A. Corporations organized pursuant to Section 62-1-1 NMSA 1978 are authorized to enter upon any property belonging to the state or to persons, firms or corporations for the purpose of making surveys and from time to time to appropriate so much of such property, not exceeding a strip one hundred feet wide in any one place, as may be necessary for their purpose. The corporations have the right of access to such property to construct and place their lines, pipes, poles, cables, conduits, towers, stations, fixtures, appliances and other structures and to repair them. If a corporation cannot agree with the owners as to a right-of-way or the compensation for a right-of-way, the corporation may proceed to obtain the right-of-way in the manner provided by law for condemnation of such property. Where it is necessary to cross the right-of-way of another corporation, the crossing shall be effected either by mutual agreement or in the manner now provided by law for the crossing of one railroad by another railroad; provided that the construction of any electric transmission lines crossing the right-of-way of a railroad shall comply with the minimum standards of the national electric safety code. When it is necessary for a corporation to construct any transmission line and associated facilities for the transmission of electrical power requiring a width for right-of-way of greater than one hundred feet, unless that width is agreed to by the parties, the applicant for the right-of-way shall apply to the New Mexico public utility commission as provided in Section 62-9-3.2 NMSA 1978 for a determination of the width necessary for the right-of-way for the transmission line.
B. For the purposes of this section, "corporation" means individuals, firms, partnerships, companies, municipalities, rural electric cooperatives organized under Laws 1937, Chapter 100 or the Rural Electric Cooperative Act [Chapter 62, Article 15 NMSA 1978], lessees, trustees or receivers appointed by any court.
History: Laws 1909, ch. 141, § 4; Code 1915, § 1024; C.S. 1929, § 32-404; 1941 Comp., § 72-104; 1953 Comp., § 68-1-4; Laws 1980, ch. 20, § 17; 1993, ch. 282, § 19.
ANNOTATIONSCompiler's notes. — Laws 1937, ch. 100, referred to in Subsection B, was repealed by Laws 1939, ch. 47, § 34.
Sections 62-1-1 to 62-1-7 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 1 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.
Cross references. — For eminent domain proceedings, see Chapter 42A, NMSA 1978.
The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "corporation" and "right-of-way" for references to "they" and "the same", substituted "New Mexico public utility commission" for "public service commission" and made stylistic changes throughout the subsection; and deleted "whatsoever" at the end of Subsection B.
Eminent domain matter of public policy. — The granting of the power of eminent domain, and the parameters thereto, is a matter of public policy for the legislature's determination. El Paso Elec. Co. v. Real Estate Mart, Inc., 1979-NMSC-023, 92 N.M. 581, 592 P.2d 181.
Section authorizes entry by utility. — This section authorizes utility to enter land to survey and to appropriate land for the erection of power lines. Zobel v. Public Serv. Co., 1965-NMSC-021, 75 N.M. 22, 399 P.2d 922.
Regardless of validity of utilities easement. — That electric power utility may have entered onto premises under an easement which landowners alleged was invalid would not make unlawful utility's entry onto premises pursuant to statute granting public utilities such right of entry. Garver v. Public Serv. Co., 1966-NMSC-261, 77 N.M. 262, 421 P.2d 788.
Right to damages in inverse condemnation. — This section gives the right to recover damages in inverse condemnation. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Authorized foreign public utility may exercise eminent domain. — Under Sections 53-17-2 and 62-1-1 NMSA 1978 and this section, a foreign public utility authorized to do business in this state has the same right as a domestic public utility to exercise the power of eminent domain in this state. El Paso Elec. Co. v. Real Estate Mart, Inc., 1979-NMSC-023, 92 N.M. 581, 592 P.2d 181.
Supervision of foreign public utilities. — Foreign public utilities authorized to do business in this state are subject to the same supervision as utilities incorporated under the laws of this state. El Paso Elec. Co. v. Real Estate Mart, Inc., 1979-NMSC-023, 92 N.M. 581, 592 P.2d 181.
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.
Damages for trespass when 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.
Procedure for compensation for prior entry is exclusive. — In those jurisdictions in which there may be a constitutional taking of property by virtue of an exercise of the power of eminent domain prior to the payment of compensation, such procedure is justified by reason of legislative provision for an adequate method of obtaining just compensation by the owner. Under such circumstances the statutory remedy is deemed exclusive, and the owner is prevented from asserting the ordinary common-law actions arising from interference with his title or possession. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
Landowner cannot assert common-law action for damages. Zobel v. Pub. Serv. Co., 1965-NMSC-021, 75 N.M. 22, 399 P.2d 922.
Trespass lies where there is no right to condemn. — Where parties are mistaken in their belief that they had the right to condemn, a trespass action would be proper. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.
When consequential damages permitted. — Where a utility takes possession of property and grades roads outside the 100-foot easement allowed by Section 62-1-4 NMSA 1978, the condemnees are entitled to consequential damages if they can prove that the value of their property depreciated by reason of the entry and grading. El Paso Elec. v. Real Estate Mart, Inc., 1982-NMCA-101, 98 N.M. 490, 650 P.2d 12, cert. denied, 98 N.M. 590, 651 P.2d 636.
Stipulation as to power of court to award damages held binding. — Stipulation is binding on the parties and properly given effect on remand where it was agreed that if a gas utility seeking to enjoin erection of a dwelling over its main line was found not to have a prescriptive easement, evidence of damages for the line crossing defendant's property would be considered by the court. Southern Union Gas Co. v. Cantrell, 1953-NMSC-092, 57 N.M. 612, 261 P.2d 645.
Condemnees may appeal although warrants have been issued to attorneys. — Where the clerk issued warrants to attorneys for condemnees for amounts of awards in eminent domain, but these warrants were not delivered to or endorsed by condemnees and funds that were deposited with clerk remained in hands of clerk, condemnees had not received benefit from judgment and were not barred from appealing judgment. AT & T Co. v. Walker, 1967-NMSC-049, 77 N.M. 755, 427 P.2d 267.
As to right to trial by jury, and waiver thereof. El Paso Elec. v. Real Estate Mart, Inc., 1982-NMCA-101, 98 N.M. 490, 650 P.2d 12, cert. denied, 98 N.M. 590, 651 P.2d 636.
Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Property," see 11 N.M.L. Rev. 203 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 64 Am. Jur. 2d Public Utilities §§ 300, 312.
Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's power of eminent domain, 87 A.L.R.3d 1265.
Unsightliness of powerline or other wire, or related structure, as element or damages in easement condemnation proceeding, 97 A.L.R.3d 587.
Eminent domain: review of electric power company's location of transmission line for which condemnation is sought, 19 A.L.R.4th 1026.
Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.
Eminent Domain: compensability of loss of visibility of owner's property, 7 A.L.R.5th 113.
Validity and construction of provision of Cable Communications Policy Act (47 USC § 541(a)(2)) allowing cable companies access to utility easements on private property, 113 A.L.R. Fed. 523.
29A C.J.S. Eminent Domain §§ 25, 207, 213, 219.