(dissenting).
I respectfully dissent. In my opinion the trial court erred in granting the defendant’s (Town of Mesilla) motion to dismiss for failure to state a cause of action.
The pertinent parts of the plaintiff’s complaint are the following:
“5. During the summer of 1977, the defendant, Town of Mesilla, through its agents, servants and employees did extensive work on the Mesilla Plaza. In connection with that work, the defendant installed a surface water drainage system and underground drains to move the water away from the plaza.
8. The plaintiff owns premises at the northeast corner of Calle Principal and Calle Guadalupe, improved with an adobe residence.
9. The defendants’ negligently installed a length of underground drain pipe, ending abruptly under the intersection of Calle Principal and Calle Guadalupe.
10. The drainage system became operative in several rains that hit the area and water emptied in the soil under Calle Principal, Calle Guadalupe and the plaintiff’s premises.
11. Soils in the Mesilla area are mixtures of clay and sand and an excess of water drastically changes soil characteristics and the soil bearing capacity.
12. As a proximate result of the defendants’ negligence as aforesaid, the soil on plaintiff’s premises has acquired an excess of water, the soil has changed, the residence premises are being destroyed and rendered uninhabitable, all to her damage in the amount of $120,000.
13. The defendants knew, or should have known, that abruptly ending the underground drainage as aforesaid would cause excess water to enter the soil and change soil characteristics, and they permitted the drainage line to abruptly end where it does, with full awareness of the damage that would be done to the plaintiff’s premises.
16. The occurrence described above was latent from the time of the installation in the summer of 1977, the several rains that occurred in 1977 until plaintiff learned on February 8, 1978, from an engineer that there was proximate relationship between those acts and events and the property damage sustained by the plaintiff. The Town of Mesilla had actual notice of the occurrence and also was given written notice of the time, place and circumstances of the loss and injury to the plaintiff by means of the complaint filed herein and served on the Town Clerk of Mesilla on the 2nd day of March, 1978, which complaint was presented to the Mayor of the Town of Mesilla, fully in accord with Section 5— 14-14.1, NMSA [sic].”
“A motion to dismiss a complaint is properly granted only when it appears that under no state of facts provable under the claim could plaintiff recover or be entitled to relief.” Gonzales v. Gackle Drilling Company, 70 N.M. 131, 371 P.2d 605 (1962).
“In considering whether a complaint states a claim upon which relief can be granted we assume as true all facts well pleaded.” Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966).
It is my opinion that the plaintiff, under the allegations of her complaint, could possibly prove facts which would allow recovery under the theory of inverse condemnation.
Article II, § 20 of the Constitution of New Mexico provides: “Private property shall not be taken or damaged for public use without just compensation.” [Emphasis added.] The codification of this section is Section 42-1-23, N.M.S.A.1978:
“Notwithstanding the provisions of the Relocation Assistance Act [42-3-1 to 42-3-15 NMSA 1978], the state of New Mexico or any agency or political subdivision thereof, including the state highway commission and any person, firm or corporation authorized by the constitution or laws of this state to exercise the right of eminent domain who has heretofore taken or damaged or who may hereafter take or damage any private property for public use without making just compensation therefor or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation thereof, shall be liable to the owner of such property, or any subsequent grantee thereof, for the value thereof or the damage thereto, at the time such property is or was taken or damaged, with legal interest, to the date such just compensation shall be made, in an action to be brought under and governed by the Rules of Civil Procedure for the District Courts of this state. Actions under this section shall be brought in the county where the land or any portion thereof is located.”
“ ‘Inverse condemnation’ is the name generally ascribed to the remedy which a property owner is permitted to prosecute to obtain the just compensation which the Constitution assures him when his property, without prior payment therefor, has been taken or damaged for public use.” Sheffet v. County of Los Angeles, 3 Cal.App.3d 720, 84 Cal.Rptr. 11 (Cal.App.1970).
See Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966) and Kaiser Steel Corporation v. W. S. Ranch Company, 81 N.M. 414, 467 P.2d 986 (1970).
I would reverse the order of the trial court and remand with instructions to vacate it and proceed with the trial of this matter.