Ejectment and Recovery of Real Property

NMSA 1978 ch. 42, art. 4

in effect

NMSA 1978, § 42-4-1 [When ejectment maintainable.]

42-4-1. [When ejectment maintainable.] The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises. C.L. 1897, § 2685 (250), added by Laws 1907, ch. 107, § 1 (250); Code 1915, § 4360; C.S. 1929, § 105-1801; 1941 Comp., § 25-801; 1953 Comp., § 22-8-1.

NMSA 1978, § 42-4-2 [Wrongful ouster and detention of realty or mining claim.]

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. 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.

NMSA 1978, § 42-4-3 [Principles apply to equity suits.]

42-4-3. [Principles apply to equity suits.] The principles of the provisions of this article shall apply and extend to all suits in equity when the object of the complaint or answer is for the recovery of lands and tenements. C.L. 1897, § 2685 (265), added by Laws 1907, ch. 107, § 1 (265); Code 1915, § 4378; C.S. 1929, § 105-1819; 1941 Comp., § 25-803; 1953 Comp., § 22-8-3.

NMSA 1978, § 42-4-4 [Parties to action.]

42-4-4. [Parties to action.] The action shall be prosecuted in the real names of the parties, and shall be brought against the tenant in possession, or against the person under whom such tenant holds or claims possession. Any person claiming such premises may, on motion, be made a defendant. C.L. 1897, § 2685 (252), added by Laws 1907, ch. 107, § 1 (252); Code 1915, § 4362; C.S. 1929, § 105-1803; 1941 Comp., § 25-804; 1953 Comp., § 22-8-4.

NMSA 1978, § 42-4-5 [Contents of complaint.]

42-4-5. [Contents of complaint.] It shall be sufficient for the plaintiff to 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, to his damage for any sum he may name. C.L. 1897, § 2685 (253), added by Laws 1907, ch. 107, § 1 (253); Code 1915, § 4363; C.S. 1929, § 105-1804; 1941 Comp., § 25-805; 1953 Comp., § 22-8-5.

NMSA 1978, § 42-4-6 [Defendant's pleadings; plaintiff's reply.]

42-4-6. [Defendant's pleadings; plaintiff's reply.] The defendant shall plead to the complaint, as required by Sections 4106 and 4110; and the plaintiff may reply or demur. C.L. 1897, § 2685 (254), added by Laws 1907, ch. 107, § 1 (254); Code 1915, § 4364; C.S. 1929, § 105-1805; 1941 Comp., § 25-806; 1953 Comp., § 22-8-6.

NMSA 1978, § 42-4-7 [Ultimate facts authorizing recovery.]

42-4-7. [Ultimate facts authorizing recovery.] It shall be sufficient to entitle the plaintiff to recover, to show that at the time of the commencement of the action the defendant was in possession of the premises claimed, and that the plaintiff had a right to the possession thereof. C.L. 1897, § 2685 (255), added by Laws 1907, ch. 107, § 1 (255); Code 1915, § 4365; C.S. 1929, § 105-1806; 1941 Comp., § 25-807; 1953 Comp., § 22-8-7.

NMSA 1978, § 42-4-8 [Action between cotenants; ouster to be shown.]

42-4-8. [Action between cotenants; ouster to be shown.] In any action brought by a joint tenant, or tenant in common, against a cotenant, he shall be required to prove an actual ouster or act equivalent thereto. C.L. 1897, § 2685 (256), added by Laws 1907, ch. 107, § 1 (256); Code 1915, § 4366; C.S. 1929, § 105-1807; 1941 Comp., § 25-808; 1953 Comp., § 22-8-8.

NMSA 1978, § 42-4-9 [Rents and profits recoverable as damages.]

42-4-9. [Rents and profits recoverable as damages.] If the plaintiff prevail, he shall recover for damages the value of the rents and profits of such premises to the time of the verdict or the expiration of the plaintiff's title, under these limitations: A. if the defendant had knowledge of the plaintiff's claim or title, then for the whole time he had such knowledge; B. if he had no such knowledge, then from the commencement of the action. C.L. 1897, § 2685 (257), added by Laws 1907, ch. 107, § 1 (257); Code 1915, § 4367; C.S. 1929, § 105-1808; 1941 Comp., § 25-809; 1953 Comp., § 22-8-9.

NMSA 1978, § 42-4-10 [Title expiring pendente lite; judgment.]

