Hart v. Northeastern N. M. Fair Ass'n, 5669

• Decision Date: 08 December 1953
• Docket Number: No. 5669,5669
• Citation: 1953 NMSC 114,265 P.2d 341,58 N.M. 9
• Parties: HART et al. v. NORTHEASTERN N. M. FAIR ASS'N.
• Court: New Mexico Supreme Court

Page 341

265 P.2d 341

58 N.M. 9

HART et al. v. NORTHEASTERN N. M. FAIR ASS'N.

No. 5669.

Supreme Court of New Mexico.

Dec. 8, 1953.

Rehearing Denied Jan. 26, 1954.

H. A. Kiker, Alfred P. Whittaker, Henry A. Kiker, Jr., Santa Fe, for appellants.

Crampton, Robertson & Skinner, Raton, for appellee.

SWOPE, District Judge.

This suit was brought by the plaintiffs to compel specific performance by the defendant of a condition subsequent set forth in a deed. Judgment was rendered in favor of the defendant, and the plaintiffs appealed.

The trial court found the facts to be as follows:

'I The Plaintiff Ruth Morrow Hart was at the time of the institution of this action, a resident of Colfax County, New Mexico, and is now a resident of Las Animas County, Colorado. The Plaintiff, Mary Morrow Smith, was formerly Mary Morrow Adams, and is a resident of Las Animas County, Colorado.

'II The Defendant, Northeastern New Mexico Fair Association, is a corporation organized and existing under the laws of the State of New Mexico. It was incorporated in the year 1944 for the objects and purposes, among others, of operating and conducting fairs, including stock shows, exhibitions, rodeos, contests and races.

'III For many years the father of the Plaintiffs resided at Raton, New Mexico, and took a very great interest in an annual fair conducted in the city of Raton for the purpose of the exhibition of the products of the soil and other products of Colfax County, and Plaintiffs, in selling said real estate for less than its market value to the Defendant, had in mind and intended that said land should be used for the purpose of again conducting in said city, fairs of the same nature as those in which Plaintiffs' father had taken a lively interest as a community enterprise.

'IV In the year 1944 the Defendant acquired by purchase a tract of land called the Turner Tract, containing 110 acres, more or less, located in Colfax County, New Mexico, and lying a short distance south of the City of Raton, New Mexico, and the Defendant is still the owner of said Turner Tract.

'V On the 13th day of September, 1945, the Plaintiffs executed and delivered to the Defendant a Warranty Deed by which they conveyed to the Defendant a tract of land and real estate containing 32.6 acres, more or less, in Colfax County, New Mexico, adjoining and lying immediately north of the Turner Tract. The tract so conveyed by the Plaintiffs to Defendant was frequently referred to in the testimony as the Morrow Tract, and is sometimes so referred to in these findings. A true copy of said Deed is attached to the Amended Complaint in this action and marked Exhibit A.

'VI Said deed, among other things, contained a paragraph reading as follows:

"The land above described shall be used only for fair purposes. In the event that within ten years from the date of this deed said land shall be used for any other purpose, then the parties of the first part shall have the privilege of repurchasing said land at a price of Twenty-five Dollars ($25.00) per acre.'

'VII The said Deed was actually prepared by the attorney for the Defendant, but the above mentioned paragraph concerning the purposes for which the premises should be used was particularly requested by the Plaintiffs, and the language of that paragraph was chosen and requested by the Plaintiffs and was inserted in the Deed by the attorney preparing the same only at the request of the Plaintiffs.

'VIII The purchase price paid by the Defendant to the Plaintiffs for the said Morrow Tract was the sum of $50.00 per acre.

'IX At and prior to Defendant's purchase of the Morrow Tract, the Defendant was attempting to find a suitable location for the construction of a race track to be used for horse racing. Although the Turner Tract was large enough in area to accommodate such a track, the contour of the land and other similar conditions proved to be such that in the judgment of the Defendant a suitable race track could not be constructed wholly within the Turner Tract. The primary purpose of the Defendant in acquiring the Morrow Tract was to obtain an additional adjoining area so that the contemplated race track might be constructed partly on the Morrow Tract and partly on the Turner Tract, and this purpose was known to the Plaintiffs at and prior to the time of the execution and delivery of the Deed.

