Case Information
*1 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _____________
3 Filing Date: March 2, 2015
4 NO. 32,338
5 JANEKA MAYER,
6 Plaintiff-Appellee,
7 v.
8 SUSAN SMITH,
9 Defendant,
10 and MARILYN JONES, GARY JONES, ROBERT LONG, and STEPHANIE LONG, Intervenors/Defendants-Appellants. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Clay Campbell, District Judge
16 Alex Chisholm
17 Albuquerque, NM
18 for Appellee
19 Ronald T. Taylor
20 Albuquerque, NM
21 for Appellants
OPINION 2
KENNEDY, Judge. {1} Janeka Mayer (Plaintiff) owns property which is burdened by an easement. She
4 erected a fence using trees within the easement as posts and thus encroached onto the 5 easement. Gary and Marilyn Jones (Jones) and Robert and Stephanie Long (Long) 6 (collectively, Intervenors), owners of the dominant estate, intervened in a suit 7 Plaintiff had filed against another neighbor, but involving the same easement. Jones 8 and Long sought to enforce the easement and force removal of Plaintiff’s fence. The 9 district court ruled against Intervenors, restricting the scope and ownership of the 10 easement and leaving the fence undisturbed. We reverse and remand for further 11 proceedings. I. BACKGROUND {2} The physical relationships between properties are depicted in the appended
14 illustration, which appears in the record as Intervenors’ Exhibit F, provided to aid in 15 understanding the facts presented herein. {3} Jones bought his property, Tract 5B and 5C, in 1977. In 1979, he purchased
17 an easement from Anne Clarke and Peggy Clarke (Clarke). Carlos Arguello bought 18 Tract 5A, immediately north of Tract 5B and 5C from Clarke. In 2002, Plaintiff 19 purchased land, Tract 5-1B, from Arguello. It is undisputed that land was subject to *3 1 the easement Jones purchased from Clarke in 1979. The easement served Tracts 5B 2 and 5C, which Jones has owned since 1972. In addition to a detailed description of 3 the servient estate, the easement at issue provides the following language:
WHEREAS, the family of . . . Jones [seeks] a non[-]exclusive [e]asement across the lands of the “grantors” for the personal use of theirselves, their families, their heirs, and their assigns, for ingress and egress over and across “grantors” property for household purposes[.] NOW, THEREFORE, for valuable consideration . . . , the undersigned hereby grant to . . . Jones, and to their families, heirs, and assigns, the non[-]exclusive right of ingress and egress, for household and non[-]commercial purposes, over and across a [t]wenty[-]foot[- ]wide portion of the afore described property inside and along the [n]orthernmost and [w]esternmost boundaries thereof.
14 Jones cleared trees to create the path that is in the easement now and used it to access 15 a portion of his land that was inaccessible by vehicle via any other existing roads due 16 to a “boulder strewn and tree covered, eroded, and very steep” ridge that divided his 17 property. Jones used the land “at least [fifty] times a year . . . for landscaping, . . . 18 wood cutting, pinon picking, [and] picnicking[,]” and his sons learned how to drive 19 there. The easement was occasionally used to bring in a wood chipper to dispose of 20 unwanted brush piles, and Jones plowed the easement to remove snow. In 2009, 21 Jones sold a portion of his land, specifically Tract 5C, which was accessible using 22 other existing roadways, to Long. The tracts owned by Jones and Long together make 23 up the dominant estate as Jones owned it when the easement was purchased in 1979. *4 1 After the sale to Long of Tract 5C, the easement on Plaintiff’s property was the only 2 vehicular access to Tract 5B, which Jones still owns. {4} This lawsuit began when Plaintiff brought suit against another neighbor to
4 prevent the cutting and removal of trees within the easement. Intervenors intervened 5 at the district court’s invitation in order to enforce their rights against Plaintiff to 6 allow them full use of the twenty-foot easement over the servient estate. As the trees 7 grew in the easement, Plaintiff used her fence to include them in her property, 8 resulting in a nine- to eleven-foot area becoming inaccessible to Intervenors. {5} In the district court, Intervenors presented their case. Plaintiff moved for [1]
10 directed verdict. The district court stated: “I’m granting in part and denying in part
11 the motion for [d]irected [v]erdict.” In its written judgment, the district court stated
12 that “[t]he dominant estate belongs to the property of . . . Long” and “does not, as a
13 matter of law, belong to both Intervenors.” The district court held that “[t]he intended
14 use of the easement was for household purposes, which was historically limited to
15 occasional use as a hiking . . . [and] vehicle [trail].” Next, the district court limited
16 Intervenors’ rights to the easement by stating that they had “no authority to expand
*5
1 the historic use, boundaries[,] or existing cleared portion of the easement.” The
2 district court allowed for Plaintiff’s fence to remain inside the easement boundaries.
