ALGERMISSEN V. SUTIN, 2003-NMSC-001,
133 N.M. 50, 61 P.3d 176
HOLLY DIETZ ALGERMISSEN, PANINA PAULA
BALLEN, LEROY M.
GARCIA, KIM A. GRIFFITH, JOHN S. HART, MARK HAUSWALD,
EUGENE S. HERTEL, JR., LYNN A. HERTEL, DAVID D. KENNEY,
SUSAN G. KUTVIRT, E. MICHAEL LEWIECKI, DANA MCCABE, JOHN
A.
MARSELLO, KAY NATIONS, REBECCA NOLAND, HARVENA RIGHTER,
JOE
RUIZ, ANDREW C. STONE, ISABEL STONE, a minor, by and
through her natural parents and next friends, ANDREW C.
STONE and DANA MCCABE, and NINA WALLERSTEIN,
Plaintiffs-Appellants,
vs.
JONATHAN B. SUTIN, and MALKA S. SUTIN, his wife, as
individuals or as trustees of their revocable living
trust,
if any, MICHAEL G. SUTIN and ESTHER S. SUTIN, his wife, as
individuals or as trustees of their revocable living
trust,
if any, HARRISON H. ALLEY and ANNE ALLEY, his wife, MAURA
LEWIECKI, DAVID WOLFE and JOAN B. SCOTT, his wife, TOM A.
SELLERS and DORIS M. SELLERS, his wife, DAVID P. SKLAR,
RALPH S. TRIGG and GWEN TRIGG, his wife, RICHARD I. DORIN
and MAXINE H. DORIN, his wife, WILLIAM J. CHESNUT and JO
P.
CHESNUT, his wife, and JAMES R. MCCRORY and CYNTHIA
MCCRORY, his wife, Defendants-Appellees.
SUPREME COURT OF NEW MEXICO
2003-NMSC-001, 133 N.M. 50, 61 P.3d 176
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY. Theodore C. Baca, District Judge.
Released for Publication January 15,
2003.
The Simons Firm, LLP Thomas A. Simons,
IV, Charles V. Henry, Santa Fe, NM, for Appellants.
Henkel & Sloan, PC, Robert G. Sloan,
Albuquerque, NM, for Appellants.
Geoffrey W. Sloan, Santa Fe, NM, for
Appellants.
Sutin, Thayer & Browne, Norman S.
Thayer, Michael G. Sutin, Albuquerque, NM, for Appellees.
Moses, Dunn, Farmer & Tuthill, P.C.,
Victor E. Carlin, Albuquerque, NM, for Appellees.
PAMELA B. MINZNER, Justice. PATRICIO M.
SERNA, Chief Justice. GENE E. FRANCHINI, Justice. PETRA JIMENEZ MAES, Justice.
PAUL J. KENNEDY, Justice.
AUTHOR: PAMELA B. MINZNER
{1} Plaintiffs appeal
from a district court order, following a bench trial, which dismissed with
prejudice their claims to a public easement by prescription. The district court
determined that Plaintiffs failed to prove the elements of a prescriptive easement
by clear and convincing evidence. Plaintiffs appealed initially to the Court of
Appeals, which in turn certified the matter to this Court.
See NMSA
1978, §
34-5-14 (c)(1972); Rule
12-606 NMRA 2002. We affirm.
{2} This case revolves
around a neighborhood dispute in the north valley area of Albuquerque.
Plaintiffs are all members of the public who had crossed Defendants' lands for
many years to access public trails within the Rio Grande Valley State Park for
hiking, jogging, horseback riding, and other recreational uses. This all came
to an end in May of 1995, when some of the Defendants constructed a fence and a
gate that completely blocked access through their property. Plaintiffs sued. We
take the following facts from the trial court's findings and the testimony
elicited at trial.
