Pacheco v. Martinez

• Decision Date: 20 October 1981
• Docket Number: No. 4910,4910
• Parties: Fermin PACHECO and Mary Pacheco, Plaintiffs-Appellees, v. Solomon MARTINEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 308

636 P.2d 308

97 N.M. 37

Fermin PACHECO and Mary Pacheco, Plaintiffs-Appellees, v. Solomon MARTINEZ, Defendant-Appellant.

No. 4910.

Court of Appeals of New Mexico.

Oct. 20, 1981.

William S. Keller and Robert F. Sanchez, Las Vegas, for defendant-appellant

Roberto L. Armijo, Las Vegas, for plaintiffs-appellees.

OPINION

DONNELLY, Judge.

Plaintiffs filed suit against defendants Solomon Martinez and Engelbert Bauer, for alleged trespass upon lands in Mora County, New Mexico. Plaintiffs sought damages from defendants for allegedly entering and cutting timber upon plaintiffs' lands, and requested the court to enjoin defendants from entering upon such lands or interfering with such lands being surveyed. The defendants each filed separate answers denying that plaintiffs in fact owned the lands where the timber was cut. They asserted respective counterclaims against plaintiffs, claiming defendants held title to the disputed property and seeking damages for the unlawful entry of restraining orders against defendants.

From a judgment entered by the trial court adjudicating plaintiffs to be owners in fee simple of three tracts claimed by them and permanently enjoining the defendants from entering thereon, defendant Solomon P. Martinez appeals. The defendant Bauer has not joined in this appeal.

The defendant has raised eight separate claims of error. We need only discuss a) the propriety of the trial court's entering a judgment that in effect quieted title to the disputed lands of plaintiffs, as between the parties, when plaintiffs only sought damages in trespass and injunctive relief; and b) sufficiency of evidence to support the judgment.

I. Propriety of Relief Granted :

Under the first point relied upon for reversal, defendant asserts that the trial court erred in relief granted. Specifically, defendant contends that plaintiffs' complaint stated a cause of action in trespass, but the court by its final judgment in effect improperly entered a decree quieting title to the lands.

The trial court bifurcated the trial on the issues. It first heard evidence concerning ownership of three tracts of land claimed by plaintiffs, reserving the question as to what, if any, damages had resulted from the claimed acts of trespass. The principle issues contested at the first hearing were the proper location of the boundary lines surrounding plaintiffs' properties, and the question of which party had proper title to the lands upon which the alleged trespasses occurred.

The court received in evidence three separate deeds under which plaintiffs claimed title to the property in question, survey plats, photos, and heard the testimony of Thomas Klinnehager and Henry Biseman, land surveyors, testimony of the parties and other witnesses.

At the conclusion of the first phase of the trial, the judge requested proposed findings of fact and conclusions of law. Thereafter, the court entered a written decision finding that plaintiffs and defendant Solomon Martinez each acquired their titles from a common source, and that upon the death of Tiburcio Martinez, Sr., the common predecessor in title to the parties, his surviving children partitioned the lands owned by their father by execution and delivery of deeds among themselves dividing the properties. The court found that plaintiff, Fermin Pacheco, subsequently acquired the interest of three of the partitioners, that the three tracts acquired by him existed side by side, and when platted constituted a tract of land 100 yards in width, extending from an orchard wall on the north, to lands of the Quintana brothers on the south, and running parallel and contiguous on the west to the tract owned by defendant Martinez. The court concluded that it should retain jurisdiction to determine the issues of claimed damages for the acts of trespass, if any, following the making of a survey of the line dividing the Martinez and Pacheco tracts.

Apparently the court contemplated that the parties would prepare a survey showing the location of the plaintiffs' and defendants' boundary lines, pinpointing the location of timber allegedly cut, and revealing upon whose property such timber was actually taken.

In accordance with the court's instruction, the parties hired Mr. Klinnehager, a land surveyor, to plat the tracts of land claimed by plaintiffs and defendant Martinez, and to determine their common boundary line.

After the surveying of the properties, the remaining issues were brought to trial on September 2, 1980. After an evidentiary hearing, plaintiffs withdrew their claims for damages. The court entered judgment decreeing that plaintiffs held fee simple title to the real estate described in the court's judgment, and ordered that defendants, and anyone claiming under them, had no right, title or interest in the real estate of the plaintiffs. The court permanently enjoined defendants from further trespass upon such property and directed that plaintiffs recover no damages or costs because such claims were withdrawn.

In light of defendant's assertion that the trial court lacked jurisdiction to adjudicate title to disputed property and to permanently enjoin the defendants from entering thereon, we look initially to the issue of whether such relief can properly be granted under the theories relied upon by plaintiffs in their complaint.

