All public highways, except such as are owned and operated by private corporations, and highways within the corporate limits of any incorporated city or town, shall be maintained and kept in repair by the respective counties in which they are located.

History: Laws 1905, ch. 124, § 2; Code 1915, § 2627; C.S. 1929, § 64-102; 1941 Comp., § 58-102; 1953 Comp., § 55-1-2.

Cross references. — For county highways in general, see Chapter 67, Article 4 NMSA 1978.

Subdivision Act, ch. 47, art. 6 NMSA 1978, deals with the subject of subdivision roads and county road maintenance in a much more detailed way than this section and 67-2-2 NMSA 1978; therefore, the Subdivision Act controls over the more general statutes. McGarry v. Scott, 2003-NMSC-016, 134 N.M. 32, 72 P.3d 608.

Mandamus dismissed when no acceptance or maintenance. — Mandamus to compel board of county commissioners to remove obstructions from land purportedly part of public highway must be dismissed in absence of proof of acceptance of dedication or at least of partial maintenance with public funds. State ex rel. Shelton v. Board of Comm'rs, 1945-NMSC-027, 49 N.M. 218, 161 P.2d 212.

No county liability for damages from defects. — Although by this section the duty is imposed on counties to keep county highways in repair, counties are not liable for damages for injuries received from defects. Murray v. Board of Comm'rs, 1922-NMSC-067, 28 N.M. 309, 210 P. 1067.

Damage for public use. — Where design, construction or maintenance of public highway caused damage to private property, this constituted damage for a public use for which adequate compensation was guaranteed to the owner under N.M. Const., art. II, § 20, and for which the county was subject to suit under former 42-1-23 NMSA 1978. Wheeler v. Board of Cnty. Comm'rs, 1964-NMSC-081, 74 N.M. 165, 391 P.2d 664.

Duty to maintain and keep public highways in repair is that of the respective counties in which the highways are located, except for highways and streets in municipalities and state highways. Sanchez v. Board of Cnty. Comm'rs, 1970-NMCA-058, 81 N.M. 644, 471 P.2d 678, cert. denied, 81 N.M. 668, 472 P.2d 382.

Public meeting to educate residents as to roads to be repaired. — While the board of county commissioners need not hold a hearing when it closes a county road or highway for repair and maintenance, former 67-4-9 NMSA 1978 required a public meeting that educates county residents about roads on which the county will work in the following year. 1988 Op. Att'y Gen. No. 88-62.

Incorporated city can neither levy nor collect a road tax, but the inhabitants are subject to the county road tax, the collection of which is in the county road board. 1914 Op. Att'y Gen. No. 14-1270.

Expenditure of county road funds within municipality. — County road funds may legally be expended within boundaries of a municipality in connection with bridges, but not for improvement of the streets. 1945 Op. Att'y Gen. No. 45-4728.

Municipality may purchase county services. — A municipality may enter into a contract with a county to purchase services of county road department. 1969 Op. Att'y Gen. No. 69-103.

Incorporated village may purchase services. — An incorporated village may enter into a contract to purchase services of county road department as to both construction and maintenance. 1975 Op. Att'y Gen. No. 75-04.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets and Bridges §§ 71, 104, 345, 346.

State or local governmental unit's liability for injury to private highway construction worker based on its own negligence, 29 A.L.R.4th 1188.

40 C.J.S. Highways § 179.