Lea County Water Co. v. Reeves , 43 N.M. 221 ( 1939 )

The Commissioner of Public Lands of the State of New Mexico granted to appellant (plaintiff below) a right of way for a pipe line across certain grazing lands in Lea County. Amos Reeves, defendant below, owned leases "for grazing purposes only" upon the land over which the appellant was granted the right of way. When appellant attempted to go upon the land in question to begin construction of the pipe line upon the right of way, Amos Reeves prevented appellant from going upon the land unless certain demands for damages were met. Appellant brought suit asking that the court issue its temporary order restraining the defendant from preventing it from going upon such land to make surveys, dig ditches, string pipe and do all other things necessary and incident to the enjoyment of its rights under such easement, and that after due notice given defendant, such restraining order be made perpetual. Defendant answered denying that appellant was entitled to a right of way across certain described lands, but admitted that it was entitled to a right of way across certain other described lands; and admitted that he had prevented appellant from going upon the land unless certain damages were paid, but alleged that the demand was not unreasonable. In his answer by way of new matter defendant alleged that he owned four grazing leases from the State of New Mexico; that two of said leases contain an express reservation to the Commissioner of Public Lands to grant rights of way and easements across the land embraced in the leases for pipe lines, but that there is no such reservation contained in the other two leases and that the Commissioner of Public Lands had no right to grant to appellant a right of way across the lands embraced in the two leases, which were silent on the matter of reservations. Defendant alleges damage by reason of the laying of such pipe line under the temporary restraining order at twenty-five cents per rod. Appellant replied denying that the Commissioner of Public Lands did not have a right to grant the right of way and easement.

Upon a hearing, the court ordered the restraining order continued, and directed that the question of damages be submitted to a jury, the jury to act in an advisory capacity to the court. The jury returned a verdict for appellee in the sum of $450. The court adopted the verdict of the jury. Appellant moved for a new trial, which was denied, and judgment was entered, from which this appeal was taken.

Subsequent to the entry of judgment, the defendant Amos Reeves died, and the case was revived against the administratrix of his estate, who is appellee here.

Sec. 132-154, N.M.S.A. 1929, is as follows: "The commissioner may grant rights of way and easements over, upon or across state lands for public highways, railroads, tramways, telegraph, telephone and power lines, irrigation works, mining, logging and for other purposes, upon payment by the grantee or grantees of the price fixed by the commissioner, which shall not be less than the minimum price for the lands, used, as fixed by law."

Sec. 132-156, N.M.S.A. 1929, is as follows: "In all leases of state lands for grazing or agricultural purposes there shall be inserted a clause reserving the right to execute leases for mining purposes thereon, or for the extraction of petroleum, natural gas, salt, or other deposit therefrom, and the right to sell or dispose of any other natural surface products of such lands other than grazing, agricultural or horticultural products;also a clause reserving the right to grant rights of way andeasements for any of the purposes mentioned in section 5231(132-154)." (Emphasis ours.)

This statute was in effect at the time the grazing leases owned by defendant were executed by the Commissioner of Public Lands. Being the law of the state, this reservation became part of the lease at the time of its execution. See State v. Vesely, 40 N.M. 19, 52 P.2d 1090; Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083, 102 P. 728; Roma Oil Co. v. Long, 68 Okla. 267, 173 P. 957. The defendant, therefore, held his grazing leases subject to the reservation or exception of the state to grant rights of way for the purposes and upon the terms set forth in the statute, and the interest of the defendant in the lands described in his lease is charged with the easement and servitude created by virtue of the statute.

The grant by the state to appellant of a right of way across the leased lands of defendant gave to appellant a right so to use the same as to effect the purpose for which the right of way was granted, subject to any restriction imposed upon the grantee of the easement by the grantor. See 17 Am.Jur., Easements, § 96. See, also, Dyer v. Compere, 41 N.M. 716, 73 P.2d 1356.

The deed of right of way and easement between the Commissioner of Public Lands and appellant granted "a right of way and easement for the purpose of laying, constructing, reconstructing, replacing, renewing, maintaining and operating a pipe line for the transportation of gas, petroleum or any of its products, water or other substances, or either thereof, and as incident thereto the right to erect and maintain, operate, change, renew, and reconstruct a telephone and telegraph line, or either of them, as may be necessary in connection with use of said pipe line, together with the right of ingress and egress on, over and through the following described land in the County of Lea, State of New Mexico," subject to the following condition, among others: "It is therefore understood that the State of New Mexico, its lessees, permittees and assigns shall be permitted to use and enjoy the said premises except as the same may be necessary for the purpose herein granted; that the said party of the second part, its successors and assigns, hereby agree carefully to avoid destruction or injury to any improvements or livestock, lawfully upon said premises, carefully to close all gates immediately upon passing through such gates, and pay the reasonable and just damage for such injury or destruction, if any, arising from laying, maintaining, operating and removing said pipe line."

Under the grant as above, coupled with the conditions quoted, the appellant had a right paramount to the right of the owner of the lease to the extent of carrying out the object and purpose of the right of way, subject only to the condition that it use such right reasonably and "carefully avoid destruction to improvements and livestock lawfully upon said premises." 17 Am.Jur., Easements, § 96; and see Dyer v. Compere, supra. Until appellant in its exercise of such right damaged the improvements or livestock of the lessee, or exercised his right in an unreasonable manner to the detriment of the lessee, he had no claim for damages.

