LUEVANO V. GROUP ONE, 1989-NMCA-061, 108
N.M. 774, 779 P.2d 552 (Ct. App. 1989)
JOHN LUEVANO and MARILYN LUEVANO,
Plaintiffs-Appellants,
vs.
GROUP ONE and GROUP FIVE, Defendants-Appellees
COURT OF APPEALS OF NEW MEXICO
1989-NMCA-061, 108 N.M. 774, 779 P.2d 552
Appeal from the District Court of
Bernalillo County, Rebecca Sitterly, District Judge.
Erenio Gutierrez, Jr., Albuquerque, New
Mexico Attorney for Plaintiffs-Appellants.
Lester C. Cannain, Turpen, Cannain &
Marchant, Albuquerque, New Mexico Attorneys for Defendants-Appellees.
{1} John and Marilyn Luevano
(plaintiffs) appeal the trial court's order granting summary judgment to a
group of landowners (Group Five) and ordering plaintiffs to tear down a fence
between their property and adjoining properties owned by Group Five. Two issues
are raised on appeal: (1) whether the order from which appeal is taken is a
final appealable order, and (2) whether Group Five had a valid easement, thus
requiring plaintiffs to tear down the fence. The trial court held that Group
Five possessed a valid easement as the result of an assignment. Because we
conclude the subject easement was an easement appurtenant and not an easement in
gross, we hold it was not assignable. We thus reverse the trial court and
remand for consideration and disposition of other issues not previously
reached.
{2} Plaintiff's own a tract
of land of which the northern strip consists of a road running east and west,
known as Los Poblanos Ranch Road. Group Five owns land abutting the north side
of the west portion of the road. Another group of defendants (Group One) owns
three tracts of land to the east of plaintiffs' tract, bounded on the north
side by the east portion of the road. In 1953, Albert G. Simms (Simms),
plaintiffs' predecessor in title, granted a right-of-way over Los Poblanos
Ranch Road to Group One, including William and Sophia Padilla (the Padillas).
This easement included the entire road was not limited to only the east portion
of the road abutting the properties owned by Group One. That is, the easement
extended beyond the Group One properties.
{3} In 1987 plaintiffs
constructed a fence along the northern boundary of the road, thus blocking Group
Five's access to the rear of the homes belonging respectively to the members of
that group. Plaintiffs then filed a quiet title action seeking to extinguish
the western portion of the road easement. After suit was filed, Group Five
obtained an assignment of the right-of-way from the Padillas. The trial court
held this assignment was valid, granted
{*776}
summary judgment to Group Five, and ordered plaintiffs to remove the fence.
1
{4} Before addressing the merits
of the appeal, we must consider the threshold issue, whether the order appealed
from was a final appealable order.
{5} The original suit was
filed by plaintiffs against Group One, seeking to extinguish that portion of
Group One's easement beyond their properties (the portion of the road located
between plaintiffs' and Group Five's properties). Group Five, joined as an
indispensable party, answered and counterclaimed, alleging that they had an
easement over the road, either by grant or prescription. Group Five also
alleged the county owned the road. Group One likewise counterclaimed,
requesting similar relief. Both groups of defendants, who are represented by
the same attorney, also filed a cross-claim against the City of Albuquerque and
Bernalillo County to declare Los Poblanos Ranch Road a dedicated road.
{6} Plaintiffs filed a motion
to dismiss their complaint, requesting that no attorney fees or costs be
awarded. This motion was granted, leaving only defendants' counterclaims
between plaintiffs and defendants. The remaining issues were thus Group Five's
entitlement to an easement and the requested relief that the fence be torn
down, based on any one of three possible theories: grant, prescription, or
dedication. Because the trial court found that Group Five had an easement by
grant, it did not reach the questions of prescription or dedication. In so
holding, the trial court did state, however, that there were questions of fact
on those issues precluding summary judgment.
{7} In their brief-in-chief, plaintiffs
argue at length that the trial court erred in not granting their summary
judgment motion on the questions of prescription or road dedication. Since the
trial court held in favor of defendants on the grant issue, however, the trial
court found it unnecessary, and therefore did not have the opportunity, to rule
on the road dedication or prescriptive easement issues. An appellant has the
burden of showing that a question presented for review on appeal was ruled upon
by the trial court.