42-4-10. [Title expiring pendente lite; judgment.] If the plaintiff's title expire after the action is brought, but before its determination, the verdict and judgment shall be for damages and costs only. C.L. 1897, § 2685 (258), added by Laws 1907, ch. 107, § 1 (258); Code 1915, § 4368; C.S. 1929, § 105-1809; 1941 Comp., § 25-810; 1953 Comp., § 22-8-10.

NMSA 1978, § 42-4-11 [Judgment for plaintiff.]

42-4-11. [Judgment for plaintiff.] If the plaintiff prevail, the judgment shall be for the recovery of the possession, and for the damages and costs. C.L. 1897, § 2685 (259), added by Laws 1907, ch. 107, § 1 (259); Code 1915, § 4369; C.S. 1929, § 105-1810; 1941 Comp., § 25-811; 1953 Comp., § 22-8-11.

NMSA 1978, § 42-4-12 [Writ of possession.]

42-4-12. [Writ of possession.] Upon judgment for the recovery of possession, a writ of possession shall be issued, and the sheriff shall deliver to the plaintiff the possession of the premises, and also collect the damages and costs, as on execution in other cases. C.L. 1897, § 2685 (260), added by Laws 1907, ch. 107, § 1 (260); Code 1915, § 4370; C.S. 1929, § 105-1811; 1941 Comp., § 25-812; 1953 Comp., § 22-8-12.

NMSA 1978, § 42-4-13 [Execution; judgment for damages and costs.]

42-4-13. [Execution; judgment for damages and costs.] If the judgment be for damages and costs, an execution shall issue as in a personal action. C.L. 1897, § 2685 (261), added by Laws 1907, ch. 107, § 1 (261); Code 1915, § 4371; C.S. 1929, § 105-1812; 1941 Comp., § 25-813; 1953 Comp., § 22-8-13.

NMSA 1978, § 42-4-14 [Improvements and mesne profits; time; claims; notices.]

42-4-14. [Improvements and mesne profits; time; claims; notices.] In all actions of ejectment, when the defendant or tenant in possession in such suit shall have title of the premises in dispute either by grant from the government of Spain, Mexico or the United States, deed of conveyance founded on a grant or entry for the same, tax deed or other color of title, such defendant or defendants may file at the time of the filing of the pleas in said cause a notice to the plaintiff, that on the trial of said cause he or they will prove what improvement he or they may have made on the said lands in dispute and the value thereof. After which notice being filed, the said plaintiff may file a notice within twenty days thereafter, to the said defendant or defendants or tenant in possession, that in like manner he or they will prove the amount of the mesne profits of the said premises: provided, that no improvements shall be taken into valuation and allowed for, that shall have been made after the execution of the original summons in such suit or after the plaintiff, his agent or attorney, shall have served said defendant or tenant in possession with a written notice that he or they claim title to the land, specifying in said notice the nature of the claim; nor shall any mesne profits be valued and recovered except such as may have accrued after the commencement of the suit or notice given as aforesaid. C.L. 1897, § 2685 (262), added by Laws 1907, ch. 107, § 1 (262); 1909, ch. 116, § 1; Code 1915, § 4372; C.S. 1929, § 105-1813; 1941 Comp., § 25-814; 1953 Comp., § 22-8-14.

NMSA 1978, § 42-4-15 [Improvements and mesne profits; verdict; set-off; judgment; payment by plaintiff before obtaining writ of possession.]

42-4-15. [Improvements and mesne profits; verdict; set-off; judgment; payment by plaintiff before obtaining writ of possession.] When the jury shall find a verdict for the plaintiff in such action, they shall also find the value of the improvements in favor of the defendant or tenant in possession, proved in the manner aforesaid, and further shall find the amount of the mesne profits proved to have accrued as aforesaid, as also the value of the land in its natural state without the improvements, and if the value of the improvements should exceed the amount of the mesne profits, the balance or overplus thereof shall be found by the jury in favor of the defendant or tenant in possession, and such plaintiff or plaintiffs shall not have a writ of possession awarded or issued against the defendant or defendants until he or they shall have paid to the said defendant or defendants, their agent or attorney, the full amount of balance or overplus, which the value of the improvements is found to exceed the mesne profits as aforesaid. And if the mesne profits as aforesaid shall exceed the value of the improvements as aforesaid, the jury aforesaid shall find the amount of such balance or overplus against the defendant or tenant in possession and judgment shall be entered up against said defendant or tenant in possession for such balance or overplus so found against them. C.L. 1897, § 2685 (263), added by Laws 1907, ch. 107, § 1 (263); Code 1915, § 4373; C.S. 1929, § 105-1814; 1941 Comp., § 25-815; 1953 Comp., § 22-8-15.