{3} Defendants own
property located between the east side of the Rio Grande River and Rio Grande
Boulevard. Plaintiffs wish to cross this property on a course that includes a
long dirt pathway connecting Defendants' homes commonly called "Elfego
Road," which runs west of Rio Grande Boulevard. The claimed easement
continues beyond the pathway on a narrow footpath across the Sutin property,
and ends at the Rio Grande State Park.
{4} Elfego Road was
created as a private easement for ingress and egress over private property. It
is not within the Albuquerque city limits, and it is not claimed or maintained
by any government entity. While Elfego Road has remained in place over
basically the same property throughout recent history, its exact alignment with
the private property it crosses has not been determined. Elfego Road is used
both by the people who live and work along it, and their friends, neighbors,
relatives and business invitees. Most of the residents along the road only own
residences on their property, but the Alleys run a horse business as well. The
Sutins do not live on their property, and they never have.
{5} Starting in the
1940s, people were permitted to cross this property. This was all part of a
cooperative effort and agreement between the families on both sides of Elfego
Road. At that time, the area was open and sparsely populated. People continued
to travel upon Elfego Road and the footpath to the river from that time until
1995. A generally friendly, cordial, and neighborly attitude existed during
this time between the residents of Elfego Road and anyone who might be
traveling on it. All the landowners recognized each others' right to use the
Road to reach their homes, as well as for recreational purposes. This attitude
extended to all family members and guests of the landowners.
{6} In the early
1990s, the Alleys, who owned the land to the southeast off Elfego Road,
constructed a fence and a gate that closed off their driveway. This forced
anyone wishing to access the Rio Grande from Elfego Road to cross through land
belonging to the Sutins. The Sutins attempted to sell their property in 1995.
The deal fell through, however, because the commitment for a title insurance
policy contained exceptions for the possibility of prescriptive easements. This
precipitated action to close off the property. In May of 1995, the Sutins
constructed fences around their property and installed a gate that effectively
precluded anyone from crossing it. Plaintiffs sued approximately one year
later, claiming that they were entitled to an easement by prescription, based
on their use of the property between 1985 and 1995.
{7} The district court
held a four day bench trial in May of 2000, and entered its findings of fact
and conclusions of law approximately one year later. In its conclusions of law,
the court did not specify which elements of the prescriptive easement claim
failed. Rather, the court stated, "Plaintiffs have failed to prove the
elements of their public prescriptive easement claim over Elfego Road, the
Alley property and the Sutin
{*54} bosque tract
property by clear and convincing evidence." The district court also did
not state whether it relied on any legal presumptions in coming to this
conclusion. The parties therefore address most of the elements of this claim in
their arguments to us, as well as other arguments. As indicated below we need
to address only the sufficiency of the evidence to support the elements of the
claim.
{8} Plaintiffs claim
that the judgment of the district court should be reversed because the district
court erred in determining that they had not met their burden of proof in
establishing all the elements of a prescriptive easement. Plaintiffs also claim
that the district court erred in its conclusion that prescriptive easements
cannot be held for recreational purposes, or for mere convenience. For their
part, Defendants assert that we should affirm the district court because it
correctly determined the facts and applied the law. Defendants further assert
that the easement should not be granted, because this would amount to an
unconstitutional taking of private property without just compensation. Because
we affirm the trial court on the basis that the legal elements required for the
creation of a prescriptive easement were not satisfied, we need not address the
constitutional argument.
{9} On appeal, we
decide whether substantial evidence supports the district court's findings and
whether these findings support the conclusions that the elements required to
establish a public easement by prescription were not proved by clear and
convincing evidence.
See Village of Capitan v. Kaywood,
96 N.M. 524,
524,
632 P.2d 1162, 1162 (1981);
Scholes v. Post Office Canyon Ranch, Inc.,
115 N.M. 410, 411,
852 P.2d 683, 684 (holding that each element of a
prescriptive easement must be proven by clear and convincing evidence). In
cases such as this, where the trial court found against the party with the
burden of proof, we should affirm such a finding if it was rational for the
fact finder to disbelieve the evidence offered in support of the contrary
finding.
