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such statements as are provided in the law the assistant superintendent to the person enof practice to present the matters of law titled thereto, i. e. E. H. Bergmann, but he had and fact to the appellate court for review,

never applied for it, but that he did claim the provided, of course, that the same are pre

salary of the superintendent, which was also

claimed by said ). Francisco Chavez. That he pared, settled, and certified within the time

had, in his report to the thirtieth legislative asprescribed by law, (Territory v. Fallis, 2 sembly, recited these facts, and had asked for Mont. 236; Flynn v. Cottle, 47 Cal. 526; Mc- the consideration of the same by that body, but Allep v. The Latona, [Wash.) 19 Pac. Rep. that it failed to act upon it. That wbile Berg. 131.) Therefore an order will be entered

mann was assistant superintendent, regularly overruling respondent's motion herein.

employed and appointed as such, he could oniy draw the salary provided for that position; and

wbile Barber (the defendant in error) was spDE WITT, J., concurs. PEMBERTON,

pointed as and employed in the office of foreC. J., being absent, did not pass upon these man of the brick yard and yard master, he questions.

could only draw the pay to which that position entitled him, i. e. $720 per annum, instead of the pay of the assistant superintendent, $1,500

per annum, although he had actually per PEREZ, Auditor, v. BARBER.'

formed the duties of that position as well as

those of yard master, as under the law he was (Supreme Court of New Mexico. Aug. 24, required to perform any duties which might 1893.)

be imposed upon him, without any additional APPEAL-RECORD-QUESTIONS NOT RAISED Below.

compensation. Upon the bearing there were

no contested questions of fact, the oniy quesAs the supreme court will only consider questions which were passed upon by the trial

tion being as to the duty of the auditor, under court, where the record does not show that any

the facts stated in the petition, answer, and of the pleadings were demurred to, nor that stipulation, to draw the warrant for the balany exceptions were taken to the rulings at ance of the salary of the relator for the time be the trial, nor that a motion for a new trial was acting as assistant superintendent. was made, it presents nothing for review.

It is claimed by the relator that under sec

tion 35, c. 76, p. 177, of the Session Laws of Error to district court, Santa Fe county; Edward P. Leeds, Judge.

1889, the board of penitentiary commissioners Action by Philip J. Barber against Demetrio

was the sole and exclusive auditor of all claims, Perez, auditor of public accounts, for manda

and, their certificate being given to the claim

ant, it was the absolute duty of the auditor to Plaintiff had judgment, and defendant

draw his warrant for the amount, and that he brings error. Affirmed.

had no discretion in the matter, and this vier Edward L. Bartlett, Sol. Gen., for plaintiff in was the one taken by the court below, and its error. Francis Downs, for defendant in error. decision was rendered upon that point. In

