North v. Public Service Co. of New Mexico

• Decision Date: 18 October 1983
• Docket Number: No. 5957,5957
• Citation: 1983 NMCA 124,680 P.2d 603,101 N.M. 222
• Parties: Robert L. NORTH, Plaintiff-Appellee, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 603

680 P.2d 603

101 N.M. 222

Robert L. NORTH, Plaintiff-Appellee, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellant.

No. 5957.

Court of Appeals of New Mexico.

Oct. 18, 1983.

Certiorari Quashed March 15, 1984.

Paul S. Wainwright, Gregory V. Pelton, Robinson, Stevens & Wainwright, P.A., Albuquerque, for plaintiff-appellee

Robert H. Clark, Thomas F. Keleher, Margaret E. Davidson, Keleher & McLeod, P.A., Albuquerque, for defendant-appellant.

OPINION

BIVINS, Judge.

Plaintiff sued Public Service Company of New Mexico (PNM) in trespass and negligence seeking compensatory and punitive damages resulting from the utility company's activities in laying out and constructing a power line over a portion of plaintiff's property. PNM filed an eminent domain action against plaintiff seeking to condemn the area where the line was erected. Both actions were filed the same day and were later consolidated for trial.

The trial court submitted to a jury the issues of trespass and PNM's right to condemn. The jury found against PNM on both issues and awarded plaintiff $225,000 compensatory damages and $222,900 punitive damages. On PNM's motion for judgment notwithstanding the verdict or for a new trial, the trial court ordered a new trial on all damage issues unless plaintiff accepted a remittitur of $199,000 on the compensatory damage award, the court finding that award excessive because the jury failed to understand or follow the instructions. The trial court, however, did not disturb the punitive damage award since no passion or prejudice had been shown. Plaintiff accepted the remittitur. Both parties appeal raising numerous issues. Because of our disposition, we discuss exclusivity of eminent domain and related issues raised on appeal which may affect a retrial on the merits.

Under the facts and circumstances of this case did plaintiff have a cause of action for trespass, or was he relegated to damages under eminent domain? We hold as a matter of law that plaintiff's sole recourse was under eminent domain as to the taking and any damages suffered in connection with the normal installation of PNM's utility line. We remand, however, for further proceedings to determine if PNM abused its discretion or acted in bad faith in causing excessive damage to plaintiff's property. Although we will discuss in more detail prior appeals involving this case, we note at the outset that this case has been before us on two previous occasions. See North v. Public Serv. Co., etc., 94 N.M. 246, 608 P.2d 1128 (Ct.App.1980) (North I ), and North v. Public Service Co. of New Mexico, 97 N.M. 406, 640 P.2d 512 (Ct.App.1982) (North II ).

In August of 1977, plaintiff purchased Lot 24 in the Forest Meadow Ranch subdivision. This 10-plus acre lot is located in a heavily wooded area of the Manzano mountains east of Albuquerque, and it offers scenic beauty and privacy. A not-to-scale sketch will be helpful to an understanding of the events that occurred.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Approximately two months after plaintiff purchased his lot, PNM received a request from Dr. Davidson, owner of Lot 25, for electric service. PNM's staker, Harold Franklin, went to the property to determine how best to locate the line. He set stakes along the eastern edge of plaintiff's property. When plaintiff noticed these stakes he contacted Franklin, calling his attention to an existing utility easement located on the Valle Robles Estates immediately adjacent to and east of plaintiff's lot. Plaintiff also informed Franklin that he had acquired a 20-foot access easement from Dr. Davidson and that the proposed staked route would put a pole in the middle of this easement. Franklin agreed to relocate the stakes so that the power line would not be constructed on plaintiff's property and so instructed the line crew. He also told the crew not to go on plaintiff's property.

Because he left for vacation, Franklin did not personally supervise the relocation of the stakes, and disregarding the instructions, the line crew erected the poles inside plaintiff's property line on the eastern edge. In doing so they removed some trees and damaged others along the eastern and northern boundaries. In gaining access they also caused damage to vegetation and earth while utilizing an old logging road which diagonally crossed plaintiff's property. Before the line crew performed its work, PNM had engaged an independent contractor to go out and trim branches along a path for the line in a location which plaintiff apparently found satisfactory. The line crew did not follow the route as trimmed.

