 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _______________

 3 Filing Date: December 29, 2015

 4 NO. 33,950

 5 ANN BRANNOCK, DANIEL M. MOWERY
 6 and MARSHA J. MOWERY,

 7        Plaintiffs-Appellees,

 8 v.

 9 THE LOTUS FUND, CHRISTINE HOUGH
10 SMITH, and CHRISTOPHER SMITH,

11        Defendants-Appellants,

12 and

13 DOUGLAS COOMBS and COLLEEN COOMBS
14 and EUGENE HANDS and MARIA HANDS,

15        Voluntary Defendants.


16 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
17 Alan M. Malott, District Judge

18 Ronald T. Taylor
19 Albuquerque, NM

20 for Appellees
1   Michael L. Danoff & Associates, P.C.
2   Michael L. Danoff
3   Ryan P. Danoff
4   Albuquerque, NM

5 for Appellants
 1                                         OPINION

 2 BUSTAMANTE, Judge.

 3   {1}   Defendants The Lotus Fund (LF), Christine Hough Smith, and Christopher

 4 Smith appeal from the district court’s findings of facts and conclusions of law

 5 entering judgment1 on behalf of Plaintiffs Ann Brannock, Daniel M. Mowery, and

 6 Marsha J. Mowery. On appeal, Defendants raise both issue and claim preclusion

 7 arguments and contend that, in any event, the district court erred in concluding that

 8 Plaintiffs proved the elements of prescriptive easement and easement by necessity.

 9 Concluding that the prior case does not have preclusive effect over the present case

           1
10           We initially note that we do not typically consider the district court’s findings
11   of fact and conclusions of law a “final order” for purposes of filing an appeal. See
12   Curbello v. Vaughn, 1966-NMSC-179, ¶¶ 1-3, 76 N.M. 687, 417 P.2d 881 (stating
13   that, when the district court had entered findings and conclusions, but had not entered
14   an order or judgment carrying out the findings and conclusions, no final order had
15   been entered in the case for purposes of appeal). Here, however, the district court’s
16   findings and conclusions serve as the final order or judgment because they resolve all
17   matters to the fullest extent possible and because they contain decretal language that
18   carries the findings and conclusions into effect. See Floyd v. Towndrow, 1944-
19   NMSC-052, ¶ 4, 48 N.M. 444, 152 P.2d 391 (stating that “[t]he general rule
20   recognized by the courts of the United States and by the courts of most, if not all, of
21   the states, is that no judgment or decree will be regarded as final, within the meaning
22   of the statutes in reference to appeals, unless all the issues of law and of fact
23   necessary to be determined were determined, and the case completely disposed of, so
24   far as the court had power to dispose of it” (internal quotation marks and citation
25   omitted)); see also Khalsa v. Levinson, 1998-NMCA-110, ¶ 13, 125 N.M. 680, 964
26   P.2d 844 (providing that an order is final if it includes decretal language that carries
27   the decision into effect). In satisfaction of the required decretal language, the final
28   paragraph of the district court’s subsequent findings and conclusions states that “[i]t
29   is therefore Ordered that Judgment shall issue in favor of Plaintiffs consistent with
30   these Findings and Conclusions.” Therefore, we view the district court’s findings and
31   conclusions as the final order of the court.
 1 and that substantial evidence supports the district court’s findings and conclusions

 2 that Plaintiffs proved the elements for prescriptive easement, we affirm.

 3 I.      BACKGROUND

 4   {2}   This appeal involves litigation over a disputed access to property. In order to

 5 best understand the facts and legal issues in the present case, we will first explain the

 6 legal posture that led to the present case. Prior to the present case, a separate case (the

 7 Coombs case) was initiated by Douglas M. Coombs and Colleen E. Coombs

 8 (together, the Coombses) against The Lotus Fund Limited Partnership (LFLP), an

 9 affiliate or otherwise related company to one of the present Defendants, The Lotus

10 Fund. The Coombses and Defendants/LFLP own property adjacent to one another,

11 which properties are separated by a twenty-five-foot dedicated easement (the

12 dedicated easement) that is entirely on the Coombses’ property. Notwithstanding this

13 dedicated easement, the Coombses alleged that they and others used a path to access

14 properties owned by the Coombses, Eugene and Maria Hands (the Hands), and

15 present Plaintiffs, which path was partially on the dedicated easement on the

16 Coombses’ property and partially on Defendants’/LFLP’s property. After a dispute

17 arose between Defendants/LFLP and the Coombses regarding use of the disputed

18 access, the Coombses filed a complaint for declaratory judgment and injunction

19 against LFLP.



                                                2
 1   {3}   In the Coombs case, Judge Brickhouse concluded that

 2         [a]s a matter of law there [are] no prescriptive easement rights for [the
 3         Coombses] because the required elements, which are usage by the
 4         general public continued for the length of time necessary to create a
 5         right of prescription if the use had been by an individual, provided that
 6         such usage is open, uninterrupted, peaceable, notorious, adverse, under
 7         a claim of right, and continued for a period of ten years with the
 8         knowledge, or imputed knowledge of the owner, were not proven at
 9         trial.

