Fairchild v. Cloudcroft Lumber & Land Co.

Decision Date31 October 1921
Docket NumberNo. 2505.,2505.
Citation27 N.M. 362,202 P. 125
CourtNew Mexico Supreme Court
PartiesFAIRCHILDv.CLOUDCROFT LUMBER & LAND CO. ET AL.

OPINION TEXT STARTS HERE

Syllabus by the Court.

In the absence of the evidence, the findings of the trial court will be assumed to be correct. First National Bank of Albuquerque v. Staley, 26 N. M. 659, 195 Pac. 514, followed.

Appeal from District Court, Otero County; Ed Mechem, Judge.

Suit by S. W. Fairchild against the Cloudcroft Lumber & Land Company and others. Judgment for the defendants, and the plaintiff appeals. Affirmed.

In the absence of the evidence, the findings of the trial court will be assumed to be correct.

E. L. Medler, of El Paso, Tex., for appellant.

Winter, McBroom & Scott, of El Paso, Tex., and E. R. Wright, of Santa Fé, for appellees.

RAYNOLDS, J.

This is a suit brought for an injunction and damages by the appellant, plaintiff below, praying for a temporary injunction restraining the defendant from operating and conducting a sawmill on plaintiff's lands, and for maintaining nuisances about the same, blocking the roads, destroying the fences, etc. The complaint prayed for an accounting as to plaintiff's damages and a permanent injunction.

An order to show cause why the temporary injunction should not issue as prayed for was entered, and upon the rule to show cause the defendants filed a verified answer. To certain parts of this answer the defendants interposed a demurrer, which was submitted to the court at the same time a hearing was had upon the order to show cause why temporary injunction should not issue. Upon this hearing the plaintiff submitted in support of his application for temporary injunction affidavits, and the defendants submitted documentary evidence and oral proof, which was not reduced to writing and was not made a part of the record below, nor on appeal.

The court after submission of the matter to him took it under advisement, and subsequently entered a judgment denying the plaintiff's right to relief. In this judgment the court found, first, that the defendants had under the contract involved in the controversy the right to erect and maintain sawmills and to use the mill sites for milling purposes; second, to log lumber from adjacent lands, now owned by the defendants, but not owned by them, or either of them, on February 4, 1918. From these findings the court concluded as follows:

“And it is further ordered and adjudged that said motion and application of the plaintiff for a temporary injunction be, and the same hereby is, denied; and as under the conclusion of the court upon the findings so made, the plaintiff as a matter of law upon final hearing hereof would not be entitled to an injunction, the court upon the pleadings adjudges that the plaintiff's complaint is without equity, and defendants should have final judgment upon the pleadings.”

From this judgment an appeal is prosecuted to this court.

The controversy arose out of the construction of a warranty deed made by the defendant Cloudcroft Lumber & Land Company to the plaintiff Fairchild, in which the grantor reserved all oil and mineral rights and all merchantable timber upon...

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