                                          I attest to the accuracy and
                                           integrity of this document
                                             New Mexico Compilation
                                           Commission, Santa Fe, NM
                                          '00'04- 15:46:33 2012.08.08

      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-077

Filing Date: June 22, 2012

Docket No. 30,312

LYLE A. DETHLEFSEN and
VERA A. DETHLEFSEN,

      Plaintiffs-Appellants,

v.

WILLIAM H. WEDDLE, ARDEEN
J. WEDDLE, Individually and as
TRUSTEES OF THE WEDDLE
FAMILY REVOCABLE TRUST,
ROBERT COCHRAN, SUSAN
COCHRAN, DAN WARREN,
VON EVA WARREN, FRED
BROWN, BOB JOHNSTON, and
THE NEW MEXICO LAND
CONSERVANCY,

      Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
KEVIN SWEAZEA, District Judge

Deschamps & Kortemeier Law Offices
Stephen Karl Kortemeier
Socorro, NM

for Appellants
Fitch & Tausch, LLC
Thomas G. Fitch
Socorro, NM

for Appellees Weddle




                                     1
                                          OPINION

HANISEE, Judge.

{1}     Lyle and Vera Dethlefsen (the Dethlefsens), property owners in Sierra County,
brought suit against their neighbors and interested parties, sounding in tort, contract, and
declaratory judgment, primarily regarding the use of an easement and corresponding road
traversing their land. Following a bench trial, the district court ruled against the Dethlefsens,
finding there had been no trespass upon their property, no breach of any agreement in
existence between the parties, and declaring the easement to be unambiguous in dimension
and unlimited in scope. On appeal, the Dethlefsens challenge only the district court’s
declarations that pertain to the creation and scope of the easement, and its conclusion
regarding the use of a lockable gate at the easement’s point of origin. We affirm the district
court’s determination that an express easement was unambiguously created over both the
Dethlefsen property and a neighboring tract, the Warren property. But because we
separately hold that the recorded documents establishing the easement are ambiguous with
respect to the easement’s scope, and the district court did not, we reverse its decision in part.
We remand to allow the admission of extrinsic evidence and consideration of the
surrounding circumstances to determine the proper scope of the easement, including whether
and how a lockable gate can be used at the easement’s point of origin.

I.      PROCEDURAL POSTURE

{2}     The four properties affected by this case are located along the eastern boundary of
the Gila National Forest and collectively form the southern half of Section 17, as well as the
eastern portion of Section 18 of Township 12 South, Range 8 West, N.M.P.M., Sierra
County, New Mexico. The properties were all once held by the Eng family, who divided and
conveyed the land, and assigned corresponding easements as follows (in chronological
order):1

        (1) Cochran Property:
        “[A] certain deed [was executed] from Kenneth S. Eng, Jr. to James R.
        Forrister and Kristie M. Forrister, dated [and filed for recording] August 14,
        1992,” for lands that included the eastern half of the southeastern quarter of
        Section 18. An easement quitclaim was also executed that same day by Eng
        to the Forristers “for the purposes of ingress and egress, and the moving of
        livestock, more particularly described as . . . [a]n easement along and across
        the existing road or any replacement of the existing road located in the S½
        of Section 17 . . . .”



        1
         For ease of identification, the properties discussed in this Opinion are each
referenced by use of the current property owner’s surname.

                                               2
That same land and easement were sold by “Kristie M. Hawkins, formerly
Kristie M. Forrister,” to “Robert A. Cochran and Susan D. Cochran” on
March 16, 2007.

(2)       Dethlefsen Property:
On May 31, 1997, “A.A.T. Inc., Robert Bechtel, President, for consideration
paid grant[ed] to Lyle A. Dethlefsen and Vera A. Dethlefsen” “[a] tract of
land being the south one-half of the southwest one-quarter and the west one-
half of the southeast one-quarter [of] Section 17 . . . , subject to easements,
restrictions, and reservations of record, including a fifty (50) foot wide road
easement to and across said property as shown on Loftus & Co. Plat 197-97
. . . .” (Emphasis added.)

On April 7, 1999, “Kenneth S. Eng, Jr., and Caroline Eng, husband and wife,
for consideration paid, grant[ed] to AAT, Inc., Robert Bechtel, President”
“[a] tract of land being the south one-half of the southwest one-quarter and
the west one-half of the southeast one-quarter [of] Section 17,” subject to the
same easement language.

(3)    Weddle Property
“Kenneth S. Eng, as Trustee of the K.S. ENG, INC. PROFIT SHARING
PLAN AND TRUST, for consideration paid, grant[ed] to William H. Weddle
and Ardeen J. Weddle, Trustees of the Weddle Family Revocable Trust,
dated June 23, 1998” on December 16, 2004. The same deed states “Seller
grantees [sic] ingress/egress through deeded lands to property. Purchase [sic]
reserves right to review other than above easement[.] Purchasers have 2
weeks to inspect survey on property after survey is completed. Purchaser
recommends that any easements be in or along creek beds.”

(4)     Warren Property
“Kenneth S. Eng, Jr. And Caroline M. Eng, husband and wife for
consideration paid, grant[ed] to St. Cloud Mining Company” several tracts
of land, including the eastern half of the southeastern quarter of Section 17
on April 20, 2001. Notably, the deed does not contain any easement
reservation language.

