Rocky Cliff Coal Mining Co. v. Kitchen.

• Citation: 29 N.M. 395,222 P. 658
• Decision Date: 15 January 1924
• Docket Number: No. 2772.,2772.
• Parties: ROCKY CLIFF COAL MINING CO.v.KITCHEN.
• Court: New Mexico Supreme Court

29 N.M. 395

222 P. 658

ROCKY CLIFF COAL MINING CO.

v.KITCHEN.

No. 2772.

Supreme Court of New Mexico.

Jan. 15, 1924.Rehearing Denied Feb. 18, 1924.

Syllabus by the Court.

Findings of fact which are supported by substantial evidence will not be disturbed on appeal.

Evidence reviewed, and held, that the findings of fact are supported by substantial evidence.

A grantor in a warranty deed is estopped to question the sufficiency thereof to establish a prima facie title in his grantee, as to permit him to do so would allow him to question the title which he has conveyed with covenants of warranty.

Appeal from District Court, McKinley County; Holloman, Judge.

Suit by the Rocky Cliff Coal Mining Company against Peter Kitchen. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action to recover actual and punitive damages for the wrongful removal of rock from plaintiff's land, evidence held to sustain a judgment for plaintiff.

E. W. Dobson, of Albuquerque, for appellant.

A. M. Edwards, of Santa Fé, for appellee.

BRATTON, J.

The appellee instituted this suit to recover $12,000 as actual and $8,000 as punitive damages, due by reason of the appellant having wrongfully, willfully, fraudulently, and maliciously taken and removed from certain described lands owned by the appellee 12,000 perch of rock, of the alleged value of $1 per perch, and charged to have been so removed between January 1, 1915, and August 1, 1919. By an amended answer the appellant denied the appellee's cause of action, and pleaded by way of offset and counterclaim a certain unpaid judgment in the sum of $7,819.73 rendered in his favor and against the appellee on February 26, 1921.?

The cause was tried before the court without a jury, and the court found that between the dates charged in the complaint, the appellant had removed from the premises in question, 7,800 perch of rock belonging to the appellee of the value of twenty cents per perch, aggregating $1,560, and judgment for such sum was rendered with the provision that it should operate as a credit upon the above mentioned judgment owned by the appellant.

[1][2] 1. The first contention made by the appellant involves the sufficiency of the evidence to support the finding of the trial court that the appellant removed 7,800 perch of rock from the premises within the dates alleged. We have carefully and repeatedly read the entire record, and have reached the conclusion that there is substantial evidence to support such finding. A mining engineer, whose competency is not questioned, went upon the premises during October, 1919, and made a survey of the quarries from which the rock had been removed and testified that in his opinion 7,999.3 perch had been taken out. The caretaker of the premises testified that the appellant, or those directed by him, had...