2023 New Mexico Statutes › Chapter 37 - Limitation of Actions; Abatement and Revivor › Article 1 - Limitations of Actions › Section 37-1-22 - Title in fee simple by adverse possession; action after ten years barred; definition; payment of taxes.

In all cases where any person or persons, their children, heirs or assigns, shall have had adverse possession continuously and in good faith under color of title for ten years of any lands, tenements or hereditaments and no claim by suit in law or equity effectually prosecuted shall have been set up or made to the said lands, tenements or hereditaments, within the aforesaid time of ten years, then and in that case, the person or persons, their children, heirs or assigns, so holding adverse possession as aforesaid, shall be entitled to keep and hold in possession such quantity of lands as shall be specified and described in some writing purporting to give color of title to such adverse occupant, in preference to all, and against all, and all manner of person or persons whatsoever; and any person or persons, their children or their heirs or assigns, who shall neglect or who have neglected for the said term of ten years, to avail themselves of the benefit of any title, legal or equitable, which he, she or they may have to any lands, tenements or hereditaments, within this state, by suit of law or equity effectually prosecuted against the person or persons so as aforesaid in adverse possession, shall be forever barred, and the person or persons, their children, heirs or assigns so holding or keeping possession as aforesaid for the term of ten years shall have a good and indefeasible title in fee simple to such lands, tenements or hereditaments; provided, that if any person entitled to commence or prosecute such suit or action is or shall be, at the time the cause of action therefor first accrued, imprisoned, of unsound mind or under the age of majority, then the time for commencing such action shall in favor of such persons be extended so that they shall have one year after the termination of such disability to commence such action; but no cumulative disability shall prevent the bar of the above limitation, and this proviso shall only apply to those disabilities which existed when the cause of action first accrued and to no other. "Adverse possession" is defined to be an actual and visible appropriation of land, commenced and continued under a color of title and claim of right inconsistent with and hostile to the claim of another; provided, however that in the case of severed mineral interests the possession by the party in possession of the surface shall be considered as the constructive possession of such mineral claimant until actual possession shall have been taken by such mineral claimant; and provided further in no case must "adverse possession" be considered established within the meaning of the law, unless the party claiming adverse possession, his predecessors or grantors, have for the period mentioned in this section continuously paid all the taxes, state, county and municipal, which during that period have been assessed against the property.
History:
Laws 1857-1858, p. 64; C.L. 1865, ch. 73, § 2; C.L. 1884, § 1881; C.L. 1897, § 2938; Laws 1899, ch. 63, § 2; 1905, ch. 76, § 1; Code 1915, § 3365; C.S. 1929, § 83-122; 1941 Comp., § 27-121; Laws 1947, ch. 145, § 1; 1953 Comp., § 23-1-22; Laws 1973, ch. 138, § 15.
ANNOTATIONS
Compiler's notes.
— The New Mexico Rules of Civil Procedure governing all cases cognizable in law and at equity, provide for only one form of action, known as "civil action."
See
Rules 1-001 and 1-002 NMRA.
Cross references.
— For extensions of limitations in favor of minors and incapacitated persons,
see
37-1-10 NMSA 1978.
For provision that rights of the state in highways may not be divested by adverse possession,
see
67-2-5 NMSA 1978.
For presumption of grant for use of irrigation ditch in use for five years,
see
73-2-5 NMSA 1978.
For conservancy district's rights not being subject to loss by adverse possession,
see
73-17-21 NMSA 1978.
I. GENERAL CONSIDERATION.
A. IN GENERAL.
Water rights.
— New Mexico's comprehensive water code and public policy concerns establish that water rights cannot be obtained through adverse possession.
Turner v. Bassett
, 2003-NMCA-136, 134 N.M. 621, 81 P.3d 564,
rev'd on other grounds
, 2005-NMSC-009, 137 N.M. 381, 111 P.3d 701.
Boundary disputes are governed by the ten-year limitation period applicable to adverse possession.
Polaco v. Prudencio
, 2010-NMCA-073, 148 N.M. 872, 242 P.3d 439.
Cause of action in boundary dispute was not time-barred.
— Where plaintiff and defendant received title to their respective tracts from their parent; when the property was given to plaintiff and defendant, the parties built a fence along the boundary between the tracts; the tracts were later surveyed, and when the surveyor discovered that the surveyor had made an error in the deeds, the surveyor had the parties exchange deeds to portions of their parcels to correct the mistake; in 1988, plaintiff discovered that defendant was taking the fence down and beginning to construct a new fence that extended the boundary line into plaintiff's property; when plaintiff complained, defendant stopped construction of the fence; over the next ten years, on four occasions, defendant resumed construction of the fence, and when plaintiff complained, defendant stopped the construction; the fence was completed in 1996; because defendant abandoned the construction of the fence each time plaintiff complained about the intrusion onto plaintiff's property, defendant did not have exclusive and continuous possession of the disputed property during the period from 1988 to 1998; and plaintiff filed an action in 1998 to establish the boundary line, the ten-year limitation period had not expired in 1998, and plaintiff's cause of action was timely filed.
Polaco v. Prudencio
, 2010-NMCA-073, 148 N.M. 872, 242 P.3d 439.
This is a general statute of limitations
as distinguished from former Section 37-1-21 NMSA 1978 which applied to property acquired within a Spanish or Mexican land grant.
Ward v. Rodriguez
, 1939-NMSC-018, 43 N.M. 191, 88 P.2d 277, cert. denied, 307 U.S. 627, 59 S. Ct. 837, 83 L. Ed. 1511 (1939);
Bradford v. Armijo
, 1922-NMSC-051, 28 N.M. 288, 210 P. 1070.
One who seeks to establish title by adverse possession must found his rights upon the authority of this section.
Ward v. Rodriguez
, 1939-NMSC-018, 43 N.M. 191, 88 P.2d 277, cert. denied, 307 U.S. 627, 59 S. Ct. 837, 83 L. Ed. 1511 (1939).
Section is a defensive provision,
and is a general statute of limitations, not confined in its operation to land grants.
Bradford v. Armijo
, 1922-NMSC-051, 28 N.M. 288, 210 P. 1070.
Defense to ejectment.
— Under statute of limitations, in an action for ejectment, defendant's adverse possession under claim of title for 10 years before suit was instituted was a good defense.
Probst v. Trustees of Bd. of Domestic Missions
, 129 U.S. 182, 9 S. Ct. 263, 32 L. Ed. 642 (1889).
Effect of section.
— This section does not purport to confer fee-simple title as is provided for in former Section 37-1-21 NMSA 1978. It simply raises the bar of the statute against the bringing of actions for the possession of lands held adversely for 10 years under color of title and with payment of taxes.
Montoya v. Unknown Heirs of Vigil
, 1911-NMSC-042, 16 N.M. 349, 120 P. 676,
aff'd sub nom. Montoya v. Gonzales
, 232 U.S. 375, 34 S. Ct. 413, 58 L. Ed. 645 (1914).
An uninterrupted occupancy of land by a person, who in fact has no title thereto, for a period of 10 years adversely to the true owner, operates to extinguish the title of the true owner thereto and vests the title of the property absolutely in the occupier.
Maxwell Land Grant Co. v. Dawson
, 151 U.S. 586, 14 S. Ct. 458, 38 L. Ed. 279 (1894);
Probst v. Trustees of Bd. of Domestic Missions,
129 U.S. 182, 9 S. Ct. 263, 32 L. Ed. 642 (1889);
Manby v. Voorhees
, 1921-NMSC-107, 27 N.M. 511, 203 P. 543.
No slander of title in action on adverse possession.
— Although a quiet title action may also include a cause of action for slander of title, if the claim of title is based on adverse possession which has not yet been decreed, rather than chain of title, there is no basis for slander of title. This is true because the adverse possession is not established until the actual decree.
Lopez v. Adams
, 1993-NMCA-150, 116 N.M. 757, 867 P.2d 427, cert. denied, 116 N.M. 801, 867 P.2d 1183.
B. APPLICABILITY.
Pleading by United States.
— A statute of limitations may be pleaded for the benefit of the United States although it is not expressly named therein, and although its prerogative of sovereignty would protect it from the use of such plea against it.
Garcia v. United States
, 43 F.2d 873 (10th Cir. 1930).
Indian Pueblos are entitled to benefits of this section.
