ILA BETH HANCOCK, Plaintiff-Appellant, v. RAY NICOLEY, Defendant-Appellee.
NO. 33,390
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
April 13, 2016
Albert J. Mitchell, Jr., District Judge
Caren I. Friedman
Santa Fe, NM
for Appellant
Schutte Law Office, LLC
Donald Schutte
Tucumcari, NM
for Appellee
OPINION
BUSTAMANTE, Judge.
{1} Plaintiff Ila Beth Hancock appeals the district court‘s order in which it applied the doctrine of acquiescence to conclude that the boundary between her property and Ray Nicoley‘s property was marked by the fence line instead of the surveyed boundary because the parties had long treated the fence line as the boundary. In effect, the district court ordered the transfer of some of Hancock‘s property to Nicoley. We reverse and remand for further proceedings.
BACKGROUND
{2} Plaintiff Ila Beth Hancock owned two parcels of land in Quay County. The two parcels lay to the west and south of Defendant Ray Nicoley‘s property.1 For ease of reference, we call Hancock‘s parcels “the west parcel” and “the south parcel.” Hancock co-owned the south parcel with her nephew, W.A. Hancock (the nephew). The west and south parcels met at the southwest corner of Nicoley‘s property. Hancock permitted her cattle to cross the southwest corner of Nicoley‘s property to reach a windmill and well on the south parcel and had done so for “at least 65 years.”
{3} In 2006, Hancock filed a complaint against Nicoley alleging that Nicoley had removed and relocated a portion of the fence between their properties at the corner such that her cattle could no longer pass from the west parcel to the south parcel. The theory of Hancock‘s complaint was that the previous location of the fence at the corner had become the boundary between the parties’ properties by acquiescence. “The doctrine of acquiescence is principally based on an agreement, expressed or implied, of adjoining landowners, whereby they recognize or acquiesce in a certain line as the true boundary of their properties.” Stone v. Rhodes, 1988-NMCA-024, ¶ 6, 107 N.M. 96, 752 P.2d 1112. “Generally, in order to prevail under the doctrine of acquiescence, a party must show by clear and convincing evidence that he and his neighbor recognize a physical boundary as the true dividing line of their property.” Id. Under the doctrine, “[t]he “boundary” is given such credence that after a certain period of time has lapsed, in the interest of peace and quiet, this dividing line is recognized as the true boundary dividing the properties.” Id.
{4} Based on this theory, the complaint alleged that Nicoley had trespassed and encroached on Hancock‘s property by moving the fence2 and that such acts had caused damages. In addition, the complaint requested an adjudication of boundaries. Finally and alternatively, Hancock requested that she either be declared the fee owner of the corner by adverse possession or granted a prescriptive easement for use of the corner.
{6} At a bench trial on January 5, 2010, Hancock presented her own testimony as well as testimony by her nephew and her brother. Hancock testified that the fence that Nicoley had removed had been in the corner for “at least [sixty-five] years.” Nicoley admitted a 1983 retracement survey of the parties’ properties. This survey showed that the fence line between the south parcel and Nicoley‘s property was south of the surveyed boundary between the properties.
{7} After Hancock rested her case, Nicoley moved for dismissal of all counts except for the prescriptive easement claim. As to the claim for adjudication of boundaries, Nicoley argued specifically that the claim must be dismissed for failure to join an indispensable party, Hancock‘s nephew and co-owner. The district court denied the motion as to the trespass and encroachment claims, and stated that it would dismiss the adverse possession claim. It then stated that the claim for adjudication of boundaries would be dismissed because “we don‘t have indispensable parties because [the nephew], the co-owner of the [south parcel,] hasn‘t been joined.” The district court reiterated after closing arguments that it would not address the boundary between the south parcel and Nicoley‘s property other than at the corner because the appropriate parties were not joined, stating, “What‘s in front of me is figuring out how you-all are going to get along on this corner.” None of the dismissals were ever memorialized in writing.
{8} Hancock and Nicoley both submitted requested findings of fact and conclusions of law after the bench trial. Hancock requested findings that “[Hancock] and [Nicoley] have mutually recognized, respected and honored the fences between them as boundary lines since [Nicoley] purchased his tract in 1993,” and that “the . . . fence lines between the [south parcel and Nicoley‘s property] are the boundary fences at the locations where the fences have historically existed.” She also requested a conclusion of law that “[t]he fence lines between [Hancock‘s] and [Nicoley‘s] properties are boundary lines.”
