August 13, 2019- State of New Mexico ex rel. Office of the State Engineer v. Toby Romero, No. A-1-CA-36619

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: AUGUST 13, 2019
4 No. A-1-CA-36619
5 	STATE OF NEW MEXICO ex rel.
6 OFFICE OF THE STATE ENGINEER,
7 	Plaintiff-Appellee,
8 v.
9 	TOBY ROMERO,
10 	Defendant-Appellant,
11 	and
12 	ELEPHANT BUTTE IRRIGATION DISTRICT,
13 	et al.,
14 	Defendants.
15 	APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
16 James J. Wechsler, District Judge
17 Domenici Law Firm, P .C.
18 	Pete V. Domenici, Jr.
19 Reed C. Easterwood
20 Albuquerque, NM
21 	for Appellant
Court of Appeals of New Mexico
Filed 8/13/2019 1:05 PM

1 Hector H. Balderas, Attorney General
2 Greg C. Ridgley, General Counsel
3 L. Christopher Lindeen, Deputy General Counsel
4 Richard A. Allen, Special Assistant Attorney General
5 Martha Franks, Special Assistant Attorney General
6 Santa Fe, NM
7 for Appellee

1 	OPINION·
2 VARGAS, Judge.
3 	{1} 	Defendant Toby Romero appeals from the district court's memorandum
4 opinion and order adopting the special master's report. In its report, the special.
5 master determined that Defendant's underground water rights were forfeited and
6 abandoned, except for a portion used for livestock purposes. We affirm.
7 BACKGROUND
8 	{2} 	This case arose as a subfile proceeding in the course of a general adjudication
9 of water rights in the Lower Rio Grande Basin. At issue in this proceeding is a
10 disputed groundwater right in the Lower Rio Grande Basin perfected by prior
11 	appropriation when the Atchison, Topeka, and Santa Fe Railroad Company (the
12 Railroad) drilled and beneficially used water from a well (the Well) in the now-
13 	nonexistent town of Cutter, New Mexico.
14 	{3} 	Defendant's 	cousin 	and 	a 	limited 	liability 	company 	(the 	LLC) 	whose
15 	members were Defendant and Defendant's brother (collectively, the Romeros)
16 purchased property where the Well was located (the Property) from the Railroad in
17 	1994, with the goal of selling the water rights. The LLC conveyed its interest in the
18 Property to Defendant and Defendant's cousin later that year, and Defendant's
19 cousin conveyed his interest to Defendant in 1998. Defendant filed a declaration of
20 groundwater rights with the State Engineer, filled out by an employee in the State

1 Engineer's Office, stating that the Well was "used 1921 [through] 1966 for providing
2 water to 	steam locomotives[,]" 	and "from 	1992 	[through] 	1995 	for 	livestock
3 watering purposes." Defendant then conveyed the Property to two buyers who
4 conveyed the Property back to Defendant over five years later. The State never sent
5 forfeiture notices to Defendant or his predecessors in title.
6 {4} 	In the course of its general adjudication of the water rights in the Lower Rio
7 Grande Basin, the State served Defendant with an offer of judgment stating that the
8 Property had no water right. Defendant objected to the State's offer, claiming a water
9 right in the amount of 394.85 acre-feet per year. The district court referred the
10 present subfile proceeding to a special master, pursuant to Rule 1-053 NMRA.
11 	{5} 	At trial before the special master, the parties agreed that the Railroad drilled
12 the Well in 1921 to acquire water for its operations at Cutter (the Railroad Right),
13 	long before the State Engineer's 1982 extension of the Lower Rio Grande Basin to
14 the area wherein the Property was located. Cutter was a station located between two
15 	of the Railroad's terminal points, and the water drawn from the Well was used by
16 the Railroad for its steam locomotives, its workers, the livestock, and the community
17 	of Cutter. Following the switch to diesel locomotives in the late 1940s, the stop in
18 	Cutter "was no longer necessary and Cutter was nearly completely abandoned."
19 	{6} 	Defendant relied in part on the testimony and a report by Edward Landreth,
20 	an engineer previously employed by the Railroad. Landreth testified that in the
. 	2

1 context of the 1994 sale of the Property, he alerted Defendant's cousin "to the surplus
2 properties that the [Railroad] was selling off' and that Landreth "may have given
3 [Defendant's cousin] contact information with [a real estate firm], and he took it
4 from 	there." 	When 	asked 	if he 	was 	paid 	for 	his 	advice, 	Landreth 	stated,
5 "[Defendant's cousin] ... may have paid me a little something for wages."
6 	{7} 	Landreth indicated in his report that "the consumption of water from [the
7 Well] and predecessor wells at Cutter would have been extensive between 1881 and
8 the end of the steam locomotive era in 1955." Landreth testified that although he
9 characterized 1955 as "the end of the steam locomotive era," steam locomotives
10 continued to be used, albeit to a much lesser extent. He also stated in his report that ·
11 	"the appurtenances to [the Well] was [sic] retired in place in 1959, as the Town of
12 Cutter had ceased to exist and the railroad track maintenance forces have been
13 	relocated."
14 {8} 	The parties stipulated to the admission of several articles detailing the history
15 	of Cutter. 	One such article stated that after the Railroad switched to 	diesel
16 	locomotives, "the trains no longer stopped to water up or unload cinders. In time the
17 section crews were abolished and the bunkhouse and foreman's house became
18 vacant. ... [F]inally on June 15, 1956[,] the post office at Cutter was closed. The
I
19 office had been serving only six families[.] Another stated that the Railroad's "last
20 standing depot was tom down in 1956."
3

