12 N.M. 445 | N.M. | 1904
OPINION OF THE COURT.
We therefore affirm the lower court in its findings of fact.
Without setting forth the law how to establish title by prescription, which has been so thoroughly and completely settled in this as well as other jurisdictions, Ave reaffirm the opinion of this court in Johnson et al. v. City of Albuquerque, 72 Pac. 9.
Without .discussing the proposition as to whether or not the: defendants in the court below waived their right of objection to the overruling of the demurrer to the complaint, we think the court committed no error in so doing.
In the case of Ely v. Railroad, 129 U. S. 291, the Supreme Court of the United States construed the statutes of Arizona, two sections of which are as follows:. “There shall be in the Territory but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs.” “An action may be brought by any person against another who claims an estate or interest in said real estate adverse to him, for the purpose of determining such adverse claim.” The complaint in the case last cited was filed by one Ely against the New Mexico & Arizona Railroad Company and others, stating that the plaintiff was the owner in fee of the land in controversy, giving the source of title and describing it, and that the defendants and each of them claimed an estate or interest in and to the said real property adverse to the plaintiff; that the claims of the defendants and each of them were without any right, and that the defendants have no right, title or interest whatever in the lands, and prayed that defendants and each of them be required to set up in nature of his claim if he had any, and that all adverse claims of the defendants be determined by the court, and that by decree it be declared and adjudged that the defendants have no right or interest in the real estate and that plaintiff’s title be declared good and valid, and a further prayer that defendants be enjoined and barred from asserting any claim whatever in or to said premises adverse to the plaintiff, and for such other and further relief as agreeable to equity. To this complaint defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained and judgment given for the defendants, which judgment was affirmed by the Supreme Court of the Territory of Arizona, from which judgment an appeal was taken to the Supreme Court of the United States, which court, after reciting the two sections of the Arizona statutes hereinbefore quoted, stated: “The manifest intent of the statute, as thus amended, is that any person owning real property, whether in possession or not, in which any other person claims an adverse title or interest, may bring an action against him to determine the adverse claim and to quiet the plaintiff’s title. It extends to cases where the plaintiff is out of possession and the defendant is in possession, and in which at common law the plaintiff might have maintained ejectment. An allegation in ordinary and concise terms of the ultimate fact that the plaintiff is the owner in fee is sufficient, without setting out matters of evidence, or what have been sometimes called probative facts, which go to establish that ultimate fact; and an allegation that the defendant claims an adverse estate or interest, is sufficient, without further defining it, to put him to a disclaimer, or to allegation and proof of the estate or interest which he claims, the nature of which must be known to him and may not be known to the plaintiff. These conclusions accord with the decisions of the courts of California and Indiana under similar statutes, from one of which the present statute of Arizona would seem to have been taken. 16 Cal. 220; 60 Ind. 383; 99 Ind. 269.” The court in conclusion says: “The result is that, the complaint in this case is sufficient to authorize the court to determine the claim of the defendants and the title of the plaintiff, and also, if the facts proved at the hearing shall justify it, to grant an injunction or other equitable relief,’' This case was reaffirmed in Hammer v. Garfield Mining and Smelting Company, 130 U. S. 291, and cited with approval in Cameron v. U. S., 148 U. S. 305.
These authorities make it very clear that the trial court committed no error in overruling the demurrer. For the reasons given the judgment of the lower court is affirmed and it is so ordered.
