A. A condemnor is liable to the condemnee and, if applicable, to the person in actual physical occupancy of the property for physical injury to and for substantial interference with possession or use of property caused by its entry and activities upon the property made pursuant to Section 42A-1-8 NMSA 1978. This liability may be enforced in a civil action against the condemnor or by application to the court in the circumstances provided by Subsection C of this section.

B. In an action or other proceeding for recovery of damages under this section, the prevailing claimant shall be allowed his reasonable costs. In addition, the court shall award the claimant his litigation expenses incurred in any proceeding under Section 42A-1-9 or 42A-1-11 NMSA 1978 if it finds liability pursuant to Subsection A of this section and that the condemnor:

(1) entered the property unlawfully; or

(2) failed without just cause to substantially comply with or wrongfully exceeded or abused the authority of an order made under Section 42A-1-9 or 42A-1-11 NMSA 1978.

C. If funds are on deposit or a surety bond has been required under Section 42A-1-10 or 42A-1-11 NMSA 1978, the condemnee or other person claiming damages under Subsection A of this section may apply to the court for an award of the amount he is entitled to recover. The court shall determine the amount and award it to the person entitled thereto and direct that the payment be made out of the money on deposit or pursuant to the provisions of the bond. If the amount on deposit or the amount of the surety bond is insufficient to pay the full amount, the court shall enter judgment against the condemnor for the unpaid portion.

History: 1978 Comp., § 42A-1-10, enacted by Laws 1980, ch. 20, § 12; amended and recompiled as § 42A-1-12 by Laws 1981, ch. 125, § 8.

Recompilations. — Laws 1981, ch. 125, § 10, recompiled former 42A-1-12 NMSA 1978, relating to notice, as 42A-1-14 NMSA 1978.

The 1981 amendment substituted "condemnee" for "owner" in the first sentence of Subsection A and in the first sentence of Subsection C, substituted "Section 42A-1-8" for "Section 42A-1-6" in the first sentence of Subsection A, inserted "reasonable" in the first sentence of Subsection B, deleted "including reasonable attorney's fees" preceding "incurred" in the second sentence of Subsection B, substituted "Section 42A-1-9 or 42A-1-11" for "Section 42A-1-7 or 42A-1-9" in the second sentence of Subsection B and in Paragraph (2) of Subsection B and substituted "Section 42A-1-10 or 42A-1-11" for "Section 42A-1-8 or 42A-1-9" in the first sentence of Subsection C.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.

Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.

Method of determining rate of interest allowed on award to owner of property taken by United States in eminent domain proceeding, 56 A.L.R. Fed. 477.