Chaves v. Torlina
| Citation | 99 P. 690,15 N.M. 53,1909 -NMSC- 008 |
| Parties | CHAVES v. TORLINA. |
| Decision Date | 19 January 1909 |
| Court | New Mexico Supreme Court |
Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.
Action by Eduardo Chaves against John D. Torlina. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with leave to reform the pleadings.
In 1880 Santiago Baca surveyed and filed a plat of an addition to the town, now city, of Albuquerque, and in 1881 a new survey was made of this addition, a new plat was also filed, and from an examination of these plats it appears that the lots of same number do not cover the same ground; the lots in the survey of 1880 being 25 feet wide, and the lots in the survey of 1881 being 25 feet in width, except lot 3, block 2, now owned by the plaintiff, Chaves, which is 22 feet wide. On June 4 1881, Santiago Baca and wife conveyed to Augustus Sweeney lot 3, block 2 of the Baca addition, according to the survey of 1880. In September, 1882, Sweeney conveyed the same to Daniel Geary, and on November 20, 1884, Geary conveyed to Juan Chaves y Peña and wife a lot numbered the same, but according to the survey of 1881. It appears that, the lots not being marked on the ground under the survey of 1881, the grantee requested the grantor to stake out the lot, which was done and the grantee took possession of the same as thus marked by stakes. In 1884 and 1885, Juan Chaves y Peña and wife erected an adobe building 130 feet long by 22 feet and 3 or 4 inches wide on the lot which they understood they had purchased erecting the north wall on the north line of the lot as staked out to them. This building is the one for injury to the north wall of which damages are sought to be recovered in this case. Juan Chaves y Peña and wife sold to Ignacio Baca y Chaves lot 3, block 2, December 13, 1885. Ignacio Baca y Chaves died about 13 years ago, and on April 25, 1898, Eduardo Chaves, the plaintiff, purchased said lot from Maria de Baca, wife of Ignacio Baca y Chaves, and has continued to occupy the store building erected upon said lot by Juan Chaves y Peña to the present time. On February 6, 1885, Baca and wife sold lots 1 and 2 of block 2 to John D. Torlina, the defendant in this case, and the defendant took possession of them according to the survey of 1881. In 1889 the defendant began the erection of what is now known as the Eight-Spot Saloon upon lot 2, block 2, which adjoins the lot occupied by plaintiff's store building, and for the first time a question arose as to the boundary line between the two lots. A surveyor was employed by the defendant to determine the boundary, and the survey made by him disclosed the fact that the lot owned by the plaintiff was only 22 feet wide, whereas the lot of the defendant was 25 feet wide; and disclosed the further fact and reported the same to the defendant that the north wall of the building occupied as a store by Juan Chaves y Peña was upon the lot of the defendant to the extent of 2 feet and 1 inch.
It appears from the testimony that the defendant notified Ignacio Baca y Chaves, who at that time owned the store building and the lot upon which it was situated, to remove the north wall of his building from the defendant's ground, and the result of this notice was an agreement, stated in the testimony between the defendant and Ignacio Baca y Chaves, that Baca's building should remain on the defendant's ground until the defendant demanded it from him, and it is admitted by the defendant that no demand was ever made, either of Baca or the plaintiff, for this ground, or for the removal of this wall. Baca died some time later-the particular time is not disclosed by the evidence-and his wife continued to use the store building, and in 1898 sold the same to Eduardo Chaves, the plaintiff. So far as the evidence shows, Chaves knew nothing of the dispute as to the boundary line between the defendant and Ignacio Baca y Chaves, nor was he aware of the fact that the north wall of the building was upon the ground of the defendant. All that the evidence discloses upon this point is that when the wall had been damaged, so that it became necessary to re-erect the same, the defendant, observing the work of rebuilding this wall, some time in 1903, stated to the plaintiff Chaves that this wall was upon his ground, to which Chaves replied that it was not, and continued the erection of the wall. On July 31, 1903, the plaintiff Eduardo Chaves brought this suit, in which he claimed damages to the extent of $1,250, alleging in the second paragraph of the complaint that the defendant between the 1st day of February, 1902, and the 22d day of April, 1903, maliciously intending and contriving to injure and destroy the property of plaintiff, unlawfully and with force of arms entered upon said premises and cut, tore down, injured, and destroyed the walls of said plaintiff's storeroom or building, so that