State Ex Rel. State Highway Commission v. Chavez , 77 N.M. 104 ( 1966 )

OPINION

MOISE, Justice.

The appellants have perfected this appeal from an order dismissing condemnation proceedings commenced by appellee. Appellants were the holders of a business lease on a piece of property abutting on U. S. Highway 66, and for several years had operated a filling station, grocery store, cafe and bar thereon. The lease by its terms expired on January 30, 1958. On September 9, 1957, the Commissioner of Public Lands conveyed access rights in the property to appellee.

The condemnation proceeding was commenced and notice as provided in § 22-9-2, N.M.S.A.1953, was issued on August 9, 1957. Immediately upon the filing of the petition, and on the same day, appellee filed a motion “for an order permitting the plaintiff [appellee] to occupy the premises sought to be condemned, pending the action, * * * ” together with a notice as provided in § 22-9-18, N.M.S.A.1953. On August 20, 1957, a hearing was held and an order entered allowing appellee to take immediate possession conditioned on the filing of a $35,000.00 bond. The order contained an injunction restricting the free and unhindered access previously existing in appellants and limited the right to enter and depart to certain points described in the petition.

Notwithstanding the order, appellants remained in possession of the leased property while the highway construction proceeded and they continued to operate their business thereon until the end of the lease. Upon a showing to this effect being made, a motion by appellee to dismiss the action as moot was sustained by the court. This appeal followed.

j The question here present is whether the court was correct in dismissing the action as moot, thereby foreclosing the right of appellants to any damages resulting to them from the taking or damaging of their right to access to the leased property from ■August 20, 1957, to January 30, 1958, the end of the lease term.

There can be no question that the right to access is a property right, and that the same may not be taken or damaged without the payment of compensation. State Highway Comm. v. State ex rel. Silva, 71 N.M. 350, 378 P.2d 595. Since .this is true, are appellants entitled to compensation upon filing of the proceeding and entry of the order for immediate possession, whether or not their access was physically interfered with? We answer the question in the affirmative.

Section 22-9-9, N.M.S.A.1953, is controlling. It reads as follows:

“For the purposes of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the notice, and its actual value at that date, shall be the measure of compensation of all property to be actually taken, and also the basis of damages to property not actually taken but injuriously affected, and in all cases where such damages áre legally recoverable. If an order be made letting the plaintiff into possession as provided in this chapter, the compensation and damages awarded shall draw lawful interest from the date of such order. No improvements put upon the property, subsequent to the date of the service of notice or put thereon after the actual taking of the land, shall be included in the assessment of compensation or damages.”

In our view, the language of the statute is clear and unambiguous. Without repeating the language, it seems apparent that the right to damages accrued on the date of notice (August 9, 1957), and the actual value on that date of whatever was condemned, or for damages inflicted, is fixed as the measure of, damages. It is equally obvious that where the order admitting appellee into ' possession was 'en-, tered on August 20, 1957, interest on the award’ran from that date. See 3 Nichols, Eminent Domain, § 8.5[1].

We do not perceive that the rights of appellants were in any way altered after August 9, 1957, by the fact that they continued to enjoy free access. The enjoyment was in violation of the court order for which they could have been held in contempt. Their right to compensation was just as fixed and complete as was the right of the owner of property which had been condemned and the property actually entered and improved as held by us in City of Albuquerque v. Chapman, (No. 7920, filed October 17, 1966), 77 N.M. 86, 419 P.2d 460.

The rule has been applied in California in City of Los Angeles v. Blondeau, 127 Cal.App. 139, 15 P.2d 554. Arizona also recognizes the rule. We quote the following from Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652, 659:

“Under the reasoning of these cases, which we accept and adopt, the legislature may establish some convenient time, as of which the value of the property will be assessed and the amount of compensation fixed. The date of summons, the date of trial, or some other date during the proceedings might have been chosen. The legislature * has established the date of trial as this time in § 9-518 A.R.S., and while, in particular cases; the condemnee might fare better or worse under this than under another possible rule, the condemnee may not complain when, because of market fluctuations, the compensation fixed by this rule is less than the market value at some other time during the condemnation proceedings. Nor is the situation altered when the condemnor is permitted to go into possession prior to the date as of which compensation is fixed, since the market value on that date is unaffected by the identity of the party in possession.

“When immediate possession is granted to the condemnor, however, the condemnee is deprived of the use of his property between the date of such entry and the date when the compensation is paid to him. He would therefore be entitled to interest on the amount of the award from the date of entry by the condemnor * *

See also, Veirs v. State Roads Comm., 217 Md. 545, 143 A.2d 613; Edmands v. City of Boston, 108 Mass. 535, 547; Ft. Wayne & S. W. Traction Co. v. Ft. Wayne & W. Ry. Co., 170 Ind. 49, 83 N.E. 665, 16 L.R.A.,N.S., 537.

It follows that the court erred in dismissing the cause as moot. The order of dismissal is reversed and the cause remanded with instructions to reinstate it on the docket and proceed to determine what damages, if any, appellants were entitled to on August 9, 1957, with, interest on any amount found from and after August 20, 1957.

It is so ordered.

CARMODY, C. J., and CHAVEZ and COMPTON,. JJ., concur. NOBLE, J., dissenting.