Sosa v. Empire Roofing Co.,
110 N.M. 614, 616,
798 P.2d 215,
217 (Ct. App. 1990).
See also State ex rel. Dep't of Human Servs. v.
Williams,
108 N.M. 332, 335,
772 P.2d 366, 369 (Ct. App. 1989) ("Even
in a case involving issues that must be established by clear and convincing
evidence, it is for the finder of fact, and not for reviewing courts, to weigh
conflicting evidence and decide where the truth lies."). In order to have
been successful in their claim that a public easement by prescription exists,
Plaintiffs must have proven that the general public used the passageway in an
"open, uninterrupted, peaceable, notorious, [and] adverse" manner,
under a claim of right, and "continued for a period of ten years with the
knowledge, or imputed knowledge of the owner."
Village of Capitan,
96 N.M. at 525, 632 P.2d at 1163. If any one of these elements were lacking,
then we must hold that Plaintiffs failed in their claim. Nevertheless,
Plaintiffs claim that they met their burden with regard to each of these
elements, so we consider each separately.
{10} We also take this
opportunity to clarify the law of prescriptive easements. The elements of this
claim are the product of many years of historical development, beginning with
Hester
v. Sawyers,
41 N.M. 497,
71 P.2d 646 (1937). We believe that this is an
appropriate time to consolidate these elements into a more succinct and less
redundant test for determining when a court should grant a prescriptive
easement. In doing so, we follow the example of the recently published
Restatement
(Third) of Property: Servitudes (2000). According to this model, an
easement by prescription is created by an adverse use of land, that is open or
notorious, and continued without effective interruption for the prescriptive
period (of ten years).
Id. § 2.16; § 2.17. This definition encompasses
all of the descriptive requirements that we have held in the past to be part of
an easement by prescription. We also note that Plaintiffs in this case seek a
public
easement by prescription. Creation of such an easement presents unique
analytical problems (such as whether it amounts to a taking of private property
without compensation).
See id. § 2.18. On the facts before us, however,
the analysis of this type of
{*55} prescriptive
easement is the same as it would be if Plaintiffs had only requested a private
prescriptive easement.
{11} The first element
of the legal standard for the creation of a prescriptive easement we need to
discuss is adversity. Adversity is a general concept that simply means a person
holds an interest "opposed or contrary to that of someone else."
Black's
Law Dictionary 54 (7th ed. 1999). An adverse use is a use made without the
consent of the landowner. It is also the type of use that would normally give
rise to a cause of action in tort.
Restatement,
supra, § 2.16
cmt. b.
1 In many circumstances, adversity (or
the lack thereof) can be difficult to prove, due to the passage of time.
Therefore, a series of presumptions are used. For example, a use that has its
inception in permission will be presumed to continue to be permissive, until
"a distinct and positive assertion of a right hostile to the owner is
brought home to him by words or acts."
Hester, 41 N.M. at 505, 71
P.2d at 651. Similarly, if all of the other elements of a prescriptive easement
claim are satisfied, the use is presumed to be adverse in the absence of proof
of express permission.
Village of Capitan, 96 N.M. at 525, 632 P.2d at
1163;
Sanchez v. Dale Bellamah Homes, Inc.,
76 N.M. 526, 529,
417 P.2d
25, 27(1966). We have explained that presumptions do not have the effect of
dictating a result in a civil trial. Rule 11-301, NMRA 2002 makes this clear.
Under this rule, presumptions in a civil nonjury trial are "little more
than rhetorical devices;
one can argue them to a judge but they have no
mandatory effect upon his decision."
Mortgage Inv. Co. v. Griego,
108 N.M. 240, 244,
771 P.2d 173, 177 (1989) (internal quotations omitted)
(emphasis in original). The Restatement does not take a position on the use of
presumptions.
