(specially concurring).
We concur with Justice Baca’s opinion, except that we disagree with his conclusion that the trial court erred in awarding attorney’s fees. A majority of the Court has concluded that Mr. Landavazo could recover his attorney’s fees from the County in this inverse condemnation action. This opinion therefore announces the ruling of the Court on this issue and explains our reasoning.
We begin with recognition of the thoroughly settled law in New Mexico that a landowner’s exclusive remedy for a public (or other — e.g., a private water-right holder or a public utility) authority’s taking of his or her property in the exercise of the authority’s power of eminent domain, when the authority fails to pay or even offer just compensation, is to sue the authority in an action for inverse condemnation. Kaiser Steel Corp. v. W.S. Ranch Co., 81 N.M. 414, 421-22, 467 P.2d 986, 993-94 (1970); Garver v. Public Serv. Co. of New Mexico, 77 N.M. 262, 269-70, 421 P.2d 788, 792-94 (1966); North v. Public Serv. Co. of New Mexico, 101 N.M. 222, 226, 680 P.2d 603, 606 (Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984).
In this case, the county sent its road grader out to Mr. Landavazo’s property to widen the Sanchez road. The result was that almost 20,000 square feet of Mr. Landavazo’s farmland were stripped away and became part of the widened roadway. When Landavazo appealed to the county to rectify the situation, the county first retained a surveyor to determine the width of the widened road and then told Mr. Landavazo that, if he did not agree with the county’s actions, he could “take it to court.”
At that point, under the thoroughly settled New Mexico law just mentioned, Mr. Landavazo’s options were severely limited. He could not successfully sue the county in ejectment, or for trespass, or for an injunction, or for compensatory or punitive damages. His only recourse, in order to obtain the “just compensation” that was his due under N.M. Const. Article II, Section 20— the $5,000 that the district court ultimately awarded him — was to hire an attorney and incur the $15,000 attorney’s fee that the court ultimately found he reasonably incurred.
The county had been instructed by our Eminent Domain Code to “make reasonable and diligent efforts to acquire [the] property by negotiation.” NMSA 1978, § 42A-1-4 (Repl.Pamp.1981). Section 42A-1-6 provided, and still provides, that an action to condemn property “may not” [i.e., shall not] be maintained unless the condemnor makes a good faith effort to acquire the property by purchase before commencing the action. The Code contained, and still contains, other provisions protecting a landowner like Mr. Landavazo, such as Section 42A-1-5 (providing for appraisal to determine just compensation) and Section 42A-1-10 (providing for deposit of probable compensation before entry by the condemnor is permitted). Nevertheless, the county chose to ignore these provisions, to simply take Mr. Landavazo’s property, and to tell him that, if he did not like it, he could “take it to court.”
Had the county proceeded by direct condemnation and, under Section 42A-1-5(E), tendered the amount it believed was just compensation, Mr. Landavazo would have had an election. He could have accepted the amount tendered and not hired an attorney, or he could have engaged an attorney to seek a greater award than the amount tendered. Had he done the latter, the absence of a provision in the Code awarding him his attorney’s fees would have been appropriate on the theory that he could pay his attorney out of the increased award if he were successful; if not successful, he would have no one but himself to blame for not accepting the amount tendered in the first place.
The county, however, did not proceed by direct condemnation and did not otherwise attempt to negotiate with Mr. Landavazo. The district court concluded that its taking of Landavazo’s property without compensation was “unlawful” and that the county “had no right” to take the property without paying compensation. On these facts, and in light of our statutory scheme, we believe the district court’s conclusions were correct.
The question before us is whether Section 42A-1-25(A)(3) should be construed to permit an award of attorney’s fees to the condemnee in an inverse condemnation action. Although the statute undoubtedly is drafted with the direct condemnation situation primarily in mind, it does not on its face preclude application to the inverse condemnation situation. The statute mandates award of litigation expenses under any of the prescribed circumstances simply to “the condemnee.” At the same time, the section providing for inverse condemnation, Section 42A-1-29(A) (Cum.Supp.1990), refers to the plaintiff in an inverse condemnation suit as the “condemnee,” so the possibility of an award of litigation expenses to the plaintiff in an inverse condemnation action is expressly left open by Section 42A-1-25.
Hence the necessity of construing the phrase “does not have a right” in this section cannot be avoided. The phrase can be construed as Justices Baca and Ransom construe it — namely, by holding that it applies only when the court determines that the public authority either did not have the power of eminent domain in the first place or that the taking was not for a public purpose. But if so construed, the statute becomes somewhat meaningless in the inverse condemnation situation, because then the landowner will not be limited to inverse condemnation as his exclusive remedy; in fact, he will not even have the right of inverse condemnation, because the taker of the property, by hypothesis, will not have been exercising the power of condemnation. Lacking the “right” (i.e., the power) to condemn the property, the taker would be liable in ejectment, or for trespass, or for compensatory or punitive damages. The landowner would not be limited to an award of “just compensation” — the difference between the value of his property before the taking and that afterwards. Inverse condemnation would have no application.
It seems to us to make more sense to hold that the phrase “does not have a right” in the inverse condemnation situation means that the condemning authority has proceeded wrongfully in taking the landowner’s property without paying or offering just compensation. Such an interpretation is consistent with the measures in the Eminent Domain Code, referred to above, protecting the landowner from abuse and requiring the condemnor to proceed by way of direct condemnation. Our construction has the salutary effect of encouraging entities with the power of eminent domain to proceed under the Eminent Domain Code and offer just compensation. It discourages them from simply taking property and forcing landowners to sue for what would have been offered had the condemnors proceeded lawfully in the first place.
Our construction is also consistent with Section 213 of the American Law Institute’s Model Eminent Domain Code (1974), which provides for an award of the plaintiff’s litigation expenses in an inverse condemnation action. The section also provides that a condemnor “shall” commence a condemnation action when it wishes to acquire property and “shall not” intentionally make it necessary for the landowner to commence an action. These admonitions reflect the same approach as is taken in our Eminent Domain Code. If a condemn- or’s taking is unintentional, or if a landowner sues for inadvertent damaging of his property, then the basis for applying Section 42A-1-25 to the condemnor’s actions — i.e., that the actions were wrongful; that the condemnor “did not have the right” to take them — might not be present. But here, where the county deliberately chose to take the property first and litigate afterwards, forcing the landowner to initiate the lawsuit, the district court properly concluded that the county did not have the right to take the property.
Accordingly, the judgment awarding attorney’s fees is affirmed.
SOSA, C.J., and PATRICIO M. SERNA, District Judge, concur.