Maxwell Land-Grant Company v. Dawson
Statement by Mr. Justice BROWN:

This was an action of ejectment, brought by the plaintiff in error in the district court of the fourth judicial district of New Mexico, to recover of the defendant the possession of a large tract of land within what is known as the Beaubien and Miranda or Maxwell land grant.

The declaration was in the ordinary form of a declaration in ejectment, averring the right of the plaintiff to the possession of the entire Maxwell grant, and the unlawful entry of the defendant into that portion thereof situate in the county of Colfax.

Defendant disclaimed as to all the land described in the declaration, except a certain tract described in his first additional plea, as follows: 'All the land in the valley or drainage of the Vermejo river, in the county of Colfax, territory of New Mexico, within the following boundaries: Commencing at the dam on said river at the upper end of John B. Dawson's farm; thence running to a high point of rocks on the north side of the Vermejo canon; thence following along the top of the divide west of Rail canon to the head of Saltpeter canon; thence down along the top of the divide east of Saltpeter canon to a point on a line with John B. Dawson's rock fence; thence following the line of said rock fence across the Vermejo to the top of the divide between the Vermejo and Van Bremmer canon; thence following the top of said divide to the head of Coal canon, and thence along the top of the divide east of Coal canon to a point on said divide nearest the place of beginning; thence to the place of beginning.' He further pleaded adverse possession of these lands for more than to years next before the commencement of the suit, and that the plaintiff's right to sue for the same accrued more than 10 years prior thereto.

Plaintiff deraigned title from the original grantees, through Lucien B. Maxwell; but in the deed from Maxwell and wife to the Maxwell Land-Grant & Railway Company of April 30, 1870, there was the following exception: 'Excepting from the operation of this conveyance such tracts of land, part of the said estate, hereby warranted not to exceed in the aggregate fifteen thousand acres, which the parties of the first part have heretofore sold and conveyed by deeds duly recorded on or prior to the 25th day of January, one thousand eight hundred and seventy;' and all the subsequent deeds under which the plaintiff claimed, contained the same exception, though not exactly in the same words.

Upon the conclusion of the plaintiff's case, defendant offered evidence tending to show that he occupied under claim of title, and was generally reputed to own, a large tract of land, described in his plea, the lower line of which was the projection, for a distance of about six miles east and west, of a stone fence built by him across the valley of the Vermejo river, and including within its east and west limits the entire of what was known as the Coal and Rail canons, and the upper waters of the Lacey, Spring, and Saltpeter canons, with the lands and drainage incident thereto. The testimony upon the question of adverse possession, of which there was a large amount, showed that defendant made use of the canons for the purpose of ranging or pasturing cattle, horses, and hogs, and indicated that from the year 1872 to 1883 he had an average of 125 horses, 200 cattle, and some hogs, which were turned loose in the canons within the tract. He looked after them from time to time, and, if cattle belonging to other people were there, he turned them out. There was also evidence tending to show that below him the valley of the Vermejo river was pastured by one Lacey, and below him by one J. W. Curtis, and also by Miller and Maulding. The testimony of Maulding himself tended to show that he and Dawson and two others went into possession of the land under a contract of purchase from Maxwell, and that they were virtually tenants in common under this contract; that, after Maxwell put them into possession, they divided up the entire tract which he undertook to sell them, each one taking exclusive possession of his particular part. There seems to have been what the witness termed 'a kind of a bond for a deed,' to which Maxwell and Curits were parties; but it was not produced, and testimony of its contents was ruled out.

