Tomlin v. Town of Las Cruces

Plaintiffs brought suit to enjoin the town of Las Cruces from interfering with the designation and location of highway No. 80, a federal aid and interstate highway, and from enforcing section 26 of ordinance 127 of the town of Las Cruces relative thereto. From an order sustaining a demurrer to their first amended complaint, plaintiffs appeal.

The complaint alleges that in 1927 the state highway commission designated and marked with official federal aid and other direction signs highway No. 80, constructed partly with moneys of the United States and partly with moneys of the state of New Mexico, on Alameda boulevard from the south through the town of Las Cruces as far as Las Cruces avenue; that early in 1929 the commission designated and marked with similar signs the said highway in Las Cruces from Las Cruces avenue northward on Alameda boulevard to Young avenue, and thence westward on Young avenue across the viaduct over the Santa Fe Railroad; that in 1928 one Featherston, plaintiffs' predecessor in title to property abutting on highway No. 80 as laid out and marked by the commission, at a point on the Alameda boulevard south of Las Cruces avenue, constructed thereon a tourist camp, known as Camp Las Cruces, which he operated commercially for profit; that on July 30, 1929, the town of Las Cruces, through its board of trustees, "without lawful power or authority," enacted a resolution redesignating and relocating highway No. 80 through the town of Las Cruces; that in pursuance thereof it removed the direction signs which had been placed by the highway commission on Alameda boulevard between Lohman avenue and Lucero avenue, and erected direction signs for highway No. 80 on Lohman avenue from Alameda boulevard to Main street, and on Main street from Lohman avenue to Lucero avenue, and on Lucero avenue from Main street to Alameda boulevard, and direction turn signs on Alameda boulevard near Lohman avenue and near Lucero avenue, thus:

[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]

that, on August 24, 1929, the town, through its board of trustees passed an ordinance providing:

"Sec. 26. For the purpose of directing, routing and regulating traffic upon all streets and highways in the Town, the Board of Trustees shall have the power to designate the routes of Federal Aid Highways, State Highways, state roads and other streets and highways through the town, and to change and alter such designations when the public interest requires. It shall be unlawful for any person, firm or corporation to erect, place, install or maintain any route, street or highway sign, marker or direction guide within the corporate limits of the Town without first securing the written permission of the Board of Trustees. Any such sign, marker or direction guide heretofore and now maintained in violation hereof, and any such sign, marker or direction guide which shall hereafter be erected, installed, placed or maintained in violation hereof, shall forthwith be removed upon written order of the Board of Trustees; and the failure or refusal of any person, firm or corporation to comply with such order of the Board of Trustees shall be a separate offense, and punished accordingly." Ordinance No. 157.

Subsequently thereto plaintiffs acquired their title to the aforesaid property of Featherston, and have continuously operated Camp Las Cruces since November 16, 1929.

The redesignation of highway No. 80 by the town, and the alleged enforcement of section 26 of ordinance 157 are alleged to injuriously affect the public in very materially increasing the distance to be traveled on highway No. 80, and in introducing to said highway four sharp turns instead of a straight road, and in subjecting traffic on the highway to frequently occurring congestion of traffic on Main street of the town of Las Cruces. It is further alleged that highway No. 80 in New Mexico extends from the town of Anthony on the south boundary of the state, across the state to a point near the town of Rodeo on the west boundary of the state, and is a link in the principal southern interstate and transcontinental highway, bearing much tourist and other traffic at all times of the year; that this traffic is diverted from passing plaintiff's property, resulting in great loss of business; that "there are many other tourist camps, automobile dealers, repair garages, rest houses and other business enterprises devoted especially to the needs of the automobile traffic, and many other business enterprises of a more general character, located and conducted on tracts of land abutting on Alameda Boulevard between Lohman Avenue and Lucero Avenue, and owned and occupied by many different persons, the rights and interests of the several owners of all which abutting tracts of land and business enterprises have been and are affected in the same way and manner as plaintiff's rights and interests are affected by the said unauthorized acts of defendant town of Las Cruces"; and that there is a reasonable probability of a multiplicity of suits against the defendant. The complaint concludes with a prayer for injunctive relief against the acts complained of, and for incidental damages.

