You have heard the saying “possession is nine tenths of the law” ? Well …not when the property is land and that land is in New Mexico. I was living in Placitas, New Mexico north of Albuquerque in the 80s. Placitas had been the home of some famous hippie communes in the 60s, most notably “Drop City” where the residents built dome homes from cartops. By the 80s, the communes were pretty much gone, but there was Tawapa. A few miles outside of Placitas proper, Tawapa consisted of about twenty acres of beautiful high desert terrain with a creek running through it. The people who lived there had no legal title to the property, but had built earthen hobbit type houses, some of them underground or partially underground. There was Jesus (pronounced as Jesus is pronounced in English) Morrison, who was half Gypsy and half Jewish and actually looked very much like Jesus Christ. Jesus had recently gotten out of prison where he had been serving time for manslaughter. He had lived in Tawapa for most of the past twenty years. There was also Russ, his wife Jeannie and their two kids who went to Placitas elementary school. There was one-armed Mike who made moonshine from potatoes and various other sundry characters living there, some just for a while and some for years. There were two residents who had dug out of a hillside above the creek something like large rabbit warrens and lived in them. Tawapa was a place that people who did not take well to the 9 to 5 workaday “straight” world could find some refuge.
Then one day four lawyers showed up saying they owned Tawapa. They filed a lawsuit to get the “squatters” off and “quiet title” to the property, meaning have a court declare them as the rightful owners. The Tawapans asked me to represent them and so I did. They did a little landscaping and adobe work for me in trade, but it was one of those cases that you take because you want to, not to make a profit from.
Does twenty years of possession give the possessors rights to land ? The legal answer is called the law of “adverse possession” which differs somewhat from state to state. In some states, if you openly and notoriously possess land for seven years you can acquire legal rights to it. In New Mexico, you must live on the land for ten years, but you must also have paid taxes on it and have “color of title”, that is, some document which purports to convey the property to you, even if it turns out to be invalid. The Tawapans had not paid taxes nor did they have any good “color of title”. They tried to dig up some writing someone had gotten from a deceased old-timer named Shorty, who had actually owned the land at one time, which gave them permission to live there. The lawyers had gotten their supposed rights to the property because Shorty had hired one of their firm to do a quiet title suit and allegedly never paid them.
This seemed to me the height of inequity. Four well-off lawyer getting rights to the property that was probably worth more than $150,000 by doing a quiet title suit for Shorty who couldn´t afford their fees, fees which shouldn´t have been more than five thousand or so. Meanwhile, my clients, a few who had lived there for ten to twenty years, had truly loved the land, grown crops on it, built homes on it, raised kids on it and kept it in pristine condition, appeared to have no rights to it at all.
I remembered a class in law school that explored the underlying principles of ownership, what exactly it means to own property. I remembered the idea of one legal thinker that one gains an ownership right in something when he invests a certain amount of his personhood into that property. Under that theory, the Tawapans had a lot more right to the property than the lawyers.
I got busy in the law library. In those days you actually went to a library with real books with paper pages to research the law. I looked at numerous New Mexico cases on the subject going back to when New Mexico was just a territory not a state. After days of research, I found a very old case which said, some later cases, that a person could assert the defense of “laches” against a person trying to quiet title to land you were also claiming. “Laches” is a potential defense to certain kinds of lawsuits where a defendant claims the person suing has slept on his rights, i.e. waited so long that it is inequitable to provide relief.
One of the four lawyers representing himself and his three partners made an unsuccessful attempt to get a quick pretrial decision in their favor. Then they hired another lawyer who made a motion for summary judgment, that is, he asked for a judgment without a trial based on an undisputed set of facts and the applicable law. The hearing on that motion was a major showdown. The courtroom was packed with all the Tawapa residents and their friends and supporters, maybe fifty colorful, ragtag hippies and some children. I had honed my argument, sharpening it like a knife. I actually practiced it in front of a mirror, something I never had done before. I knew that I was fighting an uphill battle and that my clients´ homes were at stake.
It was a tense moment and the courtroom was hushed when I rose and made my argument to the judge. There were several legal principles and various facts that had to be interwoven and explained just right if we were going to prevail. To my surprise and delight, it all came pouring out of me with a clarity and eloquence that I had never before or have since experienced in court. After I sat down and the judge was about to make his decision, you could hear a pin drop. He said simply, “You can go ahead with your laches defense”, meaning we would get a trial and could win if we had the facts for laches. The whole courtroom erupted with shouts of joy and people were literally dancing around. The judge attempted unsuccessfully to retain order. “You are one silvery-tounged bastard,” said one of my clients. It was a great moment, but sadly it was short-lived. I won´t tell you the rest of the story, but the lawyers ended up with the property. When it comes to land in New Mexico, possession is only 1/10 of the lawcontrary to
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