Jemez Land Co. v. Garcia.

• Decision Date: 28 February 1910
• Citation: 15 N.M. 316,107 P. 683
• Parties: JEMEZ LAND CO.v.GARCIA.
• Court: New Mexico Supreme Court

15 N.M. 316

107 P. 683

JEMEZ LAND CO.

v.GARCIA.

Supreme Court of the Territory of New Mexico.

Feb. 28, 1910.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action by the Jemez Land Company against Antonio Jose Garcia. Judgment dismissing the cause for want of jurisdiction, and plaintiff appeals. Affirmed.

Comp.Laws 1897, § 2950, provides that all civil actions, when lands or any interest in lands are the object of the suit, shall be brought in the county where the land or any portion thereof is situate, and that suits for trespass on land shall be brought in the county where the land, or any portion thereof, is situated. A complaint alleged that plaintiff owned and was in possession of land in S. county, and that defendant went upon the land, cut small trees, and fenced a portion of a smaller tract of land, and prayed judgment for damages, and that defendant be enjoined from interfering with plaintiff and from cutting timber on plaintiff's land, and that upon final hearing defendant be perpetually enjoined from claiming any right, title, or interest in or to said premises, and from interfering with the improving of the same. Held, that an interest in land is necessarily involved in the suit, and therefore the district court of B. county, in which the suit was brought, properly dismissed it for want of jurisdiction.

The appellant, a corporation, brought suit in the district court of Bernalillo county, alleging that it was the owner in fee and in possession of the tract of land specified in the complaint, situated in the county of Sandoval, in said territory; that within three years, and while the appellant was owner and in possession of the land, the appellee went upon appellant's land and cut many small growing trees thereon, and piled them so as to make a kind of brush fence around a portion of a smaller tract of land within the Cañon de San Diego grant referred to in the complaint; that on information and belief appellant alleges that the appellee was not in possession of the land, but that the appellant was and is in possession; that the damage amounted to $100. The complaint further alleges that when the appellant, through its employés, was about to clear away the brush and rubbish from said land and improve it, the appellee forbade the same, threatening to beat, injure, and do the appellant's employés bodily harm, and will do so unless restrained. Appellant further alleges that the growing timber is in great danger from destruction by fire unless said brush is removed, and, on information and belief, alleges that, unless restrained by the court, appellee will continue to cut and carry away from appellant's land the growing timber thereon.

The prayer of the complaint is as follows: “Wherefore plaintiff prays judgment against said defendant for the sum of $100 damages for the cutting and destroying of growing trees upon plaintiff's premises, together with interest and cost of suit, and the said plaintiff prays that the said defendant be enjoined and restrained from interfering with the plaintiff, its officers, agents, and employés in the clearing away of the brush and improving said property, and that said defendant be also restrained from cutting timber upon the land of said plaintiff or removing wood or stone therefrom until the further order of the court, and that, upon final hearing, the said defendant be perpetually enjoined from claiming any right, title, or interest in or to said premises, and from interfering in any way with the clearing, improving, or use of said premises by the said plaintiff, its officers, agents, and employés, and for all proper relief in equity.” Upon this complaint a temporary injunction was issued on the 9th day of August, 1906.

On the 3d day of September, 1906, the appellee by his attorney filed his answer to the complaint, in which he admitted the first paragraph of the complaint, admitted forbidding the employés of the appellant from entering upon a tract of land “occupied and owned by him,” but denied all of the other allegations of the complaint. In paragraph 5 appellee alleges: “(5) And for further answer to said complaint, by way of new matter, defendant shows that he is the owner in fee simple of the smaller tract of land mentioned and referred to in said complaint; that he became such owner by purchase from Felipe Atencio and wife on the 20th day of May in the year 1865, as will appear by reference to the deed of conveyance from said Atencio and wife, a copy of which is attached hereto as a part hereof, and that under and by virtue of said deed of conveyance, from said 20th day of May, 1865, down to the present time, he has had open, notorious, exclusive, adverse possession of said tract of land described in said deed against the whole world, and that during the whole of said time no claim by suit in law or equity effectually prosecuted has ever been set up or made to the said tract of land against this defendant, the said Cañon de San Diego land grant being a tract of land which was granted by the government of Spain in the year 1798. Wherefore, defendant prays judgment that the said complaint may be dismissed, and that he go hence with his costs in this behalf wrongfully sustained.” On the 3d day of September, 1906, appellee filed two additional answers in the nature of pleas to the jurisdiction, in the first of which he challenged the jurisdiction of the district...