Garcia v. United States
, 43 F.2d 873 (10th Cir. 1930).
Limitations cannot be pleaded against Pueblo Indians without consent
of the United States.
Garcia v. United States
, 43 F.2d 873 (10th Cir. 1930).
No title to public lands can be obtained by adverse possession,
laches or acquiescence.
United States v. Gammache
, 713 F.2d 588 (10th Cir. 1983).
One cannot adversely possess government property.
Deaton v. Gutierrez
, 2004-NMCA-043, 135 N.M. 423, 89 P.3d 672, cert. denied, 2004-NMCERT-004, 135 N.M. 562, 91 P.3d 603.
Common lands.
— Title by adverse possession may be acquired as to common lands of a community grant.
H.N.D. Land Co. v. Suazo
, 1940-NMSC-061, 44 N.M. 547, 105 P.2d 744.
Municipal streets and alleys.
— Title to an interest in the streets and alleys of a municipality cannot be acquired by adverse possession; the statute requires 10 years' actual, visible, exclusive and hostile possession, and if one or more of these elements are missing, no rights are required.
City of Roswell v. Mountain States Tel. & Tel. Co.
, 78 F.2d 379 (10th Cir. 1935).
Railroad right-of-way.
— Title may be gained by adverse possession to portions of a railway company's right-of-way.
City of Raton v. Pollard
, 270 F. 5 (8th Cir. 1920).
Obstruction and appropriation of water.
— This section applies to suit for damages for obstruction of flow and appropriation of waters of a creek.
N.M. Prods. Co. v. N.M. Power Co.
, 1937-NMSC-048, 42 N.M. 311, 77 P.2d 634.
C. PROCEDURE.
Complaint to quiet title.
— Proof of adverse possession may be made under ordinary complaint to quiet title.
Garcia v. United States
, 43 F.2d 873 (10th Cir. 1930).
Party seeking to establish title by adverse possession has burden
of proving it by clear and convincing evidence.
Frietze v. Frietze
, 1968-NMSC-011, 78 N.M. 676, 437 P.2d 137.
To establish adverse possession, the proof must be clear and convincing.
— Plaintiff must prove the statutory elements by clear and convincing evidence.
Castellano v. Ortega
, 1989-NMCA-007, 108 N.M. 218, 770 P.2d 540;
Marquez v. Padilla
, 1967-NMSC-075, 77 N.M. 620, 426 P.2d 593.
Adverse possession cannot be established by inference or implication.
Frietze v. Frietze
, 1968-NMSC-011, 78 N.M. 676, 437 P.2d 137.
Raising defense of adverse possession.
— Defendants in suit for recovery and possession of patented mining claim and damages could not avail themselves of defenses of adverse possession and prescriptive right on appeal, where throughout their trial they prosecuted their defense on the theory that the vein or lode from which the ore was extracted, although located within the boundaries of plaintiff's claim, had its apex within the boundaries of their own claim and was therefor their own property.
Papa v. Torres
, 1956-NMSC-003, 60 N.M. 448, 292 P.2d 322.
Applicability of laches.
— A new trial should be granted for determining whether laches was available as a defense to defendant in quiet title suit, where it is necessary to reverse the trial court by reason of erroneous application of the 10-year statute of limitations and trial court did not determine whether plaintiff was estopped from claiming title by reason of laches.
McGrail v. Fields
, 1949-NMSC-019, 53 N.M. 158, 203 P.2d 1000.
Bill in equity to enforce trust in certain mining locations may be defeated by laches, although statutory time for filing action has not expired.
Patterson v. Hewitt
, 195 U.S. 309, 25 S. Ct. 35, 49 L. Ed. 214 (1904).
II. ELEMENTS OF ADVERSE POSSESSION.
A. IN GENERAL.
Statutory requirements for adverse possession.
— Under this section the plaintiffs were required to prove that they and their predecessors had been in adverse possession of the land continuously and in good faith for a period of 10 years, under color of title, and plaintiffs must have paid taxes on the property during these years.
Richardson v. Duggar
, 1974-NMSC-066, 86 N.M. 494, 525 P.2d 854.
The statute requires for a successful claim of adverse possession, color of title, 10 years of continuous adverse possession, payment of taxes and good faith.
Heron v. Conder
, 1967-NMSC-039, 77 N.M. 462, 423 P.2d 985.
Before title can ripen by adverse possession, three elements must be presented: (1) actual, visible, exclusive, hostile and continuous possession; (2) under color of title; and (3) for a period of 10 years.
Payne Land & Livestock Co. v. Archuleta
, 180 F. Supp. 651 (D.N.M. 1960).
A person claiming ownership of land in the Albuquerque town grant, by limitations, must have been in the actual, visible, exclusive, hostile and continued possession for 10 years, the same as if conveyed to private individual.
Marques v. Maxwell Land Grant Co.
, 1904-NMSC-033, 12 N.M. 445, 78 P. 40;
Johnston v. City of Albuquerque
, 1903-NMSC-011, 12 N.M. 20, 72 P. 9.
In order to prove title by adverse possession under 37-1-21 NMSA 1978, the claimant must also meet the elements set forth in this section. Apodaca v. Tome Land & Imp. Co., 1978-NMSC-018, 91 N.M. 591, 577 P.2d 1237 (statute repealed).
Establishing title by adverse possession requires color of title, acquired in good faith, with open, exclusive, notorious, continuous, and hostile possession, and payment of taxes for the statutory period.
Castellano v. Ortega
, 1989-NMCA-007, 1989-NMCA-007, 108 N.M. 218, 770 P.2d 540.
A party claiming ownership of land by adverse possession must prove by clear and convincing evidence continuous adverse possession for 10 years under color of title, in good faith, and payment of taxes on the property during those years.
Williams v. Howell
, 1989-NMSC-009, 108 N.M. 225, 770 P.2d 870.
Color of title and payment of taxes are indispensable
to gaining title to real estate by adverse possession.
Weldon v. Heron
, 1967-NMSC-223, 78 N.M. 427, 432 P.2d 392.
Adverse possession of public lands cannot begin
until issuance of a patent therefor.
Deaton v. Guiterrez
, 2004-NMCA-043, 135 N.M. 423, 89 P.3d 672, cert. denied, 2004-NMCERT-004, 135 N.M. 562, 91 P.3d 603.
Absence of any element fatal.
— If any one of the elements necessary to constitute adverse possession, namely, actual, visible, exclusive, hostile and continuous possession, is lacking, then no title by adverse possession can ripen.
Pan Am. Petroleum Corp. v. Candelaria
, 403 F.2d 351 (10th Cir. 1968).
B. COLOR OF TITLE.
Color of title is required under both adverse possession statutes.
Thomas v. Pigman
, 1967-NMSC-045, 77 N.M. 521, 424 P.2d 799.
Plaintiff must recover on strength of his own title
and cannot rely on any weaknesses in a defendant's title.
Baker v. Benedict
, 1978-NMSC-087, 92 N.M. 283, 587 P.2d 430.
Where there is no evidence that wife ever had "color of title"
upon which to initiate a claim of adverse possession in herself, either as a sole possessor or as a possessor in community property, the abandonment by the husband of his claim of adverse possession destroys the basis upon which the wife could have claimed a community interest as an adverse possessor, since her community interest must necessarily depend upon such an interest first being found in her husband.
Mundy & Mundy, Inc. v. Adams
, 1979-NMSC-084, 93 N.M. 534, 602 P.2d 1021.
Color of title must be supported by writing or conveyance
of some kind purporting to convey land under which the claim of title is asserted.
Currier v. Gonzales
, 1967-NMSC-259, 78 N.M. 541, 434 P.2d 66.
Where the statute requires adverse possession to be "under color of title," some writing purporting to give title to an adverse occupant is essential, and oral transactions, however effective they may be between the parties, do not constitute color of title; neither does actual adverse possession.
Sandoval v. Perez
, 1920-NMSC-058, 26 N.M. 280, 191 P. 467;
Armijo v. Armijo
, 1887-NMSC-008, 4 N.M. (Gild.) 57, 13 P. 92.
Grant of easement is not color of title.
— Where a final subdivision plat labeled a ten-acre parcel as a drainage easement, the municipality did not have color of title for purposes of adverse possession, because the grant of an easement was not the equivalent of granting fee title.
