16 N.M. 349 | N.M. | 1911
Lead Opinion
OPINION OF THE COURT.
It appears from the elaborate statement of the proceedings, that the plaintiff in the court below filed a complaint seeking the partition of a portion of the Alameda Land Grant, situated in both Bernalillo and Sandoval counties. There were no individual defendants when the cause was instituted, but the defendants were denominated, “Unknofyn heirs and unknown owners,” claiming interests in that grant. The only service had was by publication. After publication for service had been made numerous individuals represented by plaintiff’s counsel, Mr. A. B. M'cMillen, and Mr. McMillen a claimant of a. large amount of the lands by purchase or otherwise, appeared as defendants, but confessing the allegations -of the complaint and alleging heirship, they joined the plaintiff in the prayer for partition. Judgment by default was taken and Harry P. Owen was appointed referee to take proofs and genealogy, and report to the court. Testimony was taken before Mr. Owen, conducted by Mr. McMillen, attorney for the plaintiff and the defendants for whom he appeared, and the referee reported a genealogy and a statement of tlie respective undivided interests of some four j-uudred and fifty or more persons found by him to be heirs and owners of interests in the Alameda Grant. This report was confirmed and a judgment rendered by the court declaring those persons entitled to undivided interests as stated in the Referee’s report. In the last clause of the judgment three commissioners were appointed to make partition of the lands among the respective parties, and, if partition cannot be made without manifest prejudice to the interest of the parties, that the commissioners shall so report. The judgment was filed June 17th, 1907, but, while the commissioners made a report on the 5tU day of July, 1907', that the premises could not be partitioned without manifest prejudice, the report was not confirmed and a sale ordered until March 11th, 1909, nearly two years after the preliminatry judgment in partition was rendered. As will be seen by the statement of the case. Hie application for leave to intervene was made July 20th, 1907, and the order allowing intervention was granted November 20th, 1907. Between the time of the entry of the judgment in partition, July 5th, 1907, and the order confirming the Commissioners’ report and for sale of the premises, March 11th, 1909, the issues being joined between the parties and the rights of the respective parties, both as to the partition and intervention, — the same being practically consolidated, — were fully litigated and a final decree was rendered in favor of the interveners declaring them to be the owners of the lands claimed by them, and defining the amount to which each of the interveners are entitled, the terms of the final decree being set forth in the statement of the case.
The remaining seven assignments -of error all go to the merits of the case, each of them challenging the correctness of the final decree rendered by the court in favor of the intervening appellees and against the appellants. That a clear understanding of the scope of the present controversy as presented in the lower court and also by the record on this appeal, may be had, it must be kept in mind that the Alameda Grant includes -some 89,346 acres of land; that a considerable portion of these'lands, are situated in the Eio Grande Yalley above the City of Albuopierque, and a large part of the valley lands are, and for a great many years have been, occupied, improved.and cultivated. These occupied lands lie between the Eio Grande and the foothills on the west side of the valley. These lands are divided in strips, some of which are inclosed and some are not. As to these strips of occupied and cultivated land, the original petition contains the following' allegation: “Plaintiff further alleges that a portion of said tract of land in the Eio Grande Yalley lying east of the foothills and below the irrigating ditches is occupied by various persons and claimed in severalty by reason of original allotments or by adverse possession, the amount of which said land so occupied and the names of the persons claiming to own said lands in severalty and the description of the land so occupied are to plaintiff unknown. Plaintiff further asks that partition hereinafter prayed for be made subject to the rights of said occupants in severalty." The interveners in their interpleader and answer as to these same strips of land allege: “That they are the owners in severalty and in possession, respectively, • of diverse tracts of land situate within - the boundaries of the tract of land described in plaintiff’s complaint, and that they and their-predecessors in title have had possessi on of each of said tracts of land, respectively, for more than difby years last past, holding and claiming the same by virtue of deeds of conveyance, devise, grant and other assurances purporting to convey an estate in fee simple, and that no claim by suit, in law or equity, effectually prosecuted, has been set out or made to said lands within the aforesaid time of more than fifty years.” The lands sought to be partitioned by all of the parties is a large body of uncultivated and unimproved grazing land extending from the ditches on the west side of the cultivated lands to the western boundary'of the grant. As to this land, the petition for partition alleges: “That all of the lands lying west of the irrigating ditches and foothills, rpqd also