1 {9} 	A map of the area contained a handwritten notation that read "retired in place
2 AFR 4590-59," and arrows pointing to the Well's pump house, fuel tank, and
3 underground piping. Landreth testified that when property is identified as "retired in
4 place," it is "removed ... from the tax rolls" and is demolished, and that the notation
5 "AFR" identifies property that is "[a]uthorized for retirement." He further explained
6 that the Railroad retires property primarily to reduce their "maintenance expense and
7 tax exposure[,]" and that wheri property is retired, the Railroad is "relieved ... of
8 the obligation to pay property taxes ... [o ]n improvements" and theoretically stops
9 maintaining the property. 	However, 	in the 	context 	of maintaining the retired
10 property, he noted that "what headquarters do and the local people do can be two
11 	different things."
12 	{to} 	Landreth said he did not interpret the map as identifying the Well as having
13 	been retired. Instead, he believed that the Railroad retained the Well for future use;
14 otherwise, he stated, it would have been erased from the map, "[j]ust like the depot"
15 	that had burned down. The State's witness, John Verploegh, ahydrographic surveyor
16 in the Office of the State Engineer's Litigation and Adjudication Program, testified
17 that he understood Landreth's statement concerning the retirement in place of the
18 	Well' s appurtenances to reference the "equipment as necessary for the diver~ion of
19 water from [the W]ell ... to its place of use, in this case that being the casing, the
20 motor, the pump, the piping, the tank[.]" In his discussion of the map, Verploegh
4

1 testified that he interpreted "the dotted lines-with arrows to both the pipeline and
2 a dotted line to what [he] underst[ ood] to be the pump house, the reservoir, [the
3 W]ell, 	and 	the 	oil 	pit, 	that 	those 	dotted 	lines 	point[ ed] 	directly 	to 	those
4 appurtenances[.]" He understood the notation "retired in place AFR 4590-59" to
5 mean that the appurtenances, "no longer being necessary to the operation of the
6 [R]ailroad, their having been found not necyssary for some time at that point, [he]
7 would presume ... that they are retired in place even inasmuch, as Mr. Landreth put
8 it, on standby ... in the course of general operation."
9 	{11} 	Defendant also called Walter Sam Waldo Johnson as a witness. Johnson
10 testified that sometime between 1962 and 1964, he helped his father repair the Well
11 	because it was not pumping water. Johnson testified that he and his father were hired
12 to repair the Well so it could provide water for livestock. On direct-examination,
13 	defense counsel asked if Johnson had been told the Well "was always maintained in
14 operational condition[,]" to which Johnson replied:
15 	Yes. Yes, sir. Whenever we went out there and got it going and got it
16 	back into operational condition, the·owner said that-whoever, I don't
17 	know whether he own [sic] it or leased it. I'm not sure how. I wasn't
18 	involved on [sic] that. But it was-they had said that it was two or three
19 	years since it had been run.
20 	{12} 	A map of the Railroad's lines in New Mexico indicated that in 1966 the
21 	Railroad still had a station in Cutter, with a siding that could "handle [eighty-two]
22 	cars." Although Landreth could not attest to what extent, if any, water from the Well
5

1 was used for steam locomotives from 1921 to 1966, nor for "municipal purposes' 	.
2 through the [19]70s[,]" he did testify that it was his understanding that the water wasl
3 used for a road project "sometime probably between [19]75 and ... [19]86."
4 	{13} 	The special master recommended the district court enter a judgment rejecting
5 Defendant's water right claim, and adjudicating Defendant only "a livestock right."
6 The special master found "that the amount of water the Railroad beneficially used
7 from the Well was at most 107.53 acre-feet per year[,]" rather than Defendant's
8 claim of 394.84 acre-feet per year. Further, the special master found that there was
9 no evidence that water from the Well was used for any purpose other than watering
10 livestock between December 31, 1960 and December 31, 1964, and that the Railroad
11 	therefore forfeited the non-livestock Railroad Right. The special master also found
12 that the State proved by clear and convincing evidence that the Railroad abandoned
13 	the Railroad Right after not using the right for any purpose other than watering
14 livestock for thirty-four years, at which time the Railroad sold the Property to the
15 	Romeros.
16 {14} 	The district court adopted the special master's report in its entirety. This
17 appeal followed.
18 	DISCUSSION
19 {15} 	Defendant argues the special master erred in finding the Railroad forfeited
20 and abandoned the non-livestock portion of the Railroad Right. We do not address
6

