In addition to the powers now conferred upon it by law, the state transportation commission:

A. may declare abandoned and close to public traffic all grade crossings of railroads by state highways in cases where grade separations or other adequate crossings are substituted therefor or where such grade crossings become unnecessary to the public convenience by reason of changes in highway locations;

B. may offer and, upon compliance with the conditions of such offer, pay rewards for information leading to the arrest and conviction of offenders in cases of theft, defacement or destruction of markers or highway signs, lights or other warning devices placed upon or along highways of this state under the supervision of the state transportation commission and for information leading to the arrest and conviction of offenders or for the return of property in case of theft or unlawful damaging of property under the control of the commission. All such rewards when paid shall be paid from the state road fund upon voucher drawn by the secretary or other authorized officer or agent of the department;

C. shall prescribe by rule the conditions under which pipelines, telephone, telegraph and electric transmission lines and ditches may be placed along, across, over or under public highways in this state and shall forcibly remove or cause to be removed pipelines, telephone, telegraph or electric transmission lines or ditches that may be placed along, across, over or under such public highways in violation of such rules and regulations;

D. shall employ an attorney to assist and advise the state transportation commission and the department in the discharge of their duties and to appear and represent the interests of the commission or department in any case before any court or tribunal in which the official duties, powers, rights or privileges of the commission or department may be involved or affected and to pay that attorney the reasonable value of the attorney's services out of the state road fund;

E. shall bring and maintain in the name of the state actions and proceedings deemed necessary by the state transportation commission for the condemnation of rights of way for public highways or for the removal or condemnation of buildings or other improvements that encroach in whole or part upon the rights of way of public highways or for the condemnation of gravel pits or other deposits of materials or supplies suitable for the construction of public highways. The attorney general of New Mexico shall appear in and prosecute all such cases on behalf of the state upon request of the state transportation commission. All such proceedings shall be conducted in the same manner as other cases for the condemnation of real property. The damages assessed in proceedings brought under the provisions of this section shall be paid out of the state road fund from money furnished for that purpose by cooperative agreement between the state, federal government and the county within which the condemned property is situate or any such governmental bodies or out of money furnished for the construction of the highway in connection with which the condemnation is had, by the county in which the condemned property is situate; provided, however, that if no such money is available, the damages shall be advanced on behalf of said counties out of their money in the state road fund and the state treasurer shall thereafter reimburse the state road fund for the money advanced out of the next installment of money from motor vehicle license fees accruing to the road fund of the county for which such funds were so advanced;

F. shall designate in its discretion one of its employees as acting secretary to act at all times when the secretary is absent from the state capital. The acting secretary, when designated, has the right and is hereby given authority at all times when the secretary is absent from the state capital to sign all federal project statements, federal project agreements and federal vouchers with the same force and effect as if signed by the secretary in person, and the certificate of the acting secretary attached to any federal project statement, federal project agreement or federal voucher to the effect that the secretary was absent from the state capital at the time that the same was so signed by the acting secretary shall be conclusive evidence of the truth of such fact. The acting secretary may also be vested by the state transportation commission with power and authority to act for the secretary in such other matters as the state transportation commission may determine;

G. subject to the provisions of Subsection H of this section, may conduct, permit or authorize commercial enterprises or activities on department- or commission-owned land or land leased to or from the department for the purpose of providing goods and services to the users of the property or facilities on the land, including commercial enterprises or activities, other than commercial enterprises or activities on a controlled-access facility conducted, permitted or authorized pursuant to Section 67-11-9 NMSA 1978. In furtherance of these commercial enterprises or activities, the commission may:

(1) authorize the lease of department- or commission-owned land as it deems necessary, in which case consideration for the lease shall be payments in cash or cash equivalent that shall be deposited into the state road fund; or

(2) authorize the sale or exchange or lease with in-lieu value consideration of department- or commission-owned land; provided that the sale or exchange or lease with in-lieu value shall be subject to the ratification and approval by joint resolution of the state legislature prior to the sale or exchange or lease with in-lieu value becoming effective; and

H. for the purposes of Subsection G of this section shall:

(1) adopt rules necessary to carry out the provisions of Subsection G of this section;

(2) prior to initiating any action to conduct, permit or authorize commercial enterprises or activities, adopt a rule providing a procedure to involve residents of the municipality or county in which the commercial enterprises or activities are proposed to occur in the department's planning and decision-making process for the sole purpose of advising the commission and department on the feasibility and suitability of the proposed commercial enterprises or activities;

(3) comply with the Procurement Code in the acquisition process whenever commercial enterprises or activities result in the commission or department acquiring construction, services or tangible personal property, as those terms are defined in the Procurement Code;

(4) if the commercial enterprises or activities are to be developed or operated by a private entity, direct that private entity to:

(a) create its plans to be not necessarily in compliance but generally compatible with local zoning and land use policies, including affordable housing and historic and architectural standards, if any, and, to the extent the private entity will obtain water or other services from a local authority, negotiate an agreement between relevant parties for those services, the terms and conditions of which shall be no more stringent than the local authority's then current laws, rules and policies; and

(b) submit its plans to the local zoning and land use authority for comment. The local authority shall communicate its recommendations and comments in writing to the department and private entity within thirty days of receiving the plans. The department, commission and private entity shall take no action on the project in reliance on those plans until they have received the local authority's recommendations and comments or until the thirty-day comment period has expired, whichever comes first; provided that the local authority's approval is not required under this section, and this section does not delegate to the local authority power that it does not otherwise have; and

(5) not use the power of eminent domain to acquire land to be developed or operated by a private entity.

