New Mexico Easement and Eminent Domain Laws (2026)

In New Mexico, a prescriptive easement takes 10 years of adverse use that is open or notorious and continued without effective interruption, and each element must be proved by clear and convincing evidence. That rule comes from the New Mexico Supreme Court's decision in Algermissen v. Sutin, 2003-NMSC-001, not from a statute. On the eminent domain side, legislation effective June 15, 2007 (Laws 2007, ch. 329 and ch. 330) removed the power of eminent domain from the Metropolitan Redevelopment Code (NMSA § 3-60A-10) and repealed the Urban Redevelopment Law and the Community Development Law, and condemnation cases follow the Eminent Domain Code in Chapter 42A of the NMSA.

This page covers both halves of New Mexico law: easements between private landowners first, then the power to take private property. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New Mexico state law on private easements (recording, land use easements, prescriptive easements and easements by necessity or prior use) and on condemnation of private property under the New Mexico Constitution, the Eminent Domain Code (NMSA Chapter 42A), the special alternative procedure and relocation statutes in NMSA Chapter 42, the pipeline condemnation statute (NMSA § 70-3-5) and the other statutes that say who may condemn. It does not cover adverse possession of title (see New Mexico squatters' rights and adverse possession), homeowners' association covenants, zoning, regulatory takings, federal condemnation (see eminent domain laws by state), tribal or federal land, or city and county ordinances.

Easements in New Mexico: The Basics

An easement is a right to use someone else's land for a limited purpose, such as a driveway, a utility line or access to a road. New Mexico has no general statute defining easements; most of the rules on how they are created by implication or long use come from court decisions. Two statutes matter for written easements.

Recording. An easement granted in a deed or other written instrument should be recorded with the county clerk. Under NMSA § 14-9-3, "No deed, mortgage or other instrument in writing not recorded in accordance with Section 14-9-1 NMSA 1978 shall affect the title or rights to, in any real estate, of any purchaser, mortgagee in good faith or judgment lien creditor, without knowledge of the existence of such unrecorded instruments." An unrecorded written easement can therefore lose out to a later good-faith buyer, mortgagee or judgment lien creditor who did not know about it. To check what is on record for a parcel, see how to search New Mexico property records.

Land use (conservation) easements. The Land Use Easement Act treats these like ordinary easements: "Except as otherwise provided in the Land Use Easement Act, a land use easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as any other easement" (NMSA § 47-12-3(A)). A land use easement "is not effective and creates no rights or obligations until it is recorded in the office of the county clerk" of the county where the land lies (NMSA § 47-12-3(B)).

Solar rights. Under the Solar Recordation Act, "A solar right shall be considered an easement appurtenant" (NMSA § 47-3-8).

Prescriptive Easements in New Mexico

A prescriptive easement is a right to keep using another person's land, such as a road or a path, that arises from long use rather than a deed. New Mexico has no statute setting the elements or the period. The New Mexico Supreme Court set them out in Algermissen v. Sutin, 2003-NMSC-001, 133 N.M. 50:

"an easement by prescription is created by an adverse use of land, that is open or notorious, and continued without effective interruption for the prescriptive period"

The Court described that prescriptive period as ten years and reviewed the claim under the clear and convincing evidence standard, citing a 1992 Court of Appeals decision (Scholes v. Post Office Canyon Ranch) as "holding that each element of a prescriptive easement must be proven by clear and convincing evidence."

Algermissen describes two presumptions, while noting, in words it quoted from an earlier New Mexico decision, that in a civil trial without a jury presumptions "have no mandatory effect" on the judge's decision:

• Use that starts with permission stays permissive. Quoting its 1937 decision in Hester v. Sawyers, the Court said "a use that has its inception in permission will be presumed to continue to be permissive, until 'a distinct and positive assertion of a right hostile to the owner is brought home to him by words or acts.'"
• Otherwise, adversity is presumed. "if all of the other elements of a prescriptive easement claim are satisfied, the use is presumed to be adverse in the absence of proof of express permission." The Court added that this "does not mean that a landowner must demonstrate that he or she gave express permission in order to defeat a prescriptive easement claim"; implied permission also rebuts the presumption, and the claimant must then still prove the use was adverse.