a portion of the lands lying east of said irrigating ditches and foothills in the Rio Grande Valley, are held and occupied by said plaintiff and the defendants other than the unknown heirs of Francisco Montes Vigil, as tenants in common.” While the interveners makb the following allegations: “These defendants further allege that portions of the lands lying west of the irrigating ditches are not susceptible of irrigation and are only valuable and-can only be used for grazing purposes; that the tracts of land owned and held in severalty as herein alleged, embrace the lands lying west of the irrigating ditches, and also the lands tying east of said irrigating ditches, portions of which are also not susceptible of irrigation and are only valuable and can only be used for grazing purposes; that portions of said lands lying east and west of the irrigating ditches are susceptible of irrigation, that they are parts of the same lands and are embraced and described as such in the assurances of title aforesaid; that these defendants and their predecessors in title and the other diverse persons and their predecessors in title have been in the open, actual, hostile, exclusive and continuous possession of each and all tracts of land owned and held by them in severalty as aforesaid, and that all of the tract of land known as the Alameda Land Grant and described in plaintiff’s complaint, has been so owned and held for more than fifty 3rears last past; that during all said period of time these defendants and their predecessors in title and the said diverse other persons and their predecessors in title, respectively, have occupied, cultivated and improved those portions of said lands susceptible of irrigation, cultivation and improvement and have used the remainder thereof for grazing purposes, and claiming to own the whole of their individual possessions and holdings and the whole thereof, by virtue of deeds of conveyance, devise, grant and other assurances purporting to c-onvey an estate in fee simple to each and all of said lands respectively.”
From these allegations it is apparent that both parties claim the ownership of those mesa or grazing lands, the appellants as the heirs of Captain Juan Gonzales, and the appellees by fee simple title under “conveyances, devise, grant and other assurances purporting to convey an estate in fee simple,” as provided for in Section 2937, Compiled Laws 1897. At the conclusion of the trial of the cause the same was submitted upon the pleadings, proofs and arguments of counsel for the respective parties, the court rendered a final decree with voluminous findings of fact, a separate decree in favor of each of the interveners, and a general decree in favor of all the interveners and against the parties to the original cause, and appearing by way of intervention, in terms as follows: “It is therefore ordered, adjudged and decreed that the said interveners above mentioned are entitled to hold the tracts of land set off to them in the foregoing decree- in severalty, free from all claim or claims of the plaintiff in this action and hc-r co-tenants or their successors or assigns. And the said plaintiff, her co-tenants and their successors or assigns are enjoined and forever barred from claiming any.right, title or interest in or to any of the said lands above described, whether under the decree of partition heretofore entered in this cause or otherwise.” Exceptions were properly saved by appellants’ counsel to this decree. There being 86 findings of fact, a few of which, are general, substantially applying to all, while the remaining findings apply to each of the claims of the interveners, it is impractical to set them out in full in this opinion, but it will suffice to set out in full one or two of the general findings, and one of the findings as to the separate tracts, as all of those are substantially the same. “Finding No. 1. The interveners claim strips of land within the Alameda Grant very narrow in proportion to their length, most of them being ohty a few yards in width, each, and extending from the Eio Grande west to the ceja, or ridge, dividing the watershed of the Eio Grande from that of the Eio Puerco, and forming the western boundary of the grant, a distance of about sixteen miles. Most of them include land between the Eio Grande and the foothills at the west of the valley, which is adapted to cultivation,, and the land exending from the foothills to the ceja of the Eio Puerco, which is adapted to grazing only. Most of the interveners live on the easterly ends of the strips of land they claim, and cultivate such portions of the bottom lands between the river and the foothills in the respective strips as they require. Near the river the land is what is termed bosque; that is, land covered with a growth of brush, trees and wild grass, and is used for pasturage. In the valley the strips of land are to some extent separated by fences and to some extent the bosque is separated in that way from the cultivated lands. From the foothills west there are no fences, nor are there any fences at the western boundaries of the strips or of the grant. By stipulation between the parties the titles to the lands between the river and the foothills are not to be determined in this action, but that does not exclude the evidentiary bearing, if any, which the use, occupation and claims of possession and ownership of these lands by interveners, respectively, so far as they appear in evidence, may have on their use, occupation and claims of