1 the special master's quantification of the Railroad Right as Defendant does not
2 appeal this issue.
3 	{16} 	Following our discussion 	of whether NMSA 	1978, 	Section 72-12-8(A)
4 (2002), provides for partial forfeiture, we review the special master's factual
5 findings for substantial evidence. As our holding on the issue of partial forfeiture is
6 dispositive ofthe matter, we need not reach the abandonment issue.
7 Standard of Review
8 {17} 	A district court may "reject the special master's findings of fact only if they
9 were not supported by substantial evidence." State ex rel. Office of State Eng'r v.
IO 	United States (Office of State Eng'r), 2013-NMCA-023, 116, 296 P.3d 1217; see
11 	Rule 1-053(E)(2) ("In an action to be tried without a jury the [district] court shall
12 accept the [special] master's findings of fact unless clearly erroneous."). The district
13 	court reviews the special master's conclusions oflaw de novo. Office of State Eng'r,
14 2013-NMCA-023, 1 17.
15 	{18} 	This Court "give[ s] no deference to the district court'.s findings but instead
16 consider[ s] only whether the special master's findings of fact were supported by
17 substantial evidence." Id. 118. Substantial evidence is "such relevant evidence as a
18 reasonable mind might accept as adequate to support a conclusion." State :ex rel.
'
19 Reynolds v. Niccum, 1985-NMSC-016, 19, 102 N.M. 330, 695 P.2d 480 (internal
20 quotation marks and citation omitted). Further, "[t]he [special] master's findings are
7

1 presumed to be correct and so far as they depend upon conflicting evidence, or upon
2 the credibility of witnesses, or so far as there is any testimony consistent with the
. 3 findings, they must be treated as unassailable." Office of State Eng'r, 2013-NMCA-
4 	023,, 27 (omission, internal quotation marks, and citation omitted). "On appeal, all
5 disputed facts are resolved in favor of the successful party, all reasonable inferences
6 indulged in support · of the verdict, all evidence and inferences to the contrary
7 disregarded, and the evidence viewed in the aspect most favorable to the verdict."
8 State ex rel. Reynolds v. Lewis, 1973-NMSC-035,, 30, 84 N.M. 768, 508 P.2d 577
9 (quoting Tapia v. Panhandle Steel Erectors Co., 1967-NMSC-108,, 5, 78 N.M. 86,
10 428 P.2d 625). "Nor does the fact that there may have been contrary evidence which
11 	would have supported a different verdict permit us to weigh the evidence." Lewis,
12 	1973-NMSC-035, , 30 (internal quotation marks and citation omitted) (quoting
13 	Tapia, 	1967-NMSC-108, 	, 5). 	"We 	review 	interpretation 	and 	application 	of
14 constitutional and statutory provisions de novo." State ex rel. Office of State Eng'r
15 	v. Elephant Butte Irrigation Dist., 2012-NMCA-090,, 8, 287 P.3d 324.
16 Section 72-12-S(A) Provides for Partial Forfeiture
17 	{19} 	Resolving the question of whether New Mexico's forfeiture statute permits
18 partial forfeiture requires that we interpret the relevant statutes. "When this Court
19 construes statutes, our charge is to determine and give effect to the Legislature's
20 intent." Badilla v. Wal-Mart Stores E. Inc., 2015-NMSC-029,, 12, 357 P.3d 936
8

1 (internal quotation marks and citation omitted). "To discern the Legislature's intent,
2 the Court looks first to the plain language of the statute[.]" Id. (alteration, internal
3 quotation marks, and citation omitted). "Where the language of a statute is clear and
4 unambiguous, we must give effect to that language and refrain from further statutory
5 interpretation." Id. (internal quotation marks and citation omitted).
6 	{20} 	"When the statutory language is ambiguous we can consider principles of
7 statutory construction that are employed with statutes that are unclear. In doing so,
8 we must attempt to construe a statute according to its obvious spirit or reason."
9 Benavides v. E. N.M Med. 	Ctr., 2014-NMSC-037,, 24, 338 P.3d 1265 (internal
10 quotation marks and citation omitted). "When interpreting a statute, we are also
11 	informed by the history, background, and overall structure of the statute, as well as
12 	its function within a comprehensive legislative scheme." Badilla, 2015-NMSC-029,
13 	, 	12 (internal quotation marks and citation omitted). "Additionally, we strive to read
14 related statutes in harmony so as to give effect to all provisions." Benavides, 2014-
15 	NMSC-03 7, , 24 (internal quotation marks and citation omitted).
16 	{21} 	Section 72-12-8(A), addressing the forfeiture of underground water rights,
17 provides:
18
19
20
21
22
23
When for a period of four years the owner of a water right in any of the.
waters described in [NMSA 1978,] Sections 72-12-1 	[to] 72-12-28
[(1931, as amended through 2019)] or the holder of a permit from the
state engineer to appropriate any such waters has failed to apply them
to the use for which the permit was granted or the right has vested, was
appropriated or has been adjudicated, the water rights shall be, if the
9

