15 N.M. 281 | N.M. | 1910
OPINION OP THE COURT.
Mr. Justice McFie, who tried this case in the District Court, prepared an opinion in which the testimony was carefully analyzed and the law applicable to the case was clearly stated. In view of that fact we do not consider it necessary to do more than review the evidence generally and outline the reasons why, in our opinion the judgment must be affirmed.
“Well, it was a paper about a foot long and ten inches wide, taken out of a book and it stated something like this: I don’t remember very well; I have this day sold to John Jenkins my right and, title,, or something like that, or quit claim deed, to the tract of land, mentioning the main mounds and every mound on it. And then at the bottom of the first was, transferred from Dillon to Boyd and Runyan, and all the three names were on it.”
Nothing could well be vaguer or more uncertain than the description of the land alleged to have been conveyed, and there is no evidence whatever that the deed was ever acknowledged or recorded.
“And he (the plaintiff) also hereby positively declares and states that he does not occupy any other lands or improvements nor that he claims any rights or interests in or to any other lands, premises or improvements situated or embraced within the Beaubien and Miranda or Maxwell Grant.
“And the said John Jenkins in further consideration of the said sum of monejq so as aforesaid paid to him, does hereby on this day give possession to, and does hereby release, convey, and quit-claim unto the said trustees all his right, title and interest in .and to the lands embraced within the Beaubien and Miranda Grant as patented' by the United States, by letters patent dated May 19th, 1879, and all improvements on the game or -any part thereof; and he also hereby covenants and agrees to and with the said trustees that he will not hereafter, in any -manner, trespass upon, nor occupy nor locate upon any portion said grant, except under rights derived, by purchase or contract from the Maxwell Land Grant Company or those deriving title through it.”
On the plaintiff’s behalf it was urged that his signature to this instrument was obtained by fraud, but the trial court found otherwise and we are not disposed to disturb that finding.
The plaintiff laid great stress upon the contention that during the entire period of his occupancy his cattle ranged over this tract, bnt the court found that during the same period cattle belonging to the defendant company and to an organization known as the Sugarite Cattle Outfit as well as to other persons also grazed on this range. On this point the Supreme Court of the United States has said: (Bergere v. U. S., 168 U. S. 66, 79).
“In regard to proof of the fact of pasturing cattle as evidence of an adverse possession upon which to base a claim of title, we have held that such fact is of very slight weight when applied to cases arising under alleged grants of land of the nature of the one under consideration. In the case of Whitney v. United States, alreadj^ above cited, 167 U. S. 529, 546, this court said, speaking through Mr. Justice Brown, as follows:
4 “The claimant also relies upon* a long continued adverse possession of this land, maintained for nearly 170 3rears from the date of the grant, and nearly eighty years from the date of the testimonial issued by the alcalde mayor, de Baca. Had it been shown that this possession was complete, adverse and undisputed during the whole life of this grant, such possession would probably be regarded as complete evidence of title. Nor are we disposed to deny that the fact that the Luceros and their descendants pastured stock upon these lands is. evidence of such possession, but in order to make it of any particular weight it should be shown to have been exclusive, and that no other person pastured or had the siame right to pasture upon these lands. The proceedings in the case first above mentioned, of the intrusion of the Romeros, indicate the lands to have been held in common, and to have been subject to pasture by the Indians .and other residents of that neighborhoód. Under such circumstances, it should be made to appear that, the rights of Lucero and his descendants were exclusive in this particular. In addition to this, however, it is a fact so notorious that we may take judicial notice of it, that mere pasturage upon these western lands is very slight evidence of possession. The court below was of the opinion that ‘from a practical standpoint the grazing of stock in this country has no value as evidence of practical location/ In view of the fact that all, or nearly all, of the testimony respecting possession is given by witnesses who are descended from Lucero, or connected with his family, or are interested in the litigation, and the possession relied upo-n is not shown to have been exclusive or inconsistent with the use of this vast tract as a pasturage common to all the dwellers in that neighborhood, we think the court did not err in refusing to give it weight as evidence of title.’