10 By this, Judge Brickhouse meant either that insufficient evidence was presented on

11 this claim—perhaps because the Coombses instead elected to pursue an ownership

12 argument—or that the Coombses failed to prove their prescriptive easement rights or

13 public prescriptive easement rights despite their efforts to do so. In any event, the

14 conclusion of law, in significant part, states that there are no prescriptive easement

15 rights for the plaintiffs in the Coombs case, as opposed to stating that prescriptive

16 easement rights on the disputed access could never be proven by any other party

17 against Defendants/LFLP.

18   {4}   Plaintiffs in the present case, who own/have owned property to the south of the

19 Coombses (non-adjacent) and the Hands (adjacent), thereafter brought a case against

20 present Defendants for prescriptive easement, easement by necessity, and permanent

21 restraining order, seeking court verification of their easement over the same disputed

22 roadway that was litigated in the Coombs case. The Coombses and the Hands were

23 additionally named as “voluntary defendants” in the present case. Both parties filed


                                              3
 1 motions for summary judgment, and the district court denied both motions. In the

 2 order denying summary judgment, the district court took judicial notice of the

 3 Coombs case; noted that the plaintiffs in the Coombs case are not the same as

 4 Plaintiffs in the present case or in privity with them; and found that the Coombs case

 5 determined legal ownership of land, whereas the present case deals with the right to

 6 use that land. The case therefore proceeded to trial.

 7   {5}   After a trial on the merits, the district court filed findings of fact and

 8 conclusions of law, granting judgment in favor of Plaintiffs. The district court

 9 reiterated that the ownership rights determined in the Coombs case did not have

10 preclusive effect on the usage rights as asserted by Plaintiffs in the present matter and

11 concluded that Plaintiffs had proved the elements of prescriptive easement and

12 easement by necessity. Defendants appeal.

13 II.     DISCUSSION

14   {6}   On appeal, Defendants raise both issue and claim preclusion arguments and

15 additionally contend that, in any event, the district court erred in concluding that

16 Plaintiffs proved the elements of prescriptive easement and easement by necessity.

17 We first address Defendants’ preclusion arguments and, concluding that the present

18 case is not precluded by the Coombs case, then proceed to the merits of the easement

19 issues.



                                               4
 1 A.      Collateral Estoppel

 2   {7}   Defendants argue that “the disputed easement access” issue is precluded from

 3 litigation in the present case based on the doctrine of collateral estoppel. We review

 4 a decision by the district court to apply or not apply the doctrine of collateral estoppel

 5 for an abuse of discretion. See Shovelin v. Cent. N.M. Elec. Coop., Inc., 1993-NMSC-

 6 015, ¶ 10, 115 N.M. 293, 850 P.2d 996. “The doctrine of collateral estoppel fosters

 7 judicial economy by preventing the relitigation of ultimate facts or issues actually and

 8 necessarily decided in a prior suit.” Id. (internal quotation marks and citation

 9 omitted). The party invoking the doctrine

10         must demonstrate that (1) the party to be estopped was a party to the
11         prior proceeding, (2) the cause of action in the case presently before the
12         court is different from the cause of action in the prior adjudication, (3)
13         the issue was actually litigated in the prior adjudication, and (4) the
14         issue was necessarily determined in the prior litigation.

15 Id. “If the movant introduces sufficient evidence to meet all elements of this test, the

16 trial court must then determine whether the party against whom estoppel is asserted

17 had a full and fair opportunity to litigate the issue in the prior litigation.” Id.

18 (emphasis added). In this case, Defendants have failed to satisfy several of the

19 requirements.

20   {8}   With regard to the first element, the plaintiffs in the prior litigation were the

21 Coombses. In the present case, Plaintiffs are Ann Brannock, Daniel M. Mowery, and



                                               5
 1 Marsha J. Mowery. Although the Coombses and the Lotus Fund (or an affiliate

 2 thereof) are defendants in both cases, Plaintiffs in the present case are the parties

 3 Defendants are seeking to estop and are thus the parties to whom the doctrine would

 4 apply. See id. (identifying the first element as “the party to be estopped was a party

 5 to the prior proceeding” (emphasis added)). Plaintiffs were not parties to the prior

 6 litigation. As the movant must introduce all elements of the test in order for the

 7 district court to even consider “whether the party against whom estoppel is asserted

 8 had a full and fair opportunity to litigate the issue in the prior litigation[,]” see id.,

 9 Defendants have failed to show that the district court abused its discretion in

10 determining that Plaintiffs were not estopped from proceeding with their claims of

11 easement by prescription and by necessity.

12   {9}   Defendants nevertheless argue that Plaintiffs were “in privity with” the

13 plaintiffs in the prior action because there was a “substantial identity between the

14 issues in controversy and . . . the parties in the two actions are really and substantially

15 in interest the same.” Deflon v. Sawyers, 2006-NMSC-025, ¶ 4, 139 N.M. 637, 137

16 P.3d 577; see also City of Sunland Park v. Macias, 2003-NMCA-098, ¶ 10, 134 N.M.

17 216, 75 P.3d 816 (stating that the doctrine of collateral estoppel requires, inter alia,

18 that “the parties in the current action were the same or in privity with the parties in

19 the prior action”). Specifically, Defendants contend that the two sets of plaintiffs are



                                                6
 1 in privity with one another because Plaintiffs were aware of the prior case; many of

 2 the witnesses were the same, including Mr. Mowery himself testifying in the prior

 3 case; counsel for plaintiffs was the same in both cases; Judge Brickhouse already

 4 determined there was not a prescriptive easement on the contested roadway; the

 5 experts were the same in both cases and they dealt with the same evidence; and there

 6 was/is a concurrent relationship by the two sets of plaintiffs to the same property

 7 involving the disputed access. Defendants’ argument is unavailing.