“St. Cloud Mining Company, for consideration paid, grant[ed] to Robert F.
Johnston and Rita T. Johnston, husband and wife and Fred M. Brown and
Shirley Brown, husband and wife . . . [t]he E/2 of the SE/4 of Section 17 . .
. on August 29, 2001,” subject to “existing and continuing mining operations
and . . . easements and other rights including uninterruptable [sic] and
unrestricted access to the mine site . . . .”

“Robert F. Johnston and Rita T. Johnston, husband and wife[,] and Fred M.

                                      3
       Brown and Shirley Brown, husband and wife, . . . entered into a binding Real
       Estate Contract with Daniel J. Warren and Von Eva Warren, husband and
       wife, . . . [on] August 9, 2006 for . . . [t]he E2 of the SE/4 of Section 17,”
       subject to the same mining reservations.

The current ownership and physical relationship between the properties are depicted in the
following simplified map, which is provided to assist the reader’s understanding and not to
define any legal rights or precise dimensions.




{3}    The Dethlefsens filed suit on December 28, 2006, against their surrounding property
owners—the Weddles, Kristie Forrister (former owner of the Cochran Property), and Bob
Johnston and Fred Brown (former owners of the Warren property). The complaint was
amended2 on August 27, 2007, to include the Cochrans, the Warrens, and the New Mexico



       2
       The complaint was amended once before and once after the August 27, 2007,
amendment, but the proceedings continued based on the amendment filed on August 27,
2007.

                                             4
Land Conservancy (NMLC)3 as defendants. The court later dismissed Kristie Forrister from
the case because the Dethlefsens “failed to state a claim against [her], under the [amended]
complaint.”4 The Dethlefsens asserted three counts against the remaining and additional
defendants: (Count One) “Breach of Agreement” regarding the Dethlefsens’ right to access
the Weddle property to maintain fencing between the two properties, and seeking to enforce
a separate oral agreement purportedly entered into by all owners to “secure the access” to
the easement with a lockable gate at its point of origin on Forest Service Road 157, (Count
Two) “Action for Declaratory Relief” seeking to restrict the Weddles’ and Cochrans’ use of
the easement to a historical fourteen-foot-wide road “approximately following Monument
Creek” to be used only for limited residential and agricultural purposes, and (Count Three)
“Trespass” regarding the Weddles’ use of the easement for commercial purposes, including
“driv[ing] cattle” and providing third-party “access for commercial hunting.” After years
of pre-trial litigation and several failed attempts at mediation, a bench trial on the merits was
held on October 21, 2009.

{4}    At trial, the Dethlefsens’ attorney sought to present Mr. Dethlefsen as the primary
witness to establish the case-in-chief. But less than half an hour into Mr. Dethlefsen’s direct
examination, the district court began to disallow testimony regarding the circumstances
surrounding the nature of the easement and gate. The court ruled that the recorded
“documents [were not] ambiguous” and on that basis barred admission of the extrinsic
evidence being offered.

The court stated more fully:

                My ruling on that would be the document by which Mr. Dethlefsen
        took title contains a reservation of an explicit fifty-foot-wide easement and
        that’s not ambiguous . . . and that the Warren property is also subject to that
        same easement. The testimony that you are offering seems to be directed to


        3
         The NMLC was granted a “Conservation Easement” by the Dethlefsens in 2004 to
all of the Dethlefsen property at issue here, “for the purpose of forever conserving [the
land’s] natural, scenic and open space character[,] [and] wildlife habitat values[.]” The
conservation easement explicitly prohibits the Dethlefsens from engaging in property uses
inconsistent with “Conservation Values” as defined by the easement, including moving or
paving the “existing access road.” But even after the NMLC “was named as a party, it
disclaimed all intent to participate, stating, in effect, that it was relying on [the Dethlefsens]
to properly and adequately protect its interest.”
        4
         Johnston and Brown remained defendants in the case, despite also divesting their
property interest by subsequent transfer (to the Warrens), because the Dethlefsens alleged
that they “continue to retain a financial interest in the property.” Each is unrepresented on
appeal and has submitted no briefing to this Court. As well, Appellees Cochrans, Warrens
and the NMLC have not participated in the proceedings on appeal.

                                                5
       vary or modify the terms of that written instrument.

As a result, the Dethlefsens’ attorney was forced to forego his planned presentation of
extrinsic evidence regarding the intended scope of the easement:

               I apologize for taking a few minutes here to . . . put this in the context
       of the court’s . . . comments about the lack of ambiguity about the nature of
       the easement. As the court may well appreciate those things have taken quite
       a few things that I was going to go into out of consideration and so I need to
       regroup a little bit and if the court would . . . indulge me in a moment or two?

{5}     Ultimately, the court accepted some extrinsic evidence, such as the recorded property
deeds for the surrounding properties and several photographs of the road and gate system
that was installed at the origin of the easement at Forest Service Road 157. Yet it disallowed
the Dethlefsens the opportunity to further develop the record with evidence regarding the use
of the road or of the common grantor’s intent surrounding the initial establishment of the
easement and gate. At the outset of trial, the Dethlefsens’ attorney asserted that:

       There are some facts that need to be elicited regarding the intention of the
       parties, particularly . . . [that] of Dr. Eng, the circumstances that existed back
       in ‘92, the circumstances that gave rise to the expansion . . . of the change
       of the gate, from twelve to fourteen feet, and to the nature of the locking
       system.

