HANCOCK V. NICOLEY, 2016-NMCA-081,
___ P.3d ___
ILA BETH HANCOCK, Plaintiff-Appellant,
v.
RAY NICOLEY, Defendant-Appellee
COURT OF APPEALS OF NEW MEXICO
2016-NMCA-081, ___ P.3d ___
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY, Albert J.
Mitchell, Jr., District Judge.
Released for Publication October 18,
2016.
Caren I. Friedman, Santa Fe, NM, for
Appellant.
Schutte Law Office, LLC, Donald Schutte,
Tucumcari, NM, for Appellee.
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
M. MONICA ZAMORA, Judge, J. MILES HANISEE, Judge.
AUTHOR: MICHAEL D. BUSTAMANTE.
{1} Plaintiff Ila Beth
Hancock appeals the district court’s order in which it applied the doctrine of
acquiescence to conclude that the boundary between her property and Ray
Nicoley’s property was marked by the fence line instead of the surveyed
boundary because the parties had long treated the fence line as the boundary.
In effect, the district court ordered the transfer of some of Hancock’s
property to Nicoley. We reverse and remand for further proceedings.
{2} Plaintiff Ila Beth
Hancock owned two parcels of land in Quay County. The two parcels lay to the
west and south of Defendant Ray Nicoley’s property.
1
For ease of reference, we call Hancock’s parcels “the west parcel” and “the
south parcel.” Hancock co-owned the south parcel with her nephew, W.A. Hancock
(the nephew). The west and south parcels met at the southwest corner of
Nicoley’s property. Hancock permitted her cattle to cross the southwest corner
of Nicoley’s property to reach a windmill and well on the south parcel and had
done so for “at least 65 years.”
{3} In 2006, Hancock filed
a complaint against Nicoley alleging that Nicoley had removed and relocated a
portion of the fence between their properties at the corner such that her
cattle could no longer pass from the west parcel to the south parcel. The
theory of Hancock’s complaint was that the previous location of the fence at
the corner had become the boundary between the parties’ properties by
acquiescence. “The doctrine of acquiescence is principally based on an
agreement, expressed or implied, of adjoining landowners, whereby they
recognize or acquiesce in a certain line as the true boundary of their
properties.”
Stone v. Rhodes,
1988-NMCA-024, ¶ 6,
107 N.M. 96,
752 P.2d
1112. “Generally, in order to prevail under the doctrine of acquiescence, a
party must show by clear and convincing evidence that he and his neighbor
recognize a physical boundary as the true dividing line of their property.”
Id.
Under the doctrine, “[t]he ‘boundary’ is given such credence that after a
certain period of time has lapsed, in the interest of peace and quiet, this
dividing line is recognized as the true boundary dividing the properties.”
Id.
{4} Based on this
theory, the complaint alleged that Nicoley had trespassed and encroached on
Hancock’s property by moving the fence
2
and that such acts had caused damages. In addition, the complaint requested an
adjudication of boundaries. Finally and alternatively, Hancock requested that
she either be declared the fee owner of the corner by adverse possession or
granted a prescriptive easement for use of the corner.
{5} In his answer,
Nicoley “agree[d] that an adjudication of the boundary together with rights of
ingress and egress between the parties should be determined.” He denied that
Hancock had possession of the corner by adverse possession or held a
prescriptive easement and denied Hancock’s assertions as to the fence lines.
Nicoley also counterclaimed, alleging that he held a prescriptive easement at
the northeast corner of the west parcel. The counterclaim is not at issue in
this appeal.
{6} At a bench trial on
January 5, 2010, Hancock presented her own testimony as well as testimony by
her nephew and her brother. Hancock testified that the fence that Nicoley had
removed had been in the corner for “at least [sixty-five] years.” Nicoley
admitted a 1983 retracement survey of the parties’ properties. This survey
showed that the fence line between the south parcel and Nicoley’s property was
south of the surveyed boundary between the properties.
{7} After Hancock rested
her case, Nicoley moved for dismissal of all counts except for the prescriptive
easement claim. As to the claim for adjudication of boundaries, Nicoley argued
specifically that the claim must be dismissed for failure to join an
indispensable party, Hancock’s nephew and co-owner. The district court denied
the motion as to the trespass and encroachment claims, and stated that it would
dismiss the adverse possession claim. It then stated that the claim for
adjudication of boundaries would be dismissed because “we don’t have
indispensable parties because [the nephew], the co-owner of the [south parcel,]
hasn’t been joined.” The district court reiterated after closing arguments that
it would not address the boundary between the south parcel and Nicoley’s property
other than at the corner because the appropriate parties were not joined,
stating, “What’s in front of me is figuring out how you-all are going to get
along on this corner.” None of the dismissals were ever memorialized in
writing.
