A. A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest, to the date such just compensation is made, in an action to be brought under and governed by the Rules of Civil Procedure for the District Courts of this state. Actions under this section shall be brought in the county where the land or any portion thereof is located.

B. Notwithstanding the provisions of Subsection A of this section or any other provision of law regarding compensation for damage in the situation described in that subsection:

(1) if the person authorized had taken or been granted for public use, pursuant to a final judgment, an order of immediate possession or private agreement, any property;

(2) the property subsequently taken or damaged was contiguous to the property taken or granted; and

(3) the person takes or damages property contiguous to property previously taken or granted from the condemnee or grantor without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation; the condemnee or grantor shall receive compensation for the land taken or damaged at the greater of fair market value or a unit rate of five times that of the compensation or consideration he received for the land taken; provided that if the width of the property taken or damaged is not equal to the width originally taken or damaged, compensation required pursuant to this subsection shall be increased or reduced ratably in accordance with the relationship of the respective widths.

C. Any amounts paid under Subsection B of this section shall be deemed just compensation.

History: 1978 Comp., § 42A-1-29, enacted by Laws 1981, ch. 125, § 25; 1983, ch. 131, § 1.

Compiler's notes. — Laws 1981, ch. 125, § 61 provided that all references to 42-1-23 NMSA 1978 shall be construed as references to 42A-1-29 NMSA 1978.

Cross references. — For the New Mexico Rules of Civil Procedure for the District Courts, see Rules 1-001 to 1-127 NMRA.

The 1983 amendment designated the formerly undesignated language as Subsection A, substituted "ten percent per year interest" for "eight percent per year interest" in the first sentence of Subsection A and added Subsections B and C.

Factors to determine if pre-condemnation publicity and planning constitutes a taking. — To determine whether pre-condemnation publicity and planning constitute a taking, a court must consider whether the government had publicly announced a present intention to condemn the property in question and whether the government has done something that substantially interferes with the landowner's use and enjoyment of its property. Santa Fe Pacific Trust, Inc. v. City of Albuquerque, 2014-NMCA-093, cert. granted, 2014-NMCERT-008.

Publicity surrounding proposed condemnation was not a taking. — Where two mayors publicly targeted plaintiff's property as a potential location for an event arena; the municipality had informed plaintiff that plaintiff's property would be taken for that purpose; the municipality adopted a development plan that included the goal of constructing an event arena on a site that included plaintiff's property and began a process to determine the feasibility of constructing the event arena; the municipality issued a request for information and a request for proposals that included plaintiff's property and publicly announced the proposed project; the municipality attempted to purchase the property from plaintiff; local newspapers published many articles about the proposed project that mentioned plaintiff's property as a potential site; the municipal council never approved the acquisition or condemnation or appropriated funding for construction of an arena; some potential buyers and tenants of plaintiff's property were deterred by the possibility of imminent condemnation; and plaintiff sued the municipality for inverse condemnation alleging that plaintiff lost potential sales and leases because of the publicity surrounding the municipality's plan to condemn plaintiff's property, plaintiff failed to establish an inverse condemnation under the takings clause of the Fifth Amendment and under the New Mexico constitution and statutory law because the municipality's planning activities, which never came to fruition, did not prevent plaintiff from possessing the property or from using it. Santa Fe Pacific Trust, Inc. v. City of Albuquerque, 2014-NMCA-093, cert. granted, 2014-NMCERT-008.

Inverse condemnation. — An inverse condemnation claim is available to a property owner when private property has been taken or damaged by a public entity for a public use and the public entity has not paid just compensation or brought a formal condemnation proceeding. City of Albuquerque v. SMP Properties, 2019-NMCA-004, cert. granted.

