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New Mexico Eminent Domain Laws

New Mexico Eminent Domain Laws can be found in Chapter 42 A of Statutes of New Mexico.  Pursuant to N.M. Stat. Ann. § 42A-1-3, at any time before or after commencement of a condemnation action, the parties may agree to and carry out a compromise or settlement as to any matter, including all or any part of the compensation or other relief.

N.M. Stat. Ann. § 42A-1-4 provides that a condemnor should make reasonable and diligent efforts to acquire property by negotiation. Unless prohibited by federal law, if the condemnor or condemnee have prepared appraisals for the property, s/he should make such appraisals available to the other party during the negotiation period.

If the parties are unable to negotiate a settlement, the condemnee may, within twenty-five days after written notice by the condemnor of its intent to file a condemnation action in district court, give written notice to the condemnor requesting an appraisal to determine the amount that would constitute just compensation for the taking of the condemnee’s property[i].

Pursuant to N.M. Stat. Ann. § 42A-1-6, an action to condemn property may not be maintained over timely objection by the condemnee unless the condemnor made a good faith effort to acquire the property by purchase before commencing the action.

N.M. Stat. Ann. § 42A-1-8 provides that a condemnor and its agents and employees may enter upon the real property and make surveys, examinations, photographs, tests, soundings, borings and samplings, or engage in other activities for the purpose of appraising the property or determining whether it is suitable and within the power of the condemnor to take for public use.

After notice by the condemnor to the condemnee, the court should make its order permitting and describing the purpose of the entry and setting forth a description of the property and the nature and scope of activities the court determines are reasonably necessary to accomplish the purposes of the proposed taking and authorized to be made upon the property[ii].

An order permitting entry should include a determination by the court of the probable amount that will fairly compensate the condemnee and any other person in actual physical occupancy of the property for damages, for physical injury to the property and for substantial interference with possession or use of the property found likely to be caused by the entry and activities authorized by the order[iii].

Additionally, the order may require the condemnor to deposit with the court before entry that amount or a surety bond in that amount from a surety acceptable to the court.

If a deposit or surety bond is required or the amount required to be deposited or the amount of the surety bond is increased by an order of modification, the court should specify the time within which the required amount must be deposited or the surety bond increased[iv].

The court should also direct that any further entry or specified activities or studies under the order as modified be stayed until the required deposit or increase in the surety bond has been made.

A condemnor is liable to the condemnee and to the person in actual physical occupancy of the property for physical injury to and for substantial interference with possession or use of property caused by its entry and activities upon the property[v].  In an action or other proceeding for recovery of damages, the claimant is allowed his/her reasonable costs. In addition, the court may award the claimant his/her litigation expenses.

N.M. Stat. Ann. § 42A-1-17 provides that if a property is sought to be appropriated for public use by a person authorized to acquire property pursuant to the laws of New Mexico, and the condemnor and the condemnee cannot agree to the transfer of the property or interest in question, the condemnor may file a petition with the court of the county where the property or any part thereof lies.  However, the petition should not include any property which is not contiguous to property to be condemned in the county of the court’s jurisdiction.

If appraisers have not been appointed and if the court is satisfied that proper notice of the petition has been given, it should appoint up to three disinterested commissioners who are residents of the county in which the property or a part thereof is situated and who are familiar with the property values in the area of the proposed taking[vi].

The commissioners should assess the damages which the condemnees may severally sustain by reason of the proposed taking and make a report to the clerk of the court within thirty days setting forth the amount of the damages.

Upon the filing of the report of the commissioners, the clerk of the court should notify the attorneys of record for all of the parties to such proceeding who have entered appearances or, if not represented by attorney, all parties who have entered appearances at their respective post-office addresses of record, of the filing of the report[vii].

Within twenty days after the filing of the petition if an appraisal has been prepared or after the final confirmation of the report of the commissioners, a party may demand trial of any issues remaining in the cause.  The cause should be tried de novo, and unless waived, the parties should be entitled to a trial by jury[viii].

N.M. Stat. Ann. § 42A-1-24 provides that whenever just compensation is ascertained and awarded in such proceedings and established by judgment, the judgment should include as a part of the just compensation awarded interest at the rate of ten percent a year upon the unpaid portion of the compensation awarded from the date the petition is filed to the date of payment or the date when the proceedings are finally abandoned.

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[ix].

Pursuant to N.M. Stat. Ann. § 42A-1-33, when an easement has been taken by eminent domain for public use and the public use is subsequently abandoned, the easement is extinguished and the possession of the property reverts to the owner or his/her successor in interest of the fee free from any rights in the condemnor.

[i] N.M. Stat. Ann. § 42A-1-5.

[ii] N.M. Stat. Ann. § 42A-1-9.

[iii] N.M. Stat. Ann. § 42A-1-10.

[iv] N.M. Stat. Ann. § 42A-1-11.

[v] N.M. Stat. Ann. § 42A-1-12.

[vi] N.M. Stat. Ann. § 42A-1-19.

[vii] N.M. Stat. Ann. § 42A-1-20.

[viii] N.M. Stat. Ann. § 42A-1-21.

[ix] N.M. Stat. Ann. § 42A-1-29.

Inside New Mexico Eminent Domain Laws