{8} Hancock and Nicoley
both submitted requested findings of fact and conclusions of law after the
bench trial. Hancock requested findings that “[Hancock] and [Nicoley] have
mutually recognized, respected and honored the fences between them as boundary
lines since [Nicoley] purchased his tract in 1993,” and that
“the . . . fence lines between the [south parcel and
Nicoley’s property] are the boundary fences at the locations where the fences
have historically existed.” She also requested a conclusion of law that “[t]he
fence lines between [Hancock’s] and [Nicoley’s] properties are boundary lines.”
{9} Nicoley requested a
finding that the fence line between the south parcel and his property was
“actually [five] feet south of the common [surveyed] boundary.” He also
requested a conclusion of law that “[Hancock] failed to show a boundary by
acquiescence.”
{10} Nine months after
the bench trial, the district court issued a letter ruling. In the letter, the
district court stated that both Hancock and Nicoley held easements across each
other’s property. The letter did not address the location of the boundary
between the south parcel and Nicoley’s property.
{11} Six months later,
the district court held a status conference and stated that its final judgment
would be issued within a week. At this conference, Hancock offered to provide
the district court with a survey she did of her land. The judge stated he did
not think the Hancock’s survey would “have that much effect on the case.”
Another status conference was held nine months later, two years after the
trial. The district court stated that the final judgment would be issued
shortly thereafter. A third status conference occurred seven months later, but
only Nicoley was present.
{12} A fourth status
conference occurred in December 2012, nearly three years after trial. At this
conference, Hancock pointed out that the fence between her south parcel and
Nicoley’s property was not on the surveyed property line. Hancock stated, “the
other issue which was not before the court is that the [boundary between the
south parcel and Nicoley’s property] was off significantly from what the
property line is, all the way down. And the court didn’t rule on that. That’s
not something that we’re here for.” Nicoley agreed that the issue of the
boundary “was an issue that really wasn’t before the court” and that “[i]t was
on the survey, but it wasn’t an issue . . . anyone had asked the
court to rule on, concerning whether or not . . . Nicoley
owned that particular piece of land.” The district court also appeared to agree
and stated, “we [are] focusing really only on the corner,” and that “if we have
to take up [the fence line between the south parcel and Nicoley’s property],
counsel, I’ll let you all talk about whether that needs to be a separate
lawsuit, or whether it simply needs to be [an] amended pleading in this
lawsuit.” We infer from these comments by the parties and the district court
that, even if the district court’s dismissal of the adjudication of boundaries
claim was not memorialized in writing after the bench trial, all involved
agreed as late as December 2012 that the location of the boundary line between
the south parcel and Nicoley’s property was no longer before the court, except
for as it pertained to Hancock’s passage through the contested corner.
{13} This understanding
is bolstered by subsequent events. Ten days after this status conference, the
district court sent a letter to the parties in which it stated that Hancock had
“chose[n] not to pursue” an action related to the difference between the fence
line and the surveyed boundary. It also expressed concern that a new issue was
being raised long after the bench trial on the merits.
As we all know, the legal boundary
between two properties can be either the survey line, the line agreed to by the
parties, or the line ordered by the [c]ourt. I am greatly concerned that,
frankly, years after what we all believed was the final [m]erits [h]earing, one
party now wants to introduce evidence that was easily discoverable prior to the
[m]erits [h]earing, and also raise additional issues that may arguably go to
the merits that were already tried.
The letter concluded with an instruction to Hancock to “file
an appropriate written motion with a supporting brief” if she wished to “expand
the scope of litigation.” Hancock did not do so.
{14} A final status
conference was held in January 2013. Finally, in October 2013, just shy of four
years after trial, the district court issued its final judgment. Contrary to
the letter decision, the district court denied both parties’ easement claims.
In its findings of fact, the district court accepted Hancock’s requested
finding that “[Hancock] and [Nicoley] have mutually recognized, respected[,]
and honored the fences between them as boundary lines since [Nicoley] purchased
his tract in 1993.” Although the district court also echoed Nicoley’s requested
finding that “the boundary fence line running east and west is actually south
of the legal description,” it found that “[Hancock] established by clear and
convincing evidence that the fence line on the southern side of [Nicoley’s]
property is the legal boundary line as it is long established and recognized by
long recognition of abutting owners.” In a drawing attached to the final
judgment, the district court noted that, from the corner to a point 200 feet
east of the corner, the boundary between the properties is the “legal boundary
by deed and survey.” However, it also noted that from that point to the eastern
edge of Hancock’s property, the “[f]ence = legal boundary by acquienscence
[sic].” The final judgment stated that “[Hancock’s] request that the fence line
at the south side of [Nicoley’s property] is the legal boundary, except for on
the west two hundred feet of that fence line[,] is granted.” The district court
also stated that “[s]ince evidence presented to the [district inec]ourt was
that the fence line is south of the survey boundary, . . . [Nicoley] shall have
prepared a legally sufficient survey setting forth the description of the
property lying between the fence and the south boundary of the northeast
quarter [of Hancock’s property] within sixty days.” The judgment permitted
Hancock thirty days to object to the survey. Finally, the district court
stated,
As to the west two hundred feet, the
parties shall each be half responsible for the cost[s] of a survey to properly
locate the boundary, and to erect a fence along the west two hundred feet. At
the end of the two hundred feet there should be a ninety degree jog to the
existing fence line.
