Baker v. De Armijo , 17 N.M. 383 ( 1912 )

OPINION OP THE COURT.

HANNA, J.

The appellants have raised numerous assignments of error, but in' their argument are relying upon four, which we will consider in the order presented.

The first being that plaintiff did not show title in himself through Yreneo Lujan. We do not consider it necessary to here set forth the questions pertaining to this point because it is apparent that the learned trial judge did not base his judgment upon this theory of the case, but, on the contrary, in his fourth finding of fact found "that plaintiff is the owner in fee simple and in possession of land in plaintiff’s complaint herein, and hereinafter described, by virtue of said adverse possession thereof by himself and his grantors- and predecessors in interest, and by virtue of confirmatory deed thereto.”

Considering this language in connection with the allegations of the complaint, it becomes clear that the allegations of the complaint, with reference to adverse possession, referred to ten 3rears prior to the institution of the suit. This being true, we are of the opinion that it is not now necessary to inquire - concerning whether or not plaintiff traced liis chain of title to the alleged title of Yreneo Lujan.

The next point urged by plaintiff is that plaintiff did not show ten years’ continuous adverse possession.

The appellants’ contention being that the evidence in this case does noj; disclose such acts of possession as would acquaint the owner with the fact that a claim of ownership adverse to his title was being asserted. More serious consideration might be given to this contention ■ than we feel it is here entitled to were-it-not for the fact that we find from the record the defendant Martiniano Lujan unsuccessfully protested against the sale of the premises by his father Yreneo Lujan. It is clear that this defendant had actual knowledge of the assertion of adverse •claims by the Freudenthals in the year 1887 and that he failed to assert any claim to ownership until about the year 1907, when he wrote his sister Mary “to do something for the benefit of the lot.”

1 It has been settled that to constitute an adverse possession there need not be a fence, building or other improvement made; it sufficing, for this purpose, that visible and notorious acts of ownership be exercised, for the statutory period, after an entry under claim and color of title. Ewing v. Burnett, 11 Pac. 19, 9 L. Fed. 628.

2 The uses to which the property can be applied, or to which the owner, or claimant may choose to apply it, the nature of the property and its situation are largely controlling factors in determining what- acts of ownership might be considered requisite to the assertion of ■an adverse claim.

In the case at bar, the property is an unimproved city lot, which the claimants, in possession, fenced on several -occasions, but which apparently it was found difficult to keep fenced. The lot was frequently rented for circuses, carnivals, bill boards, temporary photographers’ stands, storage of pipe and other temporary uses.

The trial court having found that this evidence was such as to indicate acts of ownership constituting adverse possession we are not disposed to disturb the finding.

3 It has been said in the case of Draper v. Shoot, 25 Mo. 197, that “What is adverse possession is one thing in a populous country, another thing in a sparsely settled one, and ■still a different thing in a town or village.” It has also been held that less notoriety, and even less frequency of such acts of ownership will- be required with possession under color of title than without it. Woods v. Montevallo Co., 84 Ala. 566.

4 In the case last referred to the court also says: “All the law requires therefore, is that the possession, or rather acts oí dominion by which it is sought to be proved, shall be of such a character as may be reasonably expected to inform the true owner of the fact of possession and an adverse claim of title.”

Believing that there was substantial evidence upon which to base the finding of fact, with respect to the adverse possession of the plaintiff, we are forced to conclude that this contention of the appellants’ is not well taken.

The third point urged by the appellants is that plaintiff did not show that he was the owner of the disputed premises by virtue, of the deed from the Dona Ana Bend Colony Grant.

The principal argument of appellants in support of this point is that the Grant Board could not deprive the defendants of anj'’ rights they might have in an ex parte proceeding. It does not appear that the trial court held a contrary, opinion and does appear that he agreed with this contention. It is evident that the trial judge concluded from the evidence adduced that the defendants had failed to establish any title by adverse possession, or through the Dona Ana Bend Colony Grant, and so found. There being substantial evidence to support these findings of the trial court, we cannot disturb them.

, AjDjDellants strongly contend that if plaintiff did not show the necessary ten 3rears’ possession, and even though defendants failed in the same proofs, Yreneo Lujan, when he convejred to the Freudenthals, transferred a five-eighths interest merety, and created plaintiffs grantors tenants in common with defendants. We are not disposed to differ with appellants as to the principles of law applying to co-tenancy, but do not agree that the principles contended for apply in this case.

5 The record discloses that Yreneo Lujan conveyed by warranty deed the entire property. If appellants be correct, Lujan and themselves were co-tenants. We find, as a general rule almost universally applied, that where one co-tenant convej^s the entire estate to one who takes possession claiming the exclusive title, this operates as a disseizin of the other co-tenants and converts the possession of the grantee into an adverse possession. Prescott v. Nevers, 19 Fed. Cas. 11, 390; Wright v. Saddler, 20 N. Y. 320; Long v. Stapp, 49 Mo. 506; Hall v. Waterman et al, 220 Ill. 569; Unger v. Mooney, 63 Cal. 586; Neher v. Armijo, 9 N. M. 337.

Appellants further argue that the Dona Ana Bend Colony Grant is not a community grant, and that the act of the legislature assembly of the Territory of New Mexico, entitled, “A,n act in relation to the management of the Community Land Grants in the County of Dona Ana,” approved February 23rd, 1905, is void, being in conflict with the provisions of the Springer act. These points are raised for the first time in this court and cannot, therefore, be now considered. The decision of these questions in a manner favorable to appellants’ contention would not be of benefit to the appellants’ case in view of the third finding of the trial court.

The last point made by appellants is that the so-called findings of fact are mere conclusions of law, and- do not support the judgment. We are of opinion that this alleged error is without real merit. It does not appear from the record that the attention of the trial court was called to the alleged defect in the findings. This we deem necessary if advantage is to be taken of alleged defects of this character.

6 It has been well said in the case of O’Reilly v. Campbell, 116 U. S. 420, upon this subject, that, “findings are-not to be construed with the strictness of special pleadings. It is sufficient if from them all, taken together with the pleadings, we can see enough upon a fair construction to justify the judgment of the court notwithstanding their want of precision and the occasional intermixture of matters of fact and conclusions-of law.”

We conclude that the judgment of the lower court must be affirmed, and it is so ordered'.

Parker, J., being disqualified, did not participate ini the above decision. '