STATE OF NEW MEXICO ex rel. OFFICE OF THE STATE ENGINEER, Plaintiff-Appellee,
TOBY ROMERO, Defendant-Appellant, and ELEPHANT BUTTE IRRIGATION DISTRICT, et ah, Defendants.
FROM THE DISTRICT COURT OF DONA ANA COUNTY James J. Wechsler,
Domenici Law Firm, P.C. Pete V. Domenici, Jr. Reed C.
Easterwood Albuquerque, NM for Appellant.
H. Balderas, Attorney General Greg C. Ridgley, General
Counsel L. Christopher Lindeen, Deputy General Counsel
Richard A. Allen, Special Assistant Attorney General Martha
Franks, Special Assistant Attorney General Santa Fe, NM for
J. VARGAS JUDGE.
Defendant Toby Romero appeals from the district court's
memorandum opinion and order adopting the special
master's report. In its report, the special master
determined that Defendant's underground water rights were
forfeited and abandoned, except for a portion used for
livestock purposes. We affirm.
This case arose as a subfile proceeding in the course of a
general adjudication of water rights in the Lower Rio Grande
Basin. At issue in this proceeding is a disputed groundwater
right in the Lower Rio Grande Basin perfected by prior
appropriation when the Atchison, Topeka, and Santa Fe
Railroad Company (the Railroad) drilled and beneficially used
water from a well (the Well) in the now-nonexistent town of
Cutter, New Mexico.
Defendant's cousin and a limited liability company (the
LLC) whose members were Defendant and Defendant's brother
(collectively, the Romeros) purchased property where the Well
was located (the Property) from the Railroad in 1994, with
the goal of selling the water rights. The LLC conveyed its
interest in the Property to Defendant and Defendant's
cousin later that year, and Defendant's cousin conveyed
his interest to Defendant in 1998. Defendant filed a
declaration of groundwater rights with the State Engineer,
filled out by an employee in the State Engineer's Office,
stating that the Well was "used 1921 [through] 1966 for
providing water to steam locomotives[, ]" and "from
1992 [through] 1995 for livestock watering purposes."
Defendant then conveyed the Property to two buyers who
conveyed the Property back to Defendant over five years
later. The State never sent forfeiture notices to Defendant
or his predecessors in title.
In the course of its general adjudication of the water rights
in the Lower Rio Grande Basin, the State served Defendant
with an offer of judgment stating that the Property had no
water right. Defendant objected to the State's offer,
claiming a water right in the amount of 394.85 acre-feet per
year. The district court referred the present subfile
proceeding to a special master, pursuant to Rule 1-053 NMRA.
At trial before the special master, the parties agreed that
the Railroad drilled the Well in 1921 to acquire water for
its operations at Cutter (the Railroad Right), long before
the State Engineer's 1982 extension of the Lower Rio
Grande Basin to the area wherein the Property was located.
Cutter was a station located between two of the
Railroad's terminal points, and the water drawn from the
Well was used by the Railroad for its steam locomotives, its
workers, the livestock, and the community of Cutter.
Following the switch to diesel locomotives in the late 1940s,
the stop in Cutter "was no longer necessary and Cutter
was nearly completely abandoned."
Defendant relied in part on the testimony and a report by
Edward Landreth, an engineer previously employed by the
Railroad. Landreth testified that in the context of the 1994
sale of the Property, he alerted Defendant's cousin
"to the surplus properties that the [Railroad] was
selling off and that Landreth "may have given
[Defendant's cousin] contact information with [a real
estate firm], and he took it from there." When asked if
he was paid for his advice, Landreth stated,
"[Defendant's cousin] ... may have paid me a little
something for wages."