Batchelor v. Charley,
74 N.M. 717,
398 P.2d 49
(1965). A motion not ruled by a trial court is not before this court for
review.
See Yucca Ford, Inc. v. Scarsella,
85 N.M. 89,
509 P.2d 564 (Ct.
App. 1973). Consequently, we do not address the prescription and dedication issues.
{8} In deciding whether an
order is final and appealable, the determinative question is whether there is
anything remaining to be done or whether the trial court, within its power, has
fully disposed of the case.
Rio Arriba County Bd. of Educ. v. Martinez,
74 N.M. 674,
397 P.2d 471 (1964);
In re Estate of Foster,
102 N.M. 707,
699 P.2d 638 (Ct. App. 1985);
Johnson v. C & H Constr. Co.,
78 N.M.
423,
432 P.2d 267 (Ct. App. 1967). In this case there are no claims remaining
to be tried. Plaintiffs' claims and the matter of attorney fees were disposed
of in the order of dismissal, and defendants' claims were adjudicated in their
favor in the granting of summary judgment. The order granting summary judgment
was thus a final appealable order. Having so held, we next proceed to the issue
on the merits.
{9} The specific issue before
us is whether the easement was assignable. The answer to this question in turn
depends on whether the easement granted to Group One by Simms was an easement
appurtenant or an easement in gross. If it was an easement appurtenant, it is
deemed to run with the land and is unassignable in the absence of a transfer of
the dominant estate.
Kikta v. Hughes,
108 N.M. 61,
766 P.2d 321 (Ct.
App. 1988). An easement in
{*777} gross,
however, may be assignable.
See 3 R. Powell,
The Law of Real Property
para. 419 (P. Rohan rev. ed. 1987).
{10} Plaintiffs argue that
the law favors easements appurtenant and that ambiguous grants should be
resolved in favor of finding them appurtenant. On the other hand, defendants
argue that the grant was not related to any particular land and was therefore
an easement in gross, capable of being assigned. The trial court specifically
concluded that the easement was clearly alienable, assignable, devisable and inheritable
and that the Padillas consequently had authority to assign their right-of-way
to Group Five.
{11} The grant does not
expressly refer to any land owned by the grantees. In construing a grant,
however, a court must consider the circumstances surrounding it. "If the
granting instrument does not specify whether the easement is appurtenant or in
gross, the court decides from the surrounding circumstances, but generally
begins with the presumption that it is appurtenant." E. Rabin,
Fundamentals
of Real Property Law 434 (2d ed. 1982).
See Restatement of Property
§ 453 (1944); 28 C.J.S.
Easements 4 (1941).
See also Siferd v.
Stambor, 5 Ohio App. 2d 79, 214 N.E.2d 106 (1966) (whether easement is
appurtenant must be determined from language used in deed, the surrounding
circumstances at the time the right was created, and the intention of the
parties at the time the deed was executed);
Ernst v. Allen, 184 P. 827
(Utah 1919) (an instrument attempting to create an easement should be read in
light of surrounding circumstances, the situation of the parties and property
involved; if the grant refers to no land to which the easement can be
appurtenant, but such land in fact exists, that fact may be established to give
effect to the words used).
{12} The record reflects that
the grantees of the easement, Blas and Eloisa Gutierrez, Benjamin Gutierrez,
and the Padillas, owned the three tracts of land adjoining the property of
Simms, the grantor. All properties abutted the east portion of the road over
which the easement was granted. Although the grant does not expressly refer to
the grantees as landowners, it may be inferred from these particular
circumstances that Simms intended the easement to benefit the grantees as
owners of adjoining property, giving them convenient access to their respective
land and not access in general as to any other lands. In the event that any of
the grantees were to sell their respective land, the record does not reflect
any benefit to be derived by them in retaining any interest in the right-of-way.
There would be considerable benefit, on the other hand, to any party succeeding
to their interests in the particular land. In view of these circumstances, we
believe it is reasonable to conclude that Simms' intent was to create an
easement appurtenant to the adjoining three tracts of land belonging to Group
One.
