1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-015

Filing Date: March 4, 2010

Docket No. 31,686

WILLIAM F. McNEILL, MARILYN CATES and THE BLACK TRUST,

Plaintiffs-Petitioners,

v.
RICE ENGINEERING AND OPERATING, INC., RICE ENGINEERING, INC., RICE OPERATING COMPANY, and HOBBS SALT WATER DISPOSAL SYSTEM, whose General Partner is RICE OPERATING COMPANY and whose Partners/Joint Ventures are ALTURA ENERGY LTD., et al.,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI Gary L. Clingman, District Judge

Law Offices of James P. Lyle, P.C. James P. Lyle Albuquerque, NM

for Petitioners

Montgomery & Andrews, P.A. Sarah M. Singleton Jaime R. Kennedy Stephen S. Hamilton Santa Fe, NM

McCormick, Caraway, Tabor & Byers, L.L.P. John M. Caraway Carlsbad, NM

for Respondents2 OPINION CHÁVEZ, Chief Justice.

{1} Plaintiffs sued Defendants for trespass resulting from the operation of a salt water disposal well on Plaintiffs’ property. The district court granted a motion for summary judgment to Defendants and Plaintiffs appeal ed. The Court of Appeals affirmed, holding that Plaintiffs lacked standing to bring a cau se of action for trespass and unjust enrichment for acts that occurred before Plaintiffs owned their property. We granted Plaintiffs’ petition for writ of certiorari. We agree with the Court of Appeals that an action for trespass to real property is in tort for the alleged injury to the right of possession. Pacheco v. Martinez , 97 N.M. 37, 41, 636 P.2d 308, 312 (Ct. App. 1981). Ther efore, it is an action in personam, not in rem, and does not run with the land. Id. For a party to have standing to sue for trespass, it must be an aggrieved party; that is, it must have a possessory interest in the land at the time of the trespass. Although the discovery of the trespass is what begins the statute of limitations to run, discovery is not what makes a party an aggrieved party for purposes of standing. Because the Court of Appeals’s unpublished memorandum opinion is well-written and persuasive, we adopt it in its entirety and attach it to this opinion as Appendix A.

{2} IT IS SO ORDERED.

____________________________________ EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

___________________________________ PATRICIO M. SERNA, Justice

___________________________________ PETRA JIMENEZ MAES, Justice

___________________________________ RICHARD C. BOSSON, Justice

_________________________________ CHARLES W. DANIELS, Justice

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

WILLIAM F. MCNEILL, MARILYN CATES, and THE BLACK TRUST
,3 Plaintiffs-Appellants/Cross Appellees,

NO. 29,207

RICE ENGINEERING AND OPERATING, INC., RICE ENGINEERING, INC., RICE OPERATING COMPANY, and HOBBS SALT WATER DISPOSAL SYSTEM, whose general partner is Rice Operating Company,

Defendants-Appellees/Cross-Appellants.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Gary L. Clingman, District Judge

Montgomery and Andrews, P.A. Sarah M. Singleton Jaime R. Kennedy Santa Fe, NM

McCormick, Caraway, Tabor & Byers, L.L.P John M. Caraway Carlsbad, NM

for Appellees/Cross-Appellants

Law Offices of James P. Lyle, P.C. James P. Lyle Albuquerque, NM

for Appellants/Cross-Appellees

MEMORANDUM OPINION

KENNEDY, Judge.

{3} Plaintiffs appeal from a judgment entered in favor of Defendant s on Plaintiffs’ claims of trespass and unjust enrichment. In this Court’s notice of proposed summary disposition, we proposed to affirm. Defendants timely responded with a memorandum in support, and Plaintiffs timely responded with a memorandum in opposition. We have considered Plaintiffs’ arguments, and as we are not persuaded by them, we affirm.4 {4} Our notice of proposed summary dispos ition proposed to affirm based on our conclusion that Plaintiffs lacked standing to bring claims of trespass and unjust enrichment for acts that occurred before they owned the property. The question of whether a party has standing to sue is a question of law that we review de novo. See McNeill v. Burlington Res. Oil & Gas Co. , 2008-NMSC-022, ¶ 12, 143 N.M. 740, 182 P.3d 121.