1
2
3
4
5
6
failure to beneficially use the water persists one year after notice and
declaration of nonuser given by the state engineer, forfeited and the
water so unused shall revert to the public and be subject to further
appropriation; provided that the condition of notice and declaration of
nonuser shall not apply to water that has reverted to the public by
operation of law prior to June 1, 1965.
7 The statute refers to the forfeiture of "the water rights" without specifying whether
8 such forfeiture may extend to just a portion of an appropriator's water rights. Viewed
9 in isolation, Section 72-12-8(A) is ambiguous in this respect.
10 	{22} 	Section 72-12-8(A)'s history and background, particularly in connection with
11 	related statutes, shed some light on the issue of whether it provides for partial
12 forfeiture. In 1907, New Mexico's territorial Legislature enacted the "Statutory
13 	Appropriation Act," also referred to as the "Irrigation Code." NMSA 1915, §§ 5654
14 to 5729 (1907, as amended through 1913); see, e.g., Yeo v. Tweedy, 1929-NMSC-
15 	033, 18, 34 N.M. 611,286 P. 970 (referring to the Act as the "[I]rrigation [C]ode").
16 The Irrigation Code is concerned with surface water rights, rather than underground
17 water rights. See, e.g., § 5654 ("All natural waters flowing in streams and water
18 	courses, whether such be perennial, or torrential, within the limits of the State of
19 New Mexico, belong to the public and are subject to appropriation for beneficial
20 use."); § 5671 (requiring the state engineer to "make hydrographic surveys and
21 	investigations of each stream system and source of water supply in the ~tate");
22 	§ 5673 (providing for suits to adjudicate water rights following "the completion of
23 	the hydrographic survey of any stream system"); see also City of Albuquerque v.
10

l 	Reynolds, 1962-NMSC-173,, 28, 71 N.M. 428,379 P.2d 73 (recognizing that "the
2 water 	code, 	[1907 	N.M. 	Laws, 	ch.] 	49, 	dealt 	only 	with 	surface 	waters").
3 Nonetheless, it is instructive of the policy of our constitution as it pertains to the use
4 	of water in the state.
5 {23} 	Section 5701 	of the Irrigation Code, currently compiled at NMSA 1978,
6 Section 72-5-28(A) (2002), provided:
7
8
9
10
11
12
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 years, such
unused water shall revert to 	the public and shall be regarded as
unappropriated public water.
13 	(Emphasis added.) The Legislature amended this section in 1941 and 1957, adding
14 provisions limiting the applicability of forfeiture "if circumstances beyond the
15 	control of the owner have caused non[]use," 	1941 N.M. Laws, ch. 	126, § 16
16 (emphasis omitted), and during "periods of non[]use when irrigated farm lands are
17 placed under the acreage reserve program or conservation reserve program provided
18 	by [federal law,]" 1957 N.M. Laws, ch. 91, § 1, and amended it again in 1965 to add
19 a notice and declaration requirement prior to the reversion of the unused water to the
20 public. 	1965 N.M. Laws, ch. 250, 	§ l(A). The 1965 amendment also added a
21 	provision at the end of the section stating that the notice and declaration requi;rement
22 "shall not apply to water which has reverted to the public by operation of law prior
23 	to June 1, 1965." Id. In State ex rel. Reynolds v. S. Springs Co., 1969-NMSC-023,
11

1 , 9, 80 N.M. 144,452 P.2d 478, our Supreme Court recognized that partial forfeiture
2 is a potential consequence of non-use of a portion of one's surface water rights.
3 Commenting on this provision of the Irrigation Code, the S. Springs Court stated,
4 "the continuance of the title to a water right is based upon continuing beneficial use,
5 and where the right is not exercised for a certain period of time (four years), [Section
6 72-5-28(A)] declares that the right to_ the unused portion is forfeited." S. Springs,
7 	1969-NMSC-023,, 9, (emphasis added). 1
8 {24} 	It was not until 1927 that the Legislature enacted "An Act Declaring Waters
9 in Underground Streams, Artesian Basins, Reservoirs, and Lakes to be Public Waters
10 and Subject to Appropriation; Confirming Existing Rights to the Use of Such
11 	Waters, and Regulating Appropriation, Use, arid Management Thereof." 1927 N.M.
12 Laws, ch. 	182, §§ 1-6 (compiled as NMSA 1929, §§ 151-201 to -205 (1927)).
13 	Therein, 	the 	Legislature 	recognized that 	"[a]ll 	waters 	in this 	state 	found 	in
14 underground streams, channels, artesian basins, reservoirs, or lakes ... are hereby
1 We 	note 	that 	although 	the 	section 	as 	written 	in 	1907 	was 	entitled
"Abandonment-Failure to use water[,]" it was later retitled "Failure to use water-
Forfeiture[,]" and the following proviso was added: "[T]hat forfeiture sh.all not
necessarily occur if cir~umstances beyond the control of the owner have caused non-
use, such that the water could not be placed to beneficial use by diligent efforts of
the owner." NMSA 1941, § 77-526 (1941); see also S. Springs Co., 1969-NMSC-
023, 	, 	10 	("We 	regret 	that 	forfeiture· 	and 	abandonment 	have 	beeri, 	used
interchangeably, 	as 	the 	element 	of intention 	is 	required 	in 	the 	doctrine 	of
abandonment. This is not so in forfeiture."); Pueblo of ls/eta v. 	Tondre, 	1913-
NMSC-067, , 39, 18 N.M. 388, 137 P. 86 (characterizing the reversion of one's
water right to the public under Section 5701 as a forfeiture).
12

