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Baca Land & Cattle Co. v. New Mexico Timber, Inc.

ELR Citation: 1 ELR 20179
Nos. Nos. 16-70 et al., 440 F.2d 867/2 ERC 1476/(10th Cir., 04/01/1971)

This is an appeal from the district court's declaratory judgment that defendants own timber by reservations in deed, and have the right to clearcut the timber, although plaintiff fee-owner's ability to graze cattle on his land will be severely hampered thereby. The circuit court affirms that the timber belongs to defendants and that they may cut it, but reasserts that defendants may not unreasonably impair the rights of the landowner as a result of the cutting. The reasonableness of defendant's use of clearcutting is governed by the common and accepted method of harvesting spruce in 1918 (sale contract) and 1926 (deed). Since clearcutting was not then employed, the case is remanded to the district court so that it may clarify the specific duties that defendants must perform if they are to use clearcutting and still insure plaintiff's reasonable use of the land for grazing. The district court's measure of the damages which defendants must pay if they do not themselves restore areas earlier cut is as certain and moderate as the law of New Mexico requires.

Counsel for Plaintiffs-Appellants:
Harry L. Bigbee
Bigbee and Byrd
Bryan G. Johnson
J. J. Monroe
Iden & Johnson
Simms Building
Albuquerque, NM 87101
(505) 247-1587

Counsel for Defendants-Appellees:
Irwin S. Moise
Lewis R. Sutin
Simms Building
Albuquerque, NM 87101
(505) 842-8200

Before Lewis, Chief Judge; Johnsen* and Halloway, Circuit Judges.