 8   {10}   As our Supreme Court explained in Deflon,

 9          [t]here is no definition of “privity” which can be automatically applied
10          in all cases involving the doctrines of res judicata and collateral
11          estoppel. Thus, each case must be carefully examined to determine
12          whether the circumstances require its application. . . . Privity requires,
13          at a minimum, a substantial identity between the issues in controversy
14          and showing that the parties in the two actions are really and
15          substantially in interest the same.

16 2006-NMSC-025, ¶ 4 (internal quotation marks and citation omitted). “[P]arties have

17 been found in privity where they represent the same legal right or where they have a

18 mutual or successive relationship to the same rights of property.” Id. (internal

19 quotation marks and citation omitted).

20   {11}   In the present case, Defendants contend that “there was evidence of the

21 concurrent relationships to the same property involving the disputed access, thus

22 privity was established.” Defendants appear to be arguing that, because the



                                                7
 1 Coombses, the Hands, and present Plaintiffs are all neighbors on the west side of the

 2 disputed access road and have all used the disputed access road to access their

 3 individual properties and each others’ properties, they collectively share a single

 4 opportunity to claim a right to prescriptive easement over the disputed access.

 5 Defendants provide no authority for this contention, other than citation to Deflon’s

 6 explanation that “[p]rivity has been held to exist in the following relationships:

 7 concurrent relationship to the same property right (i.e. trustee and beneficiary);

 8 successive relationship to the same property or right (i.e. seller or buyer); or

 9 representation of the interests of the same person.” Id. (internal quotation marks and

10 citation omitted). However, Defendants’ implication that the Coombses and Plaintiffs

11 are in legal privity with one another because they both dispute their right to access

12 their separate properties with the same Defendants (or affiliates thereof), simply

13 because the access road is the same, is unsupported.

14   {12}   Indeed, the fact that the Coombses, the Hands, and present Plaintiffs are all

15 neighbors who all use the disputed access road does not mean that they have a

16 concurrent relationship to the same property right, see id., because they all own

17 separate properties, require individual access to their separate properties, and each

18 have individual rights with regard to access to their own separate properties. See Hill

19 v. State Highway Comm’n, 1973-NMSC-114, ¶ 5, 85 N.M. 689, 516 P.2d 199 (“This



                                              8
 1 Court has recognized that the right of access is a property right[.]”); State ex rel. State

 2 Highway Comm’n v. Chavez, 1966-NMSC-222, ¶ 5, 77 N.M. 104, 419 P.2d 759

 3 (“There can be no question that the right to access is a property right[.]”). Likewise,

 4 the fact that the Coombses, the Hands, and present Plaintiffs are all neighbors who

 5 all use the disputed access road does not mean that they represent the interests of the

 6 same person, see Deflon, 2006-NMSC-025, ¶ 4; indeed, they are all separate persons

 7 with their own separate properties in different locations with different access points.

 8   {13}   Further, Defendants have presented no evidence that would indicate that the

 9 Coombses’ right to access their own property via the disputed roadway is somehow

10 the same as Plaintiffs’ right to access their non-adjacent property farther south via the

11 disputed access, such that the parties’ rights to access their separate properties can be

12 said to be a concurrent relationship to the same property right or a representation of

13 the interests of the same person. See id. Similarly, Defendants have presented no

14 argument or evidence regarding any successive relationship to the property or right

15 between the Coombses, the Hands, and present Plaintiffs, aside from the fact that the

16 Mowerys have sold their property to Ms. Brannock, and the Mowerys and Ms.

17 Brannock are all presently seeking the same right in the present lawsuit, so there is

18 no support for a contention that there is legal privity between the Coombses and

19 Plaintiffs based on a successive relationship to the same property or right. See id.



                                                9
 1   {14}   Additionally, as Defendants have presented no authority to support a

 2 contention that neighbors who use the same disputed property or access road to

 3 access or exit their separate properties are in legal privity with one another, and as we

 4 are aware of no such authority, we assume no such authority exists. See Curry v.

 5 Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no

 6 authority to support an argument, we may assume no such authority exists.”). In fact,

 7 such a conclusion would be contrary to the rights of property owners to access their

 8 own property. See Hill, 1973-NMSC-114, ¶ 5 (“This Court has recognized that the

 9 right of access is a property right[.]”); Chavez, 1966-NMSC-222, ¶ 5 (“There can be

10 no question that the right to access is a property right[.]”). We therefore conclude, as

11 a matter of law, that the Coombses and Plaintiffs—non-adjacent neighbors who use

12 the same roadway to access and exit their separate properties—are not in legal privity

13 with one another simply because they use the same roadway and have sought to

14 enforce their right to do so against the same Defendants.