Restatement,
supra, § 2.16 cmt. g.
{12} We must determine
whether there was sufficient evidence to support the finding that Defendants
gave permission to Plaintiffs to cross their land. As stated earlier, the fact
finder should presume adversity if all of the other elements of the claim are
satisfied, and there is no evidence of express permission.
Village of
Capitan, 96 N.M. at 525, 632 P.2d at 1163. It is important to recognize
what this does
not mean. This does not mean that a landowner must
demonstrate that he or she gave express permission in order to defeat a
prescriptive easement claim. Our cases demonstrate that implied permission is
also permission sufficient to rebut the presumption. In
Hester, we said
that "if a use has its inception in permission,
express or implied,
it is stamped with such permissive character and will continue as such until a
distinct and positive assertion of a right hostile to the owner is brought home
to him by words or acts." 41 N.M. at 505, 71 P.2d at 651 (emphasis added).
{13} Although the
presumption of adversity applies only when there is no evidence of express
permission, the trial court is entitled to consider other evidence of
permission when determining whether plaintiffs really were adverse to the
landowners, under a claim of right. If the presumption is rebutted by evidence
of express or implied permission, plaintiffs must still persuade the trial
court that their use was adverse.
See 4
Powell on Real Property,
§ 34.10[2][c], at 34-91 to -94 (Michael Allan Wolf ed., Rel. 99, 2002)
("When, however, rebutting evidence [of the presumption of adversity] has
been produced, the burden of establishing the fact of adversity rests upon the
claimant of the easement."). Evidence of permission, be it express or
implied, is relevant to this inquiry.
Hester, 41 N.M. at 505, 71 P.2d at
651.
See also Nice v. Priday, 137 Ore. App. 620, 905 P.2d 252, 255 (Or.
Ct. App. 1995) (holding that landowners may rebut the presumption of adversity
by "proving express permission, or by evidence showing that [the
claimants] used the existing road in a way that did not interfere with the
[landowners'] use);
Clayton v. Jensen,
{*56}
240 Md. 337, 214 A.2d 154, 158 n.1 (Md. 1965) (stating that the presumption may
be rebutted "by a showing of express permission and perhaps by other
excusatory facts").
{14} Clearly the Sutin
Defendants could not have given permission, because they did not even know that
Plaintiffs were using their property. Evidence was introduced, however, of acts
by the Alley Defendants that were consistent with permission. Specifically,
some Plaintiffs testified that they waved "hello" and would stop and
chat with the people who lived in the area. Further, one witness testified that
in the 1940s, the owners of what is now the Sutin bosque tract gave the whole
neighborhood permission to cross their land.
{15} While the trial
court never explicitly found the "express permission" required to
avoid the presumption, it did find that "the use of private Elfego, the
southern part of the McCrory easement, the eastern part of the Alleys'
driveway, and the Sutin bosque tract property for purposes of walking, jogging,
bicycling and/or horse riding by neighborhood property owners, their neighbors,
families, guests and business invitees has always been permissive." This
is an appropriate use of the presumption that use that begins as permissive
stays that way. There is no evidence of any acts of hostility by Plaintiffs
that would rebut this. Permission was revoked when Defendants put up fences and
gates around their property to keep Plaintiffs out. The Alleys did this in 1992
or 1993, and the Sutins did this in 1995. This suit was brought in 1995.
Defendants' actions that effectively revoked this permission happened toward
the end of the alleged prescriptive period. Therefore, Plaintiffs could not
have used the property adversely for the required prescriptive period of ten
years. We believe that the record includes an adequate basis for this finding,
and thus the trial court was free to weigh this evidence more heavily than the
presumption of adverse use.
{16} The parties agree
that in this case the district court may have applied an exception to the
presumption of adversity, commonly called the "neighbor accommodation
exception." Under this exception, a court should not presume adverse use
when the "claimed right-of-way traverses large bodies of open, unenclosed,
and sparsely populated privately-owned land."