Prescriptive easements vs. adverse possession

Both run 10 years in New Mexico, but they are different claims. An easement gives a right to use land; adverse possession transfers title. Title by adverse possession under NMSA § 37-1-22 requires possession "continuously and in good faith under color of title for ten years," and the statute adds that adverse possession is not established unless the claimant and predecessors "have for the period mentioned in this section continuously paid all the taxes, state, county and municipal, which during that period have been assessed against the property." The elements the Supreme Court listed for a prescriptive easement in Algermissen do not include color of title, good faith or tax payment. For the title side, see New Mexico squatters' rights and adverse possession, and for other filing deadlines, the New Mexico statute of limitations guide.

How an owner can prevent a prescriptive easement

Chapters 37, 42 and 47 of the NMSA contain no posted-sign or recorded-notice procedure for blocking a prescriptive easement, of the kind some states have. In New Mexico the issue turns on the Algermissen rules above: use that began with permission is presumed to stay permissive until a distinct and positive hostile assertion is brought home to the owner, and adversity is presumed only "in the absence of proof of express permission." The Court added that implied permission also rebuts that presumption, so an owner does not have to show express permission. Whether permission was given, and how it can be shown, is a question of evidence in each case.

Landlocked Property and Easements by Necessity

New Mexico has no statutory way-of-necessity or private-road condemnation procedure for landlocked owners. Chapters 37, 42, 42A and 47 of the NMSA contain no provision letting a private owner condemn a road across a neighbor's land for access. A landlocked owner's route is the common-law easement by necessity.

The New Mexico Court of Appeals in Hurlocker v. Medina, 118 N.M. 30 (Ct. App. 1994), listed three elements:

"(1) unity of title, indicating that the dominant and servient estates were owned as a single unit prior to the separation of such tracts ... (2) that the dominant estate has been severed from the servient tract, thereby curtailing access of the owner of the dominant estate to and from a public roadway; and (3) that a reasonable necessity existed for such right of way at the time the dominant parcel was severed from the servient tract."

The court also held "that unity of title under New Mexico law does not require the dominant and servient estates be carved out of a previously undivided parcel."

The New Mexico Supreme Court held in Amoco Production Co. v. Sims, 97 N.M. 324 (1981), that "A way of necessity can only arise where an owner of property severs a portion of his property and the portion retained or sold is cut off from access to a public route by the land from which it was severed." The tract in that case "was already landlocked at the time of the conveyance," so no way of necessity arose. In the same case, a deed's mineral reservation with "the right to ingress and egress for the purpose of developing same" did not create an express easement across the buyer's adjacent land.

Easements implied from prior use

A related implied easement can arise from a use that existed before a parcel was divided. For that kind of easement, the New Mexico Supreme Court in Venegas v. Luby, 49 N.M. 381 (1945), said necessity "does not mean an 'absolute necessity'" and adopted an Iowa court's description of it as meaning "that there could be no other reasonable mode of enjoying the dominant tenement without the easement."

How Easements End in New Mexico

New Mexico's statutes address the end of an easement in two settings:

• Easements taken by eminent domain. "Except as specifically provided by law, when an easement has been taken by eminent domain for public use and the public use is subsequently abandoned, the easement is extinguished and the possession of the property reverts to the owner or his successor in interest of the fee free from any rights in the condemnor" (NMSA § 42A-1-33).
• Land use easements may be released, modified or terminated "in the same manner as any other easement" (NMSA § 47-12-3(A)).

