MURRAY HOTEL CO. v. GOLDING
| Decision Date | 13 April 1950 |
| Docket Number | No. 5184,5184 |
| Citation | 54 N.M. 149,216 P.2d 364 |
| Parties | MURRAY HOTEL CO. v. GOLDING et al. |
| Court | New Mexico Supreme Court |
W. C. Whatley, Las Cruces, J. D. Weir, Las Cruces, W. B. Darden, Las Cruces, for appellants.
Woodbury & Shantz, Silver City, for appellee.
The action out of which this appeal arises is one in ejectment involving ownership and possession of a narrow strip of land slightly over two feet in width and 100 feet in length, lying in the town of Silver City, New Mexico, claimed by the plaintiff as a part of Lot 14 in Block 68 according to the John R. Fraser survey and plat thereof and by the defendants as a part of Lot 15 in said Block, adjoining Lot 14 on the east.
It will conduce to a readier understanding of the situation on the ground if we locate the two lots directly involved with reference to other lots in the block. It is an admitted fact that according to the Fraser survey Block 68 forms a square having dimensions of 200 feet east and west and 200 feet north and south. It is divided into 16 lots 25 feet in width and 100 feet in length. The block is bounded on the north by Yankie Street, on the east by Texas Street, on the south by Broadwayand on the west by Arizona Street. Lots in the south half of the block run consecutively from 1 to 8, east to west, commencing at the southeast corner of the block at the intersection of Texas and Broadway. The eight lots forming the upper half of the block are numbered from 9 to 16, extending east from the northwest corner of the block at the intersection of Arizona and Yankie Streets.
The plaintiff, Murray Hotel Company, owns Lots 1, 2, 3 and 4, on which the Murray Hotel, Silver City's leading hostelry, is located. It also owns Lots 13 and 14 on which, or on the greater part thereof, it was engaged in constructing an annex at the time of trial. The defendants own Lots 15 and 16 in Block 68 on which, or on the greater portion thereof, are erected certain buildings and improvements. It is a strip of land 2.5 feet in width on the north end and 2.21 feet in width on the south end, located at the juncture of lots 14 and 15 and extending the full length of said lots, north and south, that is the subject of this action in ejectment. It seems obvious from what is said that the basic controversy between the parties is over the questionas to where the true boundary line between Lots 14 and 15 actually lies.
At the time the plaintiff hotel company acquired Lots 14 and 15, what is referred to in evidence as the American Grocery Company warehouse, occupied the larger portion of Lots 13 and 14, extending back south from Yankie Street some 70 feet. A measurement taken from northwestern corner of this building, which is exactly on the west line of Lot 13, thence due east, gives the building a width of 47.95 feet from outside face of west wall to outside face of east wall. Originally, it was only 70 feet in depth until an extension for the full length of the lot was erected. Between the east wall of this building on Lot 14 and the defendants' (Golding) structures on Lot 15 there was a space from 4 to 5 feet in width which, for many years prior to May, 1940, had been used jointly by the father of defendants and by the plaintiff's predecessor in title and interest to service the Golding buildings on Lots 15 and 16 and an old Broadway Hotel property occupying Lots 1, 2, 3 and 4. In about the month of May, 1940, however, the defendants enclosed the small strip in dispute by an adobe wall.
It was when plans for the construction of the annex to Murray Hotel on Lots 13 and 14 were nearing completion in the early part of 1948, and upon a visit to Silver City by the architect for the new structure that direct, positive knowledge was first brought home to officers of Murray Hotel Company of a claim by defendants to any part of Lot 14. While viewing the premises and looking down what he deemed the boundary line between Lots 14 and 15, the architect called to the attention ofJames S. Ryan, secretary-treasurer of the plaintiff, that defendants were encroaching on Lot 14. Protest to defendants was promptly made by plaintiff's attorney and efforts at compromise failing, this action in ejectment followed. At the conclusion of a jury trial, a verdict in plaintiff's favor was returned upon which judgment in conformity was entered in due course. It is for the revision and correction of the judgment so entered for claimed errors at the trial that the defendants prosecute this appeal.
