State v. Budd.

• Decision Date: 28 June 1919
• Docket Number: No. 2264.,2264.
• Citation: 182 P. 863,25 N.M. 313
• Parties: STATE, by ERVIEN, Commissioner of Public Lands,v.BUDD.
• Court: New Mexico Supreme Court

25 N.M. 313

182 P. 863

STATE, by ERVIEN, Commissioner of Public Lands,

v.BUDD.

No. 2264.

Supreme Court of New Mexico.

June 28, 1919.

Syllabus by the Court.

Where a complaint shows on its face that the defendant is in possession of certain lands, has inclosed them, is occupying and using them without permission from the plaintiff, who claims to be the owner and entitled to the possession, and that the defendant has refused to vacate and deliver possession of the lands, plaintiff's remedy is in ejectment or an action of forcible entry and detainer, a complaint showing the above facts states no cause of action entitling plaintiff to injunctive relief, and the demurrer to said complaint should be sustained.

Appeal from District Court, Chaves County; McClure, Judge.

Action by the State of New Mexico, by the Commissioner of Public Lands, Robert P. Ervien, against Levi W. Budd, for injunction. Judgment for plaintiff on demurrer, and defendant appeals. Reversed, with directions.

Where a complaint shows on its face that the defendant is in possession of certain lands, has inclosed them, is occupying and using them without permission from the plaintiff, who claims to be the owner and entitled to the possession, and that the defendant has refused to vacate and deliver possession of the lands, plaintiff's remedy is in ejectment or an action of forcible entry and detainer, a complaint showing the above facts states no cause of action entitling plaintiff to injunctive relief, and the demurrer to said complaint should be sustained.

Harold Hurd, of Roswell, for appellant.

RAYNOLDS, J.

The prayer of the complaint in this case asks for an order on the defendant to “show cause why a writ of injunction should not issue enjoining said defendant from further occupancy of the land in question and further use and grazing thereof and from further inclosing the same, and also why he should not abate the inclosure of wire and posts now surrounding said land, and why he should not be required to give peaceful possession of said land to the plaintiff, and that on his failure to show cause why he should not do the several things recited he be perpetually enjoined from doing them, or any of them, and that he be declared a trespasser and directed to vacate said land.”

In the main body of the complaint it is alleged that the defendant is in possession, has inclosed the land, refuses to vacate, and is using the land without plaintiff's permission or consent. Plaintiff claims to be the owner or entitled to the possession. Inadequacy of the remedy at law by ejectment or by forcible entry...