NMSA 1978, § 42-4-16 [Improvements exceeding mesne profits; election by plaintiff; tender of deed; payment to plaintiff.]

42-4-16. [Improvements exceeding mesne profits; election by plaintiff; tender of deed; payment to plaintiff.] If upon the rendition of any judgment in any such suit, the value of the improvements put upon the land by any defendant or tenant in possession as aforesaid shall exceed the net mesne profits of said land, the plaintiff or plaintiffs shall at the term of court at which said judgment is rendered, elect whether he will take his judgment and pay for the improvements so assessed against him or take pay from the defendant or defendants for the net profits and the value of the land in its natural state without the improvements, and if he elect to take pay for the net profits and the value of the land without the improvements as aforesaid, the said plaintiff or plaintiffs shall tender a warranty deed to the defendant or defendants for the said lands, upon the payment of its value as found by the jury in its natural state without the improvements, which payment shall be made to the plaintiff or plaintiffs in such reasonable term [terms] as the court may allow. C.L. 1897, § 2685 (264), added by Laws 1907, ch. 107, § 1 (264); Code 1915, § 4374; C.S. 1929, § 105-1815; 1941 Comp., § 25-816; 1953 Comp., § 22-8-16.

NMSA 1978, § 42-4-17 [Remedy of person deprived of possession of improvements; time; value; lien.]

42-4-17. [Remedy of person deprived of possession of improvements; time; value; lien.] When any person or his assignors may have heretofore made, or may hereafter make any valuable improvements on any lands, and he or his assignors have been or may hereafter be deprived of the possession of said improvements in any manner whatever, he shall have the right, either in an action of ejectment which may have been brought against him for the possession, or by an appropriate action at any time thereafter within ten years, to have the value of his said improvements assessed in his favor, as of the date he was so deprived of the possession thereof, and the said value so assessed shall be a lien upon the said land and improvements, and all other lands of the person who so deprived him of the possession thereof situate in the same county, until paid; but no improvements shall be assessed which may or shall have been made after the service of summons in an action of ejectment on him in favor of the person against whom he seeks to have said value assessed for said improvements. Laws 1878, ch. 6, § 3; C.L. 1884, § 2581; C.L. 1897, § 3755; Code 1915, § 4375; C.S. 1929, § 105-1816; 1941 Comp., § 25-817; 1953 Comp., § 22-8-17.

NMSA 1978, § 42-4-18 [Possession of improvements taken; liability for value; abandonment excepted; specific and general lien.]

42-4-18. [Possession of improvements taken; liability for value; abandonment excepted; specific and general lien.] When any person claiming possession may have made, or may hereafter make, any valuable improvements on any land in this state, and any other person shall have taken, or may hereafter, in any manner, take from him or his assignor or assigns the possession of such improvements, or any part thereof, the person so taking possession shall be liable for the full value of such improvements so taken possession of, to the person who made the same, or to whom they may have been assigned: provided, the said possession and improvements shall not have been abandoned by the said person making the same, or those holding or claiming through him, for a greater period than six months immediately prior to so taking the possession thereof, and the value of said improvements shall be a lien upon the said improvements and the land in which they are situate until paid; as also upon all other real estate of the person so taking possession thereof situate in the same county. Laws 1878, ch. 6, § 4; C.L. 1884, § 2582; C.L. 1897, § 3756; Code 1915, § 4376; C.S. 1929, § 105-1817; 1941 Comp., § 25-818; 1953 Comp., § 22-8-18.

NMSA 1978, § 42-4-19 [Sale of improvements.]

42-4-19. [Sale of improvements.] The possession of land and improvements, provided for in this article, may be sold, transferred and conveyed in the same manner as other real estate in this state; and the person so purchasing and receiving conveyance thereof shall have the same right and title and be subject to the same restrictions as the person who may take possession or make the improvements provided for in this article. Laws 1878, ch. 6, § 5; C.L. 1884, § 2583; C.L. 1897, § 3757; Code 1915, § 4377; C.S. 1929, § 105-1818; 1941 Comp., § 25-819; 1953 Comp., § 22-8-19.

NMSA 1978, § 42-4-20 [Reversionary clause in deed; improvements; liens; waiver of claim.]

