N.M. Const. art. II, § 20
Private property shall not be taken or damaged for public use without just compensation.
Cross references. — For similar provision, see Kearny Bill of Rights, cl. 4.
For the Emiment Domain Code, see 42A-1-1 NMSA 1978 et seq.
For the Special Alternative Condemnation Procedure, see 42-2-1 NMSA 1978 et seq.
For rule governing presentment of eminent domain petition, see Rule 1-097 NMRA.
For jury instructions on eminent domain, see UJI 13-701 NMRA.
Comparable provisions. — Idaho Const., art. I, § 14.
Iowa Const., art. I, § 18.
Montana Const., art. II, § 29.
Utah Const., art. I, § 22.
Wyoming Const., art. I, § 33.
A. IN GENERAL.
Ripeness. — Plaintiffs’ facial challenge to the constitutionality of the city’s animal control ordinance on the ground that the ordinance would result in a taking without just compensation because the ordinance required owners of unsterilized companion animals to obtain a permit and set a limit of four intact companion animals per household was not ripe for judicial determination where the plaintiffs did not allege that they had suffered an actual economic loss as a result of the ordinance and that just compensation would be unavailable to them. Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, 144 N.M. 636, 190 P.3d 1131.
Actions under takings clause of United States constitution. — State constitutional sovereign immunity does not bar the rights and remedies found in the takings clause of the United States constitution when those rights and remedies are asserted against a state agency. The takings clause is self-executing and abrogates state immunity to suits for just compensation under the takings clause. Manning v. New Mexico Energy, Minerals & Natural Resources Dep’t, 2006-NMSC-027, 140 N.M. 528, 144 P.3d 87.
State may appropriate private property under inherent power of eminent domain by a legislative act. State ex rel. Red River Valley Co. v. District Court, 1935-NMSC-085, 39 N.M. 523, 51 P.2d 239.
Right to recover just compensation is conferred on condemnee by this section. Garver v. Public Serv. Co., 1966-NMSC-261, 77 N.M. 262, 421 P.2d 788.
Taking or damages compensable. — In order for an owner to be entitled to compensation a taking is not required - it being sufficient if there are consequential damages. Board of Cnty. Comm'rs v. Harris, 1961-NMSC-165, 69 N.M. 315, 366 P.2d 710.
Jurisdiction of municipal condemnation of public utility. — The public utilities commission does not have jurisdiction over municipal condemnations of regulated water and sewer utilities. United Water N.M., Inc. v. New Mexico Pub. Util. Comm'n, 1996-NMSC-007, 121 N.M. 272, 910 P.2d 906.
County can unilaterally abandon condemnation proceedings following the entry of a permanent order of entry anytime before the entry of a final judgment confirming the compensation award, subject to paying compensation for the temporary taking that occurred and other expenses necessary to do equity. In assessing these damages and expenses, the court shall not award any damages for any reduction in value to the property based solely on the relocation of an adjoining road that was made necessary by the abandonment of the condemnation proceeding. In this case, because there is no permanent taking of the owner's property, the owner had no right to any incidental damages to what would have otherwise been the remainder of his property. County of Bernalillo v. Morris, 1994-NMCA-038, 117 N.M. 398, 872 P.2d 371, cert. denied, 117 N.M. 524, 873 P.2d 270.
Deliberate harm required. — A property owner must allege and prove conduct on the part of the governmental actor more serious - in terms of culpability, or in terms of the probability of harm to an owner's property - than mere negligence. For an act to give rise to a claim for compensation under this section, the act must at least be one in which the risk of damage to the owner's property is actually foreseen by the governmental actor, or in which it is so obvious that its incurrence amounts to the deliberate infliction of harm for the purpose of carrying out the governmental project. Electro-Jet Tool & Mfg. Co. v. City of Albuquerque, 1992-NMSC-060, 114 N.M. 676, 845 P.2d 770.
There is no limitation on legislature's right to designate agencies that shall exercise the power of eminent domain except as restricted by the constitution. State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866.
Public ownership of underground water constitutional. — Laws 1931, ch. 131 (72-12-1 to 72-12-10 NMSA 1978), which declares ownership of underground waters to be in the public, does not violate N.M. Const., art. II, §§ 18 and 20, because the patents from the United States issued after 1866, and particularly those issued after the Desert Land Act of 1877, conveyed no interest in, or right to, the use of surface or underlying water with which lands could be irrigated, except such portions thereof as were used to reclaim the particular land applied for under the act. State ex rel. Bliss v. Dority, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, appeal dismissed, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
Law authorizing uncompensated diversion of water invalid. — Section 72-5-26 NMSA 1978, insofar as it authorizes the delivery of water from a junior ditch into a senior ditch and the diversion of the water above or below without compensation to the owner of the senior ditch, violates this section. Insofar as it authorizes diversion of water from other sources, it is unobjectionable. Miller v. Hagerman Irrigation Co., 1915-NMSC-069, 20 N.M. 604, 151 P. 763.
B. TAKING OR DAMAGING.
Where plaintiff asserts unconstitutional taking of property without just compensation claim, if plaintiff cannot meet the requirement that it had a protectable property interest, it renders the governmental action as a taking without just compensation moot. E. Spire Communications, Inc. v. New Mexico Pub. Regulation Comm'n, 392 F.3d 1204 (10th Cir. 2004), aff'g 269 F. Supp. 2d 1310 (D.N.M. 2003).
Interference with property's use. — When interference with the use of property by its owner consists of actual entry upon land and its devotion to public use for more than a momentary period, "there is a taking of property in the constitutional sense, whether there has been any formal condemnation or not". City of Albuquerque v. Chapman, 1966-NMSC-212, 77 N.M. 86, 419 P.2d 460.
A taking may occur by a municipality providing service in the certified area of a public utility. — A taking may occur, even if a public utility does not have the exclusive right to furnish utilities in a certified area under a certificate of public convenience and necessity, if the public utility proves that it had established infrastructure and was already serving customers in the certified area that is interfered with by a municipality. In the absence of any proof of tangible loss, that is, physical taking or stranded costs, a public utility is not entitled to just compensation when a municipality lawfully exercises its right to provide utilities in the public utility’s certified area. Moongate Water Co., Inc. v. City of Las Cruces, 2013-NMSC-018, 302 P.3d 405.
Municipality providing service in the certified area of a public utility was not a taking. — Where the public regulation commission issued the public utility a certificate of public convenience and necessity authorizing the public utility to provide water in an area outside the limits of the municipality; the municipality subsequently annexed three undeveloped tracts of land within the public utility’s certified area, subdivided the land, and committed itself to provide water to the subdivision; because the municipality had not elected to become subject to the Public Utilities Act (62-1-1 NMSA 1978 et seq.), and did not have a population of more than 200,000, the municipality was not subject to the act and the public utility’s certificate of public convenience and necessity did not prevent the municipality from competing with the public utility in the certified area; the public utility did not have any infrastructure, customers or physical assets in the subdivision, had not incurred any costs to serve the subdivision, and could not serve the subdivision without making significant infrastructure improvements; and the municipality did not take any of the public utility’s physical assets, the municipality did not engage in an unlawful taking of the public utility’s property. Moongate Water Co., Inc. v. City of Las Cruces, 2013-NMSC-018, 302 P.3d 405.
