N.M. Stat. § 30-8-1 (2026)

A public nuisance consists of knowingly creating, performing or maintaining anything
affecting any number of citizens without lawful authority which is either:

   A. injurious to public health, safety, morals or welfare; or

   B. interferes with the exercise and enjoyment of public rights, including the right to
use public property.
   Whoever commits a public nuisance for which the act or penalty is not otherwise
prescribed by law is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-8-1, enacted by Laws 1963, ch. 303, § 8-1.

                                       ANNOTATIONS

Cross references. — For polluting of water being public nuisance, see 30-8-2 NMSA
1978.

For provisions on abatement of public nuisance, see 30-8-8 NMSA 1978.

For conduct offensive to public well-being, see 30-8-12 NMSA 1978.

For house of prostitution being public nuisance, see 30-9-8 NMSA 1978.

For gambling and gambling houses being public nuisance, see 30-19-8 NMSA 1978.

For provision making forest fire burning without proper precaution a public nuisance,
see 30-32-1 NMSA 1978.

Nuisance must affect group of people. — A public nuisance must affect a
considerable number of people or an entire community or neighborhood. Environmental
Improvement Div. v. Bloomfield Irrigation Dist., 1989-NMCA-049, 108 N.M. 691, 778
P.2d 438, cert. denied, 108 N.M. 681, 777 P.2d 1325.

This section applies to "anything affecting any number of citizens", which means a
considerable number of people or an entire community or neighborhood. State ex rel.
Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, 119 N.M.
150, 889 P.2d 185.

Anticipatory nuisance. — Anticipatory nuisance is a valid cause of action. State ex rel.
Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, 119 N.M.
150, 889 P.2d 185.

Acts of municipality under governmental authority. — In the absence of a showing
of fraud, collusion, or illegality, a city's constitutional and statutory authority to construct
public highways and bridges constitutes a valid defense to a claim of nuisance per se.
City of Albuquerque v. State ex rel. Vill. of Los Ranchos de Albuquerque, 1991-NMCA-
015, 111 N.M. 608, 808 P.2d 58, cert. denied, 113 N.M. 524, 828 P.2d 957 (1992).

Acts which the law authorized to be done, if carried out and maintained in the manner
authorized by law, where a public entity acts under its governmental authority, do not
constitute public nuisances per se. City of Albuquerque v. State ex rel. Vill. of Los
Ranchos de Albuquerque, 1991-NMCA-015, 111 N.M. 608, 808 P.2d 58, cert. denied,
113 N.M. 524, 828 P.2d 957 (1992).
Absent a showing that a project is, or will be, conducted or maintained in a manner
contrary to law, a city is lawfully empowered to initiate and construct such project, and
the project is not subject to abatement as a public nuisance per se, because the
construction, operation, and maintenance of a highway or bridge in a lawful manner
does not constitute a public nuisance. City of Albuquerque v. State ex rel. Vill. of Los
Ranchos de Albuquerque, 1991-NMCA-015, 111 N.M. 608, 808 P.2d 58, cert. denied,
113 N.M. 524, 828 P.2d 957 (1992).

Public works as public nuisance. — Public works projects are fundamentally different
from private construction projects. A public project carries with it the presumption that it
is for the public good; proof that it will be a nuisance must be balanced against its
benefit for the public as a whole. State ex rel. Vill. of Los Ranchos de Albuquerque v.
City of Albuquerque, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185.

Due authorization of public works. — If the public works project is in existence and
poses a present nuisance, due authorization is a qualified defense; courts may or may
not decide that despite the defense the project is still a nuisance. However, if the project
has yet to be constructed and is challenged as an anticipatory nuisance in fact, due
authorization is an absolute defense; courts will summarily conclude that there is no
basis for a finding of nuisance. State ex rel. Vill. of Los Ranchos de Albuquerque v. City
of Albuquerque, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185.

Contamination of underground water. — Where a sewage treatment facility is
operated by a city in a manner which results in the contamination of the underground
water to such a degree that it is offensive or dangerous for human consumption or use,
is injurious to public health, safety and welfare and interferes with the exercise and
enjoyment of public rights, including the right to use public property, the city has created
a public nuisance within the meaning of this section. Relief in the nature of a mandatory
injunction requiring abatement of the nuisance by ordering the city to extend its
waterlines to residences in and outside its limits free of hookup charges would not be a
"donation" in violation of N.M. Const., art. IX, § 14. State ex rel. N.M. Water Quality
Control Comm'n v. City of Hobbs, 1974-NMSC-064, 86 N.M. 444, 525 P.2d 371.

