{ "id": 1597245, "name": "Catarino D. HERNANDEZ and Isaura G. Hernandez, Plaintiffs-Counter-Defendants-Appellants, v. Alfonso H. CABRERA and Jessie L. Cabrera, his wife, Defendants-Counter-Plaintiffs-Appellees", "name_abbreviation": "Hernandez v. Cabrera", "decision_date": "1988-07-12", "docket_number": "No. 9760", "first_page": "435", "last_page": "438", "citations": [ { "type": "official", "cite": "107 N.M. 435" }, { "type": "parallel", "cite": "759 P.2d 1017" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "98 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582546 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0100-01" ] }, { "cite": "227 P. 602", "category": "reporters:state_regional", "reporter": "P.", "year": 1922, "opinion_index": 0 }, { "cite": "30 N.M. 62", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841271 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nm/30/0062-01" ] }, { "cite": "256 Or. 135", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2112814 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/or/256/0135-01" ] }, { "cite": "415 P.2d 963", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10589187 ], "opinion_index": 0, "case_paths": [ "/p2d/415/0963-01" ] }, { "cite": "78 N.M. 427", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326283 ], "weight": 4, "year": 1967, "pin_cites": [ { "page": "428" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0427-01" ] }, { "cite": "256 Ore. 518", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2112784 ], "weight": 2, "year": 1970, "pin_cites": [ { "parenthetical": "where there is a close family relationship between the owner of property and claimant, courts have required a greater showing that possession was hostile or adverse" }, { "parenthetical": "where there is a close family relationship between the owner of property and claimant, courts have required a greater showing that possession was hostile or adverse" } ], "opinion_index": 0, "case_paths": [ "/or/256/0518-01" ] }, { "cite": "31 N.W.2d 267", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1948, "opinion_index": 0 }, { "cite": "225 Minn. 379", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 380314 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/minn/225/0379-01" ] }, { "cite": "61 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5317547 ], "weight": 2, "year": 1956, "pin_cites": [ { "parenthetical": "possession originating in cotenancy is presumptively permissive; where the original occupation of property is permissive, an adverse holding must be expressly declared and notice of such change brought to the attention of the owner" }, { "parenthetical": "possession originating in cotenancy is presumptively permissive; where the original occupation of property is permissive, an adverse holding must be expressly declared and notice of such change brought to the attention of the owner" } ], "opinion_index": 0, "case_paths": [ "/nm/61/0449-01" ] }, { "cite": "403 F.2d 351", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2129261 ], "opinion_index": 0, "case_paths": [ "/f2d/403/0351-01" ] }, { "cite": "90 N.M. 670", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872492 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0670-01" ] }, { "cite": "81 N.M. 169", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362956 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/81/0169-01" ] } ], "analysis": { "cardinality": 581, "char_count": 9977, "ocr_confidence": 0.765, "pagerank": { "raw": 7.09818976986845e-08, "percentile": 0.42670441404112747 }, "sha256": "a8a2d3bfe66dc62e524ec36b550a20a3301d844b357461285b6cde06e1e81aca", "simhash": "1:91c940077d5dbaa0", "word_count": 1576 }, "last_updated": "2023-07-14T22:42:54.316311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GARCIA and APODACA, JJ., concur." ], "parties": [ "Catarino D. HERNANDEZ and Isaura G. Hernandez, Plaintiffs-Counter-Defendants-Appellants, v. Alfonso H. CABRERA and Jessie L. Cabrera, his wife, Defendants-Counter-Plaintiffs-Appellees." ], "opinions": [ { "text": "OPINION\nMINZNER, Judge.\nAppellant Catarino Hernandez appeals from a judgment quieting title to a 0.2678-acre tract of land, located within the city of Las Cruces, New Mexico, in favor of appellees Alfonso and Jessie Cabrera. He appeals in his own right and as survivor of Isaura Hernandez, who died while this appeal was pending. Appellant is Alfonso Cabrera\u2019s uncle and resides on an adjoining tract. The tract of land at issue is a fenced lot upon which a dwelling is located.\nAppellees claim title to the property as joint tenants under a deed from Rosalia Amada Cabrera (Rosalia), Alfonso Cabrera\u2019s mother and appellant\u2019s sister. Rosalia entered into possession of the property under a warranty deed from her mother, Antonia Hernandez (Antonia), dated January 20, 1951, and resided there until her death in 1983. In 1976, she executed a warranty deed in favor of appellees, reserving a life estate. Upon Rosalia\u2019s death, appelles assumed possession of the property, made improvements, and rented the house.