(specially concurring).
I specially concur.
Section 47-6-27(A) reads:
Any person who sells or leases land that is a part of a subdivision before the plat has been approved and recorded . is guilty of a misdemeanor
To find defendant guilty, the State must prove that defendant (1) owned a piece of land; (2) prepared a plat that divided the land into a subdivision; and (3) sold land that was a part of the subdivision platted before the plat had been approved and recorded. If defendant had no duty to prepare a plat, defendant was not guilty.
Section 47-6-3 reads:
Any person desiring to subdivide land shall have a plat of the proposed subdivision certified by a registered, licensed surveyor of New Mexico. . . . [Emphasis added.]
A “proposed subdivision” means that a subdivision was not in existence at the time the plat had to be certified. Roose v. Park-lane Homes Corporation, 59 Mich.App. 542, 229 N.W.2d 838 (1975).
The evidence is undisputed that defendant had no intention or desire to subdivide the land nor did it in fact subdivide the land. It employed a realtor to dispose of the entire property and if not, sell portions of it so that defendant could get rid of it and get its money back. Defendant had no duty to procure a plat of a proposed subdivision or to comply with the other statutory provisions that relate to the approval and recordation of the plat.
I cannot read § 47-6-3 to mean:
Any person who sells portions of his land desires to subdivide and shall then have a plat of the proposed subdivision certified, etc.
The State procured from defendant a field survey map, not plat, of defendant’s property that showed a total acreage of 3400.05 acres. Portions of this map showed the boundaries of land sold, but the map did not show that the units sold were designated as parcels, lots or sites.
. Subdividing is the taking of an entire tract of land, and dividing it into smaller units designated as lots, sites, or parcels, — the area or tract so divided into smaller units being known as a subdivision and evidenced by a drawing known as a plat. [Emphasis added.] McKain v. Toledo City Plan Commission, 26 Ohio App.2d 171, 270 N.E.2d 370, 373 (1971).
This passage is quoted by defendant. Nevertheless, the State ignores its meaning and application to the instant case.
The vicarious sale of portions of land not designated on a plat is not the creation of a subdivision of land. Nevertheless, in a host of findings, the trial court found that defendant subdivided the land and sold 40 separate parcels, but no plat for the subdivision was ever submitted for approval. The court did not find that defendant “desired” to subdivide the land. There was no subdivision of the land.
The court also found that defendant never sought approval of the subdivision. No provision of the Act covers approval of a subdivision. Section 47-6-8(A) reads:
It is unlawful to sell . . . land from within a subdivision unless the subdivision plat is approved by the board of county commissioners . ... [Emphasis added.]
The fact that defendant did not have a plat prepared is conclusive that it had no desire to subdivide. Absent this desire, defendant had no duty to obtain a plat of a proposed subdivision.
The State has not explained the meaning of “any person desiring to subdivide” nor that of a “proposed subdivision.” It takes the position that the vicarious sale of portions of land creates a “subdivision” under its definition.
Section 47-6-2(1) says:
“subdivision” means an area of land within New Mexico, the surface of which has been divided by a subdivider into five or more parcels for the purpose of sale or lease. . . . [Emphasis added.]
Under this definition, the State had to prove that defendant “divided” his land for the “purpose of sale.” It is obvious to me that before a subdivision is created, defendant must divide his land into parcels for the purpose of sale. These parcels cannot be offered for sale unless they are designated in some manner. The above section does not say that a “subdivision” means an area of land, five or more parcels of which have been sold.
The State takes the position that absent a division of the land, defendant loses the right to alienation of all or portions of the land. It was not the purpose or intention of the Act to restrict an owner of 3400 acres to the creation of a subdivision if sales occurred of five or more parcels. Neither was it the purpose or intention of the legislature to deny the owner of 3400 acres of land the right of alienation of all or portions of the property free of the'Act. Constitutional questions would arise — questions that are not necessary to decide in this case. Reason and logic defeat the State’s position. It runs contra to the whole purpose of the Act and creates disharmony. We must distinguish between an owner of land who wants to dispose of his property and one who desires to subdivide.
The State declares the Act is designed to protect individual members of the buying public concerning water, title, utilities and other essential facts relating to the use of the land. That is true. But this protection comes after the creation of a subdivision, not before. This kind of protection disappears in the absence of a subdivision.
A host of other interesting questions have been raised in extensive briefs filed by defendant and the State. The main issue having been determined in favor of defendant, further discussion is unnecessary.