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The lowering of a water table in any particular amount does not necessarily constitute an impairment of water rights of adjoining appropriators. This must, of necessity, be true in a non-rechargeable basin, if the water is to be put to a beneficial use, and if the use is to be made available to more than the initial appropriator.
The applicant-appellant, Texaco, Inc., hereinafter referred to as Texaco, filed applications with the State Engineer for permits to appropriate 700-acre feet of water per year from the Lea County Underground Water Basin. Upon the hearing of the applications and the protests thereto, the respondent-appellant, the State Engineer, hereinafter referred to as the State Engineer, made and entered findings and an order that the applications should be granted for the appropriation by Texaco of 350-acre feet per year for the purpose of water flooding 1,360 acres of oil-bearing formation in a producing oil field. By this water flooding operation, which has been approved by the New Mexico Oil Conservation Commission, it is contemplated that slightly in excess of one million barrels of oil will be recovered. The protestants-appellees, hereinafter referred to as protestants, who had acquired prior rights to appropriate waters from the Lea County Underground Water Basin, appealed to the district court of Lea County from the findings and order of the State Engineer. The trial judge, after careful consideration of the respective contentions of the parties, predicated his decision upon what he conceived to be the law applicable to the facts as reflected in the record of the hearing before the State Engineer, as is required by the decisions of this court. He concluded that the findings and order of the State Engineer were contrary to the evidence, and therefore, arbitrary, unreasonable and unlawful. Judgment was entered accordingly, and from this judgment Texaco and the State Engineer have taken this appeal.
Did the lowering of the water level in the wells of the protestants, together with the resulting increase in pumping costs and the lowering of pumping yields, constitute an impairment of the rights of the protestants as a matter of law?
The court found that the rights of the protestants to appropriate water from the basin were subject to a time limitation. A lowering of the water level in the wells of the protestants, together with the resulting increase in pumping costs and the lowering of pumping yields, did not constitute an impairment of the rights of the protestants as a matter of law. The trial court was in error in concluding that there was no unappropriated water in the particular townships in question and in the entire basin, which could have been appropriated without impairing existing rights. The trial judge also erred in concluding that the Engineer's order granting the applications would have impaired the prior existing rights of the protestants, and that the order was arbitrary, unreasonable, and unlawful. The court held that the applications were in proper form, and that the order of the Engineer granting the applicant the right to use the water for the stated purpose of secondary recovery of oil by flooding should have been affirmed.