Defendant himself took the stand, and testified that in 1867, Curtis, Maulding, and Miller came onto the Vermejo, and told him 'they had a contract' and claimed to have possession of the land from the dam, which marked the starting point of his (Dawson's) deed, down the river to a place known as the 'O'Donnell Farm,' with all that drainage and lands the water would flow in between these points and the Vermejo river; that it included the land claimed by him, the defendant; that they were residing upon a part of the land themselves; and that Maulding and Curtis told him to take possession of the land he claimed, and on the line fixed by them as his lower boundary he built a stone fence across the valley. He also testified that in June, 1868, he had a conversation with Lucien B. Maxwell in regard to the tract of land which he claimed; that Maxwell knew he was in possession of it; that the boundaries of the tract set forth in his plea were pointed out by Maxwell; and that he paid $3,700 for the land, though he afterwards stated that he paid the money to Mr. Curtis, who gave it to Maxwell. On cross-examination examination he produced a deed from Maxwell and wife to himself, bearing date January 7, 1869, in which, for a consideration of $3,700, Maxwell conveyed to him the property admitted in this suit to belong to him, and described as follows: 'All the land or ground now suitable for farming or cultivating purposes in the valley or drainage of the Vermejo river, county of Mora, territory of New Mexico, within the following boundaries, to wit: Beginning at a certain dam at the head of a certain ditch at the righthand point of rocks, from thence running down on the north side of said river to a certain other pile of rocks, on a knoll or elevation, with some bushes near thereto; thence running very near southward across said river to a pinon tree to the right of a ridge, near a wash, which tree is marked with a letter 'L;' thence running up said river on the south side to the place of beginning; containing about _ acres, more or less.' This deed he claimed to have received by mail some time in 1869, and admitted to have shown to one Morley, who, in 1871, came to his house, under orders from the president of the plaintiff company, to survey the land. He appears to have entered upon the land the year before the deed was given, to have made numerous improvements, such as houses, orchards, and fences, and to have put the land under cultivation by means of irrigating ditches. All these improvements, except some cattle fences, were put upon the land described in the deed. Upon redirect examination, he stated that when he first came on the Vermejo, in the early part of 1868 or 1869, passing through, Curtis and Maulding told him that they had a contract with Maxwell for a piece of land there, beginning at the dam, and running down the river to the lower end of what was known as the 'O'Donnell Farm,' with all the drainage, with the water that flowed from between this dam and the lower end of the O'Donnell farm. That they asked him (defendant) if he wanted some of it. 'I studied a good while, and said, 'If you will let me have the upper part,' which they agreed to do. * * * The contract which they had was for a block of land. * * * Curtis and Maulding told me that they had this whole drainage belonging to this block of land, and this was my part; and I talked with them often about it, and I talked with others.' He further testified that when Maxwell pointed out to him the boundaries of the land they were down at a stage station, some four miles away, though they could see the prominent points of the tract from where they were, and that this was six months before he received his deed.

The case was tried by a jury, and a general verdict of not guilty returned, upon which final judgment was entered. The case was then carried to the supreme court of the territory, by which the judgment of the district court was affirmed. 34 Pac. 191. Plaintiff thereupon sued out a writ of error from this court.

The third assignment of error, on which the case turns in this court, will be found in the margin. 

Frank Springer, for plaintiff.

Andrieus A. Jones, for defendant.

[Argument of Counsel from pages 593-594 intentionally omitted]

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

"They told me that they had a contract for a piece of land there, beginning at this dam that has been described, running down to the river to the lower end of what is known as the O'Donnell farm, with all the drainage of the water that flowed from between this dam and the lower end of the O'Donnell farm. They asked me if I wanted some of it. I studied a good while and said, 'If you will let me have the upper part,' which they agreed to."

..."Curtis and Maulding told me that this whole drainage belonged to this block of land, and this was my part; and I talked with them often about it, and I talked with others. I talked with Maxwell, and Maxwell and myself were frontiersmen at this time when I talked with them at the stage station, and he observed that I did not get as much land."

Also in admitting the testimony of other parties touching Dawson's ownership of and claim to the land in question, to wit: Q. Have you ever heard the people other than Dawson residing in that vicinity speak of this land as belonging to any one?  A. Yes, sir.  Q. State the names of the persons that they always spoke of it as belonging to.  A. They have always spoken of it as belonging to Mr. John Dawson.  Q. How long have you heard the people in that vicinity speak of it in that way?  A. Since I have been in the country."

