Zl!!Ojl L 16 AHI0= 02

Zl!!Ojl L 16 AHI0= 02 BEFORE THE NEW MEXICO STATE ENGINEER

IN THE MATTER OF THE APPLICATION BY) TOM W. AND PAMELA R. RUNYAN FOR ) PERMIT TO CHANGE POINT OF DIVERSION) AND PLACE AND/OR PURPOSE OF USE )

OSE File No. SP-04970 into PN-928

FROM SURFACE TO GROUNDWATER ) WITHIN THE PENASCO UNDERGROUND ) WATER BASIN IN NEW MEXICO )

REPORT AND RECOMMENDATION OF THE HEARING EXAMINER

This matter came on for hearing before Victor Kovach, the State Engineer's

designated Hearing Examiner, on April 27, 2010, in Santa Fe, New Mexico. Marion J.

Craig Ill, Esq., represented Applicants Tom W. and Pamela R. Runyan. Uday V. Joshi,

Esq. , and Daniel R. Rubin, Esq ., represented the Water Rights Division (WRD) of the Office

of the State Engineer (OSE). Having considered the evidence and pleadings submitted in

the captioned matter, the Hearing Examiner recommends the following findings and order.

FINDINGS OF FACT

1. The State Engineer has jurisdiction of the parties and subject matter.

2. On March 14, 2006, Tom W. and Pamela A. Runyan filed Application No. SP-04970

into PN-928 with the State Engineer for Permit to Change Point of Diversion and

Place and/or Purpose of Use From Surface to Groundwater in the Penasco

Underground Water Basin in New Mexico. Applicants propose to transfer a claimed

right to divert 13.26 acre-feet per year (afy) of surface water of the Rio Penasco, via

the Larramore-Cady North and South Ditches, with point of diversion in the NW ~

SE ~ of Section 27, Township 16 South, Range 17 East, NMPM, for irrigation of

4.42 acres of land described as located in the NW ~ NE ~and the NE ~ NW ~of

Section 35, Township 16 S, Range 17 E, NMPM , and to commence the diversion of

13.26 afy of groundwater from existing well PN-928, located in the NW ~ SE ~ NE

~of Section 29, Township 16 South , Range 17 East, NMPM, for irrigation of 4.42

acres of land owned by the Applicants located in the NW ~ SE ~ NE ~ of said

1

section 29.

3. An affidavit of publication filed with the WRD on April 27, 2006, reflects that legal

notice of the application was published in the Roswell Daily Record on April 2, 9 and

16, 2006. No protests were filed.

4. The OSE District II Supervisor denied the application on March 23, 2009, based

upon a threshold administrative determination that the claimed water right had been

both abandoned and forfeited.

5. Applicants filed a timely letter requesting hearing. The action of March 23, 2009 was

set aside by order dated April 16, 2009, and the matter was referred for

administrative hearing.

6. A Scheduling Order was issued on September 28, 2009, wherein nature and extent

of the claimed water right was described as an issue for determination at hearing

along with availability of water, impairment to existing water rights, public welfare

and conservation of water.

7. The Rio Penasco is a tributary of the Pecos River and a source of recharge for the

Roswell Artesian Underground Water Basin .

8. The waters of the Roswell Underground Water Basin and the Pecos River system

are fully appropriated.

9. Beneficial use is the basis, the measure and the limit of the right to use water. N.M.

Const. Art. XVI, § 3.

10. The rights associated with the Larramore-Cady North and South Ditches were

included in the Final Decree entered on May 8, 1933, in United States of America

vs. Hope Community Ditch, eta!., Cause No. 712 Equity, U.S. District Court of the

District of New Mexico.

11. An entry on pages 433-434 of the Final Decree reflects that Bonnie C. Runyan was

determined to have a vested right, with a priority of 1884, to divert perennial and

flood waters from the Rio Penasco, via the Larramore-Cady North Ditch, for the

irrigation of 12 acres of land situated in Chaves County, New Mexico, shown on

substituted and corrected Map Sheet D-54-1931.