Chapters 14, 37, 42, 42A and 47 of the NMSA contain no statute ending a private easement for nonuse or abandonment and no marketable-title provision cutting off old recorded easements. For private easements, court decisions supply the rules:

• Abandonment. The New Mexico Supreme Court said in Posey v. Dove, 57 N.M. 200 (1953), that abandonment "usually implies an intention to abandon and yield and give over the right," and that where an act is relied on as the proof, "it must unequivocally indicate such intention."
• Merger. When the benefited and burdened parcels come under common ownership, "the easement is extinguished as a matter of law" (Amethyst Land Co. v. Terhune, 2014-NMSC-015).
• Extinguishment by the burdened owner's use. The Court of Appeals held in Mimbres Hot Springs Ranch v. Vargas, 2023-NMCA-046, that an easement is extinguished, partially or completely, if the servient owner's use of the area is "(1) adverse to the easement owner's rights in the easement, (2) open or notorious, and (3) continuous without effective interruption for the prescriptive period (ten years)." In that case the court held that the owners' locked gate across the easement did not satisfy the adversity element.

Eminent Domain in New Mexico

Eminent domain is the power of government, and of private entities a statute authorizes, to take private property for public use on payment of just compensation. For how New Mexico compares with other states, see eminent domain laws by state.

Article II, Section 20 of the New Mexico Constitution provides that private property "shall not be taken or damaged for public use without just compensation." The words "or damaged" reach damage to property as well as outright takings.

Federally, the U.S. Supreme Court held in Kelo v. City of New London (2005) that takings under an economic development plan that "unquestionably serves a public purpose" satisfy the Fifth Amendment's public use requirement, while emphasizing that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." The national eminent domain guide covers federal condemnation and the federal relocation rules.

New Mexico's 2007 limits on redevelopment takings

New Mexico responded to Kelo by statute rather than by constitutional amendment. Laws 2007, ch. 329 and ch. 330 (identical acts, effective June 15, 2007):

• Removed eminent domain from the Metropolitan Redevelopment Code. NMSA § 3-60A-10 now gives a local government "all the powers, other than the power of eminent domain, necessary or convenient to carry out and effectuate the purposes and provisions of the Metropolitan Redevelopment Code."
• Repealed the Code's eminent-domain section. Former § 3-60A-11, relating to eminent domain, was repealed by Laws 2007, ch. 329, § 7 and ch. 330, § 7.
• Repealed two other redevelopment laws. The same acts repealed the Urban Redevelopment Law (NMSA Chapter 3, Article 46, except Section 3-46-43 on dwellings unfit for human habitation) and the Community Development Law, effective June 15, 2007.

The municipal condemnation statute, NMSA § 3-18-10, also confines one purpose tightly. A municipality's power to condemn "for the purpose of correcting obsolete or impractical planning and platting of subdivisions" applies only to property that "(a) was platted prior to 1971; (b) has remained vacant and unimproved; and (c) threatens the health, safety and welfare of persons or property due to erosion, flooding and inadequate drainage" (NMSA § 3-18-10(B)(3)).

These changes remove specific powers. They do not stop other condemnors from using the powers their own statutes grant.

Who may condemn

• State and local governments. The state, counties, municipalities and school districts may condemn for listed public uses, including public buildings, roads and streets, parks, water and irrigation works, electric lines and airports. Unless the petition "specifically provides for a transfer of less than the fee," land taken under that section is "acquired and held in fee simple absolute" (NMSA § 42A-3-1).
• Railroads, telephone and telegraph companies have condemnation power (NMSA § 42A-2-1), but a telephone or telegraph company may not "enter or appropriate any dwelling, barn, store, warehouse or similar building erected for any commercial, agricultural or manufacturing purposes" (NMSA § 42A-2-2).
• Utility corporations organized for gas, electricity or steam may appropriate rights-of-way "not exceeding a strip one hundred feet wide in any one place" and may condemn if they cannot agree with the owner; for an electric transmission line that needs a wider right-of-way, unless the parties agree on the width, the applicant must ask the state's public utility regulator to determine the width necessary (NMSA § 62-1-4(A)).
• Water works. "The United States, the state or any person, firm, association or corporation" may condemn property and rights-of-way for works that store or convey water for beneficial uses (NMSA § 72-1-5).
• Acequias. When a municipality condemns a ditch, canal or acequia for street work, a written protest signed by at least half of the persons with a right to take water from it at or below the condemnation point, whose rights may be affected, is "a sufficient defense" (NMSA § 42A-3-3(B)).