The Dethlefsens’ exhibit list, which includes “Kenneth Eng Letter dated August 8, 2005 to
Counsel,” as well as their supplemental exhibit list, which provides “[f]our pages of
correspondence with Dr. Eng, including signed response from Dr. Eng,” likewise anticipated
allowance of extrinsic evidence during trial. Similarly, the Dethlefsens’ appellate docketing
statement outlines the evidence they sought to present in district court, including “testimony
concerning the intent of the grantor, Dr. Eng, and the circumstances surrounding the grants
and reservations.”

{6}    To support their argument that the scope of the easement traversing their subservient
property was ambiguous, the Dethlefsens offered recorded documents from two of the
adjoining and dominant properties—the Weddle property and the Cochran property—that
contained differing easement-granting clauses. The Weddles’ easement was granted within
the Weddle property deed itself, while the Cochrans’ easement was quitclaimed in a separate
document entitled, “Easement.” The language used to describe the single easement
burdening the Dethlefsen property varied between the dominant property documents, and
from the descriptive language used in the Dethlefsen deed and from a plat referenced therein
(hereinafter, “Dethlefsen plat” or “the plat”). The variations existed despite the fact that
each property conveyance originated from one common grantor. The Dethlefsens
maintained that the court needed to consider each of the three easement-establishing
documents, the plat, as well as the surrounding circumstances, to determine the intended

                                               6
scope of the easement. They maintained that the easement reservation contained in the
Dethlefsen deed, when compared to the Weddle deed and the Cochran easement quitclaim,
is ambiguous. On the one hand, the court agreed that the Dethlefsen deed must be construed
in conjunction with the dominant estates’ documents of record. But it stated on the other
hand that it did not “perceive that the [dominant property] documents would be able to
restrict or affect the express reservation in the easement that was contained in the . . .
Dethlefsen [deed].” The court admonished counsel that “[t]he argument that you’re making
and whatever testimony you might offer to support it would [impermissibly] vary the terms
of the written instrument.”

{7}     As a result of its finding regarding the absence of ambiguity and the corresponding
truncation of testimony, the district court entered a judgment, based only on the admitted
testimony and evidence, declaring the easement rights regarding the scope of the easement
as follows:

        [1]     The road easement as described on the [plat] . . . and referred to in the
                Dethlefsens’ deed is an express easement, is not ambiguous and is not
                subject to any limitations or restrictions concerning the use of the
                road easement.

        [2]     The lands of the Dethlefsens and the Warrens are both subject to a 50
                ft. wide road easement (the Road) running from Forest Road 157
                through the lands of Warren and Dethlefsen to lands of Weddle and
                generally following Monument Creek as its centerline[.]

        [3]     Neither the Dethlefsens nor the Warrens have a right to dictate the
                type of lock or locks to be used at the gate across the Road where it
                meets Forest Road 157 nor, indeed, to require that the gate be locked.

(Emphasis added.) As to Count One (“Breach of Agreement” regarding fencing and access
security) and Count Three (“Trespass” regarding the Weddles’ alleged commercial use of
the easement), the court ruled that “[t]here has been no breach of any agreement or promise
as alleged,” “no trespass,” “no damages incurred,” and “no conduct . . . undertaken in
justifiable reliance upon agreements made by any Defendant.”

{8}     On appeal, the Dethlefsens do not raise any assertion of error as to the district court’s
rulings pertaining to the alleged breach of agreement to maintain fencing set forth in Count
One of the amended complaint or as to the trespass asserted in Count Three. Our review is
thus confined to the district court’s rulings pertaining to the gate agreement separately
asserted in Count One and to the easement declarations entered pursuant to Count Two.

II.     DISCUSSION




                                               7
{9}     The Dethlefsens raise seven points on appeal,5 which we consolidate into three:
Whether the district court erred in concluding that (1) the deed and plat unambiguously
reserve “a fifty (50) foot wide ‘roadway’ easement following Monument Creek as [the]
centerline,” without “any limitations or restrictions concerning use”; (2) the Dethlefsen plat
created an express easement, and not an easement by implication, over the lands of Warren;
and (3) neither the easement nor any oral agreement created a provision for a gate and
locking system.

Issue 1:       Whether the Grant and Reservation of the Easement Through the
               Dethlefsen Property Were Ambiguous in Scope6

{10} The determination of whether language utilized to establish an easement is
ambiguous as a matter of law entails the analysis of deeds and other property documents to
ascertain the legal rights associated therewith. Accordingly, our review is de novo. Garcia
v. Garcia, 2010-NMCA-014, ¶ 17, 147 N.M. 652, 227 P.3d 621 (“We review de novo the
court’s resolution of an ambiguity in documents.”); see Kirkpatrick v. Introspect Healthcare
Corp., 114 N.M. 706, 711, 845 P.2d 800, 805 (1992) (“When the resolution of the issue
depends upon the interpretation of documentary evidence, this Court is in as good a position
as the trial court to interpret the evidence.”).

{11} We start our analysis by setting forth general rules of construction with respect to
easements, followed by a summary of our law related to the determination of easement
ambiguity. We then apply the principles distilled from our precedent to the easement that
burdens the Dethlefsen property.