\nAppellant claims title to the subject property under a quitclaim deed from Georgia S. Jones (Jones) dated July 19, 1950. Jones\u2019 title derived from a tax deed. The record indicates that Antonia attempted to convey an interest she had inherited from her husband by deeding portions to two of her children. In June 1950, she conveyed to appellant and Isaura the lot on which appellant resides. Appellant subsequently paid Jones $1.00 for a quitclaim deed, in the belief that his father had lost the property Antonia attempted to convey by failing to pay taxes.\nThe trial court held that appellant\u2019s deed from Jones was void, because it was based upon a double assessment of taxes, and that appellees had title to the property by virtue of their deed from Antonia. Alternatively, the trial court found that appellees had acquired title by adverse possession. Appellant contends that the trial court erred in all three holdings.\nWe affirm the trial court\u2019s holding that appellees acquired title by adverse possession. We do not consider the claims based upon the parties\u2019 respective titles. C & F Realty Corp. v. Mershon, 81 N.M. 169, 464 P.2d 899 (1969).\nUnder the relevant New Mexico statute, in order to establish title by adverse possession a person must establish: (1) a good faith claim of right under color of title; (2) possession that is actual, visible, exclusive, hostile, and continuous for ten years; and (3) payment of taxes. NMSA 1978, \u00a7 37-1-22. All elements must be proved by clear and convincing evidence. Birtrong v. Coronado Bldg. Corp., 90 N.M. 670, 568 P.2d 196 (1977). If any one of the elements necessary to establish title to land by adverse possession is missing, the claimant will not obtain title. Id.; Pan American Petroleum Corp. v. Candelaria, 403 F.2d 351 (10th Cir.1968).\nAppellant concedes that appellees\u2019 possession of the property from the time of Rosalia\u2019s death was adverse. However, he contends that Rosalia\u2019s initial possession of the subject property was permissive and, since appellees\u2019 adverse possession falls short of the required time period, appellees\u2019 claim must fail. Appellant also contends that because he regularly used a roadway traversing the tract in issue to reach his own residence, and maintained and improved the property, Rosalia\u2019s possession could not be deemed exclusive. We disagree with both contentions.\nWith respect to the first contention, appellant admits the trial court applied the clear and convincing standard of proof, but he apparently argues that Rosalia\u2019s possession must be presumed to have been permissive. See Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956) (possession originating in cotenancy is presumptively permissive; where the original occupation of property is permissive, an adverse holding must be expressly declared and notice of such change brought to the attention of the owner); accord Norgong v. Whitehead, 225 Minn. 379, 31 N.W.2d 267 (1948) (existence of close family relationship between claimant and record owner of land creates inference that original possession by claimant was permissive and such possession will be presumed to continue as permissive rather than hostile until and unless contrary evidence is affirmatively shown). Alternatively, he argues that there was an insufficient showing of hostility, because he and Rosalia were brother and sister. See Fehl v. Horst, 256 Ore. 518, 474 P.2d 525 (1970) (where there is a close family relationship between the owner of property and claimant, courts have required a greater showing that possession was hostile or adverse). Finally, he argues that there was uncontroverted evidence of permission.\nAppellant\u2019s reliance on a presumption of permissiveness is misplaced. Rosalia and appellant were not co-tenants, each of whom was entitled to consider the other\u2019s possession permissive. See Apodaca v. Hernandez.\nFurther, the evidence shows that they were not in a relationship that would support an inference of permissive possession. Cf. Fehl v. Horst (where a claimant had assumed the management and control of a building owned by his elderly mother-in-law, the court refused to consider the claimant\u2019s actions adverse while the owner was alive). However, even if such an inference arose solely from the relationship, there was sufficient evidence to rebut it.