16 N.M. 281 | N.M. | 1911
OPINION- OP TH® COURT.
(After stating the facts as above). Appellant assigns 217 grounds of error, but, as is usually the case where assignments are so numerous, a large majority of same are merely variations of the same general 'proposition.
The first proposition advanced by the appellant is that appellee was newer in possession of Us alleged right-of-way and had nothing, for the protection of which this suit could be brought. Counsel for the appellant contend that this court upon the former appeal declared, as the law of this case, that it was necessary for the appellee to prove actual physical possession of Hie right-of-way in controversy, at the time of the alleged unlawful intrusion by the appellant, in order to support its action in a court of equity.
The printed record in this case is very vokiminous, containing twenty-five hundred pages, and as we deem this the question upon which this case must turn for affirmance or reversal, it is necessary, at this point, to state briefly the testimony bearing thereon. The plaintiff in the lower court, in support of its allegations, offered in evidence the records of the meetings of its Board of Directors, showing the adoption by resolution of various portions of its surveyed lines in San Juan County. It also placed upon the witness stand a witness, McFarland, the engineer in charge of its survey parties and who actually surveyed and staked out the right-of-way in question. The witness McFarland testified, without objection, that certain maps covering a surveyed line from the Colorado state line south along the valley of the Animas River to and through the town of Farmington, represented the right-of-way in question as surveyed and adopted by its board of directors. It was also in evidence that there were numerous surveys made at about this time in San Juan County, by the appellee, for the purpose of determining the best possible line between Durango, in the State of Colorado, and Farmington, New Mexico, and from thence south to the Arizona line, connecting with the lines of the appellee in Arizona. In at least two of these surveys, the engineer’s station numbers began at zero in Colorado, running thence south, with consecutive numbers. It also appears that there were other engineer’s station numbers commencing at “0” and running in consecutive order, from the south toward the town of Farmington. An examination of the resolutions from the minutes of the Board of Directors, introduced in evidence, discloses that the surveys were not adopted as a permanent line, as a whole, but that there were various resolutions covering- different portions of the surveyed lines. In none of the resolutions does there appear any direct reference to anjr particular engineer’s map.- The entire distance from the Colorado state line south along the Animas River to and through the town of Farmington, being the right-of-way in dispute, is about twenty-eight miles. No ‘question is raised as to the adoption by the plaintiff company of the first fifteen odd miles from the stale line of Colorado south, to and through the town of Aztec. This eliminates from the discussion two of the points of conflict, described and referred to in the testimony as the “Whitney and McEwen Crossings.”
Taking the various resolutions offered in evidence, together with the maps, also in evidence, we find, using the engineer’s station numbers as guides,, that these numbers might bo applied to different locations and are not absolutely limited to that portion of 'the survey between the towns of Aztec and Farmington, in dispute of this suit. Mr. McFarland, however, testified referring to the maps (mentioned above), that such maps indicated and described the right-of-way as surveyed and adopted. The witness McConnell also identified.the lines described by McFarland as the survey adopted by the plaintiff company. Mr. McConnell also testified that after the line was adopted, he was employed to secure rights-of-way, and was furnished with maj)s and profiles showing the adopted, line; such line being the same line testified to by the witness McFarland. All of these things occurred prior to the time that the defendant company took possession of any of those portions of the right-of-way in dispute in this suit. Counsel for the appellant argues that there is no resolution showing the adoption of that portion of the survey beween the towns of Aztec and Farmington, described as the “Devised Survey,” and that the appellee, in offering the testimony of the witnesses McFarland and McConnell, was attempting to prove, by oral testimony, acts of the Board of Directors, which, by law are required to be kept in writing and as' part of the records of the corporation. Counsel for appellant and counsel for appellee entered into a lengthy discussion of this question. Counsel for appellee cites the case of TJ. S. Bank v. Dandridge,, 12 Wheat. 64. Counsel for appellant cites numerous cases, contending that where the statute requires the keeping of written records of directors’ proceedings, (as is the case in New Mexico,- Sec. '2832, C. L. of 1897), oral evidence of corporate acts not so recorded is admissiblengainst the corporation, but ought not to be admitted" on behalf of the corporation against the interests of others. While a consideration of this question might be very in-i cresting, we do not iincl it necessary to a determination of the' issues of this case to' determine whether the evidence offered by appellee was an effort to establish corporate acts by parple or not, nor do we think it necessary to determine whether the resolutions of adoption offered in evidence by the appellee, as a matter of fact, do include all of lha Una so surveyed, located and marked upon the ground between the state line of Colorado and the town of Farmington.