The trial court sustained defendant's demurrer to this complaint on the ground that, even though the town of Las Cruces may not have had authority to change direction signs on highway No. 80, nevertheless, plaintiff, as a private citizen, had no such right in the maintenance of highway route signs as to enable him to maintain a cause of action for the wrongful removal of signs placed there by the highway commission.

We think the trial court correctly decided.

We do not doubt the power of a court of equity to grant relief in a proper case at the suit of a private individual who suffers some injury from a public nuisance such as an obstruction placed in a highway and which injury is distinct from that of the public.

There is no claim in this case that defendant committed any acts amounting to a physical obstruction of the highway.

Plaintiff's argument is that looking at the matter realistically, it seems probable that as to a substantial portion of the traveling public, the moving of the direction signs complained of, constitutes as effective a barrier to the use of the portion of highway No. 80 on Alameda boulevard between Lohman avenue and Lucero avenue, as would the placing of physical obstructions to its access.

It has been held that an abutting property owner has no such special interest in the mere designation of the highway upon which his property abuts as to give him a right to enjoin the state's authorized agency within the limits of its lawful powers from changing such designation to another highway. Elliott v. Ely (Tex.Civ.App.) 58 S.W.2d 839; Agnew v. Hotchkiss, 189 Wis. 1,206 N.W. 849; Sloan v. State Highway Department, 150 S.C. 337,148 S.E. 183. Appellant concedes this to be the law, saying:

"And there has always been and can always be change and improvement in roads and routes by lawful authority and in a lawful manner."

We find appellants' attempt at analogy between the acts done by defendant and the placing of actual obstructions in a highway unsatisfactory. None of the usual rights of an abutter, such, for instance, as right of ingress and egress, are disturbed.

In Asplund v. Hannett, 31 N.M. 641, 249 P. 1074, 1077, 58 A.L.R. 573, we said: "Of course, it is well understood that equity awards its injunctive writ only to prevent irreparable injury for which there is no adequate and complete remedy at law. The injury must consist, to speak broadly, in the invasion of some right of the complaining party."

If the appellants here do not have a right in the mere designation of the highway upon which their property abuts, so as to give them a right to an injunctive writ to enjoin the state's authorized agency from changing such designation from another highway, a right in such designation is not created by unauthorized acts of interlopers.

It is not enough that plaintiffs establish that defendant committed a wrong or invades the province of the state's authorized agency. A violation of some positive legal right of plaintiffs must be shown.

The action of defendant in removing the direction signs which had been placed on the highway by the highway commission may have encroached upon the jurisdiction of the state highway commission and may even have been a misdemeanor, but it violated no legal right of the plaintiffs, distinct from that of the public. Such right as they have is political, enforceable only as other political rights are maintainable.

Assuming, as the trial court assumed, that the power to locate and designate state highways even within the corporate limits of a town rests primarily in the state highway commission, we still discover in our statutes a legislative attitude calling for co-operation with the local authorities in the matter of construction and maintenance of highways and in regulating the traffic thereon.

Reading the text of Elliott on Roads and Streets, we find it stated that:

"It sometimes happens that two different bodies attempt at the same time, to exercise control over a street or road." (Sec. 543.)

We attach no significance to these suggestions beyond their support to the view that if the state highway commission has a power to exercise which under certain circumstances it may exercise indirectly by acquiescence in what the local authorities undertake, it would seem adequate to leave it to the different bodies to fight it out between themselves in the event one set of officers feel that their jurisdiction is being impinged upon.

The highway commission, for all we know, may have acquiesced in the change in the designation of the highway. In any event, the wrong, if one has been committed, is one to be redressed otherwise than by injunctive relief at the suit of a private individual.

Finding no error in the record, the judgment is affirmed, and it is so ordered.

WATSON, C.J., and SADLER, J., concur.