N.M. Stat. » Chapter 42 — Actions and Proceedings Relating to Property
New Mexico Statutes

N.M. Stat. § 42-2-1 (2026)

Declaration of intent

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The legislature hereby determines and declares that the construction of urgently needed public roads and state highways is being delayed by the inability to enter into timely possession of the condemned property; that the landowner must wait the termination of prolonged litigation before he receives compensation for his property; that the delay in possession and therefore construction of the facility results in increased construction costs and thereby injuriously affects the public. The legislature, recognizing its responsibility, intends to solve these problems by establishing a special procedure whereby the state can enter into possession at the inception of the proceeding, and the interests of the property owner are protected by providing for an adequate bond prior to vesting of title and the taking of possession and also safeguarding the property owners' right to a speedy judicial determination of the total just compensation due. This legislation is necessary for the immediate preservation of the public peace, health, [and] safety, the promotion of the general welfare and to minimize the economic and financial dislocation caused by highway construction. The special procedure set forth herein shall be in addition to any other condemnation procedure now in effect and shall not be construed as repealing or amending such procedure by implication.

History: 1953 Comp., § 22-9-39, enacted by Laws 1959, ch. 324, § 1.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Legislative intent. — It would have been practically impossible for the legislature to have stated more clearly their intention that compensation should be paid when public property was condemned for highway purposes. The requirement for payment is clearly without regard to the nature of uses being made and accordingly includes property being used for a governmental as well as a proprietary purpose. State ex rel. State Hwy. Comm'n v. Board of Cnty. Comm'rs, 1963-NMSC-074, 72 N.M. 86, 380 P.2d 830.

Provision for compensation when property condemned for highway purposes. — Since highways are state projects paid for by the public of the state at large, including in many instances contribution by the federal government, it is only just and proper that the legislature in its wisdom should provide for compensation when public property is taken for highway purposes. State ex rel. State Hwy. Comm'n v. Board of Cnty. Comm'rs, 1963-NMSC-074, 72 N.M. 86, 380 P.2d 830 (1963).

Loss of business due to restriction of direct access, noncompensable. — Loss of business or of prospective business, because the traveling public cannot reach a roadside business establishment as readily as before the restriction of direct access, amounts only to a diversion of traffic and is noncompensable. State ex rel. State Hwy. Comm'n v. Brock, 1968-NMSC-165, 80 N.M. 80, 451 P.2d 984.

Once reasonable access is given to the main highway system by means of frontage roads, any circuity of travel occasioned by the loss of direct ingress and egress is noncompensable. State ex rel. State Hwy. Comm'n v. Brock, 1968-NMSC-165, 80 N.M. 80, 451 P.2d 984.

Mere inconvenience resulting from the closing of streets or roads which requires circuity of travel by those abutting on such roads to reach the main highway system does not give rise to a legal right in one so inconvenienced, when another reasonable, although perhaps not equally accessible, means of ingress and egress is afforded. State ex rel. State Hwy. Comm'n v. Brock, 1968-NMSC-165, 80 N.M. 80, 451 P.2d 984.

Rule relating to dismissal of actions inapplicable. — The special statutory eminent domain procedure is inconsistent with rule 41(b) and (e), N.M.R. Civ. P. (now Rule 1- 0041 NMRA), relating to dismissal of actions, and these rules are therefore inapplicable to eminent domain proceedings brought under the special alternative procedure where a permanent order of entry has been made as to some part of the property being condemned. State ex rel. State Hwy. Comm'n v. Burks, 1968-NMSC-121, 79 N.M. 373, 443 P.2d 866.

Effect of trial court's refusal to allow expert to testify. — The trial court's refusal to allow plaintiff's expert appraiser to testify as to the fair market value of the property in question, after a detailed and lengthy examination into the expert's qualifications was reversible error. City of Santa Fe v. Gonzales, 1969-NMSC-085, 80 N.M. 401, 456 P.2d 875.

All public land, no matter how acquired, subject to condemnation. — The fact that public lands were in part or whole acquired by trust funds is immaterial. The chapter draws no such distinction. It subjects all public land to eminent domain without distinction so long as a determination has been made that the land is required for a greater public need. Laws 1959, ch. 324, gives the state and all of its political subdivisions the right to acquire public property by right of eminent domain for use of public highways. 1960 Op. Att'y Gen. No. 60-156.

