Application of Brown ( 1958 )

On Motion for Rehearing

LUJAN, Chief Justice.

Counsel for plaintiffs (appellees) have moved for rehearing. He urges that the State Engineer lacked jurisdiction to approve the change in well location here involved. This contention was refuted in our opinion where we held that an unauthorized change in location prior to hearing does not oust the State Engineer of jurisdiction to approve such change after notice and hearing if he finds that existing rights will not he impaired thereby. It necessarily follows then that the State Engineer did have jurisdiction to grant the permit in question.

Appellee further contends that the findings and order of the State Engineer disclose that the existing rights of appellee were, and are, impaired inasmuch as the findings reflect that the change in location produced a drawdown of 3.9 feet in the water table at appellee’s well. As noted in our opinion, we do not feel that the findings of the State Engineer in and of themselves reveal an impairment.

Appellee has apparently misconstrued what he calls the “Rule” as to impairment. The lowering of a water table in any particular amount does not necessarily constitute an impairment of water rights of adjoining appropriators. The amount that the water table is lowered is an important factor, but in addition all characteristics of the particular acquifer must be considered along with well locations. Hence we find nothing in the Hob-son decision (Application of Hobson), 64 N.M. 642, 330 P.2d 547, that is inconsistent with our holding in this case.

Aside from any question as to whether the findings and order of the State Engineer disclose an impairment on their face, appellee urges that an impairment did in fact occur. This argument is premature in this Court inasmuch as the trial court has not yet determined whether the findings and order of the State Engineer were arbitrary, capricious, unreasonable or not supported by substantial evidence. This is the further proceeding which we had in mind when we remanded this cause to the district court.

The motion will be denied.

It is so ordered.

McGHEE, COMPTON and SHIL-LINGLAW, JJ., concur. SADLER, J., not participating on account of illness.