Jackson v. Gallegos

• Decision Date: 02 March 1934
• Docket Number: No. 3760.,3760.
• Citation: 38 N.M. 211,30 P.2d 719
• Parties: JACKSONv.GALLEGOS et al.
• Court: New Mexico Supreme Court

38 N.M. 211

30 P.2d 719

JACKSON

v.GALLEGOS et al.

No. 3760.

Supreme Court of New Mexico.

March 2, 1934.

Appeal from District Court, Rio Arriba County; Otero, Judge.

Action by W. S. Jackson against Abran Gallegos, Katherine Long Garcia, J. Cristobal Gomez, administrator of the estate of Felix Garcia, deceased, Emmet Wirt, and others, in which defendants second, third, and last named filed a cross-complaint. From a judgment in favor of plaintiff, named defendants appeal.

Reversed and remanded, with directions.

Plaintiff in quiet title suit, by demurrer to defendants' evidence, admitted truth of all of defendants' evidence and all legitimate inferences deducible therefrom.

Barker & Fahy and J. O. Seth, all of Santa Fe, for appellants.

Gilbert & Hamilton, of Santa Fe, for appellee.

SADLER, Justice.

This case is before us on motion for rehearing. We deem it convenient to withdraw the opinion heretofore handed down and to substitute the one to follow therefor.

Plaintiff (appellee before us) sued in the district court of Rio Arriba county to quiet title to a portion of the Juan Jose Lobato land grant located in said county, naming innumerable defendants including the owners of the Polvadera land grant who are sole appellants here and will be referred to herein as defendants.

The complaint, which was one in ordinary form to quiet title, set forth numerous exceptions, embracing all those contained in the decree of confirmation and patent as well as additional exceptions. These defendants appeared and filed their answer and cross-complaint. The plaintiff filed his answer to defendants' cross-complaint and the cause thus proceeded to trial.

At the trial plaintiff's counsel read into the record a stipulation of the parties made at or prior to the date of trial.

Largely it contained reciprocal agreements on the part of each as to date of the other's grant, of juridical possession thereunder, time of confirmation by the United States Court of Private Land Claims and of issuance of United States patent pursuant thereto; also stipulations with reference to present ownership by the parties of the grant titles and an admission on the part of each that the other's grant lines as originally made embraced the overlap, the lands at issue between them. It was also stipulated that each was an individual grant of a specific tract, neither being a community grant nor what is known as a “float,” having reference to undescribed and unlocated lands. Portions of the stipulation will be adverted to more in detail hereinafter as occasion demands.

Having introduced the stipulation into the record, the plaintiff rested. Thereupon the defendants interposed a motion to dismiss which was in effect a demurrer to the evidence, as follows:

“Mr. Fahy: The plaintiff having rested on the stipulated facts, the defendants move for judgment of dismissal as against the defendants Emmet Wirt, Katherine Long Garcia and J. Cristobal Gomez, Administrator of the estate of Felix Garcia; the defendants move for judgment of dismissal against them and also judgment on their cross-complaint against the plaintiff for the reason that the stipulation shows that these defendants are the owners of the paramount prima facie title.”

The court denied both motions, whereupon the defendants proceeded and without objection from plaintiff to introduce evidence consisting of an abstract of title containing among other things proceedings in a suit in partition and to quiet title to the Polvadera grant out of which arose a special master's deed relied upon by defendants. Likewise and without objection from plaintiff that the issue was immaterial, the defendants introduced the oral testimony of several witnesses in support of their claim of title by adverse possession. Defendants having rested their case, the plaintiff questioned the sufficiency of the evidence to establish title by adverse possession by a demurrer to the evidence upon the following grounds, to wit:

“Mr. Gilbert: Plaintiff demurs to the evidence on the ground it does not show continuous adverse possession and exclusive adverse possession or visible adverse possession during any of this period of time.”

Contemporaneously with the interposition of the demurrer, the defendants renewed their motion for dismissal of the complaint and judgment on their cross-complaint urged at the close of the plaintiff's case in chief. The plaintiff's demurrer to the evidence was sustained and the motion of defendants was denied. Thereafter a final decree embracing certain findings and conclusions was entered in favor of plaintiff. The present appeal seeks a revision and correction of that decree.