\nRosalia entered into possession of the subject property under a recorded deed in her own name, and it is undisputed that appellant was aware of it. By his own admission, Rosalia always treated and took care of the house and property as an owner. In fact, from 1951 to 1976 she mortgaged the property on eleven different occasions. It is also undisputed that the house was built for Rosalia by her father and that she lived in the house until her death in 1983. Additionally, with appellant\u2019s knowledge, Rosalia paid ad valorem taxes on the property, which were assessed in her name. It is difficult to imagine what more Rosalia could have done to establish hostile or adverse possession of the tract in issue.\nFinally, Isaura testified that Rosalia moved onto the tract in issue without permission. Appellant\u2019s testimony on this issue was equivocal. Thus, the record does not contain uncontroverted evidence of permission. Acquiescence is not necessarily the same as permission. Weldon v. Heron, 78 N.M. 427, 432 P.2d 392 (1967). \u201cOn the contrary, there may be adverse possession where possession is with forbearance of the owner who knew of such possession and failed to prohibit it.\u201d Id. at 428, 432 P.2d at 393.\nNo New Mexico case addresses appellant\u2019s second contention, which is that his use of Rosalia\u2019s property precludes a finding of exclusivity. Nevertheless, other authorities have held that possession may be exclusive, notwithstanding that the land is subject to non-possessory rights, such as easements. See Kouri v. Burnett, 415 P.2d 963 (Okla.1966); 2 C.J.S. Adverse Possession \u00a7 58 (1972). The fact that another person uses the property by permission of claimant, or in subordination to her claim, does not necessarily preclude a finding of exclusiveness of possession. 2 C.J.S., supra, \u00a7 54. Possession need not be absolutely exclusive if it is of the kind expected of an owner under like circumstances. See Grimstad v. Dordan, 256 Or. 135, 471 P.2d 778 (1970).\nAllowing a brother and sister-in-law to use a roadway across the tract to gain access to their residence is not an act inconsistent with the use an owner would make of the land. Rosalia\u2019s possession may be considered exclusive even though others used the property with her permission.\nExclusive possession for purposes of establishing adverse possession means that the claimant exercises dominion and control for herself and not for another. See 7 R. Powell, The Law of Real Property \u00a7 1013(2)(d) (1987). Nevertheless, the claimant\u2019s actions must exclude the owner from exercising dominion and control. Id.\nIn reviewing the sufficiency of the evidence to support the trial court\u2019s finding of exclusiveness, the evidence must be viewed in favor of upholding the finding. C & F Realty Corp. v. Mershon. Because the evidence on the record supports an inference that Rosalia\u2019s possessory acts limited appellant to permissive use, the finding is supported by substantial evidence.\nAs to appellant\u2019s contention that he repaired, maintained, and improved the land, the evidence was conflicting concerning whether these actions were undertaken merely as gratuitous assistance to Rosalia, in subordination to her claim, or as a landowner in his own right and for his own benefit. Where evidence in an adverse possession claim is conflicting, and there is substantial evidence to support the trial court\u2019s decision, that decision will not be set aside on appeal. Smith v. Borradaile, 30 N.M. 62, 227 P. 602 (1922).\nIn this case, a family member was in residence on the property for over thirty years under a warranty deed from appellant\u2019s own grantor and parent. With appellant\u2019s knowledge, she paid taxes on that property and otherwise dealt with the property as an owner. On these facts, appellant\u2019s use of a roadway and contributions towards repair and maintenance do not preclude a finding of exclusivity.\nAccordingly, we affirm the judgment of the trial court. No costs are awarded. Appellees\u2019 request for attorney fees, being unsupported by statutory authority, is denied. See Alber v. Nolle, 98 N.M. 100, 645 P.2d 456 (Ct.App.1982).\nIT IS SO ORDERED.\nGARCIA and APODACA, JJ., concur.", "type": "majority", "author": "MINZNER, Judge." } ], "attorneys": [ "Manuel I. Arrieta, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for plaintiffs-counter-defendants-appellants.", "T.K. Campbell, Campbell, Reeves & Chavez, P.A., Las Cruces, for defendants-counter-plaintiffs-appellees." ], "corrections": "", "head_matter": "759 P.2d 1017\nCatarino D. HERNANDEZ and Isaura G. Hernandez, Plaintiffs-Counter-Defendants-Appellants, v. Alfonso H. CABRERA and Jessie L. Cabrera, his wife, Defendants-Counter-Plaintiffs-Appellees.\nNo. 9760.\nCourt of Appeals of New Mexico.\nJuly 12, 1988.\nManuel I. Arrieta, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for plaintiffs-counter-defendants-appellants.\nT.K. Campbell, Campbell, Reeves & Chavez, P.A., Las Cruces, for defendants-counter-plaintiffs-appellees." }, "file_name": "0435-01", "first_page_order": 477, "last_page_order": 480 }