possession, respectively, of the lands extending westerly from the foothills. The last named land bears a scanty growth of grass and other herbage and is without water, it being customary and necessary to have the animals pastured there go to the Eio Grande for water at intervals of three or four days, except for short and infrequent periods when their needs are supplied by rain or snow. By agreement, or common understanding, which has ripened into a general ciistom, the interveners and their predecessors in claim' of ownership have used those westerly portions of the strips ihey claim, in common with each other and with others claiming ownership in the grant, no one attempting to keep his animals exclusively on the land he claimed nor requiring others claiming ownership to keep their animals off such land. To some extent those who were not claiming ownership of any land within the grant pastured their animals on the portion of it in question west of the foothills and on the strips claimed by the interveners with the other animals pastured there, without objection by those who claimed the strips, but without their consent, except as they failed to take active measures to prevent such intrusion. This method of irse was the one most convenient, economical and advantageous to the interveners and as to all the strips, except the northern one of Gonzales, the only practicable one because of the size and shape of the respective strips which would make the expense of fencing them greatly disproportionate to their value, the character and location of the land, the scantiness of herbage and the lack of water upon it, and for no other reasons appearing in the evidence.” Separate Finding No. 7. “Jose Chaves, one of the interveners, claims a strip of land .situated within the Alameda Land Grant, extending from the Eio Grande on the east to the ceja of the Eio Puerco on the west, and containing 80 varas in width from north to south, and bounded on the north by land claimed by Concepcion Trujillo cle Sandoval, and on the south by land claimed by Noyola Chaves; which said strip corresponds to strip No. 10 of- the list of strips hereinafter referred to, and is claimed by i'njervener and his predecessors in title by virtue of certain unrecorded deeds of conveyance purporting to convey an estate in fee .simple thereto, for more than ten years next preceding the beginning of this action, and consists of bottom land between the Eio Grande and the foothills and the mesa, or upland, extending west from the bottom land to the ceja of the Eio Puerco. Of the latter land he and his predecessors in title have had such possession as that described in Finding 1 of Fact herein for more than ten jrears next preceding the beginning of this action. On the easterly portion of said strip, that between the Rio Grande and the foothills, said intervener and his predecessors in title have lived in houses which they, built, and they have built on, fenced and cultivated such portions of said valley land as they required for their purposes, crops and stock, for more than ten years next preceding the beginning of -this action; and in connection with it, they used the portion of sa-id strip extending from it to the ceja of the Rio Puerco, as set forth in said Finding 1 of Fact herein.” Finding No. 82. “That Captain Juan Gonzales lived upon said Alameda Land Grant, and that there has always been a large number of the heirs of said. Captain Juan Gonzales living within the boundaries of said Alameda Land Grant. A portion of the heirs of said Captain Juan Gonzales who lived within said boundaries were: Mariano Gonzales, who is now living upon said grant and has lived there all his life; his father Jose Gonzales; his grandfather Santiago Gonzales; and his great grandfather Juan Gonzales, who lived on said grant all their lives; also Jiian Antonio Rodarte, who has lived on said grant all his life; also, Merced Gonzales, and her father Miguel Gonzales, who have lived on said grant all their lives; also, Fabiana Gonzales and her father, Jesus Gonzales, who have lived on said grant all their lives; also, Candido G. Gonzales and his brother, Conrado A. Gonzales, and his father, Igtnacio Gonzales, and his mother Abelina Garcia de Gonzales; also, his grandfather, Santiago Gonzales, and his great grandfather, Juan Gonzales, all of whom lived on said land grant all their lives;‘also, Florencio Gonzales, before he went to Lincoln county; also, Jose Gonzales and Manuel Gonzales and Sixta Gonzales, brothers and sister of Ignacio Gonzales, who lived on said grant all their lives.” Finding No. 83. “Tt appeared, however, and is so found, that from a time farther back than the memory of any witness extended, the greater part of the land within the limits of the grant has been claimed and occupied in strips, as set forth in Finding of Fact 1, the land from the foothills to the ceja of the Rio Puerco in common for pasturage, and the bottom lands generally by those claiming the ownership of them separate!