Board of County Com'rs of Dona Ana County v. Little

• Citation: 74 N.M. 605,396 P.2d 591,1964 NMSC 240
• Decision Date: 09 November 1964
• Docket Number: No. 7446,7446
• Parties: BOARD OF COUNTY COMMISSIONERS OF DONA ANA COUNTY, New Mexico, Petitioner-Appellee, v. Jesse LITTLE and Ruby O. Little, Defendants-Appellants.
• Court: Supreme Court of New Mexico

Page 591

396 P.2d 591

74 N.M. 605

BOARD OF COUNTY COMMISSIONERS OF DONA ANA COUNTY, New

Mexico, Petitioner-Appellee, v. Jesse LITTLE and Ruby O. Little, Defendants-Appellants.

No. 7446.

Supreme Court of New Mexico.

Nov. 9, 1964.

Earl E. Hartley, Atty. Gen., Oliver G. Ricketson, Joseph L. Droege and Neil Stillinger, Sp. Asst. Attys. Gen., Santa Fe, Dan Sosa, Jr. Dist. Atty., Third Dist., Las Cruces, for appellee.

T. K. Campbell, Las Cruces, for appellants.

HODGES, District Judge.

Petitioner condemned a 2.742 acre strip of land and certain improvements, belonging to the defendants, in connection with a highway project. The new highway substantially follows the line of an old highway. The action was tried to the court without a jury, and the court awarded $11,000.00 for the land and improvements taken. There is no appeal from these awards. Defendants also sought and the court refused any award for consequential damage to 127 acres of irrigated farm land which remained, and the defendants have appealed from this decision.

On August 22, 1958, before the new highway was built, the tract of land involved was flooded because of a heavy rain, drainage, or floods from arroyos northerly of defendants' land, because a dam protecting the 127 acre tract broke and because the old highway itself acted as a dike. The water rose in the tract involved and stood about six inches high at which time it crossed over a low point in the road from north to south into the Telles farm. The water stood on defendants' tract some three or four days before it seeped in or evaporated. There is apprehension on the part of the defendants that the same or similar condition may occur again and because of a change in the grade of the highway, water will back up and stand on their land several inches higher than before; and for this the defendants claim consequential damage. There has been no similar flood since 1958 and the defendants have suffered no flood damage since 1958 up until the time of the trial court's decision in September, 1962.

The defendants have set forth three requested findings of fact which the court refused; and have attacked, by proper exceptions, three findings of fact which the court made. The failure of the trial court to make the three requested findings of fact must be regarded as findings against the defendants, who had the burden of establishing such facts. Hoskins v. Albuquerque Bus Co., 1963, 72 N.M. 217, 382 P.2d 700.

The court's findings of fact, which are attacked, are as follows:

'7. The Court finds that along this portion of the property complained of, the rise was from five to seven inches on the west and worked down to five inches on the east at a gradual slope, that is in front of this particular piece of land; that there are places in the new road which are lower than the old road.

'8. * * * that the Defendants has tried to protect himself by placing a high border cutting off 16 acres of this tract, forcing the water up and over the roadbed.

'9. That the slight rise of the road does not increase the amount of damage done to the land; it might cause the water to become five inches deeper, but the damage done by the flood to this property has not changed materially from what it was before as damage would already have been done before the build-up of five inches.'

The court also made the following findings which are not attacked:

'12. That the flood that occurred on said defendants' property previous to the condemnation action was occasioned when a dike built by the defendants, Jesse Little and Ruby O. Little, on another's property broke, releasing impounded waters upon their lands.

'13. That subsequent to said flood in 1957 (sic), and subsequent to the installation of the new roadway, rains have fallen in the general area in greater volume than those that caused the flood in 1957 (sic), without any damages and floods occurring to the property of the Defendants, Jesse Little and Ruby O. Little.

'14. That the testimony is highly speculative and conjectural in regard to rainfall, that is, if and when we have a certain type of rain, if and at a certain place, certain things will happen, which may be true, but it has always been that way and is not changed now.'

'[C]onclusions of law must be predicated upon, and supported by, findings of fact.' Isaac v. Seguritan, 1960, 66 N.M. 410, 349 P.2d 126.

The pertinent conclusion of law is:

'3. That there was no material change in the roadbed, and a change which does not cause consequential damage.'

'Material' is defined as 'of...