Board of Trustees of Town of Farmington v. Spencer

• Decision Date: 27 December 1965
• Docket Number: No. 7638,7638
• Citation: 409 P.2d 269,1965 NMSC 159,75 N.M. 636
• Parties: BOARD OF TRUSTEES OF the TOWN OF FARMINGTON, New Mexico, Plaintiff-Appellant, v. C. L. SPENCER and Wilma Spencer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 269

409 P.2d 269

75 N.M. 636

BOARD OF TRUSTEES OF the TOWN OF FARMINGTON, New Mexico Plaintiff-Appellant, v. C. L. SPENCER and Wilma Spencer, Defendants-Appellees.

No. 7638.

Supreme Court of New Mexico.

Dec. 27, 1965.

LaVor W. Burnham, Farmington, for appellant.

Palmer & Frost, Farmington, for appellees.

CARMODY, Chief Justice.

Plaintiff-appellant Board of Trustees of the Town of Farmington appeals from a judgment in favor of defendants for $6,000.00 in a condemnation action tried to the district court.

Among the court's findings of fact were the following:

'8. That the property actually taken by plaintiff from defendants C. L. Spencer and Wilma Spencer amounted to approximately one-third of an acre and had a reasonable market value of $3,500.00, on the date of taking.

'* * *

'12. That defendants' property not actually taken was damaged in the amount of $1,500.00 by reason of loss of irrigation water supply and by reason of loss of trees, grass, shrubbery and other vegetation, which loss was directly and proximately caused by the construction of Schofield Avenue and other work incident thereto.

'13. That the small house situate on the real estate belonging to the defendants C. L. Spencer and Wilma Spencer, but not taken in this condemnation action was damaged in the amount of $1,000.00 by reason of the location of the street in such close proximity to said house by reason of the drainage of water into the front yard as a consequence of the grading of Schofield Avenue.

'14. That before the taking of the property belonging to defendants, said property had a reasonable market value of $50,000.00; that after the taking and consequential damage the remaining property of defendants had a reasonable market value of $44,000.00.'

Appellant contends that the element of damage due to loss of irrigation water, Finding No. 12, was improperly considered.

The well-established measure of damages in eminent domain in this jurisdiction is the 'before and after' rule, by which the owner is entitled to recover, as comensation the amount by which the fair market value of his property has been depreciated by the taking. Board of Trustees of Town of Farmington v. B. J. Service, aret value of his roperty has been Board of County Com'rs of Lincoln County v. Harris, 1961, 69 N.M. 315, 366 P.2d 710; Board of Com'rs of Dona Ana County v. Gardner, 1953, 57 N.M. 478, 260 P.2d 682; City of Tucumcari v. Magnolia Petroleum Co., 1953, 57 N.M. 392, 259 P.2d 351.

Even if the loss of irrigation water is not, in itself, a proper element of damage, the loss of trees, grass, shrubbery...