(specially concurring)..
I believe that some further statement of the facts and pertinent statutes is necessary to an understanding of the basic issue, as I see it, i. e., did the trial court have the authority to sua sponte change plaintiffs’ complaint from one filed pursuant to Section 75-31-18, supra, to one arising under Section 22-9-22, N.M.S.A.1953 (Vol. 5, Supp.1975).
Section 75-31-18, supra, provides in part:
“Remedy for injury by a district. — In case any person or public corporation, within or without any district organized under this act, may be injuriously affected with respect to property rights in any manner whatsoever by any act performed by an official or agent of such district, or by the execution, maintenance or operation of the official plan, and in case no other method of relief is offered under this act, the remedy shall be as follows:
(1) The person or public corporation seeking relief shall petition the court before which said district was organized for an appraisal of damages sufficient to compensate for such injuries.”
Defendant did not counterclaim; however, in its answer in paragraph 1.10 of the first defense, it stated the following, among other things:
“Defendants [sic] further allege that the Court, pursuant to Section 75-31-18, N.M.S.A.1953 Comp., should direct the ‘board of appraisers’ in accordance to Section 75-29-2, N.M.S.A.1953 Comp., to determine the damages, if any, accruing to the respective Plaintiffs.”
Sections 75-29-1 through 75-29-15, N. M.S.A.1953 (Repl.Vol. 11, pt. 2) set forth the procedures for the condemnation land or easements by Conservancy Districts. Sections 75-31-1 through 75-31-24 N.M.S. A.1953 (Repl.Vol. 11, pt. 2) set forth “general provisions” governing Conservancy Districts.
After the filing of the complaint, the trial court entered an order to show cause directed to defendant; why appraisers “should not be ordered to proceed with assessment of the plaintiffs’ damages under Section 75-31-18, N.M.S.A.1953 Comp.” Subsequently, appraisers were appointed and they submitted their report which was approved by the trial court on October 2, 1974. On October 22, 1974, the defendant filed a notice of appeal from their appraisal which recited, among other things, that:
“ . ■ ■ hereby gives notice that pursuant to statute, it exercises its right to appeal from the order of the court approving the report of appraisers awarding damages.
The defendant intends to exercise the option provided in the second paragraph of Section 75-29-2(4), N.M.S.A.1953, granting the Board of Directors the option to pay the entire appraised value of the property and acquire full title in fee simple or pay only the costs of the easements necessary, upon the final judicial determination of the appraisals.”
Plaintiffs also appealed from the order approving the report of the appraisers.
On January 16, 1975, plaintiffs filed a motion praying that the defendant “be denied the acquiring of any of Plaintiffs’ properties in fee simple” on the ground that the defendant “has not complied with the statutes and laws of New Mexico for the acquisitions of any of Plaintiffs’ properties in fee simple in these proceedings.” Defendant on February 10, 1975, filed a document entitled “Statement” which recited, among other things, the following:
“ . . . defendant . . . states that upon final judicial determination concerning appraisal of properties involved in this litigation, it will exercise the option between paying damages and securing fee simple title to the following tracts of land, and gives its estimated value of each tract: . . . . ”
This document also set forth the public purposes, as defendant saw them, for which plaintiffs’ lands were needed.
In a supplemental pre-trial order the trial court denied plaintiffs’ motion to strike “complete takings.” The order went on to recite the defendant had given notice to the court pursuant to Section 75-29-2, supra, that it would exercise its rights to acquire title in fee simple. Accordingly, just compensation for the taking in fee simple would be determined at the trial. That the taking in fee simple for the purposes of this action would be considered as if the action had been brought by the defendant under Section 22-9-22, supra. The provisions of this section are as follows :
“Property taken or damaged without compensation or condemnation proceedings• — Right of action by owner — Lines excepted. — Any person, firm or corporation authorized by the Constitution or laws of this state to exercise the right of eminent domain who has heretofore taken or damaged or who may hereafter take or damage any private property for public use without making just compensation therefor or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation thereof, shall be liable to the owner of such property, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time such property is or was taken or damaged, with legal interest, to the date such just compensation shall be made, in an action to be brought under and governed by the Code of Civil Procedure of this state; Provided that this act [22-9-22, 22-9-23] shall not apply to or affect any telephone line, telegraph line, electric light or power transmission line.”
Accordingly the case was submitted to the jury on this basis.
Before discussing the basic issue, there is a preliminary matter to be considered. Plaintiffs’ first point of error is that “procedural due process was violated because the case was postured from the beginning for damages under 75-31-18 and there was no notice of a whole taking of plaintiffs’ property, one of the law’s most drastic powers, until just before trial.” Error there was, but it did not constitute a denial of due process of law. As was pointed out by Judge L. Hand in Schectman v. Foster, 172 F.2d 339 (2d Cir. 1949): “[D]ue process of law does not mean infallible process of law.” A more complete statement of the same rule is found in Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942):
“The constitutional requirement of due process of law is not a guaranty that the courts shall not commit error in the trial of causes or a guaranty against erroneous and unjust decisions by courts which have jurisdiction of the parties and the subject matter. If errors are committed, or erroneous and unjust decisions are rendered, they may be corrected in the manner provided by law for the correction of such errors. A mere error in entering a judgment or decree does not deprive the losing party of the benefit of due process of law.”
As I stated above the defendant did not counterclaim and the quoted parts of its answer and the document entitled “Statement” do not, in my opinion, constitute a counterclaim. Section 21-1-1(8) (a) (2) provides:
“A pleading which sets forth a claim for relief whether an original claim, counterclaim, crossclaim, or third party claim shall contain . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief,
Granted that Rule 8(f), N.M.R.Civ.P. requires that “all pleadings shall be so construed as to do substantial justice.” But a court under the guise of liberal construction of a pleading cannot supply matters which it does not contain. The rules of pleading cannot be totally disregarded if there is to be an orderly disposition of cases. See Hambaugh v. Peoples, 75 N.M. 144, 401 P.2d 777 (1965). This is particularly true when a party claims a statutory right, his pleading must contain all of the allegations necessary to bring him within the purview of the statute. The allegations contained in defendant’s “answer” and. “statement”, in my opinion, fall far short of stating a cause of action pursuant to § 75-29-1 through § 75-29-15, supra.
Assuming, arguendo, that defendant had stated a good cause of action under these sections, would that have given the trial court authority to submit this matter to the jury on the basis of § 22-9-22, supra? The answer is no. A party, generally, cannot be given affirmative relief without having submitted a pleading praying for it. Defendant requested nothing pursuant to § 22-9-22 and even if it had it would have been to no avail since this section gives the cause of action to the injured party.
This brings us then to the basic question of whether the trial court had the authority sud sponte to, in effect, change plaintiffs’ cause of action. Again the answer is no. Under our adversary system of jurisprudence the course of the law suit is controlled by the litigants, except in a few limited circumstances. That is, the initiative rests with the litigants. The role of the trial court is to consider only those questions raised by the parties.