The trial court in its judgment decreed:

Plaintiffs are the owners in fee simple... and the defendants, and anyone claiming under them, have no right, title or interest in and to said real estate... (Emphasis supplied).

A "fee simple" is a present, possessory estate in land of indefinite duration that is freely alienable, devisable, and heritable; the words mean absolute title, wholly unqualified by reversion, reservation, condition or limitation, or possibility of any such thing precedent or subsequent, present or future. 4 G. Thompson, Real Property § 1856 at 412 (Repl.1979).

The gist of an action of trespass to real property is in tort for the alleged injury to the right of possession. John Price Associates, Inc. v. Utah State Conference, Brick Layers Locals Nos. 1, 2 & 6, 615 P.2d 1210 (Utah 1980); Chournos v. Alkema, 27 Utah 2d 244, 494 P.2d 950 (1972). To maintain such action, the plaintiff must have been in actual or constructive possession of the land at the time of the alleged trespass. Harrington v. Chavez, 27 N.M. 67, 196 P. 320 (1921); John Price Associates, Inc. v. Utah State Conference, Brick Layers Locals Nos. 1, 2 & 6, supra; and Chournos v. Alkema, supra; see, Garver v. Public Service Company of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966).

Ordinarily an action of trespass will not lie to obtain possession of lands not already in the possession of a party, and the remedy for trespass is in damages. See, Pueblo of Sandia ex rel. Chaves v. Smith, 497 F.2d 1043 (10th Cir. 1974); Thompson v. Fahey, 94 N.M. 35, 607 P.2d 122 (1980); Garver v. Public Service Company of New Mexico, supra; G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379 (Alaska 1974); Restatement (Second) of Torts § 162 (1965); W. Prosser, Torts § 13, at 66, 68-69, 75 (4th Ed. 1971). Trespass is an action in personam and not in rem. G. W. Bull Co. v. Boston & M. R. R., 344, Ill. 11, 175 N.E. 837 (1931).

An action at law for ejectment lies to recover possession of lands to which a plaintiff is legally entitled. Sections 42-4-1 to -30 N.M.S.A.1978. In ejectment, the parties' rights to possession are primarily in issue. Burke v. Permian Ford-Lincoln-Mercury, 95 N.M. 314, 621 P.2d 1119 (1981).

Injunctive relief normally will not be granted in order to try title to real estate where an adequate remedy at law will redress the alleged wrongs in damages or otherwise. Crawford v. Longuemare, 25 N.M. 267, 181 P. 283 (1919); See State ex rel. Ervien v. Budd, 25 N.M. 313, 182 P. 863 (1919); Kennedy v. Bond, 80 N.M. 734, 460 P.2d 809 (1969); General Tel. Co. of Southwest v. State Tax Com'n., 69 N.M. 403, 367 P.2d 711 (1962).

The recognized method of obtaining an equitable determination of title to realty in New Mexico is by the statutory suit to quiet title. Section 42-6-1 to -17 N.M.S.A.1978. It is used to determine any interest in land whether plaintiff is in or out of possession. Currier v. Gonzales, 78 N.M. 541, 434 P.2d 66 (1967); Quintana v. Vigil, 46 N.M. 200, 125 P.2d 711 (1942); see Corman v. Cree, 100 F.2d 486 (1938). New Mexico has rejected the existence of a cause of action at law for "trespass to try title," although it is recognized elsewhere. Jemez Land Co. v. Garcia, 15 N.M. 316, 107 P. 683 (1910).

In a proper case, however, the location of a disputed boundary may be determined in an action in trespass, ancillary to injunctive relief that has also been sought. Sproles v. McDonald, 70 N.M. 168, 372 P.2d 122 (1962); Murray Hotel Co. v. Golding, 54 N.M. 149, 216 P.2d 364 (1950). In Sproles v. McDonald, the plaintiff sought to enjoin an alleged trespass by a lessee of state-owned land. The defendants in their answer denied plaintiff's allegations and counterclaimed for injunctive relief, asserting trespass by plaintiff. The court there recognized that equity may enjoin continued occupancy or trespass of lands owned by the claimant.

A similar result was reached in Murray Hotel v. Golding, supra, where the court held:

(T)he case represents essentially a boundary dispute. Ejectment is the remedy ordinarily invoked in the settlement of such disputes.... So it has been in New Mexico more often than otherwise... To be sure, where the fixing of boundaries ancillary to some recognized ground of equity jurisdiction, having taken jurisdiction for one purpose, equity will retain it to award complete relief even where it involves settling a boundary dispute.

54 N.M. at 156-157, 216 P.2d at 368-369.

Under the facts of this case, since plaintiffs coupled their action in trespass with a claim for injunctive relief, alleging the occurence of immediate irreparable...