Ariz. & C. R. Co. of N.M. v. Denver & R. G. R. Co.

• Decision Date: 26 August 1911
• Citation: 117 P. 730,16 N.M. 281
• Court: New Mexico Supreme Court
• Parties: ARIZONA & C. R. CO. OF NEW MEXICOv.DENVER & R. G. R. CO.

16 N.M. 281

117 P. 730

ARIZONA & C. R. CO. OF NEW MEXICO

v.DENVER & R. G. R. CO.

Supreme Court of the Territory of New Mexico.

Aug. 26, 1911.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action for an injunction by the Arizona & Colorado Railroad Company of New Mexico against the Denver & Rio Grande Railroad Company. Decree for plaintiff and defendant appeals. Affirmed.

Proof by a railroad company of its prior, and therefore better, right to the occupancy of a right of way, is sufficient to make its action for an injunction against a trespass or interference by another railroad company cognizable in equity.

See, also, 13 N. M. 345, 84 Pac. 1018.

May 25, 1905, the plaintiff filed its bill of complaint against the defendant in the district court for San Juan county, alleging, in substance, that it, the plaintiff, was a corporation organized under the laws of New Mexico in October, 1904, authorized to construct, maintain, and operate a railroad in said territory from a point on the boundary line between New Mexico and Colorado near where Las Animas river crosses the same, through said county of San Juan and other counties of said territory, to a point on the boundary line between it and the territory of Arizona, near a point where the San Francisco river crosses it, a distance in all of about 300 miles; that it had complied with the requirements of law, which are prerequisite to its entering upon the work and business for which it was incorporated, and had thereafter in said San Juan county, from said point in the boundary line between New Mexico and Colorado south to the town of Farmington, in said county, a distance of about 28 miles, completed its surveys for said portion of its proposed line of railroad, had fixed and determined its location, had marked and staked the same on the ground, had made for filing a map and profile thereof and was about to file the same as required by law, within a reasonable time, and that it had adopted such location. It further alleged that it had agreed with all but one of the private owners of the land on which its location had been fixed, as aforesaid, upon the compensation to be paid for the taking and use of said land and right of way, and that instruments in writing embodying such agreements had been made and executed between it and said several landowners, and notice thereof filed for record in the office of the clerk of said county; that its said work of surveying and marking its location on the ground, preparing maps thereof, securing the right of way therefor, and other things of like nature had been done at great expense; that as a result the route and location it had thus laid out and adopted was the best possible one for the construction and operation of a railroad between Farmington and the point in the northern boundary line of the territory from which it proposed to construct a railroad as above stated.

The plaintiff further averred that the defendant had full actual knowledge of all its, the plaintiff's, doings in the premises, as above set forth, including the agreements made with landowners, and that long after such proceedings by the plaintiff the defendant undertook and began the construction of a parallel line of railroad from a point near that to which the plaintiff's said location extends in the northern boundary line of New Mexico to said town of Farmington, and that, without necessity and wrongfully, it has entered upon the plaintiff's said location and sought to destroy its usefulness for the plaintiff by staking out a location for its own railroad upon portions of the plaintiff's said location; that, under the pretense of laying out necessary crossings over the plaintiff's said location, it has, although each end of its own proposed location is on the same side of and near to the plaintiff's location, laid out its own proposed route to cross that of the plaintiff no less than 8 times in said distance of about 28 miles; and that such proposed crossings are not made at, or nearly at, right angles with the plaintiff's said location, but in some instances extend along it and occupy as much as a thousand feet of its length, and besides that, defendant proposes to make such pretended crossing at grades substantially different from those established at such points for the plaintiff's said location, all of which plaintiff says is done and threatened for the purpose, and, if permitted, will have the effect of substantially depriving the plaintiff of its said location, and rendering the same wholly useless as a route for the construction and practical operation of a railroad. It was also alleged that, as one of the means to be employed by the defendant to deprive the plaintiff of its location, the defendant purposed and threatened to institute condemnation proceedings to secure a right of way and location for itself, including portions of the plaintiff's said location, and in such proceedings to ignore the plaintiff's rights and act without notice to the plaintiff, and only against the owners of the land on which the plaintiff's location was laid out. The plaintiff concluded with the usual allegations of the need of equitable relief, and with a prayer that the defendant be enjoined from continuing its alleged acts of encroachment. The defendant demurred to the complaint on the ground that facts were not stated sufficient to constitute a cause of action against the defendant for the relief prayed for, or any relief whatever. The demurrer was sustained by the district court and final judgment entered dismissing the complaint, with costs to the defendant. Appeal was taken therefrom to this court.