We are confronted at the threshold of this case with defendants' claim of error predicated upon the court's action in overruling their motion to dismiss and for judgment upon their cross-complaint interposed when plaintiff rested his case in chief and renewed at the close of defendants' case. If defendants' position upon this question be correct, the other points need not be considered. It is urged with great earnestness that by reason of plaintiff's omission to prove that the overlap, the land to which plaintiff sought to quiet title as against defendants, constituting as it does only a part of the Lobato grant, was not within any of the exceptions withheld from said grant by the patent, or subsequently existing as enumerated in the complaint, there was a fatal failure of proof entitling defendants to a dismissal of plaintiff's complaint and judgment on their cross-complaint. The rule invoked is that applied in Maxwell Land Grant Co. v. Dawson, 7 N. M. 133, 34 P. 191; Id., 151 U.S. 586, 14 S. Ct. 458, 38 L. Ed. 279, the reason for which is well stated in Stephens v. Terry, 178 Ky. 129, 198 S. W. 768.

If upon the merits of the point, we should agree with defendants in their view of the proof, still whether as a fact the 9,500-acre overlap is within or without the exceptions from plaintiff's grant, nowhere appears except as its location within the exceptions may be surmised from plaintiff's failure to prove that it lies outside them.

The plaintiff, although arguing at length that under the stipulation and pleadings there was no such failure of proof, questions defendants' right to review the point since the claimed defect in proof was not pointed out specifically in the motion to dismiss. See Blacklock v. Fox, 25 N. M. 391, 183 P. 402. Counsel for defendants insist that their motion, in effect a demurrer to the evidence, challenged the sufficiency of plaintiff's evidence as a whole and renders available the point urged. And it may be inquired, as to the particular defect here claimed, whether within the rule applied in Schaefer v. Whitson, 32 N. M. 481, 250 P. 618, the same might be noticed as a matter of fundamental error.

But in view of our conclusion that a new trial should follow our reversal of the trial court's ruling on the issue of adverse possession hereinafter discussed, we are of opinion that upon such retrial and in furtherance of justice the case should be open for additional proof upon this issue. We are therefore disposed to forego a decision of the question embraced in this otherwise serious point. We apprehend that upon such retrial this issue will be resolved by affirmative proof rather than a mere failure thereof. Thus no injustice can prevail as conceivably might were the question made decisive on the present state of the proof.

[1] One of the initial points presented for decision before passing to other questions is involved in the determination whether, aside from its subsequent loss (if the subsequent loss of either title can be considered under the stipulation), the Juan Jose Lobato grant or the Polvadera grant has the superior title to the area within an overlap of the boundaries of the two grants, which conflict is conceded by both parties to exist.

The facts raising this issue are these: The Juan Jose Lobato grant has priority of grant and of delivery of juridical possession from the kingdom of Spain. The Polvadera grant has priority of confirmation by the United States Court of Private Land Claims and of patent from the United States pursuant thereto. The stipulation embraces a reciprocal agreement on the part of each that the other's grant covered all lands within the conflict and was a valid and perfect grant, except in so far as its validity may, as a matter of law, have been affected, as to the Lobato, by the subsequent grant of the Polvadera and its earlier confirmation and patent; and, as to the Polvadera, by the priority of grant possessed by the Lobato.

The plaintiff relies upon Territory v. Delinquent Tax List, 12 N. M. 62, 73 P. 621; Territory v. Delinquent Tax List, 12 N. M. 169, 76 P. 316; Board of Trustees of Cebilleta de la Joya Grant v. Board of Trustees of Belen Land Grant, 20 N. M. 145, 146 P. 959; Id., 242 U. S. 595, 37 S. Ct. 215, 61 L. Ed. 514; Board of Trustees v. Brown, 33 N. M. 398, 269 P. 51; U. S. v. Percheman, 7 Pet. 51, 8 L. Ed. 604; Trenier v. Stewart, 101 U. S. 797, 25 L. Ed. 1021; Ainsa v. N. M. & Ariz. R. R. Co., 175 U. S. 76, 20 S. Ct. 28, 44 L. Ed. 78; Henshaw v. Bissell, 18 Wall. 255, 21 L. Ed. 835; and Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 11 S. Ct. 656, 35 L. Ed. 278, in support of his claim to superiority of title under these facts. The authorities relied upon abundantly sustain his position. We therefore hold the Lobato grant and the owner thereof to have the superior title to the area in conflict in so far as determined by the facts mentioned in connection with our discussion of hills question.

[2] The plaintiff insists that when we have decided the question just determined, we have passed upon the sole question submitted for our determination by the stipulation, saying:

“Its determination will dispose of all of the issues herein, when considered in connection with the stipulated fact that both the parties hereto were, at...