Landreth indicated in his report that "the consumption
of water from [the Well] and predecessor wells at Cutter
would have been extensive between 1881 and the end of the
steam locomotive era in 1955." Landreth testified that
although he characterized 1955 as "the end of the steam
locomotive era," steam locomotives continued to be used,
albeit to a much lesser extent. He also stated in his report
that "the appurtenances to [the Well] was [sic] retired
in place in 1959, as the Town of Cutter had ceased to exist
and the railroad track maintenance forces have been
The parties stipulated to the admission of several articles
detailing the history of Cutter. One such article stated that
after the Railroad switched to diesel locomotives, "the
trains no longer stopped to water up or unload cinders. In
time the section crews were abolished and the bunkhouse and
foreman's house became vacant.... [F]inally on June 15,
l956[, ] the post office at Cutter was closed. The office had
been serving only six families[.] Another stated that the
Railroad's "last standing depot was torn down in
A map of the area contained a handwritten notation that read
"retired in place AFR 4590-59," and arrows pointing
to the Well's pump house, fuel tank, and underground
piping. Landreth testified that when property is identified
as "retired in place," it is "removed ... from
the tax rolls" and is demolished, and that the notation
"AFR" identifies property that is
"[a]uthorized for retirement." He further explained
that the Railroad retires property primarily to reduce their
"maintenance expense and tax exposure[, ]" and that
when property is retired, the Railroad is "relieved ...
of the obligation to pay property taxes ... [o]n
improvements" and theoretically stops maintaining the
property. However, in the context of maintaining the retired
property, he noted that "what headquarters do and the
local people do can be two different things."
Landreth said he did not interpret the map as identifying the
Well as having been retired. Instead, he believed that the
Railroad retained the Well for future use; otherwise, he
stated, it would have been erased from the map, "[j]ust
like the depot" that had burned down. The State's
witness, John Verploegh, a hydrographic surveyor in the
Office of the State Engineer's Litigation and
Adjudication Program, testified that he understood
Landreth's statement concerning the retirement in place
of the Well's appurtenances to reference the
"equipment as necessary for the diversion of water from
[the W] ell... to its place of use, in this case that being
the casing, the motor, the pump, the piping, the
tank[.]" In his discussion of the map, Verploegh
testified that he interpreted "the dotted lines-with
arrows to both the pipeline and a dotted line to what [he]
understood] to be the pump house, the reservoir, [the W]ell,
and the oil pit, that those dotted lines point[ed] directly
to those appurtenances[.]" He understood the notation
"retired in place AFR 4590-59" to mean that the
appurtenances, "no longer being necessary to the
operation of the [R]ailroad, their having been found not
necessary for some time at that point, [he] would presume ...
that they are retired in place even inasmuch, as Mr. Landreth
put it, on standby ... in the course of general
Defendant also called Walter Sam Waldo Johnson as a witness.
Johnson testified that sometime between 1962 and 1964, he
helped his father repair the Well because it was not pumping
water. Johnson testified that he and his father were hired to
repair the Well so it could provide water for livestock. On
direct-examination, defense counsel asked if Johnson had been
told the Well "was always maintained in operational
condition[, ]" to which Johnson replied:
Yes. Yes, sir. Whenever we went out there and got it going
and got it back into operational condition, the owner said
that-whoever, I don't know whether he own [sic] it or
leased it. I'm not sure how. I wasn't involved on
[sic] that. But it was-they had said that it was two or three
years since it had been run.
map of the Railroad's lines in New Mexico indicated that
in 1966 the Railroad still had a station in Cutter, with a
siding that could "handle [eighty-two] cars."
Although Landreth could not attest to what extent, if any,
water from the Well was used for steam locomotives from 1921
to 1966, nor for "municipal purposes through the
[l9]7Os[, ]" he did testify that it was his
understanding that the water was used for a road project
"sometime probably between [l9]75 and ... [l9]86."
The special master recommended the district court enter a
judgment rejecting Defendant's water right claim, and
adjudicating Defendant only "a livestock right."
The special master found "that the amount of water the
Railroad beneficially used from the Well was at most 107.53
acre-feet per year[, ]" rather than Defendant's
claim of 394.84 acre-feet per year. Further, the special
master found that there was no evidence that water from the
Well was used for any purpose other than watering livestock
between December 31, 1960 and December 31, 1964, and that the
Railroad therefore forfeited the non-livestock Railroad
Right. The special master also found that the State proved by
clear and convincing evidence that the Railroad abandoned the
Railroad Right after not using the right for any purpose
other than watering livestock for thirty-four years, at which
time the Railroad sold the Property to the Romeros.
The district court adopted the special master's report in