THOMPSON V. FAHEY, 1980-NMSC-013, 94
N.M. 35, 607 P.2d 122 (S. Ct. 1980)
ROY B. THOMPSON and HELEN L. THOMPSON,
Plaintiffs-Appellees,
vs.
WILLIAM FRANCIS FAHEY, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1980-NMSC-013, 94 N.M. 35, 607 P.2d 122
APPEAL FROM THE DISTRICT COURT OF MORA
COUNTY, Roy G. Hill, District Judge.
Motion for Rehearing Denied March 13,
1980
Arthur L. Bustos, Las Vegas, New Mexico,
Attorney For Appellant
Roberto L. Armijo, Las Vegas, New Mexico,
Attorney for Appellees
EASLEY, J., wrote the opinion. WE CONCUR:
WILLIAM R. FEDERICI, Justice, EDWIN L. FELTER, Justice
{1} Thompson filed suit to
enjoin Fahey for trespassing on land Fahey allegedly sold to Thompson, for
damages resulting from this trespass, and for an order requiring Fahey to
accept final payment on a note and to release the mortgage Fahey holds. The
trial court granted Thompson's summary judgment motion for the injunction and
order, but denied him damages for the trespass after a hearing on the merits on
that issue alone. Fahey appeals the summary judgment; Thompson cross-appeals
the denial of damages. We reverse on both points.
{2} At issue is whether
summary judgment was improper because a genuine issue of material fact exists
and whether a denial of damages was improper even after a finding of trespass.
{3} In 1965 Fahey entered a
contract purporting to sell to Thompson approximately 6,500 acres for
$300,000.00. Subject to a final survey indicating the exact acreage to be
conveyed, the contract provided that $46.00 per acre would be deducted from the
purchase price in the event that there was less than 6,500 acres. A
thirty-three acre
{*36} tract was
specifically excluded in the contract from the transaction.
{4} Fahey asserts that this
thirty-three
acre tract was erroneously included in the survey description and thereby
erroneously incorporated into the deed he signed at the closing. Both parties
admit, and the trial court found, that Fahey had sporadically run his cattle on
this tract for the ten years between the signing of the deed and the filing of
this suit. Thompson claims that the nearly
twenty-nine acres here in
question is not part of the thirty-three acres specifically excluded in the
contract; Thompson claims that since this acreage was excluded from the sale it
did not have to be, and in fact was not, included in the survey. Thompson
apparently asserts that the location of this specifically excluded acreage is
"up in the air". In the alternative, Thompson claims that if this
nearly twenty-nine acres is part of the thirty-three acre exclusion, then he
has acquired title by adverse possession, despite Fahey's sporadic use of the
land.
{5} Fahey claims that an additional
but separate nineteen acre tract was also included erroneously in the survey
and deed. Thompson asserts that this tract was properly included in the deed.
{6} Summary judgment is a
drastic remedy to be used with caution.
Pharmaseal Laboratories, Inc. v.
Goffe,
90 N.M. 753,
568 P.2d 589 (1977). So long as one issue of material
fact exists it may not be properly granted.
Id. at 756, 568 P.2d at 592.
We think it is clear that it was improperly granted in this case. At least two
issues of material fact, going to the merits of this case, exist. Both the
location of the disputed, specifically excluded tract and the intent of the
parties at the time they entered into the contract raise material factual
issues. The intent question addresses the problems of the location of the
excluded tract and whether an incorrectly described tract was included in the
survey. In addition, Fahey raises other factual issues concerning the actual
acreage involved in the sale and, thereby, the correct purchase price.
{7} Although the trial court
found that Fahey had trespassed on Thompson's land, it denied Thompson's claim
for damages. If after a full trial on the merits, the trial court concludes
that the disputed tract is indeed Thompson's, a rehearing on the damage issue would
not be necessary. But a finding of intentional trespass raises the presumption
of at least nominal damages.
See Pueblo of Sandia Ex Rel. Chavez v. Smith,
497 F.2d 1043 (10th Cir. 1974). Since both parties agreed, and a good deal of
evidence in the record indicates, that Fahey sporadically pastured his cattle
on this disputed tract for ten years, the trial court is reversed on this point
as a matter of law. At the minimum, an award of nominal damages was appropriate
under these facts.
{8} We reverse and remand to
the trial court for proceedings not inconsistent with this opinion.
WE CONCUR: WILLIAM R. FEDERICI, Justice, EDWIN L. FELTER,
Justice.