Ritter-Walker Co. v. Bell

• Decision Date: 24 February 1942
• Docket Number: No. 4644.,4644.
• Citation: 46 N.M. 125,123 P.2d 381
• Parties: RITTER-WALKER CO.v.BELL, Probate Judge of Grant County, et al.
• Court: New Mexico Supreme Court

46 N.M. 125

123 P.2d 381

RITTER-WALKER CO.

v.BELL, Probate Judge of Grant County, et al.

No. 4644.

Supreme Court of New Mexico.

Feb. 24, 1942.

Appeal from District Court, Hidalgo County; George W. Hay, Judge.

Action by the Ritter-Walker Company against Charles G. Bell, probate judge of Grant County, N. M., and others, wherein the question for decision was whether a certain easement existed. From an adverse judgment, plaintiff appeals.

Affirmed.

Where purchaser entered into oral agreement for purchase of two lots with easement for driveway purposes across a third lot, the purchaser who took possession of the lots and easement and made payment therefor obtained the easement notwithstanding fact that deeds executed in pursuance of the agreement did not specifically mention the easement.

Sanders & Taggart and Alton B. Warren, all of Lordsburg, for appellant.

H. Vearle Payne, of Santa Fe, for appellees.

BRICE, Chief Justice.

The question is whether the appellee Ellison (hereinafter called appellee) is the owner of an easement for driveway purposes across the north 30 feet of lot 12 of block 2 of Simpson's Addition to the village of Lordsburg, New Mexico. From the findings of the court we deduce the following material facts:

Prior to July 12, 1934 Mrs. Sarah Simpson was the owner in fee simple of lots 10, 11 and 12 of block 2, Simpson's Addition to the village of Lordsburg, New Mexico, subject to a lease to appellee of the north 40 feet of lots 10 and 12 and the north 60 feet of lot 11, with an option to purchase.

On the date mentioned appellee entered into an oral agreement with Mrs. Sarah Simpson to purchase lots 10 and 11, with an easement for driveway purposes across the north 30 feet of lot 12, for the sum of $2,000 and other considerations. Appellee made a down payment upon his purchase, and continued in possession of lots 10 and 11 and the easement across the north 30 feet of lot 12, which had been in use for driveway purposes in connection with lots 10 and 11 for some years. On the 21st day of November, 1934, Mrs. Simpson, in pursuance of said oral agreement, conveyed by warranty deeds to appellee lots 10 and 11 separately, with appurtenances, but the easement was not specifically mentioned in either deed.

On the 14th day of July, 1934, Mrs. Simpson and another contracted to convey to C. C. Olney, appellant's predecessor in title, lot 12, with the following proviso: “It is further agreed that the party of the second part (appellant's predecessor in title) will in no way encroach on the strip of property in front of the cafe, which runs parallel to the highway. This strip of land starts to the south edge of the highway and extends thirty feet south toward the front of the cafe.” Thereafter, in pursuance of said contract, on the 19th day of July, 1934, a deed was made by Mrs. Simpson conveying to C. C. Olney said lot 12 “except for an easement across the north thirty feet of the above described property heretofore granted to other parties for driveway purposes.” This deed was placed of record. On the 7th day of May, 1935, Olney and wife conveyed lot 12 to L. B. Scott and Henry Hughes, excepting therefrom “an easement as to the north thirty feet of the above described property, granted to other parties for driveway purposes.” This deed was also placed of record. Scott and wife conveyed this property to Henry Hughes without mentioning the easement in the deed. Appellant claims by mesne conveyance through Henry Hughes. The land in dispute had been used as a driveway since the year of 1930, to pass to and from lots 10 and 11 from and to U. S. Highway No. 80, running along the north boundary of the several lots mentioned; first as access to a filling station, and thereafter in connection with a camp ground consisting of tourist cabins situated on lots 10 and 11. In reliance upon the easement mentioned the appellee has constructed valuable improvements on lots 10 and 11, consisting of a new service station and a tourist camp to which said easement constitutes a valuable driveway. The appellant had notice of this easement and of its use by the appellee at the time he purchased lot 12. It was appurtenant to said lots 10 and 11 for “driveway purposes.”

From these facts the court concluded that the appellant was the owner in fee simple of said lot 12, subject to an easement in appellee for driveway purposes across the north 30 feet thereof; that as the oral grant of the easement was fully and completely performed by the payment of the consideration therefor and the delivery of possession, and at the time it was in use by the appellee, that the grant did not come within the inhibition of the statute of frauds, and title passed to the appellee and had remained in him since its purchase, and he was still the owner thereof; that “the defendant Leon Ellison owned and owns a positive easement for driveway purposes on and over the north 30 feet of lot 12 of block 2 of Simpson's Addition to the village of Lordsburg, New Mexico, which easement is appurtenant to lots 10 and 11 of said block 2.”

[1] The appellant assigned numerous errors but with the exception of those hereinafter mentioned they were abandoned because not supported by point, argument or authority. Robinson v. Mittry Bros., 43 N.M. 357, 94 P.2d 99; Brown v. Mitchell, 45 N.M. 171, 109 P.2d 788.

Appellant asserts that “the pleadings as well as the proof show that any alleged claim that the defendant, Leon Ellison, might have to the alleged easement is...