15   {15}   Moreover, Defendants have presented no authority that states that witnesses in

16 one case cannot maintain their own legal action against the defendants of the first

17 action, that such witnesses cannot secure the same attorney as was used in the first

18 action, or that such witnesses cannot introduce the same testimony or experts as in the

19 first case to prove their own case, and after diligent search we have not uncovered any



                                              10
 1 such authority. Similarly, we are aware of no law and Defendants have not presented

 2 us with any law that indicates that such witnesses would be in legal privity with the

 3 plaintiffs of the first action as a result of such witnesses’ knowledge of and

 4 participation in the first action. Additionally, given that the Coombs case dealt with

 5 whether the Coombses had a prescriptive right to the disputed access road, and the

 6 present case deals with whether Plaintiffs have a prescriptive right to the disputed

 7 access road, as indicated above, there is no reason to conclude that the parties have

 8 a concurrent relationship to the same property right or a representation of the interests

 9 of the same person or are otherwise in legal privity with one another. See Deflon,

10 2006-NMSC-025, ¶ 4.

11   {16}   We therefore conclude that Plaintiffs are not in legal privity with the Coombses

12 by virtue of Plaintiffs’ knowledge of or participation in the Coombs case dealing with

13 the Coombses’ interest in the disputed access road; by virtue of Plaintiffs’ hiring of

14 the Coombses’ lawyer; or by virtue of the same evidence, witnesses, or experts being

15 used in Plaintiffs’ case to establish Plaintiffs’ interests in the disputed access road.

16 Accordingly, Defendants have failed to establish the first requirement needed to apply

17 the doctrine of collateral estoppel—the party to be estopped was the same as or in

18 privity with a party in the prior litigation. See Shovelin, 1993-NMSC-015, ¶ 10; City

19 of Sunland Park, 2003-NMCA-098, ¶ 10.



                                               11
 1   {17}   Furthermore, Defendants have failed to satisfy the third and fourth

 2 requirements needed to apply collateral estoppel—that “the issue was actually

 3 litigated in the prior adjudication” and that the issue was “necessarily determined in

 4 the prior litigation.” Shovelin, 1993-NMSC-015, ¶ 10. As discussed above, the issues

 5 in the Coombs case dealt with whether the Coombses had established a prescriptive

 6 easement over the disputed access road; the issues in the present case deal with

 7 whether Plaintiffs have established a prescriptive easement over the disputed access

 8 road. Additionally, in the Coombs case, Judge Brickhouse specifically concluded that

 9 “[a]s a matter of law there [are] no prescriptive easement rights for Plaintiffs”—i.e.,

10 the Coombses. (Emphasis added.) She did not, however, conclude that there are no

11 prescriptive easement rights for any of the witnesses in the Coombs case or for other

12 neighbors in the vicinity who use the disputed access. As such, the present issues

13 were neither “actually litigated” in the Coombs case, nor “necessarily determined in

14 the prior litigation.” See id. Therefore, Defendants have failed to satisfy at least three

15 of the four elements required for collateral estoppel with regard to Plaintiffs’

16 prescriptive easement claim.

17   {18}   Finally, Defendants argue that, because the district court in the Coombs case

18 ruled that there was a dedicated easement and the district court in the present case

19 likewise ruled that there is a dedicated easement, “that would trump any claim for an



                                               12
 1 easement by necessity or prescriptive easement.” In other words, Defendants appear

 2 to be arguing that, because both courts have found a dedicated easement, present

 3 Plaintiffs’ easement by necessity claim is somehow collaterally estopped. Given that

 4 Defendants have presented no argument or evidence that any of the issues involving

 5 Plaintiffs’ easement by necessity claim were raised, considered, argued, or determined

 6 in the Coombs case, we will not consider this aspect of Defendants’ argument. See

 7 Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not

 8 search the record for facts, arguments, and rulings in order to support generalized

 9 arguments.”); see also Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137

10 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that included no

11 explanation of the party’s argument and no facts that would allow the Court to

12 evaluate the claim). Indeed, even if the district court in the Coombs case “adjudicated

13 the issue and held that there was a [dedicated] easement and it was located entirely

14 on the [Coombses’] property,” such a ruling does not address the issue of whether

15 Plaintiffs’ use of the disputed access road is reasonably necessary, which is a required

16 element of an easement by necessity claim, as discussed more fully below. See Los

17 Vigiles Land Grant v. Rebar Haygood Ranch, LLC, 2014-NMCA-017, ¶ 28, 317 P.3d

18 842 (stating that an easement by necessity claim requires, inter alia, “that a




                                              13
 1 reasonable necessity existed for such right of way” (internal quotation marks and

 2 citation omitted)).

 3   {19}   Accordingly, we conclude that the district court did not abuse its discretion in

 4 determining that Plaintiffs are not collaterally estopped from proceeding with the

 5 issues related to their claims of easement by prescription and by necessity. See

 6 Shovelin, 1993-NMSC-015, ¶ 10 (setting forth the requirements for establishing

 7 collateral estoppel).

 8 B.       Res Judicata

 9   {20}   Similar to their collateral estoppel argument, Defendants argue that the relief

10 sought by Plaintiffs with regard to Plaintiffs’ claim for easement by

11 prescription/necessity is precluded from relitigation by res judicata, or claim

12 preclusion. We review a district court’s determination concerning a res judicata claim

13 de novo. Roybal v. Lujan de la Fuente, 2009-NMCA-114, ¶ 23, 147 N.M. 193, 218

14 P.3d 879.

15   {21}   “Claim preclusion, or res judicata, precludes a subsequent action involving the

16 same claim or cause of action.” Id. (internal quotation marks and citation omitted).

17          In order to bar a lawsuit under the doctrine of res judicata, four elements
18          must be met: (1) identity of parties or privies, (2) identity of capacity or
19          character of persons for or against whom the claim is made, (3) the same
20          cause of action, and (4) the same subject matter.




