Lobato v. Taylor

Denton; Campisi; Hugh Robert Paul R. Kafka; Resteli; Eugene Avis M. J. Bernal; LOBATO; Eugene Zack Gabrieli Jenson; Anderson; R. Don W. Espinosa; Clifford Espinosa; Edward Adeline ta Gauthier; Jacobs; Raymond E. Francis Jr.; Corpus Gallegos, Espinosa, E. Pete Frailey, Heston; Re- P. and Howard G. through conservator Yvette his Rupert spondents. Gallegos; Gallegos; Gloria Garcia; Raymond Gallegos; Charlie No. 00SC527. Lobato; Jr.; Adolph Jacquez, Bonifa J. Colorado, Court Supreme Lobato, through “Bonnie” cio Banc. En Lobato; Teresa Carlos his Conservator Jr.; Lobato, Lobato; F. Lo Jose Emilio 24, 2002. June Lobato; bato; Presesentacion J. Gloria Maestas; Maestas; Robert Norman Maestas; Maestas; Raymond

“Bobby” J. Martinez; Martinez; Aga

Eugene Mark Medina; Montoya; “Andres”

tha Gilbert Otero; Eppie Quintana;

Shirley Romero Samelko; Valdez; Ervin Arnold

Lucille Vigil; Vig Vigil; Larry Michael J.

L. J. Atencio;

il; Billy Alire; Frances Robert Berggran-Buhrles;

D. Jose Fred Car

son; Espinosa; Marguri Elmer Manuel Gallegos; Espinosa; Ruben Moises Garcia;

Gallegos; Manuel Richard J.

Gardunio; Herrara; Jeffrey Jac Ruben Maes; Kaber;

quez; Adelmo Crucito Martinez; Martinez; David Jesse

Daniel Martinez;

Martinez; Rosendo Leonardo Martinez;

Martinez; Alfonso Solestiano Medina;

Medina; Gilbert Leandardo Loyola Medina;

Medina; Marvin Medi Orry Medina; Raymond Medina;

na; N. Olivas;

Rudy Montoya; C. Gurtrude Wayne Quintana; Romero;

Eppy Robert Anthony

Shirley Romero; Sanchez; Sanchez; Sanchez; Eugene

Bonnie Sanchez; Sanchez; G.

Evan James Jose Sanchez;

Sanchez; Rufino S.R. San

chez; Sanchez; A. Ronald San Vernon Santistevan; Seg-

doval; Daniel Elesam Floyd Carolyn Taylor;

ura; Solan; R. Valdez; Vialpondo; Martha P.

Sam Joe Vigil,

Vigil; And Walter Petitioners.

v.

Zachary TAYLOR, as executor of the Es Taylor, Jr., deceased;

tate of Jack T. Hoy

Taylor Family Partnership; J.

Anderson; Stohs; Lavern Marvin Kelly Stohs;

Edythe Charles W. Gelder Phinney;

man; F. Harlan A. William

Brown; Fuhrmann; Jimmy C. Dena F.

Crook; Crumley; Joseph D. P. Freeland LLP, Cheever, Kirgis,

Federico Gorsueh Martinez, Denver, CO, Attorneys P. Loretta Hispanic Bar for Amicus Curiae Colorado Association. Jr., Denver, CO, Stephenson,

David J. At- torney Rocky for Amicus Curiae Mountain Rights Group. Human Law Chief Justice MULLARKEY delivered Opinion of Court. history property rights of this contro- statehood,

versy began Colorado’s at a before part time when southern Colorado was Mexico; parties’ at a all of time when part the one acre lands were million Sangre grant, de Mexican Cristo Here, grant. we access land determine owners of farmlands Costilla County parcel ato mountainous of land now Taylor as the Ranch. known As successors region, original in title to the settlers in the and the landowners exercised to enter Taylor use the Ranch for one over years hundred until Jack fenced forcibly in 1960 land excluded them. and assert, rights, they These derive from Mexi- law, prescription, express can and an im- grant, plied impermissibly denied and were when the mountain land was fenced. reviewing We are this case for the second protracted twenty-one year in this liti- time phase litigation, In of gation. the first claims, plaintiffs’ trial LLC, court dismissed the Eley, Dodge, Jeffrey and Goldstein holding a Robinson, federal decision in the 1960s Goldstein, Otten, Johnson, A. Neff Schoeberlein, the same barred their PC, on issue suit. We Ragonetti, William F. & remanded, holding no- Maes, Martinez, reversed & Robert David Walters given comport PC, tice the federal case did not Joyce, Waggener, Kelly, Ha- T. Julia process. subject due matter of the LLC, glund, Garnsey Kahn D. & Norman appeal PC, current the landowners’ Galleher, substantive Haglund, Hiller & Watson Don Galleher, Arenales, Denver, CO, claims of The trial court and the Elisabeth appeals court of held that landowners Attorneys for Petitioners. prove rights any of failed on their three Wolf, Slatkin, PC, Ray- Wolf & Albert B. theories. Madison, Micklewright, mond P. Jonathan L. find that of settle- We evidence traditional Denver, CO, Attorneys Respondent. for practices, repeated ment references to settle- Denver, Reich, Garcia, CO, rights in Richard Peter ment documents associated with the Mesa, Attorneys CA, Sangre grant, Amici Costa for Curiae de Cristo one hundred Commission, Rights history In- year Bi-National Human of landowners’ use of the Ranch, Treaty Council, ternational National Indian and other evidence of necessi- Council, reliance, support finding Rights ty, Chicano Human De intention Comisión implied rights we Derechos Humanos De Seminario Perma- of in this case. While reject hunting, claims nente De Estudios Chícanos Y De Fronteras. for landowners’ fishing, rights, employed Spain and recreation we find he was common to and Mexi- strips have of for co: of the landowners access arable land vara strips called firewood, grazing, through a were allotted farming, timber to families for easement, open prescriptive by estop- areas for cultivation an easement were available prior for common pel, Fur- use. These and an easement from use. common areas were for thermore, jurisdiction grazing used retain and recreation and we order as a timber, firewood, fish, process source game. examine the trial court’s due deter- mination. gave In established settlers strips. to their year, deeds vara That same

I. Proceedings Facts and Prior Spanish Beaubien executed and recorded language purports grant document governor In New Mexico rights of access to common lands to settlers granted two Mexican nationals one million- (Beaubien Sangre grant on the de Cristo mainly grant, present- acre land located Document). part, In relevant this document day (Sangre southern Colorado de Cristo guarantees that “all inhabitants will have grant), purpose for the of settlement. The enjoyment pastures, water, benefits original grantees during died the war be- timber, always taking firewood and care that tween the United States and Mexico. The injure one does not another.” land was not settled in earnest until after (Carlos) war, cessation of the and Charles later, yearA Beaubien died. Pursuant to grant. Beaubien then owned prior agreement, oral his heirs sold his Sangre in the interest de Cristo the United States and Mexico Gilpin, William who Colorado’s first ter- Treaty Guadalupe entered into the Hidal- governor. (Gil- ritorial agreement The sales go, ending the war between the two coun- pin agreement) Gilpin agreed stated Peace, Limits, Treaty Friendship, tries. provide strip vara deeds to settlers who had (Treaty Guadalupe Settlement Hidal- yet agreement not received them. The fur- 2, 1848,U.S.-Mex., go), February 9 Stat. ther Gilpin stated that took the land on con- treaty, Pursuant to the ceded to Mexico land that rights dition certain “settlement before States, California, including the all United then conceded ... to the residents of the Nevada, Utah; New most of Mexico and settlements ... be shall confirmed said Arizona; portion and a of Colorado. The Gilpin William as made him.” agreed existing United States to honor the property rights territory. in the ceded Rele- 1960, Taylor, In Jack a North Carolina Sangre grant, vant to the Congress de Cristo lumberman, 77,000 purchased roughly acres Surveyor Territory asked the General the (mountain Sangre grant of the Cristo de of New to what Mexico determine tract) from a in to successor interest William at treaty. existed the the time of On Taylor’s Gilpin. deed indicated that he took recommendation, the Surveyor General’s subject land people the to “claims of the local Congress confirmed Carlos Beaubien’s claim by prescription pas- or otherwise to to Sangre de in grant Cristo the Act 1860 ture, wood, and lumber and so-called settle- (1860). 12 Confirmation. Stat. 71 in, to, upon ment said land.” 1850s, early

In successfully deed, Despite language in Taylor’s he recruited farm families to settle Colorado denied the local landowners access to his portion Sangre grant. began Tay- de Cristo He land and property. to fence the portion leased a land to his the United lor then filed a in Torrens title action government States to be used to establish United States District Court for the District (Torrens Fort perfect Massachusetts and recruited farmers of Colorado to his title ac- tion).1 (D.Colo. system Taylor settle other areas. The Jaquez, settlement v. No. 6904 Act, Registration Registration Taylor, 1. The Colorado Torrens Title Act rens Title see Rael v. 876 1210, (Colo.1994)). allowed land essentially quiet to file an action owners that would Tay- P.2d 1219-23 Because §§ title to their land. 118-10-1 he lor was North Carolina resident invoked -102, (1952)(now §§ C.R.S. codified 38- 5 diversity jurisdiction. -199)(for 36-101 full discussion of Tor- 1965). process 5, court that and class action certification issues district found Oct. The During any rights holding before a trial on merits. did not have the local landowners tract; phase, the process the Tenth the due court dismissed the mountain Circuit Tay- plaintiffs. most of The determined Appeals affirmed. Sanchez v. court Court of Cir.1967). (10th lor, plaintiffs pursue could their F.2d seven of regarding claims tract and that mountain 1973, Taylor adjoining, purchased plaintiffs proceed three of the could 2,500 part parcel that was also roughly acre regarding the their claims estate.3 Salazar (Salazar Sangre es- de Cristo hearing, denied Without further the court tate). in Taylor’s predecessor title to the class certification. The court then held filed a title estate had also Torrens Salazar trial on the merits. determined that local action 1960 which had the estate. To- landowners no trial, finding After the court made gether, the mountain tract the Salazar predeces- fact that the landowners their Taylor are known as the Ranch. estate “grazed sheep, sors title had cattle and timber, firewood, fished, gathered harvested began in current case 1981. In that The hunted recreated on the land of the landowners year a number of local filed suit defendant from 1800s to the date County land District Court. The Costilla defendant, acquired land 1960.” asserted that had settlement owners The trial court further found that the com- Taylor rights to the Ranch and that munity “open referred to Ranch as impermissibly rights.2 denied those had range,” prior the landown- judicata of res court held the doctrine ers “were never denied to the land.” access the suit the Salazar barred because Torrens dispute” The court also stated that “not did regarding and the decision action Sanchez could survived the settlers not have Taylor’s binding upon Torrens action without of the mountain area of the plaintiffs. Taylor, Rael v. No. 81CV5 grant. (Costilla 1986) Sept. (Judg Co. Dist. Ct. for Judgment ment for Defendant on Motion Despite findings, court deter- theses Pleadings Summary Judgment). on the or for proved mined that the landowners not had prescriptive rights because their use was not appeals The court of affirmed. Rael v. adverse. The court further held that Taylor, (Colo.App.1991). 832 P.2d was not Beaubien Document an effective ex- granted This court certiorari reversed press grant because it did iden- remanded, questioning the constitutional tify parties rights the or the locations adequacy publication of in the the notice rights where be Re- the should exercised. Taylor, action. Torrens Rael v. 876 P.2d Beaubien, garding implied grant by an the (Colo.1994). 1210, 1228 We directed the trial court that concluded Colorado law did not to of the plaintiffs court determine which recognize implied rights the the landowners adequate notice in the ac received Torrens appealed claimed. landowners The both and to trial on the tion hold a merits for process rulings due on determination and the proper who did those not have notice. Id. rights. their claim of remand, granted Tay- court On the trial summary judgment appeals lor’s motion for The v. on court of affirmed. Lobato Taylor, (Colo.App.2000). Mexican law claim. The court then P.3d 821 The bifurcat- trial proceedings: agreed ed the it determined the due court with the court’s conclu- Taylor Taylor during pendency 2. Jack 3. that died of this claims the Salazar estate is no son, Zachary Taylor, longer litigation. stepped opinion His in at issue in this case our because expressly property. Rael as executor of his father's estate. At some in did not discuss this Taylor Taylor point, We estate sold the Ranch to find that the Salazar estate is still at issue. court, Rael, party. bought party another the land sub- The trial on remand continued This findings ject subject regarding to landowners’ claims and to this to make of fact the Salazar litigation. simplicity, specifical- For of extent that Rael the sake Jack To the did not estate. ly Ranch, portion of and his successors in title are referred to as address that "Taylor” oversight. opinion. in this was an gross An be in regarding sions all three landowners’ easement can or express appurtenant. gross an An easement Regarding of does not theories. belong appeals engaged in to an individual virtue rights, of her own court land, ership personal is a application property right of the 1863 but rather technical to use Territory. property. another’s Lewitz v. Id. at 831. Porath laws Colorado Trust, Family 122 (Colo.App. 36 P.3d that the document in- The court concluded 2001). An appurtenant, easement on the oth cluded neither the “Christian and surnames” hand, er runs with the land. It is grantees description an accurate meant to nor property, benefit the an or owner Id. virtue to be burdened. Further- property ownership. her more, Lazy See Dog, noted appeals the court of 965 P.2d at An presumed easement is does because the document not use the appurtenant, to be words, assigns” gross. rather than in it does “and heirs and Lewitz, 122; Restatement, 36 P.3d at any rights supra, intended indicate that Beaubien to 4.5(2). run with the land. Id. Because the court rejected all of the landowners’ substantive case, allege the landowners that the claims, question not reach the court did rights settlement be were to used connec- of whether the trial court erred its due They argue tion with their land. process decision. homes, firewood was used to heat their houses, timber to frame their adobe and the granted