In this court the judgment of the lower court dismissing the complaint was reversed and the cause remanded, with instructions to reinstate the cause and overrule the demurrer. A. & C. R. R. Co. v. D. & R. G. R. R. Co., 13 N. M. 357, 84 Pac. 1018. Answer was thereupon filed, which it will not be necessary to set out in detail, further than to say that it puts in issue every material allegation of the complaint and in particular the good faith of the plaintiff in locating its alleged line, the character of that line with reference to whether it was the best line possible, the ability of the plaintiff to construct its proposed line of railroad, the adoption, in accordance with law, of the alleged line of plaintiff, the knowledge of or notice to defendant of the pre-existence of any definitely located line of plaintiff before the defendant located its line and began construction thereof, and the plaintiff's right to maintain this action in equity. The court referred the issues as so made up to an examiner to take the proofs and report the same to the court. To this action of the court the defendant objected and excepted, but, upon this appeal, appears to have abandoned any question relative to the procedure of the court in so referring said cause. In due course, the examiner's report, consisting of over two thousand pages of testimony and exhibits, was filed. Upon hearing before the court, some 273 objections to the referee's report, including objections to the admission and rejection of testimony, were ruled upon by the court. After full hearing, the court below made its findings of fact, and conclusions of law in favor of the plaintiff, and the decree was entered in accordance with such findings. The terms of the decree are not material to a determination of the issues involved herein. The case is now before this court on appeal from said decree.

Frank W. Clancy and E. N. Clark, for appellant. Catron & Gortner, Ritter & Buchanan, and H. B. Fergusson, for appellee.

WRIGHT, J. (after stating the facts as above).

Appellant assigns 217 grounds of error, but, as is usually the case where assignments are so numerous, a large majority of same are merely variations of the same general proposition.

[1] Under the oral argument of this case counsel confined themselves to a discussion of the assignments considered in the briefs filed herein. It will not be necessary, therefore, for us to notice in detail any of the assignments of error not so considered by counsel, as, under the well-established practice of this court, assignments of error not considered in the briefs or upon oral argument will be deemed to have been abandoned. Gregory v. Cassan, 15 N. M. 496, 110 Pac. 574.

[2] Upon a former appeal of this case-A. & C. R. R. Co. v. D. & R. G. R. R. Co., 13 N. M. 357, 84 Pac. 1018-this court, speaking through Mr. Justice Abbott, held that the facts well pleaded established a vested interest in the plaintiff sufficient to enable it to invoke the jurisdiction of a court of equity. This question having been disposed of upon the former appeal became and is the settled law of this case. Dye v. Crary, 13 N. M. 439, 85 Pac. 1038, 9 L. R. A. (N. S.) 1136. The cause is now before us upon the merits under the pleadings so determined to be sufficient upon the former appeal. With one exception, which will be considered separately, the appellant admits that the facts found by the court are sufficient to sustain the decree.

The first proposition advanced by the appellant is that appellee was never in possession of its alleged right of way and had nothing for the protection of which this suit could be brought. Counsel for the appellant contend that this court upon the former appeal declared, as the law of this case, that it was necessary for the appellee to prove actual physical possession of the right of way in controversy at the time of the alleged unlawful intrusion by the appellant, in order to support its action in a court of equity. A careful reading of the opinion fails to disclose any such holding. Upon the former appeal the question was upon the sufficiency of the complaint. In its complaint appellee alleged that it was the owner of the location surveyed and staked out by it upon the ground and in possession thereof, and that...