{15} In summary, both the
parties and the district court reversed direction multiple times throughout
this protracted litigation. For instance, Hancock requested the adjudication of
boundaries in her complaint, testified that the fence lines were the proper
boundaries by acquiescence, and requested findings of fact that the fence lines
marked the boundaries of her property. Later, she argued that the location of
the fence lines was not at issue except at the disputed corner and that the
district court should not decide the issue. Even though she requested findings
of fact that the district court adopted, she now argues that the district court
erred in doing so. Similarly, Nicoley moved for dismissal of the adjudication
of boundaries claim at trial and requested a conclusion of law that Hancock had
failed to prove that the fence lines were the boundary by acquiescence. On
appeal, he argues that the district court’s conclusion to the contrary was
correct and that the district court’s dismissal of the claim—at his request—was
incorrect. Finally, the district court first dismissed the adjudication of
boundaries claim, then accepted both Hancock’s requested finding of fact and
conclusion of law as to the fence lines, and ultimately decided an issue it
stated repeatedly it would not decide.
{16} Hancock appeals the
district court’s decision as to the boundary between the south parcel and
Nicoley’s land. She does not appeal the district court’s decisions as to the
easements claimed by either party.
{17} We conclude that the
final judgment must be reversed and the matter remanded for several reasons.
First, the district court erred in addressing the issue of the boundary between
the properties beyond what was necessary to resolve the dispute over the corner
after (1) ordering the boundary adjudication claim dismissed, (2) holding a
hearing in which all agreed that it was not before the court, and (3)
admonishing Hancock for raising it after the bench trial and stating that her
pleadings would have to be amended before the court would address it. It is
true that the district court’s oral dismissal of Hancock’s adjudication of
boundaries claim was never memorialized in writing, and that, consequently, the
district court could have changed its mind as to the dismissal at any time
prior to judgment.
State v. Morris,
1961-NMSC-120, ¶ 5,
69 N.M. 89,
364
P.2d 348 (“An oral ruling by the trial judge is not a final judgment. It is
merely evidence of what the court had decided to do but he can change such
ruling at any time before the entry of a final judgment.”);
see Rule
1-058 NMRA (providing for entry of orders following announcement of a district
court’s decisions). Nevertheless, as a practical matter, the parties were at
least somewhat entitled to rely on the district court’s repeated assertions at
the bench trial that it would not address that issue, especially when they were
reinforced through subsequent explicit statements that the issue would not be
decided.
{18} Second, although it
apparently determined that Hancock’s nephew was a necessary party, the district
court did not conduct a complete analysis of joinder under Rule
1-019 NMRA.
Under Rule 1-019(A), “[a] person who is subject to service of process shall be
joined as a party in the action if[] (1) in his absence complete relief cannot
be accorded among those already parties; or (2) he claims an interest relating
to the subject of the action” and resolution of the action without him “may . .
. impair or impede his ability to protect that interest[.]” If the district
court determines that a party should be joined under Rule 1-019(A), it should
order that party to be joined.
Srader v. Verant,
1998-NMSC-025, ¶ 19,
125 N.M. 521,
964 P.2d 82 (“If joinder is not precluded by jurisdictional
barriers, joinder is normally feasible, and the court orders joinder, thus
ending the issue.” (footnote omitted));
see Rule 1-019(A)(2)(b) (“If he
has not been so joined, the court
shall order that he be made a party.”)
(Emphasis added.) If the party cannot be joined, the district court next
examines “whether ‘in equity and good conscience’ that party is indispensable
to the litigation. If the party is indispensable, the court dismisses the case
for nonjoinder.”
Gallegos v. Pueblo of Tesuque,
2002-NMSC-012, ¶ 39,
132
N.M. 207,
46 P.3d 668 (citation omitted);
see Rule 1-019(B) (noting an
action should be dismissed if the absent party is indispensable).
{19} Generally, in a
boundary dispute,
[t]he owners of the adjoining lands
and all persons having a direct interest in the result of a proceeding, legal
or equitable, to establish boundaries are . . . necessary or indispensable
parties, for otherwise they are not bound by any determination as to the
location of the boundaries, and title to the land between [the] plaintiff and
[the] defendant and the determination of a common boundary line cannot be
established otherwise.