3
{6}
On appeal, neither party attacks the validity of the original twenty-foot
4 easement. Similarly, both parties agree that the easement is appurtenant. We
5 therefore treat the validity and terms of the appurtenant easement as fact on appeal.
6
Varos v. Union Oil Co. of Cal.
,
14 district court, having heard Intervenors’ evidence and given its findings, acted as a
15 trier of fact. As such, the motion was actually a motion for involuntary dismissal as
16 provided for by Rule 1-041(B) NMRA.
Garcia v. Am. Furniture Co.
, 1984-NMCA-
17 090, ¶ 3,
12 dismissal is rationally based on the evidence.”
Hull v. Feinstein
,
10 B. Scope of the Easement 1. An Unambiguous Easement Agreement Sufficiently States the Parties’
12
Intent; Evidence of Intent Extrinsic to That Agreement Is Irrelevant
The existence and scope of an express easement are “determined according to
14 the intent of the parties.”
Skeen v. Boyles
,
8 of easement in this case was ambiguous. In
Dethlefsen
, this Court conducted a
9 lengthy analysis of easement ambiguity. While concluding that the easement
10 documents in question unambiguously reserved a fifty-foot-wide easement, we also
11 concluded that the easement’s scope was ambiguous. This conclusion was based on
12 the omission of necessary terms: “(1) the nature and purpose of the easement, (2) an
13 identification of each of the dominant estate holders, and (3) its duration.”
Dethlefsen
,
{13} First, unlike in Dethlefsen , where we determined a right of ingress and egress 2 was “not definitive as to the specific nature and purpose of the easement[,]” id. ¶ 19, 3 the easement agreement’s stated purpose in this case provides for ingress and egress, 4 for personal use, and for household and non-commercial purposes. Taken together, 5 these phrases clearly identify the nature of the use as non-commercial and personal 6 and the purpose of the easement as a right of access. Next, the easement agreement 7 adequately identifies “each of the dominant estate holders” as Dethlefsen suggested 8 was necessary. Id. The agreement grants an easement “to . . . Jones, and to their 9 families, heirs, and assigns[.]” Next, Dethlefsen looks for information in the [2]
10 easement agreement disclosing the duration of the easement. An easement terminates when it expires by its terms. Where no definite term
12 is established, the duration of an express easement is indeterminate. Restatement
13 (Third) of Property: Servitudes § 4.3 cmt. e (2000) (“The duration of most servitudes
14 is left indefinite because they are created to implement arrangements whose useful
15 lives cannot be predicted when they are created. . . . When no definite term is
16 established in the creation of the servitude, its term is indeterminate under the rule
17 stated in this subsection. This rule applies to . . . expressly created servitudes.”). As
*10
1 such, the duration of Jones’s easement is indeterminate. Finally, the easement
2 agreement at issue identifies a definite location: “A [t]wenty[-]foot[-]wide portion
3 of the afore described property inside and along the [n]orthernmost and [w]esternmost
4 boundaries thereof.”
See Dethlefsen
,
3
b.
The District Court Misused the Extrinsic Evidence
{16}
The district court used extrinsic evidence to limit the easement’s scope based
5 on what it interpreted the parties’ intentions to be. Although Intervenors’ counsel
6 pointed out that a court cannot go beyond the written language of the easement when
7 the writing clearly states the intent of the parties, the district court responded that
8 “there is actually an opportunity to go beyond the four corners of the agreement to
9 provide me with information about the facts surrounding the circumstances at the
10 time this was purchased.” The district court lamented that it had “almost zero
11 testimony concerning the circumstances surrounding the purchase of the easement.”
12 In support of its conclusion that it could consider evidence extrinsic to the agreement,
13 the district court cited to three authorities: (1)
Luevano v. Group One
, 1989-NMCA-
14 061,
19 defined in length, width, parties, location, and purpose, and where the nature of the
*12
1 grant is undisputed.
See Aladdin Petroleum Corp. v. Gold Crown Props., Inc.