Substantial interference. — In a condemnation proceeding brought by the city of Albuquerque (city) to acquire a thirty-foot wide strip of land to build a road on property operated as a freight truck terminal, and where the property owner asserted that the city's condemnation actions proximately caused a property tenant not to renew its lease with the property owner, resulting in inverse condemnation, the district court erred in granting the city's motion for summary judgment, because there were issues of material fact about whether the city's precondemnation activities constitute substantial interference with the property owner's property rights. City of Albuquerque v. SMP Properties, 2019-NMCA-004, cert. granted.

Lost profits for temporary physical taking. — In an inverse condemnation proceeding for a temporary physical taking, lost profits may be recovered when they are the best measure of damages of the value of the lost use and enjoyment of condemned land. Primetime Hospitality, Inc. v City of Albuquerque, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, rev'g 2007-NMCA-129, 142 N.M. 663, 168 P.3d 1087.

Where the landowner had begun constructing a hotel when the landowner accidentally ruptured an encroaching municipal waterline; the opening of the hotel was delayed; lost business damages were the only measure of the loss of use and possession of the property during the temporary taking; and lost profits injuries were directly caused by the encroaching waterline, lost profits for the period of time during which the opening of the hotel was delayed was the best evidence of the value of the property taken. Primetime Hospitality, Inc. v City of Albuquerque, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, rev'g 2007-NMCA-129, 142 N.M. 663, 168 P.3d 1087.

Excess construction costs for temporary physical taking. — In an inverse condemnation proceeding for a temporary physical taking, construction costs that are a direct result of the taking and that are necessary to put the landowner in the position the landowner would have been had no taking occurred are compensable. Primetime Hospitality, Inc. v City of Albuquerque, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, rev'g 2007-NMCA-129, 142 N.M. 663, 168 P.3d 1087.

Where the landowner had begun constructing a hotel when the landowner accidentally ruptured an encroaching municipal waterline; the landowner incurred additional construction costs to repair water damage and to construct a buttress wall to permit construction to proceed, the expenses were a direct result of the municipality's temporary physical taking of the property and are compensable. Primetime Hospitality, Inc. v City of Albuquerque, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112, rev'g 2007-NMCA-129, 142 N.M. 663, 168 P.3d 1087.

Measure of damages for a temporary, but total, physical taking of a commercial property in the early stages of the construction of a project on the property may include, as a separate element of damages, the excess construction costs directly related to the interruption of the construction project that would not have been incurred but for the condemnor's interference with the owners' loss of possession and use of the property and may include, as a separate element of damages, reasonable expenditures demonstrably aimed at reducing the losses suffered by the owner. Primetime Hospitality, Inc. v. City of Albuquerque, 2007-NMCA-129, 142 N.M. 663, 168 P. 3d 1087, cert. granted, 2007-NMCERT-009, 142 N.M. 716, 169 P.3d 409, rev'd, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112.

Measure of damages for a temporary, but total, physical taking of a commercial property in the early stages of the construction of a project on the property may include, as a separate element of damages, the rental value of the property for the period of delay. Primetime Hospitality, Inc. v. City of Albuquerque, 2007-NMCA-129, 142 N.M. 663, 168 P. 3d 1087, cert. granted, 2007-NMCERT-009, 142 N.M. 716, 169 P.3d 409, rev'd, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112.

This section does not mandate attorney fees in inverse condemnation cases. Primetime Hospitality, Inc. v. City of Albuquerque, 2007-NMCA-129, 142 N.M. 663, 168 P. 3d 1087, cert. granted, 2007-NMCERT-009, 142 N.M. 716, 169 P.3d 409, rev'd, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112.

Award of costs to a governmental entity as the prevailing party. — Where plaintiff was authorized to supply water as a public utility in an area on the outskirts of the municipality; the municipality annexed the area and committed itself to provide water to the subdivisions plaintiff was developing; plaintiff filed an inverse condemnation action against the municipality for a regulatory taking of its property; and the New Mexico supreme court determined the municipality's actions were not a compensable taking of plaintiff's property, the municipality, as the prevailing party, was entitled to reasonable costs pursuant to 42A-1-29 NMSA 1978 and Rule 1-054(D) NMRA. Moongate Water Co., Inc. v. City of Las Cruces, 2014-NMCA-075.