}^ as set forth in said finding. It did not appear that the heirs of Captain Juan Gonzales or any of them living within the boundaries of the grant had ever claimed or asserted any right to, or interest in, any portion of said land grant except such strips as they claimed respectively until and except as appears from warranty deed from Juan Antonio Eodarte to A. B. McMillen for an undivided one-twenty-fourth part of said grant, dated January 8th, 1907, and by warranty deed from Merced Gonzales de Somero and Fabiana Gonzales for the undivided one-fifty-sixth part of said grant, dated February 27th, 1907; and it did not appear that they or any of them occupied or used any portion of said grant except as others within the grant occupied and used the strips they claimed, the bottom lands in severalty and the grazing lands in common, as set forth in said Finding of Fact 1.” Finding No. 74 gives a list of 162 separate strips of land, together with the name of the owner, the number of varas wide from north to south, and a number is given each tract. The terms of the separate decrees in favor of the interveners is: “It is further considered, adjudged and decreed that the intervener, Jose Chaves, is the owner in fee simple, absolute and in severalty of the following described strip,, tract and parcel of land situate within the limits of the Alameda Land Grant, bounded and described as follows: Containing 20 varas in width from north to south, and in length extending from the Eio Grande on the east to the ceja of the Eio Puerco on the west, and bounded on the north by land claimed by Felix Tafoya y Gonzales and on the south by land claimed by Jose Gonzales y Montoya; and which said strip corresponds to strip No. 20 of the list of strips referred to in the findings of fact in said cause and in the list of strips amiexed hereto and made a part of this decree.” The court, in Nos. 76, 77 and 78, found that the grant was made to Francisco Montes'Vigil; that he conveyed the land to Captain Juan Gonzales, on the 18th day of July, 1712, as alleged, and that the grant was confirmed as a perfect grant. The record contains translations of exhibits 28, -28A and 28B, purporting to be deeds and a will under which Candido G. Gonzales claims ownership of one certain tract, also, exhibits 65, 65A and 65B, purporting to be conveyances under which Francisco Lucero y Montoya claims ownership. No other testimony, either oral or documentary, is found an the record. The conveyances referred to in the findings of fact, under which interveners claim ownership, are not found as exhibits in the record, nor is there any evidence tending to dispute the findings that the interveners and their predecessors in title claimed the lands by virtue of “certain deeds of conveyance, purporting to convey an estate in fee simple.” Where the record does not bring up the evidence for examination by the court, the findings of the court upon questions of fact will not be disturbed in this court. Cunningham v. Springer, 13 N. M. 290.
There being no specific, assignment of error raising this question, and in view of the statement in the brief if counsel for appellants that “no one of the interveners, by any instrument of writing introduced in evidence, showed title in himself coining from Captain Juan Gonzales” * * * * * and the further statement that, “while in some eases the length of the possession was questionable, the appellants'did not question the right of the interveners to the land actually cultivated or inclosed by them, it must be assumed that the conveyances under which the respective interveners claimed title were before the court, and, together with such other evidence as may have been introduced, supported the findings of the lower court,” we are of opinion that the findings of the trial court are within the principle announced by this court in the cases: Hamilton Mining Co. v. Hamilton, 14 N. M. 272; Hagerman Irrigation Company v. McMurray.
This brings us to the consideration of the main question in this case, and, in view, of the large amount of litigation which has arisen and will no doubt continue to arise in this territory, the decision of the case will be of great importance. Counsel on both sides seem to desire that the case shall be decided upon its merits and not upon technical grounds, that the rightful owners of the land in controversy may have their titles passed upon and set at rest. In the partition proceeding, and prior to the setting up of the claims of the interveners, the court had rendered a preliminary decree declaring the rights of the partition claimants (the heirs of Captain Juan Gonzales), to be as follows: “The parties hereinafter mentioned and to whom the respective undivided interests in said lands are decreed, are the owners of said tract of land in fee simple, as tenants in common, in proportions as indicated by the fractions set opposite their respective names, and. that no person or persons other than said parties hereinafter mentioned have any interest in, or title to, said land or any part thereof, in possession, remainder, reversion or otherwise, except as hereinbefore excepted,” but at the close of the case, after rights of the interveners had been fully litigated, the court rendered the following final decree: “It is therefore ordered, adjudged and decreed that the said interveners above mentioned are entitled to hold the tracts of land set off to them in the foregoing decree in severalty, free from all claim or claims of the plaintiff in this action and her co-tenants or their successors or assigns.- And the plaintiff, her co-tenants and their successors or assign are enjoined and forever -barred from claiming any right, title or interest in or to any of the land above described, whether under the decree of partition -heretofore entered in this cause or otherwise.” Obviously these decrees are in direct conflict, inasmuch as they relate to the same land, at least to a considerable extent, and the court, recognizing- this, set aside the former decree.