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12. An entry on pages 434-435 of the Final Decree reflects that Bonnie C. Runyan was

determined to have a vested right , with a priority of 1884, to divert perennial and

flood waters from the Rio Penasco, via the Larramore-Cady South Ditch, for the

irrigation of 19 acres of land situated in Chaves County, New Mexico, shown on

substituted and corrected Map Sheet D-54-1931.

13. The 4.42 acres of move-from land in the subject application lie within the tracts

referenced in Findings 11 and 12.

14. Tom W. Runyan testified that his family has farmed the tracts referenced in Findings

11 and 12, which he referred to as the School House Farm, since the 1930s.

According to Mr. Runyan, he acquired the School House Farm from his father, Dave

Edmond Runyan, and his uncle, T. Edsil Runyan, in 1976.

15. The 4.42 acre tract of move-from land in the subject application was irrigated by the

Runyan family until 1954 or 1955.

16. In 1954 a flood destroyed a bridge located at or near the southeast boundary of the

School House Farm.

17. Applicants ' Exhibit 7 includes three Grants of Right of Way Easement (Grants of

Easement) dated November 1, 1955, executed by T. Edsil Runyan , Rachel Runyan,

Dave Edmond Runyan and Charlotte W. Runyan (Runyans) . The Grants of

Easement reflect that for consideration in the sum of $1 ,001 .00 the Runyans

granted Chaves County a perpetual, full, and unrestricted easement and right of way

over and across approximately 6.921 acres of land within the School House Farm

property together with the full and unrestricted right of the County and the State of

New Mexico to use the land as a public highway and to construct such public

highway upon the land.

18. The Grants of Easement are notarized and include the Runyans' acknowledgment

that they executed them "as their free act. "

19. The lands identified in the Grants of Easement were fenced and State Highway 24

was constructed, including a new bridge over the Rio Penasco, upon and across the

lands.

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20. The 4.42 acres of move-from land in the subject application lie under the highway

and within the easement area.

21 . The undisputed evidence presented at hearing establishes that the 4.42 acres of

move-from land have not been irrigated since 1955.

22. The statute applicable to the period of non-use from 1955 to 1965, NMSA 1953, §

75-5-26, states

When the party entitled to the use of water fails to beneficially use all

or any part of the water claimed by him, for which a right of use has

vested, for the purpose for which it was appropriated or adjudicated,

except the waters for storage reservoirs, for a period of four [4] years,

such unused water shall revert to the public and shall be regarded as

unappropriated public water; Provided, however, that forfeiture shall

not necessarily occur if circumstances beyond the control of the owner

have caused nonuse, such that the water could not be placed to

beneficial use by diligent efforts of the owner.

23. Applicants' contention that the failure to irrigate the 4.42 acres of move-from land

was due to circumstances beyond the control of their predecessors is controverted

by the Grants of Easement which reflect that the Runyans, "as their free act",

"granted, bargained, sold and conveyed" to the County and the State a right to

construct a highway upon the land.

24. Neither the Applicants nor their predecessors sought to exercise or transfer the

claimed right to irrigate the 4.42 acres of move-from land at any point prior to the

date of filing of the subject application.

25. Applicants have not demonstrated that circumstances beyond the control of the

Runyans caused nonuse of the subject water, they have not shown that diligent

efforts were made to place said water to use, and therefore have not established

that the provisionary portion of section 75-5-26 applies.

26. The evidence presented supports a threshold administrative determination that the

claimed right to irrigate the subject 4.42 acres of move-from land was forfeited by

operation of law prior to June 1, 1965.

4

27. Moreover, the Runyans' failure to exercise or attempt to transfer the claimed right to

irrigate the 4.42 acres of move-from land, within a reasonable period of time after

execution of the Grants of Easement, is evidence that the Runyans had relinquished

the claimed right.

28. The evidence presented supports the OSE District II Supervisor's threshold

administrative determination that the claimed water right had been both abandoned

and forfeited.

29. Granting the captioned application to commence a diversion of water, based upon a

claimed right that has not been exercised for more than fifty years, would affect the

supply of water available to satisfy existing rights, would be contrary to the

conservation of water within the state, and detrimental to the public welfare of the

state of New Mexico.