A.      Rules of Express Easement Construction

{12}   “An easement is distinguished from a fee, and constitutes a liberty, privilege, right,


       5
         The Dethlefsens’ brief in chief challenges the district court’s determinations that (1)
the easement reservation contained in the Dethlefsen deed “was unambiguous and
determinative,” (2) the “‘roadway’ easement” is fifty feet wide and follows Monument Creek
as its centerline, (3) the Dethlefsen survey “created an express easement over the lands of
Warren,” (4) “the roadway easement . . . is not subject to any limitations or restrictions,” (5)
“the ‘bell-housing’ lock system and gate across the easement where it meets Forest Road 157
were in use as a matter of neighborly accommodation and that any party was free to
disregard the same,” as well as the district court’s failure to (6) find the easement traversing
Warren’s land to be an easement by implication and (7) consider that the express grants
within the Weddle deed and the Cochran easement quitclaim “were more restrictive than the
reservation” in the Dethlefsen deed.
       6
          This issue addresses the Dethlefsens’ points of appeal numbers 1, 2, 4, and 7 as set
forth in footnote 5, supra.

                                               8
or advantage which one has in the land of another.” Kennedy v. Bond, 80 N.M. 734, 736,
460 P.2d 809, 811 (1969). It is created by express agreement, prescription or by implication.
Herrera v. Roman Catholic Church, 112 N.M. 717, 720, 819 P.2d 264, 267 (Ct. App. 1991).
The existence of an express easement and its corresponding scope are “determined according
to the intent of the parties.” Skeen v. Boyles, 2009-NMCA-080, ¶ 18, 146 N.M. 627, 213
P.3d 531. In discerning that intent, we “place heavy emphasis . . . on the [parties’] written
expressions.” City of Rio Rancho v. Amrep Sw., Inc., 2011-NMSC-037, ¶ 37, 150 N.M. 428,
260 P.3d 414 (omission in original) (internal quotation marks and citation omitted). Unlike
contract construction, the written language of an easement should be conclusive, and
consideration of extrinsic evidence is generally inappropriate. Id. (“[T]he legal treatment
of language in a recorded plat is different than the legal treatment of language in a
contract.”). If, however, “the grant or reservation is ambiguous, the parties’ intention must
be determined from the language of the instrument as well as from the surrounding
circumstances.” Sanders v. Lutz, 109 N.M. 193, 194-95, 784 P.2d 12, 13-14 (1989).

{13} Our appellate courts have allowed consideration of extrinsic evidence to resolve
ambiguities in easements under several notable circumstances. First, when necessary terms
are omitted, our courts have found ambiguity and considered outside evidence. See, e.g.,
Martinez v. Martinez, 93 N.M. 673, 675-76, 604 P.2d 366, 368-69 (1979) (holding that a
“right of ingress and egress” was sufficiently certain and definite to create an easement, but
remanding for “a determination of the location of appellant’s easement” based on the parties’
behavior, where that term was omitted from the granting language); Skeen, 2009-NMCA-
080, ¶ 22 (following the rule that “‘[i]f the granting instrument does not specify whether the
easement is appurtenant or in gross, the court decides from the surrounding circumstances’”
(quoting Luevano v. Group One, 108 N.M. 774, 777, 779 P.2d 552, 555 (Ct. App. 1989));
Vill. of Wagon Mound v. Mora Trust, 2003-NMCA-035, ¶¶ 46-47, 50-51, 133 N.M. 373, 62
P.3d 1255 (recognizing the validity of a “floating easement” and considering evidence of
actual usage where “documents lack a specific description of the actual location of the
easement”).

{14} Second, our courts will consider surrounding circumstances when the terms of an
easement are subject to more than a single reasonable construction. Cox v. Hanlen, 1998-
NMCA-015, ¶ 29, 124 N.M. 529, 953 P.2d 294 (noting that “[t]he district court did not err
in going beyond the literal language of the deed” in construing the reservation language,
“[s]ubject to . . . a 7 foot utility and ditch easement,” because it was uncertain “whether the
seven-foot limitation applie[d] to both the utility and ditch easements or only to use for
utility purposes” (first alteration and omission in original) (internal quotation marks
omitted)); Quintana v. Knowles, 115 N.M. 360, 363, 851 P.2d 482, 485 (Ct. App. 1993)
(concluding that the survey language, “‘existing 30-foot access and utility easement . . . [did]
not make clear the width of either the road or the utility easement’” (emphasis added));
accord Jones v. Schoellkopf, 2005-NMCA-124, ¶ 12, 138 N.M. 477, 122 P.3d 844
(recognizing that ambiguity exists when provisions are “reasonably and fairly susceptible
to two constructions”).


                                               9
{15} Third, our courts review extrinsic evidence to resolve conflicting terms of an
easement. In Sanders for example, the New Mexico Supreme Court determined that even
though the easement was otherwise expressly “laid out with square corners,” it was
nonetheless ambiguous because those dimensions prevented the easement from being “used
as a roadway,” which was its express purpose. 109 N.M. at 196, 784 P.2d at 15. The Court
therefore affirmed the district court’s decision to review extrinsic evidence to resolve the
conflict and revise the written terms accordingly. Id.

