Gallup Southwestern Coal Co. v. Gallup American Coal Co. , 39 N.M. 94 ( 1934 )

On June 1, 1932, appellee filed its application in the district court of McKinley county for the condemnation, for mining purposes, of certain rights of way over the lands of the appellant. Appellant demurred to the application, the demurrer was overruled without prejudice, and commissioners were appointed to assess the damages which appellant would sustain by the taking of the rights of way. In due course the commissioners filed their report. At the hearing upon the confirmation of the report appellant again demurred to the application, on the ground, among others, that the statute under which the proceedings were brought, sections 88-401 through 88-409 of the 1929 Compilation, was unconstitutional and in violation of article 2, §§ 4, 18, and 20, of the Constitution of the State of New Mexico, "in that the Legislature of the State of New Mexico under the said constitution has no right or authority to authorize the condemnation of any property whatsoever for private use and that it appears from this application and petition that the applicant and plaintiff seeks to condemn private property for its own private use." This demurrer was overruled, and the report of the commissioners, over the objections of appellant, modified, and, as modified, confirmed. Final judgment was entered on October 22, 1932, ordering the sheriff to put appellee in possession of the rights of way upon receipt by appellant of the amount of damages fixed by the commissioners. The case is before us on appellee's motion to dismiss appellant's appeal from that order.

Appellee, in urging the dismissal of the appeal, argues that no right of appeal to the Supreme Court exists except where the same is specifically given by statute; that the proceeding here involved is a "special proceeding" and therefore not a "civil action," within the general appellate statute; and that the statute authorizing the proceeding makes no provision for an appeal. Appellant does not seriously dispute the proposition that the proceeding authorized by sections 88-401 through 88-409 is not an ordinary civil action, but a special proceeding, and that, if a right to appeal exists, that right must be found in the statute authorizing the proceeding. He argues, however, that section 88-409 gives that right. That section reads as follows: "The proceedings provided for in this article shall be as in a court of chancery, except as otherwise provided, and the judge of the district court of the county where such land lies may render his final decree therein in chambers, as well as in term time."

The argument is that, since nothing is "otherwise provided" as to an appeal, the case is governed by the general appellate statute.

The authorities cited by appellant in support of the construction urged are clearly distinguishable. In Spencer v. City of Portland, 114 Or. 381, 235 P. 279, a right of appeal was specifically granted by the statute referred to and assimilated by the statute authorizing the eminent domain proceeding there involved. The rule is well established that: "Where a statute authorizes a condemnation and provides that the assessment of damages or proceedings shall be according to some other law referred to, if the latter gives an appeal, the same right of appeal will exist in cases under the former law." Lewis, Eminent Domain (3d Ed.) p. 1359.

Authority for the appeal allowed in People v. Bank of San Luis Obispo, 152 Cal. 261, 92 P. 481, was found in the general appellate statute (Code Civ. Proc. § 939) which provided that "an appeal may be taken from a final judgment in an action orspecial proceeding commenced in the court in which the same is rendered." Similarly, in O'Donnell v. Sixth Judicial District Court, 40 Nev. 428, 165 P. 759, the general practice act expressly gave an appeal from a final judgment in a "special proceeding." See section 5329, Rev. Laws of Nevada.

Statutory provisions as to appeals generally are found in sections 105-2501 and 105-2502 of the 1929 Compilation. The former section gives an appeal from "any final judgment in any civil action," while the latter specifies certain orders from which an appeal may be taken. Nowhere is it suggested in the statutes that an appeal lies from every exercise of chancery jurisdiction or from an order or judgment in any proceeding prosecuted in equity which does not fall within the category of a "civil action" or within one of the special classes enumerated in section 105-2502.

Authority for the entertaining of an appeal from a final order in the condemnation proceedings here involved is completely lacking, and the appeal must therefore be dismissed.

It is so ordered.

WATSON, C.J., and SADLER and BICKLEY, JJ., concur.

ZINN, J., did not participate.