When regulatory prohibition held not to be "taking". — A regulation which imposes a reasonable restriction on the use of private property will not constitute a "taking" of that property if the regulation is: (1) reasonably related to a proper purpose; and (2) does not unreasonably deprive the property owner of all, or substantially all, of the beneficial use of his property. Thus, if a regulation simply prohibits the use of property for purposes declared to be injurious to the health, morals, or safety of the community, the prohibition cannot be deemed a "taking" of property for the public benefit. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Regulatory taking analysis. — Regulatory takings may occur when government regulation prohibits property owners from making use of their private property. It is the policy of the courts to uphold regulations intended to protect the public health, unless it is plain that they have no real relation to the object for which they were enacted. The analysis for determining a regulatory taking requires an initial determination of whether the exercise of the state's police power is reasonably related to the stated purpose; second, if that relationship is reasonable, then the purpose of the exercise may be determinative of insulation from takings analysis, but if the purpose does not warrant such insulation, claims for just compensation must be determined under fact-specific, case-intensive scrutiny. State v. Wilson, 2021-NMSC-022.
State's public health orders issued in relation to the COVID-19 pandemic cannot support a claim for just compensation. — Where petitioners filed a petition for writ of superintending control and emergency request for stay in response to the filing of twenty lawsuits brought against them by small businesses and business owners seeking just compensation, including lost revenues and expenses incurred due to the seizure, limitation and closure of their businesses pursuant to the numerous public health emergency orders (PHOs) issued by the governor of New Mexico in relation to the ongoing COVID-19 pandemic, the PHOs' efforts, given the contagious nature of the virus and the concerns of variants, to reduce the spread of the virus are reasonably related to the public health emergency, and the means of the PHOs' restrictions are directly tied to the reasonable purpose of limiting the public's exposure to the potentially life-threatening and communicable disease, and are reasonably necessary for the accomplishment of reducing the transmission of the virus. Accordingly, the PHOs are a reasonable exercise of the police power to protect the public health, and a reasonable use regulation under the police power to prevent injury to the health of the community cannot be deemed a taking, and therefore cannot support a claim for just compensation under NM Const., art. II, § 20. State v. Wilson, 2021-NMSC-022.
Plaintiff failed to allege a regulatory takings claim under New Mexico law. — Where plaintiff sued the city of Albuquerque for takings and contract claims related to a change in the city's impact fee ordinance, alleging that due to the changed city ordinance, fewer impact fees were assessed on new construction, the result of which was a diminished demand for its excess impact fee credits and a corresponding decrease in value of those credits, amounting to a taking of private property without just compensation, the district court did not err in dismissing plaintiff's claims for failure to state a claim upon which relief can be granted, because plaintiff failed to allege a protected property right in static market conditions for its impact fee credits, and if a claimant has no property right protected by the takings clause, then its takings claim necessarily fails, and plaintiff failed to allege a regulatory taking under New Mexico law, which holds that a reasonable restriction on the use of private property will not constitute a taking of that property if the regulation is reasonably related to a proper purpose and does not unreasonably deprive the property owner of all, or substantially all, of the beneficial use of the property. Premier Trust of Nevada, Inc. v. City of Albuquerque, 2021-NMCA-004.
Telephone orders standard. — State corporation commission's order to a telephone local exchange carrier imposing a state-wide standard of zero primary orders held over 30 days did not amount to an illegal taking of property under the federal or state constitutions. U.S. West Communications, Inc. v. New Mexico SCC, 1997-NMSC-031, 123 N.M. 554, 943 P.2d 1007.
Form not determinative. — Constitutional rights rest on substance, not on form; therefore, liability to pay compensation is not to be evaded by leaving title in the owner while depriving him of the beneficial use of the property. City of Albuquerque v. Chapman, 1966-NMSC-212, 77 N.M. 86, 419 P.2d 460.
Acquisition by prescription is not a taking and does not require compensation to the landowner for the servitude. Luevano v. Maestas, 1994-NMCA-051, 117 N.M. 580, 874 P.2d 788.
No taking shown. — Where the preliminary order of entry was never made permanent and there was no physical entry or disturbance of the plaintiff's possession, no taking occurred. State ex rel. State Hwy. Dep't v. Yurcic, 1973-NMSC-059, 85 N.M. 220, 511 P.2d 546 (1973), modified, County of Dona Ana v. Bennett, 1994-NMSC-005, 116 N.M. 778, 867 P.2d 1160.
Regulation not related to a proper purpose that does not deprive a property owner of all or substantially all beneficial use of property simply does not implicate an interest protected by the takings clause; thus, although a property owner may have a right to seek redress for an unlawful regulation, the method of redress is not a takings action. Estate of Sanchez v. County of Bernalillo, 1995-NMSC-058, 120 N.M. 395, 902 P.2d 550.
Necessity of taking not for courts. — The question of the necessity or expediency of a taking in eminent domain lies with the legislature and is not a proper subject for judicial review. State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866.
What damages compensable. — When an injury complained of is not due to interference of enjoyment by an abutter of his frontage on a public way, or by a riparian owner of his adjacency to a stream, and does not consist of any physical injury to property cognizable to the senses, there is ordinarily no damage for which the constitution requires compensation unless the injury is one for which a liability would have existed at common law if it had been inflicted without statutory authority. Aguayo v. Village of Chama, 1969-NMSC-005, 79 N.M. 729, 449 P.2d 331.
Damage to be special and direct. — Only one whose damage, occasioned by highway improvement, is special and direct as distinguished from remote and consequential, and which differs in kind from that of the general public, suffers a compensable injury. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
Depreciation not always "damage". — Not every depreciation in the market value of land resulting from the proximity of a public improvement is a damage in the constitutional sense. Aguayo v. Village of Chama, 1969-NMSC-005, 79 N.M. 729, 449 P.2d 331.
Nature of damage decided case by case. — The line between noncompensable damage through an exercise of the police power, and damage for which payment must be made for a taking under eminent domain is one not easily drawn, and the supreme court has not attempted to state a rule of universal application, but will decide each case as it arises. Board of Cnty. Comm'rs v. Harris, 1961-NMSC-165, 69 N.M. 315, 366 P.2d 710.
Authorized condemnor may be liable in trespass. — An authorized condemnor may be liable in trespass to a property owner for taking more land than is reasonably necessary or for causing excessive damage by the manner in which the taking occurs, but only when there is evidence of fraud, bad faith or gross abuse of discretion. North v. Public Serv. Co., 1983-NMCA-124, 101 N.M. 222, 680 P.2d 603, cert. denied, 101 N.M. 11, 677 P.2d 624 (1984).
