103 P.2d 133

#### SPRINGER TRANSFER COMPANY, A Corporation, Plaintiff and Appellant, v. The BOARD OF COUNTY COMMISSIONERS of the COUNTY OF BERNALILLO, New Mexico, Defendant and Appellee.

No. 4446.

Supreme Court of New Mexico.

May 28, 1940.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellant.

Owen B. Marrón and Donald B. Moses, both of Albuquerque, for appelle.e.

PER CURIAM.

This is a companion case to Springer Transfer Company v. City of Albuquerque, 44 N.M. 407, 103 P.2d 129, and is an appeal from a judgment of the district court in the 'same suit.

The liability of the appellee depends upon whether the underpass, which was the subject of the litigation in the case of Springer Transfer Company v. City of Albuquerque, supra, was a part of a state highway. We held under the facts of that case, and likewise hold under the facts of this case, that the underpass was no part of a state highway; therefore, the appellee is not liable to damages resulting from its construction.

It follows that the judgment of the district court in dismissing as to the defendant *414Board of County Commissioners is correct and should be affirmed.

It is so ordered.

BICKLEY, C.J., and BRICE, ZINN, and SADLER, JJ., concur.

MABRY, J., did not participate.