closing a somewhat lengthy opinion in the case LEE, J. This was an action by mandamus, the court says: “The auditor has the right to on the part of the plaintiff below, to compel know that the certificate is legal and proper; be the auditor of public accounts of the territory can inquire to see if he has paid the claim be(the plaintiff in error) to draw a warrant on the fore, but beyond that he cannot go. The 8C treasurer of the territory for the sum of $203.38, tion of the board is a finality as far as he is conin payment of an account allowed by the board cerned. If they act illegally, that is none of his of penitentiary commissioners in his favor for business, for he is protected by the certificate. services rendered as assistant superintendent The courts were instituted to correct the of the New Mexico penitentiary during the wrongdoings of legal boards, not the auditor. year 1892. An alternative writ was issued, and It is on this ruling of the court that the plainå return thereto made, which admitted the al- tiff in error, by writ of error, brings the case lowance of said claim by the board of peniten- for review to this court. A question arises tiary commissioners, but denied their right to whether the record here presents the case in so allow it, as during the time that he was act- such a manner that the court can pass upon it. ing as assistant superintendent of the peniten- The only proceedings in the case properly tiary he was the regularly appointed and act. brought before us by the record are the writ, ing yard master and foreman of the brick yard with certain exhibits, the return of the reof said penitentiary at a salary of $720 per an. spondent thereto, and the judgment of the num, all of which had been paid to him; and court granting the writ. Mandamus is a civil that E. H. Bergmann was the regularly ap. action, and, with the exceptions of the pleadpointed and acting assistant superintendent of ings, is tried and proceeded with in the same such penitentiary at the time, and was entitled manner as other civil actions. The writ and to the pay appertaining to such position: and the return constitute all the pleadings which that J. Francisco Chavez was the duly and reg. sball be allowed. The conduct of the trial difularly employed superintendent of such peni- fers in no respect from the trial of any other tentiary during such time, and had qualified by civil action. The matters charged in the writ, taking the required oath and giving the neces- which are denied by the respondent, must be sary bond, and had appointed said Bergmann proven by the relator, and matters in avoidassistant superintendent, and said Barber (de- ance alleged in the return must be proven by fendant in error) as yard master and foreman the respondent. If the writ does not state sui. of the brick yard, which appointments had ficient grounds to authorize the court to issue been contirmed by the board of penitentiary it, the respondent might demur thereto, and commissioners; and that no successor to said thus raise a question of law, which, if overChavez as superintendent had been employed ruled by the court, would be such a final judg. by said penitentiary board. That he had been ment as would authorize him to appeal 'if be always ready to audit and allow the salary of desired to do so. In this manner, plaintiff in

error here might bave raised the question 1 Motion for rehearing pending.

which in this record he attempts to present to

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the court. In all cases where matters in issue tract described in his first additional plea, of law and fact are submitted to the court the as to which he pleads not guilty, and in parties must separate the matters of law from

his third and fourth pleas makes defense those of fact, and have the opinion of the court

as to this tract under the statute of limitaupon the points of law. Then it can be seen on what ground the court decided the case.

tions. Plaintiff, by its replication to these But in this case, if there be any error at all, we

pleas, joins issue, except as to a certain cannot consider it, because it was not present- part of the land claimed by defendant, ed to the court below. The statute provides which part it admits to be the property of that the supreme court may consider only such the defendant. The real controversy, there questions as were raised below, and passed up

fore, is as to the ownership of the land lying on by the court; so, if error bas been commit.

outside of the boundaries of a larger tract ted, there might be an opportunity to correct

admitted to belong to defendant, and within it. There were no exceptions taken to any ruling of the court below, no demurrer filed to

the boundaries of a larger tract claimed by any of the pleadings, nor was there any motion defendant. That is to say, defendant's made for å new trial. We do not think the ownership of a certain tract is admitted. He record before us properly presents any ques. claims, not only this, but a larger one sur. tion for our consideration which would justify rounding it, which is disputed. The contenthis court in reversing the judgment of the

tion is over the land embraced in the excess. court below, which judgment is therefore ordered affirmed.

The plaintiff introduced in evidence the

patent of the United States for its grant, and O'BRIEN, C. J., and FREEMAN, J., concur. deeds showing a chain of title from Lucien

B. Maxwell, who, it is admitted, was the FALL, J. I agree that the decision of the

former owner of the grant, down to the court should be affirmed for tbe reason that

plaintiff, the Maxwell Land-Grant Com. the record in the cause, after granting motion to strike out, as made by defendant in error,

pany, which deeds all contain the following presents no cause for reversal.

reservation: “Excepting and reserving from said grant and estate such lands, not exceeding, in the aggregate, fifteen thousand acres, as had been conveyed by the said

Lucien B. Maxwell prior to the 26th day of MAXWELL LAND-GRANT CO. V. DAW. SON.

