Otero v. Pacheco

612 P.2d 1335 (N.M.1980)

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Nature of the Case

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Facts

D acquired title to two lots in 1944. D's home was constructed partly on lot 5 and partly on lot 4, and originally had a septic tank on lot 4. D was forced to connect to a sanitary sewer line. D installed a sewer line running from their home across lot 4 to the sewer line. In 1951, D built another house on the remaining part of lot 4 and connected it to the same sewer line. D sold this house to a Mrs. McAfoos. The deed to Mrs. McAfoos did not contain a reservation of an easement. D testified that he told Mrs. McAfoos of the sewer line's existence and that it provided service to his home. P got the title in 1965. P sued D for fraud and unjust enrichment. D sued alleging they had an existing easement across P's property. The first owner after Mrs. McAfoos testified that he was never told, and did not know, that the sewer line serviced D's home during the approximately eight years that he owned that property. P testified that he did not learn until 1974 that the sewer line which serviced his house also serviced that of D. The court found for D concluding that D had an easement by implied reservation. P appealed.