State ex rel. State Highway Commission v. Town of Grants, 6306

• Decision Date: 07 January 1960
• Docket Number: No. 6306,6306
• Citation: 1960 NMSC 4,66 N.M. 355,348 P.2d 274
• Parties: STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Plaintiff- Appellant, v. TOWN OF GRANTS, New Mexico, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 274

348 P.2d 274

66 N.M. 355

STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Plaintiff- Appellant, v. TOWN OF GRANTS, New Mexico, Defendant-Appellee.

No. 6306.

Supreme Court of New Mexico.

Jan. 7, 1960.

Fred M. Standley, Atty. Gen., John T. Watson, Snyder H. Downs, Sp. Asst. Attys. Gen., for appellant.

Chavez & Cowper, Belen, for appellee.

CARMODY, Justice.

This is an appeal from an order of dismissal sustaining a motion to dismiss upon the ground that the complaint failed to state a cause of action upon which relief could be granted.

Plaintiff Highway Commission filed a complaint which alleged that U. S. Highway 66 runs through the Town of Grants and that such highway was in existence prior to the incorporation of the town and prior to the time certain water and sewer pipes and facilities were available; that these facilities were owned and managed by the defendant in the year 1954 when it was determined by the plaintiff that the highway should be reconstructed. Plaintiff alleged also that prior to the reconstruction, it was assured by the water superintendent and the mayor of the defendant town that the water and sewer lines were of sufficient depth so that they would not interfere with the reconstruction; that thereafter the plaintiff let a contract for the work, but that in May of 1955 the contractor discovered that the sewer and water lines must be replaced in order to complete the project and reconstruct the highway to meet the needs of the traveling public; that upon such discovery the defendant was notified to relocate its lines, but that it claimed it had no funds and refused to do so; that upon such refusal and because the highway was torn up, it was necessary for the plaintiff itself to remove and relocate the lines to provide a safe and adequate state highway and to avoid a dangerous condition; that thereby an obligation was incurred by the defendant involuntarily and as a result of an emergency, and that plaintiff was required to expend the sum of $40,763.76 and that demand for the payment of said sum has been refused. The plaintiff then prayed for a declaration of the legal rights in relation of the parties and for a judgment in the above amount.

To this complaint the defendant filed a motion merely stating that the complaint failed to state a cause of action upon which relief may be granted.

Subsequently, an order of the district court was entered which found that the motion was well taken and that the complaint should be dismissed. No specific grounds were set forth in the order, nor were any findings made by the court, and upon appeal plaintiff sought and obtained from this court an order granting the appellant the right to file a pro forma brief under rule 15, paragraph 5, of the rules of the supreme court which called upon the appellee to specify and maintain the insufficiency of the complaint.

Thereafter, appellee filed its brief, stating very generally the grounds upon which it contends that the complaint failed to state a cause of action.

The contentions raised by the defendant unfortunately do not directly raise the true problem involved in this litigation. However, they are:

(1) That the defendant cannot be held responsible for the representations of the mayor and the water superintendent. With respect to this point, apparently the cause of action is not in any sense based upon these representations, but, in any event, should the defendant contend that this has any direct relation to the problem, it is a matter which should be raised by answer and can be disposed of at the trial.

(2) The defendant then apparently contends that its property has been damaged and that the highway department had a legal duty to replace it or to compensate the defendant for the taking. Here, again, as with the original point raised, this is not a matter that should have been disposed of upon a motion to dismiss, but would involve questions which the defendant should plead by answer or counterclaim.

(3) Defendant then seems to contend that inasmuch as the pipes were lawfully underneath the street, that the plaintiff should have proceeded by condemnation and that this action is not well taken. This point more nearly approaches the true issue of this complaint, and will be more fully discussed hereafter.

