*1 stated which must be tinent to
separately.” SANCHEZ, Plaintiff-Appellee Manuel A. Cross-Appellant, requires findings and just quoted The rule and this no there was after trial. Here effect, court, in ruled so because the
was DALE BELLAMAH HOMES OF NEW MEX- INC., ICO, corporation, Defendant- of fact material issue that there was no Appellant Cross-Appellee. Leavy, 149 Lindsey v. In be determined. Cir.1945), held it was (9th F.2d No. 7757. presup- “[sjince summary Supreme Court New Mexico. triable issues poses are no there March fact, conclusions findings fact rendering judg- required in law are not Rehearings July 11, Denied * * * and enter to make ment . Failure not This findings and error.” conclusions the 1946 amend-
case decided before
ment to Rule which amendment Federal findings of fact
specifically provided that required in law are not
and conclusions of here
summary judgment. It is included approve its rationale.
because we
Lastly, point, ap- for its fourth summary judgment
pellant contends that the supported by
granted the trial court a mere This is substantial evidence. point. have of the first
restatement pleadings supporting
before us to hold that the continue
affidavits we summary granting did not err -in
trial- court
judgment. ruling court is affirmed. of the trial
It i’s so 'ordered.
- COMPTON, JJ., CHAVEZ; NOBLE OMAN, Judge, LaFEL Court ’E.
Appeals, concur. <
NOBLE, Justice.
twenty-acre
A.
owns a
Sanchez
Manuel
southerly side of Santa
of land at the
tract
access was
Fe
Al-
leading
meandering
road
dirt
buquerque-Santa
highway across vacant
Fe
New
Dale Bellamah Homes
land.
“Bellamah”)
(hereafter
Mexico
termed
lying
tract
between
bought this vacant
highway and in
and the
Sanchez land
housing-
development as a
course
its
road,,
project
the access
built houses across
Two
effectively closing
to travel.
Bellamah,.
against
returned
verdicts were
trespass
(1) assessing damages for
land,,
of dirt from the Sanchez
removal
wrongful
in-
fixing
(2)
*3
Bellamah
terference
the access road.
with
following
appealed
has
from the
only
jury’s
attacks
the
the
verdicts and
of
finding
an easement
that Sanchez had
egress.
roadway
ingress
a
for
prescriptive right
founded'
A
though
upon
presumption
grant even
a
aof
In addi
may never have been one.
there
by use-
tion,
prescriptive right
a
is obtained
depend upon a statute..
alone and does not
uninterrupted,,
acquired by
open,
an
It
use,
notorious,
under a
peaceable,
adverse
right,
period
for a
of ten
claim of
continued
imputed knowl
years
knowledge or
with the
Houk, Albuquerque,
ap-
for
. Marrón &
Sawyers,
edge
41
of the
Hester v.
owner.
pellant.
536;
497,
646,
71
112 A.L.R.
N.M.
n
Andrews,-
Company,
Tabet
N.
Seth,
Castillo
Lumber
75
Montgomery, Federici &
v.
Williams,
492,
Sena,
Fe,
appellee.
M.
52Q
683,
173, 87 P.2d
as well as Hester
43 N.M.
So.2d 697 (Fla.App.1960). This court
rule in
Castillo also settled the
this state
Hester
Sawyers, supra,
v.
firmly estab
charged
knowledge
the owner is
with
that
lished the
proof
rule that
such
notorious,
open, adverse,
peaceable,
of an
raises the presumption but that when the
uninterrupted
acquies-
which
use from
has
user
been
prescriptive
continued for the
implied.
Thompson
cence is
on Real
period,
presumption
the
grant
of a
con
Property,
Replacement,
33S and 340.
§§
See, also,
clusive.
Castillo v. Tabet Lum
,
here,
Hester,
question
The
as in
is wheth-
Company, supra.
ber
er the user was
under a claim of
adverse
Bellamah concedes that
this road
right
only permissive.
or was
Bellamah
has been in
existence
traveled at will
that
contends
absent evidence of a distinct
by Sanchez and
thirty
others for more than
positive
by
assertion
Sanchez of a
years;
continuous,
that
the use has been
right hostile to
the owner
was
open, uninterrupted, peaceable and noto
brought
acts,
home
himto
or
words
rious; but it
way
contends that the
in this
support
verdict lacks
in the
substantial
evi-
Hester,
as in
open
extends over
dence.
land,
unenclosed
creating
exception
thus
an
general
rule that such use will be
great weight
of the decisions
presumed
and under a
adverse
claim
proof
notorious,
open,
hold
of an
con
right.
person
Plester recognized that a
uninterrupted
tinuous and
user
using way
large
open
bodies
over
period,
prescriptive
without evidence
acquire
perma
unenclosed lands cannot
began,
presumption
how
raises a
right
nent
unless his intention to do so was
right.
use was
a claim
adverse and under
plainly ap
known to the owner or was so
Kosich,
LaRue v.
