Burguete v. Del Curto, 4853.

Docket Nº4853.
Citation163 P.2d 257, 49 N.M. 292, 1945 -NMSC- 025
Case DateJuly 14, 1945
CourtSupreme Court of New Mexico

163 P.2d 257

49 N.M. 292, 1945 -NMSC- 025


No. 4853.

Supreme Court of New Mexico

July 14, 1945

Motion to Recall and Amend Mandate Granted November 8, 1945.

Appeal from District Court, Guadulupe County; Albert R. Kool, Judge.

Action by Juan Burguete against Arthur Del Curto to establish an interest in a deed to a certain section of state school land and for injunctive and other relief. Judgment for plaintiff, and defendant appeals.

Reversed with directions. [163 P.2d 258]

[49 N.M. 293] George L. Reese, Sr., of Roswell, and Rodey, Dickason & Sloan, of Albuquerque, for appellant.

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


Upon consideration of the motion for rehearing, the previous opinion is withdrawn and the following substituted:

MABRY, Chief Justice.

Juan Burguete, plaintiff-appellee (hereinafter to be called plaintiff) brings suit against Arthur Del Curto, defendant-appellant (hereinafter to be called defendant) seeking to establish an interest in a lease to a certain section of state school land situated in Guadalupe County, and to enjoin defendant from depriving plaintiff of access to such section and the water and improvements [49 N.M. 294] thereupon. Judgment was in favor of plaintiff and defendant appeals.

It appears that in 1928 one Eugenio Perez and plaintiff Burguete together purchased an area of land in Guadalupe County adjoining other and separate holdings of the parties, known as the Rooney ranch, and included in this ranch was a section of common school land which they took under lease. This section of school land was leased by Perez and Burguete jointly from the State of New Mexico through the State Commissioner of Public Lands, hereinafter to be referred to as the 'Commissioner.' In 1937 Burguete being indebted to Perez relinquished his interest in said lease permitting the Commissioner to issue a new lease in the sole name of Perez. This was not an assignment to secure an indebtedness, under 1941 Comp. Sec. 8-835, which could have been done (Lusk v. First National Bank of Carrizozo, 46 N.M. 445, 130 P.2d 1032), but was an outright relinquishment to the state. Perez and Burguete continued nevertheless to share in the use and enjoyment of the school section and the improvements thereon until November, 1939, when defendant Del Curto purchased the ranch from Perez and secured a new lease on the school section in question. Burguete continued for a time to pay Del Curto for one-half of the upkeep, taxes and lease rental as he had done after Perez became the sole owner of the lease and before the sale to defendant; but in the year 1942, defendant Del Curto, who had purchased the ranch from Perez, including Perez's interest in the school section, and had taken a new lease thereupon in his name, and who had, with the consent of the Commissioner, fenced off the school section, then advised Burguete that he had no right therein and would no longer be permitted the use of the water or improvements.

The jurisdiction of the Commissioner not ever having been invoked by any of the transactions, as between any of the parties, touching upon the use of the lands by one not a party to the lease, and himself a stranger to the Commissioner, and this proceeding not arising out of a contest action before the Commissioner, and the Commissioner not being made a party hereto, can this suit be maintained?

Much is said by appellee about how Perez, defendant's predecessor in title, or the former lessor, and plaintiff managed the lease as between them during the time these two were operating their respective ranches, using jointly the school section (which since 1937, was leased only to Perez) and before defendant Del Curto purchased the Perez ranch and took a new lease from the Commissioner in his own name. Also, something is made of the fact that Del Curto had actual notice of the arrangements by which Burguete was using the facilities of the school section at the time he, Del Curto, purchased the Perez ranch and secured the new lease from the Commissioner. It even appears that the defendant himself for some two or three years after 1939 permitted plaintiff to use these school section facilities of water, corrals and buildings through plaintiff's sharing [49 N.M. 295] with him, the lessee, the expense of taxes, lease rental and upkeep. But this ended in 1942 when some dispute arose between the parties as to whether plaintiff was fairly bearing his part of the cost of maintenances, etc. Defendant then secured permission from the Commissioner to fence off the school section from access to other cattle and thereafter stood upon his alleged rights as the sole lessee. The Commissioner had never given consent to the use of the school section to any other than the lessee himself, defendant Del Curto, although it does not appear that he had objected to such use, or that he knew of it. [163 P.2d 259]

An agreement was made between Perez and Burguete of the date of June 11, 1937, and after the two had dissolved partnership, with reference to the common use of the water and improvements on the section in question for livestock from each of their adjoining ranches. The Commissioner was not a party to this or any other agreement relative to such joint use of the school section or the facilities thereupon.