City of Rio Rancho v. Amrep Sw., Inc.
, 2011-NMSC-037, 260 P.3d 414,
aff'g in part, rev'g in part
2010-NMCA-075, 148 N.M. 542, 238 P.3d 911.
Deed requirements inapplicable.
— Strict requirements for the validity of a deed have no application to the color of title requirement for adverse possession because the interests of the legal owner, the public, and a purchaser are adequately served by compliance with all elements of the doctrine of adverse possession.
Williams v. Howell
, 1989-NMSC-009, 108 N.M. 225, 770 P.2d 870.
Facts not supporting color of title.
— Title by adverse possession was improperly granted where a decedent was a cotenant with siblings, and by deeding the property to the decedent and the decedent's wife, the decedent did not establish color of title.
In re Estate of Duran
, 2003-NMSC-008, 133 N.M. 553, 66 P.3d 326.
Recorded quitclaim deed.
— Color of title fair on its face was established by plaintiff who took by quitclaim deed which was executed and acknowledged on one day and recorded the next with plaintiff taking immediate possession.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Certificate of sale for taxes conveys color of title.
Chambers v. Bessent
, 1913-NMSC-012, 17 N.M. 487, 134 P. 237.
Color of title cannot be had against the government,
except through special statutory processes.
Deaton v. Gutierrez
, 2004-NMCA-043, 135 N.M. 423, 89 P.3d 672, cert. denied, 2004-NMCERT-004, 135 N.M. 562, 91 P.3d 603.
Patent from government gives color of title.
Ward v. Rodriguez
, 1939-NMSC-018, 43 N.M. 191, 88 P.2d 277, cert. denied, 307 U.S. 627, 59 S. Ct. 837, 83 L. Ed. 1511 (1939).
Void deed as color of title.
— A tax deed even though void for failure of title in the grantor may constitute color of title.
Gutierrez v. Ortiz
, 1954-NMSC-029, 58 N.M. 187, 268 P.2d 979.
Void special master's deed in foreclosure action.
— A special master's deed in a foreclosure action that was void for lack of jurisdiction over the mortgagor constitutes color of title as the basis for a claim to title by adverse possession.
Matlock v. Somerford
, 1958-NMSC-093, 64 N.M. 347, 328 P.2d 600.
Deed lacking signature.
— A deed is sufficient for the purpose of color of title even though it is void because it lacks the signature of a member of the community.
Romero v. Garcia
, 1976-NMSC-002, 89 N.M. 1, 546 P.2d 66.
District court judgment.
— The judgment of a district court purporting to vest title to the land of a husband in his wife is generally color of title on which prescription can be based, in absence of fraud.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Decree quieting title may furnish color of title.
Currier v. Gonzales, 1967-NMSC-259, 78 N.M. 541, 434 P.2d 66.
Where there was nothing to show fraud or bad faith in obtaining quiet title decree made in favor of appellant's husband in 1927, and the evidence showed that appellant and her husband had possession of the property under the quiet title decree and paid taxes thereon for more than the 10-year statutory period, the quiet title decree of 1927 by which appellant's husband was decreed to be the owner of the property constituted color of title.
Quintana v. Montoya
, 1958-NMSC-075, 64 N.M. 464, 330 P.2d 549.
Special master's deed.
— Under this section title was perfected in plaintiff, who claimed ownership through a special master's deed purporting to convey the fee to the entire tract to his predecessor as purchaser at a foreclosure sale despite the fact that in the foreclosure proceedings no service was ever had against the owner of a one-fifth interest in the tract.
Westmoreland v. Curbello
, 1954-NMSC-093, 58 N.M. 622, 274 P.2d 143.
Purchase agreement.
— Possession of tract of land by defendant for eight years under a lease from person with claim of title, and for 23 years as the purchaser of the property from that person under the parol agreement to purchase, upon which two-thirds of purchase price had been paid, was sufficient to establish color of title in defendant for adverse possession purposes, since he and vendor, or the representatives of vendor's estate, were at all material times in privity.
Archuleta v. Pina
, 1974-NMSC-021, 86 N.M. 94, 519 P.2d 1175.
Unprobated will.
— Holding of real property by plaintiff under the will of his mother, which was never probated and which failed to define the boundaries of the land claimed, was not a holding under color of title which could ripen into a good title by adverse possession.
Green v. Trumbull
, 1933-NMSC-096, 37 N.M. 604, 26 P.2d 1079.
Probate decree.
— A decree from a probate proceeding constitutes sufficient color of title to meet the requirements of adverse possession.
Stacy v. Simpson
, 1978-NMSC-006, 91 N.M. 350, 573 P.2d 1205.
Mortgage cannot constitute color of title
for purposes of acquiring title by adverse possession, as a mortgage does not purport to convey title to property.
Slemmons v. Massie
, 1984-NMSC-108, 102 N.M. 33, 690 P.2d 1027.
Instrument must purport to convey land involved
to constitute color of title.
Sanchez v. Garcia
, 1963-NMSC-145, 72 N.M. 406, 384 P.2d 681.
When description adequate.
— A deed is not void for want of proper description if, with the deed and with extrinsic evidence on the ground, a surveyor can ascertain the boundaries.
Romero v. Garcia
, 1976-NMSC-002, 89 N.M. 1, 546 P.2d 66.
If the description of land in a conveyance furnishes sufficient means of identification to warrant the introduction of extrinsic evidence, even though in the Spanish language, it constitutes color of title.
Garcia v. Pineda
, 1929-NMSC-009, 33 N.M. 651, 275 P. 370.
Where two deeds which had been intended to convey the lands in question mistakenly mentioned the wrong quarters, but the land in dispute was a triangular tract as described, a surveyor could have ascertained what lands were intended to be conveyed, and inquiries of the grantors and grantees named in the deeds would have further confirmed this conclusion, as would the fact that the grantees went into possession of the lands in question pursuant to the grants in the deeds and remained in possession without objection or complaint from the grantors, it was held that plaintiff's possession was under color of title.
Richardson v. Duggar
, 1974-NMSC-066, 86 N.M. 494, 525 P.2d 854.
Deed furnishing color of title gave adequate description
of land where witnesses testified with certainty that from the description they could locate the property on the ground and that the survey description covered the land in the deed.
Marquez v. Padilla
, 1967-NMSC-075, 77 N.M. 620, 426 P.2d 593.
Indefinite and uncertain description may be clarified by subsequent acts
of the parties.
Romero v. Garcia
, 1976-NMSC-002, 89 N.M. 1, 546 P.2d 66.
Subsequent act.
— Subsequent acts of the parties in erecting a house and pointing to the land for the surveyor were sufficient to ascertain the boundaries.
Romero v. Garcia
, 1976-NMSC-002, 89 N.M. 1, 546 P.2d 66.
Effect of insufficient description.
— A tax deed that is invalid due to the insufficiency of the description of the property can serve as color of title. However, where the description in the deed, aided by extrinsic evidence, is insufficient to identify the property, the deed cannot serve as color of title.
Brylinski v. Cooper
, 1981-NMSC-028, 95 N.M. 580, 624 P.2d 522.
Even though a void tax deed might otherwise constitute color of title, it cannot do so if the description of the land is insufficient to locate or identify it, and cannot be made sufficient.
Sanchez v. Garcia
, 1963-NMSC-145, 72 N.M. 406, 384 P.2d 681.
Validity of claim.
— The right given by the statute of limitations does not depend upon, and has no necessary connection with, the validity of the claim under which the possession is held.
Manby v. Voorhees
, 1921-NMSC-107, 27 N.M. 511, 203 P. 543;
Neher v. Armijo
, 1898-NMSC-005, 9 N.M. 325, 54 P. 236,
overruled on other grounds by
De Bergere v. Chaves
, 1908-NMSC-006, 14 N.M. 352, 93 P. 762;
Probst v. Trustees of Bd. of Domestic Missions
, 129 U.S. 182, 9 S. Ct. 263, 32 L. Ed. 642 (1889).
It is the essence of the statute of limitations that whether the party had a right of possession or not, if he entered under the claim of such right and remained in the possession for 10 years, the right of action of one who had a better right is barred by that adverse possession.
Probst v. Trustees of Bd. of Domestic Missions
, 129 U.S. 182, 9 S. Ct. 263, 32 L. Ed. 642 (1889).
