Wells v. Arch Hurley Conservancy District , 89 N.M. 516 ( 1976 )

OPINION

SUTIN, Judge.

Plaintiffs sued defendant pursuant to § 75-31-18, N.M.S.A.1953 (Repl.Vol. 11, pt. 2), to recover for the value of property taken and for the loss of use of property which resulted from drainage of excess water into Tucumcari Lake. Over objection, the trial court, at the time of trial, transformed this claim into an eminent domain proceeding, the same as though it were brought by the defendant against the plaintiffs to condemn all of plaintiffs’ properties.

The jury returned verdicts for plaintiffs. Judgment was entered and plaintiffs appeal. We reverse.

A. The record and the applicable law show that the defendant was not entitled to an eminent domain proceeding in district court.

(1)Plaintiffs’ Complaint

On July 5, 1973, plaintiffs filed a verified claim against defendant for an assessment of damages pursuant to § 75-31-18.

Plaintiff Wells sought just compensation or damages in the sum of $36,700.00, and loss of income from his hog-raising business in the sum of $51,700.00. The total property consisted of 16 acres, more or less.

Plaintiffs Pacheco sought just compensation or damages of $6,000.00, and loss of crops and grazing of $7,200.00. The total property consisted of five acres, more or less.

(2) Defendant’s Answer

On August 31, 1973, defendant answered plaintiffs’ complaint. It alleged that the court should direct the appraisers to determine damages in accordance with § 75-29-2, N.M.S.A.1953 (Repl. Vol. 11, pt. 2). The prayer for relief requested the court to proceed under §§ 75-31-18 and 75-29-2, “and direct the Board of Appraisers to determine the value of the respective Plaintiffs [’] property for acquiring full title to it in fee simple and also the sum of the damages ... as compensable under law ....’’

(3) Section 75-31-18 is applicable.

Article 31 of the Conservancy Act covers general provisions of the Conservancy District law. Section 75-31-18 of Article 31 provides that plaintiffs petition the court for an appraisal of damages sufficient to compensate for any injury to their property ; that the court shall direct the appraisers to appraise the damages and injuries and report; that an order of the court approving the appraisal shall constitute a final adjudication of the matter unless it is appealed within 20 days. It continues:

(5) Appeal from said order to a jury may be had as hereinbefore provided in case of condemnation proceedings, . by the board of the district . [Emphasis added].

Condemnation proceedings hereinbefore provided are set forth in § 75-28-21. It reads:

The district shall also have the right, instead of having appraisals made by the appraisers, to condemn for the use of the district, according to the procedure provided by chapter XXXIV of the Codification of 1951, and all amendatory or supplementary acts, for the appropriation of land or other property taken for public use; any land or property within or without said district not acquired or condemned by the court on the report of the appraisers. [Emphasis added],

In other words, § 75-31-18 is not a substitute for condemnation proceedings referred to in § 75-28-21. Zamora v. Middle Rio Grande Conservancy Dist., 44 N.M. 364, 102 P.2d 673 (1940). The reason is clear. Under § 75-31-18, the plaintiffs initiate their claims for damages. Under eminent domain proceedings, the defendant initiates its claims for condemnation of plaintiffs’ property. The defendant did not initiate any proceedings to condemn all of plaintiffs’ property.

(4) Section 75-29-2(4) is not applicable. Article 29 of the Conservancy Act provides for the appointment of appraisers and their duties. Section 75-29-2(4) of Article 29 provides:

Before appraisals of compensation and damages are made, the board may report to the appraisers the parcels of land it may wish to purchase and for which it may wish appraisals to be made, both for easement and for purchase in fee simple, and the board may specify the particular purpose for which and the extent to which an easement in any property is desired, describing definitely such purpose and extent.