1 declared to be public waters and to belong to the public[.]"§ 151-201. The section
2 went on to state that such waters are "subject to appropriation for beneficial uses
3 under the existing laws of this state relating to appropriation and beneficial use of
4 waters from surface streams." Id.
5 {25} 	Section 151-201, although later held to violate the New Mexico Constitution's
6 prohibition on extending existing statutes .by reference, was intended to subject
7 underground waters to "appropriation for beneficial uses" under the Irrigation Code.
8 See 	Yeo, 	1929-NMSC-033, ,-r,-r 39-40 (explaining that the 	"laws 	of this state"
9 referenced in Section 151-201 "is undoubtedly" referencing the Irrigation Code, and
10 holding that Sections 151-201 to -205 violate Article IV, Section 18 of the New
11 	Mexico Constitution). Thus, the Legislature appeared intent on extending .Section
12 	5701, then compiled at NMSA 1929, Section 151-154 (1907), to underground
13 	waters. But see El Paso & R. L Ry. Co. v. Dist. Ct. of Fifth Judicial Dist., ex rel.
14 	Chaves Cty., 1931-NMSC-055, ,-r 29, 36 N.M. 94, 8 P.2d 1064 ("It is argued that
15 	[Sections 151-201 to -205,] ... was an attempt to control and regulate the relative
16 rights of appropriators from artesian basins as a class by themselves; thus indicating
17 a belief that the original Code did not control. ... But the acts referred to make no
18 	reference to statutory adjudications, do not modify their provisions as to subject-
19 matter or parties, and may as well be urged as proof that the Legislature considered
20 the existing law to be sufficient in that respect."). ·
13

1 {26} 	In 1931, the Legislature enacted a new underground waters forfeiture ~tatute:
2 	When for·a period of four [4] years the owner of a water right in any of
3 	the waters described in this act shall have failed to apply the same to
4 	the use for which the right has vested, was appropriated or shall have ·
5 	been adjudicated, such water right shall be forfeited and the water so
6 	unused shall revert to the public and be subject to further appropriation.
7 NMSA 1941, § 77-1108 (1931). Following amendments in 1957, 1959, 1961, 1963,
8 and 1965, the section was written in its current form. 1957 N.M. Laws, ch. 118, § 1
9 (adding a provision "that periods of non-use when irrigated farm lands are placed
10 under the acreage reserve program or conservation program provided by [federal
11 	law] shall not be computed as part of the four-year forfeiture period"); 1959 N.M.
12 Laws, ch. 7, § 1 (specifying which sections describe the water rights involved in this
13 	section, including holders of a permit to appropriate waters and their failure to apply
14 the waters "to the use for which the permit was granted" within the reach of
15 	forfeiture, and adding a provision permitting the State Engineer to grant extensions
16 	of time in which to apply water to beneficial use); 1961 N.M. Laws, ch. 32, § 1
17 (limiting the computation of the four-year period during "periods of non-use when
18 water rights are acquired and placed in a water conservation program adopted by an
19 artesian conservancy district"); 1963 N.M. Laws, ch. 195, § l(A) (amending "shall
20 have failed to apply the same" to read "has failed to apply them," "shall have been
21 	adjudicated" to read "has been adjudicated," and "such water right" to read "the
22 water rights"; creating subsections within the section; and placing the provisions
14.

1 added in 1957, 1959, and 1961 into subsequent subsections); 1965 N.M. Laws, ch.
2 250, § 2(A) (adding a notice and declaration requirement prior to the reversion of
3 the unused water, and a provision that such requirement "shall not apply to water
4 which has reverted to the public by operation of law prior to June 1, 1965").
5 	{27} 	Although the text of Section 72-12-8(A) does not track Section 72-5-28(A)
6 verbatim, its history and background reveal a legislative intent to provide for partial
7 forfeiture. Cf Reynolds, 1962-NMSC-173,, 28 ("The mere fact that the [T]erritorial
8 [L]egislature in the water code, 	Chapter 49, 	... 	, dealt only with 	surface
9 waters ... does not ... imply a legislative intention that subsequent statutes dealing
10 with underground waters are to be looked upon and treated entirely separate and
11 	apart as though dealing with two entirely different subjects .... There does not exist
12 one body of substantive law relating to appropriation of stream water and another
13 	body oflaw relating to appropriation of underground water."). But see Attorney Gen.
14 of NM v. NM Pub. Regulation Comm'n, 2011-NMSC-034,, 10, 150 N.M. 174,
15 	258 P.3d 453 (explaining that courts construe statutes "under the presumption that
16 the [L ]egislature acted with full knowledge of relevant statutory and common law"
17 (internal quotation marks and citation omitted)).
18 	{28} 	Indeed, our Supreme Court has held that "no matter how early a person's
19 priority of appropriation may be, he is not entitled to receive more water than is
20 necessary for his actual use." State ex rel. Erickson v. McLean, 1957-NMSC-012,
15