30. Application No. SP-04970 into PN-928 should be denied.

ORDER

THEREFORE, Application No. SP-04970 into PN-928, filed by Tom W. Runyan and

Pamela R. Runyan on March 14, 2006, is denied.

Respectfully submitted , Victor Kovach Hearing Examiner

I ACCEPT AND ADOPT THE FINDINGS AND ORDER OF THE HEARING EXAMINER THIS /5/lt DAY OF J 1-1/W , 2010.

N R. D'ANTONIO, JR., PE NEW MEXICO STATE ENGINEER

5

PARTIES ENTITLED TO NOTICE

HU No. 09-056

I certify that a copy of the foregoing Report and Recommendation of the Hearing Examiner was mailed to the following parties on the t:l!aof~

F. Eileen Serna, Administrator

WATER RIGHTS DIVISION

Uday V. Joshi, Esq. OSE, Administrative Litigation Unit P.O. Box 25102 Santa Fe, NM 87504-5102 (505) 827-6181; Fax (505) 827-3520

APPLICANTS

Marion J. Craig III, P.C. P.O. Box 1436 Roswell, NM 88202-1436 (575) 622-1106 Attorney for: Tom W. & Pamela A. Runyan

,.

File Number:

··· ·· NEWMEXICO-OFFICE OF THE STATE ENGINEER APPLICATION TO CHANGE POINT OF DIVERSION AND PLACE

AND/OR PURPOSE OF USE FROM SURFACE TO GROUND WATER

1. WATER RIGHT OWNER Name: Tom W. and Pamela A. Runyan

Contact: Work Phone: Home Phone : sos-&BZ-35()5

Address: 4839 Rio Penasco Road

city : May hi 11, NM 88339

2. CHANGE FROM

A. POINT OF DIVERS I ON (a, b, c ,

a. 114 NW 1 14 ~1/4 in

b . X = feet, y

State: Zip:

or d required, e or f if known)

--o c.n :;;;: o=-~ :z {n:R: :"E'M

~ r'11 rrj ::o r- z c- (7)

a ."':':Z

Section: 27 Township: 16 S Range F E N.M.PC~ -- -- --J?oun~:;;o

- r~,o 9 ~>-n

feet , N .M. Coordinate Sy$t;&Titl U1 ::1.-:--Zone in the

U. S . G. S . Quad Map Gra:!!::l.o

----------------------------------------~ ~

c . Latitude: d m ________ s Long itude: ___ d m s - - ---d. East (m), North (m) , UTM Zone 13, NAD (27 or 83)

e. Tract No. , Map No. of the _______ _ Hydrographi c Survey

f. Lot No. , Block No. of Unit/Tract ____________ of the -----------Subdivision recorded in County .

g. Other:

h. Give State Engineer File Number of existing diversion: 712 Equity

i. On land owned by (required): Tom w. and Pamela A. Runyan

j. Source of wate r supply: a . Name of ditch, acequia, b. Stream or water cou rse :

or spring: Larramore-Cady North and South Ditches Penasco

c . Tributary of :

SP !J qq!O File Nwnber: U/8 1;1/- q~<{

Form: wr-09 page 1 of 5 Trn Nwnber:

s?, ~f • ·:~: i . ( ~~

!~ i ( -~- -~

' ·:-:' .J ' . -~ ~-~ ~ .~.·~

;

File Number:

NEW MEXICO OFFICE OF THE STATE ENGINEER APPLICATION TO CHANGE POINT OF DIVERSION AND PLACE


2. CHANGE FROM -continued

B. PLACE OF USE

4.42 acres of land described as follows:

Subdivision o f Section Section Township Range (Distr ict or (Map No.) (Tract No.) Hydrogr aphic Survey)

NWi4N _3_5_ l£.S_ ill_

NE71lf'lH71l, fllH7itfllE7il ~ ros- ~ !1l

Who is the owner of the land? Tom w. and Pame 1 a A. Runyan

C. PURPOSE OF USE

Ac r es

U_L

r.-n-

,.._, §

Domestic : Lives tock: Irrigation: X Municipal:

-"" > ""0

Indust ri:C.: Commercial: Specific use:

D. QUANTITY

Divers i on Amount: Consumptive Use:

File Number: Form: wr-0 9

Other (specify) :

__________ acre-feet per annum __________ acre-feet per annum

page 2 of 5 Trn Number:

a ... th .r::

: .... :;

4.CHANGETO

File Number :



A. LOCATION OF WELL (A and/or B or E Required)

a. NW 1/4 in

__s_(_1 I 4 J'l.L 1 I 4 Section: .29.___ Township: --16-S Range: -1-~N. M. pJ::M.

b. X = feet , Zone in the

U.S.G.S. Quad Map

c. Latitude: d

y

m

Coun,t;y . ::{r..:

feet , N.M. Coordinate Sys;tfem Grcz.~t.

u.J

________ s Longitude: - d m ________ s

d. East (m) , North (m), UTM Zone 13, NAD (27 or 83)

e. Tract No. , Map No. of the Hydrographic Survey

f_ Lot No. ,

g. Other:

Block No. of Unit/Tract Subdivision recorded in

of the County .

h. Give State Engineer File Number if existing well _P~N~-~0~0~9~2~8~----~------

i. On land owned by (required): Tom w. and Pamela A. Runyan

j. If new well, give approximate depth(if known) feet ; Outsid&; diameter of casing inches. Name of driller and license numBer (if known) -.

B. PLACE OF USE

acres of land described as follows :

Subdivision of Section (District or Hydrographic Survey) NW/4 SE/4 NE/4

Who is the owner of the land?

Section (t1ap No . )

Township (Tract No.)

Range

Tom W. and Pamela A. Runyan

If there are other sources of water for these lands, describe by file number:

File Number : Trn Number: Form: wr - 09 page 3 of 5

i·

. '

File Number:



4. CHANGE TO- continued

C. PURPOSE OF USE ,.._, § ~o

Domestic : Livestock: Irrigation : Municipal: Industri~

:.? Commercial-:- Other (specify): Specific use:

D. QUANTITY

Divers ion Amount: Consumptive Use:

4. REASON FOR CHANGE

acre-feet per annum acre-feet per annum

Application is hereby made to change point o f diversion and/or place and/or

purpose ~f use for the. followin~ reaso~s: I~~ ~f~hir~, ~~ig~ ~a~ ~n ae~~~icated water nght (712 Equ1 ty) now rs subJect _______ _f W ____ s _m_n_s, ____ h has constr11cted on it State Hwy. 24, therefore it is impossible to irrigate this adjudicated acreage.

5. ADDITIONAL STATEMENTS OR EXPLANATIONS: Well is upstream of old diversion,!.and in the same aquifer

ACKNOWLEDGEMENT

XXX We) Tom W. Runyan and Pame] a A. Runyan (Please Print)

s are true to the b~

File Number: Form: wr-09 page 4 o f 5

Trn Number:

r,;~/

affirm that the

and belief.

@~ . r~ --~

:~~::J

· r r ,

, .

File Number:



ACTION OF STATE ENGINEER

! !! ~ ~:r-m ::0 t~·Z ;;..;. · G.?

This application is a~r ~/denied/patti&±±§ MPP£60@6 PIBO±ded it i!F'no~~

! : ;:;;s z! ::s s!i!!!\1i:s2 oi:2aii:S:i i:i!f:!Lii:S /1? u!fiCI!:tc!16j 9 e:if: p -- .-- 1! .... .... -......_ 2, .. .JIG i ciltlH ..... "- 3 db .J 66 2 Ed .. ~H& ibl-Lduu ±iiQ Cdil&£213223: @ · ~~~-n- -

. ; '-' .:>:1

This application is hereby DENIED for the reason tbat tbe subject water righf"has been both abandoned and forfeited as well as the applicant's failure to provide proof of ownership of the subject water right.

Witness my hand and seal

Kenneth M. Fresquez District II Supervisor

of March

Engineer

Application No. SP-04970 into PN-928 is denied by of the State Engineer e"O:tE£:9~-. July 16,)},010 in Unit No. 09-056. 3'~ ~

F. Eile .n Serna Administrator OSE/Hearings July 16, 2010

09 , 20--- -

Order Hearing

File Numbe r: Trn Number: Form: wr-09 page 5 of 5

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