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<br />,~., 7"'" <br />(j iJ L d., <br /> <br />change point of diversion of an existing surface water right by <br />sinking a well did not attempt a new appropriation and the ,~ <br />applicant therefore had no burden to prove that there was <br /> <br />unappropriated waters available. <br /> <br />In addition the court found <br /> <br />that the evidence before the State Engineer and the District <br /> <br />Court below supported finding that the proposed change of point <br /> <br /> <br />of diversion of surface water by sinking a well would not impair <br /> <br />other existing rights to the use of public waters, In the Durand <br />case, the court found that "(A) 1 though right to change point of <br />diversion or place of use of water is an inherent property right <br /> <br />incident to ownership of water rights, it is a right subject to <br /> <br />condition that it cannot impair other existing rights that may be <br /> <br />enjoyed only in accordance with statutory procedure, <br /> <br />N,M, Stat, <br /> <br />Ann, S72-12-7 (1978), <br /> <br />"-'-"';0, <br />~f$ <br /> <br />The New Mexico Supreme Court also ruled in Kelly v, Carlsbad <br /> <br />Irriqation District, 76 N.M, 466, 415 P,2d 849 (1966), that 1) <br /> <br />"(U)nderground waters which, if not intercepted, would reach and <br /> <br />become part of natural stream, either on or below surface, is <br /> <br />governed and controlled by constitution and statutes relating to <br /> <br />appropriation and diversion of surface water", and 2) "When <br /> <br />artificial or natural flow of surface water, reached, by <br /> <br />percolation, seepage or otherwise, underground reservoir and <br /> <br />thereby loses its identity as surface water, such water becomes <br /> <br />public and subject to appropriation in accordance with applicable <br /> <br />statutes", and 3) "One having water rights in surface flow which <br /> <br />has been lost to underground reservoir, seepage or otherwise, can <br /> <br />. :.::-:--;-~~;...- <br />.<;~~~~~: <br /> <br />22 <br />