2018 New Mexico Statutes
Chapter 3 - Municipalities
Article 42 - Franchises to Public Utilities
Section 3-42-2 - New municipality required to grant franchise when right-of-way granted by county commissioners.
A. If previous to the incorporation of a municipality, the board of county commissioners has granted to any person right-of-way over, upon, in and about the streets of the municipality for the erection, construction, maintenance or operation of a public utility, and such person has erected, constructed, or in good faith commenced the erection or construction of such a utility, the governing body shall, without a vote by the electorate:
(1) authorize the completion of the system;
(2) authorize the continued or subsequent operation and maintenance of the system;
(3) recognize the rights acquired by the person erecting or constructing such a system; and
(4) grant such a person a franchise for the maximum term of years allowed by law upon such terms as are fair, just and equitable to all parties concerned.
B. Pending the granting of the franchise, no person shall interfere with the free exercise and enjoyment of the rights acquired by the person erecting or constructing a public utility by the right-of-way granted by the board of county commissioners.
History: 1953 Comp., § 14-43-2, enacted by Laws 1965, ch. 300.
Recognition of franchise not required. — A village was not compelled to recognize a franchise granted by the county before incorporation of the village when statutory conditions had not been met. Village of Hobbs v. Mann, 1935-NMSC-002, 39 N.M. 76, 39 P.2d 1025.
Operation of existing plant. — When a franchise was to be granted to maintain and operate an existing plant, no referendum was required. Asplund v. City of Santa Fe, 1926-NMSC-002, 31 N.M. 291, 244 P. 1067.
Extent of construction required. — This section does not require actual digging in the streets of the annexed area. All that is required is that the utility commence construction in good faith so as to provide utility service for the area. City of Las Cruces v. Rio Grande Gas Co., 1967-NMSC-190, 78 N.M. 350, 431 P.2d 492.
Telephone companies. — Telephone companies were included in language of laws authorizing municipalities to construct or contract for construction of water, gas and electric works and a franchise granted by a county board before incorporation of a village was adequate authority for occupying streets of the village and doing business until such time as the village itself offered a fair and equitable franchise for a maximum number of years and until a reasonable time had passed in which the proposed franchise could be considered by the company involved. Village of Ruidoso v. Ruidoso Tel. Co., 1948-NMSC-067, 52 N.M. 415, 200 P.2d 713.
New conditions imposed on franchisee. — Statute would not require telephone company operating under 99-year franchise granted by county commissioners in 1905 to accept from a subsequently incorporated municipality a new franchise which altered or impaired the former contract or franchise granted in 1905. Mountain States Tel. & Tel. Co. v. Town of Belen, 1952-NMSC-053, 56 N.M. 415, 244 P.2d 1112.
Gas companies. — If gas company had erected, constructed or, in good faith, commenced the erection or construction of a natural gas utility system within area annexed by city prior to the annexation, then city was required to recognize gas company's right to use the streets, alleys and public ways of the annexed area in providing natural gas utility service to that area. City of Las Cruces v. Rio Grande Gas Co., 1967-NMSC-190, 78 N.M. 350, 431 P.2d 492.