From a careful examination of the testimony it appears conclusively that the resolutions of the board of directors show the adoption of all of the right-of-way except, possibly, that portion near the town of Aztec, referred to in the evidence and briefs as the “Revised Survey.” • This portion of the right-of-way includes “Young’s Crossing,” one of the disputed tracts, and the cue of which appellant particularly complains as never-having been adopted bji- the appellee as a part of. its permanent right-of-way. It further appears, from the testimony and the findings, as to this particular tract, that the appellee ivas the owner of the same, by direct purchase, prior to the institution of this suit, and prior to any trespass thereon by the appellant. No legal steps whatever were taken hj the appellant to gain possession of this particular tract until after the institution of the case at bar, and it further affirmatively appears from the testimony and findings, that, at the time of the threatened trespass, the appellant company had not complied with any of the requirements of’the territorial statutes as to the adoption of Us Una. The appellee was the actual owner of the land known as “Young’s Crossing,” and until the appellant' had paid for, or condemned the same appellant had no rights therein whatever, and the appellee could protect its rights to the same regardless of whether this particular piece of right-of-way had been actually adopted as a permanent location by specific resolution,. or not. The appellant, having no rights in that portion oi‘ the right-of-way known as “Young’s Crossing,” it becomes wholly immaterial,, for the purpose of this discussion, to determine whether the court’s finding of fact that, “prior to the first day of Janua^, 1905, (the appellee) adopted the said line so surveyed, located and marked upon the ground as the line of the definite location of its railroad between, said last- mentioned points.” Finding of Fact No. 3, quoted supra, is supported by the testimony in so far as it refers to “Young’s Crossing.”
The next proposition urged by afppellant is, that the appellee’s line, as located, is not the best obtainable line. Joined with this proposition is the contention that appellee at small expense can get a better line than the -one claimed in- this action, and that by reason of such facts appellee ought not to maintain this action in equity, having a complete remedy at law in damages. A great mass of testimony was introduced hearing upon these questions. Witnesses for the appellee testified that the line, as surveyed and adopted by appellee, in view of all the surrounding circumstances and conditions, was a practical line, and the best that could be obtained. Witnesses for the appellant testified to the contrary. Upon such conflicting testimony the court made definite and specific findings of fact in favor of the appellee. Under such f state of the record,, this court will not inquire further.
Appellant further contends that appellee should not succeed for the reason.that it is apparent from the testimony that interference by the appellant with the line claimed by appellee could not be avoided; also, that the allegations of good faith and ability on the part of the appellee to construct, a railroad upon the right-of-way claimed are not sustained by the testimony, and,- again, that the appellee ought not to succeed because appellee was guilty of laches. With reference to each of such contentions, the court specifically found against the appellant, and with reference to the interference with the right-of-way of the appellee the court specifically found that such interference by the appellant was willful and deliberate. A sufficient answer is that each finding is based upon ample evidence to sustain the same.
Appellant also contends, even admitting that appellee had some rights to the right-of-way claimed, that appellant had no notice of appellee’s claim, either actual or constructive. It appears from the brief of counsel for appellant that appellant’s main contention as to the lack of notice is based upon tire fact that the trial court admitted certain notices and options which were recorded in the office of the probate clerk of San Juan county, which said notices, and options were not acknowledged in form to be entitled to record, and hence had no evidentiary value as records. . Eliminating entirely from the evidence all such disputed evidence, an examination of the record discloses that there was ample evidence of actual notice to warrant the trial court in making the finding that the appellant had actual knowledge. It follows that the question of constructive notice is therefore immaterial.
The final contention advanced by appellant is that an examination of the record will show that the rulings by the court below upon evidence were such as to require the reversal of the judgment.
We have examined the record and the rulings of the court upon the objections to the referee’s report; and, while we may not agree with the trial judge as to all of the rulings so made, yet we find substantial, competent evidence to sustain each and every one of the findings made by the trial judge, and nothing in the rulings of the trial judge which indicates in the least degree that the trial judge was not absolutely fair and impartial in all of his rulings.
There being no error in the record, the judgment of the lower court is affirmed.