From the review of the case thus far, it is difficult to see how the court in the final decree rendered in this ease committed error unless Section 2937, supra, be either ignored or declared void. No attack is made upon the validity of the section, nor any suggestion that it has been repealed, but a different construction is contended for. The construction sought to be placed upon this section by appellant’s counsel is, in his own language, as follows: “Our view of the meaning of that statute is that no one can claim under it except those who are claiming through a grant from Spain, Mexico, or the United States, and that in order to show that he has such claim he must trace by documents a derivative chain of title from one of those sources. In no other way can the peculiar wording of this statute be given meaning, in other words, it is the purpose of that statute to cure titles which are imperfect, because some deed in the chain of title is imperfect.” This construction seems to require so much more than the section specifies, as to place it in direct conflict with it. The conveyances required by the section are “deed .or deeds of conveyance, devise, grant or other assurance purporting to convey an estate in fee simple.” One deed or a devise by will seems to meet the requirement, provided it purports to convey a fee simple title. Indeed, the construction contended for, carried to its logical conclusion, would render it impossible to obtain any benefit whatever under the statute, and it seems to us that such a construction is plainly inconsistent with the remedial purpose and intent of the legislature which 'enacted it, as indicated b_y the unambiguous language used. Whore language used in a statute is plain and unambiguous, it is not the subject of construction, [t is further contended, “that in order to acquire title by adverse possession all of the requirements above mentioned are absolutely essential, and the courts of this territory have steadily adhered to that rule. That in order to constitute adverse possession it must lie actual, open, visible, notorious, continuous, exclusive, hostile, and under claim of right.” Tin's is a correct statement of the law as to the Acquirements of title by adverse possession under ordinary limitation statutes such as arc commonly enacted, where title enures simply by reason of a limitation and not by virtue of a fee simple title provided as an affirmative Tight, as in Section 2937. Section 2938, Compiled Laws 1897, is a general statute of limitation, pure and simple, with direct application to titles sought to be ac(jtiired by adverse possession ior the same length of time required by Section 3937, and both of these sections formed parts of Chapter 17, Laws 1858. Section 3938 was Section 3 of Chapter 17, Laws of 1858. This section has been materially amended by two legeisl atures, and, as amended, is as follows: “Section 3938. No person or persons, nor their children or heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, against any one having adverse possession of the same cpntinuousiy in good faith, under color of title, but within ten years next after his, her or their right to commence, have or maintain such suit shall have come, fqllen or accrued, and all suits, either in law or equity; for the recovery of any lands, tenements or hereditaments so held, shall be commenced within ten i^ears next after the cause of action therefor has accrued: Provided, that if any person entitled to commence or prosecute such suit or action is, or shall be, at the time the cause of action therefor first accrued, imprisoned, of unsound mind, or under the age of twenty-one years, then the time for commencing such action shall in favor of such persons be extended so that they shall have one year after the termination of such disability to commence such action, but no cumulative disability shall prevent the bar of the above limitation, and this proviso shall only apply to those disabilities which existed when the cause of action first accrued, and to no other. ‘Adverse possession’ is defined to be an actual and visible appropriation of land, commenced and con-tinued under a color of title and claim of right inconsistent with and hostile to the claim of another; and in no case must ‘adverse possession’ be considered established within the meaning of the law, unless the party claiming adverse jpossqssilon, Ms predecessors or grantors, havjb for the period mentioned in this section continuously paid all the taxes, territorial, county 'and municipal, which during that period have been levied upon the land or interest claimed, whether assessed in his name or that of another.”' This section was amended by Chapter 63, Laws 1899, but the only substantial change made was the addition of the following provision : “Against any one having adverse possession of the same continuously in good faith, under color of title, and who has paid taxes lawfully assessed against the same,” and fixing one year instead of three as to those under disabilities specified. In 190S, this section was further amended by the addition of the significant clause beginning with the definition of adverse possession in the section above quoted. It will be seen, therefore, that while section 2938 has been amended so as to require color of title in good faith, payment of taxes, and made specifically an adverse possession statute, and the term ‘adverse possession