(4) The defendant also apparently relies upon Sec. 55-2-7(c), N.M.S.A., 1953 Comp., which relates to the powers of the highway commission to prescribe rules and regulations with respect to the placing of pipelines, telephone, telegraph and electric transmission lines and ditches along, across, over or under public highways of the state, the defendant's argument being that the legislature having authorized proper action for the violation of rules and regulations with reference to pipelines and allied utility services, that therefore, by implication, there being no allegation that the lines were installed in violation of the rules, that the legislature denied the right of removal. This contention will also be disposed of by our decision on what we believe to be the true issue involved.

(5) The defendant lastly asserts that Sec. 55-7-18, N.M.S.A., 1953 Comp., which relates to the subject of wires, cables and conduits on a right-of-way, is not applicable to the instant case because there is no mention of water or sewer pipes. In view of our disposition of the case, we will express no opinion on the applicability of this particular section of the statute, particularly inasmuch as our decision involves a more fundamental principle.

The underlying question involved in this proceeding is whether there is a duty upon a municipality to relocate municipally owned sewer and water lines in a public highway at its own expense when it is necessary to provide a safe and adequate highway. Allied to this problem is the question that if there is such a duty upon the part of the municipality, then can the plaintiff recover for the expense of removing and relocating the lines.

To interpolate at this time, it should be noted that this case was filed before the passage of Chapter 237, Laws of 1957, which this court considered in State Highway Commission v. Southern Union Gas Co., 1958, 65 N.M. 84, 332 P.2d 1007, and therefore there is no problem as to the constitutionality of that statute.

We then proceed to the primary issue as to whether or not defendant has a duty to relocate its sewer and water lines when it becomes necessary to provide a safe and adequate highway.

Appellee, in its brief, makes the rather astounding assumption that there is no common-law duty requiring a utility to relocate its facilities at its own expense when required to do so to facilitate highway improvements. Apparently, it is on this basic premise that the appellee takes its stand. However, not one single case is cited by the appellee in support of its position and, to the contrary, insofar as we are able to discover, the authorities are unanimous that the common law places the cost of relocating utility facilities on the owner thereof in the absence of statute to the contrary. This principle is recognized in State Highway Commission v. Southern Union Gas Co., supra. See, also, Rhyne, Municipal Law, 512, Sec. 24-6, and should anything further be needed, the following quotation from Opinion of the Justices, 1957, 101 N.H. 527, 132 A.2d 613, 614, should forever lay this particular problem at rest:

'Utility facilities are located within public highways with permission and license and are subject to reasonable regulation and control under the police power. Bourget v. Public Service Company, 98 N.H. 237, 97 A.2d 383; RSA 254:19-23. Consequently, utilities are required to relocate their facilities at their own expense whenever public health, safety or convenience require change to be made. Detroit Edison Co. v. City of Detroit, 332 Mich. 348, 51 N.W.2d 245; Jamaica Water Supply Co. v. City of New York, 280 App.Div. 834, 114 N.Y.S.2d 79, affirmed 304 N.Y. 917, 110 N.E.2d 739; 12 McQuillin, Municipal Corporations (3rd ed.) Secs. 34.74, 34.77. There '* * * has been no dissent from the common law rule as enunciated by numerous courts that, in the absence of a clear statutory mandate shifting the burden to the State, utilities are obliged to relocate at their own expense their facilities located in public highways when required to facilitate highway improvements.' Public Utility Relocation Incident to Highway Improvement, House Document 127, p. 57 (84th Cong. 1st Session 1955). See also, RSA 254:23.' (Italics added.)

The rationale of all of the cases on this particular subject is that the police power of the state is paramount, and that in the proper exercise thereof there may be a limitation in the use of or complete destruction of private property in order to advance public welfare without the necessity of compensation to the owner. Therefore, although utilities are permitted to locate their facilities within the public way and thereby obtain certain rights for limited purposes, these rights are subordinate to the rights of the traveling public and are subject to a reasonable exercise of the police power. See Highway Research Board Special Report 21, Relocation of Public Utilities Due to Highway Improvement and Analysis of Legal Aspects (1955), p. 28.

Most of the authorities on the subject involve cases between a state, or municipality, and a privately owned public utility. Is there a different rule where the utility is municipally owned? We...