{16} And last, evidence beyond the documentary confines is admissible when the granting
language is not itself technically accurate. Camino Sin Pasada Neighborhood Ass’n v.
Rockstroh, 119 N.M. 212, 214, 889 P.2d 247, 249 (Ct. App. 1994) (holding that the use of
the phrase “subject to,” rather than “grant” or “reservation,” to create an easement was
sufficiently ambiguous to justify consideration of “the surrounding circumstances”).

{17} We also note that a preference within our case law exists to narrowly construe rights
created by an easement. Walker v. United States, 2007-NMSC-038, ¶ 49, 142 N.M. 45, 162
P.3d 882 (“In New Mexico, the scope of an easement, or right-of-way, is narrow and is
measured by the ‘nature and purpose of the easement.’” (citation omitted)). The New
Mexico Supreme Court has noted that the “law is jealous of easement claims, and the burden
is on the party asserting such a claim to prove it clearly.” Amoco Prod. Co. v. Sims, 97 N.M.
324, 325, 639 P.2d 1178, 1179 (1981) (internal quotation marks and citation omitted).
Against this backdrop, we address the language used in the Dethlefsen deed to determine
whether an ambiguity exists.

B.     Application of Easement Construction Rules to the Dethlefsen Deed

{18} The Dethlefsen deed, which was recorded in 1997, conveyed a tract of land in fee
“subject to easements, restrictions, and reservations of record, including a fifty (50) foot
wide road easement to and across said property as shown on Loftus & Co. Plat 197-97, filed
for record with the Sierra County Clerk.” The referenced plat, which was also recorded in
1997, portrays the easement visually and includes both a written description and relevant
labels associated with the easement. The plat shows the easement as generally running from
east to west, beginning at an unidentified Forest Service road, traversing the property of
Johnston/Brown (now the Warren property) and then the Dethlefsen property, and
connecting with the Weddle property. To the west of the Weddle property lies the Forrister
(now the Cochran) property, but the plat does not show the easement connecting to the
Cochran property.7 The written description contains language identical to the deed quoted


       7
         Although the easement does not visually extend to the Cochran property on the
Dethlefsen plat, all parties appear to accept that the easement in fact connects to the Cochran
property. That view is supported by the easement-granting clause contained in the Cochran
deed—“[a]n easement along and across the existing road or any replacement of the existing
road located in the S½ of Section 17.” Similarly, the district court noted in its findings and

                                              10
above. But the plat labels describe the easement as follows: “ROAD & 50’ WIDE
EASEMENT FOLLOWS APPROX. C/L OF MONUMENT CREEK” and “EASEMENT
EXTENDS TO FOREST SERVICE ROAD.”

{19} While we agree with the district court that these documents unambiguously reserve
at least a fifty-foot-wide easement over the Dethlefsen property, we nonetheless conclude
that the scope of the easement is ambiguous as a matter of law because it omits necessary
terms and because the included terms are subject to more than one reasonable construction.
Specifically, the easement fails to disclose the following terms necessary to an understanding
of precisely what was conveyed: (1) the nature and purpose of the easement, (2) an
identification of each of the dominant estate holders, and (3) its duration. Although use of
the term “road” in the context of easement language does denote rights of ingress and egress
for vehicle use, it is not definitive as to the specific nature and purpose of the easement. And
while the plat does identify neighboring tracts of land, it is unclear based solely on the
Dethlefsen deed and plat which of the parties possess easement rights over the Dethlefsen
property.

{20} Also with respect to the easement’s dimensions, which the deed and plat establish
as “fifty feet,” it is contextually unclear what exactly has been reserved. The language used
in the Dethlefsen deed—“fifty (50) foot wide road easement”—and the Dethlefsen
plat—“ROAD & 50’ WIDE EASEMENT”—can be construed as either a fifty-foot wide
roadway, the entirety of which can be graded or paved; a fifty-foot-wide easement, within
which a typically sized roadway can be placed; or a fifty-foot-wide easement and an
additional road of undefined dimension, not necessarily within the easement boundaries.
Under the Cox analysis, which noted alternative constructions of the “7 foot utility and ditch
easement,” the district court here should have gone beyond the literal language to include
consideration of the parties’ actual use and grantor intent to resolve the conflicting
constructions. 1998-NMCA-015, ¶ 29 (emphasis added).

{21} The width of the road, if established at fifty feet, is also notably peculiar in such a
rural setting. Historically, our courts have addressed private ingress and egress roadway
easements of widths considerably less than fifty feet. Dyer v. Compere, 41 N.M. 716, 718,
73 P.2d 1356, 1357 (1937) (construing easement language creating “a roadway 8 feet in
width”); Redman-Tafoya v. Armijo, 2006-NMCA-011, ¶ 3, 138 N.M. 836, 126 P.3d 1200
(construing a “five foot wide ingress, egress . . . easement”); Maloney v. Wreyford, 111 N.M.
221, 223-25, 804 P.2d 412, 414-16 (Ct. App. 1990) (determining that, in the context of a
prescriptive easement, the roadway was only sixteen feet wide based on actual use despite
deed language describing “a fifty (50) foot access”). And despite the statutory mandate
requiring public highways to be “sixty feet in width,” NMSA 1978, § 67-5-2 (1905), public
highways created by prescription are often recognized as being far narrower. State ex rel.



conclusions that “[a]n extension of the Road continues in westerly [sic] direction through
the Weddles’ land to the Cochrans’ land.”