Damages for trespass when an authorized condemnor is liable cover only that portion of the damage over and above what results from the taking itself. North v. Public Serv. Co., 1983-NMCA-124, 101 N.M. 222, 680 P.2d 603, cert. denied, 101 N.M. 11, 677 P.2d 624 (1984).
Santa Fe minimum wage ordinance does not constitute a taking of private property in violation of the takings clause in this section. New Mexicans for Free Enter. v. City of Santa Fe, 2006-NMCA-007, 138 N.M. 785, 126 P.3d 1149.
C. PUBLIC USE.
Taking authorized for public use only. — At the outset, there can be no question under the constitution that the taking or damaging of private property through eminent domain is permitted for none other than a public use. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986, superseded by statute, Santa Fe Southern Railway, Inc. v. Baucis Ltd. Liability Co., 1998-NMCA-002, 124 N.M. 430, 952 P.2d 31.
Nature of use for courts. — Necessity and expediency of the taking is a legislative question; whether use to which property is to be put is a public use is a judicial question. State ex rel. Red River Valley Co. v. District Court, 1935-NMSC-085, 39 N.M. 523, 51 P.2d 239.
Private condemnation right may be created in private entity. — It is not unconstitutional for the legislature to create a private right of condemnation in a private entity, where the purpose is beneficial use of a vitally important natural resource. Kennedy v. Yates Petroleum Corp., 1986-NMSC-064, 104 N.M. 596, 725 P.2d 572.
Natural gas pipeline deemed public use. — The trial court was correct in concluding that a natural gas pipeline bore a real and substantial relation to the public use as required by statute and case law. Kennedy v. Yates Petroleum Corp., 1986-NMSC-064, 104 N.M. 596, 725 P.2d 572.
Beneficial use of water is public use, and condemnation of a right-of-way to make the beneficial use possible is clearly provided for in 72-1-5 NMSA 1978 and is constitutional. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986, superseded by statute, Santa Fe S. Ry., Inc. v. Baucis Ltd. Liability Co., 1998-NMCA-002, 124 N.M. 430, 952 P.2d 31.
Taking property for reservoir. — Taking property for a dam or reservoir to impound and conserve water power is a public use. State ex rel. Red River Valley Co. v. District Court, 1935-NMSC-085, 39 N.M. 523, 51 P.2d 239.
Logging railroad as public use. — This section is not violated by 42-1-22 NMSA 1978, authorizing taking of property for logging railroad for public use, the question of public use being left to judicial determination. Threlkeld v. Third Judicial Dist. Court, 1932-NMSC-041, 36 N.M. 350, 15 P.2d 671.
No public use in coal mining. — Insofar as Laws 1919, ch. 109 (42-1-31 to 42-1-34, 42-1-36, 42-1-37 NMSA 1978) impliedly declares a public use in business or industry of coal mining, it is violative of this section. Gallup Am. Coal Co. v. Gallup S.W. Coal Co., 1935-NMSC-049, 39 N.M. 344, 47 P.2d 414.
No public use in relocation of nonowned ditch. — The relocation of borrow ditch, the use of which for purpose of irrigation was permissive only and subject to termination at will, was not a matter of public interest or concern and the taking of the private property of defendant upon which to relocate a ditch, which plaintiffs had no obligation, duty or right to relocate, is not a public use. Board of Cnty. Comm'rs v. Sykes, 1964-NMSC-183, 74 N.M. 435, 394 P.2d 278.
The fact that ditch commissioners are given the right to alter, change the location of, enlarge, extend or reconstruct a ditch under the conditions set forth in 73-2-56 NMSA 1978 cannot be construed as giving them authority to take private property for these uses without just compensation, contrary to this section, and without regard to requisite procedures. Marjon v. Quintana, 1971-NMSC-045, 82 N.M. 496, 484 P.2d 338.
Access to highway which landowners abut is property right of which they cannot be deprived without just compensation. State ex rel. State Hwy. Comm'n v. Mauney, 1966-NMSC-035, 76 N.M. 36, 411 P.2d 1009.
Defendants, as owners of real estate abutting on a highway, have a right of access - the right of ingress and egress to and from their property - which is a property right - a special interest of which they cannot be deprived without just compensation. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
Lowering of highway grade. — Depreciation in value of property by 20 inch lowering of grade of highway on which property abutted was compensable. Board of Cnty. Comm'rs v. Harris, 1961-NMSC-165, 69 N.M. 315, 366 P.2d 710.
Not every change of highway grade would be compensable. It must be a material change, and one which causes consequential damage. Board of Cnty. Comm'rs v. Harris, 1961-NMSC-165, 69 N.M. 315, 366 P.2d 710.
Inclusion of private land in game refuge damaging. — The inclusion of private land within a game management area for the purpose of providing a place for migratory birds "to rest and feed unmolested" may result in consequential damage to the owner of private land included therein, contrary to this section, even though there was no actual taking of any part of the land itself. Allen v. McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405, appeal after remand, 1967-NMSC-114, , 77 N.M. 801, 427 P.2d 677 (holding that game commission could not include private land within game refuge without consent of owners or acquisition in lawful manner), overruled by New Mexico Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
No duty on owner to minimize damage by harvesting crops. — Contention of game commission that at time of year when Canada geese arrive in New Mexico, crops should have been harvested and removed from fields so that enforced resting and feeding places would not constitute consequential damaging of private property without just compensation was without merit, as no requirement of law requires the owner of private land to remove his crops at any particular time. Allen v. McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405, appeal after remand, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677 (holding that game commission could not include private land within game refuge without consent of owners or acquisition in lawful manner), overruled by New Mexico Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Construction of utility lines. — Power utility constructing lines on private property had the duty to properly construct its lines and the obligation to justly compensate for the taking. Garver v. Public Serv. Co., 1966-NMSC-261, 77 N.M. 262, 421 P.2d 788.
Fixing of reasonable rates mandated. — Private property may not be taken for public use without just compensation, and thus the failure of a regulatory commission to provide for rates that would provide a fair and reasonable rate of return (one that was compensable) constituted a violation of due process. Mountain States Tel. & Tel. Co. v. New Mexico State Corp. Comm'n, 1977-NMSC-032, 90 N.M. 325, 563 P.2d 588.
Failure to increase rates as confiscation. — When it became obvious that the decision of the commission on new rates would be delayed and the company would suffer irreparable loss of revenue in the interim, failure to increase the rates was an unconstitutional confiscation of the company's property without due process of law. Mountain States Tel. & Tel. Co. v. New Mexico State Corp. Comm'n, 1977-NMSC-032, 90 N.M. 325, 563 P.2d 588.
Substitution of franchises. — Where telephone company was operating under 99-year franchise legally granted by county commissioners, it could not be compelled to accept new franchise from municipality imposing additional terms and burdens not contained in the original franchise; such compulsion would impair the obligation of contract and would take company's property without due process. Mountain States Tel. & Tel. Co. v. Town of Belen, 1952-NMSC-053, 56 N.M. 415, 244 P.2d 1112.