..."Q. While you were in the Vermejo for that year or two, did you have any conversation with the people residing in that neighborhood as to who owned this tract of land that I read you the description of?  A. Yes, sir.  Q. Was that tract of land spoken of as belonging to any one?  A. Yes, sir.  Q. As belonging to whom?  A. Mr. Dawson's, and also of Miller, Maulding, and Curtis.  Q. Have you heard them speak of Miller and Maulding's land, too?  A. Yes, sir.  Q. Where were they with reference to this tract of land I read you the description of?  A. They were further down the creek.  Q. Did you ever hear the people there speak of Dawson's south boundary line, as to where it was?  A. Yes, sir.  Q. What was it, according to their statements?  A. They said it was above Lacey's ranch, adjoining Dawson's land. At that time it belonged to De Graftenreid.  Q. During the time you were there, did you hear the people residing in that vicinity talk about Dawson's south boundary line?  A. Yes, sir.  Q. What did they speak of as his south boundary line?  A. They said he was going to fence in his portion of the land from this stone fence, when it was found he was going to continue the stone fence to the high point to the divide."

..."A. He claimed from the dam on the Vermejo above his house to a rock fence below his house, and all drainages from either side."

Also the following: "Q. Was that land ever spoken of as the land of any one?  A. Yes, sir.  Q. Of whom?  A. John B. Dawson." ...

..."Q. Have you ever heard the people in that neighborhood other than Dawson speak of any one as being the owner of this tract of land?  A. Yes, sir.  Q. Of whom did they speak as the owner of the land?  A. As Mr. Dawson's."

..."Q. Did you ever hear any neighbors around there speak of this tract of land as the property of any one?  A. Yes, sir; I have heard a great many speak of it.  Q. They spoke of it as whose property?  A. John B. Dawson's."

..."Q. Did you ever hear any of these people speak of this land as belonging to any one?  A. Yes , sir.  Q. They have spoken of it as belonging to whom?  A. To Mr. Dawson."

..."A. I told them that my father claimed all the drainage of the Vermejo River that was above his lower line, and the heads of the canons — all the drainage above his lower line that come in on the property of the Horseshoe property, including his own place."

..."A. It was the upper tract of this purchase or the upper part of this purchase that Maxwell made to us on the Vermejo River."

"A. I talked with my neighbors and we spoke of his upper tract. We often talked about this piece of land and Dawson owning this piece of land with its drainage."

..."Q. While this defendant was in possession of this land in 1868, did Maxwell have actual knowledge of that possession?  A. Yes, sir."

..."Q.Did you have any conversation with any one in that neighborhood as to who claimed to own this tract of land?  A. Yes, sir; I have heard several say who owned it.  Q. Who did they speak of as owning it?  A. They said Mr. Dawson was the owner of it."

Also the following: "Q. Do you know whether Maxwell knew that Dawson was in possession of this tract of land?  A. He knew that he was."

..."Q. What land did these people claim to have possession of at that time?  A. They claimed to have possession of the land from the dam that now belongs to me down the river to a place known as the O'Donnell farm, to the lower end of the O'Donnell farm, with all the drainage and lands the water would flow in between these points to the Vermejo River."

..."Q. Did Maxwell know that you were in possession of that tract of land?  A. Yes, sir."

..."Q. What was to be the extent of that southern line?  A. There was an extension from the east end, across Lacey Canon, across Saltpeter Canon to the top of the divide of Saltpeter Canon and the waters flowing to the east; and the other end, an extension from the rock fence across Lacey Canon to the top of the divide between Lacey Canon and the Van Bremmer

Canon.  Q. Do you know why that line was established there at all? A. Yes, sir.  Q. Why?  A. To divide my property from the next property below."
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