We certiorari. grazing necessary viability of their farms. The landowners also assert that the Analysis II. rights settlement granted pre- to their decessors in title virtue of their rights interest in graze The claim landowners live- strips their vara stock, timber, hunt, necessary and were fact a fish, gather firewood incentive for in the settlement area. discussing and recreate. Before the sources rights, we the settlement characterize the We conclude the land claimed order determine the claiming are owners best characterized govern rules of law them. appurtenant as easements to the land. We reach this conclusion from the evidence that A. at Rights The Issue under Mexican custom access to common given surrounding landowners, land was parties, points in at various the volu- the evidence that this access was used to twenty-one year-old briefing minous of this land, presump benefit the use of the and the litigation, agree that the at issue are appurtenant tion in favor of easements. appropriately profits most characterized as á Having prendre. prendre established the nature of the profit A á modern —in issue, we turn parlance, now sources of these profit easement that con- —“is timber, fers to enter remove minerals, oil, gas, game, other substances Rights B. the Sources of possession

from land the of another.” Re- (Third) Property: statement of Servitudes argue The that landowners their settle- 1.2(2)(1998) [hereinafter Restatement]. rights ment stem from three sources: Mexi- Thus, profit type a a of easement. law, prescription, express can an or im- plied grant from Beaubien. an This court has described easement as “a right claim, by grant, prescription Regarding conferred or ne the law Mexican the cessity community authorizing rights one do or maintain landowners claim that which, something only recognized by on the of another land al common lands not former, law, though integral land a benefit to the of the Mexican but also are may land of be burden on the the latter.” settlement of an area. The landowners fur- Lazy Dog Telluray point Treaty Ranch ther that in of Corp., Ranch v. out the Guadalu- (Colo.1998)(quotation pe Hidalgo, government 965 P.2d the States United omitted). agreed that of the rights marks the land residents “inviolably States, conclude that Mexi- would be to the United we territories of the ceded theory, can law cannot be a of the landown- the source landowners’ respected.” Under apply Mexi- ers’ claims. court treaty the dictates the accordingly Taylor Ranch and the can law to however, disagree, with the court We of recognize the settlement appeals’ resolution landowners’ of the other claims. While the Beaubien Document can- argue that use further The landowners express grant rights, an of support not when For prescription. rights be found via can agreement the coupled Gilpin other claim, regular use of they point their this evidence, supports finding prescrip- of a hundred land for over one Ranch easement, by estoppel, tive easement in 1960. years the area was fenced until prior from use. an easement their Lastly, landowners assert ex- by either an rights use were obtained 1. The Document Beaubien grant Beaubien. press implied from Carlos grant of of As evidence claim, rely primarily For landowners Beaubien, rely pri- Carlos the landowners Document. on the Beaubien marily The on Beaubien Document. doc- law the Mexican The trial court dismissed ument was written Beaubien one summary judgment, and claim motion for on year his before death. merits, rejected on the the two a trial after English of the document One translation af- remaining appeals claims. The of court reads, part: appeals of held that the firmed. The court Culebra, May Plaza la of San Luis de claim whatever Mexican law failed because of the rights may have existed at the time It has been that the lands of the decided Guadalupe Treaty Hidalgo were subse- of Rito Seco remain uncultivated for the ben- extinguished Act quently Congress’s 1860 community (gente) efit of members Lobato, 13 P.3d at 829. Confirmation. Luis, plazas of San Pablo and San Los further held that the landowners The court Ballejos and for the other inhabitants of prescriptive rights claim because could not plazas pasturing these for cattle not ad- their use of Ranch was head, payment per fee etc. Lastly, at the court held verse. Id. 834-35. parti- the water of the Rito remains said fails as an ex- Document among tioned of the the inhabitants same press grant does and that Colorado plaza of San Luis and those from other recognize implied in the form not easements vega side of hold lands who almost profits. Id. 832-33. lands, adjacent to it as their own that are agree irrigated cannot of the We the landowners with the waters Rio pre vega, claim under law. Mexican Their Culebra. after measure- Sangre in title did not on the ment of three from it in front of decessors settle acres grant chapel, donated, de until land Cristo after the to which have been their of the ceded to the United States4 thus will remain the benefit inhabit- developed plaza under United States of this ants and those Culebra land use law are above plaza law. Mexican as far as of Los Balle- highly ascertaining jos in this .... relevant case Those below the road as far as the involved, parties enjoy see will intentions narrows have the However, may] place any because the settlement benefit.... [No same one infra. anyone ceded occurred after the land was obstacle or obstruction to in the permanent from the "[t]he It is evident record that admit that erection of Fort Massachusetts Sangre grant of the did not settlement de Cristo ... in 1852 marked the start of the settlement of begin Although after 1848. some settle- until permanent the area in earnest” and that prior attempted Treaty of Gua- ment was to the settlements were as follows: established "Costil- succeed, Hidalgo, dalupe those settlers did not 1849; and in la Garcia San Acacio and San Luis due, aggression part, to Indian hostilities 1850; 1852; San Pablo in San Francisco between the United plaintiffs, Mexico. The States and 1854; Valle 1855." La and Chama in complaint, in their second amended legitimate rights .... enjoyment his Extrinsic evidence is relevant in in Likewise, scrupulous terpreting each one should take Lazy Beaubien Document. Dog, we causing articulated when a care in the use of water without court could exam ine extrinsic evidence in order to damage neighbors his ascertain with it to nor to case, the nature anof easement. In that we anyone. According corresponding expressly followed the Restatement and con rale, enjoy- all the inhabitants will have paramount cluded that “[o]ur concern in con water, pastures, ment of benefits of fire- struing a deed is to ascertain the intentions timber, always taking wood and care that parties.” Lazy of the Dog, 965 at 1235. We injure one does not another. recognized also that “circumstances sur added.) (Emphases rounding grant may be relevant to inter preting language grant.” Id. at The landowners that this assert document 1236; Restatement, see also supra, express grant evidences an of settlement § 4.1(l)(noting that an easement “should be on the Ranch land. The trial interpreted give effect to the intention of court concluded that the Beaubien Document parties language ascertained from the any rights did not vest in the Ranch. instrument, used in the or the circumstances although The court noted that the document surrounding servitude, creation of the and to firewood, pasture, water, lists carry purpose out the for which it was creat timber, only specified locations for access ed”). Moreover, question of whether or vega, are the Rito and the Seco two areas not the ambiguous “may document is be an parties agree part that are not swered reference to extrinsic evidence.” Taylor Ranch. The trial court did admit Lazy Dog, 965 P.2d at 1235. extrinsic evidence to determine whether ambiguity” there was a “latent in the docu- Here, we look to extrinsic evidence to However, ment. because the court ultimate- construe the Beaubien Document for two ly unambigu- found that the document was First, Lazy us, reasons. Dog as tells extrin ous, it ruled that extrinsic evidence could not may sic ambiguities. evidence reveal Sec interpreting be considered in the document. ond, ambiguous the document is on its face respect with to where the landowners could Lobato, appeals The court of affirmed. exercise their appeals agreed P.3d 821. The court ultimately unambig- Beaubien Document was Lazy Dog tells us that extrinsic evidence properly uous and that the trial court treated may ambiguities reveal in modern docu- the extrinsic evidence of Beaubien’s intent. ments; principle only can be true more Id. at applied 832. The court then respect to the Beaubien Document. We Colorado law and concluded that attempting year-old to construe a 150 the Beaubien Document did meet Spanish by document written in a French requirements formal conveying rights for Canadian who obtained a conditional predecessors the landowners’ in title. Loba- an enormous land area under Mexican law to, Moreover, 13 P.3d at 831. the court held perfected it under American law. Beau- profits granted expressly must be bien wrote this document when he near rejected any thus implied rights. claim of the end apparent of his adventurous life in an Id. at 832-33. attempt to memorialize commitments he had made to induce families to move hundreds of agree We the Beaubien Document miles to make homes the wilderness. It does not meet requirements the formal height arrogance nothing would be the express grant rights. However, we legal but a fiction for us to claim that we can document, find that together when taken interpret putting this document without case, unique with the other facts its historical context. easement, prescriptive establishes a an ease- by estoppel, ment and an easement from part, For the most the document is reason- prior ably use. specific places in identifying where permanent grant true That is not that Beaubien meant

rights to be exercised.5 are rights rights by the access that run with the land. the asserted respect with “Ac- key language reads: The landowners. first the location for the We discuss rule, corresponding all the cording to the rights. The evidence in this case establishes enjoyment benefits of have will inhabitants water, pasture, that the reference to fire water, timber, always pastures, firewood and wood, and timber in the Beaubien Document injure does not anoth- taking care that one to access on mountain area of the refers the er.” Taylor part. grant of which Ranch is a Thus, specificity parts of given the of other First, trial that the the court found land- document, in this specificity the lack of the predecessors in or their title owners accessed ambiguity. We cannot sentence creates Taylor Ranch one the land for over hundred the face the document determine years rights to exercise outlined in the the rights were burdened the what lands strongly suggests Beaubien Document. This conveyed to the first settlers. Beaubien parties Taylor the that the that understood Dog, Following Lazy we look to the extrin- their Ranch land was the location of access sic in this case. Amici assert evidence rights. specificity the of the the contrast between Second, experts testified that re- majority of the Beaubien Document and only sources listed the document rights to the casual reference settlement Taylor in the Ranch area of the available the document can best be ex- the end of grant. Expert testimony established that plained by surrounding events the execu- wood, grazing, only timber were summer penned the tion of the document. Beaubien grant.6 in the mountain area of the available a time when settlement was document at perhaps significant is the most evidence This grant, northern moving to the area of points Taylor Ranch as the loca- Taylor Ranch which lies northwest of the tion of the time, he At that wrote the Beaubien area. Third, rights access landowners’ are rights to the Document to establish common Taylor’s expressly mentioned in deed. The in and around San Luis and at the same area subjects only deed his interest not rights settlement that had time memorialize way record,” “rights of also but to “all already been existence the more south- way rights of heretofore located and now grant, Taylor ern of the where Ranch areas over, on, through, maintained used is located. subjects the same.” across It further agree the trial amici. From We conveyance people by of the local to‘“claims expert testimony, findings, court the docu- pastur- prescription or otherwise to re- grant, ments associated with the and a wood, age, and lumber and so-called settle- system which of the settlement under

view in, to, upon said ment land.” operating, settlers were we added.) any (Emphasis This resolves doubt First, two conclusions. we conclude draw that the access were meant burden the location for the settlement Taylor’s land. referenced in Beaubien Document is Tay- grant ample mountainous area of the which There is evidence on also Second, permanent lor Ranch is located. we conclude document was meant to create beginning por- boundary Sangre grant 5. de Cristo The locations referenced in the eastern is the document areas in and along peaks Sangre tion of all refer to range. Cristo de day present For Thus, around the town of San Luis. por- Ranch is in the mountain vega example, explains the document grant tion of the on which wood is available. chapel exists acres in front that still three contrast, grant portion the western San Luis. in the town of valley along the thus was floor and cleared and farming. obviously are used There other 80,000 acres, 77,000 Taylor’s area acre Of original mountain areas of the million-acre historically been La Sierra or the has called Taylor Sangre de Cristo than the other Mountain Tract. The Ranch is situated Ranch; these not at issue here. part grant. most on the eastern Both gathering graz- run with the land. the lands and rights that firewood for for ing a head system Beaubien and livestock furnished the under which settlement few of families, village bare for the a Gilpin the necessities operating were and settlers the lifestyle they which were accustomed. strong this. agreement are evidence of Clark, Mexico, Ira G. in New A Water Histo- integral to common areas was an Access (1987) ry Management Its Use system of of the settlement under which feature added). (emphasis operating. and Beaubien were the settlers law, govern- law, the Spanish and Mexican Under and Mexican colonial the differ- Under grants community private community grant7 awarded ence a a ment between private purpose settling grant frontier. See was that the for the the common lands Ebright, sold; community Land and Law- the could not be grant- Malcolm Grants the (1994). grant private in Northern New Mexico ee of a could suits sell the lands. supra, Ebright, See at 25. grants Mexican were issued under The procedures. Expert reports specific governor The would re- submitted this re- ease petition (mayor) original veal a to the local alcalde for that Beaubien the fer settlers grant operated this system. recommendations on whether the under traditional his only Common were not Availability pasture, typical be made. wa- areas fea- should necessary ter, ture but and firewood on common lands was incentive for settlement. among primary the considerations: above, As discussed de Sangre because the primary The considerations were whether grant part of Cristo was United States being by land was used or claimed permanent began, time settlement others, sufficiency petitioner’s Mexican settlement tradition is not a commu- qualifications, and the case of However, rights. source of the landowners’ nity grant, availability resources because the settlers and Beaubien so were water, pasture> like system, familiar the settlement firewood. it is added). highly ascertaining parties’ relevant (emphasis grants Large private Id. expectations. intentions and period. during made If were Mexican recommendation from the alcalde was express language Gilpin agree- The in the favorable, governor pri- would make the ment, year one after the recorded grant to an individual’s vate individual. The Document, supports further the conclusion however, ownership, upon was conditional referenced in the Beaubien grant. successful settlement of the Document meant to burden were the land. pri- Agriculture raising and stock Gilpin Beaubien’s immediate successor mary grant means of subsistence settlers on Gilpin for the as owner of land. The supple- grants. agreement express Id. at 25. The settlers contains condition con- by irrigated plots rights: mented their use of com- firming the settlers’ monly community private grant accessible [Gilpin agrees express the] condition gathering grazing for lands firewood and before the settlement then con- livestock: Charles Beaubien ceded said to resi- Trinchera, Costilla, pattern