C. GOOD FAITH.
"Good faith" defined.
— "Good faith," in the creation or acquisition of color of title, is freedom from a design to defraud the person having the better title.
Palmer v. Denver & Rio Grande W.R.R. Co.
, 1966-NMSC-023, 75 N.M. 737, 410 P.2d 956).
Good faith required.
— Although a given paper may constitute color of title, no prescription can be based thereon, unless the claimant entered thereon honestly and in good faith.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Presumption of good faith.
— Color of title of a person who claims through adverse possession is presumed to have been obtained in good faith and that the parties so entered into and continued to hold the possession.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
One who disputes the good faith of an adverse possessor who meets all other requirements of acquiring title by adverse possession holds a burden of clearly overcoming presumption of good faith.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Knowledge of adverse claim.
— The knowledge of an adverse claim to or lien upon property does not, of itself, indicate bad faith in a purchaser, and is not even evidence of it, unless accompanied by some improper means to defeat such claim or lien.
Palmer v. Denver & Rio Grande W.R.R. Co.
, 1966-NMSC-023, 75 N.M. 737, 410 P.2d 956.
Knowledge of an adverse claim to land does not of itself indicate bad faith on the part of a person who creates or acquires color of title and creation of the adverse interest is not evidence of bad faith except when improper means are used to defeat the adverse claim.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Creating invalid claim.
— Where a conveyance which furnishes claimed color of title is created and obtained with knowledge of its invalidity by one claiming title by adverse possession, there is an absence of that good faith required by the statute.
Palmer v. Denver & Rio Grande W.R.R. Co.
, 1966-NMSC-023, 75 N.M. 737, 410 P.2d 956.
Where the quitclaim deed relied upon as color of title is the creature solely of those claiming title by adverse possession, the same being secured with the knowledge of its invalidity, the policy of the law prohibits such a transaction, because one may not indirectly acquire that which the law will not allow him to acquire directly.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Where a conveyance to decedent of former wife's interest in certain community property was secured by fraud, those claiming under him were prevented from meeting the "good faith" requirement of this section.
Trujillo v. Padilla
, 1968-NMSC-090, 79 N.M. 245, 442 P.2d 203.
Bad faith not shown.
— Bad faith cannot be imputed to a plaintiff where evidence indicates that the owner of a one-half interest in land executed a quitclaim deed which purported to convey the entire premises to the plaintiff when there is no showing that plaintiff knew he received only a one-half interest.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Purchase of tax deed by cotenant.
— Since all cotenants have the duty to pay tax due on land, purchase of tax sale certificate by defendant was a delayed performance of her duty to pay taxes and a redemption of the property on behalf of all the tenants in common; hence, color of title under the tax deed was not a good faith claim adverse to the plaintiffs.
Reed v. Nevins
, 1967-NMSC-065, 77 N.M. 587, 425 P.2d 813.
Finding of "adverse possession" connotes good faith.
— It is presumed by supreme court that when trial court found plaintiff had been in "adverse possession" of certain land, the term was used as defined by statute and that it included element of good faith.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Although not specifically set forth, a finding of good faith is included in a finding that plaintiff had good title by adverse possession.
Lummus v. Brackin
, 1955-NMSC-023, 59 N.M. 216, 281 P.2d 928).
D. PAYMENT OF TAXES.
Payment of taxes on disputed tract is a specific requirement
of the adverse possession statute and lack of that evidence would defeat a claim for title whether or not any other elements of adverse possession were present.
Platt v. Martinez
, 1977-NMSC-026, 90 N.M. 323, 563 P.2d 586.
Payment of taxes on disputed tract.
— Title by adverse possession, except as to property acquired within a Spanish or Mexican land grant, is established only under this act, which, since the amendment of 1899, requires of the claimant or his predecessors or grantors, that they have, for their period of 10 years' occupancy, paid all the taxes.
Christmas v. Cowden
, 1940-NMSC-051, 44 N.M. 517, 105 P.2d 484.
As distinguished from other section.
— Payment of taxes during the period of adverse holding is not required under 37-1-21 NMSA 1978 whereas, under this section, it is required.
Marquez v. Padilla
, 1967-NMSC-075, 77 N.M. 620, 426 P.2d 593 (statute repealed).
Although this section requires the adverse claimant to pay the taxes on the property, under 37-1-21 NMSA 1978, that is not a requirement.
Apodaca v. Tome Land & Imp. Co.
, 1978-NMSC-018, 91 N.M. 591, 577 P.2d 1237 (statute repealed).
Taxes required of Pueblo land claimants.
— Claimants of Pueblo lands under the federal Pueblo Lands Act, authorizing plea of limitations to be raised against the government by, inter alia, those in possession of Pueblo lands without color of title from 1889 through 1924, were to prove the adverse possession described, and were, pursuant to the federal act, to have paid all taxes assessed and levied in conformity with New Mexico laws to the extent required by this section and not by former Section 37-1-21 NMSA 1978.
U.S. v. Wooten
, 40 F.2d 882 (10th Cir. 1930).
Nonpayment fatal.
— Where defendants pleaded title under both this section and another section, failure to show tax payments for the full period of time required eliminated a consideration under the record on appeal of title under this section.
Jackson v. Gallegos
, 1934-NMSC-016, 38 N.M. 211, 30 P.2d 719.
Payment of taxes by vendor.
— Where defendant occupied land for 23 years under a parol contract with former landlord for sale of the land, on which two-thirds of the purchase price had been paid, and where vendor had claim of title, payment of taxes by vendor for benefit of the defendant during the 23-year period was sufficient to satisfy the requirement of this section that taxes must be paid for 10-year period by party claiming adverse possession, his predecessor or grantors.
Archuleta v. Pina
, 1974-NMSC-021, 86 N.M. 94, 519 P.2d 1175.
Dual payment without knowledge of other's claim.
— Where both parties, apparently without knowledge of the double assessment or of the other's claim, paid taxes in good faith on a property, the fact that one may have paid all or a portion of the respective assessment prior to payment by the other was no indication of an inconsistency on the part of either of their claims of ownership in good faith, and the requirement of the payment of taxes under the statute was satisfied.
C & F Realty Corp. v. Mershon
, 1969-NMSC-157, 81 N.M. 169, 464 P.2d 899.
Assessor's mistaken reference not harmful.
— There could be no reasonable doubt that plaintiffs' predecessors returned and paid taxes on the land in dispute where the tax schedules prepared by the tax assessor, although erroneously locating it in accordance with the erroneous deed description, and mistakenly referring to the wrong page number in the deed book for some years, related to the land covered by plaintiffs' deeds, and the only acreage which could have been covered by these schedules, returns and payments were the acres covered by these two deeds.
Richardson v. Duggar
, 1974-NMSC-066, 86 N.M. 494, 525 P.2d 854.
Where taxes in fact paid.
— Although defendant paid taxes on a tract designated "Hortiliza 26" while plaintiff paid taxes on tracts designated "Hortilizas 25 and 28," nevertheless the taxes paid by them were actually on the lands enclosed within their respective fence lines, and that was all that was required.
Hobson v. Miller
, 1958-NMSC-050, 64 N.M. 215, 326 P.2d 1095.
Payment prior to issuance of tax deed.
— Where appellee had been in arrears several times, but did pay the taxes in each case before a tax deed was issued to the state, appellee complied substantially with the continuous payment of taxes requirement of adverse possession under this section.
Romero v. Garcia
, 1976-NMSC-002, 89 N.M. 1, 546 P.2d 66.
If a settler has paid all the taxes assessed, with penalties and interest for all the years involved, prior to the filing of the suit, and prior to tax sale, he has complied with the taxpaying requirement of this act.
U.S. v. Wooten
, 40 F.2d 882 (10th Cir. 1930).
Redemption not equivalent to "payment of taxes".
— As used in limitation statute, redemption of property from tax sale is not the equivalent of "payment of taxes."
McGrail v. Fields
, 1949-NMSC-019, 53 N.M. 158, 203 P.2d 1000.
Payment to redeem from tax sale was not a "payment of taxes" within the meaning of this section.
Pueblo De Taos v. Gusdorf
, 50 F.2d 721 (10th Cir. 1931).
Redemption from tax sale as protection of rights.
— The right to acquire title by adverse possession is capable of protection by means of redemption from a tax sale; however, by redeeming, the defendants secured nothing more than the right to continue pursuit of title by adverse possession.