Scholes, 115 N.M. at
412, 852 P.2d at 685 (internal quotations omitted). Plaintiffs point out,
however, that all of the district court's findings of fact that could lead to
this conclusion discussed events that took place prior to the alleged
prescriptive period.
{17} Regardless of
whether the district court applied the neighbor accommodation exception, we do
not think that it should apply in this case. We have limited this doctrine to
apply only to "large bodies of unenclosed land . . . where the owners
thereof
could not reasonably know of passings over said lands."
Maestas
v. Maestas,
50 N.M. 276, 279-80,
175 P.2d 1003, 1006 (1946) (emphasis
added);
see also Village of Capitan, 96 N.M. at 525, 632 P.2d at 1163
(holding that neighbor accommodation exception did not apply to small tract in
a populated subdivision). While we do think that it was reasonable for some of
Defendants
not to know of Plaintiffs' use of their land, they also could
have reasonably found out.
2
More importantly, however, resort to this exception is unnecessary, because we
hold that substantial evidence supported the district court's finding of
permissive use.
{18} The elements that
we have labeled as knowledge and imputed knowledge are simply descriptors of
the same requirement: that the prescriptive use must be open
{*57}
or notorious. A review of our cases, as well as consideration of the
Restatement, demonstrate this. Open or notorious use is the only way that
knowledge can be imputed to the landowner.
See, e.g.,
Silverstein v.
Byers,
114 N.M. 745, 748,
845 P.2d 839, 842 . Imputed knowledge is
synonymous with constructive notice, a phrase that means that the use of the
property must have been so obvious that the landowners should have known about
it, had they been reasonably diligent.
Taylor v. Hanchett Oil Co.,
37
N.M. 606, 609,
27 P.2d 59, 60 (1933).
{19} The Restatement
simplifies or rationalizes the definition of a prescriptive easement by
acknowledging that these terms are all part of the same requirement.
See
Restatement,
supra, § 2.17(1).
See also 7
Thompson on Real
Property, Thomas Edition § 60.03(b)(6)(vi), at 439 (David A. Thomas ed.,
1994) (stating that the historical development of prescriptive easement law has
led to a "melange of redundant terms"). The use must simply be either
open or notorious. To be open, the use must be visible or apparent.
See
Restatement,
supra, § 2.17 cmt. h. This has long been the law of
this State.
See Silverstein, 114 N.M. at 748, 845 P.2d at 842 (holding
that frequent use of a road was so plainly apparent that the requirement of
open and notorious use was satisfied);
Maestas, 50 N.M. at 280, 175 P.2d
at 1006 (1946) (holding that use of a relatively narrow strip of land, adjacent
to the landowner's residence, in the presence of the landowner satisfied this
requirement). To be notorious, the claimant's use of the property must be
either actually known to the owner or widely known in the neighborhood.
Restatement,
supra, § 2.17 cmt. h. This, also, is consistent with our cases.
See
Cunningham v. Otero County Elec. Coop., Inc.,
114 N.M. 739, 742-43,
845
P.2d 833, 836-37 (holding that when landowner actually saw a power line, the
open and notorious requirement was satisfied).
3
{20} In this case, the
trial court did not make a specific finding of fact with regard to open or
notorious use. The trial court did find, however, that non-residents and
outsiders who used Elfego Road were "not readily distinguishable from the
property owners and their guests and invitees." There was testimony at
trial that would tend to support this finding. Further, credible evidence was
presented that the Sutin Defendants had no actual notice or knowledge of any
unauthorized use of the property. One person testified that it would take him
30 seconds to one minute to cross the Sutin property. Such a brief amount of
time certainly supports the conclusion that the use was not open, which means
visible or apparent. This is not to say that a brief amount of time will always
preclude a finding that the use was open or notorious. It is only a factor to
consider, along with all of the facts, such as the heavily wooded nature of the
property, and the indistinguishability of the public and neighbors and their
guests.
