Gabaldon v. Sanchez , 92 N.M. 224 ( 1978 )

HERNANDEZ, Judge

(dissenting).

I respectfully dissent. The defendant requested findings that in grading and leveling his property was a reasonable and natural use of his land and that this did not constitute a nuisance. The majority state that the trial court did not refuse these findings, nor adopt any findings to the contrary. The trial court’s findings 4, 5, and 7 and conclusion of law 3 are directly contrary to defendant’s requested findings.

In my opinion the trial court’s findings are supported by substantial evidence and that it correctly concluded that defendant’s actions constituted a private nuisance. I believe that the majority misconstrue the basic issue. The issue is not whether defendant’s actions were negligent or were a violation of the Subdivision Act, or constituted a trespass, but whether his actions substantially interfered with plaintiff’s use and enjoyment of his property. The record shows a very substantial interference with plaintiff’s use of his property due to the acts of the defendant. I would affirm on the basis of private nuisance.