2019 New Mexico Statutes
Chapter 73 - Special Districts
Article 17 - Conservancy Districts; General Provisions
Section 73-17-18 - Remedy for injury by a district.

In case any person or public corporation, within or without any district organized under this act, may be injuriously afected [affected] with respect to property rights in any manner whatsoever by any act performed by any official or agent of such district, or by the execution, maintenance or operation of the official plan, and in case no other method of relief is offered under this act, the remedy shall be as follows:

A. the person or public corporation seeking relief shall petition the court before which said district was organized for an appraisal of damages sufficient to compensate for such injuries;

B. the court shall thereupon direct the board of appraisers of the district to appraise said damages and injuries, and to make a report to the court on or before the time named in the order of the court;

C. upon the filing of such report, the court shall cause notice to be given to the petitioner and to the board of the district, of a hearing on said report. At the time of such hearing, the court shall consider said report of the appraisers, and may ratify said report or amend it as the court may deem equitable, or, may return it to the said appraisers and require them to prepare a new report;

D. upon the filing of an order of the court approving said report of the appraisers, with such modifications as it may have made, said order shall constitute a final adjudication of the matter, unless it shall be appealed from in the manner hereinafter provided, within twenty (20) days;

E. appeal from said order to a jury may be had as hereinbefore provided in case of condemnation proceedings, by the petitioners, by the board of the district or by any person or public corporation adversely affected by the report of the board of appraisers;

F. no damages shall be allowed under this section which would not otherwise be allowed in law; provided, however, that nothing in this section shall be construed to deprive any person or public corporation of the remedy of injunction in the case of prospective irreparable injury.

History: Laws 1927, ch. 45, § 904; C.S. 1929, § 30-904; 1941 Comp., § 77-3018; 1953 Comp., § 75-31-18.

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

Compiler's notes. — For the meaning of "this act", see the compiler's notes to 73-17-1 NMSA 1978.

Legislative intent. — Legislature intended that the statutory remedy for injury by conservancy districts should apply to actions in nature of condemnation proceedings for the taking of private property for public use. Zamora v. Middle Rio Grande Conservancy Dist., 1940-NMSC-030, 44 N.M. 364, 102 P.2d 673.

Reference of appeal provision. — Provision of this section for appeal to jury as in case of condemnation proceedings has reference to statutory provision for condemnation under general law, Section 73-14-42 NMSA 1978. Zamora v. Middle Rio Grande Conservancy Dist., 1940-NMSC-030, 44 N.M. 364, 102 P.2d 673.

Scope of damages. — Provision of Conservancy Act (Laws 1927, ch. 45), pertaining to appraisals of damages, has reference to damages to property in the sense employed in eminent domain proceedings. Zamora v. Middle Rio Grande Conservancy Dist., 1940-NMSC-030, 44 N.M. 364, 102 P.2d 673.

Duty of court to direct appraisal. — Under this section, upon plaintiffs' filing their petition, the court had a duty to direct the appraisers to appraise the damages and injuries to plaintiffs' properties. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678.

Expiration of appraisal board no defense. — Claim that the term of office of the board of appraisers of conservancy district had expired and that the district had no appraisers or board of appraisers was not a defense to property-owner's action for assessment and damages. Zamora v. Middle Rio Grande Conservancy Dist., 1940-NMSC-030, 44 N.M. 364, 102 P.2d 673.

Time for taking appeal under this section may not be extended. Albuquerque Gun Club v. Middle Rio Grande Conservancy Dist., 1937-NMSC-092, 42 N.M. 8, 74 P.2d 67.

Scope of Subsection D. — Subsection D applies to proceedings in eminent domain brought by defendant landowners, and is not applicable to proceedings initiated by plaintiff landowners under this section. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678.

Transformation of cause of action prohibited. — Defendant conservancy district, which was dissatisfied with damages awarded plaintiffs after appraisals were made, pursuant to this section, were entitled only to a trial on assessment of damages to plaintiffs' property and could not transform plaintiffs' petition and the appraisals made into an eminent domain proceeding. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678.

Compensation provisions not substitute for condemnation proceedings. — Provision of this section pertaining to ascertainment of the amount of compensation for lands taken and damaged to be arrived at by the board of appraisers is not a substitute for condemnation proceedings referred to in Section 73-14-42 NMSA 1978. Zamora v. Middle Rio Grande Conservancy Dist., 1940-NMSC-030, 44 N.M. 364, 102 P.2d 673.

Section 73-17-18 NMSA 1978 is not a substitute for condemnation proceedings referred to in Section 73-14-42 NMSA 1978. Under Section 73-17-18 NMSA 1978, the plaintiffs initiate their claims for damages with a petition, while under eminent domain proceedings the defendant initiates its claims for condemnation of plaintiffs' property. Wells v. Arch Hurley Conservancy Dist., 1976-NMCA-082, 89 N.M. 516, 554 P.2d 678.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability of irrigation district for damages, 69 A.L.R. 1231, 160 A.L.R. 1165.