The court found that plaintiff was not a sub-lessee under defendant's lease from the State and that the Commissioner had never given his consent to the grazing of any of plaintiff's livestock upon said school section or any consent to occupancy or enjoyment of use by anyone excepting the lessee, Del Curto.

It is obvious that any attempted adjudication of rights as between plaintiff and defendant would of necessity affect the rights of the owner of the land, the State of New Mexico. We have said: 'and the Commissioner not being a party and not having had his jurisdiction invoked in the first instance, we are unable to see where the district court had jurisdiction to determine any rights as between the parties touching upon the question of a renewal or a new lease of the state land in question.' Ellison v. Ellison, 48 N.M. 80, 146 P.2d 173, 174.

Even if it may be said that the question here presented, because of the peculiar facts, or equitable nature of the suit, is not one as to which the Commissioner's jurisdiction should have been first invoked under 1941 Comp., Sec. 8-863, a question we need not, and do not, now decide, certainly, in any event, the jurisdiction of a court of equity may not be invoked absent this necessary and indispensable party, the Commissioner.

The Commissioner is not a party to this litigation; and, he was never consulted about any of the arrangements whereby even the temporary use of the lands so leased could be parceled out and used by another than the lessee; nor had he any knowledge of the practice which plaintiff would now say constitutes a joint lease with himself occupying the status of a co-tenant.

It's well settled in New Mexico that under the Enabling Act, our Constitution and the statutes based thereupon, the Commissioner of Public Lands has complete dominion, which is to say complete control, over state lands. State ex rel. Otto v. Field, 31 N.M. 120, 154, 241 P. 1027, [49 N.M. 296] 1041; Dasburg v. Atchison, T. & S. F. Ry. Co., 45 N.M. 184, 191, 113 P.2d 569, 573. This 'dominion' is, of course, subject to the restrictions imposed by the Enabling Act, the Constitution, and the statutes, and the manner of its exercise is subject to review by the courts. We said in the last above mentioned case in speaking of the trust feature involved in the Commissioner's control of public lands in New Mexico under the Enabling Act and the Constitution, that 'the act sets up the trust, provides for the disposition of these lands only in the manner provided by the act, confines the disposition thereof by 'sale, lease, conveyance, or contract' as therein provided, and makes null and void and other manner of disposition. * * * For a discussion of and decisions upon various phases of the problems that have arisen under this trust, see State ex rel. Otto v. Field, supra; State v. Llewellyn, 23 N.M. 43, 167 P. 414; Elliott v. Rich, 24 N.M. 52, 172 P. 194; Dallas v. Swigart, 24 N.M. 1, 172 P. 416; American Mortg. Co. v. White, 34 N.M. 602, 287 P. 702; Hart v. Walker, 40 N.M. 1, 52 P.2d 123; Lea County Water Co. v. Reeves, 43 N.M. 221, 89 P.2d 607; Terry v. Midwest Refining Co., 10 Cir., 64 F.2d 428.' See also American Trust & Savings Bank v. Scobee, 29 N.M. 436, 454, 224 P. 788, and Davidson et al. v. Enfield, 35 N.M. 580, 3 P.2d 979, 980.

The case of Davidson v. Enfield, supra, would afford considerable support for the contention that very broad latitude is given the Commissioner in the statutory contest proceeding in determining rights between parties claiming 'any right, title, interest * * * in or to any state lands, covered by any lease, contract, grant or any other instrument executed by the commissioner * * *.' There, a like, though not identical, question was involved and we said, in upholding the Commissioner's jurisdiction to entertain the contest and determine issues as between parties other than the Commissioner, which issues involved no ruling of the Commissioner, nor any of the records of the land office, and no instrument of assignment within his possession or control, that 'the statute should be viewed in the light of the very broad powers conferred on the commissioner in the administration of the public lands of this state.' Whether the facts in this case are appropriate to invoke such powers, or jurisdiction, we need not, and do not decide. [163 P.2d 260]

And, whether the Commissioner could be made a party to such suit without his consent, we, likewise, need not, and do not decide. We know that in State ex rel. McElroy v. Vesely, 40 N.M. 19, 52 P.2d 1090, mandamus was...

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