1 120, 62 N.M. 264, 308 P.2d 983. Defendant argues that because this holding and
2 any endorsement of partial forfeiture stemming therefrom were made in the context
3 	of our Supreme Court's discussion of "[a]n excessive diversion of water, through
4 waste," id., partial forfeiture is limited to cases involving waste. However, any
5 ambiguity regarding whether Section 72-12-8(A) provides for partial forfeiture is
6 eliminated when we consider the statute in conjunction with our constitutional and
7 statutory "beneficial use" provisions. Section 72-12-2, provides that "[b]eneficial
8 use is the basis, the measure and the limit to the right to the use of the waters
9 described in this act." See N.M. Const. art. XVI, § 3 ("Beneficial use shall be the
10 basis, the measure and the limit of the right to the use of water."). "Beneficial use is
11 	the use of such water as may be necessary for some useful and beneficial purpose in ·
12 connection with the land from which it is taken." Hanson v. Turney, 2004-NMCA-
13 	069, 110, 136 N.M.1, 94 P.3d 1 (internal quotation marks and citation omitted). As
14 our Supreme Court stated: "By the forfeiture of [water] rights ... the policy of our
15 	constitution and statutes is fostered, and the waters made to do the greatest good to
16 the greatest number. This is on the theory that the continuance of the title to a water
17 right is based upon continuing beneficial use[.]" S. Springs Co., 1969-NMSC-023,
18 19 (citing N.M. Const. art. XVI,§§ 1-3, and the previous compilation ofSect~on 72-
19 	12-2).
16

1 {29} 	In 2 Clesson S. Kinney, A Treatise on the Law of Irrigation & Water Rights
2 	§ 1118, at 2021-22 (2d ed. 1912), the interplay between forfeiture and beneficial use
3 is discussed:
4
5
6
7
8
9
10
11
12
13
14
15
16
Although the general rule is that forfeitures are not favored in law, ... it
has been the policy 	of the 	legislatures 	of the various 	States and
Territories to pass enactments providing for the forfeiture of these
rights for the failure or neglect to use them for a beneficial purpose. The
very life of this arid country depends largely upon the use of all of the
available water supply. Therefore, by the forfeiture of the rights which
are claimed by certain parties, but who fail to use them, the ends of
justice are met, and the water is made to do the greatest good to the
greatest number. This is upon the correct theory that the continuance of
the title to a water right is based only upon continuous user; and where
a person claims a certain right which he does not use for a certain period
of time, the statute declares that the right to the unused portion is
forfeited and available for the appropriation of others.
17 (Emphasis added.)
18 	{30} 	Furthermore, since 2005 the State Engineer has interpreted Section 72-12-
19 8(A) as providing for partial forfeiture. See 19.26.2.20(A) NMAC (explaining that
20 under Section 72-5-28 and Section 72-12-8, "[a]ll or any part of a water right is
21 	subject to forfeiture when a person entitled to the use of water fails to apply water to
22 beneficial use for a period of four or more consecutive years" (emphasis added));
23 	see also State ex rel. Stratton v. Roswell lndep. Sch., 1991-NMCA-013, 124, 111 ·
24 N.M. 	495, 	806 	P.2d 	1085 	("Persuasive 	weight 	is 	given 	to 	long-stf1.nding
25 	interpretations of a doubtful or uncertain statute by the administrative agency
26 charged with administering the statute." (internal quotation marks and citation
17

1 omitted)); cf In re Waterfall Cmty. Water Users Ass 'n, 2009-NMCA-101,, 20, 147
2 N.M. 20,216 P.3d 270 ("Given the complex nature of the statutory regime governing
3. water appropriation in this state, relying on the expertise of the [s]tate [e]ngineer to
4 	decipher how [another provision in the .Water Code] ... fits into that scheme is
5 prudent."). We find persuasive the analysis in State v. Hagerman 	Water Right
6 	Owners, Inc., 947 P.2d 400 (Idaho 1997). Faced with a similar question concerning
7 Idaho's forfeiture statute,2 the Supreme Court of Idaho held that although the statute
8 was ambiguous on the issue of partial forfeiture, it nevertheless provided for partial
9 forfeiture. 	Id. 	at 406-08. 	After discussing the persuasive impact of the Idaho
10 Department of Water Resources' interpretation of the forfeiture statute as providing
11 	for partial forfeiture, the Supreme Court of Idaho concluded that partial forfeiture
12 promoted the policy goals of Idaho's water law. Id. at 407-08. The court explained:
13
14
15
16
17
18
19
20
If this Court were to find that [Idaho Code Section] 42-222(2) does not
authorize partial forfeiture of a water right, once the amount element of
a water right is decreed, a water User could hold the water against all
subsequent appropriators by using only a part of the water. Such a
scheme is inconsistent with Idaho water law, which provides that if a
water right is abandoned or forfeited· it ·reverts to the state, following
which third parties may perfect an interest therein.
2Idaho Code Section 42-222(2) (2004) provides in relevant part: "All rights to
the use of water acquired under this chapter or otherwise shall be lost and forfeited
by a failure for the term of five ( 5) years to apply i_t to the beneficial use for which it
was appropriated and when any right to the use of water shall be lost through nonuse
or forfeiture such rights to such water shall revert to the state and be again subject to
appropriation under this chapter[.]"
18

