Velasquez Et Ux. v. Cox.

• Decision Date: 23 December 1946
• Docket Number: No. 4982.,4982.
• Citation: 176 P.2d 909,50 N.M. 338
• Parties: VELASQUEZ et ux.v.COX.
• Court: New Mexico Supreme Court

50 N.M. 338

176 P.2d 909

VELASQUEZ et ux.

v.COX.

No. 4982.

Supreme Court of New Mexico.

Dec. 23, 1946.Rehearing Denied Feb. 11, 1947.

Appeal from District Court, San Juan County; Wm. J. Barker, Judge.

Action by Simon Velasquez and Christina Velasquez, husband and wife, against D. W. Cox to recover a tract of real estate. From an adverse judgment, plaintiffs appeal.

Judgment affirmed.

In boundary line dispute, evidence sustained finding that the boundary line in conformity with which defendant and his predecessors in title had occupied and improved the land since the date of patent to defendant's predecessors in 1884 up to which boundary plaintiffs' predecessor patentees had farmed for more than 10 years before sale to plaintiffs who waited 11 years to bring suit after discovery of what plaintiffs thought was an error in the original survey of the boundary was the true boundary.

[176 P.2d 909 , 50 N.M. 338]

Charles B. Barker, of Santa Fe, for appellants.

A. T. Hannett, of Albuquerque, for appellee.

HUDSPETH, Justice.

This is an action brought against Dee W. Cox, hereinafter called the defendant, by the plaintiffs to recover a certain described tract of real estate containing about 40 acres in Section 13, Township 30 North, Range 8 West, N.M.P.M., in San Juan County. The issues were made up by the defendant's amended answer to the complaint, a cross-complaint and plaintiffs' reply. The case was tried by the court, without a jury, and the defendant recovered judgment, from which an appeal had been taken to this court.

The court found that the plaintiffs were the owners of the W 1/2 of the NE 1/4, and the NW 1/4 of the SE 1/4, Sec. 13, Twp. 30 N., R. 8 W., N.M.P.M., and that the defendant was the owner of the N 1/2 of the NW 1/4, SE 1/4 of the NW 1/4, and NE 1/4 of the SW 1/4 of the same sections; that the defendant's land was granted by the United States of America by patent under the homestead law to Felipe Santiago Martinez in the year 1884, and that he immediately erected a fence as the true boundary to the easterly side of the said land, and that said land has ever since been occupied by the defendant and his predecessors in interest in open, notorious and undisputed possession, paying taxes thereon and claiming the same under color of title, up to and until the year 1933; that during the year 1933 the plaintiffs made claim that the fence maintained by the defendant and his predecessors in interest on the easterly boundary between the property of the plaintiffs and defendant was not upon the true boundary line between their lands, and enclosed part of the formers' land, approximately the land in controversy.

Plaintiffs' lands were patented to homesteaders in the years 1908 and 1922, and plaintiffs acquired these tracts in the year 1931.

Simon Velasquez, one of the plaintiffs, testified that he was 55 years old, that he was born near the land in controversy, that about 22 acres of it was good farming land under irrigation, and that it had been farmed by defendant and his predecessors in title as long as he could remember, and that he was the first one to question their title. It was stipulated that grazing land was valued for taxation purposes in San Juan County at $1 per acre, and there is uncontradicted testimony to the effect that the 22 acres of irrigated land in controversy, on which there is an old orchard, is about two-thirds of all the irrigated area on the Martinez homestead, now the farm of defendant.

Plaintiffs' engineer, James Harvey, testified that there were two surveys by the United States government of the east line of this Section 13, the original in the year 1880 and re-surveyed in the year 1913; that he used the re-survey notes along the east boundary and the old survey notes for the balance of the section; that the quarter-section corners on the north and south boundary lines of Section 13 were not found; that he found the original SW corner of Section 13 and established a quarter-section corner on the south boundary line of Section 13, approximately one-half the distance from the SW cornerstone to the point indicated by the re-survey of the east boundary as the SE corner of Section 13 in the San Juan River; that he did not find the NW corner of Section 13, nor any corner within a distance of two miles running west from the point where the field notes indicated the NW corner of Section 13 was originally placed; that using the field notes of the original survey he established a quarter-section corner on the north line of Section 13, starting from the NE corner as located by the re-survey (the corner set in 1913) of Section 13; that he then marked the median line dividing Section 13 into east and west halves, as set out in plaintiffs' complaint. He testified further (cross-examination):