Morris v. Ross
, 1954-NMSC-063, 58 N.M. 379, 271 P.2d 823.
Effect of void tax sale.
— The provisions of this act are not applicable where property was conveyed by county treasurer under correct description for taxes, when taxes had been paid thereon by the record owner, but under an incorrect description, since sale of the property by the treasurer to the state was void and the subsequent sale of the property by the state was likewise a nullity.
Pratt v. Parker
, 1953-NMSC-005, 57 N.M. 103, 255 P.2d 311.
E. POSSESSION.
1. IN GENERAL.
Possession required.
— This section clearly requires that in addition to claiming under color of title there must be an actual, visible, exclusive, hostile and continuous possession for 10 years.
Jones v. Tate
, 1961-NMSC-039, 68 N.M. 258, 360 P.2d 920;
Apodaca v. Tome Land & Improvement Co.
, 1978-NMSC-018, 91 N.M. 591, 577 P.2d 1237.
Character and use of premises determinative.
— The controlling factor in determining whether the acts of dominion exercised constitute open, hostile and exclusive possession is the character and use to which the premises are adapted.
Stull v. Board of Trustees
, 1956-NMSC-041, 61 N.M. 135, 296 P.2d 474.
The character of the land and the use to which it is adapted largely controls the acts necessary to be exercised in order to constitute open, hostile and exclusive possession.
Prince v. Charles Ilfeld Co.
, 1963-NMSC-135, 72 N.M. 351, 383 P.2d 827;
Lummus v. Brackin
, 1955-NMSC-023, 59 N.M. 216, 281 P.2d 928.
Acts of adverse possession to be as distinct as possible.
— Determination of adverse possession must largely depend upon the situation of the parties, the size and extent of the land and the purpose for which it is adapted; the only rule which is generally applicable is that the acts relied on to establish possession must always be as distinct as the character of the land reasonably admits of, and must be so exercised as to acquaint the owner, should he visit it, that a claim of ownership adverse to his title is being asserted.
Marquez v. Padilla
, 1967-NMSC-075, 77 N.M. 620, 426 P.2d 593.
Possession required to establish title need not be complete occupancy
of the entire area claimed, and where there is no question as to the property claimed and a part is actually physically occupied, and visible and notorious acts of ownership are manifested, nothing more is required.
Marquez v. Padilla
, 1967-NMSC-075, 77 N.M. 620, 426 P.2d 593.
Constructive possession of land described.
— When one is in possession of land under color of title, holding under adverse possession, such person is constructively in possession of all of the land which is described in the instrument giving color of title.
Quintana v. Montoya
, 1958-NMSC-075, 64 N.M. 464, 330 P.2d 549.
Where one was in actual possession of a portion of a tract under color of title, generally, it could be presumed that such possession extended to the limits of the land described in his deed.
Gallegos v. War
, 1968-NMSC-004, 78 N.M. 796, 438 P.2d 636.
Improvements unnecessary.
— To constitute an adverse possession there need not be a fence, building or other improvement made, if visible and notorious acts of ownership be exercised for the statutory period, after an entry under claim and color of title.
Stull v. Board of Trustees
, 1956-NMSC-041, 61 N.M. 135, 296 P.2d 474;
First Nat'l Bank v. Town of Tome
, 1917-NMSC-064, 23 N.M. 255, 167 P. 733;
Baker v. de Armijo
, 1912-NMSC-046, 17 N.M. 383, 128 P. 73.
Sections compared.
— The possession required to be proved under this section is no different from that required under 37-1-22 NMSA 1978. It must be established as adverse under both.
Marquez v. Padilla
, 1967-NMSC-075, 77 N.M. 620, 426 P.2d 593 (statute repealed).
Acts of dominion sufficient.
— Where plaintiffs, after acquiring premises, which were covered with brush, greasewood and sand dunes, established corners (with markers and later with iron pipes), cut a path several feet wide around the exterior boundaries, posted "no dumping" signs, blocked some old roads across the premises and paid all taxes, these acts of dominion were sufficient to give notice to defendants that the property claimed adversely to them.
Stull v. Board of Trustees
, 1956-NMSC-041, 61 N.M. 135, 296 P.2d 474.
Prior possession.
— In ejectment, where no legal title is shown in either party, the party showing prior possession in himself, or those through whom he claims, will be held to have the better title.
Romero v. Herrera
, 1921-NMSC-096, 27 N.M. 559, 203 P. 243.
2. NOTICE OF HOSTILE CHARACTER.
"Hostility" defined.
— "Hostility" as a requirement of adverse possession need not be "ill-will" or "evil intent," but a mere showing that the one in possession of the land claims the exclusive right thereto and denies either by word or act the owner's title.
Heron v. Conder
, 1967-NMSC-039, 77 N.M. 462, 423 P.2d 985.
Factors determining hostility.
— The hostile character of possession under the statute depends upon the occupant's own views and intentions, not upon those of his adversary, and it also depends upon the relationship of the parties and the nature of their holdings.
C & F Realty Corp. v. Mershon
, 1969-NMSC-157, 81 N.M. 169, 464 P.2d 899.
Notice of hostile claim.
— Divestiture of title by adverse possession rests upon the proof or presumption of notice to the true owner of the hostile character of possession.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177;
Apodaca v. Tome Land & Improvement Co.
, 1978-NMSC-018, 91 N.M. 591, 577 P.2d 1237.
When mere possession not enough.
— Where the original entry or occupation is permissive, the statute of limitation will not begin to run until an adverse holding is declared and notice of such change is brought to the knowledge of the owner, and, for this purpose, mere possession is not enough.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Disclaimer of owner's rights.
— Where possession is consistent with the rights of owners of record title, nothing but clear, unequivocal and notorious disclaimer and disavowal will render it adverse; there must be something which amounts to an ouster, either actual notice or acts and conduct that will clearly indicate that the original permissive use has changed to one of an adverse character.
Prince v. Charles Ilfeld Co.
, 1963-NMSC-135, 72 N.M. 351, 383 P.2d 827;
Apodaca v. Tome Land & Improvement Co.
, 1978-NMSC-018, 91 N.M. 591, 577 P.2d 1237.
Hostile possession by tenant.
— Possession originating in tenancy is presumably permissive, not hostile, and therefore divestiture of title by adverse possession under a tenancy rests upon the proof or presumption of notice to the true owner of the hostile character of possession.
Prince v. Charles Ilfeld Co.
, 1963-NMSC-135, 72 N.M. 351, 383 P.2d 827.
Tenant's disclaimer.
— A purchase by a tenant of an adverse title, or claiming under it, or any other disclaimer of tenure with the knowledge of the landlord, was a forfeiture of his term and his possession became adverse, beginning limitations in his favor, and the landlord could sustain ejectment against him without notice to quit.
Andrews v. Rio Grande Livestock Co.
, 1911-NMSC-055, 16 N.M. 529, 120 P. 311.
Notice to relatives.
— The nature of the occupation may be sufficient to give notice of its adverse character to interested parties who are strangers and yet not sufficient as to persons standing in more intimate relationship.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Permissive occupation of the family estate by one of the family is so usual that acts of occupation thereof to show hostile possession as to strangers are not sufficient as between near relatives.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Inference of permission.
— The parties were not in a relationship (i.e., brother and sister) that supported an inference of permissive possession.
Hernandez v. Cabrera
, 1988-NMCA-064, 107 N.M. 435, 759 P.2d 1017.
Acquiescence distinguished from permission.
— Acquiescence is not necessarily the same as permission. On the contrary, there may be adverse possession where possession by the claimant is with forbearance of the owner who knew of such possession and failed to prohibit it.
Hernandez v. Cabrera
, 1988-NMCA-064, 107 N.M. 435, 759 P.2d 1017.
Possession originating in cotenancy is presumably permissive, not hostile.
Apodaca v. Hernandez
, 1956-NMSC-095, 61 N.M. 449, 302 P.2d 177.
Presumption of claim.
— There is a strong presumption against claim of cotenant that he holds title in opposition to his cotenants.
Frietze v. Frietze
, 1968-NMSC-011, 78 N.M. 676, 437 P.2d 137.
There must be express denial of title of fellow cotenants
brought home to the latter openly and unequivocally.
