A. In the following types of utility relocation ordered by the commission pursuant to Section 3 A [67-8-17A NMSA 1978] it shall either, as it elects, undertake the relocation work on behalf of the state, paying the cost of relocation, or reimburse the utility for the cost of relocation:

(1) relocations necessitated by improvements of public highways in the interstate system, including extensions thereof within urban areas; and

(2) relocations by complete removal and construction of facilities off the public highway.

The commission is authorized upon notice and opportunity for hearing to find and determine in relocations hereunder the cost of relocation, and the same shall, to the extent authorized herein, be borne by the state as other highway construction costs.

The commission is authorized to make rules and regulations with respect to the advancement and/or payment from time to time of funds by utilities to insure that the state shall never advance nor pay any costs which it is not authorized by law to pay, including rules and regulation [regulations] with respect to the proper determination of cost of relocation payable or reimbursable by the state, to aid the commission in carrying out the intention of this act [67-8-15 to 67-8-21 NMSA 1978]; and this provisions [provision] shall be cumulative of other authority possessed by the commission to promulgate rules and regulations.

B. Exceptions:

(1) the cost of relocation from which a utility would be otherwise relieved pursuant to Subparagraph A (1) above shall nevertheless be borne in full by the utility in any of the following cases, without reimbursement from the state:

(a) in case of a privately owned utility which is obligated, or to the extent it is obligated by valid, written contract with the state to make such relocation when called for by the state without cost to the latter;

(b) in case the utility line was initially installed, or for the distance to which it was installed, under a valid statute or regulation applicable thereto and providing that relocation should be effected by the owner thereof at the latter's expense;

(c) in case of relocation of a utility facility not municipally owned for which local municipal or county government authorization, if required by law, had not been granted;

(d) in case the utility shall after effectiveness of this act agree for a valid consideration to effect the relocation at its expense under the terms of such agreement; or

(e) in case of any required relocation with respect to which the commission shall determine that the utility failed without just cause to make or suffer such relocation in the reasonable manner and time as prescribed by the commission.

C. The commission shall make no reimbursement payment to a utility to which it is otherwise entitled pursuant to Subsection A above unless and until the commission is satisfied that relocation has been fully completed in accordance with the commission's requirements; and the commission shall in no event make reimbursement of any cost otherwise due under Subsection A above which it finds, after notice and hearing, to have been unnecessarily, negligently or improvidently incurred by the utility.

D. To insure that the state shall never pay any cost of relocation necessitated by improvement in the interstate system for which it cannot receive proportionate reimbursement under the 1956 Federal Aid Highway Act, as amended, if upon final determination by the United States bureau of public roads of the cost of relocation of a utility relocation necessitated by the construction or improvement of a public highway in the interstate system, the bureau of public roads shall finally determine the cost of relocation to be not reimbursable to the state from federal funds or to be less than the amount reimbursed to the utility by the commission, the utility so reimbursed shall repay to the commission the difference between the amount so reimbursed to the utility and the cost of relocation finally determined by the bureau of public roads.

History: 1953 Comp., § 55-7-26, enacted by Laws 1959, ch. 310, § 4.

Bracketed material. — The bracketed material in Subsection A was inserted by the compiler for purposes of clarity; it was not enacted by the legislature and is not a part of the law.

"United States bureau of public roads". — The former United States bureau of public roads, referred to in Subsection D, became the federal highway administration pursuant to 49 U.S.C. § 104. However, that section was repealed in 1994 as part of the revision of Title 49. The reference should now be to the department of transportation.

1956 Federal Aid Highway Act. — The Federal Aid Highway Act of 1956, referred to in Subsection D, is codified as 23 U.S.C. § 101 et seq.

Alternative writ of mandamus is made absolute in proceeding by city to require state highway commission (now state transportation commission) to reimburse it for relocations of water and sewer lines, made necessary by reason of construction of federal aid highways on the interstate and primary system. State ex rel. City of Albuquerque v. Lavender, 1961-NMSC-096, 69 N.M. 220, 365 P.2d 652.

Constitutionality of provisions. — The reimbursable provisions of Laws 1959, ch. 310 (67-8-15 to 67-8-21 NMSA 1978), and particularly ch. 310, § 4 (67-8-18 NMSA 1978), are unconstitutional. 1960 Op. Att'y Gen. No. 60-59. State ex rel. City of Albuquerque v. Lavender, 1961-NMSC-096, 69 N.M. 220, 365 P.2d 652.

Scope of reimbursable relocations. — All relocations necessitated by improvements of public highways in the interstate system, as defined by the 1956 Federal Aid Highway Act, must be reimbursed by the state of New Mexico provided that the relocations do not fall within any of the exceptions listed under 67-8-18B NMSA 1978. 1967 Op. Att'y Gen. No. 67-56.

Section refers only to relocations necessitated by improvements of public highways in the interstate system as defined in the 1956 Federal Aid Highway Act, as amended. Therefore, relocations of utilities necessitated by improvements of public highways in the federal aid primary system or the federal aid secondary system, as defined by the 1956 Federal Aid Highway Act, are not proper subjects for reimbursement. 1967 Op. Att'y Gen. No. 67-56.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets and Bridges § 278.

Constitutionality of state legislation to reimburse public utilities for cost of relocating their facilities because of highway construction, conditioned upon federal reimbursement of the state under the terms of Federal Aid Highway Act, 75 A.L.R.2d 419.

39A C.J.S. Highways § 27.