Elliott v. Rich.

• Citation: 24 N.M. 52,172 P. 194
• Decision Date: 08 April 1918
• Docket Number: No. 2077.,2077.
• Parties: ELLIOTTv.RICH.
• Court: Supreme Court of New Mexico

24 N.M. 52

172 P. 194

ELLIOTT

v.RICH.

No. 2077.

Supreme Court of New Mexico.

April 8, 1918.

Syllabus by the Court.

Upon the allowance of a lieu selection of public land by the local land officers, the state and its lessee acquire such an interest in the land as authorizes injunction to prevent waste thereon.

Notwithstanding the title to land covered by lieu selection by the state is in litigation before the Land Department of the government, the state, and through it its lessee, may maintain an injunction to prevent waste pending a final determination of the rights of the parties by the Land Department.

Appeal from District Court, Roosevelt County; McClure, Judge.

Suit by William Elliott against Everett Rich. Decree for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Notwithstanding the title to land covered by the lieu selection by the state is in litigation before the Land Department of the government, the state, and through it its lessee, may maintain an injunction to prevent waste pending a final determination of the rights of the parties by the Land Department.

Keith Edwards, of Ft. Sumner, and G. L. Reese, of Portales, for appellant.

J. E. Pardue, of Ft. Sumner, for appellee.

PARKER, J.

The appellant filed his complaint in the district court of Roosevelt county against the appellee, alleging that the appellant was the lessee of certain lands from the state of New Mexico; that the appellee on a day certain and at divers other times entered upon and broke and plowed up the soil of a portion of said premises; that said premises were valuable for grazing purposes, and were leased by the appellant for said purposes only; that said breaking and plowing of the soil completely destroyed the grass on said premises and irreparably injured it for grazing purposes; that the appellee was about to commit further trespasses of a similar nature; and prayed for an injunction against any further trespass or injuries to the said premises. Afterwards an amended complaint was filed, adding the further allegation that the state of New Mexico, the lessor of appellant, had filed application in the United States land office at Ft. Sumner, N. M., for the selection, as indemnity lieu lands, of the said lands, and that on the 5th day of April, 1915, the said selections were duly allowed by the officers of the said land office. The appellee answered the amended complaint, denying that the said selections were allowed by the officers of the said land office and the lands segregated from all form of entry. He admitted that he plowed up the land, but alleged that he did so in pursuance of his right as a bona fide settler upon the said land, alleging settlement made prior to the selection by the state and continued to the date of the answer. He also admitted that the lands were valuable for grazing purposes, and that the breaking up and plowing of the same completely destroyed the grass and injured the land for grazing purposes, but he denied that he plowed any lands except those embraced within his alleged homestead settlement. By way of new matter, appellee further alleged in his answer that the state of New Mexico had no interest in and to the lands at the time of the purported lease to the appellant; that appellee was a prior settler; that he had an application pending in the Department of the Interior to enter the land as a homestead; that the selection of the state was not filed until after his settlement had been initiated; that the selection had not been approved by the Secretary of the Interior, and until such approval the state had no interest in the lands subject to lease. A reply was filed by the appellant denying each and every allegation contained in the answer.

Upon final hearing, the court made findings of fact and conclusions of law to the following effect: That the appellee had settled upon and was occupying, and with his family was residing upon and occupying, the land in question as a homestead at the time the state of New Mexico filed its selection of said land under the provisions of the Enabling Act, which said land he has at all times claimed as a settler and homesteader since the date of said settlement. The court found that the appellant's right and title and interest in and to the premises in question was extremely doubtful and uncertain, and so extremely doubtful and uncertain that the court deemed it insufficient to entitle the appellant to permanent injunctive relief, and thereupon dissolved the preliminary injunction theretofore issued. A decree was entered accordingly, from which appellant appeals.

It appears in the testimony that the state filed its lieu selection list covering the lands in controversy on the 23d day of October, 1914, which selection was allowed by the local land office. On the following day, October 24, 1914, the appellee filed a homestead application in the same land office covering the land in controversy. This application was rejected by the local land office on the same day that the lieu selection by the state was allowed. Afterwards the appellee filed a contest against the state's selection, which contest was undisposed of at the time of the hearing before the court. It further appears that the appellee plowed up and broke out some 20 acres of the land involved, and threatened to continue said plowing and breaking, and that the premises were valuable chiefly for grazing and were leased by the appellant for that purpose, and that the plowing of the soil completely destroyed the...