The of land tenure and use was the dents of Culebra & included, tightly knit communi- Tract shall con- foundation these within said be irrigated Gilpin Produce from the said William as con- ties. their small firmed plots supplemented by the use common firmed him. grant vega chapel community

7. Because the lands of a could the San Luis referenced in the vega chapel perpetu- be sold and were held in Beaubien Document. and the common ity, hunting, fishing, settlers could exist in the town of San Luis and use them for continue to herbs, among gathering quarrying, originally pur- and rock oth- are for the intended used uses, any question poses pasture. er without or conflict with as a church and as common subsequent Although portion of courts of the Beaubien landowners or the need Document grants community grants, gen- private two define intended uses. Some establishes these operated community grants; like did to settlement others not. eral references were'meant Ebright, supra, examples com- access and use This See munity grants at 25. Two to memorialize agreement. Sangre Gilpin in the de Cristo clear from the Implied paid a. also recites that settlers Servitudes This deed rights for those Beaubien consideration An easement is created if the Gilpin succeeds to settlers’ obli- and that owner of the servient estate either enters Beaubien, including payments gations due conveyance into contract or makes a in by held and promissory notes Beaubien on complies tended to create servitude that agreement Tay- is in agents. Gilpin The his exception with of the Statute Frauds or an Taylor’s of title and own deed lor’s chain Restatement, supra, the Statute of Frauds. the landowners’ settle- expressly refers to § 2.1. ment by Servitudes that are not created contract Thus, rights that we conclude both were conveyance or include servitudes created granted exercised from the time of set- and by dedication, prescription, estoppel. and that the Beaubien Document tlement and by express Those which are not created Moreover, them. we conclude memorialized conveyance implied contract or are the ser- location for the moun- that the vitudes, may use, prior which be on based Taylor which portion of the tain map boundary descriptions, necessity, or part, that Ranch is a benefit surrounding or other circumstances run of these meant to burden land, conveyance of other interests land. with the give which rise to inference that not with the We do take issue court parties intended to create a servitude. appeals’ application proper of 1863 Colorado b; § Wright Id. cmt. see v. 2.8 also Horse Document. not ty It is law Ranches, Creek 697 P.2d 387-88 that Beaubien failed to surprising Carlos (Colo.1985)(noting may that an easement be comply the nuances and technical re with by “necessity; by preexisting established conveyance proper of real quirements of use; by express implied grant; or or ty rights. comply failure to with Beaubien’s Fairlamb, prescription”); Wagner v. 151 law, however, property the territorial (1963)(not 481, 484, P.2d Colo. inquiry. end of the The territorial su ing implied “not that easements are ex preme court made it clear pressed parties writing, but ... property access and use another land arise[ out of the existence of certain ] facts implied be in the law of owner could found transaction”). implied from the Nichols, 1 easements. Yunker v. Colo. (1872). implied recog The law of easements can implied Easements be in a number of rights may implied though even nizes be by prescrip- situations. Easements created properly expressly conveyed. were not tion, Restatement, 2.17; supra, § easements This well-established area law is 2.10; by estoppel, id. and easements im- honoring the intentions of the concerned use, 2.12, plied prior §id. are the from most parties avoiding to land transactions and in relevant to this case. each We discuss justice. turn, discussing these in both Colorado ease Restatement, law and the which is consistent Implied Rights Grant of Settlement precedent. with our overwhelmingly this case evidence supports the conclusion that the landowners An prescription easement is es implied have Ranch. We 1) prescriptive tablished when use is: implied 2) first review law of servitudes. notorious, open or without continued effec Second, we discuss how traditional settle- interruption prescriptive period, tive for the practices, repeated 3) a) ment references to settle- b) was the use either adverse rights in ment documents associated with the pursuant attempted, to an but ineffective Sangre grant, year de Cristo the hundred 2.17, § grant. §Id. 2.16.

history of the landowners’ use of the

Ranch, necessity, imply and other evidence of reli- A court can an easement ance, 1) support finding by estoppel intention im- when the owner of created plied rights “permitted in this case. servient estate another use performed by parties land under circumstances in which it possession both reasonable to foresee that the user pursuance thereof, taken the bar of the substantially change position believing would equity statute is removed and will enforce 2) revoked,” permission would not be acquired”). thus substantially changed position in the user An implied easement prior 3) belief, reasonable reliance on 1) is created when the servient and dominant injustice only by can be avoided establish- estates were once under ownership, common § a Id. ment of servitude. 2.10. Whether 2) rights alleged prior were exercised to justified upon depends reliance is the nature 3) estate, the severance of the the use was transaction, including sophistica- of the 4) merely temporary, the continuation of parties. tion 2.9 cmt. e. of Id. reasonably this use was necessary to the requirement have a Restatement does not of 5) enjoyment parcel, contrary a deception, neither does Colorado.8 See intention expressed is neither implied. nor Corlett, 551, Graybill v. 60 154 P. Colo. 730 Restatement, 2.12; supra, § see also Lee v. (1916); Hoehne Ditch v. Co. John Flood R-1, 326, Dist. Sch. No. 164 Colo. 435 P.2d Co., 531, (1920). Ditch 68 Colo. 191 P. 108 232, (1967); Proper 235-36 Greager, v. 827 by estoppel equitable An easement is an 591, P.2d (Colo.App.1992). 593 The rationale remedy. recognizes It that when a landown- for this servitude is as follows: change position er to in induces another reli- upon promise, estopped ance his he is from The rule stated in this section is not based denying then the existence of the sim- solely presumed on the actual intent of the ply because did not meet the formal parties. It policy protect- furthers the of conveyance rules. The rule “is founded on ing expectations, reasonable as well as ac- policy injustice.” preventing of Id. intent, parties tual of to land transactions. § 2.10. Restatement, supra, § 2.12 cmt. a. repeatedly recognized Colorado law has long Colorado applied implied has this equitable right. example, in Gray- For easement. This court has found an easement bill, right we examined a landowner’s to Lee, prior from In use Lee. the owner of maintain a water ditch across the land of his parcel right one of land way claimed a neighbor. The owner of the servient estate neighbor’s prop across his land to access his granted had the owner of the dominant es erty. The servient and dominant estates had right tate the to establish ditch across his ownership once been under common and this promise; parties land. This was an oral right way was used before the severance comply conveyance did not and record years of title. Seven after the severance of 552, ing formalities. 60 Colo. at 154 P. at title, bought the defendant the servient es parol agreement, 730. In on reliance attempted right tate and way, to block the owner of the dominant estate used the ditch claiming agreement. a lack of an enforceable irrigation as the source for his land and prior This court found that an easement cleaned, repaired, improvements and made to Lee, use had been established. 164 Colo. at facts, that, the ditch. Id. On these we noted 333, 435 P.2d at 236. require is too well settled “[i]t to discussion Similarly, appeals the court of found an that under the circumstances above stated a prior There, Proper. easement from license, use licensee holds under an irrevocable plaintiff neighbor’s landowner used his acquired by and his as if is valid as 731; property. land to grant.” access his This use had Id. at 154 P. at see also Co., begun plots Hoehne Ditch when the two were under com- 68 Colo. 191 P. 108 (applying ownership. Although neighbor mon the “well settled” al- rule “al- use, though relating realty an agree- oral contract to is lowed this there was no formal frauds], neighbor sought within the statute ment. The to rescind [of where consid- his passed, fully permission twenty-five years eration has and it has been after Fruita, rights easements, opposed 8. estoppel Aubert v. Town 192 Colo. as in the context of (1977), impact P.2d has no here because that such as ditches. estoppel case deals with in the context of water rights: use, fence. “A cannot rewrite a and to construct a limited court easement’s thereby change its terms when found contract P.2d at 592. The court Proper 827 unambiguous.” Id. facts, plain, from it clear and an under these easement Dawson, then, 604-05, P.2d at Id. at 594. prior had been established. implied crucial element of an easement was implied ease- Having law of outlined missing contrary intention because ments, of this case. now turn the facts we expressly stated in For that rea- the deed. son, imply profits we declined additional Claims Application b. Landowners’ Dawson. long history implied ease- Despite the Although this court has not addressed im Colorado, appeals in the court of ments plied profits thirty-five years, for over there rejected the landowners’ claims this case apply a modern trend to the same rules so be- implied easement. The court did See, profits. e.g., of access easements and to that, although easements cause it believed 153, 466, Kortge, Or.App. v. 84 733 P.2d State rights implied, of access could be the form “[wjhether (1987)(noting that 469 defendants’ not. profits in the form of could easements prendre in rights profit are the nature of a á Lobato, reaching at 13 P.3d 833. In easement, in this case interests conclusion, deci- misapplied the court a 1964 rules”); governed general the same Fi court, Fling, Colo. of this Dawson v. 155 sion Club, Carcajou Shooting gliuzzi v. 184 (1964). 599, P.2d 599 396 572, 410, (1994)(ap- 516 415 Wis.2d N.W.2d Dawson, Flings easement In claimed statutory plying prof a to rule of easements rights by corporation. a lake owned to persuaded part because the was its court establishing rights was deed document Spe § Property the Restatement of 450 read, part, that the lake could be which (1944), cial Note which states that it treats boating swimming purposes, and used “for “profits” “easements” and the same because themselves, grantees by of said for the use applicable “in was to no case there a rule one servants, assigns, their heirs and their applica of these interests which not also friends, they agents, guests, and whomever other”). ble to the 602, may at select.” Id. 396 P.2d at 601. that, boating Although specified explains the deed and The Restatement al swimming rights, profits the Flings petitioned though mineral some such as and rules, right rights9 specific generally court to find that had the to fish have water This court lan- as well. concluded that as between easements in the form of access conveyance clearly guage rights profits, limited the and easements the form of rights boating swimming to and and thus no “there are doctrinal differences between Restatement, imply fishing rights reporter’s § to well. Id. 1.2 supra, declined as them.” 604, “Generally, governing at P.2d at 602. 396 note.10 the rules cre ation, transfer, interpretation, and termi dicta, right this court that “[a] asserted profits easements are the nation of and same profits prendre expressly grant- á must be law.” in American 1.2 cmt. e. Id. Id., However, ed.” 396 P.2d profits of and equally the circumstances the case it is clear Easements are treated implied rights public practical declined policy this court to find because the same conveyance expressly of implied because the deed considerations that underlie of County 9. The case before us no claim to water law. See Bd. v. contains Comm’rs Park of Ranch, LLP, 693, on the We note County based Beaubien Document. Sportsmen’s 45 P.3d Sangre April that on the settlers of the (Colo.2002). de Cristo commenced construction Ditch, irrigation People's San Luis the oldest Property, concluding 10. The first Restatement of right in Colorado continuous use. See Carl apply that the same rules to easements of access al., History, Ubbelohde et A Revised Colorado dropped profits, "profit.” as to er, the term Howev- (1976). Edition 195 in Col- Centennial All water "profit” because the is useful as word resource, public orado is a dedicated to the bene- term, Restatement, descriptive it survives. su- agencies public persons private ficial use pra, § cmt. e. 1.2 they might wherever make use of the beneficial prescribed water under use established as implied profits. apply principles A rec- these access also underlie easements of access always comply parties do not ognition profits.11 but not to Such a limitation would conveyance, express rules of with strict directly contrary legacy be to our implied parties, to effectuate the intent of the desire easements. apply equally aim of fairness