Negotiations toward a settlement ensued, and at the suggestion of PNM's claims adjuster, plaintiff obtained two estimates to restore the property to its former condition, one in the amount of $19,400 and the other, $51,353.55. PNM felt these estimates were excessive, particularly since plaintiff had paid $22,900 for the entire lot. PNM offered to relocate the poles, pay $3,000 for damages and have a professional landscaper groom the area and restore the grass and shrubs. Plaintiff declined and directed PNM not to go on his property, even to remove its poles, until a settlement had been made. With this impasse the parties filed their respective lawsuits.

Power of Eminent Domain

A property owner is entitled to just compensation when his property is taken or damaged for public use. N.M. Const. art. II, Sec. 20. The eminent domain statute provides the means for the ascertainment and payment of those damages. See NMSA 1978, Sec. 42-1-1 et seq. (repealed effective July 1, 1981 and replaced by NMSA 1978, Sec. 42A-1-1 et seq.) (Orig.Pamp. and Repl.Pamp.1981). If the condemning authority has taken or damaged property for public use without making just compensation therefor or without initiating proceedings to do so, the property owner has recourse through inverse condemnation proceedings. Section 42-1-23 (now Sec. 42A-1-29).

As long as the property has been taken or damaged for public use, inverse condemnation provides the exclusive remedy for the property owner if the condemnor takes or damages property without paying just compensation or without initiating proceedings to condemn. Zobel v. Public Service Company, 75 N.M. 22, 399 P.2d 922 (1965); Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966). Although a condemnor for a public use may enter private property before initiating condemnation proceedings, this practice is not favored. Both Zobel and Garver, like the case before us, involved trespass actions brought by the property owner to recover for damages. In both cases the Supreme Court affirmed dismissal of the common law trespass action, holding that the property owner was relegated to the eminent domain statutes for recovery of damages. In those cases the condemning entities acted within the eminent domain power granted to them by the legislature.

Plaintiff does not quarrel with the exclusivity of the eminent domain statute, but argues that it has no application to the facts of this case. In essence plaintiff challenges PNM's authority to condemn. In Kaiser Steel Corporation v. W.S. Ranch Company, 81 N.M. 414, 467 P.2d 986 (1970), the Supreme Court held that plaintiff had a right to condemn a right-of-way over private property to lay pipeline to transport water for use in a coal mine and that the property owner's remedy lay in inverse condemnation rather than trespass. The crucial issue was whether use of water for an industrial purpose constituted a public use such that a right-of-way could be condemned. The court held it did; however, it observed that had plaintiff "miscalculated and it was determined that they were mistaken in their belief that they had the right to condemn, the trespass action undertaken by Ranch would have been proper, and substantial damages would have been adjudged against Kaiser as a trespasser." Id. at 422, 467 P.2d 986.

Plaintiff does not challenge the fact that PNM wanted the easements for a public use, so unlike Kaiser, we are not concerned with a dispute over "public use". What plaintiff challenges is the necessity of taking his property. He claims that there were other available utility easements that PNM could have used and that PNM could have routed its line so as to avoid plaintiff's property. Plaintiff relies on City of Carlsbad v. Ballard, 71 N.M. 397, 378 P.2d 814 (1963), for the proposition that "a condemnor may take no greater interest than is reasonably necessary for the contemplated public use." Accord, Hobbs Municipal Sch. Dist., etc. v. Knowles Dev. Co., 94 N.M. 3, 606 P.2d 541 (1980).

Applying the above rule to this case, plaintiff says PNM had no right to condemn, because it did not require an easement from his property. Plaintiff refers to the existing seven foot easement on the adjacent property to the east. He also refers to the evidence that after setting the stakes on plaintiff's property, Mr. Franklin notified the Right-of-Way Department of PNM so that it would acquire an easement from plaintiff. When plaintiff called the existing easement to the attention of Mr. Franklin, he agreed to remove the stakes; he later indicated that PNM could "live with" the existing easement. As to the northern boundary, plaintiff says that since Dr. Davidson requested electrical service, PNM could have taken a ten foot easement from him instead of taking five feet from Dr. Davidson and five feet from plaintiff. Plaintiff argues, "A suit to condemn property that PNM had agreed was not necessary would easily support a finding that PNM acted in bad faith in instituting the condemnation proceeding against Robert North."

A similar argument was made in State Highway Com'n v. Ruidoso Telephone Co., 73 N.M. 487, 389 P.2d 606 (1963), which our Supreme Court answered as follows:

As to the necessity or need for the use of the private lands for its facilities, the Commission seems to argue...