         The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 15, 2018

                               2018COA160

No. 16CA2083, Alire v. Cielo Vista Ranch — Real Property —
Easements Appurtenant; Public Lands — Mexican Land Grants

     Fifteen years after the supreme court remanded this case to

the district court with instructions to “identify all landowners who

have access rights to the Taylor Ranch,” a division of the court of

appeals reviews whether the district court’s proceedings on remand

discharged the mandate.

     The supreme court’s decisions in Lobato v. Taylor, 71 P.3d 938

(Colo. 2002), and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003),

constitute the mandate in this case. In the Lobato decisions, the

supreme court held that present-day San Luis Valley landowners

have the right to access the Taylor Ranch — now the Cielo Vista

Ranch — upon showing their land was settled by 1869. Around

that time, Charles Beaubien persuaded frontier families from New
Mexico to settle in the valley by granting these settlers the right to

graze their animals and gather wood and timber from the forested,

mountainous areas nearby. Today, these areas comprise the Cielo

Vista Ranch.

     In 2004, the district court began identifying and decreeing

access rights for landowners in the San Luis Valley whose land was

settled by 1869. From 2004 until 2010, the district court relied on

the best available evidence to decree access rights for individual

landowners without requiring any landowner to come forward to

assert a claim. In 2010, this changed. After 2010, the district

court decreed access rights for only those landowners who came

forward to assert claims.

     In this opinion, the division concludes that the proceedings on

remand were largely consistent with the mandate, but that the

district court did not completely discharge its mandate because the

identification process used after 2010 could have been, but was

not, comprehensive. The division concludes that the undisputed

evidence would enable the district court to “identify all landowners

who have access rights,” and, therefore, remands for the district

court to completely discharge its mandate by identifying all current
owners of lands which the undisputed evidence shows were settled

as of 1869.
COLORADO COURT OF APPEALS                                       2018COA160


Court of Appeals No. 16CA2083
Costilla County District Court Nos. 81CV5 & 81CV100005
Honorable Gaspar F. Perricone, Judge
Honorable Kenneth A. Plotz, Judge


Cielo Vista Ranch I, LLC; Jaroso Creek Ranch, LLC; and Western Properties
Investors, LLC,

Defendants-Appellants and Cross-Appellees,

v.

Billy Alire, Willie Alire, Leonides Atencio, Robert Atencio, Frances D. Berggran-
Buhrles, Zach Bernal, Jose Fred Carson, Emilio DeHerrera, Juan DeHerrera,
Adeline Espinosa, Edward Espinosa, Elmer Manuel Espinoza, Margurito
Espinoza, Pete E. Espinoza, Corpus Gallegos, Gloria Gallegos, Jose A. Gallegos,
Moises Gallegos, Ruben Gallegos, Rupert Gallegos, Raymond Garcia, Richard
J. Garcia, Robert Garcia, Manuel Gardunio, Ruben Herrara, Gilbert G. Herrera,
Charlie Jacquez, Jr., J.R. Jaquez, Jeffrey Jaquez, Maria Jaquez, Adelmo Kaber,
Juan Lacombe, Adolph J. Lobato, Bonifacio “Bonnie” Lobato, Carlos Lobato,
Emilio Lobato, Jr., Eugene Lobato, Henry Lobato, Jose F. Lobato, Pete Lobato,
Presesentacion Lobato, Crucito Maes, Bert Maestas, Manuel Maestas, Norman
Maestas, Raymond J. Maestas, Robert “Bobby” Maestas, Clorindo Martinez,
David Martinez, Eugene Martinez, Hubert J. Martinez, Jesse Martinez, Jesse
Martinez, Leonardo Martinez, Rosendo Martinez, Solestiano Martinez, Agatha
Medina, Alfonso Medina, Cory Medina, Gilbert Medina, Leonardo Medina,
Loyola Medina, Marvin Medina, Orry Medina, Raymond M. Medina, Gilbert
“Andres” Montoya, Rudy Montoya, Willie Ray Montoya, Frank Olivas, Gurtrude
C. Olivas, Shirley Romero Otero, Eppy Quintana, Apolinar Rael, Henry
Rodriguez, Robert Romero, Bentura Roybal, Lucille Samelko, Anthony Sanchez,
Bonnie Sanchez, Eugene Sanchez, Evan Sanchez, Frank Sanchez, Gerald
Sanchez, James Sanchez, Jose G. Sanchez, Rufino Sanchez, S.R. Sanchez,
Vernon Sanchez, Ronald A. Sandoval, Elesam Santistevan, Daniel Segura,
Floyd R. Solan, Carolyn Taylor, Jose R. Torres, Arnold Valdez, Sam Valdez,
Emejido Vialpando, Lawrence Vialpando, Martha Vialpando, Ervin L. Vigil, Joe
P. Vigil, Larry J. Vigil, Manuel Vigil, Michael J. Vigil, Walter Vigil, David
Cordova, Jerome Cordova, Matthew Cordova, Rodney Cordova, S. Raymond
Cordova, Theresa Cordova, Isidro Gomez, Rosalie Gallegos, Mark Martinez,
Daniel Martinez, Mike Martinez, Joseph Medina, Manuel Pacheco, Silas
Pacheco, Julian Padilla, and Mary Renden,
Plaintiffs-Appellees and Cross-Appellants.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division III
                         Opinion by JUDGE WELLING
                         Webb and Harris, JJ., concur

                        Announced November 15, 2018


Squire Patton Boggs, LLP, Carolyn L. McIntosh, Aaron A. Boschee, Brent R.
Owen, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants Billy
Alire, Willie Alire, Leonides Atencio, Robert Atencio, Frances D. Berggran-
Buhrles, Zach Bernal, Jose Fred Carson, Emilio DeHerrera, Juan DeHerrera,
Adeline Espinosa, Edward Espinosa, Elmer Manuel Espinoza, Margurito
Espinoza, Pete E. Espinoza, Corpus Gallegos, Gloria Gallegos, Jose A. Gallegos,
Moises Gallegos, Ruben Gallegos, Rupert Gallegos, Raymond Garcia, Richard
J. Garcia, Robert Garcia, Manuel Gardunio, Ruben Herrara, Gilbert G. Herrera,
Charlie Jacquez, Jr., J.R. Jaquez, Jeffrey Jaquez, Maria Jaquez, Adelmo Kaber,
Juan Lacombe, Adolph J. Lobato, Bonifacio “Bonnie” Lobato, Carlos Lobato,
Emilio Lobato, Jr., Eugene Lobato, Henry Lobato, Jose F. Lobato, Pete Lobato,
Presesentacion Lobato, Crucito Maes, Bert Maestas, Manuel Maestas, Norman
Maestas, Raymond J. Maestas, Robert “Bobby” Maestas, Clorindo Martinez,
David Martinez, Eugene Martinez, Hubert J. Martinez, Jesse Martinez, Jesse
Martinez, Leonardo Martinez, Rosendo Martinez, Solestiano Martinez, Agatha
Medina, Alfonso Medina, Cory Medina, Gilbert Medina, Leonardo Medina,
Loyola Medina, Marvin Medina, Orry Medina, Raymond M. Medina, Gilbert
“Andres” Montoya, Rudy Montoya, Willie Ray Montoya, Frank Olivas, Gurtrude
C. Olivas, Shirley Romero Otero, Eppy Quintana, Apolinar Rael, Henry
Rodriguez, Robert Romero, Bentura Roybal, Lucille Samelko, Anthony Sanchez,
Bonnie Sanchez, Eugene Sanchez, Evan Sanchez, Frank Sanchez, Gerald
Sanchez, James Sanchez, Jose G. Sanchez, Rufino Sanchez, S.R. Sanchez,
Vernon Sanchez, Ronald A. Sandoval, Elesam Santistevan, Daniel Segura,
Floyd R. Solan, Carolyn Taylor, Jose R. Torres, Arnold Valdez, Sam Valdez,
Emejido Vialpando, Lawrence Vialpando, Martha Vialpando, Ervin L. Vigil, Joe
P. Vigil, Larry J. Vigil, Manuel Vigil, Michael J. Vigil, and Walter Vigil

Polsinelli, PC, Bennett L. Cohen, Denver, Colorado, for Plaintiffs-Appellees and
Cross-Appellants David Cordova, Jerome Cordova, Matthew Cordova, Rodney
Cordova, S. Raymond Cordova, Theresa Cordova, Isidro Gomez, Rosalie
Gallegos, Mark Martinez, Daniel Martinez, Mike Martinez, Joseph Medina,
Manuel Pacheco, Silas Pacheco, Julian Padilla, and Mary Renden
Spencer Fane LLP, Ronald L. Fano, Jamie N. Cotter, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee Cielo Vista Ranch I, LLC

Dill, Dill, Carr, Stonbraker & Hutchings, P.C., John J. Coates, Denver,
Colorado, for Defendants-Appellants and Cross-Appellees Jaroso Creek Ranch,
LLC, and Western Properties Investors, LLC

Butler Snow, LLP, Martina Hinojosa, Denver, Colorado, for Amicus Curiae
¶1    The origins of this case predate Colorado’s statehood, and

 along the way the parties have endured a long and circuitous road,

 which has included three prior visits to this court and three

 supreme court opinions. This appeal concerns the remand

 proceedings conducted pursuant to the supreme court’s two most

 recent decisions in this case: Lobato v. Taylor, 71 P.3d 938 (Colo.

 2002) (Lobato I), and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003), as

 modified on denial of reh’g (June 16, 2003) (Lobato II). These

 remand proceedings were initiated fourteen years ago, in 2004, and

 remained active until this appeal.

¶2    Appellants are CVR Properties, Ltd., Jaroso Creek Ranch, LLC,

 and Western Properties Investors LLC, the owners of Cielo Vista

 Ranch and other properties that were once known as the Taylor

 Ranch (the Ranch). (We will refer to appellants collectively as

 Ranch Owner.) Ranch Owner challenges the trial court’s

 implementation of the supreme court’s mandate on remand.

 Appellees are landowners in Costilla County whose rights to access

 the Ranch to graze livestock and gather firewood and timber were

 decreed through the remand proceedings. Landowners have also




                                      1
 cross-appealed, challenging certain proceedings on remand as

 contrary to the mandate.

¶3    In Lobato I and Lobato II, the supreme court held that Costilla

 County landowners whose land was settled as of 1869 were entitled

 to access the Ranch for grazing and to take firewood and timber.1

 See Lobato I, 71 P.3d at 956; Lobato II, 70 P.3d at 1167. Carlos

 Beaubien had recruited frontier families to settle in the area in the

 1850s and induced settlement by granting settlers the right to

 access and use the Ranch for grazing, firewood, and timber. This

 grant was memorialized in a Spanish language document — the

 Beaubien Document — that was executed and recorded by

 Beaubien in 1863. The supreme court held that Beaubien had

 granted permanent access rights that run with the land. Lobato I,

 71 P.3d at 948-50. When it remanded the case after Lobato II, the

 supreme court “direct[ed] the trial court to identify all landowners

 who have access rights to the [Ranch] and to enter all necessary




 1This is also referred to as the time of Gilpin because at that time
 William Gilpin owned the Ranch. In October 2007, the trial court
 determined that the time of Gilpin ended on January 27, 1869.
 This determination is not being contested on appeal.

                                   2
 and appropriate orders to safeguard those rights.” Lobato II, 70

 P.3d at 1156.

¶4    To the extent the issues on appeal challenge the trial court’s

 implementation of the supreme court’s mandate, our role is limited

 to reviewing the trial court’s compliance with the mandate. We are

 not free to disregard or modify the supreme court’s mandate.

 Simply put, we have no more latitude than the trial court to rewrite

 or second-guess the mandate. Only the supreme court is free to

 modify its mandate. To the extent either party invites us to do so,

 we must decline.

¶5    On appeal, Ranch Owner contends that the proceedings on

 remand from 2004 through 2010, when the trial court identified

 most of the landowners with access rights to the Ranch, violated

 the mandate. Ranch Owner raises several contentions of error.

 Ranch Owner’s central contention is that the trial court’s “opt-out”

 process, pursuant to which it decreed access rights for individual

 Costilla County landowners even if they had not come forward to

 make a claim, improperly relieved these landowners of their burden

 of proof.




                                   3
¶6    On cross-appeal, landowners contend that the trial court

 violated the mandate when, in 2010, it switched to an “opt-in”

 process to identify any remaining Costilla County landowners with

 access rights. They contend that this opt-in process, implemented

 from 2010 through 2016, failed to comprehensively identify all

 Costilla County landowners with access rights, as required by the

 mandate.

¶7    For the reasons set forth in this opinion, we conclude that the

 opt-out proceedings on remand from 2004 through 2010 were

 largely consistent with Lobato II’s mandate. But we also conclude

 that the opt-in process implemented from 2010 through 2016 failed

 to discharge the mandate because that portion of the identification

 process also could have been comprehensive, but was not.

¶8    During the opt-out proceedings from 2004 through 2010, the

 trial court identified benefited landowners based on an official 1894

 Costilla County land survey, which the supreme court described as

 “the best [available] evidence of benefited properties conveyed by

 Beaubien.” Lobato II, 70 P.3d at 1159 n.6. We refer to the 1894

 survey as “Map A and Book E” because of its location in the Costilla

 County records. Map A demarcates the boundaries and locations of


                                   4
 the original vara strip tracts2 conveyed by Beaubien to settlers,

 while Book E describes each tract shown on Map A and identifies

 the settler to whom Beaubien originally conveyed the tract.3 Based

 on footnote six from Lobato II and the absence of contrary evidence,

 the trial court presumed that all Map A and Book E lands were

 settled as of 1869, which entitled their present-day owners to

 access the Ranch.

