Sproles v. McDonald, 6840

• Citation: 70 N.M. 168,372 P.2d 122,1962 NMSC 71
• Decision Date: 05 June 1962
• Docket Number: No. 6840,6840
• Parties: Elizabeth J. SPROLES, Plaintiff-Appellant, v. George McDONALD and Laura McDonald, husband and wife, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 122

372 P.2d 122

70 N.M. 168

Elizabeth J. SPROLES, Plaintiff-Appellant, v. George McDONALD and Laura McDonald, husband and wife Defendants-Appellees.

No. 6840.

Supreme Court of New Mexico.

June 5, 1962.

C. C. Chase, Jr., Alamogordo, for appellant.

H. Elfred Jones, Carrizozo, E. Forrest Sanders, William W. Bivins, Las Cruces, for appellees.

PER CURIAM.

Upon consideration of Motion for Rehearing, the original option heretofore filed is withdrawn and the following is substituted therefor:

MOISE, Justice.

Plaintiff-appellant, together with her husband, homesteaded the West half of Sec. 33, Twp. 8 S., Rge. 9 E., N.M.P.M., in 1915 and received a patent thereon in 1919. Appellant's mother homesteaded the East half of the section in 1917 and received her patent in 1923. Appellant and her husband subsequently acquired the East half of the section. Appellant's husband is now deceased, and she is the sole owner of the section which contains 640 acres according to the official survey.

In 1915, when entry was made, there was in existence a fence from north to south along the west side of the property, and appellant's husband constructed a fence on the northern and southern sides of the section. Appellant's dwelling and corrals were constructed approximately 200 feet from the fence line on the west.

Section 32, Twp. 8 S., Rge. 9 E., N.M.P.M., lying directly to the west of Sec. 33, and the W 1/2 SW 1/4 of Sec. 28, to the north, are owned by the State of New Mexico, and defendants-appellees hold an institutional lease thereon for grazing purposes from the commissioner of public lands. In addition, appellees own the E 1/2 SW 1/4 and SE 1/4 of Sec. 28. Accordingly, their holdings border Sec. 33 on the north and west.

In December, 1958, appellant instituted this suit alleging her ownership of Sec. 33, the fact of the fences being present for many years, and that appellees threaten to trespass on her property by constructing a fence some 420 feet to the east of the existing fence; that this would result in a continuing trespass and in a multiplicity of suits for which appellant has no speedy, sure and adequate remedy at law, and praying that the court enjoin such trespass on plaintiff's lands and the building of the fence.

Appellees, by their second amended answer, generally denied the allegations of the complaint and then filed a counter-claim in which they assert their ownership in Sec. 28 as above set out, and their right to possession for some 15 years of the state lands in Secs. 28 and 32. They further allege that the north-south fence line as it has existed is some 420 feet inside Sec. 32, and that the east-west fence line is inside Sec. 28 some 34 feet on the west side and some 60 feet on the east side; that by virtue of these facts appellant is trespassing on property to which appellees are entitled to possession; that appellees will be irreparably injured if the trespass is permitted to continue; and they seek an injunction against the continued use of the land and trespassing by appellant, and that she be required to remove her fence and other improvements, and that appellees be permitted to place their fence on the true line.

The case was tried to the court without a jury, and the court found the facts of entry and occupancy as hereinabove set forth, and that the original survey of 1878, together with a resurvey in 1937, and another made pursuant to court order in 1959, all showed the same correct lines, and also found that the fence lines encroached as claimed by appellees, and concluded that so far as the fence location and encroachment between E 1/2 SW 1/4 and SE 1/4 of Sec. 28 owned by appellees and Sec. 33, the fence should remain unchanged. However, it concluded that the fence should be moved some 420 feet east on the east side of Sec. 32 owned by the State, and some 30 feet south on the south side of S 1/2 SW 1/4 of Sec. 28, also owned by the State.

The commissioner of public lands refused to intervene or participate in the action although advised concerning it.

Appellant appeals claiming four errors committed by the court in finding the boundaries as it did; in concluding the fences should be moved to conform to the boundaries as found; in failing to conclude that appellees were not the real parties in interest; and in failing to conclude that it was without jurisdiction to determine the issues raised by the counter-claim, the argument being that the commissioner of public lands was an indispensable party to this determination.

We propose to discuss the question of jurisdiction and indispensable parties first.