, 561
3 {18} We pause here to clarify that we do not fault the district court for admitting 4 evidence extrinsic to the written agreement given that both parties offered such 5 evidence. Rather, we find the district court’s use of that evidence in determining the 6 parties’ intent impermissible in light of the unambiguity of the easement agreement. 2. The Dominant Estate Owners Must Have Access to the Easement’s Full 8 Twenty Foot Width {19} As explained above, the written language of the easement agreement in this
10 case lays out the width, length, location, and purpose of the easement and reflects a
11 clear intention to create a twenty foot wide easement. The scope of an easement must
12 conform to the intent of the parties who created it by express agreement.
See Skeen
,
13
16 twenty foot easement and prohibited the dominant estate owner from returning the 17 easement to the width provided for by its terms. The judgment specified that the 18 easement was limited to the “existing cleared portion” of land and had to remain as 19 it stood before the lawsuit. The easement provides for a twenty-foot-wide easement. 20 Plaintiff admits she placed her fence well inside the twenty-foot easement, limiting *14 1 it to approximately nine- to eleven-feet wide in some places. In order for Intervenors 2 to access all twenty feet of the easement they have been granted, Plaintiff’s fence 3 must be removed. 3. Historic Limitations Applied to the Easement and Dominant Estate Were
5 Impermissible {21} The determinative factor in defining the scope of an appurtenant easement is
7 the intent of the parties. That intent is interpreted from the language of the
8 unambiguous agreement.
See Skeen
,
18 and limited household purposes to the historic uses of the easement. The district 19 court’s determination, by focusing solely on the “household purposes” language of *15 1 the agreement, ignores that the easement also permits any non-commercial purposes, 2 as well as an otherwise unqualified right of ingress and egress. {24} This Court has previously held that a right of “ingress and egress” allows for
4 “access to the land in question plus the [c]rossing of another’s land in order to obtain
5 this access.”
Martinez v. Martinez
,
13 inclusive list of permissible uses of the easement is a misapplication of the law of
14 appurtenant easements. Although historic use is a valid and, indeed, necessary
15 consideration in determining the scope of a prescriptive easement, we have found,
16 and the district court and Plaintiff’s counsel directs us to, no case law that considers
17 historic use determinative in defining the scope of an express and unambiguous
18 appurtenant easement.
Maloney v. Wreyford
,
5 comprised of Tracts 5B and 5C. “An appurtenant easement runs with the land to
6 which it is appurtenant . . . and passes with the land to a subsequent grantee with
7 passage of the title.”
Skeen
,
4 family mischaracterizes appurtenant easements. They benefit the land that comprises 5 the dominant estate, rather than individual owners as the district court’s reasoning 6 suggests. See 28A C.J.S. Easements § 17 (2014) (“The benefit of an appurtenant 7 easement can be used only in conjunction with the ownership or occupancy of a 8 particular parcel of land.”). Jones did not attempt to assign the right to use the 9 easement separately from the dominant estate, but only made a valid transfer of title 10 of a portion of the dominant estate. There is nothing in our case law to suggest the 11 division of the dominant estate alone extinguishes the rights to the easement and, 12 under the facts presented at trial, the easement remains appurtenant to the entire 13 dominant estate regardless of the division of ownership. We hold that the partition 14 of a dominant tenement alone does not extinguish an easement. We now turn to 15 whether the district court properly determined the increased number of dominant 16 estate owners constitutes an undue burden on the servient estate. D. Additional Burden of Two Dominant Estates {29} “The owner of the dominant estate cannot change the extent of the easement
19 or subject the servient estate to an additional burden not contemplated by the grant
*19
1 of easement.”