¶9    For the duration of the opt-out process, the trial court worked

 backward from Map A and Book E to identify benefited Costilla

 County landowners and adjudicate their rights. It appointed the

 owner of the San Luis Valley Title Company to identify the present-

 day owners of the lands shown on Map A. After these benefited

 landowners were identified, Ranch Owner could assert res judicata

 as an affirmative defense to bar the claims of any individual




 2 A “vara” refers to a stretch of approximately 33 inches along the
 bank of a river or creek. A “vara strip” is an area of land one vara
 long with its width running to the boundary of the adjacent
 watershed.
 3 Ultimately, in January 2015, Ranch Owner stipulated that all Map

 A lands were timely settled.

                                   5
  landowners.4 Once the trial court determined that a benefited

  landowner was not subject to res judicata, it notified that

  landowner of his or her right to access the Ranch for reasonable

  grazing of livestock and to gather timber and firewood for household

  use. Any landowner whom the trial court found to be barred by res

  judicata was notified and given an opportunity for a hearing.

  Landowners were not otherwise required to come forward in order

  to assert individual claims as a condition of the trial court

  adjudicating their rights. Around 4500 Costilla County landowners

  gained access rights to the Ranch through the proceedings from

  2004 through 2010, which we refer to as the opt-out process.

¶ 10   In 2010, once the trial court had identified and adjudicated

  the rights of most present-day owners of the lands in Map A and

  Book E, it implemented a new process under which any remaining



  4 Ranch Owner asserted res judicata against certain landowners by
  presenting evidence that the landowner or the landowner’s
  predecessor in interest was personally served with adequate notice
  of the 1960 Torrens actions brought in federal court, described in
  Part I, infra. We use the term “res judicata” throughout this
  opinion instead of the preferred term “claim preclusion” in order to
  be consistent with the prior opinions in this case. See Lobato II, 70
  P.3d at 1156 n.2 (explaining use of the term res judicata instead of
  claim preclusion).

                                     6
  landowners with access rights were required to come forward and

  assert a claim before the trial court would adjudicate their rights.

  Because this process required landowners to affirmatively come

  forward to have their rights adjudicated, we refer to the proceedings

  from 2010 through 2016 as the opt-in process. Approximately 350

  more Costilla County landowners gained access rights to the Ranch

  during this time.

¶ 11   We conclude that the opt-out process implemented from 2004

  through 2010 produced an efficient and comprehensive result with

  respect to the Map A portion of Costilla County. In our view, the

  opt-out process was consistent with the supreme court’s mandate

  to identify all benefited landowners on remand.

¶ 12   In contrast, however, we conclude that the opt-in process

  implemented from 2010 through 2016 did not fully comport with

  the mandate because the trial court, pursuant to that process,

  failed to comprehensively and conclusively adjudicate the access

  rights of landowners in the remainder of Costilla County, even

  though it could have done so while remaining faithful to the

  mandate.




                                    7
¶ 13   During this second phase of the proceedings on remand, the

  trial court could have identified all remaining Costilla County

  landowners with access rights by using a combination of the same

  general opt-out process used from 2004 through 2010, in addition

  to a modified opt-in process. Although Map A and Book E had been

  exhausted as a reference for identifying benefited lands, landowners

  presented undisputed evidence showing that other lands — lands

  outside of Map A — were timely settled. Because the trial court

  never attempted to identify all present-day owners of these

  undisputedly timely settled lands, instead adjudicating the rights of

  only those landowners who came forward to assert claims, we

  conclude that it failed to discharge its mandate. We, therefore,

  reverse the trial court’s October 2016 order to the extent it requires

  any remaining landowners entitled to access the Ranch to come

  forward, and remand the case to the trial court with instructions to

  identify all remaining owners of benefited lands in Costilla County

  and adjudicate their rights. In all other respects, we affirm the trial

  court’s orders that are challenged on appeal.




                                     8
                            I.    Background

¶ 14   A detailed recitation of the historical events underlying this

  case was provided by the supreme court in Lobato I, see 71 P.3d at

  942-45, and Lobato II, see 70 P.3d at 1155-57. We will not repeat it

  here. Instead, we limit our background section to the facts

  necessary to understand the issues presented by this appeal.

¶ 15   The relevant case history begins in 1960, when Jack Taylor

  purchased the vast majority of the land that now constitutes the

  Ranch. Taylor purchased the land with notice of landowners’

  existing use of the Ranch; his deed provided that he took the land

  subject to “claims of the local people by prescription or otherwise to

  right to pasture, wood, and lumber . . . upon said land.”

  Nevertheless, he soon fenced the property and barred landowners’

  entry. In 1960, Taylor also filed a Torrens action in federal district

  court in Denver.5 In his Torrens action, Taylor sought to perfect his

  title and extinguish the landowners’ access claims. But Taylor


  5 The Colorado Torrens Title Registration Act allowed land owners to
  file an action that would essentially quiet title to their land.
  §§ 118-10-1 to -102, C.R.S. 1960 (now codified at §§ 38-36-101
  to -199, C.R.S. 2018). Because Taylor was a North Carolina
  resident, he invoked the federal court’s diversity jurisdiction. See
  Lobato I, 71 P.3d at 943, n.1.

                                     9
  personally served only a small fraction of Costilla County

  landowners with notice of his Torrens action, with the majority of

  landowners receiving notice only by publication. The district court

  ruled that landowners had no rights to the Ranch, and the Tenth

  Circuit Court of Appeals affirmed. See Sanchez v. Taylor, 377 F.2d

  733 (10th Cir. 1967).

¶ 16   In 1973, Taylor purchased an adjoining, 2500-acre parcel of

  land known as the Salazar estate. The Salazar estate was also part

  of the original Sangre de Cristo grant that was once owned by

  Beaubien. Taylor’s predecessor in title to the Salazar estate had

  also filed a Torrens title action in 1960, which similarly determined

  that Costilla County landowners had no rights to access the estate.

  We will refer to Taylor’s 1960 Torrens action and the 1960 Salazar

  Torrens action together as the 1960 Torrens actions.

¶ 17   In 1981, a number of Costilla County landowners filed this

  action in Colorado state court, asserting that Taylor’s actions to bar

  their entry violated their rights to access the Ranch. The district

  court held that the doctrine of res judicata barred the suit because

  the Salazar Torrens action and the Sanchez decision were binding

  upon them. A division of this court affirmed. Rael v. Taylor, 832


                                    10
  P.2d 1011, 1014 (Colo. App. 1991). The supreme court then

  granted certiorari and reversed in part and remanded, questioning

  the constitutional adequacy of the publication notice in the 1960

  Torrens actions. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo. 1994).

  The supreme court directed the trial court to determine which

  landowner plaintiffs had received adequate notice in the 1960

  Torrens actions, and to hold a trial on the merits.

¶ 18   The trial court, on remand, dismissed all but ten landowner

  plaintiffs as barred by res judicata and denied class certification. It

  then held a trial on the merits and determined that the remaining

  landowners had not proved prescriptive rights to the Ranch because

  their use was not adverse. The trial court also denied landowners’

  claims based on the Beaubien Document and implied rights

  doctrines. A division of this court affirmed. Lobato v. Taylor, 13

  P.3d 821 (Colo. App. 2000). Landowners appealed, and the

  supreme court granted certiorari in Lobato I.

                              A.    Lobato I

¶ 19   In Lobato I, the supreme court reversed the court of appeals

  and held that the original settlers of Beaubien’s grant and their

  successors in title had implied rights of access to the Taylor Ranch


                                    11
  for reasonable grazing, firewood, and timber. 71 P.3d at 957. The

  supreme court excluded hunting, fishing, and recreation from the

  scope of the landowners’ rights. Id. It defined the Taylor Ranch as

  including two parcels of land: the 77,000-acre mountain tract and

  the 2500-acre Salazar estate. Id. at 943-44.

¶ 20   After deciding Lobato I, the supreme court retained jurisdiction

  and directed the parties to brief due process and res judicata issues

  left unresolved by the supreme court’s Lobato I opinion. Id.

                             B.    Lobato II

¶ 21   The supreme court decided the remaining issues in Lobato II,

  where it held that landowners who were successors to the original

  settlers of the land grant had reasonable access rights to the Taylor

  Ranch. 70 P.3d at 1167. The supreme court also held that Taylor

  had not satisfied due process when he served landowners with

  notice by publication in his 1960 Torrens action, but that res

  judicata barred claims by landowners and their successors who

  were “personally named and served” in the Torrens action. Id. at

  1166-67.

¶ 22   With those remaining issues resolved, the supreme court

  remanded the case for the trial court to “identify all landowners who


                                   12
  have access rights to the Taylor Ranch and to enter all necessary

  and appropriate orders to safeguard these rights.” Id. at 1167-68.

                C.    Remand Process Following Lobato II

¶ 23   Early in the remand proceedings, the trial court articulated its

  understanding of the supreme court’s mandate. It explained that,

  pursuant to Lobato II, it was “responsible for identifying the current

  landowners who have access rights to the former Taylor Ranch.”

  The trial court described this process as an “administrative task”

  that should be completed “as quickly as possible.” It acknowledged

  that “other contested issues” would arise during the identification

  process but advised the parties that any such issues “should be

  litigated after the major portion of the identification process is

  completed.”

¶ 24   Before the identification process began, the trial court granted

  access rights to the nine landowners who the supreme court held

  had proved their claims by tracing their titles to the time of Gilpin.6

  See Lobato II, 70 P.3d at 1159 n.5. The trial court ordered that

  these landowners were not restricted as to whom they were allowed


  6The nine landowners include the seven plaintiffs in Lobato II as
  well as two landowner intervenors.

                                     13
  to bring onto the Ranch to assist in the exercise of their rights, but

  it advised Ranch Owner that it “may subsequently present matters

  to the Court” if landowners “are abusing the land or their rights.”

¶ 25   In January 2004, before the trial court had decided how to

  proceed, Ranch Owner proposed a plan to personally serve all

  Costilla County landowners with notice of the proceedings and

  require them to come forward and make a claim to access the

  Ranch or be forever barred from asserting an access claim. The

  trial court rejected Ranch Owner’s proposal, observing that “[t]here

  are presently over 31,000 individual landowners” in Costilla County

  and that joinder of each individual landowner to the action would

  be “totally impractical.” Additionally, the trial court expressed

  concern that personal service on all Costilla County landowners

  would not be sufficient to ensure the participation of all benefited

  landowners because many landowners would likely misapprehend

  the notices and believe that their rights had been adjudicated.

¶ 26   Rather than require each individual landowner to come

  forward to make a claim, the trial court decided to adjudicate

  landowners’ rights by relying on the best available evidence of

  timely settlement — namely, Map A and Book E. The trial court


                                    14
  then certified a class comprised of “all Costilla County landowners

  with use rights claims.”7 Finding that “this case represents a

  unique situation in which the conventional requirements of a class

  action have been determined” by the supreme court and that

  joinder of all 31,000 landowners in Costilla County would be

  impractical, the trial court ruled that class certification was both

  necessary and authorized under C.R.C.P. 23.

¶ 27   Next, the trial court laid out a two-phase process to identify

  and adjudicate the rights of benefited landowners.

¶ 28   First, the trial court would identify all present-day owners of

  the lands shown on Map A. For that purpose, the trial court

  appointed David Duncan, the owner of San Luis Valley Title

  Company, as “an abstractor to advise the Court by written report of

  those present-day landowners in Costilla County who are

  successors in title to the original settlers of the Beaubien grant.”8

  This was the opt-out process.



  7 The trial court designated as class representatives the seven
  landowner plaintiffs and two intervenors who the supreme court
  held were entitled to access the Ranch.
  8 With respect to its decision to appoint Mr. Duncan in this

  capacity, the trial court observed that “the San Luis Valley Title

                                     15
¶ 29   Second, once the identification process based on Map A and

  Book E was completed “to the Court’s satisfaction,” the trial court

  advised that it would “adopt other procedures to notify, locate, and

  adjudicate the rights of other present landowners who claim access”

  to the Ranch. This became the opt-in process.

¶ 30   Both the opt-out and opt-in processes included a res judicata

  component. Where Ranch Owner presented evidence sufficient to

  show that any individual landowner or a predecessor in interest

  was personally served in Taylor’s 1960 Torrens action or the 1960

  Salazar Torrens action, the trial court barred his or her access

  claim pursuant to res judicata. Depending on whether the evidence

  showed that the landowner was personally served in Taylor’s 1960

  Torrens action, the 1960 Salazar Torrens action, or both, the trial

  court barred that landowner’s claim to the mountain tract, the

  Salazar estate portion of the Ranch, or both.




  Company has the plat of real estate records and transactions in
  Costilla County that is superior to that in the office of the county
  clerk and recorder.”

                                    16
                 1.   The Opt-Out Process: 2004-2010

¶ 31   The title company submitted its initial report to the trial court

  in September 2004 (the 2004 Duncan Report). The report identified

  sixteen separate tracts of land from Map A. For each tract, the

  report cited to the page number within Book E where the tract was

  located and identified to whom Charles Beaubien made the original

  conveyance, the 1960 owner,9 and the present-day owner.