Effect on city's liability of "dedication" after taking. — Where city had already occupied a 35-foot strip and put it to beneficial use under court authority, the filing of a plat by defendants showing public dedication of said strip did not relieve the city of liability to pay compensation therefor, as the defendants could no longer alienate it at this point; nor did the fact that condemnation had not yet been entered change the result. City of Albuquerque v. Chapman, 1966-NMSC-212, 77 N.M. 86, 419 P.2d 460.
Taking of public property used in proprietary capacity compensable. — Public property held and used in a proprietary capacity may not be taken for another public use without payment of just compensation. Silver City Consol. Sch. Dist. No. 1 v. Board of Regents of N.M.W. Coll., 1965-NMSC-035, 75 N.M. 106, 401 P.2d 95.
Municipal park lands not to be taken without compensation. — State highway commission [state transportation commission] may not occupy and use municipal park lands, the establishment and maintenance of which is a corporate or proprietary function, for highway purposes without payment of compensation. State ex rel. State Hwy. Comm'n v. City of Albuquerque, 1960-NMSC-110, 67 N.M. 383, 355 P.2d 925.
Restrictive covenants are equitable easements and compensable property interests protected by this section. Leigh v. Village of Los Lunas, 2005-NMCA-025, 137 N.M. 119, 108 P.3d 525.
Compensation for highway use legislatively mandated. — The legislature has indicated an intent that compensation should be paid when public property is condemned for highway purposes, including property being used for a governmental as well as a proprietary purpose. State ex rel. State Hwy. Comm'n v. Board of Cnty. Comm'rs, 1963-NMSC-074, 72 N.M. 86, 380 P.2d 830.
No compensation guaranteed government property under constitution. — Property owned by county and utilized in connection with county courthouse and county hospital, being public property used for governmental purposes, is not guaranteed compensation under this constitutional provision. State ex rel. State Hwy. Comm'n v. Board of Cnty. Comm'rs, 1963-NMSC-074, 72 N.M. 86, 380 P.2d 830.
Legislature may exercise control over property acquired by an agency of the state for the performance of a strictly public duty, devolved upon it by law, by requiring the state agency or governmental subdivision to transfer such property to another agency of the government to be devoted to a strictly public purpose without receiving compensation therefor. Silver City Consol. Sch. Dist. No. 1 v. Board of Regents of N.M.W. Coll., 1965-NMSC-035, 75 N.M. 106, 401 P.2d 95 (upholding provisions of former law requiring state institution to convey property once used for high school to school district).
No special damage in closing portion of highway. — One whose property abuts upon a road or highway, a part of which is closed or vacated, has no special damage (unless his lands abut upon the closed portion thereof) if there remains a reasonable access to the main highway system. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
Fact that defendants' travel to main highway system could be in only one direction and that the traveling public would find it less convenient to reach defendants' premises was a common injury inevitable in the building of highways. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
No special damage in obstructing portion of highway. — An obstruction placed in a highway by public authority and reasonably necessary for the protection of the public is not a special injury to an abutting landowner. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
Where defendants' right of access to the road upon which their property abutted had not been affected, although it had been obstructed some 800 feet north of their property, preventing further travel in that direction, such injury, suffered in common with the general public was not compensable. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
No right in abutting landowners to direct access. — Abutters have a right of access to the public roads system, but it does not necessarily follow that they have a right of direct access to the main-traveled portions thereof. State ex rel. State Hwy. Comm'n v. Danfelser, 1963-NMSC-138, 72 N.M. 361, 384 P.2d 241, cert. denied, 375 U.S. 969, 84 S. Ct. 487, 11 L. Ed. 2d 416 (1964).
Defendants never had direct access to a new highway, constructed upon a different location, and were not entitled to direct access to it. State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
No right to be free of mere inconvenience. — Mere inconvenience resulting from the closing of streets or roads does not give rise to a legal right in one so inconvenienced, when another reasonable, although perhaps not equally accessible, means of ingress and egress is afforded. State ex rel. State Hwy. Comm'n v. Brock, 1968-NMSC-165, 80 N.M. 80, 451 P.2d 984; State ex rel. State Hwy. Comm'n v. Silva, 1962-NMSC-172, 71 N.M. 350, 378 P.2d 595.
Circuity of travel noncompensable where reasonable access afforded. — Once reasonable access is given to the main highway system by means of frontage roads, any circuity of travel occasioned by the loss of direct ingress and egress is noncompensable. State ex rel. State Hwy. Comm'n v. Brock, 1968-NMSC-165, 80 N.M. 80, 451 P.2d 984.
Circuity of travel, as long as it is not unreasonable, and any loss in land value by reason of the diversion of express traffic, are noncompensable. State ex rel. State Hwy. Comm'n v. Danfelser, 1963-NMSC-138, 72 N.M. 361, 384 P.2d 241, cert. denied, 375 U.S. 969, 84 S. Ct. 487, 11 L. Ed. 2d 416 (1964).
No vested interest in traffic flow. — A landowner, abutting on a public highway, enjoys no vested interest in the flow of public travel past his premises, and is not entitled to compensation for depreciation in his property value or loss of business resulting from diversion of traffic by the opening of a new highway. State ex rel. State Hwy. Comm'n v. Silva, 71 N.M. 350, 378 P.2d 595 (1962).
Loss of business from diversion of traffic noncompensable. — Landowner is not entitled to compensation for loss of business resulting from diversion of traffic by opening of more convenient route, since owner enjoys no vested interest in flow of public travel. Board of Cnty. Comm'rs v. Slaughter, 1945-NMSC-019, 49 N.M. 141, 158 P.2d 859.
Even though a new road traverses a portion of claimant's land for which compensation is awarded, he is not entitled to judgment for consequential damages resulting from diversion of traffic. Board of Cnty. Comm'rs v. Slaughter, 1945-NMSC-019, 49 N.M. 141, 158 P.2d 859.
Loss of business or of prospective business, because the traveling public cannot reach a roadside business establishment as readily as before, due to restriction of direct access, amounts only to a diversion of traffic and is noncompensable. State ex rel. State Hwy. Comm'n v. Brock, 1968-NMSC-165, 80 N.M. 80, 451 P.2d 984.
Temporary interference from construction. — In New Mexico a condemnee may not recover damages by way of expenses or loss of business for temporary inconvenience, annoyance or interference with access occasioned by construction, unless the period of construction was unduly long or the conduct of the condemnor causing the loss was unreasonable, arbitrary or capricious. State ex rel. State Hwy. Dep't v. Kistler-Collister Co., 1975-NMSC-039, 88 N.M. 221, 539 P.2d 611.