and the Having concluded that the trial court profits. easements and appeals and court of incorrectly this case replete precedent law is Colorado held that recognize Colorado law does strong policy parties’ reflects a be true to implied profits, easements in the form we recognizes intentions Colorado’s apply the implied now law of easements to unique history geography further neces- the landowners’ claims. judicial recognition implied rights in sitate See, e.g., Roaring land. Fork Club v. St. Our review of the record leads us to Co., P.3d Jude’s ample conclude that there is evidence to im (Colo.2001)(noting that “our lawmakers ply certain in the landowners to access recognized that our arid [have] climate re- prior unity use the Ranch. The quire[s] appropriate the creation of a Taylor’s land; of title of the landowners’ and convey water across the land anoth- necessity rights; significant Ranch, (in er”); Lazy Dog 965 P.2d at 1235 upon reliance promise rights; of these the. easement, determining scope noting of an the fact that the were exercised for “paramount concern” is to ascertain years; over one hundred and fact that these parties the intentions of the and that when a rights were memorialized in the Beaubien particular right, a deed is silent as to Document, Gilpin agreement, every and court shall look at the sur circumstances conveyance title, Taylor’s deed of chain of transaction); rounding Thompson, 895 satisfy every element of the Restatement test (in easement, implying noting P.2d at 540 an implied and the recognized easements we public policy that “sound dictates that land the eases discussed above. occupancy should not be rendered unfit for therefore, presumption, a and there is Prescriptive i. Easement party conveys property that whenever a he conveys necessary whatever is for the benefi Taylor’s Tay- Because deed indicates that property” (quotation cial use of that marks ownership subject lor’s of the land is to the Yunker, omitted)); (noting 1 Colo. at 554 prescriptive begin rights, landowners’ we necessary that certain water for application prescriptive with an of the law of enjoying land “imply the law will a appeals easements. The court of this case grant especially of such easement where it is prove concluded that the landowners failed to necessary enjoyment of the dominant prescriptive a easement claim because their estate,” and that such come not out of Lobato, use was not adverse. 13 P.3d at 834. contract, the literal terms of the but rather respect. The court erred in this “pre-existing authority higher out of nature, nations, laws of or of the communi adversity Although necessary is a ty parties belong”). to which the claims, requisite possession for adverse (Colo. Thus, Hayden, Smith v. 772 52 P.2d honoring parties’ the aim of inten- 1989), required prescriptive it not a is avoiding injustice tions the Restate- prescriptive easement. Courts often find expresses long goal ment has been the Specifically, easements even when the owner of the ser- Colorado law. has a Colorado strong history implying Significantly, estate allows the servitudes vient use. based equitable prescriptive Restatement articulates that a on concerns. As the Restatement concludes, arbitrary it is and inconsistent to use is either: Notably, goals designed one It both traditional Restatement is law.... is to allow "present[ comprehensive practices using land-development a] modern treat- and innovative substantially imposing ment of the law of servitudes that servitudes without artificial constraints simplifies complex arbitrary and clarifies one of the as to form or as to sub- most limitations Restatement, century supra, and archaic bodies of 20th American stance.” Introduction at 3. (1) fully intent or reduce of not articulate their to the owner a that is adverse use they writing, against agreement or because the interest land their

the land or claimed, or formal re- comply fail to with some other the servitude which jurisdiction.” Re- quirement imposed in the (2) pursuant is made a use that 2.16, Thus, statement, § cmt. a. supra, imperfectly but creat- an intended terms of appeals in current case erred court of servitude, enjoyment of the bene- or the ed finding adversity in all required imperfectly when but created fit of an intended circumstances. servitude.

Restatement, supra, 2.16. adversity Having established that by prescription

Although an easement imperfectly required when a has been adversity only in has been codified without the current attempted, we turn to the facts of restatement, always “it has been the recent findings of fact and ease. The trial court’s Id. present American servitudes law.” interpretation of the Beaubien Document our many jurisdictions § 2.16 cmt. a. Because every prescriptive easement. fit element of a adversity technically prescrip- for a required First, open must be easement, in those states often tive decisions doubt that the land notorious. There is no explanations” explain used “convoluted known owners’ use was well actually permitted use was hostile and how in title. trial court predecessors his adversity requirement. Id. Some met the Taylor’s predecessors in title not noted that acknowledged exception to the ad- courts access, See, only knew of the landowners’ but versity in certain circumstances. rule far direct the location of even went so as to e.g., Props. Corp. County, v. Polk Nat’l grazing. significantly, Taylor and his (Iowa Most 98, 105 1986)(noting that there N.W.2d express predecessors in title had notice of may prescriptive easement even “where be landowners’ claims of from the lan original [sic] use was with servant open guage of their deeds. The use was Hook, consent”); Kirby v. Md. owner’s notorious. (1997)(applying an 701 A.2d exception “general permis [that] rule Second, the use must continue with ripen prescriptive never sive use can into interruption prescriptive out effective for the ... where there has been an at easement Colorado, statutory period period. tempt grant to an irrevocable easement 38-41-101, § eighteen years. 10 C.R.S. which is because of the statute of void Here, (2001); Proper, 827 P.2d at 595. frauds”). jurisdictions, such as Colo- Other explicitly trial court found that the landown rado, simply glossed adversity re- over predecessors “grazed in title ers and their See, quirement e.g., without comment. timber, sheep, gathered cattle and harvested (finding Wright, 697 P.2d at 388 an easement firewood, fished, and recreated on the hunted by right way prescription the form of a from the 1800s to the land of defendant though across the servient estate even defendant, acquired date the land was right way permitted use of the was in 1960.” The trial court also found this ultimately writing); Proper, to reduced than access was never denied. This more adversity (listing require- P.2d at as a 595-96 statutory period. time satisfies the by prescription ment of an easement but then, stipulated although parties that the Third, the access must either be ad permissive, finding prescriptive use was intended, pursuant imper verse or to an but easement of a commercial for access and use Here, executed, fectly grant. the access was application pre- parking complex lot via However, permissive, rather than adverse. sumptions). ample grant there is evidence of an intended Document, established, then, long of these The Beaubien has been

It express grant, adversity required although imperfect evi that the is not as element grant rights required in all It when intent to circumstances. is not dences Beaubien’s (see predecessors in title parties that the the landowners’ su other evidence makes clear easement, Moreover, express language pra). intend an fail “because do but conveyance for the The trial during the deeds court found that the 1850s Ranch, Gilpin ultimately Taylor, indi- Beaubien executed a lease to the United an intention that the burden the cate government States for the maintenance of land. Fort grant Massachusetts on land. In this granted lease army Thus, the landowners have estab “pasture, grass, cut timber and collect fire- prescriptive claim.12 lished wood” on safely Beaubien’s land. We can assume that the United States was more by Estoppel ii. Easement sophisticated dealings in its with Beaubien The landowners have also estab predecessors than were the landowners’ every lished element of an easement es- title and that putting insisted on Beau- , First, Taylor’s toppel. predecessors in title promises writing.14 bien’s into Under these “permitted [the settlers] [the] to use land circumstances, it is reasonable to foresee that under circumstances which it was reason substantially a settler would change po- able to foresee that the [settlers] would sub believing permission sition would not stantially change position believing that the be revoked. permission would be revoked.” Restate ment, swpra, 2.10.' The settlers’ reliance element, The second the user expect was reasonable because substantially change position in reasonable ed, intended, necessary. expect It was belief, easily reliance on the found. The system ed because of the Mexican settlement predecessors landowners’ in title settled above, discussed above. Also discussed grant They Beaubien’s for him. moved onto system, settlement combined with the actual permanent the land and established farms. practices and the deeds associated with the element, The third Ranch, avoidance of show that were intend injustice, undeniably present. is also The ed. original Sangre grant given de Cristo was on necessary. The were also Indeed, the condition that it be settled. un Stoller, plaintiffs’ expert, Dr. Marianne testi- law, der Mexican would have been necessary fied that access wood was if revoked settlement did not succeed. The homes, necessary heat access to timber was settlers, then, fulfilled the condition of the homes, grazing to build and access to grant that made Beaubien' fee owner of one necessary maintaining livestock.13 More- million acres of land. over, Beaubien included each of these re- sources in a lease to the United States for Beaubien attracted settlers to the area military post first convincing in Colorado. provide See Le- them that he would them Roy Hafen, R. Hafen Ann rights they & W. Colorado: A with needed for survival. (1947). Story People and rely State its Beaubien knew that families would on Stoller, trial point testimony, 12.The court in the current case heard 13. evi- Dr. at one in her also prescription fished, dence on the hunted, ruled claim as a mentioned that the settlers However, judicial economy. matter of the court not, however, recreated on the land. She did bring also ruled that the landowners could not practices necessary. indicate that such were prescription Taylor claim because did not have Significantly, report, in her written which the adequate notice. Our review of the record does landowners submitted to the trial Dr. Stol- court. support Although this determination. rights rights ler lists the landowners' as use formally landowners did not file for leave to add firewood, timber, "pasture, and water.” prescription claim until all of their factu- allegations clearly al from the birth of case Stoller, expert, agreed landowners’ Dr. implicate prescriptive rights particularly their — rights included in Beaubien's lease to the predecessors claim that and their in title government significant: gave were “he Unit- [the continuously Taylor accessed the Ranch for over Army] rights pasture, cutting ed States use years. Significantly, one hundred the deed of grass, adjacent firewood and timber to the conveyance explicitly Taylor informed that he following prac- lands.... Thus was purchased he same subject the land to the "claims of the settlers, (Em- people by tice in the 1863 prescription local document for his and for or otherwise.” added.) phasis Taylor adequate had the same reasons—the need for these resources notice of this claim. for human survival.” Custom, expectation, practice, language travel their homes to promises and leave his surrounding in the documents deeds on foot or horseback miles hundreds of only Taylor property indicate not ranch homes. establish new exist, contrary did not but intention conveyance Beau- A condition affirmatively parties intended for these land, Taylor, was Gilpin down to bien’s rights to exist. Although rights. these honor that the owner pri- All of an easement from rights were exercised for five elements promised these years, although have been these or use established. over one hundred very necessary rights to the settlers’ were Rights C. Extent

existence, ample although had rights, Taylor fenced his land notice of these Having found that the landowners have years ago. It an understate- forty over Ranch, implied profits in the we now injustice. say that this is an ment to rights. scope of those We must address imply rights in the Beau- memorialized each ele- The landowners have established Document. do so for four reasons. by estoppel. bien We an easement ment of First, strongest evi- the document is the iii. Easement From Prior Use parties’ have of the intentions and dence we Lastly, every of an ease Second, element expectations. rights in the docu- First, prior has been shown. Third, ment from use likely necessary. ment were the most Taylor’s were both and the landowners’ lands the Fort Massachusetts lease lists these ownership of originally under the common Fourth, same the document is the Sangre who owned the entire de only attempted evidence we have of an ex- grant before settlement. See Tamel Cristo particularly press grant. important This is Emi ing v. United States Freehold Land & prescriptive for the easement claim. See Re- (1874). Co., 2 gration Colo. statement, supra, § a.15 2.16 cmt. Second, rights prior were exercised Accordingly, we hold that the land the severance of the estate. As discussed Taylor’s implied owners have land above, many landowners for the access detailed the Beaubien Docu expected claim were needed and for life in firewood, pasture, and timber. These ment — Valley. necessity Luis This existed San easements should be limited to reasonable days indicating from the first of settlement — grazing access is limited to a rea use —the prior were exercised these given size of sonable number of livestock severance of title. strips; the vara the firewood limited to that residence; prongs The third fourth each and the timber needed for —that merely temporary reasonably was not and is to that to construct and main limited needed necessary enjoyment of the land —are buildings tain and farm located on residence easily also established. The trial court’s strips. the vara findings of fact establish that the Remaining III. from the time of until Issues

exercised settlement Moreover, Taylor came on the scene. as years, Over the a host of contested issues above, rights reasonably discussed were case; many were not have arisen this necessary. appeal addressed on because the court of Lastly, contrary expressed appeals’ holding that did not no intention is the landowners thus, implied; any rights ancillary ques- present. or the fifth element have rendered the acknowledge adversity, 15. The landowners that the Beau- tive easement in the absence of there rights express grant. bien Document does not reference attempted must be evidence of an hunting, fishing, case, and recreation and thus that only In the Beaubien Document is the express implied there is no evidence grant an or attempted express evidence of an rights of these from Carlos Beaubien. landowners. Because it makes no reference to rights However the landowners claim that these recreation, hunting, fishing, there be can no prescriptive disagree. exist via a We easement. prescriptive rights. easement for those above, prescrip- As discussed in order to find a dissenting only MARTINEZ as to remain- Justice reviewed the We have moot. tions only appel- part II.C. ing and conclude issues whether addressed is that must be issue

late justice opinion the chief correct- As appropriate engaged in the trial court notes, ly this case involves the settlement from Rael. inquiry on remand process due rights people largely have dis- who been Rael, this case for a de- remanded In we Taylor possessed of their land when received ad- which landowners termination dispute property. There is little fenced title actions. in the Torrens equate notice enjoyed that the settlers extensive high- Although in Rael we P.2d comprise Ranch for the lands indicated in the record lighted facts Rather, years. hundred the dis- about one claimed local landowners Taylor knew that any, pute rights, the extent of the if concerns land, the trial court on remand rights in the we that survive when construe settlement disposi- landowning other than found criteria pursuant rights conceived in a different era plain- most of the dismissed tive. The court short, In contemporary standards. tiffs, only pursue their allowing seven to difficulty this case is that we must address only tract and regarding the mountain claims grave injustices imposed upon the set- regarding the pursue their claims three to by interpreting in interest tlers’ successors reviewed. This must be estate. Salazar era, from a different intended to documents intent, through per- reflect Beaubien’s economy, judicial and as a matter of As a spective modern law. Nonethe- fairness, forty-one year given the matter of less, juris- equitable principles in our modern Taylor Ranch and this to the denial of access properly applied, prudence, construed to re twenty-one year litigation, we decline permit recognize us to appeals court of for a this case to the mand their successors in interest. settlers and Rather, we will of this issue. determination process issue after full brief the due revisit justice’s I concur with the chief Because v. separate opinion. See Ballow ing, in a analysis and conclusion that the landowners Co., 1354, 1364 P.2d Phico Ins. rights through prescriptive have access (Colo.1993)(retaining jurisdiction rather than easement, by estoppel, an an easement appeals a mat remanding to the court of as use, prior join I to make it easement economy). judicial ter majority opinion and refer to it as such majority explains, the Beau- herein. As the

