Summerford v. Bd. of Com'rs of Dona Ana County

• Decision Date: 10 April 1931
• Docket Number: No. 3406.,3406.
• Parties: SUMMERFORDv.BOARD OF COM'RS OF DONA ANA COUNTY et al.
• Court: New Mexico Supreme Court

35 N.M. 374

298 P. 410

SUMMERFORD

v.BOARD OF COM'RS OF DONA ANA COUNTY et al.

No. 3406.

Supreme Court of New Mexico.

April 10, 1931.

Syllabus by the Court.

On admission of counsel, counties held liable under statute for consequential damages occasioned by construction and improvement of highway (Comp. St. 1929, § 64-313).

Held, on admission of counsel, that 1929 Comp. § 64-313 makes counties liable, not only for compensation for taking of property for state highway, but for consequential damages occasioned by construction or improvement.

Constitutional right to compensation for damaging property by construction or improvement of highway may be enforced by civil action (Comp. St. 1929, § 105-101; Const. art. 2, § 20).

Constitutional right to compensation for damaging private property by construction or improvement of state highway may be enforced by civil action against the party liable therefor.

If any ground of demurrer is well taken, judgment sustaining demurrer will be affirmed.

Judgment sustaining demurrer will be affirmed, if any ground of demurrer is well taken.

Supreme Court will adhere to permissible interpretation of pleading adopted by trial court.

A permissible interpretation of a pleading adopted by trial court will be adhered to in Supreme Court.

Constitution does not require payment of advance compensation for damaging private property in improvement of state highway (Const. art. 2, § 20).

Const. art. 2, § 20, does not require advance compensation for damaging private property in improvement of state highway.

Statutes providing for advance compensation for taking or damaging property are not exclusive as to consequential damages from construction or improvement of state highway.

Statutes providing for advance compensation for taking or damaging private property for public use, not exclusive as to consequential damages from construction or improvement of state highway.

State highway commissioners held not personally liable for compensation for cutting off ingress and egress to and from land by erecting viaduct, without first ascertaining and settling for damages (Const. art. 2, § 20).

Members of state highway commission not personally liable for compensation for cutting off ingress and egress to and from land by erecting viaduct on state highway without prior ascertainment and settlement of damages.

Liability of county to compensate property owner for cutting off ingress and egress by constructing viaduct on state highway is not dependent upon request by state highway commission that county take proceedings.

County's liability to compensate property owner for cutting off ingress and egress by constructing viaduct on state highway not dependent upon request of state highway commission that county take proceedings to obtain the right.

Appeal from District Court, Dona Ana County; Helmick, Judge.

Suit by Margaret Summerford against the Board of County Commissioners of Dona Ana County and others. Judgment for defendants, and plaintiff appeals.

Reversed as to defendant named, and remanded, with direction.

Liability of county to compensate property owner for cutting off ingress and egress by constructing viaduct on state highway is not dependent upon request by state highway commission that county take proceedings.

W. C. Whatley and M. A. Threet, both of Las Cruces, for appellant.

Carl H. Gilbert and M. W. Hamilton, both of Santa Fé, Reid, Hervey & Iden, of Albuquerque, and Holt & Holt and J. Benson Newell, all of Las Cruces, for appellees.

WATSON, J.

[5][6] This opinion will supplant those filed July 15, 1930 and October 27, 1930, which are withdrawn.

Margaret Summerford sued the four individuals and the three corporations named, alleging that the defendants, in contravention of the Constitution and statutory laws, constructed a viaduct “along Picacho Avenue in the town of Las Cruces and a part of the Las Cruces-Deming state highway,” upon which plaintiff's property abuts, cutting off ingress and egress, to her damage $10,000, without having instituted and prosecuted to final judgment any condemnation proceedings to acquire a right of way for said viaduct, without having paid or offered to pay damages sustained, or to be sustained, and without plaintiff's consent; that “in laying out the state highway at the place and in construction of the ‘viaduct’ each and all of the defendants, as well as the State Highway Commission *** have and enjoy the right of eminent domain in the taking or damaging of property on and adjoining such highway, are charged with the duty to proceed in a lawful manner, and to fully compensate owners of any such property as may necessarily be taken or damaged in the construction of such improvement”; that the individual defendants, members of the state highway commission, and the state engineer, knew that no right had been acquired to construct the viaduct “on said Picacho Avenue,” but nevertheless willfully and maliciously proceeded to construct the same without any condemnation proceeding or any payment of damages; by reason whereof, though they purported to act in their official capacities, they exceeded their official authority and incurred individual liability; and that, while the railway company had not the right of eminent domain as to the viaduct, it aided and assisted the other defendants by paying its pro rata of the cost of the viaduct over its tracks.

The corporate defendants, severally, and the individual defendants, jointly, demurred. All demurrers were sustained. Plaintiff appeals from the judgment following her refusal to plead further.

The complaint seems to be bottomed upon the proposition that the construction of the viaduct without plaintiff's consent, and without condemnation proceedings and payment of damages, was “in contravention of the constitution and statutory laws.” The references are to Const. art. 2, § 20, which provides: “Private property shall not be taken or damaged for public use without just compensation.” And Laws 1923, c. 21 (1929 Comp. § 43-301), which provides: “Any person, firm or corporation authorized by the constitution or laws of this state to exercise the right of eminent domain who has heretofore taken or damaged or who may hereafter take or damage any private property for public use without making just compensation therefor or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation thereof, shall be liable to the owner of such property, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time such property is or was taken or damaged, with legal interest, to the date such just compensation shall be made, in an action to be brought under and governed by the code of civil procedure of this state; Provided that this act shall not apply to or affect any telephone line, telegraph line, electric light or power transmission line.”

The learned trial judge was of the opinion that the statute just quoted is inapplicable, since it “obviously refers to private persons, firms or corporations that have been granted the power of eminent domain, and does not refer to public officers or agencies of the state.” He held further that the constitutional provision quoted conferred upon plaintiff a right to her damages, but that the individual defendants were not suable, since they acted rightfully and within the scope of their authority in constructing a viaduct “on a road which concededly belonged to the state.” He pointed out, as plaintiff's proper remedy, mandamus to compel the “highway authorities” to exercise the power of eminent domain in accordance with Laws 1927, c. 39 (1929 Comp. § 64-313), which provision, though referring in terms only to the taking of property for rights of way, he thought necessarily comprehends the damaging of property not actually taken.

[1] As we understand this decision, it was considered that the present complaint states no cause of action against any defendant, but that in a proper proceeding liability may be brought home to the defendant board...