A. Property may also be condemned by the state, any county, municipality or school district for the public use of the state, county, municipality or school district for:

(1) public buildings and grounds;

(2) canals, aqueducts, reservoirs, tunnels, flumes, ditches, conduits for conducting or storing water for drainage, the raising of banks of streams and the removing of obstructions;

(3) roads, streets, alleys and thoroughfares;

(4) public parks and playgrounds;

(5) ferries, bridges, electric railroads or other thoroughfares or passways for vehicles;

(6) canals, ditches, flumes, aqueducts and conduits for irrigation;

(7) electric lines;

(8) electric utility plants, properties and facilities consistent with the authority granted in Chapter 3, Article 24 NMSA 1978;

(9) the production of sand, gravel, caliche and rock used or needed for building, surfacing or maintaining streets, alleys, highways or other public grounds or thoroughfares; and

(10) public airports or landing fields incident to the operation of aircraft.

B. No land shall be condemned for the production of sand, gravel, caliche or rock that is in the possession or ownership of a person, firm or corporation engaged at the time the proceeding is brought in the actual production of such material from such land sought to be condemned. Nor shall any land be condemned for municipal purposes that may be shown by the owner or lessee to have a content of precious metal sufficient to produce the mineral in paying quantities.

C. Unless the petition to condemn specifically provides for a transfer of less than the fee, all real property acquired pursuant to this section shall be acquired and held in fee simple absolute.

History: Laws 1981, ch. 125, § 33; 1997, ch. 228, § 3.

Cross references. — For eminent domain by state institutions, see 42A-3-2 NMSA 1978.

For condemnation of waterway for street improvements, see 42A-3-3 NMSA 1978.

For general powers of municipalities, see 3-18-1 NMSA 1978.

For power of eminent domain by municipality, see 3-18-10 NMSA 1978.

For municipal housing, see 3-45-1 NMSA 1978.

For drainage for counties, see 72-4-1 NMSA 1978.

For condemnation by conservancy districts, see 73-14-42 NMSA 1978.

For conservancy districts obtaining possession of land during pendency of condemnation proceeding, see 73-15-10 NMSA 1978.

The 1997 amendment, effective April 11, 1997, added Paragraph A(8) and redesignated the remaining paragraphs accordingly.

Section not authority for condemnation of existing utility. — Although subsection A(7) permits condemnation for "electric lines", since the word "property" as used in this section appears to mean only real property and not existing lines, poles, etc., this section is not statutory authority for a municipality to condemn an existing public electric utility. City of Las Cruces v. El Paso Elec. Co., 904 F. Supp. 1238 (D.N.M. 1995).

In condemnation proceeding, description of property must conform to statutory requirement. City of Santa Fe v. Lamy, 1930-NMSC-026, 34 N.M. 583, 286 P. 422.

State transportation commission must pay for use of park lands. — The state highway commission (now state transportation commission) is not authorized to acquire either private property, or public property held in a proprietary capacity other than by purchase or condemnation, and must pay for park land it uses for highway purposes. State ex rel. State Hwy. Comm'n v. City of Albuquerque, 1960-NMSC-110, 67 N.M. 383, 355 P.2d 925.

City may condemn realty for water-works system. — A city has the power of eminent domain for the purpose of constructing a water-works system situated more than two miles from the city limits. City of Raton v. Raton Ice Co., 1920-NMSC-060, 26 N.M. 300, 191 P. 516.

No condemnation for acequias. — No express power is conferred upon a city to condemn property already devoted to a public use in either of these sections for any purpose, and the legislature did not intend by implication to confer power upon cities to condemn acequias used to conduct water for irrigation purposes. City of Albuquerque v. Garcia, 1913-NMSC-006, 17 N.M. 445, 130 P. 118.

Error to appraise property, when caliche present, by average value. — This statute does not prevent the condemnation, for road-building purposes, of rock, sand, gravel and caliche, since none of them are metals, but as caliche has value, when processed, as a stock food, the proprietor should be given opportunity to prove special value, and it is error to appraise the property by its average value alone. Board of Cnty. Comm'rs v. Good, 1940-NMSC-056, 44 N.M. 495, 105 P.2d 470.

United States joined as defendant when Indian lands sought for acquisition. — The United States must be joined as a defendant when Pueblo Indian lands are sought for acquisition, and the United States district court is a proper forum and has the jurisdiction to try and determine the respective rights of the petitioner, the state highway commission (now state transportation commission), and the defendants, the United States and the Pueblo of Laguna. N.M. ex rel. State Hwy. Comm'n v. United States, 148 F. Supp. 508 (D.N.M. 1957).

No taking of land already devoted to equivalent public purpose. — Generally, the authority to condemn property for public use or convenience does not, by necessary implication, provide for the taking of land already devoted to equivalent public purposes. 1957 Op. Att'y Gen. No. 57-329.

Exercise of power by bringing proceedings against state-held property. — The power of eminent domain may well be exercised by the bringing of condemnation proceedings against property held by the state under tax deeds, naming as parties defendant those persons having the right of redemption or repurchase. 1958 Op. Att'y Gen. No. 58-57.

County commission may condemn real property to build courthouse on it. 1967 Op. Att'y Gen. No. 67-61.

Sanitation association lacks power to condemn, when functioning as utility. — A mutual domestic water and/or sewage works association, as organized under the Sanitary Projects Act, 3-29-1 to 3-29-20 NMSA 1978, does not have the power of eminent domain when the association functions as a utility. 1967 Op. Att'y Gen. No. 67-50.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Eminent Domain §§ 41, 68, 129; 27 Am. Jur. 2d Eminent Domain §§ 393, 402, 668 et seq., 931 et seq.

State power of eminent domain over property of United States, 4 A.L.R. 548.

Right of public body to compensation where property held by it is taken for another public purpose, 56 A.L.R. 365.

Validity, construction, and effect of statutes providing for urban redevelopment by private enterprise, 44 A.L.R.2d 1414.

Necessity of condemnation where private rights are affected by regulation of bathing, swimming, boating, fishing, or the like, to protect public water supply, 56 A.L.R.2d 790.

Compensation or damages for condemning a public utility plant, 68 A.L.R.2d 392, 35 A.L.R.4th 1263.

Public school, amount of property which may be condemned for, 71 A.L.R.2d 1071.

Rights and liabilities with respect to natural gas reduced to possession and subsequently stored in natural reservoir, 94 A.L.R.2d 543.

Power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property, 40 A.L.R.3d 143.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

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

Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.

29A C.J.S. Eminent Domain §§ 51, 110, 204, 418.