Ariz.
parent
knowledge
from acts that
should be
642;
Pierce,
Trueblood
116 Colo.
imputed
But,
to him.
the Hester rule was
1270;
179 P.2d
171 A.L.R.
Sinnett
Maestas,
limited Maestas v.
Werelus,
Idaho
it from OPINION land, approximately distance Sanchez buildings were mile, and some 72 one-half NOBLE, Justice. varying in radius an within area located in appellee argues mo- The Sanchez his The road- three-eighths to mile. one from dispose rehearing for that we did tion plainly shown
way well defined and is presented by cross-appeal. II of Point his Geological map prepared in U.S. on the in trial He there asserted error the court’s circum- these think that under punitive refusal to instruct on issue of the stances, predecessors its Bellamah and request damages, but for new limited his charged knowledge with or were either had punitive question to on one “the the road and knowledge of Sanchez’ use of damages alone.” They claim possible his to an easement. have inquiry which would failed to make questions on Since reviewable way. right claim Un- his to the revealed presented rehearing are limited to those circumstances, of the the owner der such points upon re originally the relied charged is with notice of servient tenement versal, by Supreme matters authorized inquiry have dis- which an would facts ,and in errors 18(1) Court Rule asserted Sage, N.M. Mutz v. Le closed. rehearing. Pitek Mc motion for the Anno. A.L.R. Guire, 647, 1 A.L.R. said, has it follows From what been cross-appellant’s 2d the mo issue on appealed af- judgment be from shall cross-appeal rehearing tion for on the firmed. In view of determination of our whether, limited to if the trial court erred appeal, unnecessary it is to consider denying puni of the issue of submission cross-appeal challenges certain damages jury, a new trial tive should instructions. punitive solely be directed on issue of damages. appealed is affirmed.
It is so ordered. We have said that where separable damages issue distinct COMPTON, JJ., concur. CHAVEZ and proxi negligence from the issues of MOTION REHEARING ON FOR cause, required mate be and reversal PER CURIAM. cause of errors the amount of awarded, appears error as Except following for the no addition where issues, filed, may opinion originally both to other a new trial limited motions of *5 present. damages error granted, to the in which the tive should be if (2) issue Kazmierczwk, 421, granted, 68 N.M. amount Baros v. thereof. Atchison, F. T. P.2d Vivian v. & S. We therefore that conclude under the
Ry., N.M. v. Sellers facts of it this clear that a new Han Skarda, P.2d on the damages issue of alone could not be berry Fitzgerald, 72 N.M. prejudice had without to defendant. However, each of those involved the rehearing We find the motion for on personal injuries damages issue of cross-appeal to be without merit it will appeal which on determined to be ex- were be denied. perceive dif- cessive. a considerable judgment appealed from should limiting ference between a retrial to the affirmed. damages issue under the facts those submitting puni-
cases and of the issue of It is so ordered. exemplary damages tive or alone. McGarr Cigar Co., E. V. Schnoor 125 Kan. COMPTON, JJ., CHAVEZ concur. appellate 266 P. To warrant an in court directing a single new trial limited to the punitive
issue damages, it must not
appear damages that of such issue
entirely separate from that of and distinct
liability compensatory damages, Anno.
85 A.L.R.2d 8 and but must §§ appear single can likewise such issue SIVAGE, Plaintiff-Appellant, Viola be determined without reference to other prejudice party. and without issues to either LINTHICUM, Defendant-Appellee. Troies carefully We have record reviewed the No. 7903. exemplary this case while are punish to assessed defendant and Supreme Court of New Mexico. compensate plaintiff, to for a loss July 25, 1966. they separate to that extent are and distinct compensatory damages, a review of evidence this case convinces us liability respecting much of testimony compensatory damages would be neces--
sary proper enable to reach a ver-
dict (1) as whether exemplary puni- or