{9} Nicoley requested a finding that the fence line between the south parcel and his property was “actually [five] feet south of the common [surveyed] boundary.” He also requested a conclusion of law that “[Hancock] failed to show a boundary by acquiescence.”
{10} Nine months after the bench trial, the district court issued a letter ruling. In the letter, the district court stated that both Hancock and Nicoley held easements across each other‘s property. The letter did not address the location of the boundary between the south parcel and Nicoley‘s property.
{11} Six months later, the district court held a status conference and stated that its final judgment would be issued within a week. At this conference, Hancock offered to provide the district court with a survey she did of her land. The judge stated he did not think the Hancock‘s survey would “have that much effect on the case.” Another status conference was held nine months later, two years after the trial. The district court stated that the final judgment would be issued shortly thereafter. A third status conference occurred seven months later, but only Nicoley was present.
{12} A fourth status conference occurred in December 2012, nearly three years after trial. At this conference, Hancock pointed out that the fence between her south parcel and Nicoley‘s property was not on the surveyed property line. Hancock stated, “the other issue which was not before the court is that the [boundary between the south parcel and Nicoley‘s property] was off significantly from what the property line is, all the way down. And the court didn‘t rule on that. That‘s not something that we‘re here for.” Nicoley agreed that the issue of the boundary “was an issue that really wasn‘t before the court” and that “[i]t was on the survey,
{13} This understanding is bolstered by subsequent events. Ten days after this status conference, the district court sent a letter to the parties in which it stated that Hancock had “chose[n] not to pursue” an action related to the difference between the fence line and the surveyed boundary. It also expressed concern that a new issue was being raised long after the bench trial on the merits.
As we all know, the legal boundary between two properties can be either the survey line, the line agreed to by the parties, or the line ordered by the [c]ourt. I am greatly concerned that, frankly, years after what we all believed was the final [m]erits [h]earing, one party now wants to introduce evidence that was easily discoverable prior to the [m]erits [h]earing, and also raise additional issues that may arguably go to the merits that were already tried.
The letter concluded with an instruction to Hancock to “file an appropriate written motion with a supporting brief” if she wished to “expand the scope of litigation.” Hancock did not do so.
{14} A final status conference was held in January 2013. Finally, in October 2013, just shy of four years after trial, the district court issued its final judgment. Contrary to the letter decision, the district court denied both parties’ easement claims. In its findings of fact, the district court accepted Hancock‘s requested finding that “[Hancock] and [Nicoley] have mutually recognized, respected[,] and honored the fences between them as boundary lines since [Nicoley] purchased his tract in 1993.” Although the district court also echoed Nicoley‘s requested finding that “the boundary fence line running east and west is actually south of the legal description,” it found that “[Hancock] established by clear and convincing evidence that the fence line on the southern side of [Nicoley‘s] property is the legal boundary line as it is long established and recognized by long recognition of abutting owners.” In a drawing attached to the final judgment, the district court noted that, from the corner to a point 200 feet east of the corner, the boundary between the properties is the “legal boundary by deed and survey.” However, it also noted that from that point to the eastern edge of Hancock‘s property, the “[f]ence = legal boundary by acquienscence [sic].” The final judgment stated that “[Hancock‘s] request that the fence line at the south side of [Nicoley‘s property] is the legal boundary, except for on the west two hundred feet of that fence line[,] is granted.” The district court also stated that “[s]ince evidence presented to the [district c]ourt was that the fence line is south of the survey boundary, . . . [Nicoley] shall have prepared a legally sufficient survey setting forth the description of the property lying between the fence and the south boundary of the northeast quarter [of Hancock‘s property] within sixty days.” The judgment permitted Hancock thirty days to object to the survey. Finally, the district court stated,
As to the west two hundred feet, the parties shall each be half responsible for the cost[s] of a survey to properly locate the boundary, and to erect a fence along the west two hundred feet. At the end of the two hundred feet there should be a ninety degree jog to the existing fence line.
{15} In summary, both the parties and the district court reversed direction multiple times throughout this protracted litigation.
DISCUSSION
{17} Hancock appeals the district court‘s decision as to the boundary between the south parcel and Nicoley‘s land. She does not appeal the district court‘s decisions as to the easements claimed by either party.