May, 1869." This chain of title from the

original grantees named in the patent down (Supreme Court of New Mexico. Aug. 15,

to the plaintiff in this suit, with proof of 1893.)

heirship of some of the grantees, was all the EJECTMENT - TITLE TO SUSTAIN RECEPTION OF

evidence offered on the part of the plaintiff EVIDENCE TRANSFER OF LAND BY PAROL Civil Law.

in support of its title to the lands in ques. 1. Where plaintiff in ejectment claims un- tion; and with this, and some oral testider deeds which cover a tract of which the

mony tending to show that the land claimed land in dispute is a part, but which except and

by Dawson was a part of the land embraced reserve from the grant a certain number of acres, not described, which had been conveyed

in the patent of the Beaubien and Miranda by a former owner to other persons, the bur- grant, plaintiff rested its case. The defendden is on plaintiff to show that the land in dis

ant then asked the court to instruct the jury pute is not a part of the land so excepted. 2. Where evidence offered for a certain

to return a verdict in his favor, on the purpose is inadmissible for that purpose, its re- ground that the plaintiff had failed to show jection is not rendered erroneous by the fact that the land claimed by the defendant was that it is admissible for another purpose, not

not a part of the 15,000 acres exempted from alluded to by the party offering it. 3. Under the civil law, as existing in the

the deeds in its chain of title as lands hav. territory of New Mexico in 1868, a verbal con- ing been conveyed by Lucien B. Maxwell tract for the sale of real estate, accompanied

prior to May 26, 1869. The motion was overby delivery of possession, could be enforced. Freeman, J., dissenting.

ruled, but in the instructions given to the

jury the court submitted the proposition as Error to district court, San Miguel county; James O'Brien, Judge.

a question of fact. These instructions were

as follows: "You are instructed that the Ejectment by the Maxwell Land-Grant

patents, documents, deeds, and other papers Company against John B. Dawson. Judg

introduced in evidence by the piaintiff

' are ment for defendant, and plaintiff brings error.

suflicient to vest the legal title to the whole Affirmed.

of the land in controversy in the plaintiff, Frank Springer, for plaintiff in error. A. and to entitle the plaintiff to the possession A. Jones, for defendant in error.

of the whole of said land, unless you find

from the evidence that the defendant has a LEE, J. This is an action of ejectment legal right to the possession thereof, or some brought to recover possession of certain part thereof, either by virtue of the deed lands within the Beaubien and Miranda, or of conveyance from Lucien B. Maxwell and Maxwell, land grant. The plaintiff declares wife, or by adverse possession for a period for the lands described in a United States of ten years or more prior to the commencepatent to Beaubien and Miranda, covering ment of this suit, or unless you find from 1,714,000 acres. Defendant disclaims as to the evidence that the plaintiff has failed to all the land thus described, except a certain prove that the land in controversy, or some portion thereof, is not the whole or a part of view of the case, not alluded to on the trial, the fifteen thousand acres of land excepted the court will not grant a new trial as for in the conveyance from Frank R. Sherwin an improper rejection of evidence." Grah. and others to the Maxwell Land-Grant Com. & W. New Trials, p. 669. But, even if this pany, under which plaintiff claims title to could be construed as error on the part of said land.” “You are instructed that the the court, is it not overcome by an adburden of proof is on the plaintiff to show mission which appears in the record of the that it has the legal title to, and the right case, as follows? “It is admitted and agreed of possession of, all the lands in contro- by counsel that the deeds from Lucien B. versy; and unless you find from the evidence Maxwell and wife to Maulding, Miller, and that the lands in controversy were included Curtis, of which counsel in error offered to in, and not excepted from, the deeds of con- introduce certified copies in evidence at the veyance under which plaintiff claims title, trial in the court below, were duly executed, plaintiff cannot recover in this action.” The acknowledged, and recorded; that said deeds plaintiff excepted to these instructions, and were both dated January 7, 1869, and purassigns the giving them as error.

ported to convey certain lands lying on both It is elementary that in actions of eject- sides of the Vermejo river below the lands ment the plaintiff must recover

on the in controversy; and that the lands so constrength of his own title, and show that veyed are described in said deeds as all the he had title to the particular land in dispute.

land or ground suitable for farming or tillAn exception to a grant withdraws from the able or cultivating purposes in the valley operation of the conveyance some part or or drainage of the Vermejo river, with certain parcel of the thing granted, which, but for boundaries, which boundaries are described the exception, would have passed to the by reference to natural objects, such as grantee under the general description. The

rocks and trees; and that no area or acreage part excepted is already in existence, and re

is mentioned therein, nor is there anything mains in the grantor. It is clear that the in the deeds themselves whereby, without 15,000 acres thus excepted did not pass to

other evidence, the amount of the land there the grantee, and there was no evidence by conveyed could be determined." The offered to show what particular part of the plaintiff, by virtue of this admission, so far whole grant the reserved part comprised.