42-4-20. [Reversionary clause in deed; improvements; liens; waiver of claim.] That any and all liens, encumbrances or money claims for improvements on lands, authorized or permitted in ejectment actions or equitable proceedings for the recovery of lands under reversionary provisions contained in deeds to reality [realty], whether heretofore or hereafter claimed, may be waived by instrument in writing executed either before or after the passage and approval of this act [this section]; provided, further, that in no event shall any such liens, encumbrances or claims be asserted by the grantee, his heirs or assigns, as against his grantor, his heirs or assigns, who becomes entitled to possession of such lands under the terms of the reversionary clauses contained in any such deed to realty. Laws 1937, ch. 31, § 1; 1941 Comp., § 25-820; 1953 Comp., § 22-8-20.

NMSA 1978, § 42-4-21 [Mine or mining claim; contested application for patent; ejectment maintainable regardless of possession.]

42-4-21. [Mine or mining claim; contested application for patent; ejectment maintainable regardless of possession.] That when an application is made for a patent to a mine or mining claim under the laws of the United States by any person, persons, company or corporation claiming to own or have an interest therein, and such application is contested by any other person, persons, company or corporation in the land office of the United States, such person, persons, company or corporation so contesting, may bring a suit of ejectment in the district court of the county in which the mine or mining claim is situated, for the recovery of the same, whether in or out of possession of such mine or claim, and the question as to who was in the possession of the mine or claim at the time when the application was made for patent, or when the suit was begun, shall not be considered by the court, except as it may be necessary in determining the interests of the respective claimants, and their right to the possession of said mine or claim. Laws 1887, ch. 54, § 1; C.L. 1897, § 2290; Code 1915, § 3464; C.S. 1929, § 88-202; 1941 Comp., § 25-821; 1953 Comp., § 22-8-21.

NMSA 1978, § 42-4-22 [Special verdict or findings; entry on mining land pending suit.]

42-4-22. [Special verdict or findings; entry on mining land pending suit.] The court, in an action for the recovery of a mine or mining claim where a patent is applied for, and the contest is pending in the land office of the United States, may, upon motion of either party to the suit, require the jury to return a special verdict, if tried by a jury; if not, then by a judge trying the same shall make a special finding as to the particular interest each party owns in the mine or claim in dispute, under and by virtue of the mining laws of the United States, which special verdict or finding shall be entered into the judgment and upon the record of the court trying the same: provided, however, there shall be no special verdict by the court or jury, except where the evidence shows both parties to the suit to have a bona fide interest in the mine or claim sued for: and, provided further, that no third person who may have entered upon such mining claim or any part thereof, for the purpose of locating or claiming the same before or during such litigation in the district court growing out of any contest in any United States land office in this state, shall acquire any interest either at law or in equity in the claim or any part thereof in dispute, and shall be deemed and declared a trespasser or trespassers, unless he or they have been, or may, during the pendency of such litigation in the district court resulting from such contest in the United States land office, by a proper application to the court, be made party or parties to such suit adverse to either of such litigants, or both, or shall have taken such legal steps to assert his or their claim in a court of competent jurisdiction within six months after the commencement of such contest in the United States land office. Laws 1887, ch. 54, § 2; 1889, ch. 111, § 1; C.L. 1897, § 2291; Code 1915, § 3465; C.S. 1929, § 88-203; 1941 Comp., § 25-822; 1953 Comp., § 22-8-22.

NMSA 1978, § 42-4-23 [Working mine pending suit; waste.]

42-4-23. [Working mine pending suit; waste.] That nothing in the two preceding sections [42-4-21, 42-4-22 NMSA 1978] shall prohibit the working and development of a mine or mining claim by either party in interest who may be in possession of the mine or claim during the pendency of the suit, nor prohibit anyone from bringing an action for damages, or a suit in equity to prevent waste. Laws 1887, ch. 54, § 3; C.L. 1897, § 2292; Code 1915, § 3466; C.S. 1929, § 88-204; 1941 Comp., § 25-823; 1953 Comp., § 22-8-23.

NMSA 1978, § 42-4-24 [Assessment work pending suit; retention of ore.]

42-4-24. [Assessment work pending suit; retention of ore.] Hereafter in any suit or action pending in any of the courts of this state, involving the right to the possession or title of any lode or placer mining claim located under the mining laws, and upon which it is necessary to do the annual assessment work to prevent the same from becoming forfeited and subject to relocation, the party or parties to any such suit out of possession, upon petition to the court in which suit or action is pending, showing that such annual assessment work has not been done on or before the first day of November in the year during which such work is required to be done, shall be entitled to an order as of course in such suit or action, permitting such party or parties to enter in and upon such mine or mining claims, with their agents and laborers, and to do and perform such annual assessment work to prevent the said mining claim or claims from becoming subject to relocation: provided, that in the doing of such work, no ore shall be removed from the boundaries of such mining claim. Laws 1905, ch. 83, § 1; Code 1915, § 3455; C.S. 1929, § 88-111; 1941 Comp., § 25-824; 1953 Comp., § 22-8-24.

