interest in Real Property as an Easement Appurtenant

Skeen v. Boyles

The New Mexico Court of Appeals’ recent opinion in Skeen v. Boyles focuses on a well-sharing agreement between two adjacent ranches in Lincoln County, New Mexico. The parties disputed whether the agreement was a license subject to unilateral revocation at will or an easement appurtenant creating duties. The distinction between a license agreement and an easement interest is very important under New Mexico law. For example, in Kaiser v. W.S. Ranch, 81 N.M. 414, 467 P.2d 986 (1970), the New Mexico Supreme Court has held that a private person who is the holder of a water right has a right of private eminent domain over a servient tenant who is denying access to water that could be placed to beneficial use. Likewise, as between the parties, historic use of a ditch for a period of five years creates an easement interest as a matter of law in the person running water through the ditch. NMSA 1978, § 73-2-5 (2005). Because groundwater and surface water are essentially all part of a basin-wide hydro-commons, see, City of Albuquerque v. Reynolds, 71 N.M. 428, 379 P.2d 73 (1962), see also, Herrington v. State of New Mexico ex rel. Office of the State Engineer, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258, it was only a matter of time until the issue arose whether the compelling policies supporting beneficial use of surface water found root in common use of groundwater sources from wells.