Alvarez v. Board of Trustees of La Union Townsite

• Decision Date: 27 February 1957
• Docket Number: No. 6132,6132
• Citation: 62 N.M. 319,309 P.2d 989,1957 NMSC 22
• Parties: Jose ALVAREZ et al., Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF LA UNION TOWNSITE et al., Defendants-Appellees. Sidney M. METZGER, Plaintiff-Appellee, v. Mabel CHAVEZ et al., Defendants, Jose R. Alvarez et al., Intervenors-Appellants.
• Court: New Mexico Supreme Court

Page 989

309 P.2d 989

62 N.M. 319

Jose ALVAREZ et al., Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF LA UNION TOWNSITE et al.,

Defendants-Appellees.

Sidney M. METZGER, Plaintiff-Appellee, v. Mabel CHAVEZ et al., Defendants, Jose R. Alvarez et al., Intervenors-Appellants.

No. 6132.

Supreme Court of New Mexico.

Feb. 27, 1957.

Rehearing Denied April 30, 1957.

W. A. Sutherland, Las Cruces, for appellants.

Edwin Mechem, Thomas B. Rapkoch, Las Cruces, for appellees.

McGHEE, Justice.

The land involved in this litigation was granted by the federal government to the probate judge of Dona Ana County on November 11, 1925, to be held in trust for the occupants of the land at the time. This grant was made pursuant to the Federal Townsite Act of 1867, 43 U.S.C.A. Sec. 718. The evidence is conclusive that the occupant of the land in question at the time of the grant was the Catholic Church. In order to implement the disposition of such lands to the occupants, the Territorial Legislature of New Mexico in 1882 set up certain procedures to be followed by the occupants claiming these lands. The most important of these statutes for purposes of this case is Sec. 7-5-10, N.M.S.A.1953. In 1912 the New Mexico Legislature enacted another statute, Sec. 7-5-4, N.M.S.A.1953, dealing with these townsite lands.

The essential facts in this case are as follows: In 1952 the Board of Trustees of the Townsite of La Union executed and delivered a deed purporting to convey the property in question to appellee Metzger, the Catholic Bishop of El Paso. Both parties to this suit agree that this deed was invalid since the Board failed to follow the prescribed statutory procedure for conveying townsite land. Subsequent to this conveyance appellants, taxpayers and residents of La Union, brought suit to have the deed from the Board to Bishop Metzger set aside and to quiet title. While this action was pending, Bishop Metzger brought suit against the probate judge of Dona Ana County seeking a conveyance of the land involved in this litigation. Notice of this suit was by publication. A default judgment was entered in favor of appellee, Bishop Metzger. Appellants, plaintiffs in the earlier action, moved to have this judgment vacated and to be allowed to intervene in the proceedings. This motion was granted and the two proceedings were consolidated. At the close of the case appellees' motion to dismiss was granted. The basis of the dismissal was that appellants had no right, title or interest in the property.

In the final analysis the outcome of this case depends upon a proper construction of sections 7-5-4 and 7-5-10, N.M.S.A.1953. The principal ground upon which appellants rely for reversal is that by virtue of Sec. 7-5-10, appellee Metzger is forever barred from claiming the land in question, In substance this statute provides that lands granted under the Townsite Act to the corporate authorities or probate judge to be held in trust for the occupants must be claimed within sixty days after publication of the entry of the land in the land office. It further provides that failure to file a claim within the specified time limit bars the occupant from ever after recovering the land. And upon such failure to file a claim the land 'reverts to and becomes the property of the town.' In the present case the predecessors in office of Bishop Metzger failed to file a claim to the property here in question within the prescribed time limitation.

If Sec. 7-5-10 were the only statute involved in this litigation, appellants' position would be well taken, provided that such an absolute bar to the occupant of the land could be upheld. Almost identical absolute forfeiture provisions for failure to file a claim to townsite lands within the specified time limit have been struck down in Utah, Colorado and Nevada. The Supreme Court of Utah, in Hall v. North Ogden City, 1946, 109 Utah 325, 175 P.2d 703, held that the occupants of such townsite lands had an equitable ownership in the land occupied which became a vested right when the land was entered in the land office. The court went on to hold that this right could not be divested, even by the legislature, as long as the occupant remained in possession. The Supreme Courts of Colorado and Nevada have reached similar results. City of Pueblo v. Budd, 1894, 19 Colo. 579, 36 P. 599; Treadway v. Wilder, 1872, 8 Nev. 91. In this case we are not dealing solely with Sec. 7-5-10, N.M.S.A.1953. We must also construe Sec. 7-5-4, N.M.S.A.1953, enacted in 1912. This statute provides:

'Any land embraced in any townsite which has been entered as provided by the laws of the United States and the title of which is vested in the probate judge, in trust for the use and benefit of the several occupants of the land embraced within the said townsite, which has not been conveyed to the occupants, their heirs, executors, successors or assigns, who were entitled to the same at the time the entry of such land was made, or at the time patent was received from the United States, by reason of failure of said probate judge to give notice of such entry, or the receiving of said patent, or by reason of such occupants, their heirs, executors, successors and assigns failing to make the statement and filing the same as required by law, then in such case any such occupant, or the heirs, executors, successors or assigns of any such occupant, may file a suit in the district court in the county wherein such land is situated, to have his or its interest in said land, at the time of such entry, or the receiving of such patent, or the successor in title to the right of such occupant, declared and ascertained.' (Emphasis supplied.)

Appellee rulies upon the above statute since the occupant of the land involved in this case failed to file a claim and received no conveyance of the property. Appellants, on the other hand, contend that this provision is not open to appellee since it provides that title must be in the probate judge, and that appellee's failure to file a claim within the specified time limit resulted in the title reverting to the town under Sec. 7-5-10. Appellants point out that not only did the title revert to the town automatically, but the probate judge actually executed a deed to the property to the Board of Trustees in 1926. Both parties find support for their position in the case of Kemp Lumber Co. v. Whitlatch, 1916, 21 N.M. 88, 153 P. 1050, 1052. This is understandable in view of the fact that the opinion in the Kamp case contains statements which are inconsistent. Appellee relies on the following statement in the opinion:

'It was manifestly the intention of the Legislature by that section [Sec. 7-5-4] to make a particular exception to the prior law and allow town-site lands which theretofore had reverted to the town to be conveyed and possessed by persons who would have received deeds therefor, had not * * * the claimant failed to file his statement or claim.' (Emphasis supplied.)

Appellants point out that the court went further and stated:

'But the Legislature clearly manifests its intention that such suits may be brought only where the legal title, as a matter of fact, stands in the name of the probate judge, as trustee, * * *'

The above statements are irreconcilable. If the property automatically reverts to the town when the occupant fails to file a claim, then the legal title cannot be in the probate judge.

The crux of this case is that portions of Sec. 7-5-10 are repugnant to and irreconcilable with Sec. 7-5-4. Section 7-5-10 provides that failure to file a claim within the sixty-day period forever bars the occupant from claiming and recovering the land. Section 7-5-4 provides that an occupant who has failed to file a claim within this sixty-day period can recover the land. Section 7-5-10 provides that failure to file a claim results in the property reverting to the town. Section 7-5-4 provides that upon failure to file a claim as provided under Sec. 7-5-10, the occupant can than invoke Sec. 7-5-4. But Sec. 7-5-4 requires that the title be in the probate judge. If, as...