June 25, 2010 – Ramona Salcido Polaco, a/k/a Romana Salcido Polaco, and Trancito Polaco, her husband v. Cornelia Salcido Prudencio and Raymond Prudencio, her husband, No. 29,599

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 25, 2010

NO. 29,599

RAMONA SALCIDO POLACO, a/k/a

ROMONA SALCIDO POLACO, and

TRANCITO POLACO, her husband,
Plaintiffs-A ppellees,

V.

CORNELIA SALCIDO PRUDENCIO and
RAYMOND PRUDENCIO, her husband,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge

Gary C. Mitchell, L.L.C.
Gary C. Mitchell
Ruidoso, NM

for Appellees

Adam D. Rafkin, P.C.
Adam D. Rafkin
Ruidoso, NM

for Appellants

1 Salcido’s third daughter is not a party to this litigation because the dispute
concerns the boundary line between Prudencio and Polaco .
OPINION
FRY, Chief Judge.
{1} 	This appeal requires us to determine whether the suit brought by Plaintiff
Ramona Salcido Polaco against Defendant Cornelia Salcido Prudencio to resolve a
boundary dispute between them was barred by any statute of limitations. Polaco filed
suit in 1998, approximately ten years after she first discovered that there was a dispute
over the boundary line between her property and Prudencio’s, but only two years after
Prudencio completed construction of a fence along that disputed boundary line. The
district court concluded that due to the ongoing nature of the conflict between the
parties, the cause of action was not barred by any statute of limitations and resolved
the boundary dispute in favor of Polaco, ordering Prudencio to remove the fence she
had built along the disputed line. 	Prudencio appeals only the district court’s
conclusion that Polaco’s complaint was not time-barred. We affirm.
BACKGROUND
{2} 	The facts of this case are not in dispute. 	Sometime prior to 1981, Pedro
Salcido, the father of Prudencio and Polaco, decided to divide his land into three
parcels and give a parcel to each of his three daughters.1 In 1981, after drawing out

2
the boundary lines of his property and dividing the property into three parcels on
paper, Salcido, along with Prudencio’s and Polaco’s husbands, built a fence along the
boundary between the two sisters’ property. In 1983, the parties hired a surveyor to
draft deeds stating the legal description of their respective parcels. 	The surveyor
prepared deeds based on his survey of the property and later realized he had made an
error in the deeds. Rather than issue new deeds to correct the error, the surveyor had
the parties exchange deeds to portions of their parcels in order to correct the mistake.
{3} 	In May 1988, Salcido died. 	In the summer of 1988, shortly after Salcido’s
death, Polaco discovered that Prudencio was beginning to take down the fence Salcido
had built and that Prudencio was beginning to construct a new fence that extended the
boundary line further into Polaco’s parcel of land. Following this discovery, Polaco
went to the county clerk’s office and determined that the deeds prepared by the
surveyor had changed the boundary line between the two properties. Polaco
complained to Prudencio about the construction, and Prudencio stopped building the
fence. 	Over the course of the next ten years, Prudencio periodically resumed
construction of the fence, Polaco complained, and Prudencio stopped construction.
This happened approximately four times before the completion of the fence in 1996.
In 1996, Prudencio closed a gate blocking Polaco’s access to the property.
{4} 	On June 5, 1998, Polaco filed suit against Prudencio to establish the boundary