as the determination of the amount of the There is no presumption of law that the land land conveyed is concerned, has the same claimed by the defendant was not a part

benefit as if the deeds had been introduced of the land reserved in the plaintiff's deeds

in evidence, and thereby overcomes the efconstituting its claim of title. It was there

fect of the error, if such action was error. fore a part of the plaintiff's case, and the

It is assigned by the plaintiff as error burden was on it, to show that the land

that the court erred in admitting the testiclaimed by the defendant was not a part of mony of J. B. Dawson as to oral statements the 15,000 acres which had been conveyed by

of Maulding and Curtis touching their purthe said Lucien B. Maxwell prior to the 26th

chase from Maxwell. The defendant intro day of May, 1869. Therefore, if the plaintiff duced evidence which tended to show that failed to establish by competent evidence

in the year 1868 he entered upon the land that the land in controversy was not a part

in controversy under an agreement of purof the 15,000 acres reserved by the deed

chase with one Joel Curtis, Taylor Mauldfrom Maxwell, there was certainly no error

ing, and Dick Miller, who were at that time in the instructions complained of.

in possession of the land under a contract It is contended, however, on the part of the of purchase with Lucien B. Maxwell and plaintiff, that the court erred in excluding wife, the then owners of the Beaubien and deeds of Lucien B. Maxwell and wife to Miranda grant. The tract purchased by Miller, Maulding, and Curtis for lands on Miller, Maulding, and Curtis, and of which the Vermejo, which were offered in evidence they were in possession, extended for six by the plaintiff, which it was claimed would miles along the valley of the Vermejo river, have had a tendency to show what lands including its drainage. Dawson's contract had been conveyed by Maxwell on the Ver- with them was for the upper portion of this mejo prior to May 26, 1869. If these deeds tract, it being the land in controversy in had been offered in evidence by the plaintiff this case, agreeing to pay therefor $3,700. as a part of its case in chief for that purpose, That he took possession under the agree it would have been clearly error on the part ment, and, on the line fixed by them as his of the court to have excluded them; but they lower boundary, be erected a stone fence were offered in rebuttal, and for a different across the valley. That he has been in pospurpose. The evidence must be proper for session and actual occupation of the land, the specific purpose for which it is offered. under a claim of ownership, since his entry, The court has a right to know what it is in 1868, up to the present time. The plaindesigned to prove, in order to determine its tiff, on rebuttal, introduced a deed from Lureleyancy and materiality. “Where, there- cien B. Maxwell and wife to the defendant, fore, evidence is rejected which is tendered executed on the 7th day of January, 1869, for one purpose, and it is inadmissible for which it is admitted conveys to the defendthat purpose, but is admissible in another ant at least a portion of the land in contra versy. This deed described the land con- territory, was then in full force; and, the veyed as follows:

All the land or statute of frauds being unknown to the civil ground now suitable for farming or cultivat- law, a verbal contract for real estate, where ing purposes in the valley or drainage of possession was delivered, could have been the Vermejo river, county of Mora, territory enforced. of New Mexico, within the following bound- Dawson testified that he did not pay the aries, to wit: Beginning at a certain dam money for the purchase to Maxwell, but at the head of a certain ditch at the right paid the $3,700 to Curtis, one of the parties hand point of rocks; from thence running with whom he contracted, and that Curtis down on the north side of said river to a paid the money to Maxwell under the Milcertain other pile of rocks, on a knoll or ele ler, Maulding, and Curtis contract, and that vation, with some bushes near thereto; Maxwell and wife sent him (Dawson) the thence running very near southward across deed introduced by the plaintiff. The de said river to a pinon tree to the right of a fendant contends that this deed was exeridge near a wash, which tree is marked cuted by Maxwell in compliance with his with the letter 'L;' thence running up said contract with Miller, Maulding, and Curtis, river on the south side to the place of be- anu that his and their deeds from Maxwell ginning; containing about acres, more cover all the lands embraced in the conor less. *". It is as to the ambiguity of tract between Maxwell and Miller, Mauldthe words of this deed, used in describing ing, and Curtis, for the six miles of land the land therein conveyed, that the princi- along the Vermejo river, including its drainpal contention in the case

