dissenting.
I dissent.
This case originally was before the trial court on a complaint for injunctive relief and for damages because of the alleged trespass of Yates Petroleum Corporation on property belonging to the Kennedys. After opening statements by counsel, and presentation of Kennedys’ case, the trial court required that Yates Petroleum Corporation institute condemnation proceedings within thirty (30) days or a writ of preliminary injunction would issue. A petition for condemnation of land was subsequently filed by Yates Petroleum Corporation in a separate action, No. CV 83-51, in the district court of Eddy County. Yates Petroleum Corporation then filed a motion to dismiss in the present case, alleging that the Kennedys had failed to state a cause of action upon which relief may be granted because Yates is authorized to exercise the power of eminent domain to maintain the pipeline in question. After a hearing on the motion to dismiss, the trial court dismissed with prejudice the Kennedys’ complaint, reasoning that Yates has the power of eminent domain under NMSA 1978, Section 70-3-5 (Cum.Supp.1983), and further finding that the statutory remedy of inverse condemnation was the Kennedys’ exclusive remedy.
The Legislature has granted the power of eminent domain to entities such as Yates Petroleum Corporation for the purpose of constructing, maintaining, and operating pipelines. Section 70-3-5(A) provides in pertinent part:
Any person, firm, association or corporation may exercise the right of eminent domain to take and acquire the necessary right-of-way for the construction, maintenance and operation of pipelines * * * and other necessary facilities for the purpose of conveyance of petroleum, natural gas, carbon dioxide gas and the products derived therefrom * * * Such land and right-of-way shall be acquired in the manner provided by the Eminent Domain Code [42A-1-1 to 42A-1-33 NMSA 1978].
This section is a clear expression of the Legislature’s intent. The trial court was correct in finding that Yates Petroleum Corporation has the power of eminent domain, under the provisions of Section 70-3-5, and that the statutory remedy of inverse condemnation is the exclusive remedy of the Kennedys.
Furthermore, contrary to the majority’s understanding of Kaiser Steel Corp. v. W.S. Ranch Co., 81 N.M. 414, 420, 467 P.2d 986, 992 (1970), that case stated:
Although, in the last analysis, the question of “public interest” is a judicial one, the presumption is that a use is public if the legislature has declared it to be such, and the decision of the legislature must be treated with the consideration due to a coordinate branch of our government, (citation omitted.) In fact, it has been held that when the legislature has spoken, the public interest (i.e., “public use”) has been declared in TERMS WELL-NIGH CONCLUSIVE, (citation omitted.) Since our legislature has, in effect, declared the use in question to be public, we are constrained to accept their judgment in the absence of obvious unconstitutionality. (emphasis added.)
Similarly, in the case before us, the Legislature has spoken on the question of the public use in distribution of petroleum and natural gas products through its enactment of Section 70-3-5. Due consideration should be given to the Legislature’s declaration.
The majority opinion also states that “[tjhere is insufficient evidence in the condemnation action at this point which would support a finding that the use to which the pipeline is being put is indeed a public use.” If the majority is referring to the record in this case, they are incorrect, because this appeal is not from a condemnation action but from a dismissal of a complaint for injunctive relief based on a trespass action. If the majority is referring to the record in the condemnation action, they are also incorrect, because the only proceeding that has occurred in that action was a hearing on a request for an order allowing immediate entry pursuant to NMSA 1978, Section 42A-1-22 (Repl.Pamp.1981) which Yates Petroleum Company had the right to obtain. No transcribed record of that hearing is before this Court in this case.
The majority opinion continues to confuse the two lawsuits involved in this matter. The condemnation action is neither before this Court nor has it ever been. This appeal is from the trespass action. The majority is trying to solve the trespass action with a condemnation answer. Furthermore, the majority also refuses to acknowledge the authority of the Legislature which has determined that a public use exists for the purpose of constructing, maintaining, and operating pipelines. § 70-3-5.
Based on the foregoing reasons, the trial court was correct in dismissing the Kennedys’ complaint. The statutory remedy of inverse condemnation is their exclusive remedy.