City of Raton v. Raton Ice Co. (two Cases).City of Raton v. Yankee Fuel Co.

• Decision Date: 01 July 1920
• Docket Number: Nos. 2321-2323.,s. 2321-2323.
• Citation: 26 N.M. 300,191 P. 516
• Parties: CITY OF RATONv.RATON ICE CO. ET AL. (TWO CASES).CITY OF RATONv.YANKEE FUEL CO. ET AL.
• Court: New Mexico Supreme Court

26 N.M. 300

191 P. 516

CITY OF RATON

v.RATON ICE CO. ET AL. (TWO CASES).CITY OF RATON

v.YANKEE FUEL CO. ET AL.

Nos. 2321-2323.

Supreme Court of New Mexico.

July 1, 1920.

Syllabus by the Court.

Codification 1915, § 3564, subds. 67-70, inclusive, and subdivision 91, Codification 1915, §§ 2098 to 2108, inclusive, Codification 1915, §§ 2110 to 2118, inclusive, construed and held to grant the power of eminent domain to a city for the purpose of constructing a waterworks system.

The use of rights of way and reservoir sites by a water company is not exclusive, and another public service corporation may be permitted to use them jointly with the first company.

Appeal from District Court, Colfax County; Leib, Judge.

Separate actions by the City of Raton against the Raton Ice Company, the Yankee Fuel Company, and others. Judgment for plaintiff in each case, and defendants appeal. Affirmed.

The use of rights of way and reservoir sites by a water company is not exclusive, and another public service corporation may be permitted to use them jointly with the first company.

Jesse G. Northcutt, of Denver, Colo., and Morrow & Alford, of Raton (F. S. Merrian, of Raton, of counsel), for appellants.

H. L. Bickley, of Raton, and A. T. Rogers, of East Las Vegas, f appellee.

RAYNOLDS, J.

The facts in this case, so far as they are material to an understanding of the matters in dispute, are substantially as follows:

In the year 1912 the city of Raton decided to own its waterworks system for supplying the city with water. Being unable to purchase or otherwise acquire the waterworks system of the Raton Waterworks Company, one of the appellants, which was then operating at Raton, the city decided to construct its own waterworks system. In 1912, at an election held, the city of Raton was authorized to issue bonds to the extent of $400,000 for the construction of such waterworks system. An application was made to the state engineer for the purpose of acquiring water rights in Sugarite Canon, and a permit was granted which authorized the city to construct its reservoir No. 2 at Lake Maloya, the site of the appellant waterworks company's reservoir, and to use the same jointly with the waterworks company. Thereafter a contract was entered into for the construction of such waterworks system, and the same was completed in the year 1916. The city of Raton has been furnishing water to its inhabitants for domestic, irrigation, and other purposes since 1916. Its reservoir No. 2 was built on the site of Lake Maloya, by reinforcing, raising, and extending the dam and increasing the capacity thereof, and its pipe line was laid from this reservoir No. 2 to the city of Raton, passing through tracts Nos. 1, 2, and 3 of the land involved in this appeal. The city council of the city of Raton authorized the mayor to negotiate with the appellants herein for the purchase of said reservoir site for reservoir No. 2, and for the pipe line right of way leading from and passing through tracts 1, 2, and 3. After some negotiations the city of Raton was unable to agree with the owners of the land involved, and a committee appointed for that purpose having so reported to the city council, thereafter the city ordered the condemnation proceedings to be instituted.

Upon filing the petition in condemnation and upon the showing made and giving bond as directed by the court, the city of Raton was let into possession of said land for its pipe line right of way, and the work of laying the pipe line was immediately commenced. The appellants filed their written protest against letting the petitioner into possession of these lands and thereafter filed their answer herein. Later they filed an amended answer, raising certain defenses and issues as follows: (1) That appellants were deprived of their property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States; (2) that there was no statutory authority for a city to condemn land for purposes of erecting waterworks more than two miles beyond the city limits; (3) that no effort was made to agree upon proper compensation with the appellants, which is a condition precedent to condemnation proceedings; (4) that the appellants' property was dedicated to a prior public use which was equal in dignity to that of the purpose for which the condemnation was sought; (5) that no proper notice was given to certain of the appellants. These points were raised at various stages of the trial below and were carried forward into the assignments of error. The case was tried on December 13, 1916, upon the issues presented. Appellants introduced no evidence. In 1918, January 10, a decree was entered by the court resolving the issues in favor of the city of Raton and appointing commissioners to assess damages. Exceptions were filed to this decree and this appeal is taken from it.

In the court below there were three separate cases in that court, which were numbered 4220, 4055, and 4192, and they are respectively in this court Nos. 2321, 2322, and 2323. They were consolidated in the lower court for the purpose of trial, but have been separately appealed. In all three causes the Raton Waterworks Company of New Mexico has appealed. In causes 2321 and 2322 the Raton Ice Company has also appealed; in cause 2321 the Santa Fé, Raton & Eastern Railway Company joined in the appeal. The Raton Waterworks Company of New York, a New York corporation, and the Yankee Fuel Company, a Colorado corporation, also joined in causes 2322 and 2323, respectively. The cases may all be considered together.

[1] Appellants contend that the trial court was without jurisdiction in the premises and that there is no statutory authority for the condemnation proceeding which was attempted. It seems to be admitted by both sides that the power of eminent domain sought to be exercised by the appellee is not to be implied, but must be granted by express statutory enactment, and that if no such power is granted none exists. Lewis on Eminent Domain (3d Ed.) pars. 367 and 371. The question whether or not such authority exists depends upon the construction of statutes passed at three different sessions of the Legislature, all of which are found in Code 1915. Subdivisions 68 to 71, inclusive, of section 3564, are subdivisions 67-70, inclusive, of chapter 39, § 14, of the Laws of 1884. Subdivision 91 of section 3564, Code 1915, is section 1, c. 3, of the Laws of 1891. Sections 2098 to 2108, inclusive, and sections 2110 to 2118, inclusive, of the Code of 1915, are sections 1 to 11, inclusive, and 13 to 21, inclusive, of chapter 97, Laws of 1905. The first act on the subject is chapter 39, Laws of 1884, entitled “An act to incorporate cities and towns.” Section 14 of this act gives to the city council and boards of trustees in towns certain powers, and subsections 68, 69, and 70 of this act authorize the construction and operation of waterworks, either by the city or by the granting of permission to private individuals or incorporated companies to build and operate such water works. Section 70, the section upon which appellee relies in part, is as follows:

“Cities or towns are hereby authorized to condemn and appropriate so much private property as shall be necessary for the construction and operation of said waterworks or gas works, in such manner as is or may be prescribed by law.”

The next statutory enactment which is material to this discussion is chapter 3, Laws of 1891, § 1, which reads as follows:

“That municipal corporations shall have the power and right of condemnation of private property for public use in the following cases, to wit: For laying out, opening and widening of streets and alleys and highways or approaches to streets; and for the construction, maintenance and operation of sewers, drains, waterworks and gas works, both within their corporate limits and for a distance of two miles outside of the same.”

The Legislature further enacted laws upon this subject in the year 1905, the law being chapter 97, Laws 1905, where method of procedure for condemnation of land for public purposes is set out in an act composed of 21 sections. Section 1, in so far as material, reads as follows:

“In case lands or other property are sought to be appropriated by any railroad, telephone, telegraph company created or authorized to do business under the laws of this territory, for public use, and such corporation and owner of such lands cannot agree upon proper compensation. * * *”

The statute then sets...