(dissenting).
I must express my disagreement with both the disposition of the case and the reasoning by which the majority reach their result. The majority opinion, in my view, is erroneous in two controlling respects. First, in misconstruing the statute fixing the time as of when damages in eminent domain are computed; and secondly, in their reliance upon the California and Arizona decisions cited and quoted from.
The majority construe § 22-9-9, N.M. S.A.1953, as requiring payment of compensation for a taking of property or access upon the filing of the condemnation proceeding and entry of an order of possession whether or not the owner’s or lessee’s possession or use of the property or access is ever physically interfered with. That is, the majority hold that the mere entry of the order of possession, even though there is never a physical taking or interference with the property, is such an invasion of his rights as to amount to an actual taking or damaging of the property. This contention was rejected by the Supreme Court of Utah in Oregon Short Line R. v. Jones, 29 Utah 147, 80 P. 732, in that court’s construction of an almost identical statute. The Utah court, in denying the interpretation placed on our statute by the majority, said:
“If the property shall be deemed to have been taken at the time and by reason of the service of the summons, there is force in the contention that appellants are entitled to interest from that date. But the controlling feature of section 3599 is the fixing of the time with reference to which compensation is to be computed, rather than fixing the time of the taking, or when the property shall be deemed to have been taken.
See, also, State, By and Through Its Engineering Commission v. Peek, 1 Utah 2d 263, 265 P.2d 630, where the question of construction of a statute identical with our own in all essential respects was extensively considered and the authorities collected.
The Supreme Court of Idaho gave its similar statute the same construction as Utah, saying in Independent School Dist. v. C. B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077:
“ * * * The statute does not give the owner the right to compensation at the date of the summons. It merely provides that the right shall be deemed to accrue at that date ‘for the purpose of assessing compensation and damages.’ In other words, it fixes the time as of which the value of the property is to be determined. * * * ”
Statutes, identical in all essential respects with ours, have been construed by all the courts except Hawaii as merely fixing the time with reference to which compensation is to be computed when there has been an actual taking or damaging of the property. I have found no court allowing damages merely because of the entry of an order of possession, service of summons, etc., where there was not an actual interference at some time with the enjoyment of the premises by the owner or lessee.
I am completely unable to understand the reliance by the majority on City of Los Angeles v. Blondeau, 127 Cal.App. 139, 15 P.2d 554. The facts are not only entirely dissimilar from those in the instant case, but that decision was later not only explained but limited by People ex rel. Department of Public Works v. Hartley, 214 Cal.App.2d 378, 29 Cal.Rptr. 502. The city, in Blondeau, sought to recover back damages awarded and paid to a lessee while the lease was in force. However, in Hartley where the lease ended through expiration of its term prior to trial of the case, and the lessee’s possession was not actually interfered with, damages were denied. In Hartley, just as in the instant case, the lessee enjoyed the full term of his lease without interference so the lessee suffered no loss by reason of the commencement of the eminent domain proceedings. The California court discussed Blondeau and expressly limited it to situations where judgment in condemnation was entered prior to expiration of the term of the lease. Hartley established the California doctrine that:
“ * * * when and if a lessee before judgment enjoys his lease to the complete end of his term without being interfered with in any way by the condemning authority he is not entitled to share in the award made to the owner of the land, because he has suffered no loss.”
A reading of the Arizona decision in Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652, clearly discloses that the majority can secure no comfort from its language. In that case, the Arizona court was called upon not to determine whether damages had accrued because of the commencement of the trial of the eminent domain case, but only to construe the validity of the immediate-possession provision of the Arizona statute. The language quoted from that decision presupposes that there was an actual taking or damaging of the property at some time. It held, as did Utah and Idaho, that when there has been such a taking, the value or amount of damage is fixed as of the time fixed by the statute. That court merely held that when there is an actual taking or damaging, the owner is entitled to interest from the date fixed by statute as to when damages are to be computed.
The reason for fixing such a date is obvious. The actual award of damages in condemnation may be delayed for long periods of time during which property values may materially change. A reading of the entire Arizona decision makes this clear.
Veirs v. State Roads Comm., 217 Md. 545, 143 A.2d 613, does not support the position taken by the majority. There the term of the lease extended to 1959, or possibly longer. Access was actually destroyed by condemnation, resulting in a cancellation' of the' lease long prior to the end of the term because the lessee could no longer enjoy it. Nor does Ft. Wayne & S. W. Traction Co. v. Ft. Wayne & W. Ry., 170 Ind. 49, 83 N.E. 665, 16 L.R.A., N.S., 537, support the construction by the majority of our statute. Title to the property actually passed to the condemnor and the condemnation was complete in Indiana at the time of the order of possession. Clearly, there was actual interference and actual 'damage then.
The reason for the rule is clearly illustrated by City of Albuquerque v. Chapman, 77 N.M. 86, 419 P.2d 460, No. 7920, filed October 17, 1966, where the property increased in value after the order of entry of possession and actual taking of the property. Its value, however, was fixed as of the date of the order of possession.
The cases dealing with whether interest is recoverable from the statutory date of valuation to the time of actual payment support an interpretation that the statutory date is only the date as of when damages are to be fixed if there is an actual taking or damaging of the property. The decisions generally allow interest only if the condemning authority has actually entered into possession of the property prior to payment of compensation. To allow the owner or lessee the benefits of possession as well as payment’as though the 'property had been taken would obviously 'be inequitable. State, By and Through Its Engineering Commission v. Peek, supra; Independent School Dist. v. C. B. Lauch Constr. Co., supra. There are cases where interest has been allowed from the beginning of the condemnation proceedings, even though the owner has retained possession and enjoyed the use of- the property. Those are all cases, however, where there was an eventual taking of the condemnee’s interest in the property, and such cases .require the property owner to account for the income, rents, and profits of the land during that period. See Annotation 32 A.L.R. 98, at 104-105.
It is clear that Chavez, before judgment, enjoyed his lease to the complete end of its term without interference by the condemnor. To allow damages under such a state of facts would be comparable to proceedings to condemn and take a house .valued at $100,000, where the order of possession was entered and the project abandoned, and the property never taken or interfered with. Certainly the legislature cannot be attributed an intention to require payment to the owner where neither his possession nor title is ever disturbed. Such a result is inconceivable.
I think the majority have misconstrued the immediate-possession statute and that the decisions of other jurisdictions relied upon by them not only do not support their position hut actually support a contrary construction of the statute. I think the judgment of the trial court should be affirmed. I, therefore, dissent from the majority.