1
2
3
4
Integral to the goal of securing maximum use and benefit of our natural
water resources 	is that water be put to beneficial use. 	This is 	a
continuing obligation. Partial forfeiture makes possible allocation of
water consistent with beneficial use concepts.
5 Hagerman Water Right Owners, Inc., 947 P.2d at 407-08 (internal quotation marks
6 and citations omitted).
7 {31} 	In 	light 	of 	Section 	72-12-8(A)'s 	history 	and 	background, 	the 	policy
8 considerations underlying forfeiture, and the State Engineer's interpretation of the
9 statute, we conclude that Section 72-12-8(A) provides for partial forfeiture.
10 	Substantial 	Evidence 	Supports 	the 	Special 	Master's 	Findings 	Regarding
11 	Beneficial Use
12 	{32} 	Defendant argues there was insufficient evidence to 	support the · special
13 	master's findings regarding beneficial use of the Railroad Right. We note, however,
14 that the State did not challenge the special master's finding that the portion of the
15 	Railroad Right used for watering livestock was not forfeited, either in the district
16 court or on· appeal to this Court. We therefore review only the special master's
17 finding that the Railroad Right used for· non-livestock purposes was not used
18 	between December 31, 1960 and December 31, 1964.
19 {33} 	The evidence indicates that the Railroad no longer stopped at the Cutter station
20 to "to water up or unload cinders" after switching to diesel locomotives, t~at "the
21 	section crews were abolished[,]" that "the bunkhouse and foreman's house [were
22 vacated,]" that Cutter's post office closed and its "last standing depot was tom down
19

1 in 1956," and that the Well's appurtenances were "retired in place" and "authorized
2 for retirement" in 1959. Landreth's report buttressed these facts, as he stated that the
3 Well's appurtenances were "retired in place in 1959 as the Town of Cutter had
4 ceased to exist, and the railroad track maintenance forces [were] relocated." There
5 was no evidence that the Railroad Right was used for non-livestock purposes after
6 the 1950s.
7 	{34} 	Furthermore, Johnson testified that sometime between 1962 and 1964, the
8 Well was not pumping water. Consequently, he helped his father repair the Well to
9 water livestock, at which time either the owner or the lessee said "it was two or three
10 years since [the Well] had been run." We acknowledge Defendant's argument that
11 	the special master improperly relied on hearsay from Johnson regarding the nonuse
12 	of the Well for two or three years. Because Defendant elicited this testimony after
13 	asking Johnson if someone had told him whether the Well was maintained in
14 operational condition, Defendant "cannot complain of reversible error [he] invited
15 	and thereby caused." State ex rel. State Eng'r v. United States, 2018-NMCA-053,
16 , 36,425 P.3d 723, cert. granted, _-NMCERT-_ (No. S-1-SC-37068, Aug. 13,
17 2018), 	cert. 	denied, 	_-NMCERT-_ 	(No. 	S-1-SC-37100, 	Aug. 	13, 2018).
18 Moreover, Defendant did not object after Johnson provided his 	answer. 	See
I
19 	Gonzales v. Shaw, 2018-NMCA-059,, 14, 428 P.3d 280 ("In order to preserve an
20 issue for review, a party must have made a timely and specific objection that apprised
20

1 the district court of the nature of the claimed error and that allows the district court
2 to make an intelligent ruling thereon." 	(internal quotation marks and citation
3 omitted)); see also Rule 12-321(A) NMRA ("To preserve an issue for review, it must
4 	appear that a ruling or decision by the trial court was fairly invoked.").
5 {35} 	To the extent Landreth's testimony conflicts with the special master's finding,
6 the special master indicated that it afforded Landreth' s testimony "little weight"
7 because of his role in the 1994 sale of the Property. See Office of State Eng'r, 2013-
8 NMCA-023, 	, 27 (explaining that the special master's finding 	of a witness's
9 	credibility "must be treated as unassailable" (internal quotation marks and citation
10 omitted)). Furthermore, although Defendant's declaration of underground water
11 	right states that the Well was "used 1921 [through] 1966 for providing water to steam
12 locomotives[,]" the State Engineer employee who wrote this did so based on
13 	information provided by Defendant's ·cousin. Moreover, such "[d]eclarations are
14 only prima facie proof until they are rebutted." Eldorado Utils., Inc. v. State ex rel.
15 D'Antonio, 2005-NMCA-041,, 20, 137 N.M. 268, 110 P.3d 76.
16 	{36} 	To be sure, there was no direct evidence in the record supporting the special
17 master's finding that the non-livestock portion of the Railroad Right was not
18 	beneficially used between December 31, 1960 and December 31, 1964. Hoiwever,
'
19 	indulging all reasonable inferences in favor of, and viewing the evidence; in the
20 aspect most favorable to, the verdict, we conclude that the evidence of the Railroad's
21