Constitution guarantees compensation when private property injured. — New Mexico Const., art. II, § 20, guarantees adequate compensation, where private property has been damaged through the methods followed or adopted in the design, construction or maintenance of a public highway. Wheeler v. Board of Cnty. Comm'rs, 1964-NMSC-081, 74 N.M. 165, 391 P.2d 664.

Constitution does not require advance compensation for damaging private property in improvement of state highway. Summerford v. Board of Comm'rs, 1931-NMSC-014, 35 N.M. 374, 298 P. 410.

"Taking" occurs where all beneficial use of property lost. — Where the landowner does not lose all beneficial use of the property, no "taking" or inverse condemnation occurs. Aragon & McCoy v. Albuquerque Nat'l Bank, 1983-NMSC-020, 99 N.M. 420, 659 P.2d 306.

Risk of damage must be foreseeable. — For an act to give rise to a claim for compensation, the act must at least be one in which risk of damage to an owner's property is actually foreseeable by the governmental actor or in which it is so obvious that its incurrence amounts to deliberate infliction of harm for purpose of carrying out the governmental project. Electro-Jet Tool Mfg. Co., Inc. v. City of Albuquerque, 1992-NMSC-060, 114 N.M. 676, 845 P.2d 770.

Date of taking. — Where village began construction of a drainage pond on a tract of land situated next to plaintiff's land and it was at this point that the plaintiff had notice that the tract would be put to public use, the date of taking for purpose of determining value of the property taken was the date construction began on September 26, 2000, and not the date of the pond's completion on February 14, 2001. Leigh v. Village of Los Lunas, 2005-NMCA-025, 137 N.M. 119, 108 P.3d 525.

Regulatory restriction on use of property. — A regulation which imposes a reasonable restriction on the use of private property will not constitute a "taking" of that property if the regulation is: (1) reasonably related to a proper purpose; and (2) does not unreasonably deprive the property owner of all, or substantially all, of the beneficial use of the property. Thus, if a regulation simply prohibits the use of property for purposes declared to be injurious to the health, morals, or safety of the community, the prohibition cannot be deemed a "taking" of property for the public benefit. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.

Moratorium on development of land. — A moratorium on the development of land within an area that was considered for a national monument did not amount to a compensable taking because the moratorium was imposed for a limited duration of two and one-half years, and it was designed to preserve the status quo to enable Congress to take legislative action concerning the potential national monument. Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478 (D.N.M. 1995).

Unlawful regulation not a taking. — A regulation not related to a proper purpose that does not deprive a property owner of all or substantially all beneficial use of property simply does not implicate an interest protected by the Takings Clause; thus, although a property owner may have a right to seek redress for an unlawful regulation, the method of redress is not a takings action. Estate of Sanchez v. County of Bernalillo, 1995-NMSC-058, 120 N.M. 395, 902 P.2d 550.

Intent of section. — This section indicates that it was intended to confer a remedy by inverse condemnation to a person whose property is damaged for public use. McClure v. Town of Mesilla, 1979-NMCA-112, 93 N.M. 447, 601 P.2d 80.

Inverse condemnation is not common-law tort based upon the negligence of a town; it is a statutory remedy. McClure v. Town of Mesilla, 1979-NMCA-112, 93 N.M. 447, 601 P.2d 80.

Suit permitted where private property taken and damaged. — This section is clear that suit is permitted by the landowner, when there has been not only a damaging of private property but a taking as well, if just compensation has not been paid, or a proper condemnation action either has not been instituted or prosecuted to final judgment. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.

Inverse condemnation, not trespass, proper action to maintain. — Corporation's sending its employees onto the owner's lands, drilling holes or wells in the latter's stream bed, laying a pipeline, all without seeking permission of the landowner, or undertaking to condemn, gave owner remedy inverse condemnation, not an action in trespass. Kaiser Steel Corp. v. W.S. Ranch Co., 1970-NMSC-043, 81 N.M. 414, 467 P.2d 986.

