If the plaintiff prevail, he shall recover for damages the value of the rents and profits of such premises to the time of the verdict or the expiration of the plaintiff's title, under these limitations:

A. if the defendant had knowledge of the plaintiff's claim or title, then for the whole time he had such knowledge;

B. if he had no such knowledge, then from the commencement of the action.

History: C.L. 1897, § 2685 (257), added by Laws 1907, ch. 107, § 1 (257); Code 1915, § 4367; C.S. 1929, § 105-1808; 1941 Comp., § 25-809; 1953 Comp., § 22-8-9.

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

Accounting by tenant in common for improvements. — A tenant in common will not be allowed to recover against his cotenant for improvements erected on the common property by his predecessor in title, without accounting to his cotenant for the rents and profits received by such predecessor in title. Neher v. Armijo, 1901-NMSC-015, 11 N.M. 67, 66 P. 517, overruled on other grounds by De Bergere v. Chaves, 1908-NMSC-006, 14 N.M. 352, 93 P. 762.

Effect of judgment of recovery during pendency of action. — A judgment of recovery in ejectment for possession and rents and profits, during the pendency of the ejectment action, is not a bar to a further suit for rents and profits covering a period anterior to that covered by the former recovery. Neher v. Armijo, 1901-NMSC-015, 11 N.M. 67, 66 P. 517, overruled on other grounds by De Bergere v. Chaves, 1908-NMSC-006, 14 N.M. 352, 93 P. 762.

Liability for constructive ouster of divorced spouse. — If one of the parties in a divorce case remains in possession of the community residence between the date of the divorce and the date of the final judgment dividing the community assets, then there may be a form of constructive ouster, exclusion or an equivalent act which is created as to the right of common enjoyment by the divorced spouse not in possession. This exclusion may render the divorced spouse in possession of the community residence liable to the divorced spouse not in possession for the use and occupation of the residence between the date of the divorce and the date of the final judgment. Hertz v. Hertz, 1983-NMSC-004, 99 N.M. 320, 657 P.2d 1169.

Purpose behind damages in ejectment action. — In ejectment action, the purpose behind damages is compensation of the rightful possessor. Martin v. Comcast Cablevision Corp. of Cal., 2014-NMCA-114, cert. denied, 2014-NMCERT-010.

Rental value is determined on an objective measure. — Where cable company and predecessor company placed cable lines on owner's property without consent, district court did not err in determining that damages should be determined on an objective measure of rental value rather than on the owner's subjective assessment of rental value. Martin v. Comcast Cablevision Corp. of Cal., 2014-NMCA-114, cert. denied, 2014-NMCERT-010.

Award for unjust enrichment not justified if duplicative of compensatory damages. — Where cable company and predecessor company placed cable lines on owner's property without consent, an award of rent for unjust enrichment was not justified because it was duplicative of the compensatory damage award of the rental value of the land. Martin v. Comcast Cablevision Corp. of Cal., 2014-NMCA-114, cert. denied, 2014-NMCERT-010.

Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 54 Am. Jur. 2d Equity § 5.

28A C.J.S. Ejectment § 153.