Frietze v. Frietze
, 1968-NMSC-011, 78 N.M. 676, 437 P.2d 137.
Cotenant with siblings.
— Title by adverse possession was improperly granted where a decedent was a cotenant with siblings, and therefore, the decedent's possession was not hostile, and the decedent did not give the siblings the proper notice that the decedent was claiming hostile possession.
In re Estate of Duran
, 2003-NMSC-008, 133 N.M. 553, 66 P.3d 326.
Sufficiency of notice to cotenants.
— Until a cotenant is placed on notice of another cotenant's adverse claim to the common land, the former does not realize that a cause of action exists. Since tenants in common are each entitled to the reasonable use, occupancy, benefit and possession of the common property, nothing short of clear notice to the cotenants apprising them of the adverse claim will be sufficient to cause the statutory 10-year period to begin to run.
Apodaca v. Tome Land & Improvement Co.
, 1978-NMSC-018, 91 N.M. 591, 577 P.2d 1237.
Ouster and disseizin of cotenants.
— Plaintiffs' possession, under color of title via separate deeds from two cotenants, was not only sufficient to convert their possession into adverse possession but it operated as an ouster and disseizin of all cotenants.
Stull v. Board of Trustees
, 1956-NMSC-041, 61 N.M. 135, 296 P.2d 474.
Acts of ouster insufficient.
— Since possession in cotenancy is presumably permissive and not hostile, the mere possessing, mortgaging, leasing and the payment of taxes and water assessments are not sufficient acts as to notify a cotenant of intent to oust him and retain hostile possession against him.
Frietze v. Frietze
, 1968-NMSC-011, 78 N.M. 676, 437 P.2d 137.
Deed by one cotenant.
— Where one cotenant conveys the entire estate to one who takes possession claiming the exclusive title, this operates as a disseizin of the other cotenants and converts the possession of the grantee into an adverse possession.
Baker v. de Armijo
, 1912-NMSC-046, 17 N.M. 383, 128 P. 73.
Quitclaim by cotenant.
— A quitclaim by a cotenant of his entire undivided one-half interest in realty to a stranger constitutes a repudiation of the cotenancy.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Renunciation by life tenant.
— Before a life tenant can start statute of limitations running against the remaindermen he must do more than proclaim loudly that he is the sole proprietor; he must cease to be a life tenant, renounce that relation and bring it home to the remaindermen by an actual notice of renunciation, disclosing also that he is claiming the title under some other and different source of title.
Lotspeich v. Dean
, 1949-NMSC-054, 53 N.M. 488, 211 P.2d 979.
Claim against remaindermen.
— Where a life tenant conveys by deed purporting to transfer the entire fee, the grantee's possession is not adverse as to the remaindermen until death of the life tenant so that statute of limitations does not begin to run against such remaindermen until the life tenant dies.
Lotspeich v. Dean
, 1949-NMSC-054, 53 N.M. 488, 211 P.2d 979.
Recordation of quitclaim deed as notice.
— A grantee of a quitclaim deed who records the instrument after its delivery to him thereby gives other claimants to interests in the real estate constructive notice of the adverse character of his claim.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Recognition of boundary.
— Long recognition and acquiescence by the parties themselves affords ample evidence of the true boundary between their respective tracts of land and give rise to a presumption that plaintiff held the tract under fence adversely to defendant.
Hobson v. Miller
, 1958-NMSC-050, 64 N.M. 215, 326 P.2d 1095.
Requesting quitclaim deed.
— Where eldest brother, administrator of mother's estate and guardian of minor brothers, acquired some 25 years after her death a tax deed to her property, after it had been sold to the state for delinquent taxes (his former wife and two brothers having been coowners at that time), and informed the brothers that he had acquired the tax deed, requesting a quitclaim deed from them, failure of brothers for another 16 years to assert any rights adverse to the eldest permitted sustaining of defense of adverse possession in his favor.
Garcia v. Sanchez
, 1958-NMSC-058, 64 N.M. 114, 325 P.2d 289.
Effect of owner's forbearance.
— There may be adverse possession where possession is with forbearance of the owner who knew of such possession and failed to prohibit it.
Weldon v. Heron
, 1967-NMSC-223, 78 N.M. 427, 432 P.2d 392.
3. CONTINUITY.
Possession to be continuous.
— In order to perfect title by adverse possession, such possession must be continuous for the entire period prescribed by the statute of limitations.
Pratt v. Parker
, 1953-NMSC-005, 57 N.M. 103, 255 P.2d 311.
Break in continuity of possession.
— Where there had been a break in the continuity of hostile possession, the appellant's claim of 10 years of adverse possession had not been established.
Heron v. Conder
, 1967-NMSC-039, 77 N.M. 462, 423 P.2d 985.
Substitution of tenants permissible.
— Any break or interruption of the continuity of the possession will be fatal to an adverse claim, but temporary vacancies, caused by substitution of one tenant for another, will not destroy the running of the statute.
Johnston v. City of Albuquerque
, 1903-NMSC-011, 12 N.M. 20, 72 P. 9.
Continuity of possession is interrupted by forfeiture to state for taxes
in determining the running of the statute of limitations in favor of an adverse occupant, and a purchaser from the state who was in possession eight years, could not combine his period of possession with the period title was in the state under tax sale, in order to bring him within the adverse possession statute, because adverse possession did not start to run while state was the owner under the tax deed.
Pratt v. Parker
, 1953-NMSC-005, 57 N.M. 103, 255 P.2d 311.
Since limitations inapplicable against state.
— Where, during the running of the statute of limitations in favor of the adverse occupant of land, the land is forfeited to the state for taxes, the general rule is that continuity of possession is interrupted for the reason that the statute of limitations does not run against the state in the absence of some special provision to that effect.
Greene v. Esquibel
, 1954-NMSC-039, 58 N.M. 429, 272 P.2d 330.
Concession of another's title.
— If a defendant in possession of disputed territory concede that the true title is in another and offer to purchase from him, the continuity of possession is broken.
Chambers v. Bessent
, 1913-NMSC-012, 17 N.M. 487, 134 P. 237.
Affidavit not disclaimer.
— Affidavit by a plaintiff to the effect that his grantor was coowner of a one-half interest in land and that the other one-half interest belongs to the heirs of a named individual does not constitute a disclaimer by the plaintiff of his own claim of right nor does it constitute recognition of the claim of any other person.
Thurmond v. Espalin
, 1946-NMSC-019, 50 N.M. 109, 171 P.2d 325.
Effect of foreclosure by city.
— A person who has been in adverse possession under color of title and has continuously paid taxes for more than 10 years may nevertheless have his color of title wiped out by sale under foreclosure of paving liens.
City of Albuquerque v. Huddleston
, 1951-NMSC-032, 55 N.M. 240, 230 P.2d 972.
Adverse possessor's claim fails for lack of substantial evidence
to support a finding of exclusive and continuous possession.
Blumenthal v. Concrete Constructors Co.
, 1984-NMCA-122, 102 N.M. 125, 692 P.2d 50.
Insufficient evidence of continuous possession.
— Where lessors brought an action seeking a determination that an oil and gas lease they executed to lessee, which was later assigned to defendants, terminated, and where defendants filed counterclaims asserting adverse possession of the subject minerals, defendants' conclusory and vague allegations that they continuously worked on, developed, operated, improved and produced gas from the subject well for a period of time, unsubstantiated by any specific factual basis, including what work was done and at what specific times, failed to create a disputed issue of fact precluding summary judgment on the continuous possession claim.
King v. Estate of Gilbreath
, 215 F.Supp.3d 1149 (D. N.M. 2016).
F. APPLICATION.
No rights acquired by sporadic trespasses.
— Under dual claims of adverse possession and prescriptive right, defendants established no rights to the subject property or to easements for pasturage, wood hauling and timber cutting, where their past actions consisted of occasional, sporadic and isolated instances of trespass on the lands in question accomplished by surreptitious destroying of fences together with some isolated instances in which specific permission was given.
Payne Land & Livestock Co. v. Archuleta
, 180 F. Supp. 651 (D.N.M. 1960).
Alley with public access.
— Where general public had free access to alley, an adjoining landowner was not in possession so as to acquire title to it under statute of limitations because he was not in adverse possession of the land under these conditions.
Nickson v. Garry
, 1947-NMSC-019, 51 N.M. 100, 179 P.2d 524.