Destruction of contaminated food not compensable. — The state is not required to make compensation when it seizes and destroys food found to be contaminated within the provisions of the New Mexico Food Act. State v. 44 Gunny Sacks of Grain, 1972-NMSC-033, 83 N.M. 755, 497 P.2d 966.
The right to seize and destroy unfit or impure foods is predicated upon the police power, and does not fall within this section, which deals with takings "for public use", which is to say, by eminent domain. State v. 44 Gunny Sacks of Grain, 1972-NMSC-033, 83 N.M. 755, 497 P.2d 966.
Forfeiture under drug laws. — Forfeiture under former Narcotic Drug Act of tractor and trailer used in transportation of amphetamines did not constitute the taking of property without just compensation. State v. One 1967 Peterbilt Tractor, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199.
Tax for street improvements. — A tax to pay off bonds issued for special street improvements does not constitute taking of private property for public use without just compensation as contemplated under this section. Stone v. City of Hobbs, 1950-NMSC-032, 54 N.M. 237, 220 P.2d 704.
Tax sale. — Acquisition of property by state through tax sale procedure is not a taking of private property for public use as contemplated by this section. Yates v. Hawkins, 1942-NMSC-029, 46 N.M. 249, 126 P.2d 476.
Zoning. — As a valid exercise of the police power, zoning is not a compensable taking, even when it results in a substantial reduction in the value of property; any incidental economic loss involved is merely the price of living in a modern enlightened and progressive community. Only if governmental regulation deprives the owner of all beneficial use of his property will it be unconstitutional. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.
Treatment of electric utility's interest in generating facility. — Exclusion of an electric utility's interest in a generating facility from its rate base, coupled with the public service commission's refusal to decertify the facility, did not violate the due process provisions or the takings clauses of the New Mexico and United States constitutions. Public Serv. Co. v. Public Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169.
Relocation of gas lines. — The state highway commission [state transportation commission] had no obligation to reimburse defendant utility for cost of relocating its gas lines because of widening and improving of state highway as it involved no damage to or taking of the property of the utility as contemplated by this section. State Hwy. Comm'n v. Southern Union Gas Co., 1958-NMSC-124, 65 N.M. 84, 332 P.2d 1007, 75 A.L.R.2d 408, overruled by, State ex rel. City of Albuquerque v. Lavender, 1961-NMSC-096, 69 N.M. 220, 365 P.2d 652.
Plugging and repairing wells. — Abatement of public nuisance under statute by plugging and repairing artesian wells, when owner fails to do so after notice, does not violate this section, since common-law right summarily to abate a nuisance is not in conflict with a constitutional provision protecting rights to property. Eccles v. Ditto, 1917-NMSC-062, 23 N.M. 235, 167 P. 726, 1918B L.R.A. 126.
Location of treatment plant. — Mere location of a treatment plant in the neighborhood of plaintiffs' land gives rise to no cause of action unless it is a nuisance per se, which, generally speaking, a sewage disposal plant is not. Aguayo v. Village of Chama, 1969-NMSC-005, 79 N.M. 729, 449 P.2d 331.
Termination of permissive use of ditch. — Where use by a party of a ditch classified for irrigation by the irrigation district was permissive only, use for such purpose was subject to termination at will and vested in such party no property right as against the public. Board of Cnty. Comm'rs v. Sykes, 1964-NMSC-183, 74 N.M. 435, 394 P.2d 278.
"Amortization" as constitutional alternative to just compensation. — If an amortization period is reasonable, it is a constitutional means for municipalities to terminate nonconforming uses and, as such, is a constitutional alternative to just compensation. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
"Amortization" does not connote a requirement of compensation, but merely suggests that a sign owner or user is put on notice that he has a certain period of time in which to make necessary adjustments to bring his nonconforming structure into conformity with a sign ordinance. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Expenses of defending discontinued condemnation suit. — In the absence of bad faith or unreasonable delay upon the part of the party instituting condemnation proceedings which are ultimately discontinued, the owner is not constitutionally entitled to recover expenses and losses suffered during their pendency. State ex rel. State Hwy. Dep't v. Yurcic, 1973-NMSC-059, 85 N.M. 220, 511 P.2d 546, modified, County of Dona Ana v. Bennett, 1994-NMSC-005, 116 N.M. 778, 867 P.2d 1160.
Excess construction costs incurred for temporary physical taking. — The measure of damages for a temporary, but total, physical taking of a commercial property in the early stages of the construction of a project on the property may include, as a separate element of damages, the excess construction costs directly related to the interruption of the construction project that would not have been incurred but for the condemnor’s interference with the owners’ loss of possession and use of the property and may include, as a separate element of damages, reasonable expenditures demonstrably aimed at reducing the losses suffered by the owner. Primetime Hospitality, Inc. v. City of Albuquerque, 2007-NMCA-129, 142 N.M. 663, 168 P. 3d 1087, rev'd, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, 49 A.L.R. 6th 765.
Fair rental value for temporary physical taking. — The measure of damages for a temporary, but total, physical taking of a commercial property in the early stages of the construction of a project on the property may include, as a separate element of damages, the rental value of the property for the period of delay. Primetime Hospitality, Inc. v. City of Albuquerque, 2007-NMCA-129, 142 N.M. 663, 168 P. 3d 1087, rev'd, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, 49 A.L.R. 6th 765.
The constitution does not mandate attorney fees in inverse condemnation cases. Primetime Hospitality, Inc. v. City of Albuquerque, 2007-NMCA-129, 142 N.M. 663, 168 P. 3d 1087, rev'd, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, 49 A.L.R. 6th 765.
Credit for contribution in aid of construction. — The contribution in aid of construction that a school district paid a regulated public utility for a water line extension to receive water service cannot be credited against the amount awarded to the utility in an action by the school district to acquire the water line extension by eminent domain. Moriarty Mun. Sch. Dist. v. Thunder Mountain Water Co., 2006-NMCA-135, 140 N.M. 612, 145 P.3d 92, aff'd, 2007-NMSC-031, 141 N.M. 824, 161 P.3d 869.
"Just" compensation. — "Just" compensation can only mean that the framers of the constitution intended that a fair and reasonable amount of compensation should be awarded; it follows that the compensation must be fair and just to both sides. Board of Comm'rs v. Gardner, 1953-NMSC-047, 57 N.M. 478, 260 P.2d 682, superseded by statute, Yates Petroleum Corp. v. Kennedy, 1989-NMSC-039, 108 N.M. 564, 775 P.2d 1281.
Balance between damages and benefits. — Compensation is had when the balance is struck between the damages and the benefits conferred on him by the act complained of. Board of Comm'rs v. Gardner, 1953-NMSC-047, 57 N.M. 478, 260 P.2d 682, superseded by statute, Yates Petroleum Corp. v. Kennedy, 1989-NMSC-039, 108 N.M. 564, 775 P.2d 1281.