A careful search of the record discloses no detrimental use of the premises of lessee except such as was naturally incident to digging a ditch and laying a pipe line. No injury to livestock was shown, nor destruction of improvements, and the evidence shows that if there was any injury to fences it was unsubstantial and nominal merely.

The district court was of the opinion that the jury should advise him of the amount of damage the construction of the pipe line would do "to the grass and the leases."

So far as the grass is concerned the defendant's testimony is directed almost entirely to the loss of grass on the right of way. Since the enjoyment by defendant of this grass was by sufferance merely, subject to the deprivation thereof by the exercise of reserved rights of way, it is difficult to understand how the loss thereof is actionable. There was some testimony adduced by defendant of a vague nature that the defendant's "ranch" was damaged in a considerable sum by the existence of the pipe line. The defendant being asked his opinion as to the amount of damage to his ranch by the construction of the pipe line, answered:

"Well, sir, if it had been left up to me, if they had offered me a thousand dollars to put that road through there, I would rather not have it than the thousand dollars, because there is this road, there is always dust you see, it will keep dust on that grass and everything, that is the trouble about a road. * * *

"Q. State to the jury just what amount you consider you have been damaged by the construction of this pipe line through your pasture? A. How much have I been damaged up to date? Well, I don't know how to get at that. I wouldn't have it in there for a thousand dollars and be aggravated and bothered with it.

"Q. Do you say then your damages have been $1,000 by reason of that being put there? A. Yes, sir; I think so, this ranch is damaged a thousand dollars by that pipe line."

Testimony of other witnesses was of a similar nature to the effect that the defendant would be better off in the operation of his livestock ranch by a thousand dollars, etc.

We think the defendant presented and the court adopted a wrong theory. We may assume that the lease of appellee, as most leases of large tracts of land for grazing purposes, would be more valuable if it were not traversed by a right of way "for public highways, railroads, tramways, telegraph, telephone and power lines, irrigation works, mining, logging and for other purposes." But it cannot be doubted that a person contracting for the grazing lease has the right to obtain it upon terms which give him no right of immunity from such disadvantages as may attend the existence of such rights of way through his pasture. If the lessee obtains a lease upon terms which embody a disadvantage, he is bound by his bargain. If he would secure such immunity from detriment to his lease, he might ordinarily get it by paying for such immunity. He could not get a grazing lease from the state free of exception or reservation of right of way because the legislature has declared a policy that such leases shall contain exceptions or reservations of rights of way for certain purposes.

It is suggested that one consideration for this policy of the law is reflected in the comparative income from the two sources. For example, the total number of acres in the right of way is 57.19 acres and the state charged plaintiff for it at $5 per acre, which brings in $285.95; 57.19 acres at the grazing rental of 3 cents per acre per year brings in each year $1.72. The annual interest on the sum received for the right of way at six per cent is nearly ten times as much as the yearly rental on the amount of land involved in the right of way.

We believe, however, that this is not the basis of the law's policy of excepting or reserving rights of way for the purposes mentioned in the statute. The paramount purpose is to establish avenues of communication and transportation in order to promote the development of the state's resources and provide for the general prosperity and welfare. The contrast of money returns argues more in support of the view that the rental for grazing purposes is small than that the compensation for the grant of rights of way is large. The comparison, however, affords support to the suggestion that one of the reasons the grazing rentals are low is that the area embraced in the grazing leases is already or may hereafter be subjected to the burdens of the easements enumerated.

What is it that has been done by the appellant that there was not granted to him a right to do? Nothing that we can see. There is no claim that appellant has misused the grant to it. If the defendant has been damaged it is not by the appellant. The damage of which defendant complains flows from the reservation itself which he accepted when he obtained his grazing lease. We think there is merit to the contention that he was compensated for such damage by the terms of his lease. If the damage done were of a character not contemplated by the reservation which is a part of every grazing lease, we might have a different case. It is difficult to imagine that it was not contemplated by the defendant when he accepted his grazing lease that the exercise of the privilege reserved to lay a pipe line would result other than in some temporary displacement of grass. The right of a lessee of state lands for grazing purposes is not absolute, but relative, controlled and limited by the provision for reasonable enjoyment by him who has the right to exercise the reserved right of way for pipe lines and similar purposes. The defendant received and holds his grazing leases subject to the reasonable exercise of the rights bestowed upon the appellant by their common grantor. See Ide v. United States, 263 U.S. 497, 44 S. Ct. 182,68 L. Ed. 407. If the appellant, owner of the right of way, having paid the state for it, must also pay this defendant for the privilege of exercising it, we see no reason why appellant may not be called upon by successive holders of these grazing leases to pay them also. It is readily to be seen that if this were the law, the value of the rights of way would be destroyed and the state's policy in promoting the employment thereof would be defeated.

We conclude therefore that the court erred in holding that defendant was entitled to damages, and the judgment of the court awarding damages is reversed, and the cause remanded with directions to discharge the supersedeas bond and otherwise proceed consistently with the views herein expressed, and it is so ordered.

BRICE, ZINN, SADLER, and MABRY, JJ., concur.

On Motion for Rehearing.