Mesich Et Ux. v. Bd. of County Com'rs of Mckinley County.

• Decision Date: 23 September 1942
• Docket Number: No. 4673.,4673.
• Citation: 129 P.2d 974,46 N.M. 412
• Parties: MESICH et ux.v.BOARD OF COUNTY COM'RS OF McKINLEY COUNTY.
• Court: New Mexico Supreme Court

46 N.M. 412

129 P.2d 974

MESICH et ux.

v.BOARD OF COUNTY COM'RS OF McKINLEY COUNTY.

No. 4673.

Supreme Court of New Mexico.

Sept. 23, 1942.

Error to District Court, McKinley County; Livingston N. Taylor, Judge.

Action by John Mesich and Katarina Mesich, husband and wife, against the Board of County Commissioners of the County of McKinley, to recover compensation for the taking and damaging of private property for public use. To review a judgment entered upon an instructed verdict in favor of defendant, plaintiffs bring error.

Judgment reversed and cause remanded with instructions.

Purchasers under executory contract for the sale of land to be paid for in monthly installments were such “owners” of land within meaning of statute so as to be entitled to compensation from county for the taking of a portion of such land for the widening of a highway under supervision of state highway commission. Comp.St.1929, §§ 43-301, 64-313; Const. art. 2, § 20.

Denny & Glascock, of Gallup, for plaintiffs in error.

David W. Carmody, Dist. Atty., and Arthur Livingston, Asst. Dist. Atty., both of Santa Fe, for defendant in error.

BRICE, Chief Justice.

This action was brought to recover compensation for the taking and damaging of private property for public use. At the close of appellants' (plaintiffs') testimony the trial court sustained a motion of appellee (defendant) for an instructed verdict, and thereupon judgment was entered for appellee.

In passing upon the motion the trial court was required to assume the truth of all that part of the testimony which supported appellants' case, together with all favorable inferences that could be reasonably deduced therefrom and discard all unfavorable testimony and inferences. Union Bank v. Mandeville, 25 N.M. 387, 183 P. 394; Merchants Bank v. Dunn, 41 N.M. 432, 70 P.2d 760; Telman v. Galles, 41 N.M. 56, 63 P.2d 1049; Sandoval Board of Education v. Young, 43 N.M. 397, 94 P.2d 508. Under this rule the following facts were proved:

On the 28th day of March, 1930, the appellants entered into an agreement with one I. H. Ford for the purchase of certain lots in Ford's Highway 66 Addition to the city of Gallup, New Mexico, for which appellants agreed to pay $800; $80 of which was paid in cash, the balance to be paid in installments of $36 per month.

On March 27th, 1931, the board of county commissioners of McKinley county guaranteed to furnish free of cost to the State Highway Commission the property in question and other property for the purpose of widening Highway No. 66.

In April, 1931, representatives of the State Highway Department negotiated with appellants for the transfer to appellee of a strip of land ten feet wide along the side of their property, for widening a state highway. A blank form of easement was furnished by the representatives of the Highway Department, which the appellants signed, with the understanding that thereafter the blank form would be filled out so it would convey a strip of land ten feet wide across appellants' property, for such purpose.

Contrary to the agreement, the description of a much larger tract of land than agreed upon was inserted in the blank deed and the highway was widened to its outside line. The right of way deed was dated the 25th day of March, 1931, and on that date appellants had paid more than half of the purchase price of said property. On the 15th day of December, 1933, I. H. Ford and wife (the vendors in the contract of sale) executed and delivered to appellants a warranty deed, conveying said property, less the appropriated right of way, to them. The complaint was filed below on the 22nd day of March, 1941.

Of the nine grounds of demurrer to the evidence, all were overruled except the following: “The plaintiffs have failed to prove a cause of action herein, for the reason that they have failed to prove that plaintiffs were, on the 20th day of June, 1931, or at the time of the taking of the highway, owners of the fee simple title to certain land and real property located in McKinley County, more particularly described in paragraph 2 of the complaint.”

Section 20 of Article 2 of the New Mexico Constitution provides: “Private property shall not be taken or damaged for public use without just compensation.”

And Laws 1923, Ch. 21, 1929 Comp. § 43-301, provides: “Any person, firm or corporation authorized by the constitution or laws of this state to exercise the right of eminent domain who has heretofore taken or damaged or who may hereafter take or damage any private property for public use without making just compensation therefor or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation thereof, shall be liable to the owner of such property, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time such property is or was taken or damaged, with legal interest, to the date such just compensation shall be made, in an action to be brought under and governed by the code of civil procedure of this state; Provided that this act shall not apply to or affect any telephone line, telegraph line, electric light or power transmission line.”

And § 64-313, N.M.Stats.1929, provides: “The rights of way deemed necessary by the state highway commission for highways constructed under supervision of said commission shall be acquired by the county by donation by the owners of the lands through which such highways shall pass, or by agreement between such owners and the board of county commissioners of the county, or through the exercise of the power of eminent domain in the manner provided by law for acquiring property for public uses. ***”

We stated in Summerford v. Board, 35 N.M. 374, 298 P. 410, 412: “Consequential damages are not, as the trial court noted, mentioned in the section just referred to [N.M.Sts.1929 Sec. 64-313]. The view of the trial court that they are comprehended is not without support in reason. It was the clear duty of the Legislature to designate some source of recovery of the damages which the Constitution says the citizen is to have. No good reason has been suggested why, if liability for compensation for the taking of property for highways is imposed upon the county, liability for damaging property for the same purpose should be placed elsewhere. No other paymaster than the county is pointed out. Where the Constitution has clearly given the citizen the right, courts should indulge a reasonable liberality of construction in order to effectuate it. But we are spared the necessity of pursuing or deciding this question in the present case. The defendant county expressly admits that ordinarily its liability for damaging is the same as its liability for taking.”

We now hold that counties are liable under said statute to damages for lands taken for highway purposes by them or with their acquiescence.

It is a general rule that where private land is taken for public use only the person who at the date of the taking owns the land or has some interest in it, has any claim for damages; and the right to damages is a chose in action which does not pass by a deed to a subsequent purchaser. Markiewicus et al v. Methuen, 300 Mass. 560, 16 N.E.2d 32; Alabama G. & S. R. Co. v. Brown, 215 Ala. 533, 112 So. 131; Duke Power Co. v. Rutland, 4 Cir., 60 F.2d 194; and ordinarily a subsequent vendee takes the land subject to the right of his injured predecessor to exact and receive the compensation; McElroy v. Borough of Fort Lee, 3 Cir., 46 F.2d 777; Kindred v. Union Pacific R. Co., 225 U.S. 582, 32 S.Ct. 780, 56 L.Ed. 1216; but in this state, under § 43-301, Sts.1929, supra, the right to damages runs with the land, and a subsequent purchaser may recover such damages if not paid to his predecessor in title.

The authorities are not in harmony on the question of whether the purchaser or the seller in a contract to convey real estate is the owner who is entitled to recover damages for its taking for public purposes.

The first question is whether the appellant or his predecessor in title was the owner of the property in question at the time it was taken by the county.

The deed executed in blank as to the land intended to be conveyed, was a nullity, Utah State B. & L. Ass'n v....