STATE EX REL. STATE HWY. COMM'N V. DANNEVIK, 1968-NMSC-181, 79 N.M. 630, 447 P.2d
510 (S. Ct. 1968)
STATE of New Mexico ex rel. STATE
HIGHWAY COMMISSION of the
State of New Mexico, and Board of County
Commissioners of Torrance County, New Mexico,
Plaintiffs-Appellants and
Cross-Appellees,
vs.
Paul DANNEVIK and Lorraine M. Dannevik,
Defendants-Appellees and Cross-Appellants
SUPREME COURT OF NEW MEXICO
1968-NMSC-181, 79 N.M. 630, 447 P.2d 510
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY, ZINN, Judge
Boston E. Witt, Atty. Gen., Joseph L.
Droege, Sp. Asst. Atty. Gen., Santa Fe, for appellants and cross-appellees.
Sutin & Jones, Albuquerque, for
appellees and cross-appellants.
Noble, Justice. Compton and Carmody, JJ.,
concur.
{1} In 1935, rights-of-way
easements were obtained on the east half of the intersection between highways
66 and 41 near Moriarty. At that time, highway plans indicated two large ramps
or roadways were to be constructed on the east quadrants for the purpose of
connecting the two highways. Easements for the west half of the intersection
were acquired in 1951. The plans at that time contemplated that ramps of the
same size as those on the east half of the intersection were to be built on the
west half. The two west ramps, however, were never constructed. Instead,
sometime after 1959, two small ramps were built on the west half of the
intersection, but they did not extend to or include any part of the land
covered by the 1951 easement in the northwest quadrant. The right-of-way line
in that quadrant had been fenced, but at the time of trial the fence was no
longer there -- only the posts and some highway markers remained.
{2} The pertinent written
instrument granted an easement unto "the State of New Mexico, to use the
same as a public highway, to construct such public highway along and upon the
same * * *." The habendum clause, among others, provided:
"TO HAVE AND TO HOLD the said right and easement
for the uses and purposes aforesaid * * * for so long as said right of way
shall not be abandoned for highway purposes, but that if the highway over said
right of way should at any time be discontinued by non-use thereof for a
continuous period of five years * * * then * * * the same shall be considered
as having been abandoned within the meaning hereof, and the easement hereby
granted shall thereupon terminate."
{3} The Highway Commission
brought a declaratory judgment action to determine whether the 1951 easement
for the land in the northwest quadrant had terminated. The trial court
concluded:
"The easement granted by Exhibit 'A' has
terminated by reason of non-use thereof for a continuous period of more than
five years, and has been abandoned for highway purposes within the meaning of
Exhibit 'A' [,]
and entered judgment determining that defendants were owners
of the land unburdened by the highway easement. The Highway Commission has
appealed.
{4} We cannot agree with the
Commission that the trial court confused the terms "easement,"
"highway" and "right of way." We have said that the
interest acquired by the state or municipalities in streets and highways is
described in various terms, but ordinarily what is acquired is an
{*632} easement. Hall v. Lea County Elec.
Coop., Inc.,
78 N.M. 792,
438 P.2d 632. The grant of a right of way is an
easement. It is a privilege to use the land for highway purposes. The term
"right of way" is merely descriptive of the easement rights. Tallman
v. Eastern Illinois & Peoria R.R., 379 Ill. 441, 41 N.E.2d 537.
{5} The Pennsylvania Supreme
Court in Merrill v. Mfrs. Light and Heat Co., 409 Pa. 68, 185 A.2d 573, stated
the rule for ascertaining the meaning of the language of a grant thus:
"* * * To ascertain the nature of the easement
created by an express grant we determine the intention of the parties
ascertained from the language of the instrument. Such intention is determined
by a fair interpretation and construction of the grant and may be shown by the
words employed construed with reference to the attending circumstances known to
the parties at the time the grant was made. * * *"
{6} In this case, although
the Highway Commission made use of the other quadrants, no use was ever made of
any part of the northwest quadrant, for which a separate easement was acquired
in 1951. While the habendum clause refers to discontinuance of the highway over
said right of way by non-use, we conclude that the trial court properly
interpreted the clause to mean nonuse for five years whether or not the ramp
had ever been constructed. It would be unreasonable to construe the instrument
to mean that five years non-use after construction constitutes abandonment, but
that nonuse before construction may be prolonged indefinitely. The stipulated
facts support the conclusion that the right-of-way easement over the quadrant
was abandoned within the meaning of the written instrument.
{7} Other questions argued
have either been resolved by what we have said, found to be without merit, or
unnecessary to determine.
{8} The defendants
cross-appealed from the court's refusal to grant relief under § 70-1-45,
N.M.S.A.1953. The cross-appeal is in the alternative only. Having resolved the
principal appeal in defendants' favor, it is unnecessary to consider the
cross-appeal.
{9} It follows that the
judgment appealed from should be affirmed.