IV. Conclusion imperfect attempt an at an document is bien rights clearly express grant of “meant sum, imply rights in the we access run permanent rights that with the create Taylor Ranch for reason- landowners land,” 948-949; maj. op. such access firewood, grazing, and timber. We re- able “integral feature of the settlement hunting, fish- ject landowner’s claims for system which the settlers and Beau- under we remand to ing, and recreation. Before Addition- operating.” Id. at 949. bien were permanent for a order of the trial court ally, Gilpin agreement provides further access, necessary in briefing is additional rights granted support settlement re- which landowners order to determine intended to run with the by Beaubien were adequate notice ceived agreement required that land because actions. The clerk of this Torrens Salazar he on the condition that Gilpin take the land briefing schedule for the will set a court recognize and confirm the settlement parties. analysis majority’s agree I with the also only as to MARTINEZ dissents Justice implied regarding the servi- and conclusions part II.C. holding. upon its which it bases tudes that the same rules majority determines dissents, and Justice Justice KOURLIS profits and applied to easements should be joins in the dissent. RICE position that adopts the Restatement’s always re- by prescription do not easements participate. does not Justice COATS adversity; quire finding rights” instead such that encompassed “settlement more may grazing, firewood, timber, result from intended but than I easements would imperfectly servitude. rights fishing, hunting, created also include access for through prescriptive and recreation ease- addition, agree majority’s In I ment, by estoppel, an easement and an ease- conclusion that the landowners’ access prior ment from use. through an from are also found easement by estoppel: prior use an easement Findings Regarding I. The Trial Court elements for both of these easements are met Rights Fishing, Settlement for particularly agree I in this case. with the Hunting, and Recreation majority’s strong language regarding the in- justices finding that are avoided in access strong findings The trial court made that rights through estoppel. an easement plaintiffs’ predecessors grazed “[t]he in title timber, sheep, gathered cattle and harvested short, majority’s analy- In I summarize the firewood, fished, hunted and recreated on the sis, it, my support emphasize for land of the defendant from the 1800s to the many agreement I areas of have with the defendant, acquired by date the land was majority and the extent to I which concur that, in 1960.” The trial court also found join majority opinion. prior land, to 1960 when fenced the However, significant it is to me that the the landowners referred to that land as findings trial court’s that the landowners also “open range” and that the landowners were enjoyed fishing, hunting access for and recre- “never grazing denied access to the land for supported by ation the record. As a cattle, timber, sheep, harvesting gathering result, apply I reasoning would firewood, fishing, hunting, recreating.” majority opinion regarding prescriptive ease- My review of the record that that reveals ment, by estoppel, easement and easement findings fishing, trial court’s of fact prior conclude that the landown- hunting, and recreation were included ers have also established access rights contemplated by settlement the Beau- fishing, hunting, Thus, and recreation. while bien document are correct. join majority opinion analysis I as to its regarding the source of the landowners’ expert reports Several historians filed rights, join part majori- I do not II.C. of the case, some of whom also testified at trial. ty’s opinion, fishing, hunting, which excludes reports commentary Some of these include and recreation holding. from its How- regarding fishing, hunting, and recreation as ever, recognize I part II.C. of the chief part of rights. example, settlement For justice’s opinion opinion is the controlling report Meyer, professor filed Dr. Michael this case. Arizona, University emeritus at the con- cluded that the common lands in the settle- specifically, though More agree I with the systems provided ment material resources majority’s finding that the Beaubien docu- keep during such as “fuel to warm the cold imperfect accordingly ment is an one and months, fruits, vegeta- winter a varied diet of alongside must be considered extrinsic evi- bles, grains and meat.” The reference to dence in order to find the landowners have “meat” as one of the resources available from rights through prescriptive access ease- implicitly the common hunting lands refers to ment, by estoppel, an easement and an ease- place that took on the common lands. Dr. use, see prior maj. 947-948, ment from op. Meyer’s report expanded further on the uses I believe document cannot be read areas, stating of the common graz- limit the landowners’ access firewood, ing, view, my timber. put many [t]he common lands were uses imperfect Spanish Mexico, nature of the Beaubien document and Mexican in- New requires (of beyond us to look cluding fishing, hunting that document to turkeys, wild scope determine the full game), of the landowners’ threshing, deer and other recre- result, ation, herbs, access aAs I would not limit gathering of wild fruits rights; instead, the landowners’ access (especially piñones) based and nuts and the dis- demonstrating on the posal importantly they evidence the record of refuse but most watering the text of Beaubien document grazing, of stock the when used for were animals, cutting interpreting the wood. the intent of Beaubien and the regard settlers to access When explained Meyer’s report Dr. also that purpose authoring asked about Beaubien’s primary giving documents among the various document, replied the Dr. Stoller that his lands legal common use is the basis for purpose the use to record of the Pitic, founding the Plan which was docu- de people However, lands. the common she towns, Mexico but also ment for several New specifically pointed that one reading out the general applicability “specifically given for all beyond look document must the Spain.” of the towns the northern New actual text of in interpreting that document that provided This common lands document it includes: be set around each settlement “so that aside [and] can use them for recreation settlers pasture, lowlands, He set aside land for doing go with their cattle without dam- out vega lands, specifically saying that age.” only these for lands were to be used ani- necessary mals that for pur- were domestic Stoller, professor Dr. of anthro- Marianne .... poses designated the And he lands College, pology at the filed an ex- Colorado pastures, that could be used for for pert Although at trial. report and testified use the flocks —and he did not explicitly word report her fish- does mention ” understood, recreation, “flocks, given but this is to be ing, report her hunting, and con- economy nature people, of the of these clearly cludes that the Beaubien document agro-pastoral economy. guarantees the landowners’ of access Significantly, report to common lands. her added.) (Emphasis Dr. Stoller further ex- also that the Beaubien document concludes plained beyond to look need text of by looking at “is made more understandable properly interpret scope the document political and social cir- context contemplated: of the access creation, surrounding its cumstances document], Because any [the Beaubien like understanding the nature of the economic document, interpreted. has to be And one circumstances, ecology, topographical go beyond has it to understand the of the area.” characteristics geography. contains place That document report Although Dr. not ex- Stoller’s did names. know where One has to those hunting, fishing, pressly address and recre- place It refers names are. to different ation, testimony trial did. asked her When types of has to know lands. One what opinion express regarding her the use of are, they All those are. lands where those generations successive common lands necessary things kinds order to she landowners between interpret such a document.... lands replied, pertinent part, “[t]hey were spoken of in the document include hunting They used of wild animals. were for lands, agricultural they include moun- fishing_And used When recreation.” lands, lands, pasture tain include specific, asked there was visible evi- whether Lands, words, vega in other lands. lands, dence of such use of the common she provide different resources and that replied: purposes. are for different partway up were roads that went There necessity testimony This demonstrates tributary valleys.... There most of the looking beyond other evidence Beau- the mountain were trails crisscrossed fully bien in order to understand document lands_There signs people were hav- made of the different that settlers these uses ing purpose cut wood for the I described. lands. Such other evidence demonstrates animals, there were There were were there fishing, hunting, recreation were sheep grazing. and cattle There were wild put. uses to which the lands There animals to be seen. were fish streams. Thus, significant testimony Dr. Stoller’s testimony Stoller, First, Additionally, Dr. consistent with her for two reasons. her estab- interpretation report, beyond any must lishes that testified that one look by tribes, contemplated opining the Beaubien document back to the Plains that al- necessarily beyond specific go though practiced agriculture, must text these tribes of that and consider other evidence document hunting mainstay was the of their exis- social, historical, political, of the and econom- Large buffalo, ... tence. animals such as ic at the time the document circumstances sheep, antelope, mountain deer and elk authored; beyond was we must look the text provided only not food but also material of the Beaubien document determine the goods. They used the hides to make hous- scope of the access to which the land- covers, thread, ing sinew for rawhide for owners are entitled. ropes straps, and and tanned skins for clothing and shoes.

Second, testimony Dr. Stoller’s demon- recreation, fishing, hunting, strates that and canWe infer that this use of the for lands although expressly not mentioned hunting govern- continued after the Mexican document, important Beaubien were began approve grants ment land such as settlers, just grazing gathering as and fire- Sangre grants and Maxwell de Cristo Accordingly, wood and timber were. I be- community opposition based on to the Max- fishing, lieve that the evidence of settlers’ grant. grant, well The unlike Maxwell hunting, and recreation activities is evidence Sangre grant, de expressly Cristo did not “political and social circumstances sur- reserve to common lands for settlers rounding” the creation of the Beaubien docu- through a document similar the Beaubien ment, and such evidence increases our result, document. aAs some members “understanding the nature of the economic community grant feared that the Maxwell circumstances, ecology, topographical put would be to commercial use to the exclu- characteristics of the area.” historical, by sion of local use the settlers for hunting grazing. particular, In soon af- Further, expert report testimony ter Beaubien received grant, the Maxwell Montoya, professor of Dr. history Maria community member Father named Jose An- University and American culture at the lodged objection. tonio Martinez One of Michigan, supports also the trial court’s find- grounds objecting Martinez’s was that ings. majority Montoya’s The of Dr. schol- putting comprised lands the Maxwell arly writing research and relates to the (which grant put to similar use as the grant. grant, Maxwell land The Maxwell al- comprised Sangre lands that de Cristo though subject case, present grant) private into deprive hands would those closely Sangre is nonetheless related to the living livelihood, on the lands of their which grant subject de Cristo that is the of this hunting consisted of grazing as well as live- grant, case. directly The Maxwell located stock. Sangre grant, southeast of the de Cristo Montoya also owned Beaubien. Dr. hunting impor- conclusion that anwas history testified that the grants of the two aspect tant of the settlers’ activities on both closely related and that she Sangre studied the the Maxwell grants de Cristo supported Beaubien document in the findings context of her expert. of another grant. research of the report Maxwell A filed Ebright, Malcolm an histo- rian, attorney, president of the Center specifically, Montoya’s More Dr. report Mexico, for Land Grant Studies in New also noted that the activities of the settlers that opposed concluded that Martinez the Max- lived on Sangre both the Maxwell and the de grant well because the “included grants Cristo explained were similar. She hunting grazing communal lands” of set- grants, people that on both along “settled tlers. valleys river using similar land use settle- patterns community ment living Finally, testimony based from at least one of the plaza privately around a strips supports held landowners also the trial court’s (varas), land and common areas used for conclusion that recreation was included hunting, grazing, and wood collection.” contemplated by settlement added.) (Emphasis report Her traces the and the settlers when the document was up grants Lobato, Jr., of the land that makes both authored. Emilio who resides Ranch, firewood, grazing, trace ances- recreation as well as for can his near the Lobato, early and timber. one of the try back to Cristobal addition, great-grandmother his settlers. must, Looking, beyond as we the Beaubien original settler 1851. He described was an document, imperfect, which is to extrinsic family and made of the land the use he his scope evidence to determine the full child, stating that he would when he was rights access intended Beaubien reveals “hiking, riding, for horseback use the land rights fishing, hunting, that access for and just exploring.” He also testified that he and recognized. Gilpin recreation must be family go picnics on on the his would agreement important is one source of extrin- Although contemporary Ranch such land. Significantly, sic evidence. both Beau- the use of the Ranch lands recreational Gilpin bien and documents refer to settle- generations after Beaubien occurred several rights if scope rights ment as the of those original the document and the set- authored I was understood. Because believe that arrived, persisted that use tlers the fact such attempt spe- there was no to enumerate the generation further evi- generation is document, rights in cific settlement either rights that recreation were considered dence specifically that neither document mentions contemplated by rights and thus settlement fishing, hunting, dispos- and recreation is not the document. Beaubien scope rights itive as to the of the settlement to the first settlers. accorded sum, presented at trial and the evidence result, beyond As a extrinsic evidence through expert reports, as well as the testi- these documents must be considered. Such witness, lay supports mony of at least one social, extrinsic evidence includes the eco- findings fishing, the trial court’s of fact that nomic, political and historical character of important hunting, and recreation were an rights. my settlement As discussion of the region in part of the settlers’ activities reveals, sup- record evidence adduced at trial Taylor Ranch at time that includes ports findings fishing, the trial court’s the Beaubien document was authored hunting, contemplated and recreation were addition, expert testi- 1860s. In much of the document, by the Beaubien and thus the mony reports and also concluded that Gilpin agreement, although not mentioned Beaubien document must be construed individually According- in either document. economic, historical, social, considering the ly, sought by rights all six access the land- geographical in which it was and context properly recognized through owners are authored, strictly and not based on the actual easement, prescriptive by estop- an easement result, analysis applying the same text. As pel, prior and an easement from use. majority, fishing, I hunt- as the conclude that I would hold that the landowners Because ing, rights contemplated and recreation rights for all six settlement have access by the and must there- Beaubien document rights, unpersuaded by I the four reasons am rights fore be included in the access to which recogni- given by majority limiting for its the landowners are entitled. firewood, rights grazing, tion access maj. op. briefly I ad- timber. See Scope Rights II. The of Access each of these four reasons. dress First, majority My disagreement majority opin- with the asserts that the “docu- application strongest ment evidence we have of ion is with its easements expectations.” prescription, by estoppel, prior parties’ intentions and Id. and from rights agree I document is to limit the landowners’ access to “the While intentions, parties’ rights strong in the Beaubien docu- evidence of the memorialized Instead, Maj. op. applying ment.” at 956. that document cannot be considered as intentions, or even legal by pre- only expression frameworks of easements of those Instead, scription, by estoppel, prior strongest expression. because and from use to ambiguous, findings my imperfect the trial court’s of fact results the document enti- must be considered re- determination landowners are extrinsic evidence constructing Because the rights fishing, hunting, tled to those intentions. access findings regarding ing collecting trial of fact all six court’s firewood and timber rights supported by settlement the rec- are contained the Beaubien document ord, logically I find that it is consistent to fishing, hunting, the settlement determine that the landowners have estab- supported by recreation that are other evi- noted, lished for all six settlement access dence the record. As the Beaubien rights; treats to find otherwise the Beaubien imperfect, ambiguous document is an docu- proper, perfect, express grant. document as interpreted ment that must be and construed evidence; by referring to extrinsic the evi- Second, majority contends that strongly supports dence adduced at trial “likely in the document were the most findings trial court’s of fact that all six necessary.” agree Id. I grazing herds were considered settlement gathering and firewood and timber were nec- essary for the survival of the settlers. The I Accordingly, legal believe that the con- supports record such a conclusion. id. See cepts prescriptive easement, by of easement However, finding fishing hunting and use, estoppel, prior and easement from when necessary rights sup- settlement is also trial, applied to the evidence adduced at com- Further, ported by although the record. my pel conclusion that the are landowners arguably necessary recreation is not for sur- rights. entitled to all six settlement vival, ample there is evidence in the record important that recreation was considered an III. Conclusion I, right. part supra. settlement See agree majority’s IWhile with the articula- Third, majority gives weight to the fact case, controlling tion of the in law I that the Fort Massachusetts lease lists disagree application with its of that law to rights same as the Beaubien document to scope limit the of the landowners’ access support fishing, hunting its exclusion of rights. Because I conclude that the trial However, rights. recreation because the rec- findings court’s plaintiffs prede- “[t]he purpose ord reveals of Fort Massa- grazed cessors in title sheep, cattle and har- importantly chusetts was different from the timber, firewood, gathered fished, vested purpose settlement, Sangre de Cristo I hunted and recreated on the land of the give great do not weight to that in lease defendant from the 1800s to the date the discerning scope full of the landowners’ defendant, acquired by land was in 1960” rights. specifically, access More as ex- supported record, I would find plained by Stoller, Dr. purpose of Fort enjoy that the landowners access for “protect Massachusetts was to the settle- grazing, collecting timber, firewood and fish- policy ments ... and to further U.S. towards ing, hunting, and recreation on the rounding Indians up confining them Accordingly, Ranch. I part dissent from Although them to a reservation.” majority opinion join II.C. of the graze and collect timber and firewood majority opinion parts. as to all other necessary articulated in the lease were activi- maintaining fort, ties for army an the funda- dissenting. Justice KOURLIS mentally purposes different between Fort Sangre Massachusetts and the de Cristo set- Although great I sympathy have for the give tlements lead me to weight little to that present historic plight of the landowners regarding lease as evidence scope action, in this I support majority cannot access landowners’ First, opinion for two my reasons. it is view Finally, majority argues that the Beau- in attempted Charles Beaubien “only bien document is the community grant evidence we have make a for the benefit of attempted an express grant,” Luis, which is plazas the inhabitants of the of San San important Pablo, prescriptive for claim of a Ballejos. ease- and Los law effect at maj. op. ment. See agree at 956. While I recognize the time not grant did such a fact, with this as a statement of I not required do instead individual identification of provides believe that Hence, grantees. basis discrimi- the Beaubien Document nating graz- between the settlement legal had no effect.