The contention, of appellant’s counsel, which is deserving of most serious consideration, is that announced in the case of Hunnicutt v. Peyton, 102 U. S. 333, in which the court says: "Where the rightful owner is in the actual occupancy of a part of his tract, lie is in the constructive and legal possession and seisin of the whole, unless he is disseised by actual occupation and dispossession, and where the possession is mixed, the legal seisin is according to the legal title, so that in the case at bar there could be no constructive possession on the part of the defendant or his grantors, even if that might exist if he has had actual possession of a part, and no one had been in posession of the remainder.” This doctrine has been adopted and announced by this court in the case of Jenkins v. The Maxwell Land Grant Co. et al., 15 N. M. 281, 107 Pac. 739, and other cases. It seems to have been applied by the courts in all of the applicable cases which have been examined wherein claimants have sought, by adverse possession to hold lands, even against the owner of the true title. It will be observed, however, that these are cases where the assertion of title by adverse possession is based upon statutory provisions similar to those of Section 2938, supra, which bars a right by action after the statutory period of time has elapsed. The claimants by adverse possession in these cases do not assert title, but merely the bar of the statute denying ,a right of action even to the owner of the true title. Section 2938, Compiled Laws 1897, is the law of this territory upon which claims of adverse possession are based, and is purely a statute of limitation which does not purport to give an affirmative title in fee simple, as does Section 2937, above referred to. The case of Probst v. Presbyterian Church, 129 U. S. 182, is instructive upon this point. This case arose in the City of Santa Fe, under Section 81, Compiled Laws of 1884, which is idptilical with Section 2938, Compiled Laws 189?', prior to its amendment. At this time this section did not require either color of title or payment of taxes to .be shown in support of the claim of adverse possession. The Supreme Court of New Mexico substantially held that possession for the statutory period was insufficient, but that color of title was also required. The Supreme Court of the United States, upon appeal, reversed the lower court, • using the following language: “Nor is it necessary that the defendant shall have a paper title under which he claims possession. It is sufficient that he asserts ownership of the land, and that this assertion is accompanied by an uninterrupted possession. Tt is this which constitutes adverse possession, claiming himself to be the owner of the land. This is a claim adverse to everybody else, and the possession is adverse when it is held under this claim of ownership, whether that ownership depends upon a written instrument, inheritance, a deed, or even an ¡instrument which may not convey all the lands in controversy. If defendant assorts his right to own the land in dispute, asserts his right to the possession, and his possession is adverse and uninterrupted, it constitutes a bar which the statute intended to give to the defendant.” The latest declaration of this court upon this subject is in the case of John Jenkins v. The Maxwell Land Grant Co. et al., 15 N. M. 281, which case is also instructive upon the question of mixed possession.' While the case was a comparatively recent one, it was claimed that the inception of the adverse possession was prior to the amendment of the statute requiring color of title and payment of taxes to be shown, and this was not questioned. Upon the question of mixed possession, however, the defendants invoked ihe doctrine laid down in the case of Hunnicutt v. Payton, supra, and it was sustained and applied. From the facts in that case it appeared that Jenkins lived and made small improvements upon a tract of about thirty acres of land, cultivated about five acres, but in addition he claimed, by adverse possession, more than six thousand acres of timber and grazing lands, not by fencing or marking the boundaries thereof, but because he and his family rode around what he claimed to be his boundaries and drove the stock of other parties from the lands. It further appeared, however, that the Maxwell Land Grant Company was the owner of the true title and that during all of the years Jenkins resided there the company had headcprarters and agents in Raton,, which was upon the grant, and that the agents'of the companjf mined and prospected for coal, and permitted other parties to do so also, upon the land and near Jenkins’ house; that they leased portions of the Jenkins land, as well as other portions of the grant, grazed large herds of stock upon the lands, in short, the agents of the true owner used the lands, as freely as if Jenkins had not been there. The court properly held in that case that the owner of the true title, by its agents, was in actual possession of a portion of the grane and therefore its seizin extended to all of the grant not actual„ly occupied by Jenkins, which could not in any event extend to more than the thirty acres upon which Jenkins lived. As was said in the Hunnicutt case: “The ¡eason is plain. Both parties cannot be seized at the game time of the same land under different title. The law, therefore, adjudges the seizin of all that is not in the actual occupancy of the adverse party, to him who has the better title.’’