3
lines and to permanently enjoin Prudencio’s use of the land originally given to Polaco
via the construction of the 1981 boundary fence. 	Prudencio moved for summary
judgment, arguing that Polaco’s claims were barred by the four-year “catch-all”
statute of limitations. In February 2000 the court heard testimony and ordered the
parties to have an independent surveyor review the plats, diagrams, and legal
descriptions of the property. In 2009 after a number of continuances and delays, the
court ultimately ruled that the statute of limitations did not bar Polaco’s complaint and
that the boundary line between the two properties was the line on which Salcido had
built the fence in 1981.
{5} 	In concluding that Polaco’s claims were not barred by any statute of limitations,
the district court found that the “dispute over the property boundaries . . . [was] a
continuing dispute and [that] the statute of limitations should[ not] apply.” The court
explained that “a conflict would arise and the building would stop” but that “sometime
later additional fence would be built, and the conflict would arise again and the fence
building would stop.” 	Because the court found that the conflict continued “until
sometime between 1996 and 1998,” and because the lawsuit was filed “within the
same year or two of the continuing conflict,” the court concluded that “[Polaco] timely
filed [her] complaint and it should not be barred by the statute of limitations.” The
court did not indicate which statute of limitations it was applying, only that the one-

4
to two-year delay between the conclusion of the fence’s construction and the filing of
the complaint was within the statute of limitations.
{6} 	On appeal, Prudencio argues that there is no codified statute of limitations for
boundary disputes, that we should apply the four year “catch-all” statute of limitations
to Polaco’s cause of action, and that the cause of action accrued in 1988 when Polaco
first discovered that there was a dispute over the boundary line. 	Specifically,
Prudencio contends that the court erred in concluding that the statute of limitations
was tolled by the ongoing nature of the conflict between the two parties, arguing that
the “continuing wrong doctrine” is inapplicable to Polaco’s cause of action. Because
the district court did not indicate which statute of limitations it was applying to
Polaco’s claims, we first address the applicable statute of limitations. Where, as here,
the “facts relevant to a statute of limitations are undisputed, the standard of review is
whether the court correctly applied the law to the undisputed facts.” 	Gilmore v.
Gilmore, 2010-NMCA-013, ¶ 13, 147 N.M. 625, 227 P.3d 115 (filed 2009). 	This
presents a question of law that we review de novo. Id.
Boundary Disputes Are Governed by the Ten-year Period Applicable to Adverse
Possession
{7} 	The title of Polaco’s complaint stated that she was seeking to establish
boundaries and fence lines and for permanent injunction. She alleged that her land
was bordered by a fence that was built in 1981 by her father, her husband, and

5
Prudencio’s husband and that she took possession of the land sometime after the fence
was completed. She also alleged that Prudencio “ha[s] now attempted and in the past
few years, ha[s] built and put into use a new fence, taking a large portion of [Polaco’s]
land.” While the specific relief that Polaco sought—a determination of the correct
boundary between the parties’ parcels—was clear from the complaint, the type of
action she brought, and thus the applicable statute of limitations, is not entirely clear.
{8} 	Both parties construe the cause of action as a boundary dispute. Our Supreme
Court has recognized that “[e]jectment is the remedy ordinarily invoked in the
settlement of such disputes.” Murray Hotel Co. v. Golding, 54 N.M. 149, 156, 216
P.2d 364, 368 (1950). In order to bring an action for ejectment, it is sufficient that a
plaintiff “declare in his complaint that on some day, named therein, he was entitled
to the possession of the premises, describing them; and that the defendant, on a day
named in the complaint, afterwards entered into such premises and unlawfully
withheld from the plaintiff the possession thereof.” NMSA 1978, § 42-4-5 (1907).
Polaco’s complaint alleged that she possessed and was entitled to possess property on
one side of the fence that was built by her father and that Prudencio took possession
of that property by building a fence that encroached on her property and therefore
withheld from Polaco possession of the land. Thus, Polaco’s complaint stated a cause
of action for ejectment, and we therefore consider the applicable statute of limitations