11 C.J.S. Boundaries § 195 (2016) (footnotes omitted);
see State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶¶
48-49, 145 N.M. 769, 205 P.3d 816 (noting in dicta the “indispensable[]party
doctrine” and stating that “[a]s a matter of law, it would appear
incontrovertible that the boundary line between the Ranch and the state lands
could not have been reestablished without, at the very least, the presence in
court of the state agencies which are the trustees of those very state lands”).
However, the assessment of necessity and indispensability is “heavily
influenced by the facts and circumstances of each case.” Gallegos,
2002-NMSC-012, ¶ 42 (internal quotation marks and citation omitted). Here, it
would appear from the district court’s oral dismissal of the adjudication of
boundaries claim that it concluded that Hancock’s nephew was a necessary party,
that he could not be joined, and that the claim could not “in equity and good
conscience” go forward without him. Id. ¶ 39 (internal quotation
marks and citation omitted). However, there is no evidence that the district
court assessed whether the nephew could be joined, or whether the suit could
proceed in his absence. See Hall v. Reynolds, 60 So. 3d 927,
931-32 (Ala. Civ. App. 2010) (holding that where heirs shared ownership of a
property they were “at least necessary parties” under Rule 19(a) and remanding
to the district court to determine whether the heirs could be joined, or if the
action could proceed in their absence). Under these circumstances, the district
court’s judgment must be reversed and the matter remanded for determination of
whether the nephew may be joined. Hall, 60 So. 3d at 931-32.
{20} Nicoley points to
several cases addressing property disputes in which the courts have held that
co-tenants are not necessary parties.
See, e.g.,
Madrid v. Borrego,
1950-NMSC-043, ¶ 6,
54 N.M. 276,
221 P.2d 1058;
De Bergere v. Chaves,
1908-NMSC-006, ¶ 11,
14 N.M. 352,
93 P. 762.
De Bergere is inapposite
because it depends on law predating the adoption of Rule 1-019 and does not
encompass the interest-based analysis contemplated by the rule.
See Shaw v.
Shaw, 603 So. 2d 287, 293 (Miss. 1992) (stating that the parties there
erred in relying on pre-rule case law and failing to analyze joinder under Rule
19 of the Mississippi Rules of Civil Procedure);
Zamora v. St. Vincent Hosp.,
2014-NMSC-035, ¶ 10,
335 P.3d 1243 (stating that New Mexico adopted the federal
rules of civil procedure in 1942). Similarly, although
Madrid was filed
after the adoption of the rules, its holding depends entirely on
De Bergere
and other early cases that did not address the impact of the rules of civil
procedure.
Madrid,
1950-NMSC-043, ¶ 6. Thus, the pertinence of its
analysis to assessment of joinder under Rule 1-019 is suspect.
See Shaw,
603 So. 2d at 293 (stating that “[a]lthough [a Mississippi case] was decided
subsequent to the adoption of the Mississippi Rules of Civil Procedure, its
failure to consider the implications of [MRCP] Rule 19 renders the validity of
its non-joinder holding questionable”).
{21} Third, the final
judgment includes several inconsistencies that, given the length of time
between the bench trial and judgment, as well as the shifts in direction of
both the litigants and the court, cause uncertainty as to the district court’s
intent. For instance, Hancock’s complaint arose after Nicoley erected a fence
at the corner that was in a different place than the fence that had been there
for “sixty-five years.” As we understand it, Hancock’s theory at trial was
that, even if the new fence was consistent with the surveyed boundary, the old
fence location at the corner had been long agreed to by the parties and thus
was the legal boundary by acquiescence. Given the district court’s conclusion
that Hancock had prevailed in her boundary by acquiescence argument, it is not
clear to us how it arrived at the conclusion that the boundary at the corner
was the surveyed boundary, but the rest of the boundary was the fence line. In
other words, if Hancock prevailed in her acquiescence argument, why did the
district court’s order reflect the opposite of what she originally requested as
to the corner? Finally, since the premise of the doctrine of acquiescence is
that the agreed-to boundary is given legal effect despite the boundary set out
in a deed or survey, it is unclear what purpose the district court intended
additional surveys to serve.
See UU Bar Ranch Ltd. P’ship,
2009-NMSC-010, ¶ 50 (stating that “[t]he doctrine [of acquiescence,] . . .
holds that where parties agree, even implicitly upon a boundary, that boundary
may be established as a matter of law
even if it is not accurate according
to plats, surveys or other maps” (emphasis added)). On remand, the district
court should clarify its intention as to these issues.
{22} For the foregoing
reasons, we reverse the judgment as it relates to whether the fence line is the
legal boundary between the south parcel and Nicoley’s property and remand for
further proceedings consistent with this Opinion.
MICHAEL D. BUSTAMANTE, Judge