Trespass action proper only when parties mistaken about condemnation. — 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.

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.

Right to compensation enforceable through civil action. — Constitutional right of compensation for damaging private property by construction or improvement of state highway may be enforced by civil action against the party liable therefor. Summerford v. Board of Comm'rs, 1931-NMSC-014, 35 N.M. 374, 298 P. 410.

Redress of injury in law. — Property owners and tenants occupying premises are not entitled to injunctive relief against the enforcement of a city ordinance prohibiting parking of vehicles on certain streets, where they possessed a speedy, adequate and complete remedy at law for the redress of any injury their property may have suffered. Farnsworth v. City of Roswell, 1957-NMSC-053, 63 N.M. 195, 315 P.2d 839.

Inverse condemnation action would not lie if property was not acquired for public use. Brosseau v. N.M. State Hwy. Dep't, 1978-NMSC-098, 92 N.M. 328, 587 P.2d 1339.

Inverse condemnation requires damage to right of landowner. — For inverse condemnation to be based upon a "damage," a property owner must suffer some compensable injury that is not suffered by the public in general. Estate of Sanchez v. County of Bernalillo, 1995-NMSC-058, 120 N.M. 395, 902 P.2d 550.

Inverse condemnation requires that the condemnee's property be damaged; in this case, there has been no damage and no taking by the electric company since it has continued to use the city's rights-of-way under the terms and conditions of the parties' franchise agreement as it did prior to this controversy. City of Las Cruces v. El Paso Elec. Co., 904 F. Supp. 1238 (D.N.M. 1995).

Prospective purchaser entitled to bring action. — A prospective purchaser may maintain an action for damages for the taking of land for highway use by reason of his contract to purchase. Mesich v. Board of Cnty. Comm'rs, 1942-NMSC-054, 46 N.M. 412, 129 P.2d 974.

Grantees not entitled to bring action. — A public utility's entry to construct transmission lines did not entitle grantees to a right of recovery, where as of the time of the purchase, this section of the statute expressly provided that it was not applicable to any power or transmission line. Garver v. Public Serv. Co., 1966-NMSC-261, 77 N.M. 262, 421 P.2d 788.

Applicable to right of access. — A right of access is a property right, and may not be taken or damaged without the payment of compensation. Hill v. State Hwy. Comm'n, 1973-NMSC-114, 85 N.M. 689, 516 P.2d 199.

Effect of railroad's entry and possession of premises without landowner's complaint. — When appellant's predecessor did acquire a right in the premises before appellee railroad's entry thereon, and the railroad took possession of the land and used it for its purposes without complaint by the landowners, it acquired all possessory rights to the land, and appellants have a contingent reversionary interest, subject to appellee's qualified fee in the property, until abandonment or forfeiture has been determined. Timberlake v. Southern Pac. Co., 1969-NMSC-143, 80 N.M. 770, 461 P.2d 903.

No damages recoverable when condemnation abandoned. — Where the state highway department abandoned a condemnation proceeding, the damage that may have occurred was to the condemnees, and was only incidental. No provision is made for the recovery of such incidental damages. State ex rel. State Hwy. Dep't v. Yurcic, 1973-NMSC-059, 85 N.M. 220, 511 P.2d 546.

No damages recoverable for temporary taking of highway. — The state highway commission's (now state transportation commission's) construction of an interstate created a detour and interfered with appellees' right of access which damaged their business and caused them to travel additional distances for more than one year. This interference was not shown to be the result of unreasonable, unnecessary or arbitrary conduct of the state highway commission (now state transportation commission) so that the temporary interference with access was not compensable. Hill v. State Hwy. Comm'n, 1973-NMSC-114, 85 N.M. 689, 516 P.2d 199.