“ ‘These remarks apply with great force to this case, so far as the evidence herein goes to show actual possession by reason of the pasturing of stock, which is really all the evidence of possession the case affords. It is entirely lacking in! evidence of an exclusive possession under a claim of right, and the testimony is consistent with a mere occupancy of but a small portion of the land by Baca and his servants for purposes of pasturage and without claim of further or exclusive right or title.’ ”
It further appears that in the period during which the plaintiff contends that his title was being acquired the defendant company leased portions of the land in controversy to various individuals and organizations including the plaintiff himself.
Such in substance is the evidence upon which the plaintiff’s title by adverse possession is based.
The elements necessary to establish title by adverse possession are considered by the Supreme Court in Ward v. Cochran, 150 U. S. 597, 606, where the following language was used:
“In French v. Pearce, 8 Connecticut, 439, 440, it was said that ‘it is the fact of exclusive occupancy, using and enjoying the land as his own, in hostility to the true owner, for the full statutory period, which enables the occupant to acquire an absolute right to the land.
“In Sparrow v. Hovey, 44 Michigan 63, a refusal of the court to charge that, when the title is claimed by an adverse possession, it should appear that the possession had been factual, continued, visible, notorious, distinct, and hostile,’ but merely charging the jury that the possession ‘must be actual, continued, and visible,’ was held erroneous. In Pennsylvania, 'it has been repeatedly held that, to give a title under the statute of limitations, the possession must be "actual, visible, exclusive, notorious and uninterrupted/ Johnston v. Irwin, 3 S. &. R. 291; Mercer v. Watson, 1 Watts 330, 338; Overfield v. Christy, 7 S. & R. 173.
""In Jackson v. Berner, 48 Illinois 203, it was held that an adverse possession sufficient to defeat the legal title, where there is no paper title, must be hostile in its inception, and is not to be made out by inference, but by clear and positive proof; and further, that the possession must be such as to show clearly that the party claims the land as his own, openly and exclusively.
"In Foulk v. Bond, 12 Vroom, (41 N. J. Law) 527, 545, it was said: "The principles on which the doctrine of title by adverse possession re.sts are well settled. The possession must be actual and exclusive, adverse and hostile, visible and notorious, continued and uninterrupted/
""It was held in Cook v. Babcock, 11 Cush. 206, 209, that "When a party claims by a disseizin ripened into a good title by the lapse of time as against the legal owner, he must show an actual, open, exclusive and adverse possession of the land. All these elements are essential to be proved, and failure to establish any one of them is fatal to the validity of the claim/
"In Armstrong v. Morrill, 14 Wall. 120, 145, this court, speaking through Mr. Justice Clifford, said: "It is well settled law that the possession in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive and adverse. Such a possession, it is conceded, if continued without interruption for the whole period which is prescribed by'the statute for the enforcement of the right of entry, is evidence of a fee, and bars the right of recovery. Independently of positive statute law, such a possession affords a presumption that all the claimants to the land acquiesce in the claim so evidenced/ Hogan v. Kurtz, 94 U. S. 773, is to the same effect. * * * *
""Tested by these definitions, it is obvious that if the title relied on in this case, by the defendant below, was fully described and characterized by the special verdict, it was defective in two very essential particulars, in that it was not found to have been actual and exclusive. A possession not actual, but constructive; not exclusive, but in participation with the owner or others,, falls very far short of that kind of adverse possession which deprives the true owner of his title."
T,he possession was not hostile. The defendant company, through its officers and agents, frequently exercised acts of ownership over the property. It is at least doubt-ful whether any one of the five necessary elements was-present. Certainly the three we have mentioned were not.
The remaining exceptions, relate (1) to the conclusions of law and (2) to the admission of certain testimony. In neither instance do we regard the exceptions as well taken. The judgment will be affirmed.
