A. The governing body of any municipality may, when it is for the best interest of such municipality for the improvement, extension or widening of any street, alley or avenue in such municipality to do away with any ditch, canal or acequia lying within, upon or adjacent to any such street, alley or avenue or contemplated street, alley or avenue or within, upon, under or adjacent to any area necessary for the extension, widening or improvement of such alley, street or avenue, proceed with the condemnation of such ditch, canal or acequia as provided in the Eminent Domain Code [42A-1-1 to 42A-1-33 NMSA 1978].

B. A sufficient defense to any condemnation action as provided in Subsection A of this section shall be a written protest signed by at least fifty percent of the persons, associations or corporations having a right to take water from the ditch, canal or acequia at or below the point at which it is to be condemned and whose rights are or may be affected by the condemnation action.

C. The protest provided for pursuant to Subsection B of this section shall be presented to the court at the time fixed for the appointment of appraisers pursuant to the Eminent Domain Code. If, after a hearing, it appears that at least fifty percent of the persons having a right to take water from the ditch, canal or acequia at or below the point at which it is to be condemned, and whose rights are or may be affected by the condemnation action, have in good faith signed such protest, the condemnation petition shall be dismissed.

History: 1978 Comp., § 42A-3-3, enacted by Laws 1981, ch. 125, § 35.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Effect of condemnation on existing sales contract. — Where property the subject of a sales contract was to be subsequently condemned by a city through the exercise of eminent domain, purchasers were not able to rescind the contract to convey real estate nor recover any amounts paid. Sapir v. Ewing, 1958-NMSC-004, 63 N.M. 401, 320 P.2d 751.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Eminent Domain §§ 30, 37, 61, 72, 73, 83, 84, 95, 112, 136, 157, 158, 205 et seq.; 27 Am. Jur. 2d Eminent Domain §§ 388 et seq., 497 et seq., 872, 932, 936.

29A C.J.S. Eminent Domain §§ 30, 31, 41, 42, 52 to 56, 87, 89, 104, 200, 202, 207, 222, 232, 233, 245 to 247, 264 to 286.