6
for an ejectment action. Nonetheless, we note that “a statutory suit to quiet title would
also have been appropriate” because quiet title actions are “used to determine any
interest in land whether [the] plaintiff is in or out of possession.” 	Cunningham v.
Otero County Elec. Coop., Inc., 114 N.M. 739, 742, 845 P.2d 833, 836 (Ct. App.
1992) (internal quotation marks and citation omitted).
{9} 	Prudencio argues that “[t]here is no statute of limitations in New Mexico which
would grant Plaintiffs ten (10) years to file suit in this matter” and that because “there
appears to be no explicit, codified statute of limitations for boundary disputes,” the
four-year statute of limitations for unspecified actions is applicable. 	Prudencio
correctly notes that there is no express statute of limitations for an ejectment action
in NMSA 1978, Sections 37-1-1 to -17 (1880, as amended through 2009), the
statutory chapter delineating the statute of limitations for various causes of action.
Prudencio also correctly recognizes that Section 37-1-4 provides a four-year statute
of limitations for “all other actions not herein otherwise provided for and specified.”
We disagree, however, with Prudencio’s contention that a boundary dispute action
falls within the four-year catch-all statute of limitations.
{10} 	Our Supreme Court has previously held that equitable actions regarding title to
property are not cut off by the running of statutes of limitations. In Garcia v. Garcia,
111 N.M. 581, 808 P.2d 31 (1991), the Court addressed whether a six-year statute of

7
limitations for actions founded in contract applied to a quiet title action. In holding
that the statute of limitations was inapplicable, the Court noted that “[u]nless the
equitable owner’s claim is barred by [the adverse possession statute,] a contract
vendee’s claim of title, where the vendee has fully performed and whether or not he
or she is in possession, is not cut off by the running of a statute of limitations.” Id. at
588, 808 P.2d at 38. Thus, the Court recognized that an equitable claim to title of
property, such as a quiet title or ejectment action, is not affected by the running of a
statute of limitations but only by the ten-year adverse possession statute. See id.; see
also Turner v. Bassett, 2003-NMCA-136, ¶ 20, 134 N.M. 621, 81 P.3d 564 (noting
that “there is no statute of limitations applicable to actions to quiet title”), rev’d on
other grounds by, 2005-NMSC-009, 137 N.M. 381, 111 P.3d 701.
{11} 	Our adverse possession statute provides that “any person . . . who shall neglect
or have neglected for the said term of ten years, to avail themselves of the benefit of
any title, legal or equitable, which he, she or they may have to any lands [held by] the
person or persons so as aforesaid in adverse possession, shall be forever barred” from
asserting title to the land. NMSA 1978, § 37-1-22 (1973). Thus, causes of action
brought more than ten years after a defendant begins to adversely possess land are
barred by Section 37-1-22. 	It follows that a plaintiff can file suit to resolve a title
dispute at any time prior to the running of the ten-year period.

8
{12} 	We find support for this view in our case law on the adverse possession statute.
For example, in Jinkins v. City of Jal, our Supreme Court noted that the period for a
prescriptive easement is identical to the period for adverse possession, ten years. 73
N.M. 173, 177, 386 P.2d 599, 602 (1963). Thus, the “period during which one must
sue to enforce an easement is ten years.” Id. The Court explained that “in a suit to
enjoin a restrictive covenant or negative easement . . . the applicable period of
limitation is the period of prescription.” Id. Similarly, in New Mexico Products Co.
v. New Mexico Power Co., the Court noted that the adverse possession statute granted
a ten-year period for an action stemming from the obstruction of a stream. 42 N.M.
311, 321, 77 P.2d 634, 641 (1937).
{13} 	In light of this authority, Prudencio’s argument that a cause of action to resolve
a boundary dispute is barred by the four-year catch-all statute of limitations does not
make sense. It is illogical to conclude that the Legislature intended that a property
owner has ten years in which to refute a claim of adverse possession but only four
years in which to seek ejectment of a party withholding possession from the property
owner. We therefore reject Prudencio’s contention and hold that the ten-year period
imposed by the adverse possession statute is applicable to Polaco’s claim. Even then,
Polaco’s claim would be barred only if Prudencio met all other requirements of the
adverse possession statute. See Garcia, 111 N.M. at 588, 808 P.2d at 38. However,