Appellant recognizes the rule in this regard to be as stated in Swayze v. Bartlett, 58 N.M. 504, 273 P.2d 367, as follows:

'If the controversy involves a question concerning the legality of a state lease, the eligibility of the lessee thereunder, the matter of performance of the lease, reservations, if any, in the lease, or a matter of public policy requiring passage thereon by the commissioner of public lands, then the commissioner is not only a necessary party, but is an indispensable party. If, on the other hand, none of the above questions are involved, a district court should have jurisdiction to adjudicate the issues as between private litigants, liberally allowing, however, intervention to the commissioner, if any public land question is or could be involved in the case.'

and while admitting that no question is present concerning legality of a state lease, or eligibility of a lessee thereunder, or of the performance of a lease, or the reservations therein, claims that we have here a matter of public policy requiring passage thereon by the commissioner of public lands. The public policy question present, as we understand appellant, is one involving the question of when occupants of state lands are to be evicted therefrom, the land commissioner having made no move in this direction.

We are unable to follow appellant's argument. We did not say in Swayze v. Bartlett, supra, that if a public policy question was present the land commissioner was an indispensable party. We said the rule of indispensability as set up in Burguete v. Del Curto, 49 N.M. 292, 163 P.2d 257, was to be applied if the public policy question involved was one 'requiring passage thereon by the commissioner of public lands.' The issue here is to our minds neither a public policy question, nor does it require passage thereon by the commissioner. He has complete dominion and control over all state lands. State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027. In his handling of the state lands he is subject to the restrictions set up in the Enabling Act, our state Constitution, and in statutes enacted pursuant thereto. Dasburg v. Atchison, T. & S. F. Ry. Co., 45 N.M. 184, 113 P.2d 569. However, in the instant case, aside from any question of public policy incident to the proper exercise of his dominion and control, our legislature by the passage of Sec. 7-7-5, N.M.S.A.1953, clearly provided that lessees should protect the state lands leased by them from trespass by unauthorized persons under penalty of possible forfeiture for failure to do so. We are clear that the cross complaint for trespass did not require the presence of the land commissioner as an indispensable party.

We should also point out that we see no material difference between the issues presented by the cross complaint and those tendered by the appellant in her complaint, and here, likewise, we see no public policy issue requiring action by the land commissioner. We might mention that any other conclusion would leave parties involved in a dispute concerning possession of land, where the claim by one was based on a state lease whereas that of the other was not, without any remedy in court if the land commissioner refused to bring the suit or intervene. Such a result was never contemplated, nor is it necessary or desirable.

Neither do we find any merit in appellant's point concerning appellees not being the real parties in interest. If we understand her argument correctly, it is simply that the land commissioner as the officer in charge of the state lands and having dominion over them is the only real party in interest to bring the counter-claim for trespass. Compare Heroux v. Katt, 76 R.I. 122, 68 A.2d 25, 12 A.L.R.2d 1186, and annotation commencing on 1192.

We come now to the crucial point on this appeal. Whereas, appellant undertakes to attack the court's finding concerning the correctness of the surveys and the error in the location of the fence, this argument can avail her nothing since the findings are amply supported by substantial evidence, and accordingly will not be disturbed on appeal. Hyde v. Anderson, 68 N.M. 50, 358 P.2d 619; Brown v. Martinez, 68 N.M. 271, 361 P.2d 152; Sunmount Co. v. Bynner, 35 N.M. 527, 2 P.2d 311.

Findings of fact and conclusions of law as required by Rule 52(b), Rules of Civil Procedure (Sec. 21-1-1(52)(B), N.M.S.A.1953) were duly filed in the cause. The following findings contained therein are conclusive of appellant's right:

'23. That the 1937 survey and the accompanying field notes in evidence, as made by the Government to the land and premises which are the subject matter of plaintiff's complaint and defendants' counter-claim, coincide and are identical with the original survey and accompanying field notes as made in 1878.

'24. That the recent survey to the land and premises which are the subject matter of plaintiff's complaint and defendants' counter-claim, as made by the Daniel Engineering Company of Alamogordo, New Mexico, coincides with the is identical with the 1937 survey and accompanying field notes and the original 1878 survey and its accompanying field notes.

'25. That the plaintiff, Elizabeth J. Sproles' fence on the west side of Section 33, Township 8 South, Range 9 East, N.M.P.M. is approximately 420 feet over onto state lease land and extends on said leased land to such extent, the...