I agree with the District Court that neither the State of New Mexico nor the Commissioner of Public Lands is an indispensable party to this action.
The relation of indispensable party to a suit must be such that no decree can be entered in the case which will do justice to the parties before the court without injuriously affecting the rights of absent parties. United Shoe Machinery Corp. v. United States,258 U.S. 451, 42 S. Ct. 363, 66 L. Ed. 708. See also Mann v. Whitely et al., 36 N.M. 1, 6 P.2d 468.
I am unable to see how the rights of either the state or its representative, the Commissioner of Public Lands, are directly and injuriously affected by the decree in this case. No relief was sought or decreed against the state. It is not bound by the decree and has a free hand as ever to assert any violation of the terms of the lease.
It was recently decided by the Supreme Court of Texas in Petroleum Producers Co. v. Reed, 135 Tex. 386, 144 S.W.2d 540 that:
"In trespass to try title to oil and gas leasehold estate, claimed by defendants under lease executed by the state, the state was not `indispensable party.'"
The court said:
"As we have seen, the said defendants claim the oil and gas leasehold estate in a portion of said tract of land, under an oil and gas lease executed by the State. In other words, according to the claim of said defendants, whatever rights which accrued to them, under said lease, belong to them and not to the State. It is thus seen that the possession which the plaintiffs challenge is in no sense and in no respect the possession of the State, but is that of the defendants themselves. The very crux of the question which the plaintiffs propose, in their petition, to litigate is whether, as against the defendants in the suit, the plaintiffs have the right to the possession of the oil and gas leasehold estate for which they sue. Undoubtedly, the plaintiffs are privileged *Page 306 to litigate this question with the defendants in the absence of the State. Short v. W.T. Carter Bro., 133 Tex. 202, 126 S.W.2d 953."
So, I say the crux of the question which the plaintiff, Burguete, sought to litigate in the case at bar is whether as against the defendant, Del Curto, the plaintiff had the right to the possession in common with Del Curto of the land in question.
The decree merely declares that the plaintiff have access to the well for his livestock, and grazing privileges on a portion of the leasehold; in other words a limited joint possessory right to a portion of the leasehold estate. Sometimes these leases cover large areas of land and it seems unreasonable to suppose that the lessee and a supposed trespasser may not litigate the right of possession to a portion of land described in the lease without the presence of the state or its representative, the Commissioner of Public Lands. It is not necessary to cite definitions of what is an indispensable party since they abound in the texts. Cases cited by the majority are not controlling in the case at bar.
We recently held in Arnold v. State, 48 N.M. 596, 154 P.2d 257, that since a sovereign state cannot be sued in its own courts without its consent, a suit against the State of New Mexico to have a statute declared unconstitutional was required to be dismissed, where state did not consent to be sued.
The State is in the happy position of being able to remain aloof from lawsuits except of its own choosing and of determining after the event of such actions whether it deems itself injuriously affected by decisions or not, and if it deems it is so, it is free to assert its rights or disclaim them as it may choose. That is the meaning of Arnold v. State.
In 20 Stan. Enc. of Procedure, Parties, p. 889, it is said:
"Where the state should be a party, but by law cannot be sued, it need not be joined."
With the decision in Arnold v. State, supra, and the decision of the majority in the case at bar, it seems that a person claiming an interest in leasehold estate under lease executed by the state is without remedy, a situation which courts strive to avoid. See Locke v. Trustees of New Mexico Reform School, 23 N.M. 487, 169 P. 304.
The findings of fact made by the District Court are sustained by substantial evidence and the legal conclusions based thereon are correct and equitable, and the decree should be affirmed.
I dissent.