Should they deem it necessary, the mayordomo may cut through the lands of any person or persons, by first obtaining their consent, by the community of such ditch offering to pay a compensation, to be agreed upon between the owner or owners of the lands through which the ditch is to be opened, and the parties interested in the said ditch. If the owner or owners, who shall be solicited to permit their lands to be ditched, in the cases mentioned in the preceding section [73-2-56 NMSA 1978], should improperly refues [refuse] or decline to accept the compensation offered by the parties interested in such ditch, or ask a compensation which the parties interested do not agree to on account of its exorbitance, in such case the mayordomo of said ditch shall lay the case before the justice of the peace [magistrate court] of the precinct in which such ditch may be situated, and it shall be the duty of the justice of the peace [magistrate court], to whom the case is presented, to appoint three men, experts, of known integrity, to establish a just compensation to be paid to the owner or owners solicited to permit their lands to be ditched through in the cases above mentioned.

History: Laws 1919, ch. 39, § 2; C.S. 1929, § 151-458; 1941 Comp., § 77-1453; 1953 Comp., § 75-14-54.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Section 35-1-38 NMSA 1978 abolished the office of justice of the peace, transferred the jurisdiction, powers and duties of said justices to the magistrate court and provided that all statutory references to "justice of the peace" shall be construed to refer to the magistrate court.

Compiler's notes. — The "preceding section" referred to in the section means Laws 1919, Ch. 39, § 1, now compiled as 73-2-56 NMSA 1978.

Cross references. — For provisions relating to construction of ditches, see 73-2-1 to 73-2-3 NMSA 1978.

For general provision for condemnation of land for ditches, see 72-1-5 NMSA 1978.

No experts appointed unless petition showed preconditions met. — Justice had no jurisdiction to appoint experts to appraise property involved in relocation of ditch unless petition showed that all the conditions existed as set forth in 25, 1897 C.L. (since repealed), and that the owner had notice of the application. Leyba v. Armijo, 1902-NMSC-017, 11 N.M. 437, 68 P. 939.

Commissioners must prove public necessity for taking. — In taking land for public use on either side of the ditch when either building a new ditch or enlarging or extending a ditch, the burden would be on commissioners to prove public necessity for the taking. 1969 Op. Att'y Gen. No. 69-96.

Inverse condemnation suit proper. — In the event that ditch commissioners were to take land without initiating condemnation proceedings, landowner may institute his own suit for inverse condemnation and receive just compensation for the taking. 1969 Op. Att'y Gen. No. 69-96.