Pipelines, including carbon dioxide

NMSA § 70-3-5(A) lets "Any person, firm, association or corporation" condemn rights-of-way for pipelines "for the purpose of conveyance of petroleum, natural gas, carbon dioxide gas and the products derived therefrom, but any such right-of-way shall in all cases be so located as to do the least damage to private or public property consistent with proper use and economical construction." The land is acquired under the Eminent Domain Code. Under § 70-3-5(B), the power applies to trunk lines and "shall not apply to gathering lines other than pipelines owned or operated by public utilities or their affiliates or interstate pipelines or to operators of pipelines whose rates are prescribed or whose operations are licensed by the state corporation commission [public regulation commission] pursuant to Section 70-3-1 or 70-3-2 NMSA 1978."

Before the case is filed: negotiation and appraisal

The Eminent Domain Code builds in a pre-suit step with short deadlines:

• Requesting an appraisal (25 days). "If the parties are unable to negotiate a settlement, the condemnee may, within twenty-five days after written notice by the condemnor of its intent to file a condemnation action in district court, give written notice to the condemnor requesting an appraisal" (NMSA § 42A-1-5(A)). An owner who lets the 25 days pass loses that step.
• Answering the offer (15 days). "The condemnee must reject or accept the offer made by the condemnor pursuant to this section within fifteen days after the offer is tendered" (NMSA § 42A-1-5(E)).
• Sharing appraisals. "Unless prohibited by federal law," each side that has had appraisals prepared must make them available to the other during the negotiation period (NMSA § 42A-1-4(B)).
• The appraisal panel. A requested appraisal comes from one appraiser appointed by each side and a third appointed jointly by those two. Each side appoints its appraiser within 15 days after the owner's request, and the third is appointed within 15 days after that. Each side pays its own appraiser, and the two sides share equally the fees and expenses of the jointly appointed one (NMSA § 42A-1-5(A), (B), (D)).
• Offer floor. An offer made after the panel appraisals "shall not be less than the amount of compensation shown by the final common appraisal of the three appraisers or if all three appraisers do not agree, the offer shall not be less than the appraisal prepared by the condemnor's appraiser" (NMSA § 42A-1-5(E)).
• Good-faith purchase effort. "Except as provided in Sections 42A-1-7 and 42A-1-27 NMSA 1978, an action to condemn property may not be maintained over timely objection by the condemnee unless the condemnor made a good faith effort to acquire the property by purchase before commencing the action" (NMSA § 42A-1-6(A)). An offer made in substantial compliance with Sections 42A-1-3 through 42A-1-4 "is prima facie evidence of good faith" (§ 42A-1-6(B)). Under § 42A-1-7, a failure to negotiate, share appraisals or appoint an appraiser does not bar the case in listed situations, including when the owner fails to provide its own appraisals or the panel does not deliver its appraisals within 30 days after the jointly appointed appraiser was appointed. The defense depends on a timely objection.

The court case: answer, commissioners and jury trial

• Answer (30 days). The notice of the petition directs the owner to "appear and answer to the petition within thirty days after service of notice" (NMSA § 42A-1-18(A)(4)).
• Commissioners. If no pre-suit appraisal panel was used, the court appoints "up to three disinterested commissioners" who live in the county and know local property values. They report the damages within 30 days unless the court extends the time for good cause, and the condemnor pays the assessed amount to the clerk (NMSA § 42A-1-19(A), (C)). If a panel appraisal was prepared, the condemnor files it with the petition and deposits the appraised amount (NMSA § 42A-1-18(C)).
• Commissioners' report. The court may review the commissioners' report "on written exceptions filed in the clerk's office by either or any party within thirty days after the time of the filing of the report" (NMSA § 42A-1-20(C)).
• Jury trial demand (20 days). Within 20 days after the filing of the petition if an appraisal has been prepared, or after final confirmation of the commissioners' report, "a party may demand trial of any issues remaining in the cause. The cause shall be tried de novo, and unless waived, the parties shall be entitled to a trial by jury" (NMSA § 42A-1-21(A)).
• Withdrawing the deposit waives defenses. An owner "may apply to the court to withdraw an amount not to exceed sixty-six and two-thirds percent of the amount deposited," but "A condemnee who withdraws funds ... waives all objections and defenses to the condemnation action, except for any claim to greater compensation" (NMSA § 42A-1-19(E)-(F)). An owner who wants to contest the right to take gives up that challenge by withdrawing.