9
we clarify that the doctrine of laches may serve as a bar to stale claims involving the
title to property. Id. (noting that while statutes of limitations do not run against claims
to quiet title, the doctrine of laches could still serve to bar stale claims regarding title).
Prudencio does not argue the defense of laches in this case.
Polaco’s Complaint Was Timely Filed and Is Not Time-Barred
{14} 	We next address whether the ten-year period under Section 37-1-22 had run
when Polaco filed suit on June 5, 1998. 	According to the testimony of Polaco’s
husband, they discovered that Prudencio was beginning to construct a fence sometime
in the summer of 1988. Depending on whether that discovery was before or after June
5, 1988, Polaco either filed her complaint within ten years of discovering the dispute
over the boundary or she filed outside of that ten-year period. While such a factual
question would ordinarily require a remand to the district court to determine the
precise date that Polaco discovered the construction of the fence, a remand is
unnecessary because there is no assertion that Prudencio actually took possession of
the disputed property in 1988, only that Polaco became aware that Prudencio asserted
ownership of the disputed tract.
{15} 	Section 37-1-22 requires that in order for a person to obtain title to property
through 	adverse 	possession, 	the 	person 	must 	“have 	had 	adverse 	possession
continuously and in good faith under color of title for ten years.” That possession

10
must be “actual, visible, exclusive, hostile and continuous.” Bd. of Trs. of Tecolote
Land Grant v. Griego, 2005-NMCA-007, ¶ 9, 136 N.M. 688, 104 P.3d 554 (filed
2004). Thus, possession is an essential element that must be met before the ten-year
adverse possession period will begin to run. 	The district court found that “over a
period of years,” Prudencio “started the fence, built a portion, then stopped, and then
rebuilt the fence and then started again” until the fence was completed sometime
around 1996. 	Because of the sporadic nature of the construction of the fence,
Prudencio cannot be said to have had exclusive and continuous possession of the
disputed property for the requisite ten-year period at the time that Polaco filed her suit
in 1998. See Lopez v. Adams, 116 N.M. 757, 759, 867 P.2d 427, 429 (Ct. App. 1993)
(concluding that evidence that property was used by another party precluded the
exclusive, uninterrupted possession required for adverse possession); Gentile v.
Kennedy, 8 N.M. 347, 354, 45 P. 879, 880 (1896) (noting that a true owner’s
“possession must be presumed to continue until its loss by ouster has been proved”
and that there must be “an actual occupancy” that is “clear, definite, positive, and
notorious”). 	By abandoning the construction of the fence each time Polaco
complained about the intrusion onto her property, Prudencio failed to maintain the
continuous and exclusive possession of the disputed property that would allow the ten-
year period to begin to run. Thus, at the time that Polaco filed suit, the ten-year period

11
had not expired, if it had ever even begun to run, and Polaco’s cause of action was
therefore timely filed.
{16} 	Because we conclude that Polaco’s cause of action was timely filed, we do not
address Prudencio’s argument that the district court erred in concluding that the statute
of limitations was tolled by the continuing conflict in the case. 	In addition, in her
reply brief, Prudencio argues that Polaco never asserted claims for adverse possession
or defect in title and that Polaco cannot raise these issues for the first time on appeal.
Contrary to Prudencio’s argument, however, Polaco does not assert on appeal that her
claim is one for adverse possession or defect in title. 	Rather, in response to
Prudencio’s argument that the four-year catch-all statute of limitations applies to a
boundary dispute, Polaco asserted that the ten-year period in the adverse possession
statute is the applicable time frame for a boundary dispute. In order for this Court to
address Prudencio’s argument on appeal, we necessarily had to consider what
limitations period actually applies to such a dispute.
CONCLUSION
{17} 	For the foregoing reasons, we affirm the judgment of the district court.
{18} 	IT IS SO ORDERED.

CYNTHIA A. FRY, Chief Judge

WE CONCUR:

MICHAEL E. VIGIL, Judge

LINDA M. VANZI, Judge

12