A. Except as herein provided, an action for the abatement of a public nuisance shall be governed by the general rules of civil procedure.

B. A civil action to abate a public nuisance may be brought, by verified complaint in the name of the state without cost, by any public officer or private citizen, in the district court of the county where the public nuisance exists, against any person, corporation or association of persons who shall create, perform or maintain a public nuisance.

C. When judgment is against the defendant in an action to abate a public nuisance, he shall be adjudged to pay all court costs and a reasonable fee for the complainant's attorney, when the suit is not prosecuted exclusively by the attorney general or a district attorney.

History: 1953 Comp., § 40A-8-5, enacted by Laws 1963, ch. 303, § 8-5.

Cross references. — For control of contagious diseases and dangerous conditions by health authorities, see 24-1-15 to 24-1-19, 24-1-21 NMSA 1978.

For admissibility of evidence in proceedings hereunder, see 30-9-7 NMSA 1978.

For procedure in seeking injunction, see Rules 1-065 and 1-066 NMRA.

Injunction authorized. — Injunctive relief could be employed to protect the public health, morals, safety and welfare from irreparable injury by a public nuisance. State ex rel. Marron v. Compere, 1940-NMSC-041, 44 N.M. 414, 103 P.2d 273.

Crime not enjoinable as such. — Where a ground of equitable jurisdiction to enjoin otherwise exists, the claim to such relief is not to be denied merely because the act complained of constitutes a crime, but a crime may not in and of itself be made an independent ground for injunction; hence, trial court could not extend authority of its restraint against defendant from maintaining a certain premises for purposes of lewdness, assignation or prostitution throughout entire county, and its attempt to do so fell squarely within the interdiction that equity may not be employed to forestall the commission of a crime. State v. Robertson, 1957-NMSC-060, 63 N.M. 74, 313 P.2d 342.

Motion picture. — Injunction of motion picture as nuisance because of "lewdness" would be in the nature of censorship and prior restraint. State ex rel. Murphy v. Morley, 1957-NMSC-087, 63 N.M. 267, 317 P.2d 317.

Bond as enforcement device. — A trial judge has both the statute and the discretion inherent in his broad equitable powers to draw upon in providing means for the enforcement of order restraining defendant from using, occupying or maintaining a certain premises for purposes of lewdness, assignation or prostitution, by requiring a bond of defendant, so long as its effect is confined to the premises in question. State v. Robertson, 1957-NMSC-060, 63 N.M. 74, 313 P.2d 342.

Civil action. — Action brought under general equity powers for protection of public morals is a civil action. State ex rel. Murphy v. Morley, 1957-NMSC-087, 63 N.M. 267, 317 P.2d 317.

Standing to sue for pollution abatement. — Action brought by attorney general and certain private citizens for injunction to abate alleged public nuisance caused by emissions from coal-burning power plant should have been dismissed in trial court since environmental improvement agency (now environment department) had primary jurisdiction over pollution control and means were available to compel agency to perform its duties, should it fail to do so. State ex rel. Norvell v. Arizona Pub. Serv. Co., 1973-NMSC-051, 85 N.M. 165, 510 P.2d 98.

Sufficiency of complaint. — Where the nuisance complained of is a nuisance per se, and denounced as such in the statute, it is sufficient for the complaint to allege its existence in the language of the statute. State v. Robertson, 1957-NMSC-060, 63 N.M. 74, 313 P.2d 342.

Injunction power of court. — Injunction under general equity powers of court to protect public morals could not be had where complaint was brought under statute providing for injunction and abatement of nuisance and forfeiture of premises on proof that "lewdness, assignation or prostitution" existed there. State ex rel. Murphy v. Morley, 1957-NMSC-087, 63 N.M. 267, 317 P.2d 317.

Recovery of pecuniary damages is not provided by this section. Thus, a private plaintiff's attempt to recover pecuniary damages for the pollution of his groundwater must fail. Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry., 857 F. Supp. 838 (D.N.M. 1994).

Statute provides alternative means for abating noxious odors. — Where air quality standards or regulations have not been established as to what constitutes "air pollution" and thus no violation of the Air Quality Control Act (Sections 74-2-1 to 74-2-17 NMSA 1978) or regulations and standards is apparent, the public nuisance law may provide an alternative means for the environmental improvement division (now environment department) to abate noxious odors. 1978 Op. Att'y Gen. No. 78-12.

Law reviews. — For comment, "Control of Industrial Water Pollution in New Mexico," see 9 Nat. Resources J. 653 (1969).

For note, "Gabaldon v. Sanchez: New Developments in the Law of Nuisance, Negligence and Trespass," see 9 N.M.L. Rev. 367 (1979).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Nuisances §§ 229 to 267.

Carwash as nuisance, 4 A.L.R.4th 1308.

When statute of limitations begins to run as to cause of action for nuisance based on air pollution, 19 A.L.R.4th 456.

Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited, 25 A.L.R.4th 395.

Business interruption, without physical damage, as actionable, 65 A.L.R.4th 1126.

What constitutes special injury that entitles private party to maintain action based on public nuisance - modern cases, 71 A.L.R.4th 13.

Nuisance as entitling owner or occupant of real estate to recover damages for personal inconvenience, discomfort, annoyance, anguish, or sickness, distinct from, or in addition to, damages for depreciation in value of property or its use, 25 A.L.R.5th 568.

66 C.J.S. Nuisances §§ 102 to 110.