Albuquerque evening herald. [volume] (Albuquerque, New Mexico) 1911-1914, 1913-04-01

N~aefAeitN
of she acequla Ia question. adversely
60 the contention % appelioca Il
,. Our view. therefore that the use
10 which The irrigation ditch IN ques-
tIon WAS dovo,sd was public use
and consequently the cl,y would not
have the right 90 condemn the same
and thereby destroy Il, unless such
right was expressly or BY necessary
implicnliom conferred upon the city
BY the legislature.
/ 2. The legislature. AZ the supreme
and a0yefoian power Of the state. may
doubtless Interfere with property de-
voted % n public uno for one purpose
and apply Il 10 another; but the leg-
ialativU intent 20 do so must be stated
In clear and express terms, or must
appear from necessary implication.
subsection ~ OF section 2t0s. q. T..
1907. under which the power Of con-
damnatlon - claimed By the city.
reads az f0nnwt. "That municipal
lcorporations shall have the power and
right OF condemnation OF private
property nor public use Ia the follow
ling cases, 10 wit: for tho laying cat.
lWNtMaNh NAN NANNMAI4k Vi NANNNAH MMM
lalleys and highways or approaches to
slreets. ...... both within their COR
porate limits and for a distance 81
1.-TWO miles outside OF the same"
lChapter ~ OF the Session Laws OF
1895. under which authority II also
claimed by the city, provides for the
condemnation OF property by rail-
road. telegraph. telephone companies.
-.
Is material. reads as follows; I'm case
lands or other property are sought
TO be appropriated by any railroad,
Telephone. telegraph company. etc"
This IN followed by specific provisions
Applying only 10 the companies
named. but section 10. which we APP
prehend II the section claimed by ap-
pclleos 10 confer upon the city addi-
tional authority To condemn property,
insofar as the same II material. reads
las follows; In addition TO the pur-
posse hereinbcfore specifically men
toned for which property may be
condemned under the provisions Of
this act. It may also be condemned
Tor &C.. public buildings and grounds
for the use 81 any county. incorpor-
lated city. or city and county. village.
a H F
the banks OF streams. removing OBJ
Istructions thcrefrom. roads. streets
land alleys. public parks. and all other
lpublic uses FOR the benefit Of any
icounty. Incorporated city. .... which
may be- authorized by law ...... for
lcauals. bitches. numes. aaueducts.
pipes, for irrigation u win be OBJ
lscrVcd that no cxprcss power In CON
a..
lcrty already devoted Co public use
pose whatever.
II Il bc argued that chapter 81 su-
ora cunfers such power upon cities
by the language used In section L. lin
sought Ia be appropriated aud such
argument were sound. the result
would be that any corporation, mu-
niclpnl or priNaie. or person. upon
WHOM the right Of bondenination was
conferred by said chapter. could con-
dcmn property already devoted 90 "a
public Use by another corporation or
pcrson. and In tho cas-, now under
consideration. II the city OF AlbUquer-
,euc should prevail and condemn the
Hitch In question. the owners OF the
lditch. under the very chapter which
1.-The city invoices could likewise con-
denim the RANT OF way taken from
them ny the city and rc-establish
Ithclr ditch where n nov ls. The city
Of Albuquerque would have the pow
or under this construction 10 con-
denim all the property of the A. r a.
Il. r. Railroad Go. Within its limits.
Ia condemn the county court house
we're the Aamc within IT'S boundaries.
We do net believe tho language cupa-
bic OF the construction sought 10 be
placed upon IL by appcllccs.
In the ease OF Boston a. Albany
Railroad Go. W. city Council of Cam
bridge. 1876 Mass. 2ei. the court had
before u the construction of stat
ate comforting power uuon the city of
,0mhridgU 10 take aud hold by pur-
chase or othcrw iss any and alt such
real estate us 1t iuuy deem advisable. %
aud 80 las out, maintain and i'm
prove the same as a public park or
parks" Under this power the city
sought To- las out park embracing
lands In actual use lay a railroad COM
punN The court says: "'rhc general
words uf the statute, comforting pow
cr to take aud hold by purchase or
othcrW isc any and OH such real estate
and lands Within said city az Il may
deem advisable. and to lay out,
maintain aud Improve the same as u
public park or parks. was not in
tended 10 authorize the tSsinR IN fee
] OF lands already devoted 10 public use
as parts of the actual location of a
railroad, any more than TO uuihOTiae
the taking of the court house. she jail
or the house OF correction aud the
Z lands of the county OF MiddleseX un-
, der the same, also situated within IN,
lefty"
The case of The Matter OF Cliy oi
Buffalo. GS s. !. iG7. viii bo found
VERY instructive upon this proposi-
ton. Justice Folgcr speaking for the
court. save In determining wheth.
Ter power generally given. IL meant
TO have operation upon lands alreads
devoted by legislative authority 10 d
public purpose, ID Is proper 10 con.
slider the nature of the prior public