Upton v. Santa Rita Mining Co.

Citations

• 14 N.M. 96
• 89 P. 275

Syllabus

<p>SYLLABUS (by THE COURT).</p> <p>1. In adverse suits brought pursuant to R. S. U. S. 2326, an ordinary declaration in ejectment is sufficient to present all the questions involved between the applicant for patent and an adverse claimant; following Deeney v. Mineral Creek Milling Co., 11 N. M. 279.</p> <p>2. In such suits, however, the rules -governing ordinary ejectment suits are -modified by -C. L. 2290 which provides that mere prior possession shall not constitute a basis for recovery and by the Act of Congress of ¡March 3, 1881, which requires that the defendant no less than the plaintiff shall recover on the strength of his own title.</p> <p>3. In order therefore that the court may be advised of the nature of the suit so as to apply these exceptional rules, there should in .addition to the ordinary allegations in ejectment be appropriate allegations showing the- fact that such suit is designed as an adverse suit.</p> <p>4. The complaint in the present cause examined and held sufficient for adverse suits.</p> <p>5. -In such a suit a verdict in the form “We the jury find the defendant guilty” i® sufficient to answer ¡all the purposes of the proceeding.</p> <p>6. In suich a -suit the parties are upon proper request entitled to special findings upon questions relevant to the cause but in the absence of such request it is not error for the Court to fail to require findings of the jury.</p> <p>7. In descriptions natural or artificial monuments ordinarily prevail over courses and distances.</p> <p>8. A call in a description for “West” will be read “East”, where such ¡change is necessary to enable -the survey to close upon the starting corner.</p> <p>9. In case óf a conflict in the calls of a description such elements of description will be preferred as are the least liable to mistake.</p> <p>10. If the rejection of a call will reconcile all parts of the description and leave enough to identify the tract, such call will ibe rejected and the description thus preserved.