Second, irrigable plot, and the “use ambiguity either the re- I find no maining grant in or in unallotted land on the com- description in the Document legal legal pastures, mon with other grantee specificity. The de- settlers for absence firewood, watering places, logs the Rito for build- scription referred to the lands of ing. [T]he lands of ... common lands were owned court found that the The trial Seco. community overlap with the current and could be sold.” Mal- do not not the Rito Seco Ebright, colm Land Grants ambiguity; rath- & Lawsuits Taylor Ranch. There is no (1994). er, apply Northern New Mexico 25 simply does not the Document Additionally, the Taylor Ranch. omission private grant Charles Beaubien received a ambiguity: it was grantee names was.not government upon from the conditioned set- attempt grant, a communal to create a clear Beaubien, turn, requirements. tlement legally recognized. was not which community created what I construe to be a prospective inhabitants of three ambiguous not Because the Document is Document, plazas. In the he stated that: support an im- any pertinent part, it cannot expressly forth. plication of set It has been decided that the lands of the easements, Prescriptive estop- easements Rito Seco remain uncultivated for the ben- prior community (gente) pel, use do not efit of the members and easements Luis, plazas the of San San and Los apply to these facts. Pablo Ballejos and for the other inhabitants of Accordingly, respectfully I dissent from plazas pasturing by for these cattle the majority opinion the and would instead af- etc_Accord- head, payment per of a fee opinion upholding appeals’ the court of firm ing corresponding rule all the inhab- court; trial the enjoyment itants will have of of benefits water, timber, pastures, firewood and al- Community I. Land Grants ways taking injure care that one does not indicate that some- The historical records another. seeking a land would address a one The Document is clear on its face that it region petition governor de- pertains to the Rito and intends to Seco qualifi- scribing land and the individual’s convey certain to the inhabitants of Ebright, ownership. for Malcolm cations plazas. enjoyed private the three in Land Grants & Lawsuits Northern New granted land: he communal on that (1994). petition ap- If the was Mexico 23 land, pursuant Spanish custom and tradi- (the proved governor, and the alcalde Document, the tion. Under the Beaubien mayor), governor would issue the then settlers a communal received grants grant. types Id. There were two Now, personal certain lands for their needs. grants government: private of land from the pre- their the landowners assert would own the land and to individuals who historically exercised in common decessors require- who could it after met sell with a of other inhabitants of the number land; establishing possession ment of recognized area. Those are not either community grants.1 Id. at 24. by statute or ease law. grants Large private were made Not II. Communal Grants Are effort to settle new areas. The individual In Recognized Our Law gain property full until would not title to the encouraged a number of he had sufficient A. Territorial Laws area, it, people to move into the settle year execut- Charles Beaubien establish communities. Document, under Colorado ed the Beaubien law, conveying any community grant, each would Territorial a document In a settler house, estate had to meet several of land for a an interest real receive an allotment land, notes, importance of land and communal and the one commentator the themes found in 1. As Spain and Mexico are Ebright, the land tenure and law in repeated Spanish Malcolm Land Grants custom. United States in the (1994). in the southwestern Lawsuits in Northern New Mexico & century: private nineteenth a tension between including require- requirements, adjudicate formal land claims how to establish a incorporate repository ments that it an accurate common preserving de- written specific scription property and the claims to lands. II names of See Colorado and People: Topical Its A grantees: History Narrative and (Leroy the Centennial State 372-73 R. the Christian and surnames of the ... 1948). ed., Hafen grantees descrip- ... ... an accurate premises, tion of or interest in the law, Under grantor the common premises conveyed, intended to be and merely of, warranted that he seised or party parties shall be of, subscribed or possessed purported title that he same, making duly proved and be or convey. The obvious deficiencies of such a acknowledged, before some officer system autho- led to the eventual enactment of re- proof acknowledgment rized to take the or cording statutory conveyanc- acts and other deeds, his, attorney her or their ing requirements every Cathy state. 2 fact. Krendl, Stricklin Colorado Methods of Prac- (4th ed.1998). § tice 62.1 Colo., Sess., Territorial Laws of 1st An Act Estate, Concerning Conveyances of Real regulation The transfer (1861). § requirement strictly Casner, supra, a matter of state law. identify grantees by document name is indic- Supreme noted, 18.27. As the Court has legislature’s ative of the territorial overt de- indisputable general “[a]s wel- community cision not to grants honor society fare of security is involved in the specific grantees. failed to mention the titles to real public estate and registry titles, of such it is obvious that the flatly The Beaubien Document fails to power legislate subjects as to such inheres requirement.2 meet that The Beaubien Doc- very in the government.” nature of Am. ument give does not the Christian and sur- Zeiss, 47, 60, Land v.Co. 219 U.S. 31 S.Ct. grantees, names of the only referring instead 200, (1911); 55 L.Ed. 82 see BFP also v. generally “community to the members” and 531, 544, Corp., Resolution Trust 511 U.S. specified “inhabitants” of villages. That 1757, (1994) (“It 114 S.Ct. 128 L.Ed.2d 556 legal deficiency omission is a that makes the beyond question that an essential state inter- conveyance document invalid aas under the est is at issue here: We have said that ‘the operative law. general society welfare of is involved in the Compliance property with real law is a security of the titles to real estate’ and the importance. matter of substantial See IV power security to ensure that in ‘inheres the (A. Property § American Law of 18.27 James ”) (altera- very government.’ nature of [state] 1952) ed., Casner [hereinafter Casner]. In original). tion in early years history, questions of our property ownership Private nothing of who owned what and who could sell what “ ‘bright without a line rule’ to determine the legitimate were pervasive concerns. As validity of a title and of potential its encum- citizenry, a clearly we sanctity believed in the predictability brances with and without the private of property ownership rights and the litigation.” need for H. Michael Rubin & E. However, with struggled associated it. we Carter, Keith Notice Mortgage of Seizure in with clarify how to against those as Foreclosures and Tax Proceedings: Sale them, those dispute who would and how to Mennonite, Ramifications of 48 La. L.Rev. property secure title to such that it would 535, (1988). 592 become subsequent marketable to a purchas- fact, er. early history, Colorado’s legislature one adopted thorough Our statu- of the issues to which govern- tory the territorial regime intended to ensure titles to real ment fell question heir was the property of how to are secure and marketable. See 1856, 2. The trial court found that requirements conveying before he of the Document, executed the Beaubien Charles profits Beau- prendre, satisfy á and could them when bien entered into a lease with United States 821, Taylor, he chose. v. Lobato 13 P.3d 830 government statutory requirements, that met all (Colo.App.2000). thereby demonstrating that Beaubien was aware

965 (2001). laws, it, 38-35-204, therefore, comport 10 with those §§ C.R.S. 38-34-101 decades, court, consistently validity has has no as to the landowners here.3 This over comply conveyances to with such required grant The Document intended to create a of the document’s creation to laws at the time community: members of such a goal security of give to the full effect applicable was in contravention of the See, marketability titles. of real was, therefore, statutes invalid. Mavromatis, Lakewood v. e.g., City of (Colo.1991) that, 90, 96, (concluding P.2d B. Law Case although city right-of- recorded a filed and recognize as Just our statutes do not com- book, way in because the recorda- the road too, grants, munal so case law reaches the comply specific provi- tion did not result. same New Mexico has been loca- statute, recording the stat- sions the 1888 litigation concerning tion of most of the com- petition, ute at the time of the road effect grants munal in the United States. Over the give it did constructive notice to subse- not litigation, course of that courts those have therefore, quent purchasers; because the grants, recognize declined to communal petition road was a transfer of interest have further determined that must look comply property, real it had to with all property, record title to the and not act); specifications applicable recording inquire it into the traditions or behind histo- Alexander, P. Hallett 50 Colo. v. ' ry might support converting those (“The (1911) purpose evident grants grants: into individual is, provide an recording statute effectual remedy accruing against the loss to subse- princi- [T]he courts established as a basic quent purchasers arising ple looking title, of real estate one of behind thus convey- of secret or concealed precluding any existence examination of laws and subsequent ances unknown to the prevailing thereof customs at the time of annex- remedy purchaser. The is made effectual papers ation If title the United States. every to be requiring deed recorded before right use, prove available against any purchas- can be effect as such belonging treated the land as tribunals ers.”). community simple. They fee also recognized partition purchaser That would know what he is among orig- common the heirs of lands' buying by examining the record to a title disregard grantees any inal ... in total parcel property, and that an owner of real right of in descendants of usufruct families prop could that such record title be assured enjoyed the which had the use of common erly legitimate every right that evidences generations. lands for impinges simple ownership, are on his fee import. Lake City matters of no small Clark, in Mexico: Ira G. Water New A His- of wood, recording (noting 817 P.2d at 94 that tory Management Its of and Use 36-37 important purpose permit acts of serve the (1987). Another commentator that: observed ting rely a the purchaser to on condition of property a real Because it was considered creating as an appears title of record question, the New it was left to Mexico title). history of accessible right to of usufruct courts translate the terms, is, Therefore, to very simply, the Doc- into common law define ument, every property grants of land other real trans- interest the residents like fer, opposed have in lands as to held to the standards of the law their common must be general, In patentees. in effect the time it was executed in order interest of the at protect certainty marketability Supreme has decid- New Mexico Court grounds very legal on that the property interests. The Document does not ed narrow (citing Newby, identify grant- at re Estate 146 only 3. Not the Document not P.3d 831 does ees, 296, 622, 299, (1961) the words "and heirs and but it also omits P.2d 623-24 Colo. 361 noted, assigns.” appeals law, that, As the court of (stating without use of at common convey- language absence of that ing in document assigns” his heirs and words of limitation "and an interest in real meant estate)). only conveyance passed a life Lobato, conveyance passed only a life estate. 13 966 complete