It is age. This contention is strongly supported shown by the evidence that the dam re by the fact that all of the deeds were exeferred to in the description was one that cuted at the same time, and the same lanhad been put in by Dawson on the upper guage used in the description of the proppart of his land for the purpose of irriga- | erty conveyed, as being "all the land or tion. The tree marked "L" was to indi- ground now suitable for farming or tillable cate the line between Curtis, Miller, Mauld- or cultivating purposes in the valley or ing, and Dawson. This deed from Max. drainage of the Vermejo river,” etc. In well and wife to Dawson, together with construing the language in these deeds so the admission as to the deeds of Maxwell as to ascertain the intention of the parties, and wife to Miller, Maulding, and Curtis, we must consider the law applicable to wawas the only evidence introduced on the ter rights along streams in force at the time part of the plaintiff to dispute the testimony of their execution. The common-law right of Dawson that he had purchased from Mil- of riparian ownership was not in force in ler, Maulding, and Curtis under their con- this territory. The occupant of land in each tract with Maxwell for the whole tract on valley or watershed capable of irrigation the Vermejo river, and not from Maxwell from a stream flowing through it had, under himself, and that the deed made by Maxwell the law, a vested interest in the common and wife to him was executed for the pur- use of the water for irrigation and like purpose of carrying out their contract with Mil- poses to which the waters were dedicated. ler, Maulding, and Curtis. The question as The word "drainage” is defined to mean to whether Dawson purchased from Miller, that district of country that drains into a Maulding, and Curtis under their contract river or stream, as the drainage of the valwith Maxwell, or whether the purchase was ley of the river Thames, and has the same made by him from Maxwell and wife, be- legal significance as the term "watershed," comes material, from the fact that a por- and it appears that the parties so undertion of the drainage of the Vermejo river stood the word “drainage" at the time they claimed by Dawson empties into the river contracted. Dawson spoke to Maxwell in below the line of the land in controversy, regard to where the drainage would place but within the lines of the land purchased the line around the tract of land that he by Miller, Maulding, and Curtis from Max- was to get, and therefore he must be unwell; and whether their statements in this derstood to have known that Dawson was connection, as testified to by Dawson, were claiming such a line as the drainage would or were not properly admitted in evidence, give him, and if such were the case that becomes immaterial, from the fact that de understanding or agreement would fix the fendant, Dawson, further testified that he boundary line of the deed, and it would be had conversations with Maxwell, the party immaterial where a survey would establish from whom they claimed to have purchased, the line. It would be perfectly proper for and that Maxwell pointed out the land, and parties owning adjoining tracts of land to also told him what amount of land be would settle by agreement where the division line receive under his agreement with Maulding, should be, and the deeds which are amMiller, and Curtis, who were then in pos- biguous and uncertain will be construed in session, and so recognized by Maxwell un- accordance with the intention of the parties. der his sale to them. That was all that We have considered the real matter in was required to give legal effect to a con- contention in this case, as we understand it. tract at that time. The civil law, as it ex- The case was fully and coniprehensively preisted at the time of the acquisition of the sented to the jury by the court in its instructions, covering every theory upon which of Saltpetre canon, to a point on a line with it could be decided under the issues. The said John B. Dawson's rock fence; thence verdict returned was a general verdict for following said rock fence across the Vermejo the defendant. There were no special find to the top of the divide between the Vermejo ings asked, and there is nothing in the rec- and Van Bremmer canon; thence following ord to indicate upon what particular the top of said divide to the head of Coal grounds the jury based their verdict. Tak. canon; and thence along the top of the diing into consideration the issues, the evi- vide east of Coal canon to a point on said dence, and the instructions of the court, we divide nearest the place of beginning; thence think the jury were warranted in returning to the place of beginning." While the boundthe verdict they did; and, not finding any aries set out in the deed are vague and unerror in the rulings of the court which we certain, it is not pretended that they include think would justify a reversal of the case, all, or nearly all, the land included in the the judgment below will be affirmed, and it boundaries set out in the plea. The deed is accordingly so ordered.