{21} In contrast, the
Alleys concede that they saw three Plaintiffs occasionally traversing the
claimed easement. However, the trial court found that those members of the
public the Alleys saw were difficult to distinguish from the friends,
relatives, and other invitees of those who live on Elfego Road. This finding is
consistent with the evidence that numerous property owners other than the
Alleys and the Sutins live on Elfego Road. Obviously, if it was difficult for
the Alleys to distinguish between these people, and the Alleys were residents
of the area, it would have been even more difficult for the Sutins, who were
non-residents. The Sutins testified that only one of them visited the property
once during the entire prescriptive period. This may not have been diligent on
their part, but that is not what we must decide. Rather, we must decide
whether, even if the Sutins had been diligent, knowledge should not be imputed
to them. Evidence of the difficulty the Alleys experienced in this regard is
instructive. We cannot say that the trial court could not have rationally
{*58} found that the Alleys exercised reasonable diligence,
but still could not distinguish between property owners and members of the
public. It follows that the Sutins may have had the same difficulty even if
they had been more vigilant.
{22} Based on all of
this evidence, we believe that the trial court could have rationally concluded
that knowledge should not have been imputed to Defendants. It follows that the
trial court could have concluded that Plaintiffs had not proved open or
notorious use by clear and convincing evidence. The use
by the public
was not apparent, and it was not of such a character that it was widely known
in the neighborhood.
{23} In order to
prevail in their claim, Plaintiffs must have also proven that their use was
continuous and uninterrupted.
Village of Capitan, 96 N.M. at 525, 632
P.2d at 1163. Although not synonymous, these two terms are interrelated parts
of the same requirement.
See Restatement,
supra, § 2.17(2), at
260. For the use to be continuous, it must take place with the same consistency
that a normal owner of the claimed servitude would make, so long as that use is
reasonably frequent.
Maloney v. Wreyford,
111 N.M. 221, 224,
804 P.2d
412, 415 ("Continuity is to be determined in relation to the right
claimed, and is sufficient if the property is used whenever needed, if it is
reasonably frequent.");
Restatement,
supra, § 2.17 cmt. i.
The requirement that the use be uninterrupted, however, refers to the actions
of the prospective servient owner. If the owner takes any action that stops the
claimants' use of the property, this will defeat the claim. The owner's actions
could be physical, such as blocking access to the property, or legal, such as
bringing an action for ejectment.
Maloney, 111 N.M. at 224, 804 P.2d at
415. Of course, if the landowner effectively interrupts the claimants' use of
the property, this will have the effect of breaking the continuity of the use
as well.
{24} Plaintiffs claim
that the trial court actually found that they did use the claimed easement
continuously during the prescriptive period. In its findings of fact, the trial
court stated that "from May, 1985, or before, to May 31, 1995, Plaintiffs
and others have traveled upon or crossed Elfego Road from the Duranes Lateral
to the Sutin bosque tract and across the Sutin bosque tract . . . ." For
the most part, Defendants do not dispute this. The Alleys do point out,
however, that they fenced off their driveway in 1992 or 1993, and this forced
anyone wishing to cross from Elfego Road to the River park to travel along the
Sutin property instead. The Alleys claim that they interrupted the use of the
claimed easement at that time. However, all this action did was shift slightly
the path of travel that Plaintiffs took. Thus, it was not an
"effective" interruption.
{25} This leads us to
consider another aspect of continuity. Plaintiffs must show that the
location
of the alleged easement did not change during the prescriptive period.
Hester,
41 N.M. at 506, 71 P.2d at 652 (1937) ("A way claimed by prescription must
be a definite, certain, and precise strip of land. . . . To acquire a
prescriptive right of way by consent and uninterrupted use, the use must relate
strictly to the identical land over which the right is claimed." (internal
citations and quotations omitted)).