{18} We conclude that the final judgment must be reversed and the matter remanded for several reasons. First, the district court erred in addressing the issue of the boundary between the properties beyond what was necessary to resolve the dispute over the corner after (1) ordering the boundary adjudication claim dismissed, (2) holding a hearing in which all agreed that it was not before the court, and (3) admonishing Hancock for raising it after the bench trial and stating that her pleadings would have to be amended before the court would address it. It is true that the district court‘s oral dismissal of Hancock‘s adjudication of boundaries claim was never memorialized in writing, and that, consequently, the district court could have changed its mind as to the dismissal at any time prior to judgment. State v. Morris, 1961-NMSC-120, ¶ 5, 69 N.M. 89, 364 P.2d 348 (“An oral ruling by the trial judge is not a final judgment. It is merely evidence of what the court had decided to do but he can change such ruling at any time before the entry of a final judgment.“); see
{18} Second, although it apparently determined that Hancock‘s nephew was a necessary party, the district court did not conduct a complete analysis of joinder under
{19} Generally, in a boundary dispute,
[t]he owners of the adjoining lands and all persons having a direct interest in the result of a proceeding, legal or equitable, to establish boundaries are . . . necessary or indispensable parties, for otherwise they are not bound by any determination as to the location of the boundaries, and title to the land between [the] plaintiff and [the] defendant and the determination of a common boundary line cannot be established otherwise.
11 C.J.S. Boundaries § 195 (2016) (footnotes omitted); see State ex rel. King v. UU Bar Ranch Ltd. P‘ship, 2009-NMSC-010, ¶¶ 48-49, 145 N.M. 769, 205 P.3d 816 (noting in dicta the “indispensable[]party doctrine” and stating that “[a]s a matter of law, it would appear incontrovertible that the boundary line between the Ranch and the state lands could not have been reestablished without, at the very least, the presence in court of the state agencies which are the trustees of those very state lands“). However, the assessment of necessity and indispensability is “heavily influenced by the facts and circumstances of each case.” Gallegos, 2002-NMSC-012, ¶ 42 (internal quotation marks and citation omitted). Here, it would appear from the district court‘s oral dismissal of the adjudication of boundaries claim that it concluded that Hancock‘s nephew was a necessary party, that he could not be joined, and that the claim could not “in equity and good conscience” go forward without him. Id. ¶ 39 (internal quotation marks and citation omitted). However, there is no evidence that the district court assessed whether the nephew could be joined, or whether the suit could proceed in his absence. See Hall v. Reynolds, 60 So. 3d 927, 931-32 (Ala. Civ. App. 2010) (holding that where heirs shared ownership of a property they were “at least necessary parties” under Rule 19(a) and remanding to the district court to determine whether the heirs could be joined, or if the action could proceed in their absence). Under these circumstances, the district court‘s judgment must be reversed and the matter remanded for determination of whether the nephew may be joined. Hall, 60 So. 3d at 931-32.
{20} Nicoley points to several cases addressing property disputes in which the courts have held that co-tenants are not necessary parties. See, e.g., Madrid v. Borrego, 1950-NMSC-043, ¶ 6, 54 N.M. 276, 221 P.2d 1058; De Bergere v. Chaves, 1908-NMSC-006, ¶ 11, 14 N.M. 352, 93 P. 762. De Bergere is inapposite because it depends on law predating the adoption of
{21} Third, the final judgment includes several inconsistencies that, given the length of time between the bench trial and judgment, as well as the shifts in direction of both the litigants and the court, cause uncertainty as to the district court‘s intent. For instance, Hancock‘s complaint arose after Nicoley erected a fence at the corner that was in a different place than the fence that had been there for “sixty-five years.” As we understand it, Hancock‘s theory at trial was that, even if the new fence was consistent with the surveyed boundary, the old fence location at the corner had been long agreed to by the parties and thus was the legal boundary by acquiescence. Given the district court‘s conclusion that Hancock had prevailed in her boundary by acquiescence argument, it is not clear to us how it arrived at the conclusion that the boundary at the corner was the surveyed boundary, but the rest of the boundary was the fence line. In
CONCLUSION
{22} For the foregoing reasons, we reverse the judgment as it relates to whether the fence line is the legal boundary between the south parcel and Nicoley‘s property and remand for further proceedings consistent with this Opinion.
{23} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
M. MONICA ZAMORA, Judge
J. MILES HANISEE, Judge
Attachment 1
Hancock West Parcel
Nicoley
Hancock South Parcel