"Fair market value" explained. — "Fair market value" which includes in its determination all relative elements of injury and benefit received by the landowner is theoretically what a willing seller would take and a willing buyer offer, but as a willing seller is usually lacking in condemnation cases, the court has a special responsibility for seeing that the seller receives what is honestly due him, as well as for making sure that under the pressure of compulsion the seller does not gouge the public for more than his property is reasonably worth. Board of Comm'rs v. Gardner, 1953-NMSC-047, 57 N.M. 478, 260 P.2d 682, superseded by statute, Yates Petroleum Corp. v. Kennedy, 1989-NMSC-039, 108 N.M. 564, 775 P.2d 1281.
Value based on highest and best use. — The value of the property is determined by considering not merely the uses to which it was applied at the time of condemnation, but the highest and best uses to which it could be put. Determination of the highest and best use should be made with regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. City of Albuquerque v. PCA-Albuquerque #19, 1993-NMCA-043, 115 N.M. 739, 858 P.2d 406.
"Before and after" rule. — The so-called "before and after" rule, whereby the owner of property is entitled to recover as compensation the amount the fair market value of his property is depreciated by the taking, is applicable where damage to property results from a change in grade of the abutting highway. Board of Cnty. Comm'rs v. Harris, 1961-NMSC-165, 69 N.M. 315, 366 P.2d 710.
Just compensation in partial takings cases. — In partial takings cases, just compensation includes all elements of damages, including lost or impaired access, that result from the taking and reduce the fair market value of the owner's remaining property, regardless of whether those elements would have been considered compensable under precedent decided before NMSA 1978, § 42A-1-26 took effect. City of Albuquerque v. Tecolote Res., 2024-NMCA-029, cert. denied.
Unreasonableness requirement applies only when no land is taken but landowner seeks damages for lost or impaired access. — Where the city of Albuquerque (city) initiated a condemnation proceeding to aid in its construction of the Albuquerque rapid transit system (ART) and eventually took a 5,279 square-foot strip of defendant's property along Central avenue, and where the parties agreed that the fair market value of the taken land was $69,350, and where defendant sought an additional $2,931,454 to compensate defendant for impairment of access to its remaining property, claiming that before the taking, defendant's property had several access points through which people who were traveling both east and west on Central avenue could enter and exit, but after the taking and in constructing ART, access to defendant's property was impaired, and where a jury awarded defendant a total of $712,000 to compensate it for the agreed upon value of the taken land and for impairment of access to its remaining land, and where the city argued that the district court erred by refusing the city's proposed instruction based on UJI 13-719 NMRA, claiming that the refusal to give the instruction was prejudicial because the jury was allowed to award damages without first determining the question of reasonableness, there was no error in instructing the jury, because the unreasonableness requirement in UJI 13-719 NMRA applies only when no land is taken but the landowner nevertheless seeks damages for lost or impaired access, and, in this case, a partial taking had occurred. City of Albuquerque v. Tecolote Res., 2024-NMCA-029, cert. denied.
Supplemental causation instruction unnecessary where uniform jury instruction correctly conveyed the causation requirement. — Where the city of Albuquerque (city) initiated a condemnation proceeding to aid in its construction of the Albuquerque rapid transit system (ART) and eventually took a 5,279 square-foot strip of defendant's property along Central avenue, and where the parties agreed that the fair market value of the taken land was $69,350, and where defendant sought an additional $2,931,454 to compensate defendant for impairment of access to its remaining property, claiming that before the taking, defendant's property had several access points through which people who were traveling both east and west on Central avenue could enter and exit, but after the taking and in constructing ART, access to defendant's property was impaired, and where a jury awarded defendant a total of $712,000 to compensate it for the agreed upon value of the taken land and for impairment of access to its remaining land, and where the city argued that the district court erred by refusing to give a requested causation instruction, there was no error in instructing the jury, because the district court gave the jury an instruction based on UJI 13-722 NMRA that addressed causation, and the city failed in its burden of showing why the given instruction failed to adequately convey the causation requirement to the jury such that it was necessary to also give the supplemental causation instruction requested by the city. City of Albuquerque v. Tecolote Res., 2024-NMCA-029, cert. denied.
All elements of damage to be considered. — Denial of right to have all elements of damage resulting from condemnation considered in arriving at award would be of questionable constitutionality as permitting the taking or damaging of property without the payment of just compensation. State ex rel. State Hwy. Comm'n v. Chavez, 1969-NMSC-072, 80 N.M. 394, 456 P.2d 868.
Dual responsibilities of state commission in evaluating damages. — This section makes it the responsibility of the highway commission not only to see that land necessary for public highways is obtained at a price fair to the public, but also to see that the property owner is fairly compensated; since the commission is a public body charged with these two responsibilities, there is no valid reason why use by a condemnee of the opinion of an expert employed by the commission and paid from public funds is unfair to the commission. State ex rel. State Hwy. Comm'n v. Steinkraus, 1966-NMSC-134, 76 N.M. 617, 417 P.2d 431.
When frustration of future plans compensable. — While mere frustration of owner's hopes or plans for the future is a noncompensable element of damages, this is not the same as compensation based on planned future uses for which the property is adaptable by reason of location, state of improvement or other special elements of value inherent therein. State ex rel. State Hwy. Dep't v. Kistler-Collister Co., 1975-NMSC-039, 88 N.M. 221, 539 P.2d 611.
Plans for future properly considered. — Where property was already developed for commercial uses with definite plans and provisions in the existing structure having been made for the future development of the property for these uses, the trial court properly received into evidence these architectural plans and testimony relative thereto, and the consequent uses to which the property could be put were properly considered in arriving at appraisals of the damages suffered in taking of a portion of the property. State ex rel. State Hwy. Dep't v. Kistler-Collister Co., 1975-NMSC-039, 88 N.M. 221, 539 P.2d 611.
Alternate uses also relevant. — While it was proper for the jury in fixing damages to consider owner's plans for development of the property, the jury was also entitled to consider alternate plans for commercial development, as well as evidence of other uses for which the property was suitable or adaptable, in determining its before and after fair market value. State ex rel. State Hwy. Dep't v. Kistler-Collister Co., 1975-NMSC-039, 88 N.M. 221, 539 P.2d 611.
Compensation to be determined even after default judgment. — Under 42-2-14 NMSA 1978, part of the act establishing special alternative condemnation procedure, after entry of default by the clerk, the court shall conduct a hearing and determine the amount of just compensation due; this is in recognition of this section, which provides that property shall not be taken or damaged without just compensation. Board of Cnty. Comm'rs v. Boyd, 1962-NMSC-090, 70 N.M. 254, 372 P.2d 828.
Appraisal of damages caused by conservancy district. — Provision of Conservancy Act (73-17-18 NMSA 1978) providing for appraisal and hearing regarding damages to property caused by conservancy district pertaining to appraisal of damages has reference to damages to property in the sense employed in eminent domain proceedings. Zamora v. Middle Rio Grande Conservancy Dist., 1940-NMSC-030, 44 N.M. 364, 102 P.2d 673.