Immediate possession and the special alternative procedure

Under the Eminent Domain Code, the court "shall make an order authorizing the condemnor to take immediate possession of the property if it finds that the use for which the property sought to be condemned is a public use and that immediate possession is necessary" (NMSA § 42A-1-22(C)). The condemnor applies when it files the petition, and the court sets a hearing "within thirty days of the filing" (§ 42A-1-22(A)-(B)). If possession is ordered and no Section 42A-1-5 offer was made, the court requires a deposit in an amount it sets, later adjusted to reflect the commissioners' report upon its final confirmation; amounts the owner already withdrew are credited against the award, not refunded (§ 42A-1-22(D)). The order states the date the condemnor may take possession (§ 42A-1-22(E)).

The state and its political subdivisions can also use a separate special alternative procedure in Chapter 42, Article 2. Under NMSA § 42-2-6(A), a preliminary order permitting the condemnor "to immediately enter and occupy the premises sought to be condemned pending the action" may be obtained "without notice, upon the filing of the surety bond and deposit of money with the court," and "unless objection thereto is filed within ten days after service thereof, the court shall deem such owner in default." Ten days is a short window. Once the order is made permanent, "all subsequent proceedings shall only affect the amount of compensation allowable" (NMSA § 42-2-6(C)), so objections to the taking itself belong in that window. For rights-of-way taken from a private owner, no order of entry may be granted until the amount offered is deposited; the owner may draw it by court order after the time to answer has passed without giving up a claim to more, and "The court or jury shall not award a lesser sum than that shown by the petitioner's appraised value testified to in court" (NMSA § 42-2-6(B)). The answer is due within 30 days after service (NMSA § 42-2-9), and an affidavit to disqualify the judge must be filed within the time allowed for objecting to the preliminary order (NMSA § 42-2-19(B)).

How just compensation is calculated

• Valuation date. "For the purposes of assessing compensation and damages, the right thereto shall be deemed to have accrued as of the date the petition is filed, and actual value on that date shall be the measure of compensation for all property taken" (NMSA § 42A-1-24(A)). The New Mexico Supreme Court held in County of Doña Ana v. Bennett, 116 N.M. 778 (1994), that under Article II, Section 20 "the right to compensation accrues and is measured as of the date of the taking," and that the special alternative procedure's filing-date rule (NMSA § 42-2-15(A)) is unconstitutional to the extent it sets a different date. Under that procedure the Court adopted the date the preliminary order of entry becomes effective as the valuation date. It called the Eminent Domain Code's filing-date rule "questionable" where a taking happens after the petition is filed, but expressly did not decide that question.
• Partial takings. "The measure of compensation and damages resulting from the taking shall be the difference between the fair market value of the entire property immediately before the taking and the fair market value of the property remaining immediately after the taking" (NMSA § 42A-1-26). Benefits count only against damage to the remainder: "elements which would enhance or benefit any property not taken shall only be considered for the purpose of offsetting any damages or diminution of value to the property not taken."
• Interest. The judgment includes "interest at the rate of ten percent a year upon the unpaid portion of the compensation awarded from the date the petition is filed to the date of payment or the date when the proceedings are finally abandoned" (NMSA § 42A-1-24(B)). The same subsection excludes interest on funds the condemnor deposited under Sections 42A-1-19 and 42A-1-22. Under the special alternative procedure, the statute sets interest at six percent a year (NMSA § 42-2-15(B)), and the final judgment does not include interest on the advance deposit from the date it was made (NMSA § 42-2-6(B)).