                                              11
Baxter v. Egolf, 107 N.M. 315, 318-19, 757 P.2d 371, 374-75 (Ct. App. 1988) (declining to
apply Section 67-5-2 to State Road 22 because the use of the road established its width at
eighteen feet rather than sixty).

{22} Equally unclear is whether the roadway, the easement, or both follow the centerline
of Monument Creek. The lack of a definite location leads to an ambiguity similar to that
identified in Vill. of Wagon Mound and Martinez, where because “the documents lack[ed]
a specific description of the actual location of the easement,” Vill. of Wagon Mound, 2003-
NMCA-035, ¶ 46, “[t]he parties’ behavior [could] furnish the scope or location of the
missing details[.]” Martinez, 93 N.M. at 676, 604 P.2d at 369.

{23} In contrast to the language used in the Dethlefsen deed and plat and to those above-
cited instances where our courts have declared easement language to be ambiguous, the
following cases serve as examples of unambiguous easement language. In Brooks v. Tanner,
101 N.M. 203, 206, 680 P.2d 343, 346 (1984), the examined language plainly answered all
pertinent questions with regard to scope:

       SUBJECT also to a road easement granted to Hazel Calverley along and over
       the Southerly twelve (12’) feet of the above described property, recorded in
       Book D-598, page 80, Records of Bernalillo County, New Mexico; and
       Owner hereby reserves an easement for road purposes over the Southerly
       twelve (12’) feet of the above described property for use in connection with
       that portion of Lots 140 and 141 of Monticello and not included in this sale
       and for ingress and egress from his property to Monticello Drive which
       easement shall be left open.

Similarly, each of the easements described in City of Rio Rancho and Dyer unambiguously
provide the requisite information to answer the legal questions presented. City of Rio
Rancho, 2011-NMSC-037, ¶ 42 (holding that “the recorded plat unambiguously grant[ed]
a drainage easement to the City,” as opposed to an open space easement); Dyer, 41 N.M. at
719, 73 P.2d at 1359 (“[W]e find a specific reservation of an easement in the form of a right
of way ‘eight feet in width . . . along the north line of the [property].’” (omission in
original)).

{24} We also note that the ambiguities apparent in the Dethlefsen deed and plat are not
resolved by the recorded deeds of the lands surrounding the Dethlefsen property. Of those
recorded documents accepted by the district court, only two describe having easements over
the Dethlefsen property—the Weddle deed and the Cochran easement quitclaim. And
neither document locates or even references the easement in wording consistent with each
other or with the Dethlefsen deed or the expressly incorporated Dethlefsen plat. The Weddle
deed recommends that the easement be “in or along creek beds,” while the Cochran
easement quitclaim locates the easement along “the existing road or any replacement
[thereof.]” While both descriptions could indicate a roadway along Monument Creek, as
referenced in the Dethlefsen deed and plat, neither definitively does so. As expressed by the

                                             12
New Mexico Supreme Court in Sanders, where the recorded documentary terms do not
agree, the court must look to extrinsic evidence to resolve the conflict. 109 N.M. at 196, 784
P.2d at 15 (“In the present case . . . the instrument is ambiguous [and as a result, we] hold
that the trial court properly acted . . . by determining the intent of the parties and revising the
written instrument accordingly.”).

{25} Similarly, neither document specifies a width or a consistent specific use for the road,
or whether the easement is appurtenant or in gross. The Cochran easement quitclaim
specifies that it is “for the purposes of ingress and egress, and the moving of livestock.” But
the Weddle deed states only that “Seller grantees [sic] ingress/egress through deeded lands
to property.” And the reservation language in the Dethlefsen deed provides no purpose at
all. While we recognize that differing uses of an easement and road may be granted to
different dominant property owners, based on the inconsistency between these documents
we cannot conclude that the nature and purpose of the road has been clearly defined. We
also note the incongruence between the normal use associated with a roadway and the
differently paced and dimensional movement of livestock. The consideration of the related
documents of record, absent the illumination of surrounding circumstances, advances us no
closer to a definitive explanation of the full scope of the Dethlefsen easement that is the
subject of the declaration action. Thus we determine, based on our analysis of the
documents of record and in accord with our precedent, that the scope of the easement here
is ambiguous.
Issue 2:         Whether the Warren Property Is Subject to an Express Easement8

{26} The district court entered findings that “[t]he road easement as described on the
Loftus & Co. survey plat No. 197-97 . . . and referred to in the Dethlefsens’ deed is an
express easement,” and “runs from Forest Road 157 through the lands of Warren and
Dethlefsen to lands of Weddle.” At trial, the district court reasoned that since the Warren
property was still held by the common grantor at the time the Dethlefsen property was
surveyed, the Dethlefsen deed and plat, which depicted the easement traversing the Warren
property, created an express easement over the Warren property as well. The court found
that “[t]he Warrens also knew or should have known in the exercise of reasonable diligence
that their land was burdened with a fifty ft. wide road easement, the Road, when they
purchased their land.”