by reason thereof a large portion of the walls of said store building were cracked, settled, injured, weakened, and destroyed to plaintiff's damage in the sum of $1,000. In the third paragraph of the complaint, it is alleged that between the same dates above stated the defendant, by reason of rain waters which washed and ran down from the roofs and from below, of water-closets, outhouses, and houses and buildings belonging to the defendant, and which the defendant has built upon, against, touching, and abutting against the north wall of plaintiff's said store building, so that by reason of the large quantities of rain waters so running against and upon said wall, from and off the roofs of said water-closets, outhouses, and houses and buildings belonging to the defendant, a large portion of the walls of said store building were cracked, washed down, settled, and destroyed, and so injured and weakened and destroyed as to make it wholly unfit for the carrying on of plaintiff's business, to wit, general merchandise, to the damage of plaintiff in the sum of $1,000. In the fourth paragraph of the complaint, it is alleged that, by reason of said store building having been so injured and destroyed, it became impossible for plaintiff to continue his business therein, and that he was compelled to move out of the said store building into another place of business, incurring damages to the extent of $250. Demurrer was sustained to this complaint, and it was amended at a later date, and at a still later date, after the testimony had been taken, the complaint was again amended at the plaintiff's request, so as to conform to the evidence. Jury was waived, trial was had before the court, and judgment rendered in damages for the sum of $475. Appeal was prayed to this court, and granted.
W. H. Heacock, for appellant.
E. V. Chaves, for appellee.
There were two surveys made of the Baca addition, one in 1880 and the other in 1881, and both were recorded. The lots are numbered the same, but the land is not. In the survey of 1880, the lots are 25 feet wide, but according to the second survey, in 1881, the lots are 25 feet wide, except lot 3, block 2, which is only 22 feet wide. Santiago Baca, the owner of the addition, made his conveyances of lots 2 and 3, block 2, according to the survey and plat made in 1880, although he appears to have had both surveys made. Baca and wife conveyed lot 3, block 2, to Augustus B. Sweeney in 1881, according to the survey of 1880. Sweeney conveyed to Daniel Geary in 1882, according to the same survey, which survey made the lot 25 feet wide, but when Geary and wife conveyed to the wife of Juan Chaves y Peña in 1884, under purchase by her husband, they conveyed lot 3, block 2, according to the survey of 1881. The lot thus conveyed was not the same lot conveyed by the former deeds to Geary, and was only 22 feet wide. It appears, however, that under the survey of 1881 the boundaries of the lots were now marked on the ground, and, when Chaves y Peña purchased, she had the surveyor stake out the lot. As she and her husband erected their building in 1884-85, to be used as a store and dwelling, leaving between 2 and 3 feet on the south side for an alley, and the building 22 feet and 3 or 4 inches wide, it is evident that the lot had been staked out to them 25 feet wide. Santiago Baca and wife conveyed lots 1 and 2, block 2, to the appellant, Torlina, in 1885, according to the survey of 1880; but, as the court states in its findings, the appellant took possession of lots 1 and 2 as shown by the survey of 1881. It will be observed that this overlapping occurred by reason of Geary's conveying under a different survey than that under which the lot was conveyed to him. When the defendant made this discovery, he had a written notice, dated June 10, 1889, served upon Ignacio Baca y Chaves, to whom Juan Chaves y Peña and wife had in the meantime conveyed the premises, notifying him that his building "trespasses," on defendant's lot 2, 2.1 feet, requesting him to remove "said trespass" from the ground without further notice, and that upon failure to do so he would be held liable for all damages and costs. After this notice was served, Ignacio Baca y Chaves and the appellant had a conference about the matter, the result of which was that the defendant Juan Chaves y Peña entered into an agreement, concerning the effect of which the appellant testified as follows: "Q. And under the agreement or contract you had with him (meaning Chaves y Peña), how long was he to occupy it? A. Until I demanded it. Q. Did you ever demand it during his lifetime? A. No, sir; I did not.
From these facts it appears that Ignacio Baca y Chaves was to continue his possession of the portion of appellant's lot upon which his building stood until demand for possession was made upon him, by the agreement and consent of the appellant....
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