Allowance of interest from date of condemnation petition was essential to just compensation under the circumstances, even though condemnees may have been responsible for first continuance. State ex rel. State Hwy. Comm'n v. Peace Found., Inc., 1968-NMSC-173, 79 N.M. 576, 446 P.2d 443.
There is no constitutional requirement for payment in advance for the property taken. Timberlake v. Southern Pac. Co., 1969-NMSC-143, 80 N.M. 770, 461 P.2d 903.
This section does not require payment in advance of the taking or damage. State Hwy. Comm'n v. Ruidoso Tel. Co., 1963-NMSC-150, 73 N.M. 487, 389 P.2d 606.
Constitution does not require advance compensation for damaging private property in improvement of state highway. State Hwy. Comm'n v. Ruidoso Tel. Co., 1963-NMSC-150, 73 N.M. 487, 389 P.2d 606; Summerford v. Board of Cnty. Comm'rs, 1931-NMSC-014, 35 N.M. 374, 298 P. 410.
Date of taking. — Clearly and logically the date of taking, whether partial or whole, was the date on which the condemnor became vested with the legal right to possession, dominion and control over the real estate being condemned. State ex rel. State Hwy. Dep't v. Yurcic, 1973-NMSC-059, 85 N.M. 220, 511 P.2d 546, modified, County of Dona Ana v. Bennett, 1994-NMSC-005, 116 N.M. 778, 867 P.2d 1160.
Restrictive covenant. — Measure of compensation for taking restrictive covenant is the difference between the fair market value of the lot benefitted by the restrictive covenant immediately before the taking and the value of the lot immediately after the taking. Leigh v. Village of Los Lunas, 2005-NMCA-025, 137 N.M. 119, 108 P.3d 525.
Taking of restrictive covenant occurred not when municipality purchased burdened lot, but when municipality began construction of improvements in violation of restrictive covenants. Leigh v. Village of Los Lunas, 2005-NMCA-025, 137 N.M. 119, 108 P.3d 525.
Awards improper. — Awards in condemnation proceeding which were far below and outside the bounds of the testimony of any witness were improper. AT & T Co. v. Walker, 1967-NMSC-049, 77 N.M. 755, 427 P.2d 267.
Factors to determine if pre-condemnation publicity and planning constitutes a taking. — To determine whether pre-condemnation publicity and planning constitute a taking, a court must consider whether the government had publicly announced a present intention to condemn the property in question and whether the government has done something that substantially interferes with the landowner’s use and enjoyment of its property. Santa Fe Pacific Trust, Inc. v. City of Albuquerque, 2014-NMCA-093, cert. granted, 2014-NMCERT-008.
Publicity surrounding proposed condemnation was not a taking. — Where two mayors publicly targeted plaintiff’s property as a potential location for an event arena; the municipality had informed plaintiff that plaintiff’s property would be taken for that purpose; the municipality adopted a development plan that included the goal of constructing an event arena on a site that included plaintiff’s property and began a process to determine the feasibility of constructing the event arena; the municipality issued a request for information and a request for proposals that included plaintiff’s property and publicly announced the proposed project; the municipality attempted to purchase the property from plaintiff; local newspapers published many articles about the proposed project that mentioned plaintiff's property as a potential site; the municipal council never approved the acquisition or condemnation or appropriated funding for construction of an arena; some potential buyers and tenants of plaintiff's property were deterred by the possibility of imminent condemnation; and plaintiff sued the municipality for inverse condemnation alleging that plaintiff lost potential sales and leases because of the publicity surrounding the municipality's plan to condemn plaintiff’s property, plaintiff failed to establish an inverse condemnation under the takings clause of the Fifth Amendment and under the New Mexico constitution and statutory law because the municipality’s planning activities, which never came to fruition, did not prevent plaintiff from possessing the property or from using it. Santa Fe Pacific Trust, Inc. v. City of Albuquerque, 2014-NMCA-093, cert. granted, 2014-NMCERT-008.
No constitutional right to sue state. — Contention that this section necessarily implies consent to sue the state if private property is taken or damaged by a state agency or subdivision without compensation is expressly rejected. State ex rel. Board of Cnty. Comm'rs v. Burks, 1965-NMSC-020, 75 N.M. 19, 399 P.2d 920.
Remedy of inverse condemnation explained. — If property has been actually taken or damaged for public use, and the person or agency taking or damaging the same for such purpose has failed for some reason to proceed by condemnation proceedings to exercise the power of eminent domain, though vested with that right, the remedy of inverse condemnation is available to secure the recovery of just compensation. Garver v. Public Serv. Co., 1966-NMSC-261, 77 N.M. 262, 421 P.2d 788.
Actual taking not required for compensation. — In order for an owner of private property to be compensated, an actual taking of the property is not required; it is sufficient if there are consequential damages. Public Serv. Co. v. Catron, 1982-NMSC-050, 98 N.M. 134, 646 P.2d 561.
Exclusive nature of remedy. — Landowners could not recover for the alleged trespasses upon the premises, and their only remedy, if any, was limited to a recovery of just compensation for property taken or damaged for public use by an action in the nature of inverse condemnation. Garver v. Public Serv. Co., 1966-NMSC-261, 77 N.M. 262, 421 P.2d 788.
Damage must affect right of landowner separate from right of public. — In order to be compensated, damage to property must affect some right or interest which the landowner enjoys and which is not shared or enjoyed by the public generally. The damage must be different in kind, not merely in degree, from that suffered by the public in general. Public Serv. Co. v. Catron, 1982-NMSC-050, 98 N.M. 134, 646 P.2d 561.
For inverse condemnation to be based upon a "damage", a property owner must suffer some compensable injury that is not suffered by the public in general. Estate of Sanchez v. County of Bernalillo, 1995-NMSC-058, 120 N.M. 395, 902 P.2d 550.
Right to sue for damage caused by highway construction. — Constitutional right of compensation for damaging private property by construction or improvement of state highway may be enforced by civil action against party liable therefor. Summerford v. Board of Cnty. Comm'rs, 1931-NMSC-014, 35 N.M. 374, 298 P. 410.
Where private property has been damaged through the methods followed or adopted in the design, construction or maintenance of a public highway, it constitutes damage for a public use for which adequate compensation is guaranteed to the owner by this section, and for which a county is subject to suit. Wheeler v. Board of Cnty. Comm'rs, 74 N.M. 165, 391 P.2d 664 (1964).
Counties are liable under the statutes to damages for lands taken for highway purposes by them or with their acquiescence. Mesich v. Board of Cnty. Comm'rs, 1942-NMSC-054, 46 N.M. 412, 129 P.2d 974.
Members of state highway commission [state transportation commission] were not personally liable for compensation for cutting off ingress and egress to and from land by erecting viaduct on state highway without prior ascertainment and settlement of damages. Summerford v. Board of Cnty. Comm'rs, 1931-NMSC-014, 35 N.M. 374, 298 P. 410.