{5} In the district court, Plaintiffs clai med that Defendants began pumping salt water from beyond the boundaries of Plaintiffs’ land into a well on Plaintiffs’ property, and that this activity began—without the knowledge or cons ent of Plaintiffs or their predecessors in interest—in 1958 and continued until 2001. In2004, Plaintiffs and Defendants settled all claims relating to any such activity that occurred after October 27, 1994. Accordingly, in our notice we stated that it appeared that the only issues that would have been tried in the district court—and therefore, the only issues to be reviewed on appeal—relate to Defendants’ liability for salt water disposal activity that took place between 1958 and October 27, 1994. As Plaintiffs’ memorandum in opposition does not express any disagreement with our understanding of these fact s, we rely on them for our decision in this

case.
{6} In the district court, Defendants’ ame nded motion for summary judgment presented evidence that none of the Plaintiffs had any ow nership interest in the property prior to 1996. Defendants’ amended motion also presented evidence that one of the Plaintiffs, William McNeill, occupied the property under a leas e beginning in 1993, although he did not have an ownership interest in it until later. These facts were not disputed in Plaintiffs’ response to Defendants’ motion.

{7} “The gist of an action of trespass to real property is in tort for the alleged injury to the right of possession.” Pacheco v. Martinez , 97 N.M. 37, 41, 636 P.2d 308, 312 (Ct. App. 1981). Therefore, in order to have standing to make a claim for trespass to land, a plaintiff must have had some sort of possessory interest in the land at the time of the trespass. Our Supreme Court has explained that a party who acquires title to real property does not acquire his or her predecessor’s claims of trespass agai nst a third party, but instead may only recover for any trespass that might continue after the acquisition. See Garver v. Public Serv. Co. of N.M. , 77 N.M. 262, 271, 421 P.2d 788, 794 (1966) (agreeing with cases standing for the proposition that “one who purchases real estate after a trespass has been committed thereon, cannot maintain an action for such prior trespass, but may recover for trespasses which continue after the purchase”); Caledonian Coal Co. v. Rocky Cliff Coal Mining Co. , 16 N.M. 517, 518, 120 P. 715, 716 (1911) (syllabus by the Court) (“A right of action for a trespass to land is not assigned by a subsequent conveyan ce of the land.”). Becau se neither Plaintiff Marilyn Cates nor Plaintiff Bl ack Trust had any possessory interest in the property between 1958 and October 27, 1994, we conclude that they lacked standing to assert a claim for damages for any trespass that occurred during that period. Under the general rule announced in Garver andCaledonian Coal , the fact that title passed to them after the trespass does not afford them with any right the previous owner may have had to bring suit.5 {8} During the same period, however, Plain tiff William McNeill leased the property beginning sometime in 1993, thereby gaining a po ssessory interest in the land. Therefore, the question is whether Mr. McNeill has standing to sue to recover for the alleged acts of trespass to the property that occurred during the period beginning in 1993 when he began leasing the property, and October 27, 1994. We hol d that he does not. Plaintiffs expressly argued to the district court that the pumping of salt water underground did not interfere with a lessee’s possessory interest in the use of th e property, and that it only interfered with the owners’ ownership interest in the land. Although Plaintiffs made this argument with respect to a lessee who leased the property after Mr. McNeill did, we cannot see how this same argument would not apply to Mr. McNeill when he leased the property in 1993 and 1994. It appears that Mr. McNeill leased the property for purposes of ranching. Plaintiffs expressly denied that they were claiming that the exis tence of the pipelines themselves constituted a trespass. Instead, their argument was that sin ce Plaintiffs’ predecessors in interest had permitted Defendants to build the pipeline fo r the purpose of injecting salt water produced from activities on the property itself, it was the injection of salt water from off of the property that constituted the trespass. Because the claimed injury to the land in this case occurred below the surface, we conclude that any underground salt water disposal that took place between 1993 and October 27, 1994, did not interfere with Mr. McNeill’s possessory rights as a lessee. Accordingly, we conclude that he did not have standing to sue for any trespass that occurred during that period. See Caledonian Coal , 16 N.M. at 524, 120 P. at 717-18 (holding that a plaintiff who sought to rec over the value of coal removed from land “must show some property right or interest inthe coal which is not established by possession of the land merely,” since removal by trespass is an “injury to the freehold, for which injury the owner of the fee is alone entitled to recover.”).