Kikta
,
13 irrelevant evidence. The district court stated: “I certainly don’t have any evidence 14 from which I can draw a conclusion that . . . [Clarke] intended to . . . benefit[] two 15 households.” Similarly, the district court declined to acknowledge both Intervenors 16 as dominant estate owners and stated: “I don’t have any evidence, zero evidence to 17 expand the scope of the easement.” Ultimately, the district court held that “[t]he 18 dominant estate has no authority to expand the historic use, boundaries[,] or existing 19 cleared portion of the easement” and that the dominant estate owner therefore could *20 1 not cut any trees or bring heavy construction equipment on the easement. In total, the 2 easement was to “remain as it was before the lawsuit[,]” and Plaintiff’s fence could 3 remain within the easement. Contrary to the district court’s reasoning, there is no 4 expansion of the easement’s use to be considered in this case. The relevant inquiry 5 in determining whether an additional burden exists lies not in whether the parties 6 intended the division of, or increased burden from, the dominant estate, but whether 7 the division created an additional burden on the servient estate. {31} As explained above, the division of a dominant estate does not generally create
9 an unreasonable additional burden. Rather, the relevant inquiry lies in whether any 10 evidence existed that the scope and use of the easement had increased since the sale 11 or division of the dominant estate. Rather than look for “evidence to expand the 12 scope of the easement[,]” to restrict a valid easement, the district court was obligated 13 to determine whether Intervenors were entitled to a finding of no additional burden 14 based on the testimony given. After reviewing the testimony, we conclude that the 15 district court’s finding of an additional burden is not supported by the testimony, and 16 the testimony does not lend the substantial support necessary for us to uphold the 17 district court’s decision. The nature of the evidence presented at trial suggests that the easement in this
19 case is not being expanded, changed, or modified in any way by the division of the *21 1 dominant estate. While the district court used Jones’s testimony as evidence of 2 “historic use” that determined intent, it seems to have been more pertinent to the issue 3 of additional burden. For example, the majority of Jones’s testimony on historic use 4 came in response to counsel’s question regarding the frequency of use and type of 5 property being accessed. Counsel’s follow-up question—whether the previously 6 described frequency of use of the previously described property had 7 increased—reveals that both the question asked and the answer given were more 8 relevant to the issue of additional burden than the intent of the parties. Jones testified 9 that there had been no change to the use of the easement since it was purchased in 10 1979. Long also testified regarding the use of the easement. He testified that he had
12 never driven on the easement, and there have been no changes to his use of the 13 property since he purchased Tract 5C. Jones testified that there had been no changes 14 in his use of the property since he sold Tract 5C to Long in 2009. Long’s property 15 is accessible from a public road. The easement is still the same twenty feet in width 16 that it has been since 1979 and is appurtenant to the same dominant estate as it was 17 in 1979. The division of the dominant estate has not changed the amount of benefited 18 land or the size of burdened property. The easement is also not modified by the 19 division. It is still used for ingress and egress of household and non-commercial *22 1 purposes as was intended by the 1979 agreement. In light of this evidence, and 2 absent any evidence whatsoever that the use of the easement has changed, we cannot 3 hold that the district court’s finding of an additional burden to the servient estate is 4 rationally based on the evidence. {34} The easement in question can be appurtenant to two dominant estates without
6 expanding, changing, or modifying the burden on the servient estate. We therefore 7 reverse the district court’s ruling regarding the ownership of the dominant estate. III. CONCLUSION {35} Rather than limiting itself to the unambiguous terms of the easement as it
10 should have done in construing the parties’ intent and, thereby, the scope of the 11 easement, the district court relied on historic use of the dominant estate to determine 12 how the easement and dominant estate should be used. According to the 13 unambiguous written agreement, the easement was intended to be twenty-feet wide. 14 Plaintiff’s fence currently prevents access to the full twenty feet of the easement. 15 Plaintiff is therefore required to remove her fence from the easement, so as to 16 effectuate the intent of the parties. The district court’s judgment regarding the scope 17 of the easement is therefore reversed. The district court also determined that the division of the dominant estate
19 constituted an impermissible additional burden on the servient estate. Because the *23 1 division of the dominant estate did not constitute an expansion, change, or 2 modification to the easement, we reverse the district court’s decision. Both 3 Intervenors own the dominant estate and possess the right of ingress and egress for 4 household and non-commercial purposes over the easement. We remand for 5 proceedings consistent with this Opinion concerning the fate of the trees within the 6 fence, and such other matters as may be required by this Opinion.
7 {37} IT IS SO ORDERED.
8 _______________________________ 9 RODERICK T. KENNEDY, Judge 10 WE CONCUR: _________________________________ MICHAEL D. BUSTAMANTE, Judge _________________________________ JONATHAN B. SUTIN, Judge
Notes
[1] 17
An intervenor’s burden is that which would have existed if he or she had been
18 an original party in the suit. “If he tenders an affirmative issue which is met with a
19 denial, he must assume the burden of proof.”
Maldonado v. Haney
, 1980-NMCA-
20 053, ¶ 18,
[2] 18 The easement agreement grants the easement to John and Patricia Shows as 19 well. As they are not involved in this lawsuit in any way, that language from the 20 agreement has been omitted.