                                                14
 1 Id. (alterations, internal quotation marks, and citation omitted). “The party seeking

 2 to bar the claim has the burden of establishing res judicata[.]” Id. (internal quotation

 3 marks and citation omitted). In this case, Defendants have failed to meet several

 4 elements.

 5   {22}   For the same reasons discussed at length above, the identity of the parties or

 6 privies in the Coombs case is not the same as in the present case. See id. Likewise,

 7 for the same reasons discussed at length above, the cause of action in the Coombs

 8 case—regarding the Coombses’ right to prescriptive easement over the disputed

 9 access road—is different from the cause of action in the present case—regarding

10 Plaintiffs’ right to prescriptive easement over the disputed access road. Further, to the

11 extent Defendants intend to raise the same argument regarding Plaintiffs’ easement

12 by necessity claim with regard to res judicata as they do for collateral estoppel, our

13 responses remain the same.

14   {23}   Accordingly, we conclude that the district court did not err in determining that

15 the doctrine of res judicata does not apply and that Plaintiffs are not barred from

16 proceeding with their claims of easement by prescription and by necessity. See id. We

17 therefore turn to the merits of Defendants’ easement arguments.




                                               15
 1 C.       Prescriptive Easement

 2   {24}   Defendants argue that the district court erred in finding a prescriptive easement

 3 and that Plaintiffs failed to prove all of the elements required for prescriptive

 4 easement. We initially note that the district court appears to have been confused about

 5 the distinction between easement by prescription and easement by necessity.

 6 Although they are both easements, they are different types of easements with different

 7 elements of proof. See, e.g., Los Vigiles Land Grant, 2014-NMCA-017, ¶¶ 4-5

 8 (affirming the district court’s finding that the plaintiffs had an easement by

 9 implication and necessity, but reversing the district court’s grant of easement by

10 prescription). Nevertheless, as discussed below, the district court did not err in

11 finding that both types of easement existed under the facts of the present case.

12   {25}   “On appeal, we decide whether substantial evidence supports the district

13 court’s findings and whether these findings support the conclusions that [each of] the

14 elements required to establish [an] . . . easement by prescription were not proved by

15 clear and convincing evidence.” Algermissen v. Sutin, 2003-NMSC-001, ¶ 9, 133

16 N.M. 50, 61 P.3d 176. “For evidence to be clear and convincing, it must instantly tilt

17 the scales in the affirmative when weighed against the evidence in opposition and the

18 fact finder’s mind is left with the abiding conviction that the evidence is true.”

19 Varbel v. Sandia Auto Elec., 1999-NMCA-112, ¶ 18, 128 N.M. 7, 988 P.2d 317



                                               16
 1 (internal quotation marks and citation omitted). “The function of the appellate court

 2 is to view the evidence in the light most favorable to the prevailing party, and to

 3 determine therefrom if the mind of the fact[ ]finder could properly have reached an

 4 abiding conviction as to the truth of the facts found.” Ledbetter v. Webb, 1985-

 5 NMSC-112, ¶ 21, 103 N.M. 597, 711 P.2d 874 (emphasis, alteration, internal

 6 quotation marks, and citation omitted); see Tartaglia v. Hodges, 2000-NMCA-080,

 7 ¶ 57, 129 N.M. 497, 10 P.3d 176 (“Even where the standard of proof is clear and

 8 convincing evidence, it is for the fact[ ]finder and not the appellate courts to weigh

 9 conflicting evidence and arrive at the truth.” (internal quotation marks and citation

10 omitted)). “We defer to the trial court, not because it is convenient, but because the

11 trial court is in a better position than we are to make findings of fact and also because

12 that is one of the responsibilities given to trial courts rather than appellate courts. Our

13 responsibility is to review for reversible error.” In re R.W., 1989-NMCA-008, ¶ 7,

14 108 N.M. 332, 772 P.2d 366.

15   {26}   In order to be successful in their claim that an easement by prescription exists,

16 Plaintiffs had to satisfy the requirements for prescriptive easement. See Algermissen,

17 2003-NMSC-001, ¶ 9. Specifically, “an easement by prescription is created by an

18 adverse use of land, that is open or notorious, and continued without effective

19 interruption for the prescriptive period (of ten years).” Id. ¶ 10 (emphasis added). In



                                               17
 1 the present case, the district court found that Plaintiffs established the elements of

 2 easement by prescription, including that Plaintiffs utilized the access road at issue

 3 “continuously in an open, notorious, and adverse fashion without permission since

 4 they purchased their land . . . in 1979.” The district court also found that there was

 5 testimony that, since 1979, Plaintiffs “witnessed others using the access road

 6 continuously, in an open, notorious, and adverse fashion without permission.”

 7 1.       Adverse Use

 8   {27}   We must first determine whether Plaintiffs established by clear and convincing

 9 evidence that their use of the disputed access road was adverse. See id. ¶ 12.

10 Defendants allege, inter alia, that “there was no evidence or testimony at trial from

11 [Plaintiffs] to show that any use was adverse.” In Algermissen, the Court explained

12 that “[a]dversity is a general concept that simply means a person holds an interest

13 opposed or contrary to that of someone else.” Id. ¶ 11 (internal quotation marks and

14 citation omitted). “An adverse use is a use made without the consent of the

15 landowner.” Id. Because in many circumstances adversity can be difficult to prove,

16 “a series of presumptions are used.” Id.