{9} Although Garver andCaledonian Coaldiscuss a party’s standing to bring a claim for the tort of trespass, we believe that the st anding analysis is the same for Plaintiffs’ unjust enrichment claim. We know of no authority that would permit a non-owner of property to recover in unjust enrichment for someone else’s unauthorized use of th at property. Just as with the tort of trespass, it is the owner w ho would be entitled to restitution, since the person who used the owner’s property would have done so at the owner’s expense. See Heimann v. Kinder-Morgan CO2 Co., L.P. , 2006-NMCA-127, ¶ 20, 140 N.M. 552, 144 P.3d 111 (“Unjust enrichment . . . is a theory under which an aggrieved party may recover from another party who has profited at the expense of the aggrieved party.”). Therefore, Plaintiffs would only be entitled to restitution for any periods during which they had an ownership interest in the property. They have apparently in fact recovered for such unjust enrichment in their settlement agreement with Defendants.

{10} In their memorandum in opposition, Plaintiffs argue that the discovery rule would somehow grant them standing to sue for injuri es that were suffered by their predecessors in interest. We disagree, and we believe that Plaintiffs’ argument conflates the question of when a cause of action accrues with the question of who possesses the rights sought to be enforced or the injury sought to be compensated. The discovery rule simply provides that the statute of limitations begins to run from th e time an aggrieved party discovers an injury.6 See NMSA 1978, § 37-1-7 (1880) (“In actions for relief, on the ground of fraud or mistake, and in actions for injuries t o, or conversion of property, th e cause of action shall not be deemed to have accrued until the fraud, mistake, injury or conversion complained of, shall have been discovered by the party aggrieved.”). On its face, the rule gives no indication that an aggrieved party who has discovered an injury is entitled to recover for injuries previously done to other aggrieved parties. In this case, Mr. McNeill discovered Defendants’ wrongful conduct in 1995. Accordingly, an application of the discovery rule would simply permit Plaintiffs four years from the discovery in 1995 to bring suit. See NMSA 1978, § 37-1-4 (1880) (providing that an action “brought for in juries to property or for the conversion of personal property or for relief upon the ground of fraud, and all other actions not herein otherwise provided for and specified” must be br ought “within four years”). Plaintiffs were proper parties to bring suit, not by virtue of the discovery rule, but because they owned the property while the trespass continued. Plaintiffs have settled all claims relating to the period during which they had such an ownership intere st plus an additional period of a few years prior to the time they obtained their ownershi p interest. We cannot see how the discovery rule would permit Plaintiffs to recover for inju ries that were done to Plaintiffs’ predecessors.

