State Ex Rel. Shelton v. Bd. of Com'rs of Bernalillo County, 4879.

• Decision Date: 25 July 1945
• Docket Number: No. 4879.,4879.
• Citation: 49 N.M. 218,161 P.2d 212
• Parties: STATE ex rel. SHELTONv.BOARD OF COM'RS OF BERNALILLO COUNTY et al.
• Court: New Mexico Supreme Court

49 N.M. 218

161 P.2d 212

STATE ex rel. SHELTON

v.BOARD OF COM'RS OF BERNALILLO COUNTY et al.

No. 4879.

Supreme Court of New Mexico.

July 25, 1945.

Appeal from District Court, Bernalillo County; Luis E. Armijo, Judge.

Statutory action in mandamus by the State of New Mexico, on the relation of Soney Shelton, against the Board of County Commissioners of Bernalillo County, N.M., and others to compel respondents to remove all obstructions from location on land asserted by petitioners to be a part of public highway. From a judgment dismissing the complaint, petitioner appeals.

Affirmed.

The statute providing that all avenues and other places described as for public use on map or plat of any city or town shall be deemed to be public property, and fee thereof to be vested in such city or town, does not apply to platted lands in the county outside such municipalities. 1941 Comp. § 14-205.

[161 P.2d 212 , 49 N.M. 219]

Robert Hoath LaFollette, of Albuquerque, for appellant.

M. Ralph Brown, Dist. Atty., and Scott H. Mabry and Robert W. Reidy, Asst. Dist. Attys., all of Albuquerque, for appellee Board of County Com'rs.Gilberto Espinosa, of Albuquerque, for appellees Romero et ux.

BRICE, Justice.

This is a statutory action in mandamus, brought to compel the appellees to remove all obstructions (including the house of appellees Romero) from their location on land asserted by appellant to be a part of a public highway, so that the appellant and the public generally may pass freely over such land.

The facts as found by the trial court are substantially as follows:

The relator Soney Shelton is a resident taxpayer of Bernalillo County, New Mexico, and is a licensed automobile operator and as such is entitled to drive his motor vehicle through the public highways in that county.

On the 14th day of March, 1917, there was filed in the office of the county clerk of Bernalillo County, by W. A. McMillin as asserted owner, a plat of what was denominated ‘Sunshine Addition to the City of Albuquerque.’ On the 28th day of March, 1921, another plat, called ‘Amended Supplemental Plat of Sunshine Addition to the City of Albuquerque,’ covering the identical land, with the same designation of lots, blocks and streets, with the exception hereinafter stated, was filed in the office of the county clerk of Bernalillo County by J. D. Keleher, G. N. Brooks, Charlotte E. Brooks and B. E. Dieckmann as owners. There was an alley running north and south through each block shown on each plat. Block No. 1 is at the extreme west end of Sunshine Addition. On the original plat, Smith Avenue (running approximately east and west) appeared the entire length of the platted land.

That portion of Smith Avenue lying north of the lots within the east half of Block 1 (being a tract of land 50 x 142 feet) is involved in this litigation. On the amended plat this tract of land (covering the full width of Smith Avenue) was excluded from the dedicated street. On both plats Smith Avenue was open to the east and west of the tract involved, to the outside boundaries of Sunshine Addition. Regarding it the trial court found:

‘That the purported public highway known as East Smith Avenue, between South Broadway and the public alley situate 142 feet east thereof, has not been used as a public highway, or as a highway, or as a road, for more than sixty years last past.

‘That at the time of the filing of the Amended an Supplemental Plat of the Sunshine Addition, signed and dedicated by J. D. Keleher and G. L. Brooks, B. E. Dieckmann and Charlotte M. Brooks, on May 26, 1921, it was not the intention of said Dedicators to include the tract of land described in the Petition, and now occupied as a residence by Manuel Romero and Lela Romero, as a part of said Addition, and that the same was not so included.