Where appellees' access to a highway was unchanged physically by construction, but owing to the use of the new Interstate 40 as the main highway to and from Albuquerque, the old highway on which plaintiff 's property is located was changed to a service road, plaintiff was not entitled to compensation as the abutting landowner has no vested right in the flow of traffic. Hill v. State Hwy. Comm'n, 1973-NMSC-114, 85 N.M. 689, 516 P.2d 199.

Counties liable for lands taken for highway. — Counties are liable under this section for damages to lands taken for highway purposes by them, or with their acquiescence. Wheeler v. Board of Cnty. Comm'rs, 1964-NMSC-081, 74 N.M. 165, 391 P.2d 664.

City's liability continues, although it receives federal aid. — Where a city receives federal aid for the construction of an underpass under a railroad passing through the city, upon condition that the underpass shall be constructed by the state highway commission (now state transportation commission), the underpass does not thereby become a state highway, and the city is liable for damages to adjoining property. Springer Transfer Co. v. City of Albuquerque, 1940-NMSC-039, 44 N.M. 407, 103 P.2d 129.

Objections to expense and inconvenience insufficient to enjoin taking. — In view of this section allowing compensation for property taken for public improvements, or for injury to property, such taking will not be enjoined where plaintiff 's only objection is that he will be put to considerable inconvenience and expense if the improvement is made. Hobbs v. Town of Hot Springs, 1940-NMSC-063, 44 N.M. 592, 106 P.2d 856.

Limitations of actions. — Suit for damages resulting from obstruction of flow and appropriation of waters of a creek was governed, not by the four-year statute of limitations, but by the ten-year statute, water rights being real property. N.M. Prods. Co. v. N.M. Power Co., 1937-NMSC-048, 42 N.M. 311, 77 P.2d 634.

Three-year statute of limitations applies to inverse condemnation proceedings. Buresh v. City of Las Cruces, 1969-NMSC-171, 81 N.M. 89, 463 P.2d 513.

Party cannot raise inverse condemnation theory for first time on appeal. — Where a party does not raise the issue of inverse condemnation at trial, it cannot raise that theory for the first time on appeal. Aragon & McCoy v. Albuquerque Nat'l Bank, 1983-NMSC-020, 99 N.M. 420, 659 P.2d 306.

Section applicable to water damaged property. — The provisions of this section are clear and unambiguous. Should property owners below hospital grounds have their property taken or damaged by water from hospital drainage without just compensation, the owner of such property could institute legal action to recover a judgment for the property taken or damaged. Property owners claiming to be adversely affected will have to show that additional waters have been cast on their lands, however, to recover. 1958 Op. Att'y Gen. No. 58-239.

Condemnation against entire right-of-way preferred when highway needs widening. — Where a right-of-way for a highway needs widening it would be unsafe in many cases to bring condemnation proceedings against merely that portion of the highway required for the increased width as the width already acquired by public use might be in doubt and there is no record title in the county or the state of the existing right-of-way, thus making it better practice to bring condemnation against the entire right-of-way, alleging the extent of the old right-of-way already claimed, and instructing the commissioners to base their assessment upon the additional strips required. 1952 Op. Att'y Gen. No. 52-5624.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Eminent Domain §§ 138, 139, 140, 152.

Negligence of governmental agent causing damage to private property as "taking," "damage," or "use," for public purposes in constitutional sense, 2 A.L.R.2d 677.

Liability of municipality or other governmental subdivision in connection with flood protection measures, 5 A.L.R.2d 57.

New or additional compensation for use by municipality or public of subsurface of street or highway for purposes other than sewers, pipes, conduits for wires, and the like, 11 A.L.R.2d 180.

Municipal regulation of billboards and outdoor advertising as taking property without compensation, 58 A.L.R.2d 1314.

Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866.

Compensable property right, restrictive covenant or right to enforcement thereof as, 4 A.L.R.3d 1137.

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

Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.

Inverse condemnation state court class actions, 49 A.L.R.4th 618.

Eminent domain: compensability of loss of visibility of owner's property, 7 A.L.R.5th 113.