Chavez v. Valencia County

• Decision Date: 26 April 1974
• Docket Number: No. 9804,9804
• Citation: 86 N.M. 205,1974 NMSC 35,521 P.2d 1154
• Parties: Pablo CHAVEZ and Manuela Chavez, his wife, Plaintiffs-Appellees, v. COUNTY OF VALENCIA et al., Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 1154

521 P.2d 1154

86 N.M. 205

Pablo CHAVEZ and Manuela Chavez, his wife, Plaintiffs-Appellees, v. COUNTY OF VALENCIA et al., Defendants-Appellants.

No. 9804.

Supreme Court of New Mexico.

April 26, 1974.

Mayo T. Boucher, Robert J. Laughlin, Belen, Martin Pearl, Los Lunas, for defendants-appellants

Edward J. Apodaca, Albuquerque, for plaintiffs-appellees.

OPINION

OMAN, Justice.

This is an appeal from an order denying a motion to set aside a judgment pursuant to the provisions of Rule 60(b)(4) of our Rules of Civil Procedure for the District Courts (§ 21--1--1(60)(b)(4), N.M.S.A.1953 (Repl.Vol. 4, 1970)). We reverse.

In 1967 plaintiffs petitioned the County Commission of Valencia County to vacate, pursuant to the provisions of § 55--4--4, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1962), two county roads which were established and maintained as highways. Thereafter, in October 1967, they appeared before the Commission in support of their petition. Upon the advice of the district attorney the Commission told plaintiffs that the matter of vacating the roads was a matter to be determined by the district court.

On September 25, 1969, plaintiffs filed suit in the district court, whereby they sought to quiet title in themselves to certain lands, including the two roads. The County and the Cordovas, appellants here, were among a large number of defendants named in this quiet title suit. A 'Decree and Judgment' was entered by the district court on July 10, 1972, by which title to the said lands, including the two roads, was quieted in plaintiffs. However, quieting of the title to the roads in plaintiffs was conditioned upon the establishment by them of a 40 ft. right-of-way easement in the public across another portion of plaintiffs' lands and 'straightening out the road along the southern boundary of real property' as described in the 'Decree and Judgment.'

The following is one of the recited findings of fact pertinent to and upon which the district court apparently relied for quieting title to the roadways in plaintiffs and requiring that they establish a 40 ft. public right-of-way easement:

'That a portion of an individual tract herein subject of Quiet Title was at one time by predecessors of Plaintiffs in title dedicated to Defendant COUNTY OF VALENCIA, providing full use and need thereof as right-of-way; that same was utilized and rendered; that said need no longer exists, and by pertinent statutes herein applicable, said easement has been extinguished, and any right of said Defendant herein is without any foundation or right, either in law or equity.' (Nothing contained in the 'Decree and Judgment,' or in plaintiffs' complaint from which this finding was taken verbatim by adoption, indicates, or even suggests, what statute or statutes the court had in mind. However, in the subsequently filed decision to which reference is hereinafter made, reference was made in one of the court's findings of fact and also in one of its conclusions of law to § 55--4--4, supra).

On October 18, 1972, an order was entered pursuant to a motion:

'* * * (T)hat the Judgment (Decree and Judgment referred to above) heretofore entered herein is hereby vacated for a period of THIRTY (30) days for the specific purpose of allowing Defendants to file their requested Findings of Fact and Conclusions of Law and that thereafter said Judgment shall be entered with its appropriate full force and effect, * * *.'

On November 3, 1972, the County and the Cordovas filed their requested findings of fact and conclusions of law. It does not appear from the record before us whether these findings and conclusions were ever considered by the district court. It is apparent that the court failed to comply with Rule 52(B) (a)(5) of the Rules of Civil Procedure for the District Courts (§ 21--1--1(52) (B)(a)(5), N.M.S.A.1953 (Repl.Vol. 4, 1970)).

On January 2, 1973, the district court's decision, consisting of finding of fact and conclusions of law, was filed with the clerk of the court. This decision constituted a verbatim copy of a paper filed March 15, 1972 denominated 'Plaintiffs' Requested Findings of Fact and Conclusions of Law.' However, this paper was not signed and does not purport to have been served on opposing counsel.