The Eminent Domain Code (Chapter 42A) and Chapter 42, Articles 2 and 3, contain no provision adding a percentage bonus for a home and no clause compensating business goodwill or lost profits. Case law adds one rule: the New Mexico Supreme Court held in Primetime Hospitality, Inc. v. City of Albuquerque, 2009-NMSC-011, that "in an inverse condemnation proceeding, lost profits may be recovered when they are the best measure of the value of the lost use and enjoyment of condemned land." That case involved the city's admitted temporary total taking of the property. Relocation payments, below, are separate.

Attorney fees and litigation expenses

NMSA § 42A-1-25(A) says "The court shall award the condemnee his litigation expenses whenever: (1) the condemnor has abandoned the condemnation proceeding; (2) the condemnation proceeding has been dismissed for any reason except when a bona fide settlement has been reached; or (3) there is a final determination that the condemnor does not have a right to take the property sought to be acquired in the condemnation proceeding." Litigation expenses include "all expenses reasonably and necessarily incurred in the condemnation proceeding," including "reasonable attorney's fees, appraisal fees and fees for the services of other experts" (NMSA § 42A-1-2(F)).

Chapter 42A contains no provision shifting fees to the condemnor because the final award exceeds its offer. Under the special alternative procedure, NMSA § 42-2-21 provides: "If the total amount of the final judgment exceeds the total amount offered by petitioner, excluding interest, for the tract or tracts for which the judgment is rendered, the petitioner shall bear all taxable costs or fees as in any other action or proceeding."

Other rules shift costs. "Except as expressly provided by law," the condemnor pays the costs of the condemnation proceeding, including the cost of the commissioners' final report and their compensation (NMSA § 42A-1-32). On projects where federal law or a federal grant contract requires it, the court awards the owner reasonable attorney, appraisal and engineering fees when the final judgment is that the agency cannot acquire the property by condemnation or the agency abandons the proceeding (NMSA § 42-3-9), and awards them to an owner who wins, or settles, an inverse condemnation case for the actual physical taking of the property (NMSA § 42-3-10).

Relocation assistance

The Relocation Assistance Act in NMSA Chapter 42, Article 3 sets several payments for people displaced by a project:

• Moving and related costs. When a project will displace a person, the displacing agency "shall provide for payment" of actual reasonable moving expenses, certain direct losses of tangible personal property, reasonable expenses of searching for a replacement business or farm, and actual reasonable expenses to reestablish a displaced farm or business at its new site, "not to exceed twenty-five thousand dollars ($25,000)" (NMSA § 42-3-5(A)). A person displaced from a dwelling may instead elect an expense and dislocation allowance set by the agency's schedule (§ 42-3-5(B)).
• Business or farm fixed payment. An eligible displaced business or farm may instead elect a fixed payment of "not less than one thousand dollars ($1,000) nor more than forty thousand dollars ($40,000)" (NMSA § 42-3-5(C)).
• Homeowner supplement. The displacing agency "may make an additional payment not to exceed thirty-one thousand dollars ($31,000) to a displaced person who is displaced from a dwelling actually owned and occupied by the displaced person for not less than ninety days prior to the initiation of negotiations" (NMSA § 42-3-6(A)). The statute says "may," so the payment is not stated as mandatory. It is made only to an owner who "purchases and occupies a comparable replacement dwelling" within one year after receiving final payment for the acquired dwelling (or after the agency's housing obligations are met, if later), unless the agency extends the period for good cause (NMSA § 42-3-6(B)).
• Tenant payment. A person displaced from a dwelling who is not eligible for the homeowner supplement and who lawfully occupied it for at least 90 days before negotiations began receives the amount needed to rent a comparable replacement dwelling for up to 42 months, but "at no time shall this payment exceed seven thousand two hundred dollars ($7,200)." The person may elect to apply the payment toward a down payment on a comparable replacement dwelling (NMSA § 42-3-7).
• Replacement housing. "No person shall be required to move from his dwelling on account of any project unless the displacing agency is satisfied that a comparable replacement housing is available to the person" (NMSA § 42-3-12(B)).