{11} Plaintiffs suggest that they acquired thei r predecessors’ claims of trespass and unjust enrichment either through deed or inheritance. However, Plaintiffs cite no authority for the proposition that a claim of trespass or a claim of unjust enrichment based on trespass is one that automatically runs with title to the land, and Garver andCaledonian Coalstate otherwise. While Plaintiffs both distinguish Garver andCaledonian Coaland argue that the statement in each case regarding a subsequentpurchaser’s inability to bring suit for a trespass that occurred prior to the time that they acquired title to the property is merely dicta, we see no reason that this general rule of la w would be inapplicable in this case. In Garver andCaledonian Coal , our Supreme Court clearly stated that an action for trespass is not automatically assigned to a subsequent owner. See Garver , 77 N.M. at 271, 421 P.2d at 794; Caledonian Coal , 16 N.M. at 518, 120 P. at 716. Where Plaintiffs have failed to cite any contrary authority from this or any other ju risdiction, this Court will presume that no such authority exists. See In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984); see also Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”).

{12} Plaintiffs also argue that this Court’s opinion in McNeill v. Burlington Res. Oil & Gas Co. , 2007-NMCA-024, 141 N.M. 212, 153 P.3d 46, c ontrols the question of whether Plaintiffs can recover for trespasses that occurred on the land when it was still owned by their predecessors in interest. We are not persuaded that our opinion in McNeill squarely addressed this issue. In that case, Plaintiffs alleged that the defendant’s “failure to properly close [a] pit resulted in subsurface contamin ation of their property[, and] that the contamination has affected the water supply in the area and that, as a result, Plaintiffs’ cattle will not drink the water.” 2007-NMCA-024, ¶ 5. Th e defendant in that case argued that the Black Trust did not have standi ng to bring suit since 1) while the language in the quitclaim deed conveyed the predecessor’s “right, title, and interest” in the property itself , it did not7 convey personal causes of action and 2) the cause of action accrued when the injury to the property occurred, which was prior to th e trust’s acquisition of the property. Id. ¶ 12. This Court did not address the question of whethe r the deed was adequate to convey personal causes of action, and instead held that New Mexico applies the discovery rule, and that under that rule, the cause of action did not accrue until after the trust acquired the property. Id. ¶ 14-15. Our Supreme Court affirmed this porti on of our holding, and it, too, addressed only the discovery rule, without discussing whether or not the deed itself conveyed any personal causes of action. See McNeill , 2008-NMSC-022, ¶ 37.

{13} Both opinions in McNeill addressed only the question of whether the Black Trust had standing to bring the claims at issue in that case. Since the contamination of the property alleged in McNeill continued while the Black Trust ow ned the property, we believe both our opinion and our Supreme Court’s opinion in that case simply held that the trust had standing to bring suit for that continuing injury, since it was not discovered until after the trust acquired title to the land. We do not believe th at either decision resolved the question of whether a party can recover for a trespass that occurred solely while the property was owned by someone else. (We note that to the degree that the trespass at issue in this appeal continued during Plaintiffs’ ownership of the property, Plaintiffs have recovered for that trespass.) Therefore, we conclude that neith er this Court’s opinion nor our Supreme Court’s opinion in McNeill conflicts with the general rule stated in Garver andCaledonian Coal , and that neither opinion compels a conclusion that Pl aintiffs are entitled to recover for a trespass that occurred before they owned the land.

{14} Accordingly, for the reasons stated in this opinion and in our notice of proposed summary disposition, we affirm.

{15} IT IS SO ORDERED.

____________________________________ RODERICK T. KENNEDY, Judge

WE CONCUR :

____________________________________ CYNTHIA A. FRY, Chief Judge

____________________________________ LINDA M. VANZI, Judge

Topic Index for McNeill v. Rice Engineering & Operating, Inc. , No. 31,686

CP CIVIL PROCEDURE CP-RP Real Party in Interest CP-SD Standing8 CP-SL Statute of Limitations CP-SJ Summary Judgment CP-SV Survival of Cause of Action CP- TA Third-party Actions

NR NATURAL RESOURCES NR-OG Oil and Gas

PR PROPERTY PR-PS Possession PR-TS Trespass

ST STATUTES ST-IP Interpretation ST-LI Legislative Intent ST-RC Rules of Construction

TR TORTS TR-IT Intentional Torts TR-SA Statute of Limitations TR-TR Trespass