Castillo v. Tabet Lumber Co.

• Decision Date: 04 October 1965
• Docket Number: No. 7648,7648
• Citation: 406 P.2d 361,75 N.M. 492,1965 NMSC 115
• Parties: Luz CASTILLO, Plaintiff-Appellee, v. TABET LUMBER COMPANY, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 361

406 P.2d 361

75 N.M. 492

Luz CASTILLO, Plaintiff-Appellee, v. TABET LUMBER COMPANY, Defendant-Appellant.

No. 7648.

Supreme Court of New Mexico.

Oct. 4, 1965.

Chavez & Cowper, Belen, for appellant.

Filo M. Sedillo, Belen, for appellee.

MOISE, Justice.

The general issue presented here is identical with the one decided in Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 112 A.L.R. 536, where it is stated, 'The question in whether the district court erred in holding that appellee has title by prescription to a right of way over appellant's land.'

There is no material dispute concerning the facts nor are they complicated. Since 1937 plaintiff-appellee has owned and resided on a tract of land or lot located in Belen, New Mexico. She was born in this house which was built by her father and she has lived there all of her life. She is now past 60 years of age. The defendant-appellant owns the property adjoining appellee's property on the south, having acquired the same in 1961. To the east of appellant's property is located a street known as Sixth Street, and to the south is Baca Avenue. Crossing appellant's property is a street, road or path which has existed in its present location for over 60 years and runs approximately paralled to Sixth Street from Baca Avenue to an east-west alley on the north side of appellee's property. This is the road that has been utilized by appellee and her parents before her to go to and from their home to the center of town. It has been generally known as Seventh Street, though clearly never dedicated as such. The road has been used by those who have lived in houses facing on it, and to some extent by the public generally. In 1963 appellant barricaded the road and appellee then filed this action. The court concluded that appellee has used a described strip of land across appellant's property continuously, openly, adversely, notoriously, peaceably and uninterruptedly under a claim of right from 1937 to 1963, some 26 years, and accordingly had acquired an easement by prescription.

Although no specific finding was made thereon, it is unquestioned that unil barricaded in 1963, the property for many years had been open and unfenced, also that the street or road has been used generally by the public desiring to pass over it and that there were many different paths over it.

In Hester v. Sawyers, supra, it was determined that title to an easement for a right of way could be acquired by prescription; that the right is obtained by use alone and is based upon a presumed grant, not upon statute; that under our law the period of use must be ten years, the same as the limitation period provided by law applicable to adverse possession of land; that the presumption of a grant of the right is conclusive upon the passage of ten years of open, uninterrupted, peaceable, notorious and adverse use under a claim of right with knowledge or imputed knowledge of the owner; that when such use is present for the requisite period the owner is charged with knowledge of it, and acquiescence in implied; and that the right may arise even though it was originally permissive, if it subsequently became adverse and the adverse use continued for a full ten years. Further, that what commences as a permissive use does not become adverse until a distinct and positive claim of right hostile to the owner is brought home to the owner by claimant's words or action. Instances where easements by prescription do not result were also noted. One of these is where the use is strictly permissive. Another is stated in the following language:

'In this state, where large bodies of privately owned land are open and uninclosed, it is a matter of common knowledge that the owners do not object to persons passing over them for their accommodation and convenience, and many such roads are made ans used by neighbors and others. Under these circumstances it would be against reason and justice to hold that a person so using a way over lands could acquire any permanent right, unless his intention to do so was known to the owner, or so plainly apparent from acts that knowledge should be imputed to him. * * *' Hester v. Sawyers, 41 N.M. 497, at 504, 71 P.2d 646, 651.

The real significance of this exception lies in the fact that under the circumstances discussed in the quotation, the use is presumptively permissive whereas in the ordinary situation, where use is open, notorious uninterrupted and peaceable, a conclusive grant it presumed.

We first consider whether the fact that appellant's land was open and unfenced operated to negate the presumption of a grant of a right. We are satisfied that the court ruled correctly. The exception noted in the quotation from Hester v. Sawyer, supra, has no application under the facts of this case. The open and unfenced property here involved is not situated so as to come within the rule. Appellant's property is a vacant town lot and is not a large body of open and unenclosed privately owned land. Neither is the reason for the different rule applicable to such tract pertinent under these facts. It is...