Thompson v. Fahey
| Citation | 607 P.2d 122,94 N.M. 35,1980 NMSC 13 |
| Decision Date | 07 February 1980 |
| Docket Number | No. 12436,12436 |
| Parties | Roy B. THOMPSON and Helen L. Thompson, Plaintiffs-Appellees, v. William Francis FAHEY, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Thompson filed suit to enjoin Fahey for trespassing on land Fahey allegedly sold to Thompson, for damages resulting from this trespass, and for an order requiring Fahey to accept final payment on a note and to release the mortgage Fahey holds. The trial court granted Thompson's summary judgment motion for the injunction and order, but denied him damages for the trespass after a hearing on the merits on that issue alone. Fahey appeals the summary judgment; Thompson cross-appeals the denial of damages. We reverse on both points.
At issue is whether summary judgment was improper because a genuine issue of material fact exists and whether a denial of damages was improper even after a finding of trespass.
In 1965 Fahey entered a contract purporting to sell to Thompson approximately 6,500 acres for $300,000.00. Subject to a final survey indicating the exact acreage to be conveyed, the contract provided that $46.00 per acre would be deducted from the purchase price in the event that there was less than 6,500 acres. A thirty-three acre tract was specifically excluded in the contract from the transaction.
Fahey asserts that this thirty-three acre tract was erroneously included in the survey description and thereby erroneously incorporated into the deed he signed at the closing. Both parties admit, and the trial court found, that Fahey had sporadically run his cattle on this tract for the ten years between the signing of the deed and the filing of this suit. Thompson claims that the nearly twenty-nine acres here in question is not part of the thirty-three acres specifically excluded in the contract; Thompson claims that since this acreage was excluded from the sale it did not have to be, and in fact was not, included in the survey. Thompson apparently asserts that the location of this specifically excluded acreage is "up in the air". In the alternative, Thompson claims that if this nearly twenty-nine acres is part of the thirty-three acre exclusion, then he has acquired title by adverse possession, despite Fahey's sporadic use of the land.
Fahey claims that an additional but...
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