A. If appraisers have not been appointed pursuant to Section 42A-1-5 NMSA 1978 and if the court is satisfied that proper notice of the petition has been given, it shall appoint up to three disinterested commissioners who are residents of the county in which the property or a part thereof is situated and who are familiar with the property values in the area of the proposed taking. The commissioners shall assess the damages which the condemnees may severally sustain by reason of the proposed taking and make a report to the clerk of the court within thirty days, unless extended by the court for good cause shown, setting forth the amount of the damages. The clerk of the court shall file the report prepared by the commissioners. Should more than one condemnee be included in the petition, the commissioners shall state the damages allowed each condemnee separately, together with a specific description of the property for which such damages are assessed.

B. Any number of condemnees may be joined in one petition, and the damages to each tract of land shall be separately assessed by the commissioners.

C. The condemnor shall pay to the clerk the amount assessed pursuant to Subsection A of this section.

D. Upon the failure by the condemnor to pay the assessment, the court may, upon motion and notice by the party entitled to damages, enforce payment by execution.

E. By motion before entry of judgment, the condemnee may apply to the court to withdraw an amount not to exceed sixty-six and two-thirds percent of the amount deposited pursuant to Subsection C of this section. The condemnee shall specify in his motion the property for which the deposit was made and the amount requested to be withdrawn.

F. A condemnee who withdraws funds pursuant to Subsection E of this section waives all objections and defenses to the condemnation action, except for any claim to greater compensation.

G. The court shall direct that the funds deposited pursuant to Subsection C of this section and not withdrawn pursuant to the provisions of Subsection E of this section be invested by the clerk of the court in federal securities or in federally insured interest-bearing accounts in financial institutions located within the judicial district. All income from such investment shall accrue to the benefit of the condemnee. No funds in excess of the applicable dollar insurance maximum shall be deposited in any institution. The type of investment and maturity date of the deposit or securities shall be approved by the condemnee. If there is more than one condemnee and they are unable to agree on the type of investment or maturity date, the court shall invest the deposit in the type of such investment which earns the highest interest rate, provided such deposit or investment shall mature in not more than one hundred eighty-five days.

History: 1978 Comp., § 42A-1-19, enacted by Laws 1981, ch. 125, § 15.

Landowner is not entitled to compensation for loss of business resulting to him because of opening up of a more convenient route whereby traffic is diverted from his door since there is no vested right in the flow of public travel. Board of Cnty. Comm'rs v. Slaughter, 1945-NMSC-019, 49 N.M. 141, 158 P.2d 859.

Warrants for amount of award. — 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.

Proceedings initiated by filing petition continue through appeal. — In condemnation proceedings, the proceedings initiated by filing petition in district court for appointment of commissioners, continued through the appellate proceedings in the district court, and did not terminate with the confirmation of the commissioners' report by the district court. State ex rel. Weltmer v. Taylor, 1938-NMSC-035, 42 N.M. 405, 79 P.2d 937.

Final judgment confirms commissioners' report. — In condemnation proceeding by the state highway commission [state transportation commission], the order confirming the commissioners' report in the final judgment fixing the damages for the properties taken. State ex rel. State Hwy. Comm'n v. Marquez, 1960-NMSC-099, 67 N.M. 353, 355 P.2d 287.

Effect of irregularity on final judgment. — The failure of commissioners, appointed to appraise land condemned, to include description and other details, is an irregularity but does not authorize the vacation of a final judgment awarding damages. Board of Cnty. Comm'rs v. Wasson, 1933-NMSC-076, 37 N.M. 503, 24 P.2d 1098.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Eminent Domain §§ 27 et seq., 268 et seq.; 27 Am. Jur. 2d Eminent Domain §§ 293, 459 et seq., 511 et seq., 555, 704, 705, 709, 710, 822, 825, 826, 828.

Right to compensation for damages to land left outside of levee, 20 A.L.R. 302.

Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516.

Right of abutting owner to compensation for railroad in street under constitutional provision against damaging property for public use without compensation, 22 A.L.R. 145.

Right of abutting owner to compensation for interference with access by bridge or other structure in public street or highway, 45 A.L.R. 534.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.

Zoning factor in determination of damages in eminent domain, 9 A.L.R.3d 291.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

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.

Referee's failure to file report within time specified by statute, court order, or stipulation as terminating reference, 71 A.L.R.4th 889.

29A C.J.S. Eminent Domain §§ 229 to 231, 286 to 338.