17          For example, a use that has its inception in permission will be presumed
18          to continue to be permissive, until a distinct and positive assertion of a
19          right hostile to the owner is brought home to him by words or acts.
20          Similarly, if all of the other elements of a prescriptive easement claim
21          are satisfied, the use is presumed to be adverse in the absence of proof
22          of express permission.


                                               18
 1 Id. (internal quotation marks and citation omitted).

 2   {28}   At trial, Mr. Mowery testified that he never sought permission to use the

 3 disputed access road and that he did not believe such permission was required. Mr.

 4 Mowery likewise testified that the Gonnsens—owners of the Coombs property prior

 5 to the Coombs—never indicated that they needed permission to use the disputed

 6 access road. Similarly, Mrs. Mowery testified that she never had to obtain permission

 7 from anyone to use the disputed access road. Ms. Brannock, who currently resides at

 8 the end of the disputed access road, testified that the Smiths did not mention her use

 9 of the access road when she spoke with them about construction concerns and that she

10 never asked anyone permission to use the access road. In other words, Plaintiffs all

11 testified that they believed that permission to use the disputed access was not

12 necessary and that they never sought such permission.

13   {29}   Moreover, Mr. Smith testified that when the Smiths moved into the property,

14 he was aware of no road and/or the road was not in existence; that he was puzzled

15 about the testimony claiming that the road has been in existence since the 1960s

16 because the aerial photographs show brush on the disputed access; and that his

17 understanding was that the road had not been used when he purchased the property

18 in 1998—in other words, Mr. Smith indicated by his testimony that he never gave

19 permission to the Mowerys or Ms. Brannock or any other party to use the disputed



                                             19
 1 access road. In fact, Mr. Smith even testified that he “was not concerned with people

 2 trespassing on my property,” indicating his view that the Mowerys’ and Ms.

 3 Brannock’s use was trespass, and not permissive. Additionally, the only

 4 communication Defendants had with either the Mowerys or Ms. Brannock regarding

 5 their use of the disputed access was when Mr. Smith conversed with Ms. Brannock,

 6 informing her of the Coombs litigation, and advising her that it would be beneficial

 7 to wait and see how it all works out in court, followed by a letter from Mr. Smith’s

 8 attorney to Ms. Brannock, stating that the Smiths objected to Ms. Brannock using the

 9 access in any way. Thus, substantial evidence exists to support the district court’s

10 finding by clear and convincing evidence that the use was adverse—i.e., “made

11 without the consent of the landowner.” Algermissen, 2003-NMSC-001, ¶ 11; see also

12 id. ¶ 12 (“the fact finder should presume adversity if all of the other elements of the

13 claim are satisfied, and there is no evidence of express permission”). Although there

14 may have been evidence presented to the contrary, “we will not reweigh the evidence

15 nor substitute our judgment for that of the fact finder.” Las Cruces Prof’l Fire

16 Fighters & Int’l Ass’n of Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12,

17 123 N.M. 329, 940 P.2d 177; see also In re R.W., 1989-NMCA-008, ¶ 7 (“Even in a

18 case involving issues that must be established by clear and convincing evidence, it




                                             20
 1 is for the finder of fact, and not for reviewing courts, to weigh conflicting evidence

 2 and decide where the truth lies.”).

 3 2.       Open or Notorious Use

 4   {30}   We must next determine whether Plaintiffs established by clear and convincing

 5 evidence that their use of the access road was open or notorious. See Algermissen,

 6 2003-NMSC-001, ¶ 9. Defendants allege, inter alia, that the use was not open or

 7 notorious because the use was infrequent, the road was not obvious or visible to a

 8 reasonable person based on aerial photographs and Mr. Smith’s testimony, and there

 9 was no reason to use the disputed access until after Ms. Brannock built her home in

10 2010. Our Supreme Court clarified that the requirement that the prescriptive use be

11 open or notorious is the same as the elements previously “labeled as knowledge and

12 imputed knowledge.” Id. ¶ 18. Indeed, “[o]pen or notorious use is the only way that

13 knowledge can be imputed to the landowner.” Id. “Imputed knowledge is

14 synonymous with constructive notice, a phrase that means that the use of the property

15 must have been so obvious that the landowners should have known about it, had they

16 been reasonably diligent.” Id.

17          The use must simply be either open or notorious. To be open, the use
18          must be visible or apparent. This has long been the law of this State. To
19          be notorious, the claimant’s use of the property must be either actually
20          known to the owner or widely known in the neighborhood. This, also,
21          is consistent with our cases.



                                               21
 1 Id. ¶ 19 (emphasis added) (internal quotation marks and citations omitted).

 2 Defendants argue that there was no way to establish open or notorious use because

 3 the access was covered in trees and brush until 2010 and because the access was

 4 “pretty rough” as there was some washout. Defendants further contend that Mr. Smith

 5 never saw the Mowerys or Ms. Brannock use the access in dispute; the access was not

 6 a road because there was no street and no grading; and the county does not recognize

 7 the access as a road in any way, so there was no evidence that the use was open or

 8 notorious. However, contrary to Defendants’ allegations, there was substantial

 9 evidence that Plaintiffs’ use was both open and notorious.

