Hobbs v. Town of Hot Springs.

• Decision Date: 18 September 1940
• Docket Number: No. 4556.,4556.
• Citation: 44 N.M. 592,106 P.2d 856
• Parties: HOBBSv.TOWN OF HOT SPRINGS.
• Court: New Mexico Supreme Court

44 N.M. 592

106 P.2d 856

HOBBS

v.TOWN OF HOT SPRINGS.

No. 4556.

Supreme Court of New Mexico.

Sept. 18, 1940.

Appeal from District Court, Sierra County; Eugene D. Lujan, Judge.

Action by Tom M. Hobbs against the Town of Hot Springs to enjoin defendant from extending a city street. From an adverse judgment, plaintiff appeals.

Affirmed.

Courts of equity exercise discretionary power in the granting of their extraordinary remedies, such as an injunction.

Edward D. Tittmann, of Hot Springs, for appellant.

Rodey & Dickason and Wm. A. Sloan, all of Albuquerque, for appellee.

BICKLEY, Chief Justice.

This action was brought by plaintiff (appellant) to enjoin the defendant (appellee) from extending Main Street of the Town of Hot Springs across certain streets mentioned in the complaint. To the complaint a demurrer was lodged and sustained. The plaintiff refused to amend and judgment of dismissal was entered, from which this appeal is taken.

Of the facts alleged in the complaint, the following are sufficient to determine the case (we have italicized certain words and phrases deemed to be important in our consideration):

“IV. That the defendant in a cause numbered 4000 on the docket of the District Court of Sierra County, State of New Mexico is attempting to condemn real estate belonging to various persons for the purpose of building what is called a “Main Street Extension”, a map of which proposed extension has been filed in said cause No. 4000.

“V. That it appears from the said map that the proposed extension will cross the following streets: Birdwood Street, Gasrt Avenue, Clancy Street, Matson Avenue and McElroy Street, all of which are established streets, dedicated to public use and in actual use at this time and have been so for a number of years.

“VI. That said streets have been and are being used by this plaintiff and that they are necessary to the use and enjoyment of the property hereinabove described. That it appears from said map that it is the intention of the defendant to cross said streets and avenues on a grade and level which would interfere with and obstruct the use of the said streets and avenues.

“VII. That this plaintiff is informed and believes and on such information and belief alleges that the person or persons who direct and control the affairs of the Town of Hot Springs have conspired with certain property owners of said Town who own property on Main Street which would be benefitted by the construction of such extension. That among the persons who do own such property is one Dr. A. C. White, and one James Knox. That the street extension proposed to be built would go thru and partially take some of the property owned by said individuals, but it would also greatly benefit other real estate owned by said persons individually. That a secret understanding has been reached between the aforesaid persons and the mayor of the said Town whereby the house of said Dr. White is to be moved at the expense of the town, and the said Dr. White and James Knox are to be reimbursed for any property taken for said proposed extension at the expense and cost of the taxpayers at a rate which will provide a good and substantial profit to said persons, in addition to the benefit to be derived for them from the opening of said proposed extension.

“VIII. This plaintiff is informed and believes and on such information and belief alleges that none of the owners of real estate which must be condemned in order to open said extension have subscribed, offered to subscribe, donated, granted or agreed to accept no compensation for the real estate which is to be condemned, and that in fact a number of such owners have refused to subscribe, donate, grant or give to the defendant any portion of their real estate without compensation, and have refused to subscribe or guarantee the payment of the cost of condemning said real estate and paying for any part thereof. “***

“XII. That the construction of such extension would cause irreparable damage to this plaintiff and to all persons similarly situated, for whose benefit this action is brought, in this that it would deprive him of access to the property hereinabove described except at great cost and inconvenience; that it would destroy and reduce the value of all real estate hereinabove described and would impair and reduce the value of real estate along what is now designated on the maps of said town as Broadway. That the ulterior motive and design of the proponents of said extension is to destroy as far as possible the present values of real estate along Broadway and enhance some of the values along Main Street, and that the whole plan and scheme is not based on any public necessity but on the expectation of personal profit to the proponents of said plan.”