¶ 32   In March 2005, the trial court decreed access rights for the

  owners of the tracts identified in the 2004 Duncan Report. In the

  order granting access rights, the trial court found that the

  information contained in the 2004 Duncan Report, considered

  along with the statements of the title company owner describing

  “the use of Map A and Book E together with the book and page

  number of each transaction,” established by a preponderance of the

  evidence that “the information contained therein is true.” The trial




  9The trial court directed the title company to identify the 1960
  owner of each tract to enable Ranch Owner to assert res judicata as
  a defense by presenting evidence to show that the 1960 owner was
  personally named and served in connection with the 1960 Torrens
  actions.

                                    17
  court also found that “no objection has been raised to the accuracy

  of or the factual information in the” 2004 Duncan Report.

¶ 33   The trial court then found that “all tracts identified in the

  Duncan Report of September 30, 2004 were timely settled,”

  explaining that “[t]he report identifies each tract examined as one

  deeded by Carlos Beaubien to a first settler during Beaubien’s

  lifetime and that such determination is sufficient to establish the

  issue of timely settlement. The [Ranch Owner] Defendants have

  presented no competent evidence to the contrary.” Later in the

  remand proceedings, Ranch Owner stipulated to the timely

  settlement of all Map A lands.

¶ 34   In addition to finding that these tracts were timely settled, the

  trial court found that the 2004 Duncan Report “establishes the

  conclusive identity of the current owners,” and that Ranch Owner

  “presented no competent evidence to the contrary.” The trial court

  concluded, therefore, that the landowners identified in the 2004

  Duncan Report had access rights to the Ranch, subject to the res

  judicata bar.

¶ 35   It then turned to the res judicata bar. The trial court found

  that, because “[r]es judicata in this case is a limitation upon a


                                    18
  person otherwise entitled to the right of access,” the bar “must be

  total and complete to be effective.”10 For example, the trial court

  explained, “a successor in title is not barred by the doctrine of Res

  Judicata who receives title through the barred co-owner and a co-

  owner who is not barred.” The trial court also considered Ranch

  Owner’s offer of proof, which included evidence of the returns of

  service in the 1960 Torrens actions.

¶ 36   The trial court then determined, on a tract-by-tract basis,

  whether any of the tracts listed in the 2004 Duncan Report were

  subject to the res judicata bar. After making findings about each

  tract, the trial court concluded that all such tracts that were not

  subject to the bar were entitled to access the Ranch “to graze

  animals, gather firewood, and remove timber.”




  10 Additionally, the trial court found that the Colorado Rules of Civil
  Procedure in effect when the Torrens actions were filed in 1960
  required that, to be effective, personal service must be made either
  to the named individual personally or to an adult family member at
  the individual’s residence. See C.R.C.P. 4(e)(1) (1960); see also
  § 118-10-21, C.R.S. 1960 (requiring that service in a Torrens action
  must comply with the Colorado Rules of Civil Procedure). It also
  found that the summons must be served with the application for
  personal service to be adequate. See § 118-10-15, C.R.S. 1960.

                                    19
¶ 37   From 2005 to 2010, the title company periodically issued new

  reports identifying separate Map A tracts and the present and 1960

  owners of each tract. In 2006, the title company’s reports revealed

  that certain portions of the Ranch were comprised of original vara

  strip lands that were once benefited by Beaubien’s grant.

¶ 38   The trial court decreed access rights for the landowners

  identified in the Duncan Reports whose claims were not barred by

  res judicata. When the court determined that a landowner was

  barred by res judicata, that landowner was notified and offered a

  hearing. Through this initial phase of the identification process, the

  trial court identified all present-day owners of land within Map A.

  Altogether, this process resulted in access rights being decreed for

  4500 landowners and 6000 parcels.11




  11During the opt-out process, the trial court also presumed timely
  settlement and decreed access rights for landowners in the towns of
  San Luis, San Pablo, and Los Vallejo, on the grounds that each
  town was mentioned in Beaubien’s granting document. The trial
  court adjudicated access rights for these landowners through the
  same process used for Map A and Book E landowners.

                                   20
¶ 39   The opt-out process reached substantial completion by 2010.12

  With the opt-out process nearing completion and upon finding no

  just reason to further delay entry of a final judgment, the trial court

  certified its orders on remand as final under C.R.C.P. 54(b). Ranch

  Owner appealed the judgment. Landowners cross-appealed. But a

  division of this court dismissed the appeal without prejudice as

  premature, concluding that the trial court had not, in fact, entered

  a final appealable judgment. See Lobato v. CVR Props., Ltd., (Colo.

  App. No. 09CA1822, Feb. 4, 2010) (unpublished order).

                  2.      The Opt-In Process: 2010-2016

¶ 40   In 2010, having exhausted the identification based on Map A

  and Book E, the trial court initiated a new identification process,

  the opt-in process.13

¶ 41   The trial court initiated the opt-in process by sending notices

  by mail to all landowners in the southern portion of Costilla




  12 Because the pace of the title company’s work slowed toward the
  end of the process due to the ailing health of the principals, it did
  not issue its final report until May 2012.
  13 In February 2010, the presiding trial court judge, Judge Gaspar

  Perricone, retired and was replaced by Judge Kenneth Plotz.

                                     21
  County14 advising them of their right to participate in the opt-in

  identification process. Ranch Owner did not renew its proposal to

  personally serve all Costilla County landowners.15 Each notice

  advised that the landowner must respond within 120 days to

  participate in the opt-in process, but stated that “[l]andowners will

  not lose their opportunity to establish access rights if they choose

  not to participate in the identification process.” Altogether,

  approximately 23,000 advisory notices were mailed; roughly 1200

  landowners came forward to make claims, and the trial court

  granted access rights to around 350 additional parcels.

¶ 42   In January 2015, landowners and Ranch Owner entered into a

  joint stipulation “to delineate certain geographic areas within

  Costilla County that were settled by January 1869.” The parties

  stipulated that “landowners in Costilla County who are able to trace


  14 In the time of Gilpin, the Sangre de Cristo land grant was divided
  into two parcels: a southern portion (Costilla Estate) and a northern
  portion (Trinchera Estate). Finding no evidence that Gilpin
  transferred any lands in the northern portion to settlers, the trial
  court concluded that notice need only be mailed to landowners in
  the southern half of Costilla County. The parties thereafter
  stipulated to a line dividing the northern and southern halves of
  Costilla County.
  15 Nor did Ranch Owner request to personally serve all landowners

  whose access rights had not been adjudicated one way or the other.

                                    22
  the settlement of their property to the Time of Gilpin, defined as

  January 1869 . . . are entitled to all appurtenant easement rights

  delineated by the Court in Lobato II.” The parties further stipulated

  that all lands delineated in the map attached to the stipulation —

  areas termed the “Stipulated Settled Lands” — were settled no later

  than January 1869. The Stipulated Settled Lands encompassed all

  of the Map A and Book E land, plus the towns that were named in

  the Beaubien Document and lands that were within the other

  settlements to which Ranch Owner previously stipulated. The

  stipulation provided that “landowners may obtain Easement Rights

  for their property by showing, through the best available evidence,

  that their property is situated within the Stipulated Settled Lands.”

¶ 43   In 2016, after the trial court adjudicated the claims of those

  landowners who responded to the 2010 advisory notices, Ranch

  Owner moved to serve any unidentified or nonresponding claimants

  with notice through publication. The trial court denied Ranch

  Owner’s motion, concluding that service by publication would

  violate the supreme court’s mandate by extinguishing the rights of

  any landowners who did not then come forward, without any

  attempt to personally serve them. The trial court concluded that


                                    23
  “pragmatic finality” was achievable for purposes of Rule 54(b)

  without service by publication and certified its orders as final for

  appeal. The trial court reiterated that landowners whose rights had

  not been adjudicated were not foreclosed from asserting a claim in

  the future.

¶ 44   This appeal and cross-appeal followed.

                              II.   Analysis

¶ 45   Ranch Owner presents six claims on appeal, contending that

  (1) the trial court’s opt-out identification process on remand violated

  the supreme court’s mandate; (2) the trial court improperly decreed

  access rights to the Salazar estate portion of the Ranch through the

  same process used for the mountain tract portion of the Ranch; (3)

  the trial court erred in limiting the res judicata bar to landowners

  “personally named and served” in the 1960 Torrens actions,

  ignoring well-settled Colorado law concerning co-owners and

  successors; (4) the trial court improperly deprived Ranch Owner of

  the finality required in a quiet title action pursuant to C.R.C.P. 105

  by denying Ranch Owner’s request for service by publication at the

  conclusion of the opt-in process; (5) the trial court improperly

  refused to apportion landowners’ access rights in proportion to their


                                    24
  parcel sizes or implement rules and regulations governing their use

  to avoid harm to the Ranch; and (6) the trial court improperly

  refused to bar landowners from exercising access rights on portions

  of the present-day Ranch that were once part of the dominant

  estate and, therefore, not subject to the access rights.

¶ 46   Landowners cross-appeal, contending that the trial court’s

  opt-in identification process implemented in 2010 violated the

  supreme court’s mandate.

¶ 47   Before we discuss each issue raised by the parties, we first

  address whether the trial court properly certified its orders as a

  final judgment for appeal pursuant to Rule 54(b), as a jurisdictional

  requirement.

         A.    Finality of the Trial Court’s Judgment for Appeal

¶ 48   Ranch Owner and landowners contend that the trial court’s

  final judgment is sufficiently final pursuant to Rule 54(b) to confer

  jurisdiction over the appeal and cross-appeal. For the reasons set

  forth below, we agree.

                       1.   Additional Background

¶ 49   In October 2016, as described in Part I.C, supra, the trial

  court issued a final order that certified all prior orders adjudicating


                                    25
  access rights for landowners as final and appealable pursuant to

  Rule 54(b). The trial court acknowledged that “there may be

  additional landowners whose property has access rights that have

  not yet been adjudicated,” but concluded that it had carried out its

  mandate “as completely as is reasonably possible” and “reached

  pragmatic finality.” The trial court also noted that “the

  identification process has taken over a decade,” and that no new

  landowner claimants had come forward in the past eight months. It

  reasoned that the remand proceedings “at some point must be

  considered final” for appeal, even though any remaining landowner

  claimants were not foreclosed from coming forward in the future.

¶ 50   In June 2017, this court ordered the parties to show cause as

  to why Ranch Owner’s appeal and landowners’ cross-appeal should

  not be dismissed for lack of jurisdiction. In the show cause order,

  we noted that the trial court’s October 2016 order “does not contain

  an express determination that there is no just reason for delay

  and . . . express direction for the entry of judgment,” as Rule 54(b)

  requires for an order to be certified as final and appealable.




                                    26
                              2.   Rule 54(b)

¶ 51   When an action involves multiple parties or multiple claims for

  relief, Rule 54(b) permits a court to direct entry of a final judgment

  as to fewer than all claims or parties. Rule 54(b) creates an

  exception to the general rule that an entire case must be resolved

  by a final judgment before an appeal is brought. Grear v. Mulvihill,

  207 P.3d 918, 921 (Colo. App. 2009). Rule 54(b) provides that the

  court may direct the entry of a final judgment as to fewer than all

  claims or parties “only upon an express determination that there is

  no just reason for delay and upon an express direction for the entry

  of judgment.”

¶ 52   Where multiple parties are involved, a certification under Rule

  54(b) is proper when (1) the decision certified is final in the sense of

  being an ultimate disposition of an individual claim and (2) the trial

  court determines that there is no just reason for delay in entry of a

  final judgment on the claim. See Harding Glass Co. v. Jones, 640

  P.2d 1123, 1125 (Colo. 1982) (describing a three-step process to

  determine whether Rule 54(b) certification is proper); see also Lytle

  v. Kite, 728 P.2d 305, 308 (Colo. 1986) (“[T]he first prong of the




                                     27
  Harding Glass requirements does not apply to a certified decision

  involving multiple parties.”).

¶ 53   Our jurisdiction to entertain an appeal of a decision certified

  under Rule 54(b) depends upon the correctness of the certification.

  Carothers v. Archuleta Cty. Sheriff, 159 P.3d 647, 651 (Colo. App.

  2006). We review de novo the legal sufficiency of the trial court’s

  certification. Id.

       3.    The Trial Court Properly Certified Its Orders as Final
                            Judgments for Appeal

¶ 54   We conclude that, under these unusual circumstances, the

  trial court properly certified its judgment as final pursuant to Rule

  54(b). Directed by the supreme court in Lobato II to “identify all

  landowners who have access rights,” 70 P.3d at 1167 (emphasis

  added), the trial court spent more than a decade identifying and

  adjudicating access rights for thousands of landowners in Costilla

  County. These landowners’ claims were definitively resolved by the

  trial court. See Harding Glass Co., 640 P.2d at 1125 (Rule 54(b)

  certification requires ultimate disposition of an individual claim).

  Thus, the first of the two relevant Harding Glass requirements is

  satisfied here.



                                    28
¶ 55   Next, it is not fatal that the trial court’s final order itself did

  not include an express finding of no just reason for delay. See Cyr

  v. Dist. Court, 685 P.2d 769, 770 (Colo. 1984) (“In determining

  whether an order constitutes a final judgment, we must look not to

  the title of the instrument but to its content.”). At a June 2016

  hearing on whether to certify a final judgment pursuant to Rule

  54(b), the trial court made an oral finding that this was “a unique

  case yet there’s no just reason for further delay.” While this express

  finding was not included in the trial court’s final written order, the

  court determined that it had carried out its mandate “as completely

  as is reasonably possible” and reasoned that the proceedings “at

  some point must be considered final.” In our view, these findings

  are the functional equivalent to a finding that there is no just

  reason for delay.

