Harrington v. Chavez
| Decision Date | 25 February 1921 |
| Docket Number | No. 2446.,2446. |
| Citation | 27 N.M. 67,196 P. 320 |
| Parties | HARRINGTONv.CHAVEZ. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Actual, exclusive possession of real estate is sufficient to enable the person in possession to maintain trespass against a stranger.
In proper cases, where the other necessary elements of equitable jurisdiction are present, injunction will lie to restrain a live stock owner from willfully or knowingly driving or turning his stock upon the premises of a prior owner.
The appellate court will not review the evidence further than to determine whether or not there was substantial evidence supporting the finding or verdict.
Appeal from District Court, Bernalillo County; Hickey, Judge.
Suit by Virgil P. Harrington against Gabriel Chavez. From a judgment for plaintiff, defendant appeals. Affirmed.
Actual, exclusive possession of real estate is sufficient to enable the person in possession to maintain trespass against a stranger.
Rodey & Rodey, of Albuquerque, for appellant.
Marron & Wood, of Albuquerque, for appellee.
Appellee had possession of the tract of land known as the Antonio Sedillo grant, situated in Bernalillo and Valencia counties, this state. He filed a complaint in equity against the appellant to restrain him from grazing his sheep on said tract of land, and alleged that appellant had willfully, purposely, and knowingly theretofore driven some 1,600 head of sheep onto said land for the purpose of grazing thereon, and, unless restrained, would continue to do so; that the damage committed by said grazing was irreparable because of the inability on the part of the appellee to procure feed or grazing for his cattle to replace that which was destroyed by the appellant. The appellee held said land under a lease which expired on the 1st day of May, 1919. The suit was filed on March 31, 1919. A temporary injunction was asked and granted and the case did not come on for final hearing until May, after the expiration of appellee's lease. The court found that the temporary injunction had been rightfully issued, but did not make the injunction permanent because of the fact that appellee's lease had expired. Damages in the sum of $2,000 were awarded appellee for the depasturing of his lands by appellant's sheep. From this judgment the appeal is prosecuted.
Twelve errors are assigned, but from the argument of the appellant the points really made are:
First, that appellee had no such rights in the property as would authorize him to sue for damages or protect such rights by injunction. The argument advanced to sustain this contention is that appellee had only limited or qualified possession, and consequently did not have the right to recover damages for the depasturing of the land, or to enjoin threatened trespasses thereon.
The court found by its first finding that the appellee was in possession of the land in question, and that this finding was justified by the evidence is not seriously disputed. In fact, the objection made to this finding by the appellant in the court below was not based upon the fact that appellee was not in possession, or that the evidence failed to show that he had possession of the land, but went only to the...
To continue reading
Request your trial
-
Pacheco v. Martinez
...the plaintiff must have been in actual or constructive possession of the land at the time of the alleged trespass. Harrington v. Chavez, 27 N.M. 67, 196 P. 320 (1921); John Price Associates, Inc. v. Utah State Conference, Brick Layers Locals Nos. 1, 2 & 6, supra; and Chournos v. Alkema, sup......
-
Wright v. Atkinson
...case is one of willful trespass. Vanderford v. Wagner, supra. And it will ordinarily be a ground for equitable relief. Harrington v. Chavez, 27 N. M. 67, 196 P. 320. Here again appellants assume facts not found, as showing good faith on their part and as showing malice on the part of appell......