Whenever, in the opinion of the board of county commissioners of any county, any road or part of road then established and maintained as a public highway is not needed, or the repairs of the same are burdensome and in excess of the benefits therefrom, they may at a regular meeting appoint a board of commissioners of three freeholders of the county as viewers, to view such road or part of road, and make report thereof to the board of county commissioners at their next regular meeting, setting forth fully their finding, and if they recommend a discontinuance of such road or part of road, then the board of county commissioners may order the same vacated: provided, that if such road runs on the county line between two counties, the county commissioners of both the counties interested shall appoint viewers and the concurrence of the county commissioners of both counties shall be necessary to vacate it.
History: Laws 1905, ch. 124, § 3; Code 1915, § 2655; C.S. 1929, § 64-704; 1941 Comp., § 58-404; 1953 Comp., § 55-4-4.
ANNOTATIONSLegislative intent. — Sections 67-5-4, 67-2-6 and 67-2-7 NMSA 1978 all relate to the vacation or abandonment of public highways, streets or roads by formal declaration, determination or order of the state or the appropriate commission, department, institution, bureau or political subdivision thereof, being in pari materia, these statutes should be construed, if reasonably possible, so as to give effect to every provision of each, and these statutes evince an intent on the part of the legislature to provide a formal procedure for the abandonment or vacation of public roads, streets and highways; hence the district courts are not vested with this power. Chavez v. County of Valencia, 1974-NMSC-035, 86 N.M. 205, 521 P.2d 1154.
Right to object to closing by nonabutting property owner. — One whose property does not abut on a closed section of a street or road ordinarily has no right to complain of the closing or vacation of such road, provided he still has reasonable access to the general street or road system. Mandell v. Board of Comm'rs, 1940-NMSC-003, 44 N.M. 109, 99 P.2d 108.
Proof of special damages by nonabutting owner. — Proof of some special or peculiar damage to a claimant, though not an abutting owner, may support damages resulting from closing of road or street, but the damage suffered must be substantially different in kind, and not merely in degree, from that suffered by the public in general. Mandell v. Board of Comm'rs, 1940-NMSC-003, 44 N.M. 109, 99 P.2d 108.
Complaint seeking vacation proceedings review dismissed. — Dismissal of complaint seeking review of proceedings by board of county commissioners in vacating a highway within county but outside of a city, and seeking injunctive relief as an interference with plaintiffs' private easement of way, required to be appraised for correctness upon a determination of whether plaintiffs had an easement of right-of-way, or at least one superior to the statutory right of the county to vacate the section of street or road in question. Mandell v. Board of Comm'rs, 1940-NMSC-003, 44 N.M. 109, 99 P.2d 108.
Statutory requirements for viewers' report. — Statute does not require viewers' report to contain more than a finding that the road or street sought to be vacated is not needed, and the recommendation that it be closed. Mandell v. Board of Comm'rs, 1940-NMSC-003, 44 N.M. 109, 99 P.2d 108.
Jurisdiction over subject matter. — Although the county entered an appearance in the quiet title suit and participated in the proceedings therein conducted by the district court, this did not confer jurisdiction or power in the district court over the subject matter of the suit, insofar as the subject matter of the suit was concerned with the quieting of title in the roads, as subject-matter jurisdiction cannot be conferred by consent of the parties. Chavez v. County of Valencia, 1974-NMSC-035, 86 N.M. 205, 521 P.2d 1154.
Effect of section. — This section is authority for the board of county commissioners of Bernalillo county vacating and closing a portion of a public road located in a platted area outside of the Albuquerque city limits. 1958 Op. Att'y Gen. No. 58-87.
General rule is to the effect that where the absolute and unqualified fee is in the municipality or other public agency, it divests the original owner of its entire interest so that upon discontinuance of the way as such the title does not revert to the grantor or abutting owner but remains in the municipality or other agency unaffected by the vacation. 1958 Op. Att'y Gen. No. 58-87.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets and Bridges §§ 137 to 139, 154.
Right to compensation by nonabutting owner for vacation of section of highway, 49 A.L.R. 330, 93 A.L.R. 639.
Validity and construction of regulations as to subdivision maps or plats, 11 A.L.R.2d 524.
39A C.J.S. Highways § 116.