Upon such appraisals being confirmed by the court, the board shall have the option of paying the entire appraised value of the property and acquiring full title to it in fee simple, or of paying only the cost of such easement. Upon written demand by the owner, such option shall be exercised by the board within ninety (90) days after the date of the final judicial determination of such appraisals. [Emphasis added].

This section is not applicable because it applies to eminent domain proceedings brought by defendant. Defendant did not have an option.

Under subsection (4), supra, the defendant, before appraisals are made, reports to appraisers the land it wants to purchase in fee simple. This provision is applicable in eminent domain proceedings. The defendant has an option to purchase or pay the cost of an easement if the court confirms the appraisal. Under eminent domain proceedings, an appeal lies from the final confirmation of the appraisal. Section 22-9-8, N.M.S.A.1953 (Vol. 5).

In the instant case, defendant did not, before appraisals were made, report to the appraisers the parcels of plaintiffs’ land that it wanted to purchase. Under § 75-31-18, upon plaintiffs’ filing their petition, the court had a duty to direct the appraisers to appraise the damages and injuries to plaintiffs’ properties.

Defendant did not have an option because § 75-29-2(4) was not applicable to plaintiffs’ case filed under § 75-31-18.

(5) Defendant's appeal was limited to the petition filed and the appraisals made.

Under § 75-31-18, supra, when the district court approved the appraisals made, defendant had the right to appeal from that order “to a jury”, as provided by Chapter XXXIV of the Codification of 1915. Chapter XXXIV is now § 22-9-1, et seq., N.M.S.A.1953 (Vol. 5). Section 22-9-8 provides:

Within twenty [20] days after the final confirmation of any report of such [appraisal] commissioners, . . . any person interested therein may appeal from the said order and confirmation to the district court of the proper county, by filing a notice with the clerk of said court that an appeal has been so taken, and thereupon the clerk shall docket said ■cause in the district court and it shall stand for trial in said court as other civil causes are tried and shall be tried de novo, and the parties . . . shall be entitled to a trial by jury as in ordinary cases. [Emphasis added].

On August 27, 1974, the appraisers filed their report. On October 2, 1974, the trial court approved the report. The plaintiffs did not appeal. The defendant did.

On October 22, 1974, defendant filed a notice of appeal from the order approving the report of appraisers awarding damages. In addition to the notice of appeal, the notice stated:

The defendant intends to exercise the option provided in the second paragraph of Sec. 75-29-2(4) NM.S.A.1953 granting the Board of Directors the option to pay the entire appraised value of the property and acquire frill title in fee simple . . . upon the final judicial determination of the appraisals. Defendants will upon final determination make the decision whether to acquire full title in fee simple or to pay only damages for the easements. [Emphasis added].

By this notice, defendant attempted to transform plaintiffs’ petition and the appraisals made into an eminent domain proceeding. It was not entitled to this option. It was entitled to a trial de novo which does not mean the beginning of a new action.

Transwestern Pipe Line Company v. Yandell, 69 N.M. 448, 452-53, 367 P.2d 938, 941 (1961), which involved the eminent domain statute, said:

This appeal to the district court for a trial de novo is, in effect, not an appeal in the usual sense, but rather a notice of dissatisfaction with the award of compensation and damage by the commissioners and a request for a new award to be made by a jury and the court, and the trial de novo is not the beginning of a new action but a continuation of the proceeding from the time of filing of the original petition in condemnation. [Emphasis added].

For plaintiffs Pacheco, the appraisers awarded “before and after” real estate damages at $1,300.00 and special damages of $67.00.

For plaintiff Wells, the appraisers awarded “before and after” real estate damages at $9,109.00 and special damages of $1,375.00.

The trial court approved this order. The defendant was dissatisfied with this award and appealed from this order. It was entitled only to a trial on assessment of damages to plaintiffs’ property based upon plaintiffs’ petition and the appraisals made pursuant to § 75-31-18.

Reversed.

IT IS SO ORDERED.

HERNANDEZ, J. (specially concurring), and LOPEZ, J., concur.