patentees contrary by many have title to the com- on the was claimed oth- result, being The claim mon lands. As ers. common with and general public similar to that of community grant land residents have been area, and, cases, appellants damaged extinguished. certainly some could acquire private easement unto them- Rock, Change in Tenure New Michael J. selves. Supreme Have Mexico Court Decisions Ef Martinez, 295 P.2d Upon the Common Lands Commu fected Mexico, nity Land Grants in New 13 Soc. Similarly, Taylor, v. Sanchez 377 F.2d (1976). 55, 56 Sci. J. (10th Cir.1967), 733 the Tenth Circuit de- give legal significance community clined to example, For the Tierra Amarilla Grant posses- even in the context adverse community grant patented awas that was sion. Id. at 738-39. That court addressed individual, Francisco Martinez. The New acquisition prescriptive prof- of the same Supreme ultimately Mexico Court denied the its on the Ranch that the landowners right upon of usufruct the common lands concluding usage here claim. In in com- portion grant, that, holding if the land mon the inhabitants of the area had not grant “private grant, [Congres- were a prescriptive profits, vested them with merely act sional] of confirmation carried public court first noted that “the cannot ac- treaty obligation; out the if it were a com- quire by custom prescription or common munity grant, the common lands were mere- profits prendre á in another’s land.” Id. at ly government domain and the confirmation 738; Tiffany, see also 3 Herbert Thorndike grantee, constituted a de novo to the (3d § Property Real Supp. 842 ed. &1939 Francisco Martinez. Under either view the 2001) (noting that prescrip- “there can be no vested, by absolute title was the act of con- right profit public”); tive in the id. grantee.” firmation the said H.N.D. (“[A] right [by public] profits to take Suazo, 547, Land Co. v. 44 N.M. 105 P.2d land, from the as distinct from the mere (1940). 744, 749 land, right to use the cannot be established In a successor case in New Mexico con- by custom, since the effect of such a custom cerning grant, plaintiffs the same land profits.”). would be to exhaust the legitimize rights asked the court to based Finally, dealing the court observed that in upon language conveyed right “the profits origi- with similar claims for on land pasture livestock, and water to cut wood and nating grant, from a Mexican land the New lands, upon to use the roads all the suitable Supreme Mexico Court held: purposes, for such of the entire Tierra Amar- appellants “The claim illa Land Grant.” Mundy, Martinez v. 87, acquired by grant prescription, have (1956), N.M. 295 P.2d overruled wood, livestock, pastur- to cut water on grounds by other Corp. Evans Fin. v. age Strasser, and the use of roads was not shown 99 N.M. 664 P.2d (1983). have been appellants exclusive to the declined, but citing The court H.N.D. contrary by on the many was claimed oth- proposition Land Co. for original the being ers. The claim common with and conveyed all to Martinez and general similar to that public in this none to the region. settlers of the The court area, appellants certainly the could not question went on to examine the of whether acquire private plaintiffs easement unto them- acquired rights by had adverse selves. All circumstances must be possession consid- they and concluded that had not determining ered in the acts that would prescriptive right because “a grow cannot out prescriptive right lead to a strictly use, of a and we do not permissive no matter how present find such acts use”; such force as to long the and because prescription.” refer to a appellants claim [t]he that acquired Sanchez, have by grant prescription, Martinez, (quoting 377 F.2d at 739 wood, livestock, 214). pastur- cut water Again 295 P.2d at applying Colorado age law, and the use of roads not shown the Tenth Circuit held that the use of appellants have been exclusive to pasturage, land for products, but natural

967 Initially, dispute the ordinarily constitute adverse I conclusion not does timber (citing Town Smith v. court to extrinsic possession. Id. should look evidence at all.4 367, 1034, Fowler, 359, However, P.2d 333 considering 138 Colo. even that extrinsic evi- (“The (1959) un- pasturage of cattle on dence, 1038 complete I support find in the record regarded as hostile land cannot be fenced for the trial court’s conclusions that the Doc- land.”)). to the owner of such and adverse First, unambiguous. ument is the Beaubien ambiguous in legal Document is not its de- Tenth concluded that land- The Circuit scription pertains Taylor as it Ranch.- were tantamount to an asser- owners’ claims fact, In the Document describes the equitable ownership unlimited tion of as “the lands of the Rito Seco.” The lands of Taylor’s fee-simple ti- thus inconsistent Sanchez, Taylor the Rito do not include Seco Ranch. F.2d at 739. tle. majority Although the asserts that Docu- short, legal has cho- In American tradition uses, specifically, grazing, ment lists summer private property rights, some- sen to honor wood, timber, only that are available in rights. times to the detriment of communal Taylor grant, maj. Ranch area of the see recognize that would I have found no court op. at the trial court a different made here the easements that the landowners finding vegeta- factual to the effect that the property rights depend urge. Because real pattern Taylor tion of the current Ranch land law, clarity upon predictability and is identical to that on the land north and justice here in contraven- attempting to do Further, adjacent thereto. witness for the precedent, injustice else- tion of our we risk landowners, architect, planner, an land where. expert map generating testimony whose credited, vegetation on the trial court stated The Beaubien Document Cannot III. through- that these resources were available Rights Support Implied Sangre out the mountainous areas of the de Ambiguity A. Ranch, grant, solely Taylor Cristo on occupies only portion which a small majority dispute does not grant.5 The trial court considered evidence appeals correctly applied applica- court of bearing on the location of the landowners’ laws the Beaubien Document and ble timber, firewood, grazing use of agrees that the document cannot act as an clearly concluded that: “The evidence estab- However, express grant it con- Document, [lands lished that none of these locations coupled with ex- cludes evidence, the Rito are situate on the land owned convey- Seco] supports implied trinsic Sanchez, profits. Maj. op. disagree. I the defendant.” also ance of 946. See Lazy Dog Telluray Corp., Taylor Q. Ranch] Ranch Ranch area north of the [The v. you’ve (Colo.1998), vegetated in almost the same manner as P.2d we held that ranch, depicted vegetation on the isn't generally Colorado follows the “four corners" it? deeds, principle construing when but condition- Yes, general patterns A. would tend same ally allows extrinsic evidence in some circum- contiguous. to be ambig- stances to determine whether the deed is " north; carry Q. And on farther is that fair to stated, determining Specifically, 'In uous. we say? may ambiguous, whether a deed is a trial court A. Yes. conditionally evidence on that admit extrinsic So, say Q. it be that the line— would fair issue, ultimately but determined that the if it is dividing that the line the north side of conditionally unambiguous, ad- document from the lands to the north of ” ranch (quoting must be Id. mitted evidence stricken.’ indistinguishable? line are Co., O’Brien v. Vill. Land 794 P.2d 249 2n. (Colo.1990)). Well, basically A. it would be a continuation vegetation. of the Specifically, testified that there are So, witness put Okay. Q. the lands one could to use grant large portions are timbered that not boundary Taylor of the north north trial, Taylor on Ranch. Later in the you put located in that could ranch the same fashion witness, itself; ranch, being by Taylor the fense, while examined the de- that fair to use to the is regarding grant say? testified the area in the Taylor located to the north of the Ranch: A. Yes. (Third) (stating Property: F.2d that the Beaubien Docu- ment at 737 Servitudes 1.2(2) (2000) § mention land on ment made no located [hereinafter Restatement] de- (con- Lobato, Taylor Ranch);6 13 P.3d at profit prendre á fines as “an easement that cluding undisputed specific that timber, that “it is right confers the enter and remove minerals, oil, referenced in the document are not gas, game, locations or other substances majority property.”). on The ac- defendants’ possession from in land of another. It is knowledges finding that the trial court’s ‘profit’ referred to as a in this Restatement.” only specified in the Doc- locations distinguishes The Restatement between Taylor ument are not located on the Ranch. profits stating “[p]rofits easements and á Hence, Maj. op. the Document at 947. is prendre are like affirmative easements in ambiguous description. legal in its they that create to enter and use land possession However, of another. also Similarly, ambiguity there is no in the right something create the to remove failure Beaubien to mention individual 1.2(2) Restatement, § supra, the land.” cmt. above, grantees’ names. As I discuss he (a). clarifies, It further are ease- a communal intended to create for the “Profits plus. (rights ments Profits are easements plazas. benefit of the inhabitants of the three possession enter and use land of an- Accordingly, I viewing find no basis for other) plus something to remove incomplete Document as an or flawed con- Restatement, from the supra, land.” veyance give implied can rise to 1.2(2) (e) (emphasis original). cmt. IV. Easements Thus, acknowledges the Restatement event, any legal the three theories ad- profits prendre provide greater á by majority vanced for the creation of an profit and, conversely interest to the holder supported by easement are not the facts. stated, greater detriment to the servient Thompson, estate. See 8 David A. Thomp- A. Easements Versus Profits Á Prendre 65.03(a) (1994) (not- Property § son on Real ing, “Despite profits the fact that begin I now proposition with the that I view the governed considered profits most writers be prendre distinction between á easements, the same set of Although rules as ... prepar- easements as material. ing functionally [i]t is also clear that Property, the Restatement of the two the Ameri- (ALI) distinctly initially can Law Institute areas deal with referred different kinds of “easements,” Thompson that, profits both easements and as transactions.” also observes (Third) position, the ALI in the Property reversed its Restatement once intro- (Tentative again finding 1, 1989), the distinction duction between ease- Draft No. profits significant. highlighted ments and ALI See Richard profit “[t]he term has Powell, R. Powell Property on Real 34.01[2] been resurrected from the oblivion into which (2002). noted, majority consigned by As it Restate- the 1944 Restatement 6. The purchasers. court in reasoned that Apparently the Beau- Sanchez the conflict arose bien Document must be limited to the it lands when the sale to ended the free use of references, specifically which lands do not in- wood, pasture, the lands in the area for property. only clude the Ranch other caused, hardship recreational uses. The how- option apply grant, would be to it to the entire ever, legal right. does not establish a which would be inconsistent with Beaubien’s in- By agreement the terms of the between Gil- Sanchez, tent. 377 F.2d at 738. The court stat- estate, pin and the executors of Beaubien’s ed: Gilpin carry undertook to out certain commit- agree We with the trial court to construe ments which Beaubien had made to settlers the instrument as a dedication of the lands to during Essentially, his lifetime. a com- appellants the extent claimed would be convey upon mitment to title to certain settlers contemplated inconsistent with the sale of the receipt agreed payments. There no lan- time, remaining lands unsold at the and to guage agreement in the which could be con- apply only [Taylor Ranch] would re- indicating strued as that either Beaubien or quire rewriting of the instrument. None of settlers, Gilpin defendants, appel- intended the dedication which including the ever, these have now, any privileges and do not lants seek to establish. assert occupancy by the use of lands after sale and Id.

969 (1) a use that is adverse to the owner of used for a device that is it describes because against the interest in land the land or from the other ser- quite different purpose a claimed, or which the servitude devices, occasionally calls for vitude (2) pursuant a use that is made to the considerations, if dif- not different somewhat imperfectly an intended but creat- terms of rules.”). ferent servitude, enjoyment or the of the bene- ed profits pren- á Similarly, we have held imperfectly fit an but created intended than easements greater a interest involve dre servitude. expressly granted. be must therefore (a) Restatement, § supra, 2.16 cmt. an- Dawson, Fling, Inc. v. 155 Colo.

Alexander prescription operates in two nounces (1964) 599, (holding 599, 603-04, 396 P.2d separate The first situa- factual situations. expressly profit prendre á must be that a law and tion is a matter of settled occurs implied from an ease- and cannot be granted when the use of the land is without ment). law, Hence, because under Colorado § also id. 2.17 consent of owner. See (c) (“In situation, to the prendre á are more onerous the most common profits cmt. easement,7 prescriptive im- made without the consent an use is estate than burdened owner.”). Restatement, su- of the servient is in- governing easements portation of laws (f) § to pra, 2.16 cmt. further states that be appropriate. adverse a use must create a cause of action property for interference with an interest by Prescription B. Easements nuisance, trespass, or interference with a like definition, To fulfill the servitude benefit. law, by pre- an easement Under Colorado authority and the use must be made without use, requires showing a of hostile scription permission property owner. without The Re- permission of the owner. without Fowler, Id.; see also Smith v. Town by pre- suggests that easements statement (1959) P.2d Colo. permissive, a scription can also arise out of (“ ‘An claim must be hostile at its adverse This court imperfectly created servitude. because, original entry inception, if the is not adopted previously that section has never adverse, it not openly hostile or does become do not war- and these facts the Restatement so, begin run does not to as the statute step. rant such a against -rightful owner until the adverse for, holding the idea of or claimant disavows Restatement, swpra, § 2.16 allows a another, actually up sets in subservience to to arise out of a use prescriptive easement clear, right in himself some an exclusive permissive, the terms of began as under ”). made positive unequivocal act.’ Uses speci- imperfect conveyance. The section an are not adverse. Re- pursuant to licenses fies: (f). statement, Similarly, supra, 2.16 cmt. prescriptive use of land that meets the created pursuant A to servitudes uses made by necessity, by implication, 2.17 or requirements expressly, set forth in creates not adverse.8 prescriptive A use is either servitude. requires that the user act ... point, I also observe Subordination As a more minor would