¶ 56   Our conclusion is consistent with the purpose of Rule 54(b) —

  to avoid undue hardship from a delay in allowing an appeal. Allison

  v. Engel, 2017 COA 43, ¶ 32. Remand proceedings in this case

  have been ongoing for more than a decade. Therefore, the equitable

  interest in reaching an appealable resolution also weighs in favor of

  granting Rule 54(b) certification. See Lytle, 728 P.2d at 309 (stating


                                      29
  that equitable concerns favored resolution of dispute that had been

  ongoing for nine years).

¶ 57   Finally, Rule 54(b) certification in this case was not premature

  simply because the trial court had not adjudicated the rights of all

  potential landowner claimants in Costilla County, as the mandate

  directed. Requiring a comprehensive and complete result as a

  prerequisite for Rule 54(b) certification under these circumstances

  would potentially shield the trial court’s orders on remand from

  appellate review indefinitely. This is so because the trial court

  understood that any additional landowner claimants’ rights could

  not be adjudicated until they came forward on their own — a

  process with no identifiable end date. But while certain unknown

  claimants had not had their rights adjudicated when the trial court

  entered the Rule 54(b) certification, the trial court concluded that it

  had discharged its mandate to the extent “reasonably possible.”

  With no pending claims for a period of eight months, the trial court

  was well within its discretion in certifying its orders as final

  pursuant to Rule 54(b). Indeed, doing so allows this court to review

  the trial court’s conclusion that more comprehensive identification

  procedures were not reasonably possible, and to determine whether


                                     30
  additional identification procedures are required. If we instead

  concluded that a comprehensive and complete result was a

  prerequisite for Rule 54(b) certification, we would be required to

  remand for the trial court to produce a result that it already

  concluded was not reasonably possible, without reviewing the

  propriety of its conclusion in this regard. This would be untenable.

¶ 58    For these reasons, we conclude that the trial court’s Rule 54(b)

  certification was proper and we, therefore, have jurisdiction over

  this appeal.

       B.   Adherence to the Mandate During the Opt-Out Process

¶ 59    As discussed above, the proceedings on remand from 2004

  through 2010 comprise the opt-out process. Ranch Owner

  contends that the trial court contravened the supreme court’s

  mandate on remand during the opt-out process by granting access

  rights without requiring each claimant to first be notified and then

  appear to assert a claim or present evidence at a hearing. Ranch

  Owner argues that the trial court’s process on remand violated the

  mandate by eliminating the landowners’ burden to present evidence

  sufficient to meet their burden of proof, while at the same time




                                    31
  denying Ranch Owner the opportunity to test the evidence of timely

  settlement or present rebuttal evidence.

¶ 60    We are not persuaded that the trial court’s opt-out process

  was inconsistent with the supreme court’s mandate in Lobato II.

   1.    The Supreme Court’s Mandate and Instructions for Remand

¶ 61    In Lobato II, the supreme court provided specific directions to

  guide the remand proceedings. It held that, “[b]ecause the plaintiff

  landowners have prevailed on their claims, [Ranch Owner] now

  must pay the costs associated with identifying and notifying all

  persons who have access rights to the Taylor Ranch.” 70 P.3d at

  1167. The supreme court then “direct[ed] the trial court to identify

  all landowners who have access rights to the Taylor Ranch and to

  enter all necessary and appropriate orders to safeguard these

  rights.” Id. at 1167-68.

¶ 62    The supreme court’s opinion further instructed the trial court

  how to perform the identification on remand. It held that, “in order

  to have actual access rights to the Taylor Ranch, landowners must

  be able to show that their lands were settled at the time of the

  creation of the Beaubien document in 1863.” Id. at 1157. The

  supreme court also prescribed the actual mechanics for how


                                    32
  landowners were expected to prove their claims on remand. See id.

  (“For practical purposes, this requirement [to show that one’s lands

  were timely settled] can be established by tracing settlement of

  one’s property to the time of Gilpin’s ownership of the Taylor

  Ranch.”).

¶ 63   The supreme court also specified the standard of proof and

  identified the evidence that would presumptively meet the standard.

  It held that, “[u]sing the best available evidence, landowners must

  prove by a preponderance of the evidence that their property is

  included within the boundaries of property owned or occupied by

  settlers during the time of Gilpin’s ownership of the lands of the

  Sangre de Cristo grant.” Id. at 1159.

¶ 64   When the supreme court modified its Lobato II opinion in

  response to the parties’ petitions for rehearing, it included a

  footnote at the end of the sentence quoted above. That footnote

  provided as follows:

              We emphasize that the landowners need not
              prove a marketable chain of title for their
              property. As stated in the text, the landowners
              must use the best available evidence to prove
              their lands are benefited by the easements
              Beaubien granted. From the record before us,
              it appears that the best evidence of benefited


                                    33
            properties conveyed by Beaubien is the official
            1894 Costilla County survey and inventory of
            lands held by individuals along the Culebra,
            Vallejos, and San Francisco Creeks.16 Of
            course, we do not foreclose the landowners
            from presenting other evidence to prove their
            settlement claims.

  Id. at 1159 n.6.

                        2.   Standard of Review

¶ 65   A trial court’s implementation of an appellate mandate is

  reviewed de novo. Super Valu Stores, Inc. v. Dist. Court, 906 P.2d

  72, 77 (Colo. 1995); Hardesty v. Pino, 222 P.3d 336, 340 (Colo. App.

  2009). Where compliance with the appellate mandate requires

  evidentiary or other post-remand factual determinations by the trial

  court, we review for an abuse of discretion. Murray v. Just In Case

  Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16.

  3.   The Trial Court’s Remand Process During the Opt-Out Process
               Comported with the Supreme Court’s Mandate

¶ 66   Ranch Owner contends that the trial court’s opt-out process

  violated the supreme court’s mandate. Ranch Owner argues that

  the trial court should have implemented a process akin to the opt-



  16 As mentioned above, the 1894 Costilla County survey is referred
  to as “Map A and Book E” based on its location in the Costilla
  County real property records.

                                   34
  in process from the outset, and that the opt-out process was

  improper for three reasons. Ranch Owner argues that the trial

  court (1) relied on a conclusive presumption that relieved

  landowners of their burden of proof; (2) denied Ranch Owner the

  opportunity to examine the title company or inspect its work; and

  (3) improperly denied Ranch Owner the opportunity to present

  rebuttal evidence.

¶ 67    We are not persuaded that the trial court’s opt-out process

  was inconsistent with the mandate. We discuss each specific issue

  raised by Ranch Owner in turn.

   a.    The Trial Court’s Reliance on Map A and Book E During the
                Opt-Out Process Did Not Violate the Mandate

¶ 68    First, Ranch Owner contends that the trial court’s reliance on

  Map A and Book E evidence established a conclusive presumption

  that improperly relieved landowners of their burden of proof. We

  disagree. Instead, we conclude that the trial court’s reliance on

  Map A and Book E was consistent with the supreme court’s

  mandate in Lobato II.

¶ 69    In footnote six, which was added to Lobato II when it was

  modified after the parties’ petitions for rehearing, the supreme court



                                   35
  held that “landowners need not prove a marketable chain of title for

  their property.” 70 P.3d at 1159 n.6. Additionally, footnote six

  provided that, “[f]rom the record before us, it appears that the best

  evidence of benefited properties conveyed by Beaubien is the official

  1894 Costilla County survey and inventory of lands.” Id. As noted,

  the 1894 Costilla County survey referenced in footnote six is also

  known as Map A and Book E. Thus, the supreme court identified

  Map A and Book E as evidence presumptively sufficient (but not

  necessary) on remand to prove that an owner of a tract of land has

  rights to access the Ranch.

¶ 70   The relationship between footnote six and landowners’ petition

  for rehearing is also illuminating. In their petition, landowners

  asked the supreme court to “clarify the mechanism of proof that

  plaintiffs can use on remand to establish their claims.” Landowners

  “requested confirmation” that they would be able to “satisfactorily

  meet the Court’s requirement by presenting the best proof available

  of locations of land” settled in the time of Gilpin, “and that plaintiffs

  currently own or possess such tracts or portions thereof.”

  Landowners noted that the results of the 1894 Costilla County

  survey “are contained in” Map A and Book E, and that they were


                                     36
  “deeply concerned” that, on remand, Ranch Owner would argue

  “that each Plaintiff claiming access rights must individually produce

  a formal abstract or similar evidence containing a complete chain of

  title,” notwithstanding that “[s]uch information is what Map A and

  Book E officially catalogued.”

¶ 71   When the supreme court subsequently modified Lobato II, it

  added the statement prescribing the burden of proof that Ranch

  Owner contends was improperly lightened on remand: “Using the

  best available evidence, landowners must prove by a preponderance

  of the evidence that their property is included within the boundaries

  of property owned or occupied by settlers during the time of Gilpin’s

  ownership of the lands of the Sangre de Cristo grant.” 70 P.3d at

  1159. The supreme court appended footnote six to this sentence,

  stating that the “best evidence” in the record to meet this standard

  is Map A and Book E. Id. at 1159 n.6.

¶ 72   Because the supreme court’s identification of Map A and Book

  E as the “best evidence” appears to directly respond to landowners’

  request to clarify the “mechanism of proof” that would be sufficient

  on remand, we conclude that the trial court’s reliance on Map A and

  Book E was consistent with the mandate. For this reason — and


                                   37
  also because we conclude, as discussed below, that Ranch Owner

  was not denied the opportunity to challenge the Map A and Book E

  evidence before the trial court decreed access rights — we are not

  persuaded by Ranch Owner’s contention that the trial court

  improperly relied on a conclusive presumption that current owners

  of any property within the Map A and Book E record had access

  rights.

   b.       Any Restrictions Placed By the Trial Court on Discovery of a
                 Court-Appointed Expert Do Not Warrant Reversal

¶ 73    Second, Ranch Owner contends that the trial court improperly

  denied Ranch Owner the opportunity to depose or otherwise

  examine any representative of the title company during the remand

  proceedings or inspect the title company’s work product. We

  conclude that, even assuming the trial court erred by denying the

  parties access to a representative of the title company for

  depositions or other discovery, any error was harmless.

¶ 74    The trial court appointed the principal of the title company as

  “an abstractor to advise the Court by written report” of the present-

  day landowners whose property was settled in the time of Gilpin.

  Out of concern that allowing direct contact with title company



                                      38
  personnel would “interfere with” the title company’s work, the trial

  court barred the parties from deposing or otherwise directly

  contacting representatives of the title company. The court instead

  interposed itself between the parties and the title company,

  describing the title company’s process to the parties and inviting

  them to submit questions, which the trial court would then raise

  with the title company’s representatives. In prohibiting the parties

  from contacting representatives of the title company, the trial court

  also found that the title company’s reports were “self-explanatory”

  and provided “the background information for each one of the

  tracts.”

¶ 75   In its order of appointment, the trial court made no reference

  to CRE 706, but we conclude that the principal of the title company

  acted as a court-appointed expert witness pursuant to that rule.

  See CRE 706(a) (“The court may appoint any expert witnesses

  agreed upon by the parties, and may appoint expert witnesses of its

  own selection.”). CRE 706 is essentially identical to Federal Rule of

  Evidence 706, and “when the Colorado and Federal Rules of Civil

  Procedure are essentially identical, case law interpreting the federal

  rule is persuasive in analysis of the Colorado rule,” Forbes v.


                                    39
  Goldenhersh, 899 P.2d 246, 249 (Colo. App. 1994) (citing Harding

  Glass, 640 P.2d at 1125 n.3). Both rules authorize the parties to

  depose and cross-examine a court-appointed expert. See Fed. R.

  Evid. 706(b)(2), (b)(4); CRE 706(a). But these discovery

  requirements are inapplicable to court-appointed “advisors or

  consultants.” Reilly v. United States, 863 F.2d 149, 155 (1st Cir.

  1988). The line between “advisors or consultants” and expert

  witnesses is drawn based on whether the appointee “contribute[s]

  new evidence.” Id. at 156; see also Ass’n of Mexican-Am. Educators

  v. California, 231 F.3d 572, 590-91 (9th Cir. 2000) (deciding that

  court appointee not subject to Fed. R. Evid. 706 where court never

  relied on appointee “as a source of evidence”). Here, because the

  trial court relied on the title company as a source of evidence, it was

  not acting simply as an advisor or consultant. Thus, the trial

  court’s decision to prohibit the parties from examining

  representatives of the title company seems to have been contrary to

  CRE 706(a).

¶ 76   Nevertheless, Ranch Owner has not identified any prejudice

  that resulted from the trial court’s decision to limit access. Indeed,

  the record belies Ranch Owner’s contention that it was denied the


                                    40
  opportunity to inspect the title company’s work product. The title

  company’s reports were available for Ranch Owner’s inspection, and

  the trial court provided time after each status conference for Ranch

  Owner to raise questions about the title company’s process.

  Moreover, Ranch Owner has not identified any error in the title

  company’s work, nor any tract of land that was improperly granted

  access. Accordingly, because we cannot discern what, if any,

  information Ranch Owner could have acquired only through

  examination of the title company’s representatives and not through

  other means, any error by the trial court is harmless.