Law reviews. — For article, "Frontland Taking - Backland Value", 9 Nat. Resources J. 237 (1969).

Notes of Decisions
Cited in 12 cases (2 in the last 5 years), 1974–2025 · leading case: City of Santa Fe v. Komis, 845 P.2d 753 (N.M. 1992).
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City of Santa Fe v. Komis, 845 P.2d 753 (N.M. 1992). · cites it 4× “NMSA 1978, §§ 42-2-1 to -24 (Orig.Pamp.).”
Santa Fe S. Ry. v. Baucis Ltd. Liab. Co., 1998-NMCA-002, 952 P.2d 31. · cites it 2× “UJI 13-701 and 13-702 are a correct statement of the law under the former Act and under the current alternative condemnation procedure allowed for public roads, state highways and flood control projects.”
Cnty. of Dona Ana ex rel. Bd. of Cnty. Commissioners v. Bennett, 867 P.2d 1160 (N.M. 1994). · cites it 2× “The County filed its petition under the Special Alternative Condemnation Procedure established by NMSA 1978, Sections 42-2-1 to -24 (Orig.Pamp. & Cum.”
Bd. of Educ. v. Thunder Mountain Water Co., 2007-NMSC-031, 161 P.3d 869. “{3} The School District filed a petition for eminent domain to condemn the water line extension and associated property in accordance with the Eminent Domain Code, NMSA 1978, Sections 42A-1-1 to -33 (1981, as amended through 2001) and the Special Alternative Condemnation…”
State v. Milton, 526 P.2d 436 (N.M. Ct. App. 1974). · cites it 2× “For jails under control of sheriffs, see § 42-2-1 et seq., N.M.S.A. 1953 (2nd Repl.”
City of Albuquerque v. SMP Props., LLC, 2021-NMSC-011, 483 P.3d 566. · cites it 2× “See NMSA 1978, § 42-2-1 (1959) (providing for a “special [alternative condemnation] procedure whereby the state can enter into possession at the inception of the proceeding”).”
Cnty. of Bernalillo v. Morris, 872 P.2d 371 (N.M. Ct. App. 1994). · cites it 4× “NMSA 1978, §§ 42-2-1 to -24 (Orig.Pamp. & Cum.”
Moriarty Mun. Sch. Dist. v. Thunder Mountain Water Co., 2006-NMCA-135, 145 P.3d 92. “Thunder Mountain refused and the School District filed its petition for eminent domain to condemn the water line extension and associated property pursuant to the Eminent Domain Code, NMSA 1978, Sections 42A-1-1 to -33 (1981, as amended through 2001) and the Special Alternative…”
Bd. of Educ. v. Johnson, 1998-NMCA-048, 125 N.M. 91. · cites it 2× “See NMSA 1978, §§ 42-2-1 to 42-2-16 (1981). Under this procedure the condemning authority can obtain expedited access to the property to be condemned by depositing with the district court clerk the amount the authority is offering the property owner and also filing a surety…”
Cobb v. Sapphire Aviation LLC, No. A-1-CA-41640 (N.M. Ct. App. Aug. 25, 2025). · cites it 2× “In the FSA, Andra and the Cobbs acknowledged their designation as statutory beneficiaries under the New Mexico Wrongful Death Act (WDA), NMSA 1978, §§ 42-2-1 to -4 (1882, as amended through 2001), but waived its application as to distribution of statutory percentages.”
Moriarty Mun. Sch. Dist. v. Thunder Mtn., 145 P.3d 92 (N.M. Ct. App. 2006). “Thunder Mountain refused and the School District filed its petition for eminent domain to condemn the water line extension and associated property pursuant to the Eminent Domain Code, NMSA 1978, Sections 42A-1-1 to -33 (1981, as amended through 2001) and the Special Alternative…”
Smith v. New Mexico Coal 401(K) Pers. Sav. Plan, 591 F. Supp. 2d 1172 (D.N.M. 2008). “' § 42-2-1, et seq. (R. 508-509.) On January 25, 2005, shares of Mr.”
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