Gallup Southwestern Coal Co. v. Gallup

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 appellees motion to dismiss appellants appeal from that order.