A person who disagrees with a decision on eligibility for relocation payments or their amount has the right to a hearing before the displacing agency or its hearing officer, and may then appeal to district court under NMSA § 39-3-1.1 (NMSA § 42-3-14). The Act is effective only so long as Congress authorizes and appropriates money for the federal relocation payments it ties to (NMSA § 42-3-15).

Taking without paying: inverse condemnation

Under NMSA § 42A-1-29(A), "A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest."

The defendant in that action "may plead adverse possession as defined by Section 37-1-22 NMSA 1978 or acquisition by prescription as a defense to the action, but no other statute of limitation shall be applicable or pleaded as a defense thereto except as provided in Section 42A-1-31 NMSA 1978" (NMSA § 42A-1-30). Against a state agency or political subdivision, the deadline is in Section 42A-1-31(B): no action may be commenced "unless such action or proceeding is brought within three years from the date of the taking or damaging." That subsection still names Section 42-1-23, which was repealed and replaced by Section 42A-1-29. The New Mexico Supreme Court held in Townsend v. State ex rel. State Highway Department, 117 N.M. 302 (1994), that "the applicable statute of limitations for inverse condemnation claims is three years from the time of the injury," and that in that case "a new cause of action arose each time the Highway Department removed sand and gravel." Against other condemnors, Section 42A-1-30 leaves only adverse possession or prescription as a time defense.

Section 42A-1-31(A) is a different rule. A person claiming an interest in property a public body acquired or holds must sue within three years after first becoming entitled to reclaim it, and that date "is the date of abandonment of the use for which the property was taken."

A special rule covers repeat takings. If a condemnor that already took or was granted an owner's land later takes or damages contiguous land from that owner without paying or condemning it, the owner receives compensation "at the greater of fair market value or a unit rate of five times" what the owner received for the land first taken, increased or reduced ratably for any difference in width (NMSA § 42A-1-29(B)).

Getting land back

• Abandoned condemned easements are extinguished and possession reverts to the fee owner (NMSA § 42A-1-33, quoted above).
• Excess land. Under NMSA § 42-2-23, if condemned property is determined to be in excess "within five years of the date of condemnation, the prior owner ... shall have the option to purchase the property determined to be in excess ... at a price equal to the price paid ... plus interest at the rate of six percent per year." The price is reduced by any liens that attached while the condemnor held the land. The prior owner must elect to exercise the option within 30 days after the notice of intent to dispose is mailed; otherwise "the condemnor shall sell the property at public sale." The option does not apply to land that was wholly within the boundary of an incorporated municipality when it was condemned (NMSA § 42-2-24).

Owner deadlines and traps

New Mexico Easement and Eminent Domain Law at a Glance

Related New Mexico Guides

• Easement laws by state
• Eminent domain laws by state
• New Mexico squatters' rights and adverse possession
• New Mexico property records
• New Mexico statute of limitations

This article is general legal information about New Mexico law, not legal advice. Easement and condemnation disputes turn on specific facts, deeds and deadlines. For advice about a specific situation, contact a lawyer licensed in New Mexico.

Last updated: 2026-10-19.

Frequently Asked Questions

How long does it take to get a prescriptive easement in New Mexico?

Ten years. The New Mexico Supreme Court in Algermissen v. Sutin (2003) described a prescriptive easement as adverse use that is open or notorious and continued without effective interruption for the prescriptive period of ten years, with each element proved by clear and convincing evidence. The period comes from case law, not a statute.

Do you have to pay property taxes to get a prescriptive easement in New Mexico?

The elements the New Mexico Supreme Court listed for a prescriptive easement in Algermissen v. Sutin do not include paying taxes. Tax payment and color of title are requirements of NMSA § 37-1-22, which governs title to land by adverse possession.

What if my land is landlocked in New Mexico?

