Sachs v. Board of Trustees of Town of Cebolleta Land Grant, KERR-M

• Decision Date: 16 November 1976
• Docket Number: 10630,Nos. 10629,KERR-M,s. 10629
• Parties: S. J. SACHS, aka Simon J. Sachs, a married man, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF the TOWN OF CEBOLLETA LAND GRANT et al., Defendants-Appellants.cGEE CORPORATION et al., Plaintiffs-Appellees, v. BOKUM RESOURCES CORPORATION et al., Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 209

557 P.2d 209

89 N.M. 712

S. J. SACHS, aka Simon J. Sachs, a married man, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF the TOWN OF CEBOLLETA LAND GRANT et

al., Defendants-Appellants.

KERR-McGEE CORPORATION et al., Plaintiffs-Appellees, v. BOKUM RESOURCES CORPORATION et al., Defendants-Appellants.

Nos. 10629, 10630.

Supreme Court of New Mexico.

Nov. 16, 1976.

Rehearing Denied Dec. 30, 1976.

Bigbee, Stephenson, Carpenter & Crout, G. Stanley Crout, Santa Fe, Edward J. Apodaca, Albuquerque, for defendants-appellants.

Rodey, Dickason, Sloan, Akin & Robb, J. D. Robb, Albuquerque, Glascock, McKim & Head, Henry S. Glascock, Gallup, Willard P. Scott, George R. Cochran, Oklahoma City, Okl., for plaintiffs-appellees.

OPINION

MONTOYA, Justice.

This cause consists of two cases, consolidated for appeal, which were tried in the District Court of McKinley County. They involve a dispute over the boundary between the mineral interest in certain property owned by plaintiffs-appellees (hereinafter plaintiffs or Kerr-McGee) and the mineral interest in adjoining property owned by defendants-appellants (hereinafter defendant or Bokum).

A brief history of the facts involved in this complicated appeal may aid in understanding the issues raised and arguments presented.

In 1905, the Cebolleta Land Grant was partitioned by judicial decree (Baca v. Anaya, 14 N.M. 20, 89 P. 314 (1907); 14 N.M. 382, 94 P. 1017 (1908)) into a number of tracts with designated owners. S. J. Sachs, through whom plaintiffs derive their claim, and the Juan Tafoya Land Grant, formerly a part of the Cebolleta Grant, through whom defendants derive their claim, were two of the designated owners. It soon became apparent that an application of the calls and distances description set forth in the partition decree resulted in an 'overlap' of 1600 feet between the boundaries of the Sachs tract and the Grant tract.

In 1949, Sachs brought a quiet title action in McKinley County to resolve the dispute as to the boundary. Title in the disputed area was quieted in Sachs, with the requirement that he deed part of the disputed area to the Grant 'according to a survey made * * * by Walter G. Turley,' a surveyor employed by the Grant.

The final decree entered in March 1951, provided for the conveyance describing the property by both the calls and distances shown on the Turley map and by the additional language 'all as shown on map of G. Turley, February 27, 1951 * * *.'

The Turley map, reproduced below, shows the disputed area (the 'arm') extending north and west from the main rectangular tract up the Marquez Canyon.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After the quiet title suit was completed, Sachs sold his property to the McKenzies, who had a fence built around the 'arm' in about 1953 to control the movement of the livestock grazing on the land, as testified to by a member of the McKenzie family. Some of the individual members or owners of the Grant were employed by one Riley Mays, the McKenzie's representative to assist in the construction of the fence. The fence is not on a line with the boundary established by the calls and distances of the Turley map.

For the next twenty years, the land in dispute was used solely for farming and grazing purposes, and the parties honored the fence as the boundary for those purposes.

In 1974, Bokum, the mineral lessee from the Grant, drilled exploratory holes in the 'arm' for uranium. Shortly thereafter, Kerr-McGee, the mineral lessee from the successors to Sachs, also began exploratory drilling in the disputed area. For a short period of time, both parties also honored the fence as the boundary while conducting their exploration for uranium.

This exploratory drilling has established a minimum 'in-place' value of the uranium reserves in the disputed area at the time of trial of $4,200,000. Consequently, the issue of whether the fence or the Turley survey's calls and distances establish the true boundary between the Sachs tract and the Grant tract has assumed an urgency and an economic significance unknown when the land was used only for grazing.