¶ 77   We are also not persuaded by Ranch Owner’s argument that

  being precluded from examining the principal of the title company

  prevented it from challenging the presumption that all of the land in

  the Map A and Book E area was timely settled. Ranch Owner’s

  argument in this regard appears to conflate the significance of the

  title company’s reports with that of the Map A and Book E evidence.

  The title company identified the owners and current descriptions of

  properties within the bounds of the land presumed to be timely

  settled (i.e., land on Map A). It did not determine that these

  properties were or were not timely settled. Thus, Ranch Owner’s


                                    41
  inability to examine a title company representative about these

  reports would not have prejudiced Ranch Owner’s ability to

  challenge the presumption that lands within Map A and Book E

  were timely settled. Moreover, any such issue was mooted by

  Ranch Owner’s eventual stipulation to the timely settlement of all

  Map A lands.

  c.   The Trial Court Did Not Deny Ranch Owner the Opportunity to
              Present Rebuttal Evidence to Map A and Book E

¶ 78   Next, Ranch Owner contends that the trial court denied it the

  opportunity to present rebuttal evidence to challenge the timely

  settlement of the area covered by Map A and Book E. We conclude

  that this contention is unsupported by the record.

¶ 79   In January 2015, Ranch Owner ultimately stipulated that all

  lands within Map A and Book E,17 as well as certain lands outside

  that area, were timely settled. Ranch Owner contends that the

  stipulation does not preclude this argument on appeal because the

  stipulation contained a clause reserving Ranch Owner’s “right to

  appeal any and all rulings, orders or determinations” entered on




  17At oral argument, both sides agreed that all of the Map A and
  Book E land is included in the map of Stipulated Settled Lands.

                                   42
  remand, including “those that determined . . . whether the

  Stipulated Settled Lands are part of the Burdened Property.” We

  are not persuaded that Ranch Owner’s reservation of the right to

  appeal the trial court’s orders nullifies its unambiguous stipulation

  to a factual matter — that is, that the lands identified in the

  stipulation were timely settled. To the extent Ranch Owner now

  argues that it was prejudiced because the trial court prevented it

  from presenting evidence to rebut the presumption that Map A and

  Book E lands were timely settled, we conclude that Ranch Owner’s

  contention is foreclosed by Ranch Owner’s eventual stipulation to

  that very fact.

¶ 80   The record further belies Ranch Owner’s claim that it was

  prevented from presenting rebuttal evidence. On appeal, Ranch

  Owner points to just one piece of evidence that it contends the trial

  court did not allow it to present — a 1913 survey of Costilla County.

  Ranch Owner contends that it was “prepared to present” the 1913

  survey to challenge the presumption that all land in Map A and

  Book E was timely settled. Ranch Owner cites to a February 2005

  brief where counsel argued that, “[i]f an opportunity to present

  evidence would be afforded as [Ranch Owner] has requested,”


                                    43
  Ranch Owner “would be prepared to present evidence, including a

  1913 survey of the county that resulted in a substantial reduction

  of the vara strip area, that would contest the settlement of various

  lands.” Ranch Owner, however, does not cite to any hearing or

  other portion of the record where Ranch Owner actually requested

  that the trial court consider the 1913 survey as evidence, or where

  it provided the trial court with an offer of proof as to what the 1913

  survey would show.

¶ 81   Nor does Ranch Owner cite to any portion of the record where

  the trial court denied Ranch Owner’s request to present the 1913

  survey or other evidence. Ranch Owner contends that the trial

  court did not allow it to present evidence challenging the Map A and

  Book E presumption, but only cites to a March 2005 order in which

  the trial court concluded that all tracts in the 2004 Duncan Report

  were timely settled and found that Ranch Owner “presented no

  competent evidence to the contrary.” This order does not support

  Ranch Owner’s contention that it tried but was not allowed to

  present the 1913 survey as evidence.

¶ 82   Additionally, the record shows that the trial court accepted

  and considered evidence from Ranch Owner in the form of an offer


                                    44
  of proof before it decided that the landowners in the 2004 Duncan

  Report had access rights. Ranch Owner’s offer of proof included

  evidence of personal service in the 1960 Torrens actions on certain

  landowners, offered by Ranch Owner to show that their successors

  should be subject to the res judicata bar. The trial court advised

  Ranch Owner that, if it wished the trial court to reconsider its

  ruling (that landowners in the 2004 Duncan Report had access

  rights), Ranch Owner could “expand upon [its] offer of proof.” But

  Ranch Owner did not thereafter supplement its offer of proof or

  request to present additional evidence.

¶ 83   For these reasons, we conclude that the trial court followed

  the mandate during the opt-out process. As described above, the

  trial court’s identification of landowners based on Map A and

  Book E did not establish a conclusive presumption, and Ranch

  Owner was not precluded from presenting evidence to rebut the

  Map A and Book E presumption of timely settlement. And while the

  trial court may have erroneously restricted discovery of its court-

  appointed expert, any such error was harmless.




                                    45
       C.   Inclusion of the Salazar Estate in Remand Proceedings

¶ 84    Ranch Owner next contends that the trial court’s reliance on

  the same process on remand to decree rights to both the Salazar

  estate and the mountain tract portions of the Ranch was improper

  because it failed to consider the Salazar estate’s distinct factual and

  procedural history and was premised on findings pertaining only to

  the mountain tract portion. We disagree.

                      1.    Additional Background

¶ 85    In 1960, Taylor purchased the roughly 77,000 acres

  comprising the mountain tract of the Ranch. In 1973, Taylor

  purchased an adjoining parcel of roughly 2500 acres that was also

  part of the Sangre de Cristo grant. These 2500 acres comprise the

  Salazar estate. See Lobato I, 71 P.3d at 943-44.

       2.   The Trial Court Properly Included the Salazar Estate in
                             Remand Proceedings

¶ 86    Ranch Owner’s argument is foreclosed by the supreme court’s

  mandate. In Lobato I, the supreme court specifically held that the

  mountain tract and the Salazar estate together comprised the

  Taylor Ranch. 71 P.3d at 944 (“Together, the mountain tract and

  the Salazar estate are known as the Taylor Ranch.”). Ranch Owner



                                    46
  argued in its Lobato II brief that the Salazar estate should not be a

  part of the case. But the supreme court in Lobato II reiterated that

  “the Taylor Ranch includes those lands known as the Salazar

  estate” and held that, “[a]s such, our decision in the present case

  also applies to the Salazar estate.” 70 P.3d at 1155 n.1. Thus, we

  conclude that the supreme court has considered and rejected

  Ranch Owner’s argument, and neither the trial court nor this court

  is free to revisit it. See People v. Roybal, 672 P.2d 1003, 1005 (Colo.

  1983) (“The law of the case as established by an appellate court

  must be followed in subsequent proceedings before the trial court.”).

                            D.   Res Judicata

                    1.   Ranch Owner’s Contentions

¶ 87   Ranch Owner contends that the trial court erroneously limited

  the application of res judicata to landowners who received personal

  service in the 1960 Torrens actions and their successors. Ranch

  Owner contends that it is well settled under Colorado law that (1) a

  person may consent to personal jurisdiction — thereby waiving any

  due process notice requirements — through participation in the

  litigation; and (2) a res judicata bar applicable to one person also

  bars anyone in privity with that person. Ranch Owner argues that


                                    47
  the trial court erroneously refused to apply res judicata to

  landowners under these circumstances, notwithstanding the

  supreme court’s holding that “individuals who should have been

  personally named and served, and were not, are not barred from

  presently bringing such claims.” Lobato II, 70 P.3d at 1158. We

  conclude that Ranch Owner’s arguments are foreclosed by the

  supreme court’s mandate and the law of the case, as established in

  Lobato II.

       2.     The Trial Court Properly Denied Ranch Owner’s Motion for
                         Broader Application of Res Judicata

¶ 88        Ranch Owner’s first argument — that res judicata must apply

  to landowners who participated in the 1960 Torrens actions and

  their successors — was considered and rejected by the supreme

  court in Lobato II. Ranch Owner advanced this argument in its

  Lobato II brief, arguing then that personal jurisdiction and proper

  service should both be presumed for any landowner who

  participated in the 1960 Torrens actions, even absent personal

  service. Ranch Owner specifically argued that “[t]he appearances

  by counsel [for landowners] eliminated the necessity for personal

  service on all defendants individually named in the Torrens action.”



                                      48
  But this argument did not carry the day. Instead, the supreme

  court held that “the claims made by all present-day landowners or

  their predecessors in title not personally named or served in the

  1960s Torrens action are not barred.” Lobato II, 70 P.3d at 1165.

  This holding was a rejection of Ranch Owner’s argument that a

  landowner’s participation in the 1960 Torrens actions was sufficient

  for due process purposes to overcome the absence of personal

  service.

¶ 89   The supreme court’s analysis in Lobato II provides further

  support for our conclusion. After determining that, “[t]o have a

  preclusive effect on the landowners’ current claims, Taylor’s Torrens

  judgment must satisfy the minimum procedural requirements of the

  Due Process Clause of the Fourteenth Amendment,” id. at 1160, the

  supreme court held that “the Torrens bar on future challenges

  cannot be sustained where constitutional deficiencies of notice are

  present.” Id. Because the supreme court relied on the presence of

  “constitutional deficiencies of notice” to hold that due process

  limited the application of the res judicata bar, we conclude that the

  supreme court intended to limit the application of res judicata to

  landowners who received personal service — without regard to


                                    49
  whether they participated in the litigation. See Hardesty, 222 P.3d

  at 340 (“[B]oth an appellate holding and its necessary rationale

  become law of the case controlling future proceedings.”).

¶ 90   As to Ranch Owner’s second argument, we conclude that the

  application of the res judicata bar to landowners whose co-owner

  was personally served in the 1960 Torrens actions is also foreclosed

  by the law of the case under Lobato II. In denying Ranch Owner’s

  request for a hearing on res judicata issues, the trial court reasoned

  that the supreme court “continually made the declaration that

  those persons personally named and served were the only ones who

  would be barred by res judicata.” Indeed, the supreme court

  reiterated its specific holding that res judicata applied only to

  landowners “personally named and served” on at least five

  occasions throughout its Lobato II opinion. The fact that Ranch

  Owner did not make the specific argument it advances now prior to

  the supreme court deciding Lobato II does not prevent such a

  contention from being foreclosed by the supreme court’s holding.

  See Hardesty, 222 P.3d at 341 (On remand, an appellate holding is

  not limited to its specific rationale “because the decided ‘issue may

  be broader than the specific arguments addressed to the court of


                                     50
  appeals.’” (quoting 18B Charles Alan Wright, Arthur R. Miller &

  Edward H. Cooper, Federal Practice and Procedure § 4478.3, at 759-

  60 (2d ed. 2002))).

¶ 91   In summary, the supreme court made clear that the res

  judicata bar only extended to landowners and successors who were

  “personally named and served” in the 1960 Torrens actions, and the

  trial court was not free to disregard or modify this language. Nor

  are we.

                        E.   Service by Publication

¶ 92   Ranch Owner next contends that the trial court’s denial of its

  motion to serve any remaining unknown claimants with notice

  through publication was error because it prevented Ranch Owner

  from achieving the finality required of a quiet title action under Rule

  105. We disagree.

                        1.   Additional Background

¶ 93   As described in Part I.C, supra, the trial court denied Ranch

  Owner’s request at the outset of the remand proceedings to

  personally serve all Costilla County landowners with notice of their

  obligation to come forward and assert a claim to access the Ranch.

  The trial court decided instead to proceed with an opt-out process,


                                    51
  which it began by identifying landowners with access rights based

  upon the Map A and Book E record, and only notified landowners

  after their rights were adjudicated. At the conclusion of the opt-out

  process, the trial court initiated the opt-in process, during which all

  Costilla County landowners were mailed notices advising of the

  ongoing proceedings but informing each landowner that his or her

  right to make a future claim would not be foreclosed by a failure to

  respond.

¶ 94   At the conclusion of the opt-in process, Ranch Owner sought

  to achieve finality through service of notice by publication to all

  remaining, unidentified claimants. Ranch Owner did not renew its

  request to personally serve all Costilla County landowners — or

  even the subset of landowners whose claims had not been

  adjudicated. In fact, Ranch Owner indicated that it would “resist”

  any such approach. The trial court denied Ranch Owner’s request

  for service by publication, concluding that it would violate the

  supreme court’s mandate by extinguishing the rights of any non-

  responding claimants without first personally serving them. We

  discern no error on the part of the trial court in this regard.




                                    52
       2.     The Trial Court Properly Denied Ranch Owner’s Request to
                   Achieve Finality Through Service by Publication

¶ 95        Ranch Owner contends that the trial court’s refusal to allow

  service by publication on unknown parties who may in the future

  claim an interest in the Ranch deprived Ranch Owner of the

  complete and final adjudication that Rule 105 requires in a quiet

  title action. Lobato II, 70 P.3d at 1165. Ranch Owner argues that

  the due process concerns identified by the supreme court in Rael,

  876 P.2d 1210, Lobato I, and Lobato II were satisfied through the

  trial court’s exhaustive, decade-long efforts to identify potential

  claimants and decree access rights and that, because the trial court

  had concluded that process, service by publication was an

  appropriate method to achieve finality.

