State Highway Commission v. Ruidoso Tel. Co. (NSL)

• Decision Date: 19 August 1963
• Docket Number: No. 6957,6957
• Citation: 73 N.M. 487,1963 NMSC 150,389 P.2d 606
• Parties: STATE HIGHWAY COMMISSION of New Mexico, and L. D. Wilson, Chief Highway Engineer, Plaintiffs-Appellants and Cross-Appellees, v. The RUIDOSO TELEPHONE COMPANY (NSL), a New Mexico Corporation, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 606

389 P.2d 606

73 N.M. 487

STATE HIGHWAY COMMISSION of New Mexico, and L. D. Wilson Chief Highway Engineer, Plaintiffs-Appellants and Cross-Appellees, v. The RUIDOSO TELEPHONE COMPANY (NSL), a New Mexico Corporation, Defendant-Appellee and Cross-Appellant.

No. 6957.

Supreme Court of New Mexico.

Aug. 19, 1963.

Rehearing Denied March 9, 1964.

Earl E. Hartley, Atty. Gen., M. W. Hamilton, Hadley Kelsey, Joseph L. Droege, John C. Worden, J. O. Walton, Sp. Asst. Attys. Gen., Santa Fe, for appellants.

Bigbee & Stephenson, Charles D. Olmsted, Santa Fe, for appellee.

GEORGE L. REESE, Jr., District Judge.

This controversy arose by an action filed June 11, 1957 by the State Highway Commission, hereinafter called Commission, against The Ruidoso Telephone Company, hereinafter called Company, in the district court of Santa Fe County for a declaratory judgment. It was alleged in the amended complaint that the Company was a New Mexico Corporation engaged as a public utility furnishing telephone service to the public in the vicinity of Ruidoso, New Mexico; that theretofore and after the right of way for U. S. Highway 70 in Lincoln County, New Mexico, had been acquired by the State for highway purposes, the Company installed within said right of way its poles, fixtures and other facilities for the purpose of furnishing its service and also installed certain of its said poles and facilities adjacent to said right of way.

It was alleged that the Commission had determined to widen and improve a portion of U. S. Highway 70 and had acquired the necessary additional right of way and had entered into a project agreement with the Commissioner of Public Roads, Bureau of Public Roads, United States Department of Commerce, whereby said federal agency will reimburse the State of New Mexico 62.88% of the costs incurred by it for the construction of said highway, including cost of relocation of utility facilities necessitated by such construction when the payment to such utility does not violate the law of the state nor violate a legal contract between the utility and the state.

It was alleged that demand had been made upon the Company to remove and relocate its facilities along the right of way of the prject and that the Company had agreed to relocate the same in accordance with said demand but had demanded reimbursement from the state for its cost of said relocation.

It was alleged that the Commission had refused to reimburse the company for that portion of its lines and facilities within the old right of way, approximately 8881.82 feet in length and had demanded that all costs and expenses of such relocation be borne by the Company.

It was alleged that the Commission had refused to reimburse the Company for that portion of its lines adjacent to but outside the old right of way but within the new right of way approximately 4919.9 feet 'until and unless defendant evidences to plaintiffs a valid title or property interest superseding plaintiffs' right of way and title to said additional right of way acquired for the widening required by Project No. F 021-1(2).'

It was alleged that a controversy existed between the parties in that the Commission contended that payment to the Company pursuant to Section B of Chapter 237, Laws of 1957, would be in violation of various constitutional provisions set out in the pleading and that the Company denied that such payment would be in violation of such provisions.

The Company answered the complaint admitting most of the allegations, but alleged that it had not demanded reimbursement under Ch. 237, Laws 1957, for its lines, approximately 4919.9 feet, situated adjacent to but outside of the old right of way, for the reason that the Company had a prescriptive easement to maintain its utility facilities on this area and the Commission had not obtained this easement from the Company by purchase, condemnation or otherwise and that the refusal of the Commission to reimburse the Company for the relocation of this portion of its lines amounted to the taking of its property without just compensation.

The district court found no unconstitutionality in Ch. 237, Laws 1957, and entered its judgment declaring that under the provisions of said act the Company was entitled to reimbursement for the relocation costs of all its lines.