The prayer is: “Wherefore plaintiff prays that an injunction issue against the said town, its agents, attorneys, officers and employes enjoining them from proceeding with the carrying out of the proposed extension and from taking any steps whatever towards the consummation of said plan, and for such, other and further relief as to the court may seem meet and proper.” (Emphasis ours)

Omitting the formal parts, the demurrer is as follows:

“I. That it appears from the face of the complaint that there is another action pending between the same parties for or relative to the same cause in this state; and all the matters and things set forth in the complaint herein could be raised by answer or cross-complaint in cause No. 4000 entitled ‘Town of Hot Springs, a municipal corporation, vs. F. W. Humphery, et als.’

“II. And for the second grounds of demurrer to the complaint herein the defendant sets forth that the plaintiff, as appears from the face of the complaint, has an adequate remedy at law; namely, to properly answer or cross-complain in cause No. 4000, entitled ‘Town of Hot Springs, a municipal corporation, vs. F. W. Humphery, et als.’

“III. As an additional grounds for demurrer the defendant sets forth that the complaint herein does not state the facts sufficient to constitute a cause of action in that it appears from the face of the complaint, that there is no equity in the complaint of the plaintiff in that all the matters and things therein set forth could be properly set up by answer in cross-complaint in cause No. 4000, entitled ‘Town of Hot Springs, a municipal corporation, vs. F. W. Humphery, et als.”’

[1] The District Court sustained the demurrer generally. It is one of the principles of review that insofar as necessary to sustain the judgment all the details of a trial are presumed to be legal and sufficient to sustain the judgment until the contrary is shown and that every presumption favors the correctness of the decision. United States v. De Amador, 6 N.M. 173, 27 P. 488; United States v. Chaves, 6 N.M. 180, 27 P. 489; United States v. De Lujan, 6 N.M. 179, 27 P. 489; Sandoval v. Unknown Heirs, 25 N.M. 536, 185 P. 282; Mitchell v. McCutcheon, 33 N.M. 78, 260 P. 1086.

[2] In the case at bar the appellant has not caused to be incorporated in the transcript on appeal the proceedings in “Cause No. 4000” referred to in the complaint or any part thereof. Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the court below. Cassell Motor Co. v. Gonzales, 32 N.M. 259, 255 P. 636.

[3] It must be remembered also that courts of equity exercise discretionary power in the granting or withholding of their extraordinary remedies, such as injunction. “An injunction is an extraordinary proceeding, the propriety of the allowance of which depends upon a variety of circumstances aside from the strictly defined right of the complainant, and it is therefore uniformly held that the granting or refusal of an injunction, either preliminary or final, is not a matter of right, but rests in the sound judicial discretion of the trial court, to be exercised according to the facts and circumstances of each case, and its discretion will not be interfered with unless a palpable abuse is shown.” 13 Standard Encyclopedia of Procedure, Injunction, Page 118. See also 28 Am.Jur., Injunctions, Sec 35. When the sufficiency of the complaint to warrant the granting of this extraordinary relief is challenged, ordinarily the first thing the Chancellor does is to examine the allegations of the complaint to determine whether the complainant has an adequate remedy at law, and also whether there are facts alleged which show that he is about to be irreparably damaged. The Chancellor will consider everything which may have a bearing upon his exercise of his judicial discretion. In the case at bar, he would discover that the complaint seeks to control by injunction the exercise of the discretion of a municipality in matters of a governmental nature, namely, the extension of a street, and the exercise of the power of eminent domain as a preliminary proceeding thereto. In Oliver et al. v. Board of Trustees of Town of Alamogordo, 35 N.M. 477, 1 P.2d 116, 117, we decided: “The decision of the governing body of a town or city on matters committed to its discretion will not be set aside or disturbed, in the absence of a showing of fraud or conduct so arbitrary as to be the equivalent of fraud.” See also High on Injunctions, Sec. 1270, where it is said:

“The general principle already stated denying relief by injunction against the action of municipal bodies in matters properly resting within their jurisdiction, in the absence of fraud, applies with a special force to cases where the relief is sought against the construction by municipal corporations or works of public improvement,...