History: Laws 1929, ch. 110, § 1; C.S. 1929, § 64-303; Laws 1933, ch. 21, § 8; 1941 Comp., § 58-207; 1953 Comp., § 55-2-7; 2003, ch. 142, § 34; 2005, ch. 122, § 1 ; 2006, ch. 34, § 3.

Cross references. — For powers of commission not derogated by Scenic Highway Zoning Act, see 67-13-16 NMSA 1978.

For eminent domain, see 42A-1-1 NMSA 1978 et seq.

For forms for application for use of highways for oil and gas pipelines, see 70-3-9 NMSA 1978.

The 2006 amendment, effective July 1, 2006, provided in Subsection G that subject to the provisions of Subsection H, the commission may conduct or authorize commercial enterprises or activities on department- or commission-owned land other than commercial enterprises or activities on a controlled-access facility conducted, permitted or authorized pursuant to Section 67-11-9 NMSA 1978; added Paragraph (2) of Subsection G to provide that the commission may authorize the sale, exchange or lease with in-lieu value consideration of department- or commission-owned land if the transaction is ratified by the legislature; added Paragraphs (2) through (5) of Subsection H to require the commission to involve the residents of the municipality or county in which the commercial enterprise will occur, comply with the Procurement Code in purchasing goods or services for the commercial enterprise, direct a private entity that will develop or operate a commercial enterprise to develop plans compatible with local zoning and land use policies, to negotiate for water and other local governmental services and to submit plans to local zoning and land use authorities for comment, and prohibit the use of the power of eminent domain to acquire property to be developed or operated by a private entity.

The 2005 amendment, effective June 17, 2005, added Subsection G to permit commercial enterprises or activities on property of the department of transportation for the purpose of providing goods and services to users of the property, to permit the sale, exchange or lease of department property to further the activities and to provide that proceeds from the activities be deposited into the state road fund.

The 2003 amendment, effective July 1, 2003, added the section heading; substituted "state transportation commission" for "state highway commission"; and substituted "secretary" for "state highway engineer".

Compiler's notes. — Laws 1933, ch. 21, § 2, repealed Subsection D of this section. But see N.M. Const., art. IV, § 18, which provides that no law be revised, amended or extended by reference to title only and that each section as revised, amended or extended be set out in full.

Use of highway easements for utility services is within general purpose for which highways are designed, in addition to their use for transportation of movable vehicles. State ex rel. City of Albuquerque v. Lavender, 1961-NMSC-096, 69 N.M. 220, 365 P.2d 652.

Commission is not subject to suit except by consent of the state, since it is a state agency not vested with corporate powers. Dougherty v. Vidal, 1933-NMSC-034, 37 N.M. 256, 21 P.2d 90 (decided under former law).

Counterclaim of municipality arising out of same transaction or occurrence that is the subject matter of main action brought by state is a suit against the state which is immune; however, damages claimed by municipality can be urged by way of defense to recoup. State ex rel. State Highway Comm'n v. Town of Grants, 1961-NMSC-133, 69 N.M. 145, 364 P.2d 853.

Control of public highways within municipality. — If exclusive control of all streets within the city limits was given to the city under 3-49-1 NMSA 1978, it was revoked by this section with respect to public highways located within the limits of the municipality. State ex rel. State Highway Comm'n v. Ford, 1964-NMSC-037, 74 N.M. 18, 389 P.2d 865.

City not indispensable party. — When an action concerns encroachments upon the state highway system within a city, the state has been given express jurisdiction, and the city is not an indispensable party. State ex rel. State Highway Comm'n v. Ford, 1964-NMSC-037, 74 N.M. 18, 389 P.2d 865.

Removal of encroachments from right of way. — Petition by commission for injunctive relief to compel the removal of encroachments from a highway right of way, alleging a dedication of city street and that such street is a part of the state highway system, stated a cause of action under the provisions of 67-3-12 NMSA 1978. State ex rel. State Highway Comm'n v. Ford, 1964-NMSC-037, 74 N.M. 18, 389 P.2d 865.

Relocation of sewer and water lines by municipality. — A municipality owes a duty to relocate its municipally owned sewer and water lines which are in a public highway at its own expense when it is necessary to provide a safe and adequate highway. State ex rel. State Highway Comm'n v. Town of Grants, 1960-NMSC-004, 66 N.M. 355, 348 P.2d 274, rev'd in part, 1961-NMSC-133, 69 N.M. 145, 364 P.2d 853.