NMSA 1978, § 42-4-25 [Effect of performing assessment work pending suit.]

42-4-25. [Effect of performing assessment work pending suit.] Upon the doing of any assessment work, as provided in Section 42-4-24 NMSA 1978, the said mining claim or claims shall not be subject to relocation for failure to do the annual assessment work, as against any of the parties to such suit or action. Laws 1905, ch. 83, § 2; Code 1915, § 3456; C.S. 1929, § 88-112; 1941 Comp., § 25-825; 1953 Comp., § 22-8-25.

NMSA 1978, § 42-4-26 [Measurements and surveys of mine pending suit; authorization; expenses.]

42-4-26. [Measurements and surveys of mine pending suit; authorization; expenses.] In all actions at law, or suits in equity, in any of the district courts of this state, wherein the title or right of possession to any mining claim, or ores and minerals is in dispute, any party to such action or suit shall have the right to go upon or enter the workings of said mining claim for the purpose of measuring or surveying the same, either upon the surface or in the workings thereof, peaceably, and without molestation; the costs and expenses of such measurement or survey to be paid by the party for whose use and benefit the same was done. Laws 1887, ch. 55, § 1; C.L. 1897, § 2293; Code 1915, § 3467; C.S. 1929, § 88-205; 1941 Comp., § 25-826; 1953 Comp., § 22-8-26.

NMSA 1978, § 42-4-27 [Who may enter for measurements and surveys.]

42-4-27. [Who may enter for measurements and surveys.] The right to go upon and enter said mining claim shall be extended to the party applying therefor, as well as a surveyor and two chain carriers. Laws 1887, ch. 55, § 2; C.L. 1897, § 2294; Code 1915, § 3468; C.S. 1929, § 88-206; 1941 Comp., § 25-827; 1953 Comp., § 22-8-27.

NMSA 1978, § 42-4-28 [Notice of desire to enter mine.]

42-4-28. [Notice of desire to enter mine.] Before any person may enter upon or go into the workings of such mine without the consent of the person or corporation in possession, he shall give not less than five days' notice in writing to such person in possession, or to his agent or manager, and if the possession is held by a corporation, said notice shall be served upon the president, agent or manager of such corporation, or upon the foreman in charge of the mine, that at a certain date, specified in said notice, he desires to enter upon or go into the workings of said mine, as the case may be, for the purpose of surveying and taking a measurement of the same, in order that he may be able to present the facts on the trial. Laws 1887, ch. 55, § 3; C.L. 1897, § 2295; Code 1915, § 3469; C.S. 1929, § 88-207; 1941 Comp., § 25-828; 1953 Comp., § 22-8-28.

NMSA 1978, § 42-4-29 [Refusing entry; court may exclude evidence, render judgment or assist entry; costs.]

42-4-29. [Refusing entry; court may exclude evidence, render judgment or assist entry; costs.] If such person or corporation shall not permit any party in interest in such suit or action, to go upon or enter said mine, as contemplated in the preceding sections [42-4-26, 42-4-27, 42-4-28 NMSA 1978], after having been notified in the manner designated, the court may, upon proper showing, verified by affidavit, or otherwise, exclude all evidence offered on the trial by the party so refusing, or render judgment or decree in favor of the party giving such notice: provided, that the court may, in its discretion, make an order directing the sheriff to go upon the ground with the party applying for the measurement and survey of such mine, and place the person so applying in possession, for the purpose of measuring and surveying the same, in which case the court may direct the payment of costs as may be just and proper. Laws 1887, ch. 55, § 4; C.L. 1897, § 2296; Code 1915, § 3470; C.S. 1929, § 88-208; 1941 Comp., § 25-829; 1953 Comp., § 22-8-29.

NMSA 1978, § 42-4-30 [Evidence of measures and surveys.]

42-4-30. [Evidence of measures and surveys.] The competency, relevancy and effect of such survey and measurement, as evidence, shall be governed by the ordinary rules of evidence in civil cases. Laws 1887, ch. 55, § 5; C.L. 1897, § 2297; Code 1915, § 3471; C.S. 1929, § 88-209; 1941 Comp., § 25-830; 1953 Comp., § 22-8-30.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18542/index.doFetched: 10/20/2026