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.

History: 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.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — The compilers of the 1915 Code deleted the word "Hereafter" from the beginning of the section and deleted the phrase "which are now pending or which may hereafter be brought" following "ejectment."

Legislative intent. — The legislature intended that the true owner of a tract of land should not profit or be unjustly enriched by improvements made thereon by one who in good faith had been occupying and improving the land. Village of Cloudcroft v. Pittman, 1957-NMSC-078, 63 N.M. 168, 315 P.2d 517.

Statutes on improvements procedural in form, but restitutory in effect. — This section to Section 42-4-18 NMSA 1978 while procedural in form, is substantive and restitutory in nature and effect. Madrid v. Spears, 250 F.2d 51 (10th Cir. 1957).

Section inapplicable where appellee not profiting. — Where appellants had no color or title, and appellee could in no sense be considered to be profiting or enjoying unjust enrichment, this section was inapplicable. Heaton v. Miller, 1964-NMSC-080, 74 N.M. 148, 391 P.2d 653.

Effect of cost of improvements exceeding enhanced value. — In most cases, the cost of the improvements exceeds the enhanced value of the land, and the court is concerned lest the improver recoup more than the owner is unjustly enriched. But, cost is usually a factor in determining value, and in some cases is a limitation upon the improver's recovery, as where enhancement exceeds cost. Madrid v. Spears, 250 F.2d 51 (10th Cir. 1957).

Test of recovery. — The test of recovery is not how much the owner is enriched by the improvements, but how much he is unjustly enriched. Madrid v. Spears, 250 F.2d 51 (10th Cir. 1957).

Where enhancement exceeds cost, unjust enrichment equals cost. Madrid v. Spears, 250 F.2d 51 (10th Cir. 1957).

Squatters unable to show improvements. — Under Laws 1858 (Feb. 3, 1858); Comp. Laws 1865, ch. 33, § 13; 2270, 1884 C.L.; 3175, 1897 C.L., originally passed in Spanish, a defendant pleading not guilty and filing a notice of claim for improvements could not prove such improvements where he was a squatter and had no claim of any kind growing out of a grant from any of the three governments named, or by means of any conveyances from them, or from any authority traceable to them. Maxwell Land Grant Co. v. Santistevan, 1893-NMSC-001, 7 N.M. 1, 32 P. 44 (decided under former law).

Raising issue of improvements. — In order to be entitled to raise the issue of improvements in an action in ejectment, defendant must have entered under some claim of title. Sandoval v. Perez, 1920-NMSC-058, 26 N.M. 280, 191 P. 467.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Ejectment §§ 54, 55, 56, 57.

Measure and items of recovery for improvements mistakenly placed or made on land of another, 24 A.L.R.2d 11.

Compensation, upon eviction, for improvements made or placed on premises of another by mistake, 57 A.L.R.2d 263.

Measure and amount of damages recoverable under supersedeas bond in action involving recovery or possession of real estate, 9 A.L.R.3d 330.

28A C.J.S. Ejectment §§ 16 et seq.