‘Q. Now, I will ask you to look, Mr. Harvey, at a map. I think perhaps for the Court's convenience we had better get the map on the Court's desk. I am asking you to look at Defendant's Exhibit 2, annexed to the deposition of Thomas McClure, and numbered Defendant's Exhibit 2, in Mr. McClure's testimony, and which is an official record and map made by the State Engineer's Office for the adjudication suit touching the ownership of water rights on the San Juan River, and point out to you the area which appears on Section 13, and which bears the words Rex Smith, that's the same land that is now owned by Mr. Dee Cox, the defendant in this suit, is it not? That is from the red line towards the words Rex Smith, that is the subdivisions of land where Mr. Cox’ land is located? A. I believe that's right.

‘Q. Point out on this map the center of the Section 13. A. It is indicated as being at that point there.

‘Q. Which is the red line purporting to follow the center line of Section 13, or approximately? A. Yes, I believe this is the ditch I located as the center line.

‘Q. The ditch which is marked Martinez Ditch, is that correct? A. Yes, that's where I located it. * * *

(Re-Direct Examination)

‘Q. Looking at this map identified as Defendant's Exhibit 2, which shows by a red line the Cox fence, as coinciding very nearly with the center line dividing Section 13 into its east and west halves, I will ask you to state whether that correctly shows the location of the fence? A. It certainly does not show it correctly, if you take half mile west from the northeast corner of Section 13. * * *

(Re-Cross-Examination)

‘* * * In other words, between the northeast corner of Section 13 and the North quarter corner of Section 14, there is a north-south discrepancy of about 680 feet and an east-west discrepancy of about 640 feet, between the official plat distance and the official ground distance? A. I have never run across such large discrepancies in my work.

‘Q. Do you know whether that exists here? A. I didn't find the corner, if I found that at such location I would assume the corner had been moved.

‘Q. Isn't it true, unless and until the original survey stones at the northeast corner and the north quarter corner of 13 are found, there is no way of knowing how or where this error was distributed between the two points, that's true, isn't it? A. That may be. Which error are you referring to?

‘Q. The one I just-- A. That 600 feet?

‘Q. Yes. A. I don't concede there is such an error. I think if there is a stone that far off it has been moved. I found the southwest corner of 13 quite off from what the notes called for.

‘Q. As a matter of fact, if you move-if the State Engineer's map which was filed in this adjudication suit is 700 feet off, or the distance you have given, approximately 700 feet off, then it would affect the title to every piece of land in that township and move it 700 feet in some direction, wouldn't it? A. I found that the lines in that township are very poorly located and marked from the fact that the corners are not in place through either not having been set originally or moved, but I believe not having been set originally.’

And testified also:

‘* * * Q. Isn't it true it was originally surveyed, and original field notes and original plat of Township 30 North, Range 8 West, N.M.P.M. was made and filed in the land office on April 19, 1881? A. I don't remember the dates. I think the exteriors were run separate from the subdivisions.’

Mr. Harvey's plat shows that according to the re-survey of the east boundary the northeast corner of Section 13 is several hundred feet (the exact distance is not shown) south of the corner common to Section 7 and Section 18 in the township to the east; while the field notes of the original survey (year 1880) read: ‘80.00-Set sandstone 18 x 16 x 8 2/3 in ground marked 2 notches on N and 4 on S sides and mound of sandstone for cor. to Secs. 7, 12, 13 and 18 * * *.’

Defendant's Exhibit 2 is a map on file in the office of the State Engineer of a hydrographic survey made under the direction of the State Engineer in an adjudication suit concerning the waters of the San Juan River and its tributaries filed in the District Court of San Juan County. The survey was made in the year 1938 and covers a large area including the part of the land in Section 13, which was being served with water at that time, and portrays the amount and shows the boundaries of the lands owned by each of the owners at that time, according to the testimony of the State Engineer. He said it was the general practice of his office in making such surveys to attempt to locate every corner and get a land net located accurately. An assistant to the State Engineer testified regarding the map as follows:

‘Court: Which maps are you referring to? A. I am referring to the Hydraulic Survey, Defendant's Exhibit 2, and all corners which are indicated by a diamond, as I say, were found in the field, and the map and the original field sheets indicate that the quarter corners common to Section 10 and 15 and common to 11 and 14 were both found in the field and have been located on the map. * * *

‘Q. In other...