‘* * * the land described in the petition herein and occupied by the residence of the respondents Manuel Romero and Lela Romero, has never been used as a public road or highway but has been continually for more than forty years past, used as a private residence lot.’

The trial court also found that neither of the plats had been submitted to, or approved by, the board of county commissioners of Bernalillo County; also, that at the time of the filing of the amended plat, it was not the intention of the dedicators to include that tract of land above described as a part of Sunshine Addition, ‘and that the same was not so included.’

The court below filed no specific conclusions of law, but held generally against the plaintiff (appellant); and judgment was entered thereon dismissing his complaint.

A statute of New Mexico provides:

‘All roads and highways, except private roads, established in pursuance of any law of New Mexico, and roads dedicated to public use, that have not been vacated or abandoned, and such other roads as are recognized and maintained by the corporate authorities of any county in New Mexico, are hereby declared to be public highways.’ Sec. 58-101, N.M.Sts. 1941.

If the land in question is a part of a public road or highway as contemplated by the statute, then it is the duty of the appellees Board of County Commissioners to maintain it so that it can be used as such. The following statute so provides:

‘All public highways, except such as are owned and operated by private corporations, and highways within the corporate limits of any incorporated city or town, shall be maintained and kept in repair by the respective counties in which they are located.’ Sec. 58-102, N.M.Sts. 1941.

By Section 58-208, Sts. 1941, the state highway commission is given general charge and supervision of all highways and bridges in the state which are constructed or maintained in whole or in part by the aid of state monies. There is no evidence or finding that the platted streets of the ‘Sunshine Addition’ were so constructed or maintained.

We stated in State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 249 P. 242, 246:

‘While there are exceptions, it is the general rule that mandamus may be issued to enforce the performance of a public duty by public officers, upon application of any citizen whose rights are affected in common with those of the public.’ (Our emphasis.)

In People ex rel. Stonebraker v. Wood, 90 Colo. 506, 10 P.2d 331, 332, the question was whether the mayor and city council of Trinidad could be compelled, at the suit of a citizen, to remove from the streets and sidewalks of that city thirty gasoline pumps. The Colorado court stated:

‘Much confusion has arisen concerning the proper plaintiff and his representative in a mandamus action to comple the performance of a public duty, and the several jurisdictions are in hopeless conflict. * * *

‘The general rule now seems to be that: ‘Private persons may move for a mandamus, to enforce a public duty not due to the government as such, without the intervention of the government law officer.’ * * *

‘There is, however, good authority to the contrary. * * * Indicating our approval of the general rule we have said: ‘If the main object of the proceedings is to vindicate a public right, * * * a citizen interested could probably institute the proceeding in the name of the people without consulting the attorney general.’ Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 256, 11 P. 103, 107. * * *

‘We think plaintiff had capacity to sue.’

If the appellee Board of County Commissioners owed to the public a clear legal duty to compel the removal of the obstructions alleged to have been placed in the highway, then the action against it may be maintained by appellant.

Whether the appellees Romero could properly be made parties to this proceeding, will not be considered as the question has not been raised. But see Tomlin v. Las Cruces, 38 N.M. 247, 31 P.2d 258, 97 A.L.R. 185; Warner v. Mayor of Taunton et al., 253 Mass. 116, 148 N.E. 377; 40 C.J.S., Highways, § 226, subsec. b, holding, that in the absence of injury distinct from that of the general public, such action does not lie; although it has been held arguendo that the property owner may be joined with the properly constituted authorities in such an action, but that he is not a necessary party. Wheeler v. Northern Colorado Irrigation Co., supra. See Okanogan County v. Johnson, 156 Wash. 515, 287 P. 15.

The land in question when platted was not within the boundaries of any city, town or village of this state, and there was no law at the time of either dedication that required the owners of such property to submit plats to, or obtain the approval of, the board of county commissioners of the county in which the land was located before filing them. Such a law was enacted in 1939, L. 1939, Ch. 84. Appellant claims, however, that the filing of the plat of 1917 had the effect...