Otero v. Pacheco

• Decision Date: 24 April 1980
• Docket Number: No. 3955,3955
• Citation: 612 P.2d 1335,94 N.M. 524,1980 NMCA 58
• Parties: Severo OTERO, and Irene Otero, his wife, Plaintiffs-Appellants, v. Alexandro PACHECO, and Velma L. Pacheco, his wife, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1335

612 P.2d 1335

94 N.M. 524

Severo OTERO, and Irene Otero, his wifePlaintiffs-Appellants, v.Alexandro PACHECO, and Velma L. Pacheco, his wifeDefendants-Appellees.

No. 3955.

Court of Appeals of New Mexico.

April 24, 1980.

Writ of Certiorari Denied June 20, 1980.

Ann Yalman, Santa Fe, for plaintiffs-appellants.

Robert Suzenski, Standley & Suzenski, Santa Fe, for defendants-appellees.

OPINION

HERNANDEZ, Judge.

Plaintiffs-Appellants sued Defendants-Appellees alleging fraud and unjust enrichment due to plaintiffs' payment of ad valorem taxes which were owed by defendants.They further alleged that the sewer line which serviced both of their homes had backed up on various occasions, causing damage to their home.Defendants answered and counterclaimed, alleging that they had an easement across plaintiffs' property for the maintenance of the sewer line.The trial court, sitting without a jury, entered judgment for the plaintiffs on their claim for payment of taxes owed by defendants, and entered judgment for defendants on their counterclaim.The plaintiffs appeal the judgment entered for defendants.

The undisputed facts are these.The defendants acquired title to two lots in 1944, lots 4 and 5 of Block 5 of the Indian School Addition in the City of Santa Fe.Lot 5 fronted on Cochiti Street, and lot 4, a corner lot, sided on Taos Street.Defendants' home was constructed partly on lot 5 and partly on lot 4, and originally had a septic tank which was situated on lot 4.In 1950 the City of Santa Fe notified defendants that they had to abandon the use of their septic tank, and connect to the sanitary sewer line which had just been installed along Taos Street.

Defendants installed a sewer line running from their home across lot 4 to the Taos Street sewer line.There is no evidence that there existed any alternative way to connect to the Taos Street sewer, and there was no sanitary sewer line along Cochiti Street at that time.In 1951the defendants built another house on the remaining part of lot 4, and connected it to the same sewer line.Defendants in 1953 sold this house to a Mrs. McAfoos.The deed to Mrs. McAfoos did not contain a reservation of an easement.However, defendantAlexandro Pacheco testified that he told Mrs. McAfoos of the sewer line's existence and that it provided service to his home.The title passed from Mrs. McAfoos through several intervening owners and ultimately came to the plaintiffs in 1965.The first owner after Mrs. McAfoos testified that he was never told, and did not know, that the sewer line serviced defendants' home during the approximately eight years that he owned that property.PlaintiffSevero Otero testified that he did not learn until 1974 that the sewer line which serviced his house also serviced that of the defendants.

Plaintiffs raise four points of error, only three of which need be discussed.The essence of the first two is that the trial court erred in deciding that the defendants had an easement across lot 4.The pertinent findings of the trial court, all of which are supported by substantial evidence in the record, are: that the defendants acquired title to both lots 4 and 5 in 1944; that the sewer line was reasonably necessary to the use and enjoyment of lot 5 at the time of the sale of lot 4, and that it continues to be reasonably necessary to the use and enjoyment of lot 5; and "that . . . the . . . sewer line was and now is an improvement of a permanent and substantial character, actually and apparently intended to be preserved as a servitude for the . . . necessary (and) . . . convenient use and enjoyment of the Pacheco lot and residence."The trial court went on to conclude that the defendants had an easement across lot 4 for a sewer line for the benefit of lot 5 and that the plaintiffs took title to lot 4 subject to that easement.

Although the trial court did not characterize the type of easement, it is readily apparent from the findings that the court was speaking of an easement by implied reservation.Whether such an easement is recognized by the appellate courts of this State is a matter of first impression.However, the converse, i. e., an easement by implied grant, was recognized by our Supreme Court in Venegas v. Luby, 49 N.M. 381, 164 P.2d 584(1945):

It seems well settled . . . that if the owner of land subjects one part of it to a visible servitude in favor of another and then conveys away the dominant portion while it is enjoying the servitude of the portion retained, and the use is reasonably necessary for the full enjoyment of the part granted, an implied easement arises in favor of the premises conveyed and passes by the conveyance without mention.

The nature of and rationale for these two types of easements was very ably set forth by the Supreme Court of Texas in Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163(1952):

It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created not only in favor of the parcel granted ("implied grant") but also in favor of the one remaining in the ownership of the grantor ("implied reservation").The basis of the doctrine is that...