{27} The Dethlefsens contend on appeal that the district court erred when it concluded that
the Dethlefsen plat created an express easement over the Warren property. The Dethlefsens
make this argument pursuant to their understanding that an implied easement is defined by
and limited to reasonable necessity. In the Dethlefsens’ view, “reasonable necessity” in this
context “may be less than a fifty[-]foot[-]wide road.” The Dethlefsens contend that if the
easement over the lands of Warren is limited to reasonable necessity, then the Cochrans and


        8
         This issue addresses the Dethlefsens’ points of appeal numbers 3 and 6 as set forth
in footnote 5, supra.

                                                13
the Weddles “cannot benefit from a fifty foot wide road easement over the lands of
Dethlefsen.” Because we hold that the district court did not err in determining that the
Dethlefsen plat created an express easement over the lands of Warren, we do not consider
the substance of the Dethlefsens’ argument in this regard.

{28} We review a determination of whether an express easement has been created for
sufficiency of the evidence. Camino Sin Pasada, 119 N.M. at 215-16, 889 P.2d at 250-51
(applying the substantial evidence standard to determine whether “[t]he trial court could
properly find that there was sufficient evidence of grantor intent” to create an express
easement). “[T]he prevailing rule in New Mexico is that no particular words of grant are
necessary to create an easement. Any words which clearly show intention to grant an
easement are sufficient, provided the language is certain and definite in its term.” Id. at 214,
889 P.2d at 249 (alteration, internal quotation marks, and citation omitted).

{29} Here, the Dethlefsen deed explicitly states that the Dethlefsen property “is subject
to easements, restrictions, and reservations of record, including a fifty (50) foot wide road
easement to and across said property as shown on Loftus & Co. Plat 197-97 . . . .”
(Emphasis added.) A fair reading of that clause indicates an intent to both reserve an
easement “across” the Dethlefsen property and grant easement access “to” the Dethlefsen
property. Additionally, the plat attached to the Dethlefsens’ deed clearly shows the
easement extending across the Warren property and connecting with Forest Service Road
157. The plat even notes that “EASEMENT EXTENDS TO FOREST SERVICE ROAD.”
Finally, the Warrens’ chain of title demonstrates that at the time the easement was reserved
in the Dethlefsen deed and plat, the Warren property was still owned by Eng, the same
grantor that devised the Dethlefsen deed and plat.

{30} Under these circumstances and pursuant to our substantial evidence review, the
district court could properly find sufficient evidence of grantor intent to create an express
easement over the Warren property. Hernandez v. Mead Foods, Inc., 104 N.M. 67, 71, 716
P.2d 645, 649 (Ct. App. 1986) (“The question is not whether substantial evidence would
have supported an opposite result; it is whether such evidence supports the result reached.”).
We recognize, however, that while the district court was correct insofar as the Warren
property is burdened by an express easement by virtue of the Dethlefsen deed and plat, the
nature and scope of the easement necessarily suffers from the same ambiguities identified
above. See Issue 1, Part B, ¶¶ 18-25, supra. Because we hold there was sufficient evidence
for the district court to determine the existence of an express easement, it is not necessary
for us to address the Dethlefsens’ argument that the easement is created by implication. We
also do not address the Weddles’ argument that the “Dethlefsens do not have standing to
challenge a road over Warrens’ land which the Warrens acknowledge” because the Weddles
offered no legal authority in support of the argument. See In re Adoption of Doe, 100 N.M.
764, 765, 676 P.2d 1329, 1330 (1984) (stating that where a party cites no authority to
support an argument, we may assume no such authority exists). Thus, we affirm the district
court’s holding that an express easement exists over the Warren property. But pursuant to
our analysis set forth in “Issue 1,” we conclude that the nature and scope of the easement

                                              14
must be determined following the admission and consideration of extrinsic evidence on
remand.

Issue 3:       Whether the Easement or any Oral Agreement Provide for the Use of a
               Lockable Gate9

{31} The Dethlefsens’ final assertion on appeal challenges the district court’s declaration
that “[t]here are no restrictions or limitations on the use of the said road easement through
the lands of Dethlefsen and Warren,” and “there has been no breach of any agreement or
promise” to maintain a lockable gate. The Dethlefsens’ argument at trial attempting to
legally establish the gate and locking system at Forest Service Road 157 was two-fold: First,
pursuant to Count One of the complaint, the Dethlefsens alleged that there was an oral
agreement between the parties to use a fourteen-foot gate and bell-housing lock. We decline
to review the first prong of the Dethlefsens’ argument, as Count One was dismissed by the
district court and the Dethlefsens elected not to challenge that determination on appeal.

{32} Second, pursuant to Count Two of the complaint, the Dethlefsens sought a
declaratory judgment regarding “whether the use of a bell lock [was] a reasonable restriction
by [the Dethlefsens] to further their security and still permit neighbor’s use[.]” Additionally
in Count Two, the Dethlefsens requested the court to declare that “Defendants Johnston,
Brown, [and] Warren . . . shall consent to all reasonable restrictions for use of the easement
offered by [the Dethlefsens] and that the Dethlefsens had “the right to restrict access to the
easement to neighboring landowners[] only, with reasonable security measure[.]” We
interpret the Dethlefsens’ claim to be that the easement implicitly included the use of a
14-foot gate with a single bell-lock and limited keys based on the surrounding
circumstances. The particular factual allegations contained in the Dethlefsens’ complaint
in regard to the foregoing were the following:

               10. The Dethlefsens, Defendants Weddle, and Defendant Cochran all
       rely on legal and physical access to their properties from Forest Road 157,
       by an easement across the property previously owned by Defendants
       Johnston and Brown and now owned by Defendants Warren.