Allowance of pipeline on highway easement. — Construction of private company's pipeline underneath a highway, built on an easement granted by a landholder for the highway as allowed by the state highway department as easement-holder under Subsection C, represents a permissible use to be made of a public highway easement and does not constitute an additional burden on the servient estate owned by the landowner. Amerada Hess Corp. v. Adee, 1987-NMCA-117, 106 N.M. 422, 744 P.2d 550.

Off-street parking. — While commission may acquire lands and build and maintain state highways within municipal boundaries, it is not authorized to finance, construct or maintain off-street parking facilities within such boundaries because these are not part of the state highway system. 1944 Op. Att'y Gen. No. 44-4519.

Removal of public utility poles and lines. — When creation of highway for public use results in removal of poles and lines of a public utility, no obligation falls on the highway department to reimburse the utility. 1949 Op. Att'y Gen. No. 49-5222.

Erection of private telephone line within right of way. — Neither a board of county commissioners nor the commission could consent to erection of a private telephone line within the right of way of a county road. 1954 Op. Att'y Gen. No. 54-5884.

Granting of easement over state highway by county commissioners. — County commissioners have no right to grant any easement to a public utility over a state highway, the right of way of which came under the control of the commission after 1917. 1973 Op. Att'y Gen. No. 73-26; 1933 Op. Att'y Gen. No. 33-681.

Declaratory judgment proper for sand and gravel removal cost. — The commission can properly bring an action for declaratory judgment to determine the amount to be paid for sand and gravel removed for public highway purposes. The determination of price is an actual controversy as contemplated by the declaratory judgment law, and declaratory judgment is a proper means of resolving the questions. 1961 Op. Att'y Gen. No. 61-12.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets and Bridges §§ 209, 210.

Liability for injury on highway or bridge at town, municipal or county line, 8 A.L.R. 1274.

Power to accept and administer trust for repairing and improving highway, 10 A.L.R. 1383.

Duty to make highway safe for children, by providing proper barriers, 36 A.L.R. 309.

Mandamus to compel improvement or repair of highway as affected by its abandonment, 46 A.L.R. 266.

Duty and liability as to conditions beyond limits of highway which affect safety or comfort of travel, 53 A.L.R. 764.

Personal liability of public official for personal injury on highway, 57 A.L.R. 1037.

Personal liability of highway officers for negligence of subordinates or employees, 61 A.L.R. 300.

Duty to blockade abandoned highway, 71 A.L.R. 1207.

Duty toward travelers as regards condition of street or highway left as result of accident, 81 A.L.R. 1004.

Power of highway officers with respect to billboards or other conditions on adjoining property which are deemed dangerous to travel or offensive aesthetically to travelers, 81 A.L.R. 1547.

Right of owner or occupant of property to damages for obstruction of, or interference with, access incident to building operations on other private property, 86 A.L.R. 101.

Liability for injury due to improper plan for, or defect in, original construction of street or highway, 90 A.L.R. 1502.

Liability for injury or damage by slide or fall of object from embankment at side of highway, 107 A.L.R. 596.

Regulation of use of highways by private motor vehicle for hire, 109 A.L.R. 550, 175 A.L.R. 1333.

Prohibition to control administrative officers in matters relating to highways, 115 A.L.R. 3, 159 A.L.R. 627.

Liability of municipality or other governmental body to pedestrian for injury in closed or partially closed street during construction or repairs, 119 A.L.R. 841.

Failure of municipality properly to maintain traffic signal devices as ground for liability for damage to property or person, 151 A.L.R. 1404.

Municipal liability for injury on ice formed by flushing or sprinkling streets, as affected by governmental or private nature of corporation, 156 A.L.R. 701.

Alteration or relocation of street or highway as discontinuance of parts not included, 158 A.L.R. 543.

Right to recover for injuries consequent upon defect on the highway as affected by failure to comply with regulation as to registration of automobile or motorcycle or licensing of operator, 163 A.L.R. 1375.

Duty as regards barriers for protection of automobile travel, 173 A.L.R. 626.

Attracting people in such numbers as to obstruct access to the neighboring premises, is nuisance, 2 A.L.R.2d 437.

Injury to traveler from collision with privately owned pole standing within boundaries of highway, 3 A.L.R.2d 6.

Liability of municipality for damage caused by fall of tree or limb, 14 A.L.R.2d 186.

Duty of highway construction contractor to provide temporary way or detour around obstruction, 29 A.L.R.2d 876.

Liability of state, municipality or public agency for vehicle accident occurring because of accumulation of water on street or highway, 61 A.L.R.2d 425.

Liability, in negligence action, of state highway or turnpike authority, 62 A.L.R.2d 1222.

Regulations as to adjustment or removal of wires of public service corporation to permit moving buildings, 83 A.L.R.2d 464.

Authorization, prohibition, regulation by municipality of the sale of merchandise on streets or highways, or their use for such purpose, 14 A.L.R.3d 896.

Damaging highway or bridge by nature or weight of vehicles or loads transported over it, 53 A.L.R.3d 1035, 31 A.L.R.5th 171.

39A C.J.S. Highways § 157.