¶ 96        Landowners respond that service by publication, because it

  would extinguish the rights of any landowner who did not respond,

  would violate the supreme court’s mandate in Lobato II, which held

  that personal service was required before any landowner’s rights to

  access the Ranch could be extinguished. Landowners also argue

  that the general requirement that a quiet title action completely




                                       53
  adjudicate the rights of all interested parties is not applicable here

  because the property rights at issue are not mutually exclusive.

¶ 97   We agree with landowners that Ranch Owner’s requested

  service by publication would have violated the supreme court’s

  mandate in Lobato II, and, therefore, we conclude that the trial

  court properly denied Ranch Owner’s request.

¶ 98   The supreme court’s mandate in Lobato II required Ranch

  Owner to first attempt to personally serve all Costilla County

  landowners before the requirements of procedural due process

  would allow any landowner’s rights to be extinguished utilizing a

  lesser form of service. Lobato II, 70 P.3d at 1165. With respect to

  the 1960 Torrens action, the supreme court held that “[u]nder the

  circumstances of this unique case, reasonable diligence required

  that Taylor personally name and serve all landowners in Costilla

  County.” Id. at 1164. Because the supreme court found that the

  names and addresses of all landowners in Costilla County were

  “reasonably ascertainable” through public tax records, it held that

  Taylor failed to exercise reasonable diligence when he resorted to

  publication service without first attempting to effectuate personal

  service. Id. at 1164-65; see also Weber v. Williams, 137 Colo. 269,


                                    54
  276, 324 P.2d 365, 368 (1958) (“The law requires that personal

  service shall be had whenever it is obtainable.”). The same was just

  as true at the end of the opt-in process as it was in 1960. After the

  conclusion of the identification process on remand, Ranch Owner

  never renewed its request to personally serve all Costilla County

  landowners whose claims had not been adjudicated.

¶ 99   Nor are we persuaded that the due process concerns identified

  by the supreme court were satisfied upon completion of the trial

  court’s identification process on remand. Ranch Owner argues that

  service by publication was appropriate because, upon completion of

  the trial court’s identification process, reasonably diligent efforts

  had been made to personally serve all potential claimants who were

  reasonably ascertainable. But this contention is not supported by

  the record and is contrary to the supreme court’s express holding

  that reasonable diligence requires an attempt to achieve personal

  service on all Costilla County landowners, whose names and

  addresses are reasonably ascertainable from public records. See

  Lobato II, 70 P.3d at 1164. At the conclusion of the trial court’s

  process, personal service on all landowners identified in public

  records would have achieved finality without violating the due


                                     55
  process rights of Costilla County landowners, but Ranch Owner did

  not ask the trial court to proceed in that manner. Because it was

  not within the trial court’s discretion to alter or disregard the

  supreme court’s mandate and authorize publication notice in the

  absence of reasonable diligence by Ranch Owner as understood in

  the context of Lobato II, the trial court correctly concluded that

  publication notice (without first attempting personal service) would

  be contrary to the appellate mandate and the law of the case.

¶ 100   We are not persuaded otherwise by Ranch Owner’s argument

  that the trial court’s refusal to authorize publication notice

  prevented the finality required in a quiet title action under Rule

  105. To the extent Rule 105 conflicts with the supreme court’s

  holdings and mandate, the mandate controls. See Roybal, 672 P.2d

  at 1005 (“The law of the case as established by an appellate court

  must be followed in subsequent proceedings before the trial court.”);

  see also Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

  U.S. 477, 484 (1989) (“If a precedent of this Court has direct

  application in a case, yet appears to rest on reasons rejected in

  some other line of decisions, the Court of Appeals should follow the




                                     56
  case which directly controls, leaving to this Court the prerogative of

  overruling its own decisions.”).

         F.   Apportionment of Rights and Rules Governing Use

¶ 101   Ranch Owner next contends that the trial court erroneously

  refused to apportion each landowner’s access right in proportion to

  the size of each subdivided parcel. Apportionment is necessary,

  Ranch Owner argues, to avoid imposing an unsustainable burden

  on the Ranch. Ranch Owner also contends that the trial court

  erroneously refused to further define the scope of the access rights

  and impose rules and regulations for their exercise. Landowners

  respond that Ranch Owner failed to prove actual overuse by any

  landowner and so was not entitled to relief for an injury that had

  not yet occurred nor was demonstrably imminent. We are not

  persuaded that the trial court abused its discretion in declining to

  apportion access rights or impose rules and regulations to govern

  landowners’ exercise of their rights.

                      1.    Additional Background

¶ 102   In Lobato I, the supreme court held that landowners had

  implied rights to the Ranch in three forms: “a prescriptive

  easement, an easement by estoppel, and an easement from prior


                                     57
  use.” 71 P.3d at 946. It held that the extent of landowners’ access

  rights was determined by “the rights memorialized in the Beaubien

  Document” and, therefore, included rights to access the Ranch for

  pasture, firewood, and timber. Id. at 956. The supreme court

  further held that landowners’ use of the Ranch must comport with

  a reasonable use standard, under which their use must be

             limited to reasonable use — the grazing access
             is limited to a reasonable number of livestock
             given the size of the vara strips; the firewood
             limited to that needed for each residence; and
             the timber limited to that needed to construct
             and maintain residence and farm buildings
             located on the vara strips.

  Id.

¶ 103   In 2004, at the outset of the proceedings on remand,

  landowners filed a motion to enforce the reasonable use standard.

  The trial court granted the motion in part. It found that

  landowners’ “grazing right of access is limited to reasonable use of

  livestock given the size of the vara strips” under the reasonable use

  standard, and that the Beaubien Document authorized grazing “for

  the purpose of survival or for household use.” In addition, the trial

  court found that “[h]ousehold use does not include commercial

  use,” and that “commercial use” is a use “made and done or


                                    58
  operated primarily for profit.” It then concluded that “[a]t this

  time . . . there is no legal basis to deny enforcement of these access

  rights,” but it noted that, once the trial court’s identification process

  “has matured, [if] the Ranch Owner Defendants reasonably believe

  that Plaintiffs are not in compliance with the Supreme Court’s

  standards then they may seek further relief.”

¶ 104   A year later, Ranch Owner filed a motion requesting “further

  clarification and definition of scope of access rights,” alleging that

  landowners’ use of the Ranch violated the supreme court’s

  reasonable use standard. Ranch Owner’s motion was supported by

  an affidavit from a ranch manager, averring that the Ranch had a

  grazing capacity of 470 animal units at 60 acres to the animal

  unit.18 Ranch Owner submitted a second affidavit from another

  ranch manager attesting that, as of August 2004, one landowner

  was grazing 51 animal units, and that this landowner, along with

  two others,19 was grazing 107 animal units on the 2500-acre



  18 According to the affidavit, a single animal unit is comprised of
  one cow and one calf, or five sheep. One bull counts as 1.5 animal
  units.
  19 These landowners’ access rights were decreed in June 2004 and

  were limited to the Salazar estate.

                                     59
  Salazar estate. Ranch Owner argued that the identified uses

  exceeded the reasonable use standard.

¶ 105   Ranch Owner further asserted that it had “met repeatedly with

  the Lobato plaintiffs and other plaintiffs and have been able to work

  out numerous issues” concerning grazing practices, but that other

  issues were not amenable to informal resolution and would

  compound as additional access rights were decreed. Ranch Owner,

  therefore, sought the issuance of several remedial orders.

  Specifically, Ranch Owner requested orders (1) tying each

  landowner’s right to a legal description of his or her property; (2)

  apportioning each landowner’s right in proportion to the

  subdivision of the original benefited vara strip parcel; (3) providing

  rules, regulations, and guidelines to govern access and use of the

  Ranch; and (4) designating a group to represent the landowners in

  negotiations.

¶ 106   At a hearing on the issue, the trial court denied Ranch

  Owner’s motion. The trial court found that there was no evidence of

  an adverse effect from landowners’ grazing practices and ruled that

  it would not grant Ranch Owner’s requested prospective relief. It

  also found that “the interest of the current property owners is so


                                    60
  fragmented as it relates to the original settlers that . . . [it] makes

  the creation of rules based on apportion[ment] impossible.”

¶ 107   In 2006, Ranch Owner filed a motion seeking “to limit the

  extent of use of the Ranch based on the size of the property granted

  access.” Ranch Owner argued that apportionment was necessary

  because the Ranch would be overburdened if even a fraction of the

  landowners granted access rights to date were to graze livestock “as

  if they have the whole of the original right that was appurtenant to

  the original vara conveyance.” Ranch Owner requested that the

  trial court limit each landowner’s rights based on the size of his or

  her parcel, and also order that each landowner desiring to access

  the Ranch must complete a form identifying his or her property and

  the extent of his or her intended use. Ranch Owner asserted that

  the information on the form would allow it to determine whether

  there was a basis to object to the intended use as beyond the scope

  of the landowner’s parcel.

¶ 108   At a hearing, the trial court granted Ranch Owner’s request to

  require landowners to complete an intended-use form. It then

  reiterated that landowners’ use of the Ranch was limited to

  “reasonable use based upon the size of the original parcel conveyed


                                      61
  by Mr. Beaubien,” and encouraged the parties to resolve land use

  issues between themselves. Beyond that, however, the trial court

  refused to enter further orders.

¶ 109   A few months later, the trial court approved a “Notice of

  Intended Use” form that landowners would be required to complete.

  The trial court required landowners to complete the Notice of

  Intended Use form as a prerequisite to access by describing their

  property ownership and their intended use of the Ranch. The trial

  court also ruled that Ranch Owner could not limit access to the

  Ranch because of the information provided on the Notices without

  further order of the court. But Ranch Owner could use the

  information on the form to seek relief from the trial court through a

  separate abuse or trespass action. Nothing in the record indicates

  that Ranch Owner has done so thus far.20

¶ 110   Later that year, Ranch Owner moved for the trial court to hold

  an evidentiary hearing to determine the grazing capacity of the

  Ranch. Landowners opposed the requested hearing, arguing that


  20At a February 2009 hearing, Ranch Owner’s counsel advised the
  court that “[t]he Notice of Intended Use forms have been in place for
  two years. The ranch owner has found the returns of those forms
  incredibly useful, with respect to the grazing numbers especially.”

                                     62
  Ranch Owner failed to present evidence of actual overburdening of

  the Ranch. In support of their position, landowners submitted an

  affidavit from an expert attesting that the historical grazing

  practices on the Ranch greatly exceeded Ranch Owner’s estimate of

  the Ranch’s total grazing capacity. Landowners further argued that

  a determination of grazing capacity was outside the scope of the

  mandate on remand and would delay the trial court’s completion of

  the identification process.

¶ 111   The trial court denied Ranch Owner’s motion without a

  hearing. In a written order, the trial court found that the grazing

  capacity of the Ranch was dependent on seasonal weather

  conditions and, therefore, “an order issued today may not serve the

  interest of justice in the ensuing years.” It also found that the issue

  did not implicate an issue of fact common to all class members. It

  advised that, instead of a hearing, Ranch Owner should use the

  Notices of Intended Use to determine whether to pursue claims for

  overuse or abuse of access rights against individual landowners,

  such as in a trespass action. To date, no such claim has been

  asserted.




                                    63
                          2.   Legal Principles

¶ 112   Access rights must be apportioned when necessary to avoid

  “an unreasonable increase in the burden on the servient estate.”

  See Restatement (Third) of Property: Servitudes § 5.7(1) (Am. Law

  Inst. 2000) (hereinafter Restatement). Easement holders are not

  permitted to “cause unreasonable damage to the servient estate or

  interfere unreasonably with its enjoyment.” Id. § 4.10. When a

  benefited property has been subdivided, “[e]ach separately owned

  parcel is entitled to make the uses privileged by an easement or

  profit; provided, however, that if apportionment is required to avoid

  an unreasonable increase in the burden on the servient estate, the

  use rights are appropriately apportioned among the parcels.” Id. §

  5.7(1).

¶ 113   A benefited property may expand its use of an easement

  without creating an unreasonable burden. Wright v. Horse Creek

  Ranches, 697 P.2d 384, 388-89 (Colo. 1985) (“[T]he beneficiary of

  an easement established by prescription will be permitted to vary

  the use of the easement to a reasonable extent.”). The “manner,

  frequency, and intensity of the use may change over time,” for

  example, “to accommodate normal development of the dominant


                                   64
  estate.” Restatement § 4.10; see also Westland Nursing Home, Inc.

  v. Benson, 33 Colo. App. 245, 252, 517 P.2d 862, 867 (1974)

  (same).

¶ 114    In determining whether “an additional use of the servient

  estate is permissible,” a court should compare “the use originally

  acquired and the additional use,” giving consideration to “their

  purpose, the normal evolution in the use of the dominant estate,

  and the relative burden to the servient estate.” 4 Herbert Tiffany,

  Real Property § 1209, Westlaw (3d ed. database updated Sept.

  2018).

                         3.    Standard of Review

¶ 115    While a trial court’s implementation of an appellate mandate is

  reviewed de novo, see Super Valu, 906 P.2d at 77, evidentiary or

  other post-remand factual determinations are reviewed for abuse of

  discretion, Murray, ¶ 16.