At the request of plaintiffs' attorney, the district court's decision was shown to have been filed on July 10, 1972. On January 18, 1973, the district court filed a purported 'Order Nunc Pro Tunc' by which it was ordered 'that the Court's Findings of Fact and Conclusions of Law herein be entered herein 10 July 1972 nunc pro tunc.' As to the office of a nunc pro tunc entry of record, see Mora v. Martinez, 80 N.M. 88, 451 P.2d 992 (1969).

The sole issue raised on this appeal is whether the judgment of the district court was void insofar as it purported to quiet title to the roads in plaintiffs. Section 55--4--4, supra, provides in pertinent part:

'Whenever, in the opinion of the board of county commissioners of any county, and road or part of road then established and maintained as a public highway, is not needed, * * * they may at a regular meeting appoint a board of commissioners of three (3) freeholders of the county as viewers, to view such road or part of road, and make report thereof to the board of county commissioners at their next regular meeting, setting forth fully their finding, and if they recommend a discontinuance of such road or part of road, then the board of county commissioners may order the same vacated. * * *'

Sections 55--1--6 and 55--1--7, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1962) provide:

'55--1--6. Abandonment, vacation and reverter of public roads, streets and highways.--Property or property rights acquired by purchase or condemnation by the state or any commission, department, bureau, agency or political subdivision of the state for public road, street or highway purposes shall not revert until such property or property rights are vacated or abandoned by formal written declaration of vacation or abandonment which has been fully declared by the state or any commission, department, institution, bureau, agency or political subdivision of the state in whom the property or property right has vested.'

'55--1--7. Petition for determination of abandonment or vacation.--Any owner of lands abutting any highway, street or road, his heirs or assigns, who believes a section of any public road, street or highway is no longer needed for public purposes, may petition the state or any commission, department, bureau, agency or political subdivision thereof for a formal determination of abandonment or vacation.' (We note and have deleted obvious repetition of some of the language of this section).

These statutes all relate to the same matter, to wit, the vacation or abandonment of public highways, streets or roads by formal declaration, determination or order of the state or the appropriate commission, department, institution, bureau or political subdivision thereof. Being in pari materia these statutes, should be construed, if reasonably possible, so as to give effect to every provision of each. State v. New Mexico Authority,76 N.M. 1, 18, 411 P.2d 984, 996 (1966). A consideration of these statutes together clearly evinces an intent on the part of our Legislature to provide a formal procedure for the abandonment or vacation of public roads, streets and highways, and the district courts are not vested with this power. Plaintiffs' argument to the contrary is clearly unsupported by the language of the statutes. The record shows that the County Commission, representing the County of Valencia, was the proper body to vacate or abandon the roads in question, and this Commission has not declared, determined or ordered a vacation or abandonment thereof.

Plaintiffs argue that the Cordovas lacked standing to challenge the district court's action in quieting title to the roads in plaintiffs and against the interests of the County. The Cordovas were made parties defendant to the suit by plaintiffs, and were referred to as defendants in the same paragraph of the complaint in which the County was referred to as a defendant. It is true the nature of their alleged claim of interest in the lands to which plaintiffs sought to quiet title does not appear in the complaint. The motion to set aside the judgment under Rule 60(b)(4), supra, does not specifically state what the interest of Cordovas was in the lands to which the district court undertook to quiet the title in plaintiffs, but clearly they joined in the motion for the purpose of setting aside the judgment insofar as it purported to quiet 'Reply to Motion to Set Aside Judgment,' 'Reply to Motion to Set Aside Judgment,' plaintiffs made no claim that the Cordovas lacked standing to join in the motion. Even if we were to concede that the Cordovas did lack standing, clearly the County of Valencia had standing and was a party aggrieved by the 'Decree and Judgment,' and by the order denying the motion to vacate that judgment. No claim is made that the County lacked standing. Thus, the question of standing by the Cordovas is of no particular consequence.

Plaintiffs contend the County waived its right to challenge the jurisdiction of the district...