Carlsbad, City Of, v. Neal

• Court: New Mexico Supreme Court
• Writing for the Court: SWOPE; LUJAN
• Citation: Carlsbad, City Of, v. Neal, 245 P.2d 384, 56 N.M. 465, 1952 NMSC 63 (N.M. 1952)
• Decision Date: 12 June 1952
• Docket Number: No. 5418,5418
• Parties: CITY OF CARLSBAD v. NEAL et al.

Page 384

245 P.2d 384

56 N.M. 465

CITY OF CARLSBAD v. NEAL et al.

No. 5418.

Supreme Court of New Mexico.

June 12, 1952.

S. Morton Rutherford, III, Reese, McCormick & Lusk, Carlsbad, for appellant.

C. M. Neal, Hobbs, Caswell F. Neal, Caswell S. Neal, Carlsbad, for appellees.

SWOPE, District Judge.

In this case plaintiff (appellant) brought an ejectment action against the defendants (appellees) to recover possession of what it claimed was a portion of one of its streets. In their answer and counterclaim, the defendants denied that the plaintiff was entitled to possession of the land, asserted that they owned it, and requested that their title to it be quieted. The case was tried to a jury, and after the plaintiff had presented its evidence, the trial court sustained the defendants' motion for a directed verdict and entered a judgment dismissing the complaint and quieting the defendants' title to the land in question. The question for decision is whether this action of the trial court was error.

Viewing the plaintiff's evidence in the most favorable aspect, and indulging all reasonable inferences to be drawn from plaintiff's evidence and disregarding all unfavorable testimony and inferences, we find the following to be the facts.

On August 10, 1891, John A. Eddy filed a map in the office of the county clerk of Eddy County which was entitled, 'Map of Rio Vista Suburban Property In the West Half of Section 31 Township 21 South Range 27 East, Eddy County, New Mexico.' Ninety-one acres of land were shown on the map to have been subdivided into suburban lots. A number of streets, including Spring Street, were shown on the map. The plaintiff is attempting to recover possession of a portion of Spring Street in this case. It was shown to be a 60-foot street running from Blodgett Street on the South to the Pecos River on the north, a distance of 2408 feet. Pierce Street was the only street shown that intersected Spring Street between Blodgett Street and the river and the distance from Pierce Street along Spring Street to the river was about 1200 feet. At the time the Rio Vista Map was filed the land involved was located outside the corporate limits of the Town of Carlsbad, but, in 1909, the Board of Trustees of the town instituted proceedings to annex this and other outlying areas and thereafter, in the same year, these areas became a part of the town. In connection with the annexation proceedings, a map of the annexed area was filed in the office of the county clerk which showed the Rio Vista Subdivision and Spring Street. In 1918, the Town of Carlsbad became the City of Carlsbad at which time a map of the area within the city limits was filed which again showed the Rio Vista Subdivision and Spring Street.

In 1925, the lots lying west of Spring Street and running from Pierce Street on the south to the river on the north were conveyed by their owner to M. A. Scarborough. At that time, none of the streets shown on the map to be located in this area had been opened for use by the public. As a matter of fact, this entire area was a farm which was bounded on the east by a fence running down the middle of Spring Street. The land on the other or east side of the fence was also under cultivation. A portion of this land, located east of the fence and near the river, was subdivided into ten lots in 1929. This was known as the Harrison Subdivision. Spring Street was shown on the plat of this subdivision to be a 60-foot street running north and south along the west side of the Harrison Subdivision to the river. It was located in the same place on both the Rio Vista Map and the Harrison Plat. However, the Harrison Plat showed that Spring Street was intersected about 213 feet south of the river by Riverside Drive, which ran through the Harrison Subdivision from east to west, while Riverside Drive was not shown on the Rio Vista Map. In 1938, an amended plat of the Harrison Subdivision was filed which again showed Spring Street but did not change its location.

After Scarborough acquired the property in the Rio Vista Subdivision, he conveyed portions of it to other persons always describing the land by the lot and block numbers shown on the map. In 1940, the then owners of the area lying west of Spring Street and north of Pierce Street replatted it and on April 26, 1940, they filed in the office of the County Clerk an 'Amended Plat of Block 'A' & 'B,' Rio Vista Addition and Scarborough Addition to the Town of Eddy now the City of Carlsbad, Eddy County, New Mexico.' A great many changes were made on the amended plat in the size and shape of the lots and a number of streets were added and the location of other streets was changed. Spring Street remained the same, but Riverside Drive was created so that an examination of both plats showed that Riverside Drive ran through both the Scarborough and Harrison Subdivision and intersected Spring Street at its present location.

On September 9, 1941, Lot 6 in Block 202, as shown on the Scarborough Plat, was conveyed to the defendants. Lot 6 was a corner lot bounded on the south by Riverside Drive, on the east by Spring Street, on the north by the Pecos River, and on the west by Lot 4. The plat showed that Lot 6 extended 89 feet from north to south along Spring Street to the river, and that Spring Street was 60 feet wide. In 1940, the plaintiff opened Spring Street from Pierce Street to Riverside Drive but did not open that portion of Spring Street which was shown on the plat to extend from Riverside Drive to the river. About February 27, 1942, the defendants commenced construction of their home on Lot 6 and, on April 28 and May 11, 1942, the defendants and the owner of the lot in the Harrison Subdivision which was located across Spring Street directly east of the defendants' lot applied to the City Council of the plaintiff asking them to vacate the unopened portion of Spring Street from Riverside Drive to the river. Defendant Neal took the position before the Council that since the plaintiff had never opened and accepted this portion of Spring Street but had actually rejected it by failing to open it when it opened the remainder of Spring Street, that the ownership of the land abutting his lot to the center of Spring Street had reverted to him and that, under the circumstances, the plaintiff should formally vacate the street so that his title would be cleared of any claims the plaintiff might have to the street. The Council refused to vacate the street giving as its reason that sometime in the future the plaintiff might want to build a bridge across the river at that point. Mr. Neal then threatened to build a fence down the middle of the street and was warned by the City Clerk not to do so. In spite of this warning, he carried out his threat and, later in 1942, built a rock fence down the center of Spring Street to the river bank. As the years passed, the defendants planted trees, flowers and grass in the area and also placed other improvements on it, such as, a barbecue pit, boat dock and diving board, but they have never assessed or paid taxes on the area. No one objected or did anything about the matter until September 19, 1948, when the plaintiff suddenly sent out a crew of men to open the street to the river. When Mr. Neal objected and informed the plaintiff that he would not permit the street to be opened unless ordered to do so by the courts, the plaintiff ordered the work stopped and filed this suit. The plaintiff claims that it now desires to open the street to the river in order to give the public additional access to the river for the purpose of fishing, boating and swimming therein.

The defendants contend that Section 75-124, N.M.S. 1951 Cumulative Supplement, applies in this case. It provides as follows:

'Realty donated to state or municipality for specific purpose--Recovery.--Whenever real estate has been deeded to the state of New Mexico or any municipality thereof as a gift or donation, and without payment by the state or municipality...