Now, the fact that neither of these amendments were made applicable to the next preceding section, but .were made specifically applicable to Section 2938, is qiiitc significant and we think indicates the intention of the legislature not to make these requirements applicable lo the section of the statute which confers a fee simple title as •provided for in Section 2937.
In this case, under the findings of fact, the interveners claim, severally, strips of land “under deeds of conveyance purporting to convey an estate in fee simple,” accompanied by residence and cultivation as to bottom lands, and the timber and grazing lands were used for the only purpose for which they were suitable, as the findings state, for more than ten years. These conveyances define the boundaries of such strips, from which it appears that the timber and grazing lands are included in the boundaries, as well as the residence and cultivated lands. The interveners, being actual occupants and in possession of the lands embraced in their deeds, would have the right to use them in such manner as they saw fit, and we see no reason why they should not use them as other owners of deeded lands may do.
The final decree has a provision as to each of the interveners similar in terms to that of Jose Chavez, which is as follows: “It is further considered, adjudged and decreed that the intervener, Jose Chavez, is the owner in fee simple absolute and in severalty of the following described strip, tract and parcel of land situate within the limits of the Alameda Land Grant, bounded and described as follows: Containing 20 varas in width, from north to south, and in length extending from the T?io Grande on rhe east to tlie ceja of the Rio Puerco on the west, and bounded on the north by land claimed by Felix Tafoya y Gonzales, and on the south by land claimed by Jose Gonzales y Montoya; and which said strip corresponds to strip No. ¿0 of the list of strips referred to in the findings o£ fact in said cause and in the list of strips annexed hereto and made a part of this decree.” The interveners, by this decree, hold their respective tracts of land as “owners in fee simple absolute and in severalty” to the exterior boundaries of the description given in this deed, there being no limitations in the deeds.
In order to invoke the doctrine laid down in the case of Hunnicutt v. Peyton, supra, it is essential that the owner of the true title, or his heirs or agents, shall he in actual possession of some part of the lands while claiming the whole of the lands. It is clear, from Finding of Fact No. 83, that the heirs of Juan Gonzales who resided on this'land, did not claim to own the whole grant, nor even the common lands. Upon this point the court found as follows: “It appeared,, however, and is so found, that from a time farther hack than the memory .of any witness extended, the greater part of the land within the limits of the grant has been claimed and occupied in strips, as set forth in Finding of Fact 1, the land from the foothills to the ceja of the Rio Puerco in common for pasturage, and the bottom lands generally by those claiming the ownership of them separately, as set forth in said finding. It did not appear that the heirs of Captain Juan Gonzales or any of them living within the boundaries of the grant had over claimed or as-serted any right to or interest in any portion of said land grant except such strips as they claimed respectively until and except as appears from warranty deed from Juan Antonio Rodarte to A. B. McMillen for an undivided one-twenty-fourth part of said grant, dated January 8th, 1907, and by warranty deed from Merced Gonzales de Romero and Fabiana Gonzales for the undivided one-fifty-sixth part of said grant, dated February 27th, 1907; and it did not appear that they or any of them occupied or used any portion of said grant except as others within the grant occupied and used the strips they claimed, the bottom lands in severalty and the grazing lands in common, as set forth in said Finding of Fact 1.” From this finding it appears that Vincente Montoya, appellant, and the grantors of McMillen were strip' owners only and never made any claim to ownership of any lands of the Alameda Grant other than described in the small strips on which they respectively resided. In other words, they held their lands just as they held their traets. Therefore, they did not claim to own the whole grant, or all the common lands thereof as heirs of Captain Juan Gonzales, but only-claimed to own and be in possession of the small strip upon which their residences were. If this is true, they were not in position to invoke the presumption insisted upon by appellant’s counsel, nor are they within the doctrine announced in the Ilunnicutt case. Indeed, the interveners, being in possession of a part, claiming certain strips of land described in deeds of conveyance, are the parties to whom the benefit of this presumption would enure, to the extent of the lands embraced within the exterior boundaries of their respective deeds.