{13} Our conclusion is
reinforced by the presumption favoring easements appurtenant over easements in
gross. Easements are presumed appurtenant unless there is clear evidence to the
contrary.
Cushman v. Davis, 80 Cal. App. 3d 731, 145 Cal. Rptr. 791
(1978).
See E. Rabin,
supra; R. Powell,
supra, at para
405; C.J.S.,
supra, at 637 ("An easement is appurtenant to the
land, if it is so in fact, although it is not declared to be so in the deed or
instrument creating it; and an easement, which in its nature is appropriate and
a useful adjunct of land owned by the grantee of the easement, will be declared
an 'easement appurtenant,' and not 'in gross,' in the absence of a showing that
the parties intended it to be a mere personal right." (Footnotes
omitted)).
See also Brooks v. Tanner,
101 N.M. 203,
680 P.2d 343 (1984)
(there is a strong constructional preference for appurtenant easements over
easements in gross);
Allingham v. Nelson, 6 Kan. App. 2d 294, 627 P.2d
1179 (1981) (quoting 25 Am. Jur.2d,
Easements and Licenses § 13 (1966))
(to the effect that an easement will never be presumed as personal when it may
fairly be construed as appurtenant to some other estate);
Hall v. Meyer,
270 Or. 335, 527 P.2d 722 (1974) (extremely strong preference for finding an
easement appurtenant rather than in gross).
{*778} {14} We believe there are good policy reasons for the
presumption that an easement is appurtenant. Construing doubtful easements as
easements in gross would allow assignment of the easement to strangers to the
area who could then control the use of the property. Such construction could
also result in increased burdens on land beyond that contemplated by the
original grantor. See Brooks v. Tanner (burden on a servient estate
cannot be increased without the owner's consent). Permitting the Padillas to
assign their rights to the Group Five defendants clearly would result in an
increased burden on plaintiffs' land.
{15} Defendants emphasize the
repeated use of the phrase "heirs and assigns" in the grant. They
argue that this indicates the grantor intended to convey an assignable
interest. We believe, however, that these words were traditionally used at
common law merely to create an estate in land and not necessarily intended to
create an assignable interest in land. On the contrary, the phrase could be
interpreted to signify that the easement was tied to land. "The use of
'heirs or assigns,' or other similar words, in designating the person to whom
the right is granted or reserved, is generally held to create an appurtenant
easement." C.J.S., supra, at 637 (footnote omitted). See Siferd
v. Stambor.
The wording of the deed purports to grant the property to
[grantee] and "its successors and assigns forever." These words of
inheritance and succession, although not required by statutes... were
considered at common law equally necessary to create either a fee simple title
or a perpetual easement.... The use of this phrase is of no assistance in
determining the intent of the grantor. [Citations omitted.]
Northwest Realty Co. v. Jacobs, 273 N.W.2d 141, 145
(S.D. 1978)
{16} In light of inferences
that may be drawn from the circumstances surrounding the grant from Simms to
Group One, as well as the preference for easements appurtenant and the policy
against increasing the burden on a servient estate without the owner's consent,
we hold that the grant in this appeal created an easement appurtenant that
cannot exist separately from the dominant estate. Any attempt, therefore, to
assign the easement, without transferring the land to which it attached, must
necessarily fail. See Kikta v. Hughes.
{17} In conclusion, because
the attempted assignment of the easement to Group Five was not valid, we reverse
the grant of summary judgment. The case is remanded to the trial court for a
determination of whether Group Five has acquired rights to the road by
prescription or dedication. Plaintiffs are awarded costs on appeal.
DONNELLY, Judge, and ALARID, Judge, concur.
1.
The facts of this case are classic horn-book law. In his property law textbook,
Professor Rabin gives the following example:
EXAMPLE: X, owner of Blackacre, grants Y, owner of
Whiteacre, on adjoining parcel, an easement of ingress and egress across a road
on Blackacre.
RESULT: Unless the granting instrument clearly specifies
that the easement is personal to Y, it will be assumed that it is an easement
appurtenant to Whiteacre.
E. Rabin, fundamentals of Modern Real Property Law 434 (2d
ed. 1982).