Use of easement.
— Allowing a brother and sister-in-law to use a roadway across a tract to gain access to their residence was not an act inconsistent with the claimant's use. Possession may be exclusive, notwithstanding that the land is subject to nonpossessory rights, such as easements.
Hernandez v. Cabrera
, 1988-NMCA-064, 107 N.M. 435, 759 P.2d 1017.
Placing of signs.
— The placing of three "For Sale" signs on property was not necessarily evidence of clear and convincing exclusiveness under this section.
C & F Realty Corp. v. Mershon
, 1969-NMSC-157, 81 N.M. 169, 464 P.2d 899.
Time too short.
— Although the owner had abandoned the land for over 40 years, where defendants had acquired their interest in the land only five years and three months prior to the time the owner brought action to quiet title, the 10-year period required by this section had not elapsed.
Morris v. Ross
, 1954-NMSC-063, 58 N.M. 379, 271 P.2d 823.
Pueblo land.
— Uninterrupted, open, visible, notorious, exclusive and adverse possession for more than 10 years before suit of a tract of land in the Pueblo of Nambe, entry being made under an alleged deed of conveyance long prior to the confirmation by congress of the grant, vests a perfect title by adverse possession.
Pueblo of Nambe v. Romero
, 1900-NMSC-008, 10 N.M. 58, 61 P. 122.
Claims of heirs of insane grantor were barred
10 years after the delivery of the deed and grantee's entry into possession of the property.
Field v. Turner
, 1952-NMSC-002, 56 N.M. 31, 239 P.2d 723.
Highway.
— Continuous and adverse use by the public for the requisite time is sufficient to show acceptance of a highway.
City of Raton v. Pollard
, 270 F. 5 (8th Cir. 1920).
III. PRESCRIPTION.
Public right-of-way by prescription may be established
by usage by the general public continued for the length of time necessary to create a right of prescription if the use had been by an individual, provided that such usage is open, uninterrupted, peaceable, notorious, adverse, under claim of right and continued for a period of 10 years with the knowledge, or imputed knowledge, of the owner.
Village of Capitan v. Kaywood
, 1981-NMSC-082, 96 N.M. 524, 632 P.2d 1162.
Use presumed to be adverse.
— In the absence of proof of express permission, the general rule is that a use will be presumed to be adverse under claim of right.
Village of Capitan v. Kaywood
, 1981-NMSC-082, 96 N.M. 524, 632 P.2d 1162.
Prescription distinguished from adverse possession.
— Adverse possession is distinguished from prescription in that it is, properly speaking, a means of acquiring title to corporeal hereditaments only, and is usually the direct result of the statute of limitations, while prescription is the outgrowth of common-law principles, with but little aid from the legislature, and has to do with the acquisition of no kind of property except incorporeal hereditaments.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646.
Law governing prescription.
— There is no specific statute in this state under which title to an easement or other incorporeal hereditament can be obtained by prescription.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646.
Way claimed by prescription must be definite and precise
strip of land.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646.
Prescriptive right cannot grow out of strictly permissive use,
no matter how long the use.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646;
Village of Capitan v. Kaywood
, 1981-NMSC-082, 96 N.M. 524, 632 P.2d 1162.
Prescriptive use of land defined.
— A prescriptive use of land is defined as either a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or a use that is made pursuant to the terms of an intended but imperfectly created easement, or the enjoyment of the benefit of an intended but imperfectly created easement.
Segura v. Van Dien
, 2015-NMCA-017, cert. denied, 2015-NMCERT-001.
Where plaintiff landowner and previous owners of adjacent tract of land built a common driveway for the benefit of both property owners, together agreed on the location of the driveway and shared the expense of the driveway's construction, and the previous landowners intended to grant plaintiff an easement over the common driveway but ultimately failed to reduce the agreement to writing, plaintiff's open use of the common driveway for the prescriptive period was pursuant to an intended but imperfectly created easement and constitutes prescriptive use.
Segura v. Van Dien
, 2015-NMCA-017, cert. denied, 2015-NMCERT-001.
Scope of a prescriptive easement.
— The general rule is that the extent, or scope, of a prescriptive easement is established by its historical usage. Determining historical usage involves proof of the use made during the prescriptive period.
Ulibarri v. Jesionowski
, 2023-NMCA-008.
Sufficiency of evidence regarding findings of prescriptive easements.
— Where plaintiffs filed a complaint seeking declaratory and injunctive relief, quiet title, and damages, after defendants purchased land located between two properties owned by plaintiffs, asserting that plaintiffs had easement rights to cross defendants' property over four dirt trails described as "Roads" and that defendants had locked the gates on Roads 1, 2, and 4 and had threatened to prevent plaintiffs from using Roads 1, 2, 3, and 4 in the manner in which they have historically used those roads to move cattle and equipment as needed to maintain and develop their cattle business, and where a jury found in favor of plaintiffs on their claims for prescriptive easements on all four roads, and where, in a bench trial following the jury verdict to determine the scope of use allowable under the easements, the district court adopted the jury verdict as its own regarding the prescriptive easements over the four roads and concluded that, in addition to the prescriptive rights found by the jury, plaintiffs had easements by estoppel over Roads 1 and 2, and easements by necessity over Roads 3 and 4, there was sufficient evidence to support the district court's finding of prescriptive easements as to Roads 1 and 2, but the district court erred in concluding that Roads 1 and 2 were subject to easement by estoppel, because the ruling is incompatible with the grant of a prescriptive easement, and erred in concluding that Roads 3 and 4 were subject to a prescriptive easement, because once the district court found that plaintiffs had an easement by necessity over Roads 3 and 4, it was inappropriate, as a matter of law, for it to also recognize and grant an easement by prescription.
Ulibarri v. Jesionowski
, 2023-NMCA-008.
Easement by prescription.
— An easement by prescription is created by an adverse use of land, that is open or notorious, and continued without effective interruption for the prescriptive period of ten years.
Brannock v. The Lotus Fund
, 2016-NMCA-030, cert. denied.
In a dispute over access to property, where the evidence established that plaintiffs utilized the access road at issue continuously in an open, notorious, and adverse fashion without permission since they purchased the land in 1979, there was substantial evidence presented at trial to support the district court's findings by clear and convincing evidence that plaintiffs established each of the required elements for prescriptive easement.
Brannock v. The Lotus Fund
, 2016-NMCA-030, cert. denied.
Frequency of use or minimum number of users is not required to establish a public prescriptive easement.
— When proving a public prescriptive easement claim, one does not need to prove a minimum number of users or frequency of use. Rather, a claimant only needs to prove that use of the road in question was free and common to all who had occasion to use it as a public highway.
McFarland Land and Cattle v. Caprock Solar
, 2023-NMSC-018,
rev'g
2021-NMCA-057, 497 P.3d 665.
Public character of the road, not the frequency of use, guides a fact finder's determination of a public prescriptive easement.
— Where a road in Quay county (Quay road), which begins on State Road 278 and runs south along tracts of land owned by plaintiff, was rerouted onto plaintiff's property after a flood washed out a wooden bridge that crossed an arroyo near plaintiff's property, and where plaintiff filed a petition for a permanent injunction seeking to enjoin defendants from using the portion of Quay road that crossed his property (water crossing), and where the county filed a complaint seeking a declaration that the county road's water crossing is within a public prescriptive easement and that plaintiff had no right to interfere with the public's use of the county road and the water crossing, and where the district court entered judgment in favor of defendants and the county, finding that a public prescriptive easement existed over the county road based on evidence of records, certifications, and maps showing Quay road as a county road, evidence of Quay road's reputation as a public road, and evidence that plaintiff's neighbors used Quay road and never felt the need to ask for permission to use it, and that plaintiff never prevented others from using Quay road, and where the New Mexico court of appeals reversed the district court, concluding that the county and defendants did not show a sufficient amount of actual use by the general public, there was substantial evidence to support the district court's conclusion that the public used the water crossing and that a public prescriptive easement existed over that portion of Quay road. The law of prescriptive easements in New Mexico does not require a showing of a minimum amount of use or number of users, as it is the public character of the road that guides a fact finder's determination of a public prescriptive easement.
McFarland Land and Cattle v. Caprock Solar
, 2023-NMSC-018,
rev'g
2021-NMCA-057, 497 P.3d 665.
