2019 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 4 - Ejectment and Recovery of Real Property
Section 42-4-2 - [Wrongful ouster and detention of realty or mining claim.]

The action of ejectment will lie for the recovery of the possession of a mining claim, as well also of any real estate, where the party suing has been wrongfully ousted from the possession thereof, and the possession wrongfully detained.

History: C.L. 1897, § 2685 (251), added by Laws 1907, ch. 107, § 1 (251); Code 1915, § 4361; C.S. 1929, § 105-1802; 1941 Comp., § 25-802; 1953 Comp., § 22-8-2.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Court considers strength of possessory title of parties. — In this sort of possessory action, it is the duty of the court to consider the strength of the possessory title of each of the adversary parties. Winslow v. Burns, 47 N.M. 29, 132 P.2d 1048 (1943).

Priority of rights between locators. — As between the prior locator in possession and a subsequent locator, the evidence of the prior locator will be viewed in the most favorable light it will reasonably justify. Winslow v. Burns, 47 N.M. 29, 132 P.2d 1048 (1943).

Trespasser in possession may maintain action against second trespasser. — One in possession of the surface of a mining claim, even though a trespasser, may maintain ejectment against one who trespasses underneath the surface. Lincoln-Lucky & Lee Mining Co. v. Hendry, 9 N.M. 149, 50 P. 330 (1897) (decided under former law).

Recovery of government land by plaintiff without title. — Plaintiff with prior actual possession without title of government land may recover its possession by ejectment on a proper demand for restoration of such possession against a subsequent mere intruder, for the statute is broad enough to include possession wholly disconnected from the legal or even colorable title, and while such actual possession although continued indefinitely would not ripen into a legal title or constitute an equity against the United States, it will be protected against such wrongdoer. N. M., Rio Grande & Pac. Ry. v. Crouch, 4 N.M. (Gild.) 293, 13 P. 201 (1887) (decided under former law).

When distinction between ouster upon and beneath surface. — There can be no distinction between an ouster upon the surface and an ouster beneath the surface in an action of ejectment on a mining claim, except in cases arising under the mining laws by virtue of this statute, for the rule is the same as to all character of lands. Lincoln-Lucky & Lee Mining Co. v. Hendry, 9 N.M. 149, 50 P. 330 (1897) (decided under former law).

Burden of proof. — In action in ejectment for possession of a mine claimed by plaintiff under United States patent, where plaintiff made prima facie case, and defendant undertook to establish fact that by virtue of certain act of congress, which contemplated certain state of facts and a strict compliance with the provisions and conditions of the same, they were given right to follow mineral vein or lode from or across side lines of claims, the burden of proof as to the existence of such state of facts, and the compliance with all the requirements, conditions and terms of the act, was upon defendant. Bell v. Skillicorn, 6 N.M. 399, 28 P. 768 (1892) (decided under former law).

Model used during trial, allowed in jury room. — Where miners who had worked on the property in question made a model, which they admitted was not a perfect facsimile of the mine, and the court refused to admit it as such, but did admit it for the purpose of explaining the testimony of witnesses, and several used it for both plaintiff and defendant, it was proper to permit the jury to take it to the jury room at their request. Illinois Silver Mining & Milling Co. v. Raff, 7 N.M. 336, 34 P. 544 (1893) (decided under former law).

Instructions to jury. — In action in ejectment for possession of a mine claimed by plaintiff under United States patent, which was in evidence, court properly instructed jury that if plaintiff's vein was within side lines formed by artificial monuments placed around the same at time of survey for patent, it would make no difference whether said monuments and survey were properly connected with the surveys of the public lands, but that the locations of said monuments would determine and control the location. Bell v. Skillicorn, 6 N.M. 399, 28 P. 768 (1892) (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Ejectment §§ 5, 20, 21, 22; 54 Am. Jur. 2d Mines and Minerals § 171 et seq.

Right of owner of interest in mineral in suit to maintain ejectment, 35 A.L.R. 234.

28A C.J.S. Ejectment § 7; 58 C.J.S. Mines § 139.