There are two tracts of land claimed by Candido G. Gonzales and Francisco Lucero y Montoya as to which the findings are somewhat different, in this: that neither of them ever lived upon or improved any portion of the lands described in the conveyances under which they claim ownership. As to the Gonzales tract, which is the last of several tracts he claims, the following finding of fact was made by the court: “The Bio Grande now runs close to the foothills by this land, and there is practically no meadow land between the foothills and the river. Formerly there was a strip of bottom land between the Bio Grande and the foothills which formed a part of the tract herein claimed by the intervener, but neither he nor his predecessors in title, nor any other person so far as the evidence shows, ever cultivated, enclosed, erected buildings or lived upon any part of said tract, or made any use of it except for grazing, as set forth in Finding of Fact 1. The court further finds that the description of the real estate in said Exhibit No. 28 was originally of a tract of land 610 varas wide, and that said description was so altered as to describe the land as being 1610 varas wide; but the court is unable to find when said alteration was made, except that it was made after the original instrument was written, in a different ink, and was made some time prior to the year 1883.” While it may be that lapse of time may have cured defects suggested by appellant’s counsel to the documentary evidence of title admitted at the trial, the fact that no actual possession was ever established on any portion of this tract we are •lisposed to regard as fatal to a recovery by G-onzales of this particular tract, and the same may be said of the Lucero y Montoya tracts covered by Exhibits 65, 65A and 65B, as no actual possession of any part of those lands was established although part of the lands were capable of cultivation. We have just sustained the possession of the interveners to the mesa lands adjoining the valley land, by reason of its use for grazing purposes, but this was 'done upon the ground that by reason of actual residence, cultivation, improvements, and other visible occupancy of a part of the lands embraced in their deeds, by conclusive legal presumption this possession extended to the whole tract embraced in the conveyances. But, even under Section 2937, deeds alone are not sufficient, unaccompanied by actual occupation of at least a part of the tract, to mature a fee simple title in ten years. The possession is as essential to that end as the deed, but both are necessary. As to those tracts, there never has been actual visible possession of any part of the lands, therefore, conceding that the conveyances were valid, fee simple title could not mature under the circumstances of this case. Bergere v. U. S., 168 U. S. 66; Whitney v. U. S., 168 U. S. 529.
A peculiar and quite unusual situation exists in this case. A decree of partition was entered and the unoccupied lands were declared to be the property of the appellant and a large number of the heirs and assigns named in the decree. The decree did not state that they were in possession of the lands, but did declare them to be owners of certain interests therein. This decree was entered before the rights o£ the interveners were declared. This decree was not formalty set aside by the court, but, in effect, was modified to the extent of the lands awarded to the interveners in the final decree upon the intervention. The effect of the decree in partition is to award to the partition claimants' the ownership of all lands involved in this proceeding not carved out of the Alameda Grant by the decrees in favor of the interveners. Fee simple title not having matured in favor of Candido G. Gonzales and Francisco Lucero y Montoya to these particular tracts, the decree in partition is operative upon those lands and awards them to the partition claimants, hereby divesting those interveners, Gonzales and Lucero, of any interest therein.
We (To not deem it necessary to consider the-other questions raised as to these lands. The assignments of error will he overruled insofar as they challenge the correctness of the decree of the court in favor of the interveners and the decree will he affirmed insofar 'as it relates to all of the tracts owned by the interveners, hut will he sustained as to the two last mentioned tracts and as to rhose the decree will he reversed and the cause will he remanded for further proceeding in accordance -with the views herein expressed.
Dissenting Opinion
DISSENT.
In view of the matters raised on the rehearing, T am unable to adhere to the former opinion and therefore withdraw m3’ concurrence and here indicate my dissent because of the cpiestion raised upon reargument.
Rehearing
MEMORANDUM OPINION ON REHEARING.
OPINION OF THE COURT.