Inverse condemnation is the appropriate and exclusive remedy for a trespass action against a state entity authorized to exercise the power of eminent domain. Townsend v. State ex rel. State Highway Dep't, 1994-NMSC-014, ¶ 6, 871 P.2d 958, 960. In New Mexico, both the state constitution and statutes govern a state's taking through its eminent domain powers.
This is so because "a contract incorporates the relevant law in force at the time of its creation." Townsend v. State ex rel. State Highway Dep't , 117 N.M. 302, 871 P.2d 958, 960 (1994) ; see Crow v. Capitol Bankers Life Ins. Co. , 119 N.M. 452, 891 P.2d 1206, 1211 (1995) ("Under traditional contract theory, state laws are incorporated into and form a part of every contract whether or not they are specifically mentioned in the instrument.").See also Norfolk & W. Ry. Co. v. Am. Train Dispatchers’ Ass'n , 499 U.S. 117, 130, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991) ("Laws which subsist at the time and place of the making of a contract ... form a part of it, as fully as if they had been expressly referred to or incorporated in its terms."
(Doc. 4 at 13 (citing Townsend v. New Mexico ex rel. State Highway Dep't, 871 P.2d 958 (N.M. 1994)).) In Townsend, the plaintiff brought claims for trespass and conversion under the NMTCA against the New Mexico state highway department and its commissioner of public lands.
Therefore, the appropriate and exclusive remedy for Plaintiffs' trespass and conversion claims against these defendants is inverse condemnation under Section 42A-1-29. See Townsend v. State ex rel. State Highway Dep't, 1994-NMSC-014, ¶ 6, 117 N.M. 302, 303-4, 871 P.2d 958 (stating that inverse condemnation is the appropriate and exclusive remedy for a trespass action against a state entity authorized to exercise the power of eminent domain). To the extent that Plaintiffs have attempted to make a claim against the individual defendants for inverse condemnation, such claims should also be dismissed for failure to state a claim, because a claim for inverse condemnation is based on the government's power of eminent domain, a power which private individuals do not have. United Water New Mexico, Inc. v. New Mexico Pub. Util. Comm'n, 1996-NMSC-007, ¶ 15, 121 N.M. 272, 276, 910 P.2d 906, 910 ("Condemnation, or eminent domain, is the process by which a sovereign exercises the power to 'take' private property for public purposes subject to the constitutional requirement that just compensation be paid to the owner....") (quoting Forest Preserve Dist. of DuPage County v. Brookwood Land Venture, 229 Ill.App.3d 978, 172 Ill.Dec. 73, 77-78, 595 N.E.2d 136, 140-41 (
Where a claim is based on several injuries, the statute of limitations begins to run for each injury at the time that it occurred. Townsend v. New Mexico ex rel. N.M. Highway Dept., 871 P.2d 958, 962 (N.M. 1994). Plaintiff's first claim (for negligence) relates specifically and exclusively to the hostage situation occurring on or about February 1, 2018.
The appropriate and exclusive remedy for trespass and conversion claims against state entities with eminent domain power is inverse condemnation under NMSA 1978, § 42A-1-29. See Townsend v. State ex rel. State Highway Dep't, 1994-NMSC-014, ¶ 6, 117 N.M. 302, 303-4, 871 P.2d 958. In other words, Plaintiffs' trespass and conversion claims would be converted into an inverse condemnation claim if the defendant was a state entity exercising eminent domain powers; otherwise the same factual allegations that comprise Plaintiffs' trespass and conversion claims would also comprise Plaintiffs' allegations for a Takings claim.
Therefore, according to Attorneys, it was Gutierrez's gloss on Article IV, § 32 that would have been incorporated into the parties' agreement under the principle that a contract incorporates the law existing "atthe time of its creation." Townsend v. State ex rel. State Highway Dep't, 117 N.M. 302, 304 (1994) (emphasis added). This argument is undercut by the fact that State v. State Investment Company, 30 N.M. 491 (1925), was also part of New Mexico law in 2009.
Real property in the form of mineral rights is transformed into personal property when the physical substance is severed from the land, and the wrongful taking of that substance constitutes conversion. Townsend v. State ex rel. State Highway Dept., 1994-NMSC-014, ¶ 4, 117 N.M. 302, 871 P.2d 958. To establish conversion, a plaintiff must prove "wrongful possession, or of the exercise of a dominion over it in exclusion or defiance of the owner's right, or of an unauthorized and injurious use, or of a wrongful detention after demand."
VIII. Miller has asserted a state-law claim for conversion against Barreras. Citing only a case in which the plaintiff brought an action for trespass and conversion against the New Mexico state highway department and its commissioner of public lands that was dismissed because the plaintiff's "claims for trespass and conversion are not torts for which immunity has been waived by the Act," Townsend v. State ex rel. State Highway Dep't, 117 N.M. 302, 304, 871 P.2d 958, 960 (1994), the City contends that Miller "cannot maintain a claim for conversion against City Defendants." Doc. 124 at 21.
See §§ 41-4-5 to -12. Townsend v. State ex rel. State Highway Dept., 117 N.M. 302, 304, 871 P.2d 958, 960 (1994). Moreover, Ms. Bress alleged, in the Complaint, that Deputy Rivas was dispatched to 726 Arenal Road SW in response to Ms. Bress' 911 call.