The action of the trial court in refusing several instructions requested by defendants on the issue of adverse possession is strongly urged upon us as ground for reversal but we find no error. If the narrow strip in dispute was a part of Lot 15, admitted ownership of which was in defendants, they held rightly under the deed conveying this lot to their father, not adversely to any one. Under such conditions, they required the aid of no instrument serving as color of title, claiming under the better instrument giving actual title. If the narrow strip in dispute was not a part of Lot 15, then two elements, indispensable to gaining title to it by adverse possession, are lacking, namely, color of title and payment of taxes. The trial court did not err in failing to instruct on the issue of adverse possession.
But it is said the trial court erred in failing to instruct a verdict in defendants' favor at the close of all the evidence because of failure of plaintiff to offer proof as to where the line of any lot within the John R. Fraser survey actually lay. So failing, and the burden being on plaintiff to establish the eastern boundary of Lot 14, Block 68 of said survey, the jury should have been instructed to return a verdict for defendants. So runs the argument.
In order to clarify matters, it should be pointed out that in its complaint as originally filed the plaintiff described the particular premises, from possession of which it wished to oust defendants, as Lot 14, Block 68, Town of Silver City, 'according to the survey and plat thereof made by John R. Fraser.' During the trial plaintiff applied for and was granted leave, over defendants' objection, to file a trial amendment to its complaint wherein it gave a metes and bounds description of the small strip, although still alleging it to be within and a part of the Lot 14, according to the Fraser Survey. It having developed at the trial that none of the original corners of the Fraser Survey made some 70 years earlier could be located, and that Surveyor Bard's location of the true line betweenLots 14 and 15 was founded largely on data gathered in an occupational survey, the plaintiff's proof failed according to counsel for defendants and his motion for directed verdict should have been sustained.
If the argument of defense counsel on this phase of the case be correct, itwould be impossible for a plaintiff out of possession, whose title deeds described premises in the John R. Fraser Survey, ever to succeed. In other words, no definite point, monument or corner in the Fraser Survey being any longer in existence, the party basing his title on property in it would be faced from the outset by an inability to sustain the burden always resting on a plaintiff in an action in ejectment. Happily for property owners, where destruction or obliteration of original monuments of a survey has occurred, they are not denied the privilege of establishing original lines by other proof, if it is available. In the absence of known mounments, the best evidence obtainable may be resorted to for the purpose of establishing original lines. Ordinarily, physical evidence on the ground such as occupancy, street lines, old buildings, measurements, quantity of land called for by the deeds and other like evidence may tend to disclose what is the true line. Taylor v. Higgins Oil & Fuel Co., Tex.Civ.App., 2 S.W.2d 288; Leone Plantation, Inc., v. Roach, Tex.Civ.App., 187 S.W.2d 674. Cf. Velasquez v. Cox, 50 N.M. 338, 176 P.2d 909.
It is next urged upon us that the trial court erred in instructing and in refusing to instruct as requested touching the issue of agreed boundary by acquiescence. A careful study of the requested instructions and those given on this issue satisfies us there was no error in the trial court's action. Indeed, in so far as the specially requested instructions 2, 3 and 4, the refusal of which is complained of relate to adverse possession, they were properly refused as not embracing two essential elements on such issue, namely, color of title and payment of taxes. The exceptions interposed to the trial court's refusal of these instructions strongly suggest that counsel for defendants regarded them as relating to the issue of adverse possession alone. On the other hand, viewed as instructions on the issue of acquiescence, they fall short of correct statement of the law in that they leave out altogether the element of implied agreement. J. H. Silsby & Co. v. Kinsley, 89 Vt. 263, 95 A. 634; Cartensen v. Brown, 32 Wyo. 491, 236 P. 517. See, also, Rodriguez v. La Cueva Ranch Co., 17 N.M. 246, 134 P. 228.
The instructions which the court actually gave on this issue, Nos. 6 and 7, are not subject to any of the objections urged against them by counsel for defendants. If anything, they are more favorable to defendants, than they had a right to expect. Especially is this true of instruction No. 6 which, viewed alone, omits the element of implied agreement just as did defendants' requested instructionson the issue. However, when read in connection with instruction No. 7, also relating to the issue of...
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