Derringer v. Chapel

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 DAVID DERRINGER, 8 Plaintiff-Appellant, 9 v. NO. 30,616 10 JOHN CURTIS CHAPEL, 11 MICKEY C. CHAPEL, and 12 JENNIFER CHAPEL, 13 Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 Theresa M. Baca, District Judge 16 David Derringer 17 Albuquerque, NM 18 Pro Se Appellant 19 Joseph Manges 20 Santa Fe, NM 21 for Appellees 22 MEMORANDUM OPINION 23 KENNEDY, Judge. 1 Plaintiff appeals an order dismissing his complaint for replevin and conversion. 2 In our third notice, we proposed to affirm the order of dismissal on the basis of 3 priority jurisdiction. Plaintiff has timely responded with a memorandum in response, 4 including several motions. We have considered his arguments and, not being 5 persuaded, we deny the motions and affirm the order of dismissal. 6 In our notice, we pointed out that there were currently before the district court 7 in Catron County pleadings addressing Plaintiff’s issues relating to recovery of his 8 personal property. Because these matters are still pending there, that court has priority 9 jurisdiction over the issues. Plaintiff continues to argue that the district court of 10 Catron County never had any jurisdiction over matters relating to Plaintiff’s personal 11 property. That assertion is belied by the record in CV-2002-19, which shows that 12 Plaintiff filed a motion to dissolve a temporary restraining order, so that he could 13 recover his personal property from the property in forfeiture. Thus, Plaintiff actually 14 sought the assistance of the Catron County District Court in recovering his personal 15 property. Defendants have responded to Plaintiff’s motion, but there has been no 16 hearing set, nor any ruling made by the district court. 17 Further, it appears that during the foreclosure process, the parties presented the 18 district court with a plan regarding Plaintiff’s recovery of his personal property. It 19 does not appear that any order was entered to put the plan into effect. Thus, there are [2] 1 clearly matters before the Catron County District Court relating to Plaintiff’s recovery 2 of his personal property. We conclude that Plaintiff’s remedy is to pursue his claims 3 there. 4 Insofar as Plaintiff continues to assert that water, timber, and minerals rights are 5 personal property here, we disagree. We recognize that all three may, under certain 6 circumstances, be personal property. However, those circumstances do not appear to 7 be present here. Both minerals and timber become personal property only once they 8 have been severed from the land. Caledonian Coal Co. v. Rocky Cliff Coal Mining 9 Co., 16 N.M. 517, 524 , 120 P. 715 (1911) (stating that minerals are part of the land 10 until physically severed and removed from the premises); Rankin v. Ridge, 53 N.M. 11 33, 37, 201 P.2d 359 (1948) (noting that growing trees and timber are part of the 12 realty). If Plaintiff seeks to recover timber and minerals, he must prove to the district 13 court that he has severed and removed them from the property. With regard to water 14 rights, we recognize that some water rights may be moved from one piece of property 15 to another. We also recognize that real property can be sold with or without water 16 rights. However, a water right in New Mexico has a number of statutory requirements 17 necessary to its ownership. Cf. Turner v. Bassett, 2005-NMSC-009 , 137 N.M. 381 , [18] 111 P.3d 701 (discussing severance of water rights). In the event that Plaintiff seeks [3] 1 to establish his ownership right to certain water, he will need to show that he has met 2 those requirements. 3 We conclude that the district court in Catron County has an open case in which 4 issues relating to Plaintiff’s personal property remain pending. Therefore, Plaintiff 5 must pursue his claims on his personal property in that court action. See Cruz v. FTS 6 Constr., Inc., 2006-NMCA-109, ¶ 15 , 140 N.M. 284 , 142 P.3d 365 (explaining 7 priority jurisdiction); Heimann v. Adee, 122 N.M. 340, 345 , 924 P.2d 1352 , 1357 8 (1996) (holding that the district court of the county in a case involving real estate 9 retains exclusive jurisdiction over matters growing out of levy or sale under any 10 execution). 11 For the reasons stated herein and in the third notice of proposed disposition, we 12 affirm the district court order dismissing Plaintiff’s complaint. The motions included 13 in Plaintiff’s response to our calendar notice are denied. 14 IT IS SO ORDERED. 15 _______________________________ 16 RODERICK T. KENNEDY, Judge 17 WE CONCUR: 18 _________________________________ 19 MICHAEL D. BUSTAMANTE, Judge 1 _________________________________ 2 TIMOTHY L. GARCIA, Judge