               ....

               12. In approximately June of 1992, prior to any Defendants
       purchasing their respective property, Kenneth Eng, . . . the predecessor in
       interest to all of the parties as to their respective real property interests at
       issue herein, installed a locked gate preventing access to the easement at
       approximately the entrance to the property now owned by Defendants


       9
         This issue addresses the Dethlefsens’ points of appeal numbers 4 and 5 as set forth
in footnote 5, supra.

                                              15
       Warren (hereinafter the “common gate”).

              13. After Defendants Weddle, former property owner Forrister, and
       the Dethlefsens purchased their properties from Dr. Eng, in approximately
       1998, these parties and Dr. Eng agreed to install a single bell lock on a
       fourteen foot . . . wide gate across the entrance to the easement.

              ....

               16. The predecessors in interest to Defendants Johnston and Brown
       and to Defendants Warren consented to installation of the improved gate and
       lock and to a system to limit and control keys for the new gate.

               17. The Dethlefsens constructed a residence on their property, in
       material reliance on the agreement to maintain the secure new gate with a
       bell lock and limited keys.

               18. After the Dethlefsens constructed completed construction of their
       residence, they changed the lock for the new gate and re-issued keys to all
       the parties to the agreement, to ensure continued security for their residence.

              19. Defendants Weddle rejected the keys offered by the Dethlefsens,
       and added additional locks to the new gate with a chain outside the bell,
       exposed to the public at large.

              ....

               21. Defendants Johnston and Brown purchased their property with
       the gated, locked access and controlled key procedures in place for the new
       common gate.

              ....

              24. Defendants Weddle have provided public access for commercial
       hunting on their properties, requiring public use of the private easement
       burdening the Dethlefsens’ property.

              ....

              26. Defendants Johnston and Brown also provided public access for
       commerical hunting on their properties, and required that the gates be left
       unlocked, compromising the security of the Dethlefsens.

{33}   At trial, the Dethlefsens sought to present Mr. Dethlefsen’s testimony regarding the

                                             16
understanding that existed between Dr. Eng (prior to his having sold the Warren property)
and Mr. Dethlefsen regarding the gate and the bell lock. Mr. Dethlefsen’s testimony in this
regard was excluded as hearsay. Further, although the court permitted Mr. Dethlefsen to
testify as to his agreement and understanding with Mr. Weddle regarding the gate at Forest
Road 157 and the use of a bell lock, the court ruled that whatever oral agreement the parties
made years after the grant and reservation of the easement was invalid under “the rules of
property that require interests in land to be in writing to be enforceable.” The court further
explained that, in its view, the testimony regarding the gate and the bell lock was an attempt
to vary or modify the terms of the written instrument which, on its face, did not provide for
a gated and locked easement.” The Dethlefsens likewise elected not to challenge that legal
determination.

{34} We thus focus our review only on the second prong of the Dethlefsens’ gate
argument: that the nature of the easement at the time it was established contained an implicit
provision for a lockable gate to exist at the intersection of the easement and Forest Service
Road 157, based on the ambiguity of the easement documents and the initial presence of a
locked gate at that point.

{35} As with the scope of the easement generally, the district court refused to consider
extrinsic evidence with respect to the locked gate based upon its finding of an absence of
ambiguity in the Dethlefsen deed and plat. But none of the pertinent easement language in
the appellate record contains a provision allowing or prohibiting the use of lockable gates.
The argument the Dethlefsens wished to assert, and offer evidence at trial in support of, was
that a locked gate existed at the easement’s point of origin prior to the easement reservation
in the Dethlefsens’ deed and plat. Under the same case law cited above, we hold that the
documents that both create and reference the easement are ambiguous—indeed, silent—as
to the inclusion of a lockable gate on the easement at any location. See Issue 1, Part A, ¶ 13
& Part B, ¶ 22, supra. We conclude again that extrinsic evidence, as a tool to discern the
grantor’s intent, must be admitted and employed by the district court in its consideration of
whether the easement contemplated the use of a lockable gate.

III.    CONCLUSION

{36} Based on the foregoing, we affirm in part and reverse in part the judgment of the
district court. We affirm the determination that an express, fifty-foot-wide easement and
road of some undetermined dimension burdens both the Dethlefsen and Warren properties.
But we reverse the declaration that “[t]here are no restrictions or limitations on the use of the
. . . easement,” including its application to both the scope of the easement and the use of a
lockable gate at the easement’s point of origin. We conclude that the recorded property
documents are ambiguous with respect to the width of the road, the location of the road
within—or separate from—the fifty-foot-wide easement, the use, nature, and purpose of the
road, and the permissibility of a lockable gate. We remand for admission and consideration
of all relevant extrinsic evidence to determine the proper scope and use of the easement as
intended by the common grantor, including a determination of the history and use of a

                                               17
locked gate at Forest Service Road 157.

{37}   IT IS SO ORDERED.

                                           ____________________________________
                                           J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
JONATHAN B. SUTIN, Judge

Topic Index for Dethlefsen v. Weddle, Docket No. 30,312

CONTRACT
Ambiguous Contracts
Breach
Statute of Frauds

EVIDENCE
Extrinsic Evidence

PROPERTY
Easement




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