The Commission appealed from the judgment and in State Highway Commission v. The Ruidoso Telephone Co., 65 N.M. 101, 332 P.2d 1019, we held the Act to be in violation of certain provisions of the New Mexico Constitution and remanded the case to the district court to determine the controversy concerning the claim of the Company that it had easements over private lands for its facilities located outside the old right of way.

After remand, the district court considered the case on the admissions in the pleadings and a written stipulation of facts. The respective parties filed requested findings of fact and conclusions of law, part of which were denied, and the court entered its decision containing findings of fact and conclusions of law. On the authority of Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 112 A.L.R. 536, the district court held that the Company had valid easements as to 3231.8 feet of its lines which had been located upon private enclosed lands for more than ten years, but that as to 1688.1 feet of its lines which were not located within private enclosures, it had failed to establish valid easements.

The Commission appealed and the Company cross-appealed, and the parties have exhaustively briefed and argued the law relating to prescriptive easements and considerable effort had been expended by both parties in argument that the trial court properly or improperly made or refused to make certain requested findings of fact.

On the authority of Newbold v. Florance, 56 N.M. 284, 243 P.2d 597; Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365; Valdez v. Salazar, 45 N.M. 1, 107 [73 NM 491] P.2d 862; Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, and Davidson v. Enfield, 35 N.M. 580, 3 P.2d 979, we will dispose of the appeals upon the basis of the admissions in the pleadings, the written stipulation of facts and such inferences as may be necessarily and reasonably drawn therefrom.

The Company presented requested findings of fact and conclusions of law to the trial court adequately asserting its claim, repeated here, that by reason of its power of eminent domain and without regard to rules governing prescriptive easements generally, it had, under the admitted facts, valid easements covering the entire 4919.9 feet of its lines and facilities located on private lands outside the old right of way and now in question here. After due consideration we have determined that this claim should be upheld and will proceed to develop and decide the arguments pro and con, leaving undetermined the disputes as to the facts and law applicable to prescriptive easements where the claimant does not have the power of eminent domain.

The Company, since 1926, has been a New Mexico corporation, engaged as a public utility in furnishing telephone service to the public in the vicinity of Ruidoso, New Mexico. As such public utility it has, and has always had, the power of eminent domain under Secs. 68-1-1 to 68-1-5 and 22-9-1 to 22-9-21, inclusive, N.M.S.A.1953 Comp. Roswell v. Mountain States Tel. & Tel. Co., 10 Cir., 78 F.2d 379.

The Company had a franchise from Lincoln County to use the highway for its poles and facilities and prior to 1931 it did use a county road and the fences bordering same in the area involved in this litigation. In 1930-31 Lincoln County obtained easements from the abutting owners of the property along the county road for the purpose of widening and reconstructing the road. The easements were for a total width of 80 feet in some areas, and 100 feet in others, and they embraced the old right of way. In the period 1931-1934, the new right of way was surveyed, the road was widened and reconstructed and the Company relocated its poles and facilities. In connection with such relocation the Company obtained verbal permission from the Commission to place its poles and facilities in the new right of way and after the relocation was completed a written permit so to do was issued by the Commission. In relocating its lines the Company apparently 'took the short cut' in many places with the result that 4919.9 feet of its poles and facilities were located on private lands outside the highway right of way and at varying distances therefrom. Part of the relocated lines were on the highway side of bordering fences and part were on the private land side of such fences. There was no evidence available to show which came first, the fences or the poles, except in one area embracing 3270 feet it was stipulated that the bordering fence was first erected and in this area 2710 feet of the poles and facilities in question were on the private land side of the fence, and 560 feet were on the highway side.

The ownership of the private lands abutting the highway changed after 1935 so that in 1957 none of the tracts involved in this case were owned by the 1935 owners.

The stipulation provides:

'Other than as set forth in this stipulation there is no testimony or documents available for introduction in this cause relating to any written or oral easements or rights of way from adjacent property owners for the lands outside of the 80-100 foot right of way at the various places occupied by the 5632.90 (the 4919.9 feet is in this figure) feet of the defendant's lines at the time of the filing of the complaint nor has plaintiff obtained such lands or an easement from defendant by purchase, condemnation or otherwise. That defendant continuously since 1926 has furnished telephone services to many abutting owners of the tracts upon which its lines outside of the old 80-100 foot right of way were placed, but there is no testimony or documents available for introduction in this cause of...