arises.

v.34p.no.2-13

embraces about 1,000 acres, while the plea

claims 20,000. It is to be observed that the SEEDS and FALL, JJ., concur.

defendant now disclaims title under the deed,

but relies wholly on adverse possession unFREEMAN, J., (dissenting.) I find myself der the statute of limitation. The deed was unable to agree to the conclusions reached by introduced over his objection by the plaina majority of the court. I am free to con- tiff. The defendant is allowed to state that fess that in my opinion the ends of substan- plaintiff's grantor, Maxwell, pointed out to tial justice have probably been reached. I him (the defendant) the boundaries, and that think it more than probable that, as a matter they were the same as are now set out in the of equity and good conscience, the defendant plea. "The boundaries are what you read in in error is entitled to retain possession of the that description there," is the language of land which he claims. It is a question of the the witness. And yet he admits that when right of a private citizen to retain the use the plaintiff's agent came to see him about and occupation of 20,000 acres of land carved his boundaries he exhibited to him the deed out of a grant of 2,700,000 acres. But the he received from Maxwell, and in another conclusions of law reached by a majority of part of his testimony he admits that he fre the court are calculated, in my opinion, to quently claimed that under the deed from disturb landmarks of title, and menace, to a Maxwell he was entitled to the "drainage of dangerous extent, the well-established rules the Vermejo between the dam and the stone governing title to real estate. The defend- fence." It seems perfectly clear to me that ant went into possession of the premises un- when the defendant bought the land, and went der a contract of sale from the plaintiff's into possession, the tract conceded to him by grantor. He accepted a deed, and up to the the plaintiff in this suit was all that he unbringing of the suit claimed to hold under derstood he was buying. At the same time that deed. The first disclaimer which this he understood that the possession of the land record shows to have been made (and there- on each side of the stream gave him comfore the first declaration of adverse owner- mand of the water, and that this command ship outside of the boundaries as contained virtually gave him control of the grazing in his deed) is set up in his defense to this privileges over the surrounding country. parsuit. The description of the land, as contained ticularly within what is known as the "drainin the deed, is as follows: "All the land or age" of the river. This was known as his ground now suitable for farming or cultivat-"range." It was a part of the unwritten law ing purposes in the valley or drainage of the of this territory at that time that ownership Vermejo river, county of Mora, territory of of the water commanded all that portion of New Mexico, within the following bound- the surrounding country contiguous thereto, aries, to wit: Beginning at a certain dam at and created an easement that was recognized the head of a certain ditch at the right-hand by the legislature of this territory in the paspoint of rocks; from thence running down on sage of the act approved February 15, 1889, the north side of said river to a certain other which made it a misdemeanor to overstock a pile of rocks on a knoll or elevation with range. Defendant says that he talked with some bushes near thereto; thence running | Maxwell about the extent of his possession, very near southward across said river to a and that Maxwell pointed out to him his pinon tree to the right of a ridge near a boundaries; that this was in June, 1868, six wash, which tree is marked with the letter months before he received his deed from ‘L;' thence running up said river on the Maxwell, which was dated January 7, 1869; south side to the place of beginning,”—while and that they were at that time at the stage the land claimed by him now in his plea is station on the Vermejo, about four miles disdescribed as follows: “Commencing at the tant from the premises. Now, bearing in dam on said river, at the upper end of John mind that this was the only time and occaB. Dawson's farm; thence running to a high sion upon which Maxwell, the grantor, ever point of rocks on the north side of the Ver- undertook to define the boundaries of the mejo canon; thence following along the top premises.--for he admits that Maxwell never of the divide west of Rail canon to the head came on the ground to point out the bound.

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