See also Jicarilla Apache Tribe v. Bd.
of County Comm'rs,
116 N.M. 320, 334,
862 P.2d 428, 442 ,
rev'd on other
grounds,
118 N.M. 550,
883 P.2d 136 (1994) ("In defining the
boundaries of the road, the court should refer to fixed and obvious landmarks,
or order that a survey be done and refer to that survey, or use some other,
similarly definite method of locating the road."). The trial court found
that this element was lacking. Plaintiffs' counsel was not able to provide
dimensions or a location for the easement, but simply left it up to the court
to use its "power in equity" to make this determination. If all of
the other elements of a prescriptive easement were satisfied, we could remand
to the trial court to make this determination.
See, e.g., Cunningham,
114 N.M. at 744, 845 P.2d at 838 (Ct. App. 1992). In view of our conclusions as
to other elements, however, remand will not be appropriate in this case.
{26} Defendants also
argue that Plaintiffs' claim must fail because they claim
{*59}
that a prescriptive easement can never exist if its sole purpose is for
recreation or the convenience of those who use it. We need not decide this
issue because we affirm the trial court on other grounds. We note, however,
that there is no support in our cases for such a rule, and the arguments in
this case provide no policy basis to create one. Similarly, we need not address
Defendants' argument that the creation of a public prescriptive easement would
amount to an unconstitutional taking of private property without just
compensation, although we note that no government entity is a party to this
lawsuit, and it would therefore be impossible to decide
who should pay
such compensation.
Schlieter v. Carlos,
108 N.M. 507, 510,
775 P.2d 709,
712 (1989) ("It is an enduring principle of constitutional jurisprudence
that courts will avoid deciding constitutional questions unless required to do
so.") The general rule is that acquisition of an easement by prescription
is not a taking and does not require compensation to the landowner.
Luevano
v. Maestas,
117 N.M. 580, 587,
874 P.2d 788, 795 .
But see Pascoag
Reservoir & Dam, LLC v. Rhode Island, 217 F. Supp. 2d 206, 217-27
(D.R.I. 2002).
{27} The trial court's
conclusion that Plaintiffs failed to prove the elements of a prescriptive
easement by clear and convincing evidence was a rational determination. For
this reason, we conclude that the trial court did not err in its judgment that
neither Plaintiffs nor the general public have any prescriptive easement rights
in the property at issue in this case. We therefore affirm the judgment of the
trial court.
PAMELA B. MINZNER, Justice
PATRICIO M. SERNA, Chief Justice
GENE E. FRANCHINI, Justice
PETRA JIMENEZ MAES, Justice
1
The Restatement also notes that there is a conceptual problem with this
definition as it is applied to easements claimed in favor of the public, rather
than private individuals. Id. § 2.18 cmt. f. One cannot file a cause of
action for ejectment against the public. That may be true, but we think that
the definition is still helpful. Defendants would have the ability to sue the
individuals who cross their land in their private capacities.
2
Defendants argue that this exception is actually two-fold. There is the
"neighbor accommodation exception" which applies when a generally
friendly neighborhood attitude exists, and it should be implied that they give
permission to let others cross their land. Additionally, there is the
"wild and unenclosed lands" exception, such as was discussed in Maestas.
While it is true that New Mexico courts have equated the two concepts, perhaps
confusingly, see Scholes, 115 N.M. at 412, 852 P.2d at 685 (refering to
"the neighbor accommodation exception concerning open and unenclosed
lands"), a fuller discussion of them is unnecessary here. There is
substantial evidence to support the trial court's finding that the use was
permissive, without the need to resort to these presumptions.
3
The Restatement uses the terms "open" and "notorious" in
the disjunctive ("open or notorious"), while our cases have
repeatedly used them conjunctively ("open and notorious"). We
agree with the Restatement view that the former is more accurate, because a
finding that the use of the property was either actually known to the
landowner, or it should have been apparent to the landowner will suffice
to satisfy this requirement.