Action maintainable by purchaser. — A person who holds interest in land under contract of sale may maintain an action for compensation. Mesich v. Board of Cnty. Comm'rs, 1942-NMSC-054, 46 N.M. 412, 129 P.2d 974.
No action for interference with television reception. — The fact that an adjoining electrical transmission line will interfere with radio and television reception fails to state a cause of action for inverse condemnation. Public Serv. Co. v. Catron, 1982-NMSC-050, 98 N.M. 134, 646 P.2d 561.
No action for unsightly structure. — Damages cannot be recovered because of the unsightly character of a structure, and aesthetic considerations are not compensable in the absence of a legislative provision. Public Serv. Co. v. Catron, 1982-NMSC-050, 98 N.M. 134, 646 P.2d 561.
No action for noise. — Damages in inverse condemnation from noise are not allowed. Public Serv. Co. v. Catron, 1982-NMSC-050, 98 N.M. 134, 646 P.2d 561.
Scope of section. — Constitutional provision that private property shall not be taken for public use without just compensation applies only to property taken under the power of eminent domain. 1960 Op. Att'y Gen. No. 60-70.
When compensation unnecessary. — Municipality is immune from constitutional requirement of compensating for injury to or "taking" of property only in the reasonable exercise of the police power, to the extent that it is required or necessary in order to advance the best interests of society in general. 1960 Op. Att'y Gen. No. 60-70.
Applicability of federal case law. — In view of the fact that the provisions of N.M. Const., art. II, § 18, concerning due process and this section, concerning the taking of private property without just compensation, are worded exactly as those contained in U.S. Const., amend. V, the holdings of the United States supreme court may be applicable to issues thereunder. 1968 Op. Att'y Gen. No. 68-09.
Graduated income tax valid. — Graduated income tax does not violate N.M. Const., art. II, § 18, or this section. 1968 Op. Att'y Gen. No. 68-09.
"Taking" defined. — "Taking" may be defined as entering upon private property for more than a momentary period and under the warrant or color of legal authority, devoting it to public use or otherwise informally appropriating or injuriously affecting it in such a way as to substantially oust the owner and deprive him of beneficial enjoyment thereof. 1974 Op. Att'y Gen. No. 74-16.
Private property cannot be taken for ditch without just compensation. 1969 Op. Att'y Gen. No. 69-96.
Township and section lines declared public highways. — Although 67-5-1 NMSA 1978 authorizes county commissioners to declare township and section lines public highways, they must provide compensation for any private property taken and comply with the ordinary statutory procedures for the establishment of county roads. 1988 Op. Att'y Gen. No. 88-59.
Law reviews. — For article, "Private Nuisance in New Mexico," see 4 N.M. L. Rev. 127 (1974).
For note, "The Use of Eminent Domain for Oil and Gas Pipelines in New Mexico," see 4 Nat. Resources J. 360 (1964).
For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).
For comment on State ex rel. State Hwy. Comm'n v. Danfelser, 72 N.M. 361, 384 P.2d 241 (1963), cert. denied, 375 U.S. 969, 84 S. Ct. 487, 11 L. Ed. 2d 416 (1964), see 4 Nat. Resources J. 181 (1964).
For student symposium, "Constitutional Revision - Water Rights," see 9 Nat. Resources J. 471 (1969).
For note, "Natural Gas Pipelines and Eminent Domain: Can a Public Use Exist in a Pipeline?," see 25 Nat. Resources J. 829 (1985).
For comment, "Land Use Regulations and the Takings Clause: Are Courts Applying a Tougher Standard to Regulators after Nollan?," see 32 Nat. Resources J. 959 (1992).
For note, "Property Owners in Condemnation Actions May Receive Compensation for Diminution in Value to Their Property Caused by Public Perception: City of Santa Fe v. Komis," see 24 N.M. L. Rev. 535 (1994).
For note, "United Water New Mexico v. New Mexico Public Utility Commission: Why Rules Governing the Condemnation and Municipalization of Water Utilities May Not Apply to Electric Utilities," see 38 Nat. Resources J. 667 (1998).
For article, “Valuation of Minerals in Takings Cases,” see 42 Nat. Resources J. 185 (2002).
For student article “Will the Durational Element Endure? Only Time Will Tell: Temporary Regulatory Takings in the Courts of Federal Claims and Federal Circuit After Tahoe-Sierra”, 45 Nat. Resources J. 201 (2005).
Admissibility and effect of evidence of electromagnetic fields generated by power lines, or public perception thereof, in action to value land or to recover for personal injury or property damage, 104 A.L.R. 5th 503.
Right of out-of-state property owner to commence in, or remove to, federal court action involving taking of property by state, local government, or agency thereof, 4 A.L.R. Fed. 2 § 6.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Eminent Domain, §§ 6, 17 et seq.
Compensation or damages for condemning a public utility plant, 392, 35 A.L.R.4th 1263.
Use or improvement of highway as establishing grade necessary to entitle abutting owner to compensation on subsequent change, 2 A.L.R.3d 985.
Restrictive covenant or right to enforcement thereof as compensable property right, 4 A.L.R.3d 1137.
Zoning as a factor in determination of damages in eminent domain, 9 A.L.R.3d 291.
Deduction of benefits in determining compensation or damages in proceedings involving opening, widening or otherwise altering highway, 13 A.L.R.3d 1149.
Restrictive covenant, existence of, as element in fixing value of property condemned, 22 A.L.R.3d 961.
Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.
Platting or planning in anticipation of improvement as taking or damaging of property affected, 37 A.L.R.3d 127.
Cost of substitute facilities as measure of compensation paid to state or municipality for condemnations of public property, 40 A.L.R.3d 143.
Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.
Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.
Condemned property's location in relation to proposed site of building complex or similar improvement as factor fixing compensation, 51 A.L.R.3d 1050.
Goodwill or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.
Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.
Compensation for diminution in value of remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.
Consideration of fact that landowner's remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.
Determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.
Right to condemn property owned or used by private educational, charitable or religious organization, 80 A.L.R.3d 833.
Goodwill as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.
Recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.
Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.
Local use zoning of wetlands or flood plain as taking without compensation, 19 A.L.R.4th 756.
Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.
Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.
Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.
Seizure of property as evidence in criminal prosecution or investigation as compensable taking, 44 A.L.R.4th 366.
Validity, construction, and application of state relocation assistance laws, 49 A.L.R.4th 491.
Inverse condemnation state court class actions, 49 A.L.R.4th 618.
Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063.
Eminent domain: industrial park or similar development as public use justifying condemnation of private property, 62 A.L.R.4th 1183.
Abutting owner's right to damages for limitation of access caused by traffic regulation, 15 A.L.R.5th 821.
Construction and application of rule requiring public use for which property is condemned to be "more necessary" or "higher use" than publicuse to which property is already appropriated - state takings, 49 A.L.R. 5th 769.
29A C.J.S. Eminent Domain §§ 4, 21 to 26.