A. A municipality may, within its boundary:

(1) regulate the speed of diesel electric locomotives;

(2) license and regulate the laying of railroad tracks;

(3) provide for and change the location, grade and crossing of any railroad;

(4) regulate and prohibit the use of steam engines and diesel electric locomotives; and

(5) require a railroad company to:

(a) fence its railroad or any portion of it;

(b) construct cattleguards at crossings of streets and public roads;

(c) keep its fences and cattleguards in repair;

(d) keep a flagman at railroad crossings of streets;

(e) provide protection against injury to persons and property by the railroad in the use of its property; and

(f) construct and keep in repair ditches, drains, sewers and culverts along and under railroad tracks so that 1) filthy or stagnant pools of water cannot stand on its ground or right-of-way and 2) natural drainage of adjacent property is not impeded.

B. A municipality may, within its boundary, by condemnation or otherwise, extend any street, or municipal utility over, across, under or through any railroad track, right-of-way or land of any railroad company or street railroad company. If no compensation is made to the railroad company, the municipality shall restore the railroad track, right-of-way or land to its former state or in a sufficient manner so that its usefulness is not impaired.

History: 1953 Comp., § 14-17-17, enacted by Laws 1965, ch. 300.

Cross references. — For municipal transit law, see 3-52-1 NMSA 1978 et seq.

For authorization to grant use of streets to railroads, see 63-2-8 NMSA 1978.

For the Public Mass Transportation Act, see 67-3-67 to 67-3-70 NMSA 1978.

Unconstitutional ordinance. — An ordinance which provides, in essence, that all trains, which includes unattached locomotives, must have a crew of at least two when passing within 50 feet of a public street or crossing a public way, and is a criminal ordinance since a penalty of up to $100 is provided for violation, is not permitted and is unconstitutional. 1960 Op. Att'y Gen. No. 60-36.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Railroads § 28.

Railroad crossings, power to assume the duty of providing and maintaining, 1 A.L.R. 316.

Construction of provision of statute, ordinance, or franchise relating to "repair" of street railway zone, 10 A.L.R. 928.

Municipally owned railroad or street railway, liability of municipality for tort in construction or operation, 31 A.L.R. 1306.

Change in traffic conditions as affecting duty of street railway to keep street in repair, 33 A.L.R. 131.

Railroad company, power to permit construction of piers, pillars or abutments within street at crossing, 62 A.L.R. 1524.

Street railways, ordinance prohibiting one-man streetcars, 69 A.L.R. 344.

Construction of statutes requiring railroads to provide for the drainage or flow of waters, 19 A.L.R.2d 967.

Duty of railroad company to maintain flagman at crossing, 24 A.L.R.2d 1161.

74 C.J.S. Railroads §§ 394 to 399.