The following sketch shows the area of land which is really the difference of opinion between the parties. The inner boundaries reflect the Turley survey, the outer lines reflect the fence line. The disputed area is indicated by the shaded lines. A portion of the fence on the north side is projected because of the rough terrain.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Kerr-McGee, claiming that the true boundary in the 'arm' was established by the calls and istances shown on the 1951 Turley map, rather than by the fence erected subsequently, filed suit in McKinley County in 1974, being cause No. 15361, against Bokum to obtain, first, a determination that they had the exclusive mineral rights in the disputed realty and, second, an injunction prohibiting Bokum from conducting further exploration or otherwise interfering with Kerr-McGee's activities and third, a quiet title to their interest in the disputed area.

Bokum counterclaimed contending that the fence was the true boundary (because monuments control over calls and distances and in any event because the parties had acquiesced in the fence as the boundary) and seeking a determination that Bokum had the exclusive mineral rights in the property.

After trial to the court without a jury, the court concluded that the honoring of the fence line as the boundary for surface purposes was not binding as the boundary for mineral purposes. Judgment was entered for Kerr-McGee and Bokum appeals. This will be referred to as the Kerr-McGee suit.

Also in 1974, certain of the defendants, including Bokum, in the Kerr-McGee suit, filed a motion in McKinley County to set aside the judgment and decree entered in the 1951 Sachs quiet title action, contending that the boundary should be moved west about 1600 feet and that the calls and distances used in the map were contrary to the map itself. The trial court denied the motion to set aside the judgment, and the 'Bokum group' appeals. This will be referred to as the Sachs suit.

The appeal of the order denying the motion to set aside the judgment in the quiet title suit seeks to attack the order 'only to the extent that the effect of such order, and the judgment the motion sought to set aside, is to prejudice the contentions of defendants' in the Kerr-McGee suit.

The main issue raised by the parties is whether the honoring of the fence line as the boundary for surface purposes is a binding determination of the ownership of the mineral interests of the parties. The basic question to be determined is whether the parties have acquiesced in the fence built by the Sachs' successors in interest as the boundary so as to preclude the assertion of another boundary.

A second issue presented by the appeal, although not raised by the parties, is whether the attempted partial appeal of the Sachs' suit will lie under these circumstances--whether, as Bokum implicitly claims, they may appeal the denial of the motion to set aside the quiet title judgment 'only to the extent that' the denial prejudices their claim in the Kerr-McGee suit.

Certain well defined principles of law pronounced by this court will assist in the determination of the issues in this case. It is well established in the law of this State and generally that if adjoining landowners occupy their respective tracts up to a clear and certain line (such as a fence), which they mutually recognize and accept as the dividing line between their properties for a long period of time, neither may thereafter claim that the boundary thus recognized is not the true boundary.

The leading New Mexico case is Woodburn v. Grimes, 58 N.M. 717, 720--721, 275 P.2d 850, 852 (1954), where this court stated:

'* * *. Unquestionably, where uncertainty or dispute exists in this regard, a boundary line may be established by acquiescence. Rodriguez v. La Cueva Ranch Co., 17 N.M. 246, 134 P. 228; Murray Hotel Co. v. Golding (54 N.M. 149, 216 P.2d 364 (1950)). But these elments are not essential in every case. A boundary line may be established by acquiescence where there has been long recognition by abutting owners. Velasquez v. Cox, supra (50 N.M. 338, 176 P.2d 909, 914). In the latter case we quoted approvingly from the case of State of Iowa v. Carr, 8 Cir., 191 F. 257, 112 C.C.A. 477, and it would not be out of place to repeat a part of what was there said.

"'Without any reference to the doctrine of title by adverse possession, the fact that a party owning a tract of land has for many years occupied and claimed up to a particular line as the true boundary, and the owner of the adjoining tract has silently acquiesced therein, is a circumstance strongly tending to show the correctness of the claim; and in the absence of other controlling circumstances the line so indicated should be taken as the true division between the respective premises."

'In Magoon v. Davis, 84 Me. 178, 24 A. 809, 810, the court said: 'The occupation and possession of the owners of lots by dividing fences erected soon after the establishment of the lines, when the location of the line may generally be better ascertained and understood than it can possibly be years afterwards, is entitled to great weight in determining the question. And, in cases of doubt, we think the fact of the mutual occupation of the parties, the mutual recognition of the line as indicated by their occupation and dividing fences, should prevail over the uncertainty which arises in any attempt, by the running of lines so many years after the original survey, to establish the true line between the parties."

The rule set forth above is controlling here. The trial court specifically found in its finding No. 6 as follows:

'The McKenzies and subsequent owners and users of the property which had been determined in the 1951 quiet title suit to belong to Sachs, from its...