A. A preliminary order permitting the state or any political subdivision thereof to immediately enter and occupy the premises sought to be condemned pending the action and to do such work thereon as may be required, may be obtained by the petitioner, without notice, upon the filing of the surety bond and deposit of money with the court as hereinafter provided, and a copy of such order shall be filed with the clerk of the court and notice thereof shall be served upon any defendant against whom such order is obtained, or upon his attorney of record. Such notice shall advise such defendant of the nature of the order and inform him that, unless objection thereto is filed within ten days after service thereof, the court shall deem such owner in default and shall proceed to make such preliminary order permanent and shall, without further notice, restrain said defendant from hindering or interfering with the occupation of the premises and the doing thereon of the work required, and that subsequent proceedings shall only affect the amount of compensation allowable.

B. With his application for such preliminary order, the petitioner shall submit proof by affidavit, or otherwise, of the reasons for requiring a speedy occupation, and the court shall issue or refuse to issue the preliminary order according to the equity of the case and the relative damages which may accrue to the parties. If the order is granted, the court may require the petitioner to execute and file in the court a surety bond to the benefit of the defendants, executed by any surety company authorized to do business in the state, in a sum to be fixed by the court, but not less than the value of the premises for which possession is sought after taking into consideration the amount of the deposit, if any, and the damages which will result from such occupation and condemnation, as the same may appear to the court on the hearing, and conditioned to pay the adjudged value of the premises and all damages in case the property is condemned, and to pay all damages arising from the occupation before judgment in case the premises are not condemned. No order of entry to any property being taken from a private property owner for rights-of-way may be granted until there is deposited with the clerk of the district court the amount offered as just compensation. Money from this deposit shall be disbursed under such conditions as the court may deem appropriate, upon the demand of any person having an estate or interest in such property, and the final judgment shall not include interest from the date of said deposit on the amount of such advance deposit. Disbursements may be made only by order of court entered after expiration of the time for the filing of an answer. Any disbursement of money from an advance deposit shall be without prejudice to the right of a defendant landowner to litigate for additional compensation. The court or jury shall not award a lesser sum than that shown by the petitioner's appraised value testified to in court.

C. Upon the filing of a certificate of the clerk of the court that ten days have elapsed since service of the notice of preliminary order on all defendants, the court, upon notice to all defendants who have appeared or their attorneys of record, may proceed to hear all legal objections to the petition and order, and all objections as to the amount of the bond, if any, and all argument as to why said order should not be made permanent, and shall thereupon make such order as it deems necessary. After said order is made permanent, all subsequent proceedings shall only affect the amount of compensation allowable.

History: 1953 Comp., § 22-9-43, enacted by Laws 1959, ch. 324, § 5; 1966, ch. 40, § 1.

Emergency clauses. — Laws 1966, ch. 40, § 2 contained an emergency clause and was approved March 1, 1966.

Procedure provides for permanent order permitting condemnor to enter and occupy the premises and perform work thereon, after which "subsequent proceedings shall only affect the amount of compensation allowable." State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866.

Right to possession vests in condemnor on 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.

However, no taking occurs if preliminary order not made permanent. — Where the preliminary order of entry is never made permanent and there is no physical entry or disturbance of the plaintiff's possession, no taking occurs. State ex rel. State Hwy. Dep't v. Yurcic, 1973-NMSC-059, 85 N.M. 220, 511 P.2d 546.

Proceedings unilaterally abandoned anytime before final judgment. — A county can unilaterally abandon condemnation proceedings following the entry of a permanent order of entry, (in fact, 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, however, the court shall not award any damages for any reduction in value to the property based solely on its relocation. Because there is no permanent taking of property, the owner has no right to any incidental damages to what would have otherwise been the remainder of the property. County of Bernalillo v. Morris, 1994-NMCA-038, 117 N.M. 398, 872 P.2d 371.

Condemnation deposit cannot be used to cure any default under the real estate sales contract. Trickey v. Zumwalt, 1971-NMSC-114, 83 N.M. 278, 491 P.2d 166.

Right to appeal award after accepting payment. — The language in this section, preserving a condemnee's right to litigate for additional compensation after accepting an advance deposit, refers only to accepting amounts paid to the clerk prior to the granting of the order of entry; the condemnee's acceptance of the full amount awarded by the court as just compensation waives the condemnee's right to appeal. Board of Educ. v. Johnson, 1998-NMCA-048, 125 N.M. 91, 957 P.2d 76.

Tax liability of condemnee ends after condemnor enters. — The condemnee is not liable for taxes accruing after the condemnor has entered the land and destroyed any beneficial possession on the part of the condemnee. 1964 Op. Att'y Gen. No. 64-93.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29A C.J.S. Eminent Domain §§ 86, 172 to 177, 180, 184, 224.