7. authorization, graze profit right probably express implied, á to cattle is or from that the prendre coupled with easement, landowner, for it is the a claim that is deriva- or under continuing particular right to make some title.... tive the landowner’s something property as well as to remove use of gives permission property owner When from it. implies property, that a license was the law suggest facts oth- intended. Unless additional erwise, Restatement, (f) (g) supra, § 2.16 cmts. parties intended it is assumed provide: further property owner retain property Uses made in subordination any Permissive license at time. revoke the adverse, property even if the owner are not prescriptive give rise uses do given permission, and the use is has not owner The reason is that not otherwise authorized. initially permissive can become A use that is put on notice of the owner is not implied only by express revocation or adverse against steps protect the estab- need take repudiation the license. rights.... prescriptive lishment of 970 (a). scenario, factual suggests

As to the second the Re- cmt. The Comment (1944) Property: statement of Servitudes did parties makes sense to assume that when the creating possibility pres- contain the of not begin joint-use arrangement, they intend to criptive right through imper- an intended but mutual create servitudes rather than licens- fectly earlier created servitude. The Re- (i). § es. Id. 2.16 cmt. provided: An statement easement is created addressing whether use that is made land, by period pre- for the of such use of pursuant of an terms intended but scription, privileged if as would be an ease- imperfectly created in a servitude results (a) existed, adverse, provided ment the use is easement, prescriptive only Michigan (b) period prescription, for the of contin- Appeals adopted of Court has the second uninterrupted. uous and Restatement of scenario set forth the Restatement. (1944). Property: § Servitudes It fur- Crier, Prose, Plymouth Cmty. Canton Inc. v. specified: ther A use of land is adverse to Mich.App. 619 N.W.2d the owner of an interest in land which is or (2000) (finding parties that where the execut- (a) may possessory become when it is express fully ed an easement that did not (b) him, wrong- made to subordination parties’ permit articulate the intent to load- ful, may wrongful, or be made him toas activities, ing and those activities occurred (c) him, § open Id. notorious. 458. express under the mistaken belief that subject ALI The did not return to the them, permitted easement the use created a servitudes until the creation of the Restate- easement). prescriptive fvyd. Restatement, ment supra, Third. The (Third) Property Restatement Hence, introduction the Restatement section al- would (Tentative 1993) explains Draft No. prescriptive low for claims of use to be made portion creation of second in circumstances in which a document con- precipitated by Restatement was a desire to veyed rights, imperfectly, certain did but so provide satisfactory theory a more to resolve possessor and the wishes to validate those involving party cases common drives and through periods even when he was possession, walls than adverse because under making permission. use with The Restate- possession, asserting adverse the time for application ment would itself limit legal possession claims to recover the of land primarily section to common or wall drive- would be limited. way cases.9 proposes The Restatement that uses in- The section is not consistent with Colorado volving driveways, boundary fences, common First, law. it is not consistent with the stat- dams, party ineptly walls suited to utes, provide possession which that adverse because, requirement adversity only if truly occurs the use claimed is ad- situations, permissive these the initial use is verse.10 equity demands the continued to Second, therefore, facility; use it is not the common the Re- consistent with our case proposes dispense consistently statement with law. This court the re- has held that quirement adversity adopt requirement adversity applies but otherwise same possession acquiring adverse for those profit rights by pre- law circum- easement and Restatement, § stances. swpra, scription See 2.16 acquisition as to the of title obvious, ficiary 9. The comment to Restatement assumes present these cases do not involving driveways, party in cases not common factual difficulties. The second scenario contem- walls, facilities, joint-use parties or other will plates involving prescriptive cases a claim of affirmatively express respective their intent to grants agreements based on oral to create a Restatement, supra, create a servitude. See It servitude. Id. directs that such claims should (h) (i). § contemplates ap- 2.16 cmts. & It two only cautiously accepted "they be because direct- plicable prescription may situations in which ly purpose thwart the of the Statute of Frauds non-common-facility cure a defect in title in con- parties provide force written evidence of the pursuant express texts. The first involves uses servitudes that were not in full the Statute of Frauds. existence and terms interests in lands.” compliance Id. (h). § Id. 2.16 cmt. comment notes that since the intent to create 38-41-103, (2001) writing servitude is clear from the and the bene- 10 C.R.S. See, any Thompson of interest. e.g., Town Silver his successors possession. adverse of Hudson, 394, 398, defines the elements for an easement 380 v. 151 Colo. Plume (1963) 59, (holding estoppel that to establish a as: P.2d 61 “ must ‘possession prescriptive easement (1) acts, conduct, language or silence oumer, hostile, only against the not true be representation amounting to a or conceal- An adverse the world as well. against but (2) facts; party ment of material to be inception, be- must be hostile its claim estopped either knows the facts or the openly cause, original entry not if the is require the facts to be im- circumstances so, adverse, it does not become hostile or (3) puted party; to that the truth about against a begin to run as does the statute party claim- facts must be unknown to the until adverse claimant rightful oumer estoppel they ing benefit of the at the time ”) holding by permission.’ ... a disavows (4) upon; were acted the conduct must Plume); Quer Rivera v. (emphasis in Silver expectation occur with the intention or (1960); 146, 149, 40, ee, 42 358 P.2d 145 Colo. upon, it will be acted or under the circum- acquiring a (holding prerequisites that the probable that it is both natural and stances continuous, are the prescriptive easement (5) upon; that it will be acted the conduct way right of the of open, and adverse use upon party, be the other must relied Krendl, statutory period); supra, and, relying, party the other be thus must 65.5(3.1)(“In Colorado, prescrip the law of § (6) it; upon party act led to other the doctrine an extension of tion has become upon must in fact act the conduct and requiring all the ele possession, of adverse change position for the worse. thereof.”). Thus, adoption of the ments 60.03(b)(3). Thompson, supra, 7 test, which prong of Restatement second law, by estop- In Colorado case easement right prescriptive the context can create a in' parol agree a pel can sometimes arise out of contrary use is permissive, of consensual convey right ment intends certain law, engraft it. I would decline to our license; however, be as a mere there must doctrine, the adopts if the court Even part party against conduct on the support applica- its this case do not facts of being asserted that whom the easement not an Beaubien Document is tion here. The representation amounts to a false or conceal clearly imperfectly created It is servitude. Pagel Reyman, ment of material facts. v. within a communal to lands created (holding (Colo.App.1981) 628 P.2d majority’s application particular The area. plaintiffs failed to establish the ele merely curing a prong of second is not by estoppel in a an easement case ments for express agreement, as defect in an small park) involving easement for a trailer a road contemplated by the are Restatement. We Fruita, 192 Colo. (citing Aubert v. Town of quite dealing that was clear with document (1977)).11 372, 374-75, P.2d however, it application; its intent and for the majority upon relies two cases circum- at law. In such not enforceable in this the facts before us proposition that stances, prong of the Restate- the second by estoppel. Both support an easement case ment, support applied, if would not even eases, ac- and both deal with the are water rights. prescriptive of creation rights by parol agreement. quisition ditch by Estoppel mind, Easements my C. inapposite, in because Both are underlying policy predicated on the apply principles of I also decline to would expressed as follows: that is by estoppel, because there is no easement generally prevailing state It is indeed showing misrepresentation or con- here of upon irri- policy dependent in those states of material facts cealment (1957) (defendants claimed that the ti- involving the assertion of 1011-12 11. Aubert is a case estopped property to find from water The court declined senior tled owners to claiming estopped the defendant was had contesting because the owners their estoppel rights, relying principles for the improvements accepted on the the benefit of ownership property Jacobs v. upon a real case. property). 550, 555-56, Perry, 313 P.2d 135 Colo. gation agriculture, implied largely property for successful when a owner has one used economy both in the interest of and to part single piece property of a for the prevent any unnecessary waste of land in part benefit of another ditches, that, construction conveys property. then divides and purpose one ditch can answer the where circumstances, possessor those the new more, to use the same ditch is previously portion “the benefited of the land granted to than the owners. others may possess previ- also an easement over the Co., ously part property.” Hoehne v. Flood burdened Ditch Co. John Ditch of the 7 (1920). 531, 540-41, 108, 60.03(b)(4). P. Thompson, supra, § 68 Colo. 191 112 cases, Graybill In both Hoehne and v. Cor Thompson suggests that the elements of lett, 551, 553, 730, (1916), 60 154 P. 731 Colo. “(1) implied prior an easement from use are: permitted the court of a establishment ownership by conveyance common followed by right-of-way estoppel ditch without the (2) separating ownership; the unified before necessary misrepresentation element of of a severance, part the common owner used fact, only in material but the context of wa property part, for the benefit of the other rights. contrary, Bijou Irriga ter To the in obvious, apparent, a use that was continuous Club, Empire 175, tion District v. P.2d 804 (3) apparent; and the claimed easement (Colo. 1991), permit 185-86 we declined to necessary enjoyment to beneficial petitioners asserting Irrigation from parcel previously of the benefitted.” 7 estopped objecting District was to use 60.03(b)(4)(i). Thompson, supra, The un- purposes of a reservoir for recreational be- that, derlying premise is because the re- cause, although knowledge the District had property necessary enjoyment tained to facts, findings regard- of the there were no conveyed property by as shown histor- ing delay unreasonable the assertion grantor ical use—-the have must intended to point the District of its Also on convey grant. the easement with the Irrigation Holbrook District v. Arkansas Co., Valley Sugar Irrigated Beet & 42 Land Fairlamb, 481, In Wagner v. 151 Colo. (D.Colo.1929), F.2d 541 plain- which the (1963), plaintiff P.2d 165 constructed sought rights by tiffs certain operation water property road across the defendant’s estoppel. The court eq- there noted that pack wagon followed a mule or trial that was estoppel requires uitable overt acts and dec- existence when the was under party charged, designed larations of the to ownership. common Id. at at 379 P.2d position induce another to alter his to his recognized 167. court This that an easement proven by detriment all of which must be (which may express appears be an easement convincing clear and evidence. Id. at 548. land) in a deed or contract for the sale of showing There has been no in this case (which implied an easement arises out of the Gilpin misrepresen- Beaubien or either implied existence certain facts from the ted material facts or intended the landowners transaction). Id. at 379 P.2d at 167. The rely upon parol agree- to to their detriment implied court gen- noted that easements have Indeed, my knowledge, only ment. erally upon not been looked with favor context in which such a been doctrine has adopted by courts. Id. The elements applied acquisition of easements has prove implied court to easement were: rights, involved ditches and ditch an area in (1) firmly which are so Unity entrenched as to subsequent separation of ti- (2) be tle; included within the Colorado Constitu- obvious benefit to the dominant tion.12 and burden to the servient tenement exist- (3) ing conveyance; at the time of the

D. Easements Prior Use premises by the common owner in use, by prior Easements long enough sometimes re- their altered condition before ferred necessity, conveyance to as change easements of can be to show that XVI, 12. corporations way Article convey section 7 of the Colorado Consti- for water. right persons tution establishes the of all (4) Ranch. Under those circum- permanent; to be was intended stances, by necessity necessity the easement. an easement cannot exist. 484-85, Noting 379 P.2d Id. at present support be four elements must

all easement, V. Conclusion the court in of an the creation easement, finding rejected an Wagner I do not believe that the here landowners rath “a terminated intermittent” the use was have established their to use the also Lee v. Sch. permanent than use. See er cannot, They Ranch lands as claim. R-1, 326, 332, 435 P.2d Dist. No. 164 Colo. view, my rely upon the Beaubien Document (1967)(easement by necessity found comply because did with the laws consistent, adequate per proof because by failing time effect at the of its execution severance). prior manent use of road identify specific grantees. The document Son, Inc., Bromley v. Lambert & ambiguous, was not and therefore cannot (Colo.App.1988),at the time of the P.2d 595 Further, support rights by implication. none plaintiffs parcel, had no severance of implication of an of the theories easement except by right way their land access to apply to these facts. property. Id. at 596. over the defendant’s Accordingly, I would affirm the court of public city constructed a street later appeals respectfully thus dissent adjoining plaintiffs’ property. Id. The majority opinion. court stated: recognizes implied easements Colorado I am authorized to state that RICE Justice showing A pre-existing use. arise joins in dissent. necessity required is to establish by pre-existing use. Proof of easement

necessity required as of the time of the property sep- original of the into

severance estates, an indication of

arate because original grantor

the intent im-

grantee permanent that a servitude be

posed in favor of the on the servient estate estate. dominant MATA-MEDINA, Petitioner, Antonio (citations omitted); Proper also v. Id. see v. (not- Greager, (Colo.App.1992) P.2d necessity ing required is the necessi- The PEOPLE of the State of severance, ty for the at the time of easement Colorado, Respondent. hearing). court the time No. 01SC702. by prior Accordingly, imply an easement use, here would have had to the landowners Colorado, Supreme Court of property being that the mountain show En Banc. convey- used Beaubien at the time June necessary adjunct strips ance of vara as a support viability of the vara in order to Rehearing Modified on Denial of As strips. Only by means could the land- 30, 2003. June owners demonstrate that Beaubien necessari- ly intended to to them such suggest that

The evidence does not property making use of the nor that

was then necessary to the communi- Ranch was Rather,

ty. the evidence demonstrates property at time of

no one lived on the timber, grants, grazing, and that the than occurred on other

firewood use

Case Details

Case Name: Lobato v. Taylor

Court Name: Supreme Court of Colorado

Date Published: Jun 24, 2002

Citation: 71 P.3d 938

Docket Number: 00SC527

Court Abbreviation: Colo.