STATE EX REL. STATE HWY. COMM'N V. PEACE FOUND., INC., 1968-NMSC-173, 79 N.M. 576, 446 P.2d
443 (S. Ct. 1968)
STATE of New Mexico ex rel. STATE
HIGHWAY COMMISSION of New
Mexico, Petitioner-Appellee and Cross-Appellant,
vs.
PEACE FOUNDATION, INC., and Wilhelmina N. Coe and Ralph M.
Coe, Defendants-Appellants and Cross-Appellees
SUPREME COURT OF NEW MEXICO
1968-NMSC-173, 79 N.M. 576, 446 P.2d 443
Oliver B. Cohen, Albuquerque, for
defendants-appellants and cross-appellees.
Boston E. Witt, Atty. Gen., Joseph L.
Droege, Special Asst. Atty. Gen., Santa Fe, for petitioner-appellee and
cross-appellant.
Chavez, Chief Justice. Noble and Compton,
JJ., concur.
The motion for rehearing is denied; the original opinion
filed herein is withdrawn and the following substituted therefor:
{1} Suit was brought in the
District Court of Bernalillo County by the State Highway Commission seeking to
acquire by condemnation certain parcels of land owned by defendants-appellants,
Peace Foundation, Inc. and Wilhelmina N. Coe and Ralph M. Coe. The land was
needed for the construction of Interstate Route 40 in Albuquerque, New Mexico.
The trial court ordered separate trials for appellants, Peace Foundation, Inc.
and Ralph and Wilhelmina Coe. Each trial was to a jury and resulted in verdicts
for appellants.
{2} The petition in
condemnation was filed on October 16, 1963. On March 2, 1965, an order signed
by another district judge was entered, reciting that the case having been set
for jury trial on December 2, 1964, and appellants, Peace Foundation, Inc. and
Ralph M. Coe and Wilhelmina N. Coe, by their attorney, having asked for a
continuance, ordered that the interest on any award made to appellants, for
their interest in the tracts condemned, cease to accrue as of December 2, 1964.
The order was approved by appellee's attorney and excepted and objected to by
appellants' attorney. On September 13, 1965, the respective parties stipulated
in writing that the case, as to Peace Foundation, Inc. and Ralph and Wilhelmina
Coe be continued.
{3} On September 29, 1966, a
jury returned a verdict in favor of Peace Foundation, Inc. in the sum of $
60,210. On October 7, 1966, Peace Foundation, Inc. filed a motion seeking to
set aside the order suspending interest as of December 2, 1964. The trial court
denied the motion, setting out that it had inherent power to impose conditions
for the granting of a continuance, and that the party who accepts the
continuance thereby assents to the terms and conditions imposed, must comply
therewith, and cannot thereafter attack such order. Judgment was entered on
November 14, 1966, for Peace Foundation, Inc. in the sum of $ 60,210, but
interest was excluded from December 2, 1964, until September 29, 1966, the date
of the jury verdict.
{4} On January 18, 1967, a
jury rendered a verdict in the sum of $ 35,000 in favor of Wilhelmina N. Coe and
Ralph M. Coe and judgment, excluding interest from December 2, 1964, to January
18, 1967, was entered on June 2, 1967. Also, on June 2, 1967, an order was
entered denying appellants Coes' motion to set aside the court's order
suspending interest as of December 2, 1964. It is from the two judgments set
out above that appellants prosecuted this appeal.
{5} The question presented is
whether the trial court erred in excluding interest on the two judgments from
December 2, 1964, until the dates of the respective jury verdicts.
{6} By the enactment of Ch.
97, § 9, Laws 1905, now § 22-9-9, N.M.S.A., 1953 Comp., the legislature showed
its intent that the owner of property which is condemned shall receive interest
from the time his possession is invaded. That act provides that:
"* * * 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. * * *"
{7} In A.T. & S.F. Ry.
Co. v. Richter,
20 N.M. 278,
148 P. 478 (1915), this court held that the owner
of land taken in condemnation proceedings should have interest from the time
his possession is invaded, either with or without an order of the court. This
ruling was followed in United States v. Rogers, 257 F. 397 (8th Cir. 1919),
aff'd 255 U.S. 163, 41 S. Ct. 281, 65 L. Ed. 566 (1921), which involved lands
in New Mexico
{*578} appropriated by the
federal government for public use. See also, United States v. Highsmith, 257 F.
401 (8th Cir. 1919), aff'd 255 U.S. 170, 41 S. Ct. 282, 65 L. Ed. 569 (1921).
{8} The applicable statute in
this case is termed "special alternative procedure." The legislative
intent is clearly stated in § 22-9-39, N.M.S.A., 1967 Pocket Supp., and §
22-9-52(B), N.M.S.A., 1967 Pocket Supp., provides:
"Whenever just compensation shall be ascertained
and awarded in such proceeding and established by judgment, the judgment shall
include as a part of the just compensation awarded, interest at the rate of six
per cent [6%] per annum from the date of the date the petition is filed to the
date of payment or the date when the proceedings are finally abandoned."
{9} It is clear that §
22-9-52(B), supra, does not allow a trial court to suspend interest in
condemnation proceedings under the Special Alternative Procedure Act.
{10} As we read the order
granting the continuance and directing the suspension of interest, it is
questionable whether any conditions were imposed for granting the continuance
on December 2, 1964. Also, as heretofore stated, the parties on September 13,
1965, stipulated in writing to a continuance. Thus, if appellants were
responsible for the original continuance, they were not responsible for the
continuance from September 13, 1965, to the dates that the verdicts were
rendered in September 1966 and January 1967. The delay in bringing the cause to
trial was due, in part at least, to the delay from December 2, 1964, to March
2, 1965, the date of the order disallowing interest, and also due to the
stipulation by the parties for continuance on September 13, 1965. We are
satisfied that, under the circumstances of this case, the allowance of interest
from the date the petition was filed is essential to just compensation. Article
II, § 20, Constitution of New Mexico.
{11} The cause is remanded to
the district court with direction that a new judgment be entered in conformity
with the verdicts of the jury, and allowing appellants interest on the
judgments from the date the petition in condemnation was filed to the date that
the judgments are paid.