1 withdrawal from Cutter and the Town's subsequent cessation to exist, along with the
2 other evidence presented is such evidence as a reasonable mind might accept as
3 adequate to support the special master's finding. We therefore affirm the special
4 master's finding that the non-livestock portion of the Railroad Right was not
5 beneficially used between December 31, ·1960 and December 31, 1964, and was
6 therefore subject to forfeiture under Section 72-12-8(A).
7 Defendant's Remaining Arguments Regarding the Application of Forfeiture
8 Are Unavailing
9 	{37} 	Defendant made 	several arguments in the 	district court and 	on appeal
10 regarding the applicability of forfeiture to the case at hand. These arguments are
11 	unavailing.
12 	{38} 	Defendant, citing McBee v. Reynolds, 1965-NMSC-007, 74 N.M. 783, 399
13 	P.2d 110, and Hanson, 2004-NMCA-069, argues that "[u]ntil a basin is declared by
14 the [State Engineer], the [State Engineer] cannot exercise jurisdiction in connection
15 	with its underground waters." These cases explain that the State Engineer exercises
16 jurisdiction and administrative control over a particular groundwater basin by
17 declaring the basin. See McBee, 1965-NMSC-007, 113 (recognizing that the state
18 engineer cannot exercise jurisdiction in connection with underground wate~s until
19 the state engineer declares a basin); Hanson, 2004-NMCA-069, 12 ("The: [s]tate
20 [e]ngineer exercises administrative control over a particular groundwater basin by
21 	declaring it and defining its boundaries."). To the extent Defendant relies upon these
22

1 cases for the proposition that the State Engineer lacked the statutory authority to
2 pursue forfeiture in the Lower Rio Grande for events occurring prior to when the
3 basin was declared in 1981, we decline to review this argument as he has failed to
4 cite any supporting, on-point authority and has failed to clearly explain any such
5 argument. See Elephant Butte Irrigation Dist., 2012-NMCA-090, ,r 20 (declining to
6 review the defendants' argument that the state engineer lacked the statutory authority
7 to pursue forfeiture for events occurring before 1981, when the Lower Rio Grande
8 Basin was declared, because they failed to cite supporting on-point authority and
9 failed to respond to the state engineer's argument on that point); Valdez v. Yates
10 Petroleum Corp., 2007-NMCA-038, ,r 24, 141 N.M. 381, 155 P.3d 786 (declining
11 	to review a novel argument when the plaintiff failed to cite any on-point authority in
12 	support of such argument); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,
13 	,r 15, 137 N.M. 339, 110 P.3d 1076 ("We will not review unclear arguments, or guess
14 at what [a party's] arguments might be."). Moreover, Defendant made no such
15 	argument in the district court, and thus did 11;ot preserve the issue for review by this
16 Court. 	See Gonzales, 	2018-NMCA-059, ,r 14 	(requiring a timely and specific
17 objection apprising the district court of the claimed error to preserve an issue for
18 	appeal); see also Rule 12-321(A) ("To preserve an issue for review, it must:appear
19 that a ruling or decision by the trial court was fairly invoked.").
23

1 {39} 	In the district court, Defendant argued for the application of exceptions found
2 at Section 72-12-8(E), (F), and NMSA 1978, Section 72-1-9(B) (2006). However,
3 he has not raised this argument on appeal, and we therefore decline to address the
4 applicability of these exceptions to the case at hand. See Crespin v. Safeco Ins. Co.
5 ofAm., 2018-NMCA-068,, 32 n.1, 429 P.3d 968 (noting that "issues not briefed are
6 considered abandoned, ahd we do not raise them on our own" (internal quotation
7 marks and citation omitted)).
8 {40} 	To the extent Defendant argues our forfeiture statute should not apply or
9 should apply differently to the Railroad's water rights, he explicitly limited such
10 argument in the district court to abandonment, rather than forfeiture. We therefore
11 	decline to further review this argument. See Rule 12-321(A). Further, to the. extent
12 Defendant argues economic difficulties excused forfeiture 	of the non-livestock
13 	Railroad Right, he made no such argument in the district court. Nor did he argue in
14 the district court that any other circumstances beyond the control of the Railroad or
15 	its successors in interest caused nonuse, thereby excusing forfeiture. We therefore
16 decline to review this argument. See id.
17 	{41} 	Finally, 	Defendant 	argues 	the 	district 	court's 	"decision ... constitutes
18 	unconstitutional confiscation of private property rights without just compensation"
19 under Article II, Section 20 of the New Mexico Constitution. As Defendant fails to
20 develop his argument beyond this s.entence and failed to preserve this issue in the
24

1 district court, we decline to review it. See Headley, 2005-NMCA-045, 115 ("We
2 will not review unclear arguments, or guess at what [a party's] arguments, might
3 be."); see also State v. Leyva, 2011-NMSC-009, 149, 149 N.M. 435, 250 P.3d 861
4 (reiterating 	Rule 	12-32l(A)'s 	preservation 	requirements 	and 	explaining 	trial
5 counsel's obligation under New Mexico's interstitial approach to "develop the
6 necessary factual base and raise the applicable constitutional provision in [district]
7 court").
8 CONCLUSION
9 	{42} 	For the foregoing reasons, we affirm the district court.
10 {43} 	IT IS SO ORDERED.
g 	fJ!fli/ifttJf:e
13 	WE CONCUR:
14 	l\.lL~- 	......,._.,QI.._
15 	M. MONICA ZAMO 	hief Judge
16 	~~17 KRITINABOGUi, Judge
25