        4.   The Trial Court Did Not Abuse Its Discretion by Denying
                 Ranch Owner’s Requests for Apportionment and
                             Establishment of Rules

¶ 116    Ranch Owner contends that the trial court improperly refused

  to apportion landowners’ rights to access the Ranch or establish a

  management plan to govern consumption of its resources. Ranch


                                    65
  Owner contends that the trial court disregarded evidence that

  landowners’ livestock grazing overburdened the Ranch, failed to

  enforce the supreme court’s mandate requiring entry on remand of

  all necessary orders to safeguard landowners’ rights to use the

  Ranch, and ignored fundamental tenets of easement law under

  which the trial court was obligated to issue orders designed to limit

  the additional burden imposed on the Ranch. Ranch Owner also

  contends that, because the trial court found that apportionment

  would be impossible under the circumstances, it was required to

  extinguish landowners’ access rights. We are not persuaded. We

  discuss each of Ranch Owner’s contentions in turn.

¶ 117   First, the record does not support Ranch Owner’s contention

  that the trial court disregarded evidence showing that landowners’

  grazing of livestock overburdened the Ranch. Ranch Owner’s

  March 2005 motion, which Ranch Owner points to on appeal as

  support for this claim, presented evidence that four landowners had

  each grazed between twenty-three and fifty-one livestock animal

  units at one time. Ranch Owner also submitted an affidavit from its

  ranch manager estimating the grazing capacity of the Ranch. In its

  2005 motion and on appeal, Ranch Owner’s claim that it has


                                   66
  demonstrated actual overuse of the Ranch amounts to a claim that

  landowners’ grazing practices exceed Ranch Owner’s estimate of the

  Ranch’s capacity. Neither Ranch Owner nor the ranch manager’s

  affidavit asserted that these grazing practices had caused actual

  harm to the Ranch — only that such harm was inevitable if the trial

  court did not apportion rights and set rules. Ranch Owner’s claims

  of harm to the Ranch are belied by the fact that, even though

  landowners have been required since 2006 to complete forms

  describing their intended use of the Ranch in order to gain access

  to the Ranch, Ranch Owner has not asserted any specific claims of

  actual overuse.

¶ 118   Nor are we persuaded by Ranch Owner’s contention that the

  sheer number of parcels and landowners granted access rights was

  sufficient to conclude that the Ranch was subject to an

  unreasonable increase in burden. Generally, an “increase in the

  number of persons holding the benefit of the servitude alone does

  not constitute an unreasonable increase in the burden,” even

  though such an increase may subject the servient estate owner to a

  “greater number of enforcement actions and higher transaction




                                   67
  costs in negotiating with the benefit holders.” Restatement § 5.7

  cmt. c.

¶ 119   In short, because the record does not show that Ranch Owner

  ever presented evidence of actual or imminent overuse, we cannot

  agree with Ranch Owner’s contention that the trial court was

  required to consider the remedy of apportionment in order to avoid

  damage to the Ranch’s resources. That injury was unsubstantiated

  in the eyes of the trial court. We perceive no abuse of discretion in

  that conclusion.

¶ 120   Second, we are not persuaded that the supreme court’s

  mandate required the trial court to apportion rights or establish the

  rules Ranch Owner requested. Ranch Owner points to the supreme

  court’s instruction for the trial court on remand to “identify all

  landowners who have access rights to the Taylor Ranch and to enter

  all necessary and appropriate orders to safeguard these rights.”

  Lobato II, 70 P.3d at 1167-68 (emphasis added). For an

  apportionment order to have been necessary to “safeguard”

  landowners’ access rights, however, Ranch Owner would have

  needed to show that landowners’ use had caused actual harm to

  the Ranch or that risk of such harm was imminent. For the


                                    68
  reasons described above, we conclude that the trial court did not

  abuse its discretion in determining that Ranch Owner failed to

  make this threshold showing.

¶ 121   Third, we disagree with Ranch Owner that principles of

  easement law required the trial court to apportion landowners’

  access rights or set the rules and regulations Ranch Owner

  requested. Ranch Owner argues that there is an unreasonable

  increase in the burden on the Ranch because it is reasonable to

  assume that, had the landowners’ use of the Ranch increased from

  the original 170 parcels to 6000 parcels during the original

  prescriptive period, such an increase would have prompted the

  owner of the Ranch at that time to interrupt the use, thus limiting

  the extent of landowners’ prescriptive right. Because this standard

  applies only to prescriptive easements, we need not address this

  argument.

¶ 122   The supreme court held that landowners had established “a

  prescriptive easement, an easement by estoppel, and an easement

  from prior use.” Lobato I, 71 P.3d at 946. With respect to the

  prescriptive easement, the supreme court held that landowners

  satisfied the requirement of continuous use for the prescriptive


                                   69
  period through their continuous access to the Ranch “from the

  1800s to the date the land was acquired by the defendant, in 1960.”

  Id. at 954. We offer no opinion as to whether it is reasonable to

  assume that the owner or owners of the Ranch would have

  interrupted landowners’ use had landowners’ property been

  subdivided then to the extent that it is today. Instead, we conclude

  that, even if we assume that an unreasonable increase in burden

  exists with respect to landowners’ prescriptive easement, their

  increased use remains within the scope of the other two easements

  the supreme court recognized.

¶ 123   “[P]recise delineation of the means by which a particular

  easement is acquired is critical to any determination of the extent to

  which the owner of the dominant estate is entitled to burden the

  servient estate.” Wright, 697 P.2d at 388. In Lobato I, the supreme

  court held that landowners had an easement by estoppel in part

  because Ranch Owner’s predecessors allowed access to the Ranch

  for the purpose of inducing landowners to establish new

  settlements on adjacent land, and such rights were necessary for

  any settlement to succeed. See 71 P.3d at 955. Moreover, because

  “[a] servitude should be interpreted to give effect to the intention of


                                     70
  the parties ascertained from . . . the circumstances surrounding

  creation of the servitude” and “to carry out the purpose for which it

  was created,” we are especially reluctant to conclude that

  landowners’ use of the Ranch is either unreasonable or unforeseen

  based on the fact that the original settlement has survived and

  grown since the 1860s. Restatement § 4.1(1); see also id. § 4.10

  cmt. b (“In resolving conflicts among the parties to servitudes, the

  public policy favoring socially productive use of land generally leads

  to striking a balance that maximizes the aggregate utility of the

  servitude beneficiary and the servient estate.”). Nor has Ranch

  Owner persuasively argued that the increase in use of the Ranch

  establishes an unreasonable increase in burden under any test

  applicable to an easement by estoppel or easement based on prior

  use.

¶ 124    Applying easement law principles, the increased use of the

  easement by present-day Costilla County landowners as compared

  to the original settlers does not represent a change in the kind of

  use, which would be disfavored, but instead a change in the degree

  of use. Where only the degree of use is changed, this favors a

  finding that the current degree of use is within the scope of the


                                    71
  easement. See Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo. App.

  2003) (affirming defendants’ right to increased use of prescriptive

  easement and distinguishing Wright, 697 P.2d 384, on the basis

  that “[Wright] involved a change in kind, rather than in degree, of

  use”); Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo. App.

  1982) (holding that construction of power line on easement

  acquired by prescription was within the scope of the easement

  because it represented “a change in the degree of use, not the kind

  of use”).

¶ 125   Fourth, Ranch Owner’s contention that the trial court was

  required to extinguish landowners’ access rights because it found

  apportionment to be “impossible” is unpersuasive. The comments

  to the Restatement acknowledge that “[i]f there is no practical

  means of apportionment . . . modification or termination of the

  easement may be appropriate under § 7.10 (changed conditions).”

  Restatement § 5.7 cmt. c (emphasis added). But the question of

  whether apportionment is practicable cannot arise until after a

  finding has been made that apportionment is required. Here,

  because Ranch Owner has not shown that landowners’ use imposes




                                    72
  an unreasonable increase in the burden on the Ranch, the question

  of whether apportionment is possible is not yet relevant.

¶ 126    For these reasons, we conclude that Ranch Owner did not

  show that the increased use of the Ranch as a result of the access

  rights granted on remand resulted in an unreasonable increase in

  the burden. Accordingly, the trial court did not abuse its discretion

  in denying Ranch Owner’s request for apportionment or

  establishment of rules and regulations.

    G.    Rights to Access Original Vara Strips that Are Now Located
                               Within the Ranch

                       1.   Additional Background

¶ 127    The title company’s November 2006 report showed that certain

  portions of the Ranch were once vara strip parcels benefited by

  Beaubien’s grant. Ranch Owner later hired a surveyor to confirm

  the title company’s finding. Ranch Owner contends that the trial

  court erroneously refused to prohibit landowners from exercising

  their access rights on these portions of the Ranch. Ranch Owner

  argues that because it is undisputed that a landowner’s access

  rights cannot be exercised over another vara strip parcel, any

  portions of the Ranch that were original vara strip parcels must be



                                   73
  excluded from the servient estate. Landowners respond that Ranch

  Owner waived this argument by failing to raise it earlier in the

  litigation. Ranch Owner replies that it could not have raised the

  argument earlier because prior to Lobato II it could not have known

  that access rights would be tied to original vara strip parcels. We

  perceive no error by the trial court.

    2.        Ranch Owner’s Requested Determination Was Outside the
                              Scope of the Mandate

¶ 128    As discussed above, the supreme court’s mandate required the

  trial court on remand to determine the scope of the dominant

  estate. But the supreme court’s opinions in Lobato I and Lobato II

  determined the scope of the servient estate, holding that the entire

  Taylor Ranch was burdened. Thus, the trial court did not have

  discretion to revisit the issue of what constituted the servient

  estate. See Roybal, 672 P.2d at 1005. Accordingly, the trial court

  did not err in declining to redefine the servient estate.

         H.     Adherence to the Mandate During the Opt-In Process

¶ 129    In their cross-appeal, landowners contend that the trial court

  violated the Lobato II mandate by requiring certain individual

  Costilla County landowners to opt into the proceedings from 2010



                                     74
  through 2016 as a prerequisite for having their rights adjudicated.

  Landowners assert that they presented undisputed — and,

  ultimately, stipulated — evidence showing that certain areas in the

  southern half of Costilla County were settled in the time of Gilpin.

  These were previously referred to as the Stipulated Settled Lands.

  Because timely settlement of these lands was undisputed,

  landowners argue that the Lobato II mandate required the trial

  court to identify all current owners of any such benefited lands and

  adjudicate their access rights, without requiring them to first come

  forward to assert a claim. We agree that the trial court’s opt-in

  identification process was inadequate to discharge the mandate, at

  least with respect to the Stipulated Settled Lands.

                      1.    Additional Background

¶ 130   As described in Part I.C, supra, from 2004 through 2010, the

  trial court decreed access rights for the owners of lands identified in

  Map A and Book E (the opt-out process). Once the trial court had

  identified all owners of Map A and Book E lands and adjudicated

  their rights, it turned to the remaining portions of Costilla County.

  From 2010 through 2016, after providing all landowners in the

  southern half of Costilla County with notice by mail, the trial court


                                    75
  ultimately decreed access rights for the approximately 350

  landowners who came forward and asserted claims (the opt-in

  process).

¶ 131   The procedural transition that occurred in 2010 coincided

  with the retirement of the then-presiding trial judge, Judge Gaspar

  Perricone. Before his retirement, however, Judge Perricone

  recognized that Costilla County landowners located outside of Map

  A and Book E would need to present different evidence to meet their

  burden of proof because they could not rely on the presumption of

  timely settlement derived from Map A and Book E. Judge Perricone

  also approved the parties’ plan to begin the second phase by

  mailing notices to all landowners in the southern half of Costilla

  County advising each recipient of his or her right to come forward

  and participate in the proceedings. Each notice required the

  landowner to respond within 120 days in order to make a claim, but

  stated that “[l]andowners will not lose their opportunity to establish

  access rights if they choose not to participate in the identification

  process.”

¶ 132   In March 2010, Judge Kenneth Plotz replaced Judge Perricone

  as the presiding judge in this case. In April 2010, Judge Plotz


                                    76
  authorized the mailing of 23,000 advisory notices to landowners in

  the southern half of Costilla County. Approximately 1200

  landowners responded. Based on the responses received, the trial

  court subdivided the southern half of Costilla County into four

  regions and set evidentiary hearings for landowners from each

  region.

¶ 133   Soon thereafter, landowners’ counsel gathered historical maps

  and other documentary evidence showing that specific areas in the

  southern half of Costilla County were settled by the time of Gilpin.

  Based on landowners’ evidence, Ranch Owner stipulated that each

  such area was timely settled.21

¶ 134   From 2012 through 2014, Ranch Owner stipulated to the

  timely settlement of several towns, including Garcia, Los Fuertes,

  Old San Acacio, and Chama Canyon. In January 2015, Ranch

  Owner stipulated to a master map demarcating all known timely

  settled land in Costilla County, which we referred to earlier as the

  “Stipulated Settled Lands.”




  21Ranch Owner did not present any rebuttal evidence to dispute
  the timely settlement of any areas identified by landowners.

                                    77
¶ 135   In 2013, once Ranch Owner stipulated that the town of Garcia

  was timely settled,22 landowners from Garcia moved for the trial

  court to identify and decree rights for the owners of all land inside

  of Garcia’s stipulated boundaries — including landowners who had

  not come forward to assert claims. They argued that, by virtue of

  Ranch Owner’s stipulation to Garcia’s timely settlement,

  “[l]andowners in Garcia are in the same position as the owners of

  land shown on Map A and Book E.” They requested, therefore, that

  the trial court complete the identification process for Garcia by

  “identify[ing] the owners of the land within the stipulated area.”

