Norero v. Board of County Com'rs of Grant County, 9121

• Decision Date: 15 February 1971
• Docket Number: No. 9121,9121
• Parties: Carlos J. NORERO and Justine O. Norero, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF GRANT COUNTY, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 88

481 P.2d 88

82 N.M. 300

Carlos J. NORERO and Justine O. Norero, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF GRANT COUNTY, Defendant-Appellee.

No. 9121.

Supreme Court of New Mexico.

Feb. 15, 1971.

Joe E. Galvan, Las Cruces, V. Lee Vesely, Silver City, for appellants.

E. C. Serna, Dist. Atty., W. Gilbert Bryan, Asst. Dist. Atty., Silver City, for appellees.

OPINION

McMANUS, Justice.

The plaintiffs filed this suit in the District Court of Grant County against the Board of Commissioners of that County. Plaintiff Norero alleged ownership in fee simple of certain lands in Grant County upon which is located a dirt road running through plaintiff's property. Grant County claims that this road is a public road. The plaintiffs claim the road is a private one, and asked for a temporary restraining order against the County from going upon plaintiff's land and from declaring the road a public way. A temporary restraining order was granted and upon trial the restraining order was dissolved and the district court declared the road to be a County road. From this decision the plaintiffs appeal.

It nas been established that there are three methods of establishing public highways. For the first method we look to § 55--4--16, N.M.S.A. (1953 Comp.):

'The board of county commissioners having considered the report of any road review, and the compensation to which any person or persons damaged having been ascertained and paid to the owner or owners or into court for him or them, may order the road to be open for travel and declared a public highway. And if they do so, or order, they shall cause notices to be posted at three (3) public places along the line of such road, giving all parties notice that they have or will direct their proper officers to open and work the same from and after sixty (60) days from the date of such notice; Provided, no such road shall be ordered opened through fields of growing crops or along a line where growing crops would thereby be exposed to stock until the owner or owners of such crops shall have sufficient time to harvest and take care of the same.'

The second method of establishing a public highway is by dedication by the owner of the road to public use. The third method is by recognition of the road and maintenance of said road by the public authorities. Board of Com'rs of San Miguel County v. Friendly Haven Ranch Co. et al., 32 N.M. 342, 257 P. 998 (1927). See, also, hall v. Lea County Electric Cooperative, 78 N.M. 792, 438 P.2d 632 (1968).

The first method, in pursuance of the law of the state, § 55--4--16, supra, by agreement of all participants, was not followed. The second...