Shooting range. — Use of private property as a trap shooting range was not a "public
right," and, thus, the actions of adjoining landowners in making complaints to the sheriff
who shut down the range for an investigation did not support a claim under this section.
State ex rel. Smith v. Riley, 1997-NMCA-063, 123 N.M. 453, 942 P.2d 721.

Entrance to house. — "Stoop" or concrete platform 14–1/2 inches off ground located
outside back door of premises which was only means of entrance and exit was not a
public nuisance as defined by statute, nor a private nuisance. Jellison v. Gleason, 1967-
NMSC-033, 77 N.M. 445, 423 P.2d 876.

Illegal sale of alcoholic beverages is not a statutory nuisance per se nor is it a
common law nuisance per se. State v. Davis, 1958-NMSC-130, 65 N.M. 128, 333 P.2d
613.
Damages. — Compensatory damages are not available for statutory public nuisance,
as abatement of the nuisance is the prescribed remedy. New Mexico v. General Elec.
Co., 335 F. Supp. 2d 1185 (D.N.M. 2004).

Remedy in public nuisance actions. — In public nuisance cases, abatement of the
nuisance is the remedy prescribed by statute, but damages, including noneconomic
damages, may be appropriate in actions involving mixed public and private nuisances,
so long as the plaintiff can show that they have suffered harm of a kind different from
that suffered by other members of the public exercising the right common to the general
public that was the subject of the interference. 2024 Op. Att'y Gen. No. 24-05.

Launching rockets. — Construction and launching of rockets without adequate
supervision and without adequate safeguards being provided to protect the persons
involved as well as other persons and property which could be harmed by such a
dangerous mechanism would be a public nuisance under this section. 1961 Op. Att'y
Gen. No. 61-134.

Law reviews. — For note, "The Availability of the Affirmative Defenses of Assumption
of Risk and the 'Sale Defense' Against Common Law Public Nuisance Actions; United
States v. Hooker Chemicals & Plastics Corp.," see Nat. Resources J. 941 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Nuisances §§ 35, 36,
403, 404.

Necessity of knowledge by owner of real estate of a nuisance maintained thereon by
another to subject him to the operation of a statute providing for the abatement of
nuisances or prescribing a pecuniary penalty therefor, 12 A.L.R. 431, 121 A.L.R. 642.

Computer as nuisance, 45 A.L.R.4th 1212.

Telephone calls as nuisance, 53 A.L.R.4th 1153.

Tree or limb falls onto adjoining private property: personal injury and property damage
liability, 54 A.L.R.4th 530.

Legal aspects of speed bumps, 60 A.L.R.4th 1249.

Encroachment of trees, shrubbery, or other vegetation across boundary line, 65
A.L.R.4th 603.

Sewage treatment plant as constituting nuisance, 92 A.L.R.5th 517.

Preemption, by provisions of Clean Air Act (42 USCS §§ 7401 et seq.), of federal
common law of nuisance in area of air pollution, 61 A.L.R. Fed. 859.

66 C.J.S. Nuisances §§ 2, 159.
30-8-2. Polluting water.
   Polluting water consists of knowingly and unlawfully introducing any object or
substance into any body of public water causing it to be offensive or dangerous for
human or animal consumption or use. Polluting water constitutes a public nuisance.

    For the purpose of this section, "body of water" means any public river or its
tributary, stream, lake, pond, reservoir, acequia, canal, ditch, spring, well or declared or
known ground waters.

   Whoever commits polluting water for which the act or penalty is not otherwise
prescribed by law is guilty of a misdemeanor.

History: 1953 Comp., § 40A-8-2, enacted by Laws 1963, ch. 303, § 8-2; 1993, ch. 291,
§ 19.

                                      ANNOTATIONS

Cross references. — For Water Quality Act, relating to water pollution, see 74-6-1
NMSA 1978 et seq.

The 1993 amendment, effective June 18, 1993, inserted "for which the act or penalty is
not otherwise prescribed by law" in the last paragraph and made a minor stylistic
change.

Scope of section. — This section is a broad nuisance provision, but it does not contain
specific mandatory requirements to create a specific duty to prevent water pollution.
Aragon v. United States, 146 F.3d 819 (10th Cir. 1998).

Law reviews. — For comment, "Control of Industrial Water Pollution in New Mexico,"
see 9 Nat. Resources J. 653 (1969).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control §§
134, 135.

Liability for injury to property occasioned by oil, water or the like, flowing from well, 19
A.L.R.2d 1025.

Measure and elements of damages for pollution of well or spring, 76 A.L.R.4th 629.

Liability insurance coverage for violations of antipollution laws, 87 A.L.R.4th 444.

93 C.J.S. Waters § 57.