  They further argued that any process that required individual

  landowners to come forward and show that their land was located

  within Garcia’s stipulated boundaries would discourage many

  Garcia landowners and impede finality. The Garcia landowners

  requested that the trial court appoint Integrated Land Services23 as

  a court-appointed expert witness, pursuant to CRE 706, “to identify


  22 Ranch Owner also stipulated that a 19th century ditch map
  introduced by landowners’ counsel was the best available evidence
  of the area that was settled.
  23 Integrated Land Services is a surveying company that partnered

  with the San Luis Valley Geographic Information System (GIS)
  Authority to provide GIS services in San Luis Valley.

                                    78
  the specific lots and parcels of land within the stipulated boundary

  of the Garcia Settlement Map.”

¶ 136   Ranch Owner opposed the requested identification process,

  arguing that the trial court was only required to decree rights for

  the nine Garcia landowners who had come forward after the 2010

  advisory notices were mailed. Ranch Owner further argued that the

  law of the case, as articulated by Judge Perricone, required a

  process whereby individual landowners must come forward to

  assert claims.

¶ 137   The trial court denied the Garcia landowners’ motion. It relied

  on an earlier description by Judge Perricone of how the second

  phase of the identification process should unfold, determining that

  Judge Perricone’s statement constituted the law of the case. Judge

  Perricone, at a February 2009 hearing, had advised the parties:

             We’ve been operating up to now on a
             presumption that I [Judge Perricone] have
             determined existed as a result of the Supreme
             Court decisions in reference to Map A, Book E,
             and the Beaubien document. I think that
             presumption ends and the burden now rests
             with those people who want access.

¶ 138   Judge Plotz concluded that Judge Perricone intended to

  require any future landowner claimants to come forward and assert


                                    79
  claims, and that Ranch Owner would not be required to bear the

  cost of identifying benefited landowners who had not come forward.

  Specifically, with respect to Judge Perricone’s February 2009

  statement, Judge Plotz concluded:

             Put in context, by stating that the presumption
             ends, [this statement] means that landowners,
             such as those in the Garcia Township, may
             come to the trial court and assert those claims,
             but that since these landowners do not reside
             within the confines of Map A, Book E, the
             [Ranch Owner] Defendants are no longer under
             an order of the trial court to pay for a process
             which identifies all landowners in an area such
             as the Garcia Township.

¶ 139   The trial court concluded that “the law of this case holds that

  the Garcia Residents,” because their land is “not identified in Map

  A, Book E,” must “bear the burden of coming forward and proving”

  that their land was settled in the time of Gilpin.

   2.   The Opt-In Process Was Not Required By the Law of the Case

¶ 140   We conclude that the trial court erred in determining that it

  was bound by the law of the case doctrine to implement an opt-in

  process with respect to the Stipulated Settled Lands during the final

  phase on remand. Pursuant to the law of the case doctrine, the

  trial court was bound to adhere to the Lobato II mandate but had



                                    80
  discretion to depart from statements made by the prior trial judge,

  Judge Perricone. In any event, Judge Perricone’s statements did

  not preclude the trial court from adjudicating rights of all Garcia

  landowners, as they requested.

¶ 141   The law of the case doctrine does not demand strict adherence

  by a trial court to its own previous rulings. While the doctrine

  “generally requires the court to follow its prior relevant rulings,” it is

  “merely discretionary when applied to a court’s power to reconsider

  its own prior rulings.” Giampapa v. Am. Family Mut. Ins. Co., 64

  P.3d 230, 243 (Colo. 2003); see also Roybal, 672 P.2d at 1005 n.5

  (“[T]he law of the case as established by trial court rulings is not

  binding if it results in error or is no longer sound due to changed

  conditions . . . .”). Judge Perricone’s statements were not elevated

  to the level of a mandate by his retirement. Insofar as his

  statements constituted the law of the case, their binding effect was

  the same as if they had been Judge Plotz’s own statements.

¶ 142   Moreover, when a court reconsiders its own prior decision,

  “the only purpose of the doctrine is efficiency of disposition.”

  Roybal, 672 P.2d at 1005 n.5. Because adherence to Judge

  Perricone’s statement ultimately prevented the trial court from


                                     81
  fulfilling its mandate to “identify all landowners who have access

  rights to the Taylor Ranch,” Lobato II, 70 P.3d at 1167-68 (emphasis

  added), the trial court could have and should have reconsidered

  whether the latter phase of the identification process should be

  structured as an exclusively opt-in process.

¶ 143   Even if Judge Perricone’s statement was entitled to

  considerable deference under the law of the case doctrine, we

  conclude that it did not preclude the trial court from implementing

  an opt-out process to identify and decree access rights for the

  owners of lands that Ranch Owner stipulated were timely settled —

  including Garcia and any other unadjudicated lands within the

  Stipulated Settled Lands. Importantly, the “presumption” Judge

  Perricone described in February 2009 was the presumption of

  timely settlement. By observing that “the presumption ends,”

  Judge Perricone recognized that Map A and Book E lands had been

  treated as presumptively settled, but landowners would need to

  present different proof of timely settlement for any lands outside of

  Map A and Book E. But Judge Perricone did not prescribe a new

  process by which these non-Map A landowners’ access rights

  should be adjudicated. Rather, Judge Perricone’s observation that


                                    82
  “the burden now rests with those people who want access” was an

  acknowledgment that landowners in later phases of the remand

  proceedings could not depend on the Map A and Book E

  presumption to meet their burden of proof on the issue of timely

  settlement, as landowners had done during the first phase. When

  Judge Perricone made this observation, landowners had not yet

  presented evidence showing that any areas of Costilla County

  outside of Map A were timely settled.

¶ 144   But by the time the trial court denied the Garcia landowners’

  motion in 2013, landowners had not only presented undisputed

  evidence that the town of Garcia was settled by January 1869, but

  Ranch Owner had also stipulated that Garcia was timely settled.

  Because Ranch Owner stipulated to Garcia’s timely settlement, any

  Garcia landowners were entitled to access rights upon showing that

  their property was located inside the boundaries of the stipulated

  map of Garcia. See Lobato II, 70 P.3d at 1159 (“[L]andowners of

  Costilla County who are able to show that their property was settled

  during the time of Gilpin’s ownership . . . will be granted access

  rights to the Taylor Ranch . . . .”). Thus, because Ranch Owner’s

  stipulation satisfied landowners’ burden to prove timely settlement,


                                    83
  it served the same evidentiary function as the Map A and Book E

  presumption referenced by Judge Perricone in February 2009.

  Indeed, Ranch Owner’s stipulation obviated the need to apply a

  presumption of timely settlement at all. The stipulation rendered

  the presumption irrelevant.

¶ 145   Judge Perricone’s statement that “the presumption ends,”

  therefore, does not justify the trial court’s implementation of an

  opt-in process for all non-Map A landowners. The trial court, in

  relying on this statement, appeared to conflate the presumption of

  timely settlement with the opt-out process itself. It reasoned that,

  “by stating that the presumption ends, [Judge Perricone] means

  that landowners, such as those in the Garcia Township, may come

  to the trial court and assert those claims.” But Judge Perricone

  was merely observing that a presumption of timely settlement

  would not attach to non-Map A lands — unless and until timely

  settlement of any such lands was established through different

  evidence.

¶ 146   In summary, we conclude that the trial court mistakenly

  concluded that it was bound by the law of the case doctrine to

  implement an opt-in process with respect to the yet-to-be-


                                    84
  adjudicated Stipulated Settled Lands during the last phase on

  remand. In our view, Judge Perricone’s statements did not

  preclude an opt-out process for all non-Map A lands, even

  assuming such statements were entitled to deference. Having

  concluded that Judge Plotz was not required to implement an opt-in

  process from 2010 through 2016, we now turn to the question of

  whether that process was consistent with the mandate.

  3.    The Mandate Requires Identification of All Landowners Within
                      the Stipulated Settled Lands

¶ 147   As previously discussed, the supreme court’s mandate

  required the trial court to identify “all landowners who have access

  rights to the Taylor Ranch.” Lobato II, 70 P.3d at 1167-68

  (emphasis added). Although the opt-in process implemented by the

  trial court from 2010 through 2016 resulted in access decrees for

  roughly 350 additional Costilla County landowners, the process

  was, almost by design, not comprehensive.

¶ 148   Ranch Owner’s stipulations changed the complexion of the

  identification process on remand by creating a map of land that

  was, like Map A, accepted as being timely settled. By early 2015,

  Ranch Owner had stipulated to a master map of all Costilla County



                                   85
  land that was settled as of 1869 (the Stipulated Settled Lands).

  Thus, as the Garcia landowners argued below, any land within the

  boundaries of these stipulations became identically situated to the

  Map A and Book E land. In 2004, at the outset of the remand, the

  trial court decided that the most comprehensive and efficient result

  would be achieved by starting from the best evidence of timely

  settlement (Map A and Book E) and, with the help of an expert,

  identifying the current owners of the land therein. Once Ranch

  Owner stipulated that certain non-Map A lands were also timely

  settled, the trial court’s calculus should have been the same as in

  2004 — namely, it should have pursued an administrative process

  to identify the current owners of the Stipulated Settled Lands

  outside of Map A. As discussed above, Judge Perricone’s February

  2009 statements neither required nor supported a departure from

  the opt-out process. Instead, because the trial court could have

  identified all current owners of the Stipulated Settled Lands, the

  mandate required that that be done.

¶ 149   We cannot find any justification in the record for requiring

  landowners to come forward and assert individual claims in order to

  become eligible to access the Ranch, and the deficiencies of an opt-


                                    86
  in process under these circumstances are plain to see. As the trial

  court noted in its final order, the opt-in process left the owners of

  certain benefited lands unidentified. For example, although Ranch

  Owner stipulated the Garcia Township was timely settled —

  entitling Garcia landowners to access rights unless barred by res

  judicata — only nine landowners responded to the 2010 advisory

  notices and came forward to assert individual claims. In 2014,

  landowners’ counsel persuaded an additional six Garcia landowners

  to submit affidavits describing their ownership of land within the

  stipulated boundary. Counsel noted, however, that other Garcia

  landowners who had expressed interest in asserting a claim had

  never followed through by providing executed affidavits. Ranch

  Owner stipulated that the fifteen Garcia landowners who submitted

  affidavits were entitled to access the Ranch, and the trial court

  decreed access rights for them on that basis. Ranch Owner later

  stipulated that landowners from other areas within the Stipulated

  Settled Lands were also entitled to access rights based on similar

  affidavits.

¶ 150   We conclude that, while Ranch Owner’s stipulations to access

  rights for some landowners within the Stipulated Settled Lands


                                    87
  partially remedied the incompleteness of the trial court’s opt-in

  process, neither landowners nor their counsel should bear the

  burden to identify all Costilla County landowners with access rights

  to the Ranch. Instead, the supreme court’s Lobato II mandate

  specifically directed the trial court to perform that identification,

  with costs to be paid by the Ranch Owner. 70 P.3d at 1167

  (“Because the plaintiff landowners have prevailed on their claims,

  Taylor now must pay the costs associated with identifying and

  notifying all persons who have access rights to the Taylor Ranch.”).

¶ 151   For these reasons, we conclude that the opt-in process by

  which the trial court adjudicated landowners’ access rights from

  2010 through 2016 was insufficient to discharge its mandate.

  Because the trial court could have comprehensively identified all

  benefited Costilla County landowners but did not do so, we

  conclude that further proceedings are required.

                        4.    Remand Instructions

¶ 152   We remand the case for the trial court to identify and decree

  rights for all persons who own property within the boundaries of the




                                     88
  Stipulated Settled Lands.24 Landowners are not required to come

  forward in order to have their rights adjudicated.

¶ 153   We anticipate that Ranch Owner’s concerns regarding finality

  will arise again once access rights for the owners of the Stipulated

  Settled Lands have been adjudicated. Once the current owners of

  the Stipulated Settled Lands have been identified and their access

  rights adjudicated, Ranch Owner may elect at that time to

  personally serve all remaining Costilla County landowners whose

  rights have not been adjudicated. Such notice should advise

  landowners that they must make a claim for access within a

  reasonable time as determined by the trial court or be forever

  barred from making a claim. Ranch Owner must bear the cost of

  personal service if that election is made. Lobato II, 70 P.3d at 1167

  (“In light of our holding that Taylor failed to exercise reasonable

  diligence in personally naming and serving all reasonably

  ascertainable individuals with an identifiable interest in the Taylor

  Ranch, the cost of remedying this failure on remand must be borne

  by Taylor.”). Once personal service on all remaining Costilla County


  24These landowners will be subject to the same res judicata defense
  as the Map A and Book E landowners.

                                    89
  landowners has been attempted, Ranch Owner may then serve any

  unknown, unidentified persons through publication in order to

  bring finality to the action. If, on the other hand, Ranch Owner

  elects not to attempt personal service on nonadjudicated

  landowners, then such landowners with unadjudicated rights

  remain free to come forward at some later date.

                             III.   Conclusion

¶ 154   For the reasons set forth in this opinion, we affirm the trial

  court’s orders decreeing access rights for Costilla County

  landowners. We reverse the trial court’s October 2016 order to the

  extent it requires any remaining Costilla County landowners

  entitled to access the Ranch to come forward to assert individual

  claims, and we remand for the trial court to identify and adjudicate

  access rights for any yet-unidentified persons who own property

  within the Stipulated Settled Lands, consistent with this opinion.

        JUDGE WEBB and JUDGE HARRIS concur.




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