'X At and prior to the time of the execution of the Deed it was contemplated by all the parties hereto that the two tracts of land, that is to say, the Morrow Tract and the Turner Tract combined, would, in effect, be used jointly and as a unit.

'XI Shortly after the conveyance of the Morrow Tract to the Defendant by the Plaintiffs, the Defendant constructed a three-quarter mile race track, the northerly portion (approximately one-third) of which is located on the Morrow Tract and the remainder of which is located on the Turner Tract. The Defendant also constructed other valuable improvements, including a grandstand, barns, stables, office buildings and other miscellaneous structures, all appropriately located with reference to the location of the race track. Most of the improvements are physicially located on the Turner Tract, but there are located on the Morrow Tract, itself, eight barns, a feed storeroom, a warehouse, a water tank, a bath house, a blacksmith shop and a six-inch water line.

'XII In the summer of $1946 the Defendant conducted at its race track a number of horse races and horse race meetings, all duly licensed by the New Mexico State Racing Commission. Similar horse races and horse race meetings have been conducted by the Defendant at its race track every year thereafter. On each racing day several of the races have been what is known as claiming races. A claiming race is a race so arranged that, subject to definite regulations, each horse entered in the race is in effect offered for sale and may be claimed or purchased at a specified price by any horseman who complies with the requirements of the regulations.

'XIII The said Turner Tract and the said Morrow Tract, combined, have also been used for the following specific purposes:

'(a) On May 1, 1945, without compensation, the Defendant gave a long-term lease to Levi L. Turner, Ed C. Johnson and Alvin M. Stockton as trustees for Northeastern New Mexico Hereford Breeders Association covering a parcel of approximately four acres lying in the northeast corner of the Turner Tract in order that the same might be used for the purpose of conducting livestock exhibitions and shows and sales; and said Hereford Breeders Association, using building materials donated to it by the Defendant, constructed on said parcel a substantial barn, pavilion and sales ring for the purpose of conducting such exhibitions, shows and sales; and said parcel and the improvements thereon have in fact been regularly and actively used for that purpose.

'(b) In the year 1946, the Defendant, without charge, permitted said property to be used for the conducting of a circus, the actual site being on a portion of the Turner Tract.

'(c) In the summer of the year 1947, the Defendant on three different nights conducted a rodeo in front of the grandstand and within the race track enclosure.

'(d) In the year 1947, a quarter horse sale was conducted by Charles Springer Cattle Company within the race track enclosure.

'(e) In the year 1947, A. M. Van Dyke conducted a bull sale, making use of a number of the barns, stables and other facilities of the Defendant.

'(f) On various occasions prior to June, 1949, the Defendant permitted said property to be used without compensation for various functions and projects and entertainments performed and sponsored by and for the benefit of Boy Scouts of America, including among others, a benefit entertainment given by the Koshare Indian Dancers from La Junta, Colorado.

'XIV The Plaintiffs have, at all times, known the manner in which the Turner Tract and the Morrow Tract have been used, and the Plaintiffs did not at any time prior to June 23, 1949, make any protest or otherwise indicate any disapproval concerning the use being made of said property and did not indicate in any manner prior to June 23, 1949, that they considered that the use being made of said land constituted a violation of the terms and provisions of the Deed.

'XV During the entire period prior to June 23, 1949, the Defendant was continuously and consistently carrying on its program of developing and improving its property and constructing extensive and valuable improvements both on the Morrow Tract and on the Turner Tract, particularly in conjunction with the grandstand and race track. During all this period the Plaintiffs were aware of the improvements so being constructed.

'XVI The Court finds that the Plaintiffs delayed for an unreasonable length of time before advising the Defendant of their view...