OPINION
In a one count complaint plaintiff sued the Town of Mesilla, a New Mexico Corporation and others, for the negligent installation of a length of underground drainpipe that ended abruptly under an intersection. As a result of several rains, water emptied in the soil under the intersection and the plaintiff’s nearby premises. As a proximate result of defendants’ negligence, *448plaintiff’s premises were damaged. Plaintiff also alleged that notice was given the Town as provided in § 41-4-16, N.M.S.A. 1978 of the Tort Claims Act.
The Town filed a motion to dismiss for failure to state a cause of action. The motion was sustained and plaintiff’s complaint dismissed with prejudice. Plaintiff appeals. We affirm, but we reverse for plaintiff the right to file a claim for “inverse condemnation.”
On appeal, plaintiff changed her position. In a skimpy two-page brief, plaintiff claims (1) that the facts pleaded state a claim for inverse condemnation under Article II, Section 20 of the New Mexico Constitution and § 42-1-23, N.M.S.A.1978, and (2) that the Tort Claims Act waives immunity for damages caused by negligence in the operation of a liquid waste disposal system, and this includes storm drains.
Plaintiff may have a valid claim for damages by way of inverse condemnation, but plaintiff’s complaint does not state such a claim. It is an afterthought raised for the first time on appeal. Inverse condemnation is not a common law tort based upon the negligence of the Town. It is a statutory remedy under § 42-1-23. Under this section, a municipality, authorized by the Constitution and laws of the State to exercise the right of eminent domain, is liable to the owner whose private property is taken or damaged for public use without making just compensation.
A municipality has the power and right of condemnation of private property for public use for the purpose of constructing, maintaining and operating storm drains. Section 3-18-10(A)(2), N.M.S.A.1978.
The Constitution gives to a person, whose property is damaged for public use, the right to compensation, and § 42-1-23 clearly indicates that it was intended to confer the remedy by inverse condemnation in a situation such as here presented. Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966). A municipality was included as a party in inverse condemnation when § 42-1-23 was amended in 1965. Laws 1965, ch. 305, § 1. Even prior thereto, where a county admitted it was subject to liability, the constitutional right to compensation for damaging private property could be enforced against the party liable therefore. Summerford v. Board, 35 N.M. 374, 298 P. 410 (1931); Wheeler v. Board of County Com’rs of San Juan County, 74 N.M. 165, 391 P.2d 664 (1964).
A motion to dismiss is properly granted when it appears that plaintiff cannot recover under any state of facts provable under the claim. C & H Constr. & Pav., Inc. v. Foundation Reserve Ins. Co., 85 N.M. 374, 512 P.2d 947 (1973). As a result, the appeal must be affirmed. However, this rule does not disallow the plaintiff the right to file an independent claim for relief based upon a different theory of recovery such as that of “inverse condemnation.” The three-year limitation set forth in § 37-1-24, N.M. S.A.1978 applies to an “inverse condemnation” action against a municipality. Buresh v. City of Las Cruces, 81 N.M. 89, 463 P.2d 513 (1969). The limitation period has not run on plaintiff’s claim.
The Town claims that the Tort Claims Act constitutes plaintiff’s exclusive remedy. We disagree. Liability for acts or omissions of the Tort Claims Act are based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty. Section 41-4r-2(B). It is under this tort concept that a governmental entity is granted immunity except as provided in the Act. Section 41-4-4(A). As shown above, inverse condemnation is not a common law tort action, and the Tort Claims Act is not an exclusive remedy.
Plaintiff also claims that her complaint states a claim for relief under the Tort Claims Act because § 41-4-8(A) grants immunity for property damages resulting from “liquid waste collection or disposal,” and that § 41-4-8(B)(2), which defeats plaintiff’s position, is unconstitutional. This inane contention merits no response.
Occasions do arise where justice demands that appellate courts as well as district *449courts should seek to protect the rights of litigants who have been led down the one way street in the wrong direction.
We affirm the judgment of dismissal of plaintiff’s claim against the Town of Mesilla. However, plaintiff is allowed to file an amended complaint, if she desires, to state a claim for relief against the Town of Mesilla for inverse condemnation in one count, and a tort claim against other defendants in a second count. In the alternative, plaintiff may file an independent claim for inverse condemnation against the Town of Mesilla.
IT IS SO ORDERED.
ANDREWS, J., specially concurs.
HERNANDEZ, J., dissents.