10   {31}   Mr. Mowery testified that he used the disputed access road “a lot” since 1979

11 when he purchased acreage at the end of the road and, during the thirty-one years

12 from 1979 until 2010 when he sold the property to Ms. Brannock, he used the road

13 as the access to the property and for hiking, driving, walking, or riding a motorcycle

14 at least once a month. Mr. Mowery further testified that many people used the

15 disputed road to access their properties, including he and his wife, the Gonnsens, the

16 Coombses, and the Hands, as well as other people—firewood people, pinecone

17 pickers, construction workers, girl scout troops—for various reasons including for

18 visual inspections, firewood, pinecones, picnics, etc. Similarly, Mrs. Mowery testified

19 that she frequently walked on the disputed access road for over thirty years, mostly



                                              22
 1 to take walks alone and with her children. Mrs. Mowery also testified that, after they

 2 moved away, she still occasionally—once or twice a month—went back and used the

 3 access road to check on the house or to simply walk the road. Ms. Brannock likewise

 4 testified that, since she purchased the property in 2009-2010, she has been using the

 5 road, as it currently exists, by driving and walking down the road. Ms. Brannock

 6 further testified that she uses the access road quite often—several times a week, up

 7 to many times a day, depending on whether she was in the area or felt like going

 8 there.

 9   {32}   Additionally, specifically regarding whether the use of the road was visible or

10 apparent, various individuals testified that the disputed access road was clearly visible

11 from Sangre de Cristo, Woodbriar, and Defendants’/LFLP’s property. Mr. Mowery

12 testified that the road and vehicles on the road are visible from the main street, Sangre

13 de Cristo, all the way to the corner at Woodbriar, where the Smiths live. Mr. Mowery

14 testified that there are trees, but that the road is visible anyway. Mrs. Mowery

15 likewise testified that you could see the Smith property from the disputed access road,

16 that she saw people using the access road, assuming it was neighbors, and that she

17 could see Defendants’ property from the disputed access road when she walked on

18 it. Mrs. Mowery also testified that she could see the road and vehicles on the road

19 from Sangre de Cristo. Even Mr. Smith testified that he could see the surveyor and



                                              23
 1 various vehicles on the road from Defendants’ property/house. In fact, Mr. Smith

 2 even admitted that footpaths can be seen on the access road in an un-admitted aerial

 3 photograph from 2008; that he had seen people walk on the access road; and that even

 4 the Smiths used the access road, including with logging trucks, from 1998 when they

 5 bought the property through 2003.

 6   {33}   Moreover, the district court asserted that its “review of the photographs . . .

 7 does not support Defendants’ position. In each of the photos, taken as early as 1996,

 8 the access road as utilized is visible and easily discerned.” Thus, substantial evidence

 9 exists to support the district court’s finding by clear and convincing evidence that the

10 use was open or notorious—i.e., “visible or apparent . . . [or] either actually known

11 to the owner or widely known in the neighborhood.” Id. ¶¶ 9, 19. Again, although

12 there may have been evidence presented to the contrary, “we will not reweigh the

13 evidence nor substitute our judgment for that of the fact finder.” Las Cruces Prof’l

14 Fire Fighters, 1997-NMCA-044, ¶ 12; see In re R.W., 1989-NMCA-008, ¶ 7 (“Even

15 in a case involving issues that must be established by clear and convincing evidence,

16 it is for the finder of fact, and not for reviewing courts, to weigh conflicting evidence

17 and decide where the truth lies.”).




                                              24
 1 3.       Continuous and Uninterrupted Use For the Prescriptive Period

 2   {34}   Finally, we must determine whether Plaintiffs established by clear and

 3 convincing evidence that their use “continued without effective interruption for the

 4 prescriptive period (of ten years).” Algermissen, 2003-NMSC-001, ¶ 10. Defendants

 5 allege, inter alia, that Plaintiffs did not show continuous use because the only

 6 evidence of use was occasional, limited, and rare. In order to prevail in their claim,

 7 Plaintiffs must prove that their use was continuous and uninterrupted. Id. ¶ 23.

 8          Although not synonymous, these two terms are interrelated parts of the
 9          same requirement. For the use to be continuous, it must take place with
10          the same consistency that a normal owner of the claimed servitude
11          would make, so long as that use is reasonably frequent. The requirement
12          that the use be uninterrupted, however, refers to the actions of the
13          prospective servient owner. If the owner takes any action that stops the
14          claimants’ use of the property, this will defeat the claim.

15 Id. (citations omitted).

16   {35}   Defendants make no argument that Plaintiffs did not use the disputed access

17 road with the same consistency that a normal owner would make or that Defendants

18 took any action that interrupted Plaintiffs’ use of the disputed access road. To the

19 extent Defendants’ reiteration of certain testimony from trial that Plaintiffs “only used

20 the access” a limited frequency of times during various periods since 1979 is meant

21 to be an argument regarding continuous use, Defendants fail to explain how such use

22 is not as consistent as the use a normal owner would make, id. ¶ 23; and, in fact, as



                                              25
 1 Plaintiffs are “normal owners” of the property at the end of the disputed access, such

 2 arguments would likely be unavailing. See Corona v. Corona, 2014-NMCA-071,

 3 ¶ 28, 329 P.3d 701 (“This Court has no duty to review an argument that is not

 4 adequately developed.”).