Evidence failed to establish a public prescriptive easement.
— Where plaintiff filed a petition for a permanent injunction to stop defendants from using the portion of a county road that runs along the eastern border of his property (lower crossing), and where defendants answered and asserted affirmative defenses that plaintiff's claims were barred by virtue of an implied easement, prescriptive easement, or an easement by necessity, and where the county of Quay intervened and filed a complaint for declaratory judgment, arguing that the public, including defendants, had the right to use the road because it was a county road and asked the district court to declare that the lower crossing is within a public prescriptive easement, the district court erred in finding that defendants and the county proved the elements of a public prescriptive easement, because for a public easement by prescription, defendants were required to show usage by the general public that continued for the length of time necessary to create a right of prescription if the use had been by an individual, and, in this case, the testimony did not establish use of the lower crossing by the public, and the district court made no specific findings on the topic. Defendants did not meet their burden to establish by clear and convincing evidence that the general public used the lower crossing, and thus have not established the requirements for a public prescriptive easement.
McFarland Land and Cattle Inc. v. Caprock Solar 1, LLC
, 2021-NMCA-057, 497 P.3d 665,
rev'd by
2023-NMSC-018.
When owner charged with knowledge.
— If user by claimant of easement by prescription was open, adverse, notorious, peaceable and uninterrupted, the owner would be charged with knowledge of such user, and acquiescence in it would be implied.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646.
Length of prescriptive period.
— The New Mexico prescriptive period is 10 years, as is the period for adverse possession. This being so, it follows that the period during which one must sue to enforce an easement is 10 years.
Jinkins v. City of Jal
, 1963-NMSC-198, 73 N.M. 173, 386 P.2d 599.
Ten-year prescriptive period not met.
— Where plaintiff filed a quiet title action against adjacent landowners, seeking injunctive and declaratory relief against defendants' attempts to block plaintiff's access over a 15-foot driveway on defendants' property, and where plaintiff claimed that she had established a prescriptive easement, evidence that use of the driveway had been permissive until 2004 and that defendants had erected a fence in 2013 established that plaintiff failed to show adverse use of the driveway for the required ten-year period required by law for a prescriptive easement.
Tafoya v. Morrison
, 2017-NMCA-025, cert. denied.
Applicable period of limitation.
— Where the court's decision is based upon a statute of limitations as distinguished from laches, in a suit to enjoin a restrictive covenant or negative easement, the applicable period of limitation is the period of prescription.
Jinkins v. City of Jal
, 1963-NMSC-198, 73 N.M. 173, 386 P.2d 599.
Length of prescriptive period.
— In this state the period of use necessary to create an easement by prescription is 10 years following our statute of limitations with reference to adverse possession of land.
S. Union Gas Co. v. Cantrell
, 1952-NMSC-024, 56 N.M. 184, 241 P.2d 1209.
The period of use necessary to create an easement by prescription is 10 years, following our statute of limitations with reference to adverse possession of land.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646;
Archuleta v. Jacquez
, 1985-NMCA-077, 103 N.M. 254, 704 P.2d 1130.
Effect of unrecorded written easement.
— Where gas company acquired easement for right-of-way by written instrument which was not recorded and the easement was not visible or open, a third-party purchaser without knowledge of the easement was not bound thereby, since gas company did not have prescriptive easement in the land.
S. Union Gas Co. v. Cantrell
, 1952-NMSC-024, 56 N.M. 184, 241 P.2d 1209.
Review.
— District court's finding and judgment that defendant had title by prescription to right-of-way over plaintiff's land would not be disturbed on appeal, if there was substantial evidence to support the finding and judgment.
Hester v. Sawyers
, 1937-NMSC-056, 41 N.M. 497, 71 P.2d 646.
Prescriptive extinguishment of easements.
— An easement will be prescriptively extinguished if the servient owner's use of the area is adverse to the easement owner's rights in the easement, open or notorious, and continuous without effective interruption for the prescriptive period of ten years. The level of adversity must amount to an unreasonable interference such that the easement owner is on notice that the easement is under threat, and the extinguishment resulting from the servient owner's adverse use may be complete, or partial, based on the extent it interferes with the easement holder's rights.
Mimbres Hot Springs Ranch v. Vargas
, 2023-NMCA-046, cert. denied.
Defendants' conduct failed to satisfy the adversity element for extinguishment by prescription.
— Where, in 1981, a third party who owned property abutting plaintiff's property, granted plaintiff an express easement, consisting of an old road that allowed plaintiff to access its property without needing to cross a creek that tends to flood during monsoon season, and where, in 1993, defendants purchased the property from the third party, subject to plaintiff's easement, and where defendants replaced an existing wire gate with a metal tube gate across the easement, which has remained locked since it was first installed in 1993, and where, despite the locked gate, plaintiff's individual members have used the easement for walking, hiking, and occasionally surveying the property, by going around the gate, and where, in 2015, plaintiff asked defendants to remove the gate so that it could improve the easement into a road that could be driven on more easily, and where defendants denied plaintiff's request, claiming that the easement was not valid due to non-use, and where plaintiff filed a complaint, seeking to quiet title to the easement and an order enjoining defendants from blocking the easement, and where defendants counterclaimed seeking to quiet title in their favor, alleging the easement had either been abandoned or prescriptively extinguished, the district court did not err in granting plaintiff's motion for summary judgment, because defendants' act of placing a locked gate over the easement was not sufficiently adverse so as to unreasonably interfere with plaintiff's enjoyment of the easement and did not put plaintiff on notice that its rights in the easement were under threat.
Mimbres Hot Springs Ranch v. Vargas
, 2023-NMCA-046, cert. denied.
Law reviews.
— For article, "Adverse Possession in New Mexico - Part One," see 4 Nat. Resources J. 559 (1964).
For article, "Adverse Possession in New Mexico - Part Two," see 5 Nat. Resources J. 96 (1965).
For comment on Trujillo v. Padilla, 79 N.M. 245, 442 P.2d 203 (1968), see 9 Nat. Resources J. 101 (1969).
For article, "Survey of New Mexico Law, 1979-80: Property," see 11 N.M.L. Rev. 203 (1981).
For note, "Clouded Titles in Community Property States: New Mexico Takes a New Step," see 21 Nat. Resources J. 593 (1981).
For note and comment, "Go Not Where There is a Path: Prescriptive Easement Law in New Mexico After Algermissen v. Sutin," see 35 N.M.L. Rev. 625 (2005).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 3 Am. Jur. 2d Adverse Possession § 1 et seq.
Loss of easement by adverse possession, or nonuser, 1 A.L.R. 884, 9 A.L.R. 423, 33 A.L.R. 807, 66 A.L.R. 1099, 98 A.L.R. 1291, 25 A.L.R.2d 1265.
Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457.
Rule that title subsequently acquired by grantor or assignor inures to the benefit of the grantee or assignee as affecting question of color of title, 6 A.L.R. 1430.
Scope and application of the doctrine that one cannot claim adverse possession under color of title where he has deprived himself or been deprived of the color relied on, 136 A.L.R. 1349.
Validity and construction of war enactments in United States suspending operation of statute of limitations, 137 A.L.R. 1440, 140 A.L.R. 1518.
Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.
Sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.
Statute of limitations applicable to action for encroachment, 24 A.L.R.2d 903.
Estoppel to rely on statute of limitations, 24 A.L.R.2d 1413.
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R.2d 986.
Acquisition by user or prescription of right-of-way over unenclosed land, 46 A.L.R.2d 1140.
Forged deed or title as constituting color of title, 68 A.L.R.2d 452.
Judgment or decree as constituting color of title, 71 A.L.R.2d 404.
Fences as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.
Way of necessity over another's land, where a means of access does exist, but is claimed to be inadequate, inconvenient, difficult or costly, 10 A.L.R.4th 447.
Way of necessity where only part of land is inaccessible, 10 A.L.R.4th 500.
Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R.4th 420.
Presumptions and evidence respecting identification of land on which property taxes were paid to establish adverse possession, 36 A.L.R.4th 843.
Grazing of livestock, gathering of natural crop, or cutting of timber by record owner as defeating exclusiveness or continuity of possession by one claiming title by adverse possession, 39 A.L.R.4th 1148.
Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.
2 C.J.S. Adverse Possession § 1 et seq.