2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 7 - Drainage Districts; Construction, Operation and Maintenance
Section 73-7-1 - [Commissioners; engineers; surveys; plans; report.]

As soon as may be after the confirmation of the said preliminary report, or within such time as the court may direct, said commissioners shall employ a competent drainage engineer and proceed to have all necessary levels taken and surveys made, and shall lay out said proposed work, make a map thereof and plans, profiles and other specifications thereof and report in writing to the court.

A. Whether the starting point, routes and termini of proposed work and the proposed location thereof, as in the petition contained, are in all respects proper and feasible, and, if not, shall report such as are most proper and feasible.

B. If it be found necessary to change the boundaries of said proposed district, as by them previously fixed, they shall report said proposed change, and, if possible, shall report the names, residence and post-office addresses of the owner or owners of all lands affected by said change in boundaries, but no such change in boundaries shall be made as to deprive the court of jurisdiction; provided, however, that if the owners of lands adjacent to the district petition to have their lands brought in to the district such may be considered the same as original petitioners in making changes of boundaries.

C. What lands within the district, as by them reported will be injured by the proposed work, if any, and they shall therein award to each tract, lot, easement of interest by whomsoever held, the amount of damages which they shall determine will be caused to the same by the proposed work.

D. What lands within the district as by them reported will be benefited by the proposed work and they shall assess against each tract, lot and easement by whomsoever held the amount of benefits which they determine will be caused to the same by the proposed work or the damages inflicted by same on the district. The benefits or damages assessed as provided in this section are hereinafter referred to as "assessment of benefits."

E. They shall also determine and report to the court the total amount, as near as they can determine, that said proposed work will cost, which amount shall include all incidental expenses, the reasonable cost of organizing said district, costs of proceeding and all probable damage to lands, both within and without the district, together with a reasonable attorney fee for the petitioners, which cost will hereinafter be referred to as "cost of construction."

F. If the cost of construction of any particular part of the work so proposed to be done should be assessed upon any particular tract or tracts, lot or lots of land, or upon any corporation or corporations, individual or individuals, company or companies not incorporated, the commissioners shall so specify, and in their report they shall fix and determine the sums which should be assessed against said tracts, lots and corporations, individuals, companies not incorporated and assess such sum against said tracts, lots, corporations, individuals, companies not incorporated.

G. And if any corporation, individual or individuals, company or companies not incorporated or public highway or highways would, in the judgment of said commissioners, derive special benefits from the whole or any part of such proposed work, the commissioners shall so report and assess those benefits and assess against the same its proportionate share of the costs of said proposed work. The word "corporation" wherever in this act contained, shall be construed to include:

(1) railroad companies;

(2) other private corporations of all kinds;

(3) towns;

(4) cities;

(5) villages; and

(6) other drainage districts.

H. They shall apportion and assess the part of this "cost of construction" not assessed as in Subdivision [Subsections] F and G of this section against the several benefited tracts, lots and easements in said drainage district, in proportion to the benefits which they have assessed against the same by setting down opposite each tract, lot or easement, the sum so apportioned to each. The assessments which together make up the cost of construction as above defined, are herein referred to as "assessments for construction."

I. The commissioners shall further report to the court the probable cost of keeping said proposed work in repair after it is completed.

J. They shall include in their said report said map, plans and other specifications, and file the same with their report.

History: Laws 1912, ch. 84, § 39; Code 1915, § 1915; C.S. 1929, § 40-145; 1941 Comp., § 77-1901; 1953 Comp., § 75-20-1.

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

Compiler's notes. — The reference to "this act" in Subsection G means Laws 1912, ch. 84, the provisions of which are presently compiled as 73-6-1 to 73-6-17, 73-6-25 to 73-6-44, 73-7-1 to 73-7-24, 73-7-37, 73-7-38 and 73-7-40 to 73-7-56 NMSA 1978.

Cross references. — For commissioners' right of entry on lands, see 73-7-18 NMSA 1978.

Special assessments for benefits not taxes. — Special assessments on property for improvements, on basis of benefits under this act, are not taxes within exemption of N.M. Const., art. VIII, § 3; thus, a county is not exempted and may be assessed for special benefits to its public highways. Lake Arthur Drainage Dist. v. Board of Comm'rs, 1924-NMSC-002, 29 N.M. 219, 222 P. 389.

Limit on assessments. — Lands within district are only subject to such assessments as are expressly or impliedly authorized by statute under which the district was created, and in no event for assessments in excess of benefits received. Roswell Drainage Dist. v. Parker, 53 F.2d 793 (10th Cir. 1931).

Complaining parties must avail themselves of statutory proceedings. — Complaint to exonerate land from lien of drainage assessment on alleged ground that drain constructed was not that designated by survey was demurrable for failure to show that plaintiff availed himself of opportunities afforded by the drainage statute to protect his interests in the drainage proceeding. Strickland v. Elliott, 1921-NMSC-056, 27 N.M. 238, 199 P. 1016.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drains and Drainage Districts §§ 17, 19, 22.

Validity of rule of assessment for drainage improvement, 2 A.L.R. 625.

28 C.J.S. Drains § 37 et seq.; 93 C.J.S. Waters § 210; 94 C.J.S. Waters § 321.