 5   {36}   Nonetheless, with regard to the element regarding Plaintiffs’ continuous and

 6 uninterrupted use for the prescriptive period, Defendants argue that “[t]here was no

 7 road prior to 2010 and thus there was no open and notorious use of the access prior

 8 to 2010”; and that the road was not usable for portions of the time due to the facts that

 9 the access was at times covered by brush, that there was no gravel road until 2010,

10 and that Ms. Brannock did not begin building her home until 2010, so “there was no

11 reason or way to access the property.” Along those lines, Mr. Smith testified that an

12 aerial photograph from 2006 shows that “it’s pretty rough” on the access road in

13 question. However, as set forth above, notwithstanding how the road may have

14 appeared in aerial photographs from 2006 or Defendants’ belief about whether the

15 road had any use to Plaintiffs prior to Ms. Brannock’s home being built in 2010,

16 Plaintiffs variously testified that they did use the disputed access road for walking,

17 hiking, driving, and other activities continuously for over forty years.

18   {37}   Again, as set forth above, Mr. Mowery testified that he used the disputed

19 access road “a lot” since 1979 when he purchased acreage at the end of the road and,



                                              26
 1 during the thirty-one years from 1979 until 2010 when he sold the property to Ms.

 2 Brannock, he used the road as the access to the property and for hiking, driving,

 3 walking, or riding a motorcycle at least once a month. Similarly, Mrs. Mowery

 4 testified that she frequently walked on the disputed access road for over thirty years,

 5 mostly to take walks alone and with her children, and that, even after they moved, she

 6 continued to use the road once or twice a month to check on the house or simply walk

 7 the road. Ms. Brannock likewise testified that, since she purchased the property in

 8 2009-2010, she has been using the road regularly, as it currently exists, by driving

 9 and walking down the road.

10   {38}   Thus, substantial evidence exists to support the district court’s finding by clear

11 and convincing evidence that the use was “continued without effective interruption

12 for the prescriptive period (of ten years).” Algermissen, 2003-NMSC-001, ¶¶ 10, 23.

13 Again, although there may have been evidence presented to the contrary, “we will not

14 reweigh the evidence nor substitute our judgment for that of the fact finder.” Las

15 Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12; see In re R.W., 1989-NMCA-

16 008, ¶ 7 (“Even in a case involving issues that must be established by clear and

17 convincing evidence, it is for the finder of fact, and not for reviewing courts, to weigh

18 conflicting evidence and decide where the truth lies.”).




                                                27
 1   {39}   As we have concluded that there was substantial evidence presented at trial to

 2 support the district court’s findings by clear and convincing evidence that Plaintiffs

 3 established each of the required elements for prescriptive easement, we likewise

 4 conclude that the district court did not err in concluding that Plaintiffs established

 5 a prescriptive easement over the disputed access road.

 6 D.       Plaintiffs’ Request for Attorney Fees

 7   {40}   Finally, we address Plaintiffs’ request in their answer brief for attorney fees

 8 “incurred in this cause for having misstated the evidence and trial testimony to stop

 9 [this] Court’s Proposed Summary Disposition.” We initially note that Plaintiffs

10 present no legal authority in support of their request for attorney fees. See Curry,

11 2014-NMCA-031, ¶ 28 (“Where a party cites no authority to support an argument, we

12 may assume no such authority exists.”). Nevertheless, our Supreme Court has

13 clarified that “New Mexico adheres to the so-called American rule that, absent

14 statutory or other authority, litigants are responsible for their own attorney’s fees.”

15 N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 9, 127 N.M. 654, 986

16 P.2d 450 (internal quotation marks and citation omitted); see also Rule 12-403(B)(3)

17 NMRA (allowing “reasonable attorney fees for services rendered on appeal in causes

18 where the award of attorney fees is permitted by law”). However, “[c]ourts have the

19 inherent power, independent of statute or rule, to award attorney fees to vindicate



                                              28
 1 their judicial authority and compensate the prevailing party for expenses incurred as

 2 a result of frivolous or vexatious litigation.” Landess v. Gardner Turf Grass, Inc.,

 3 2008-NMCA-159, ¶ 19, 145 N.M. 372, 198 P.3d 871 (alteration, internal quotation

 4 marks, and citation omitted).

 5   {41}   In their answer brief, Plaintiffs present various instances in which Defendants

 6 have made certain representations to this Court with the purported knowledge that

 7 such representations were not accurate. However, although we ultimately agree with

 8 Plaintiffs that the district court did not err in deciding that Plaintiffs established an

 9 easement by prescription, we do not find Defendants’ position to be solely a result of

10 “frivolous or vexatious litigation.” Id.; cf. Perez v. Gallegos, 1974-NMSC-102, ¶ 8,

11 87 N.M. 161, 530 P.2d 1155 (noting that just because the appeal lacked merit did not

12 necessarily mean that appeal was taken or pursued in bad faith solely for purposes of

13 delay and harassment entitling the plaintiff to attorney fees). We therefore decline

14 to award Plaintiffs attorney fees resulting from this appeal.

15 III.     CONCLUSION

16   {42}   Concluding that the present case is not precluded by collateral estoppel or res

17 judicata, we affirm the district court’s judgment in favor of Plaintiffs and against

18 Defendants.




                                              29
1   {43}   IT IS SO ORDERED.



2
3                               MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5 __________________________________
6 LINDA M. VANZI, Judge


7 __________________________________
8 TIMOTHY L. GARCIA, Judge




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