New Mexico courts recognize a common-law easement by necessity when the parcels were once under common ownership, a severance cut off access to a public road, and a reasonable necessity for the way existed at the time of severance (Hurlocker v. Medina, 1994). The New Mexico Supreme Court held in Amoco Production Co. v. Sims (1981) that a way of necessity arises only where an owner severs part of the land and the severed or retained part is cut off from a public route by the land it was severed from, so a tract already landlocked before the conveyance gets none. Chapters 37, 42, 42A and 47 of the NMSA contain no statutory procedure for a private owner to condemn a road across a neighbor's land for access.

How do I stop someone from getting a prescriptive easement in New Mexico?

Chapters 37, 42 and 47 of the NMSA contain no posted-sign or recorded-notice procedure for this. Under Algermissen v. Sutin, use that begins with permission is presumed to remain permissive until a distinct and positive assertion of a hostile right is brought home to the owner, and adversity is presumed only in the absence of proof of express permission. The Court added that an owner does not have to show express permission: implied permission also rebuts that presumption, and the claimant must then still prove the use was adverse.

Can New Mexico take my property for a private developer?

Laws 2007, ch. 329 and ch. 330, effective June 15, 2007, removed the power of eminent domain from the Metropolitan Redevelopment Code (NMSA § 3-60A-10), repealed that Code's eminent-domain section, and repealed the Urban Redevelopment Law and the Community Development Law. Those changes apply to those redevelopment laws; other condemnors keep the powers their own statutes grant, and a court decides whether a particular taking is lawful.

Can a pipeline company use eminent domain in New Mexico?

Generally yes, for trunk lines. Under NMSA § 70-3-5 a person or company may condemn rights-of-way for pipelines carrying petroleum, natural gas, carbon dioxide gas and their products, located to do the least damage consistent with proper use and economical construction. The power applies to trunk lines and generally not to gathering lines; § 70-3-5(B) sets out the exceptions and exclusions. A court decides whether a particular taking is lawful.

How is just compensation calculated in New Mexico?

Under the Eminent Domain Code, the right to compensation is generally deemed to accrue on the date the petition is filed, and actual value on that date measures compensation for property taken (NMSA § 42A-1-24). The New Mexico Supreme Court has held that under the state constitution compensation accrues and is measured as of the date of the taking (County of Doña Ana v. Bennett, 1994). In a partial taking, damages are the difference between the fair market value of the whole property just before the taking and of the remainder just after, and benefits to the remainder only offset damage to the remainder (NMSA § 42A-1-26). Under the Eminent Domain Code the judgment adds interest at 10% a year on the unpaid portion of the award, but not on money the condemnor deposited; the special alternative procedure sets 6% (NMSA § 42-2-15).

Does the government pay attorney fees in a New Mexico eminent domain case?

Under NMSA § 42A-1-25 the court must award the owner litigation expenses, including reasonable attorney, appraisal and expert fees, when the condemnor abandons the case, the case is dismissed for any reason other than a bona fide settlement, or there is a final determination that the condemnor has no right to take the property. Under the special alternative procedure in Chapter 42, Article 2, the petitioner bears taxable costs or fees if the final judgment exceeds its offer (NMSA § 42-2-21). Where federal law or a federal grant contract requires it, the court also awards attorney, appraisal and engineering fees when the condemnation fails or is abandoned (NMSA § 42-3-9) and when an owner wins or settles an inverse condemnation case for an actual physical taking (NMSA § 42-3-10).

What happens if I withdraw the deposit in a New Mexico condemnation case?

An owner may apply to withdraw up to 66 2/3% of the amount deposited, but an owner who withdraws funds waives all objections and defenses to the condemnation action except a claim to greater compensation (NMSA § 42A-1-19).

How long do you have to sue for inverse condemnation in New Mexico?

Against a state agency or political subdivision, an action for a taking or damaging without condemnation must be brought within three years from the date of the taking or damaging (NMSA § 42A-1-31(B)). The New Mexico Supreme Court held in Townsend v. State ex rel. State Highway Department (1994) that the period is three years from the time of the injury, and in that case a new cause of action arose each time the Highway Department removed sand and gravel. Against other condemnors, only adverse possession or prescription may be pleaded as a time defense (NMSA § 42A-1-30).