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

 2 PRISCILLA JARAMILLO and
 3 VERNON JARAMILLO,

 4          Plaintiffs-Appellants,

 5 v.                                                            NO. 32,298

 6 FERMIN ROMERO SR. and
 7 FERMIN L. ROMERO JR.,

 8          Defendants-Appellees,

 9 and

10 THE ESTATE OF RICHARD SUAZO,
11 and BETSY SUAZO ALLANDER,

12          Defendants.

13 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
14 Sheri A. Raphaelson, District Judge

15   VanAmberg, Rogers, Yepa,
16   Abeita & Gomez, LLP
17   Ronald J. VanAmberg
18   Santa Fe, NM

19 for Appellants

20 Jones & Smith Law Firm LLC
 1 J. Brian Smith
 2 Albuquerque, NM



 3 Chandler Law of Los Alamos
 4 George Chandler
 5 Los Alamos, NM

 6 for Appellees

 7                            MEMORANDUM OPINION

 8 ZAMORA, Judge.

 9   {1}   Plaintiffs Priscilla and Vernon Jaramillo (Jaramillos) appeal the entry of an

10 adverse judgment following a bench trial at which the district court was asked to quiet

11 title to an easement across the land of Defendants Fermin Romero Sr. and Fermin L.

12 Romero Jr. (Romeros) for the benefit of the Jaramillos’ adjacent parcel. The district

13 court found that the Jaramillos had not met their burden of establishing the existence

14 of any type of easement across the Romeros’ property and also that any claimed

15 easement for the purpose of providing access to the Jaramillos’ parcel was (or would

16 have been) extinguished when the Jaramillos obtained an adjacent parcel that abutted

17 a public roadway. Based upon the facts and argument presented to the district court,

18 we find no error and, accordingly, affirm.

19 STANDARD OF REVIEW



                                              2
 1   {2}   In reviewing a judgment entered after a bench trial, we review the district

 2 court’s application of law to facts de novo while reviewing the district court’s findings

 3 of fact for substantial evidence. Skeen v. Boyles, 2009-NMCA-080, ¶ 17, 146 N.M.

 4 627, 213 P.3d 531. In reviewing facts found by the district court, we consider whether

 5 substantial evidence supports the result reached, not whether there is substantial

 6 evidence to support the opposite result. Id. “Substantial evidence is relevant evidence

 7 that a reasonable mind would find adequate to support a conclusion.” Sitterly v.

 8 Matthews, 2000-NMCA-037, ¶ 22, 129 N.M. 134, 2 P.3d 871. Further, where “a

 9 finding is made against the party with the burden of proof, we can affirm such a

10 finding if it was rational for the fact finder to disbelieve the evidence offered in

11 support of that finding.” Sosa v. Empire Roofing Co., 1990-NMCA-097, ¶ 8, 110

12 N.M. 614, 798 P.2d 215.

13 THEORIES OF EASEMENT CREATION

14   {3}   At trial, the Jaramillos bore the burden of proof with regard to the establishment

15 of an easement appurtenant to their property. The Jaramillos asserted four separate

16 theories for the existence of such an easement, each of which was rejected by the

17 district court. We will address each of those easement theories in sequence before

18 turning to the district court’s basis for concluding that, even if an easement had arisen,

19 such easement would have been extinguished by the Jaramillos’ subsequent


                                               3
 1 acquisition of title to “contiguous property from County Road 177 to the Ojo Caliente

 2 River.”



 3 I.      Express Easement

 4   {4}   The Jaramillos first argue that the easement they seek to enforce was expressly

 5 reserved by a common grantor. Prior to 1949, all of the property at issue in this case

 6 was part of a common parcel owned by an ancestor of the Jaramillos (Federico) who

 7 divided the property and conveyed separate parcels to each of his children. Thus, title

 8 to all the property at issue in this case can be traced to a common grantor. Several of

 9 the parcels at issue were conveyed over the years by deeds that included the Spanish

10 phrase “con sus derechos de agua y entradas y salidas libres.” The Jaramillos translate

11 this phrase to mean “with your rights to the water and free access.” The Romeros

12 translate the phrase to mean “with your rights to the water and free entrance and

13 exits.” For purposes of analysis, we assume that the Jaramillo’s translation is correct.

14 The parties dispute whether this deed language is sufficiently specific to create an

15 express easement. Generally, although no “particular words” must be used to create

16 an express easement, the language used must be “certain and definite in its term[s].”

17 Martinez v. Martinez, 1979-NMSC-104, ¶ 10, 93 N.M. 673, 604 P.2d 366; but see

18 Vill. of Wagon Mound v. Mora Trust, 2003-NMCA-035, ¶ 47, 133 N.M. 373, 62 P.3d


                                              4
 1 1255 (recognizing a “floating” easement where the burdened parcel was identified,

 2 although the actual location thereof was not specifically delineated). Although the

 3 Jaramillos’ deeds contained the “free access” language, none of those deeds ever

 4 described the location of any easements nor did they identify any land that would be

 5 burdened by such easements.

 6   {5}   This Court need not address the question of whether the words “free access” are

 7 sufficiently certain and definite to create an easement, however, because there is no

 8 dispute that one of the parcels that the Jaramillos propose to burden with an easement

 9 was conveyed without reference to any easement and without the inclusion of any

10 reference to “free access.” And, importantly, that conveyance occurred in 1949, prior

11 to Federico’s conveyance of any of the parcels that would be benefitted by the

12 Jaramillos’ proposed easement. As a result, at the time that Federico subsequently

13 conveyed the property by way of deeds that included the “free access” language, he

14 no longer owned one of the parcels that the Jaramillos now claim is burdened by their

15 easement.

16   {6}   As the district court noted, Federico could not have intended to create an

17 easement on land he did not own, since “he would not have [had] the ability to grant

18 an easement through someone else’s property.” It is well-settled that a “ ‘grantor

19 cannot place restrictions on land he does not own.’ ” Pollock v. Ramirez, 1994-


                                              5
 1 NMCA-011, ¶ 14, 117 N.M. 187, 870 P.2d 149 (quoting Trahms v. Starrett, 110 Cal.

 2 Rptr. 239, 242 (Ct. App. 1973)); see also Martinez, 1979-NMSC-104, ¶ 9 (noting that

 3 rights of ingress and egress referenced in a deed could only refer to land involved in

 4 conveyance, and “not to any third party's land abutting the devised land”).

 5   {7}   Because the Jaramillos’ proposed easement crossed land that Federico did not

 6 own at the time he conveyed the property that would be benefitted by that easement,

 7 it is not possible that the easement asserted by the Jaramillos was created by express

 8 reservation of the parties’ common grantor. The district court’s conclusion that no

 9 such easement existed is affirmed on that basis.

10 II.     Easement by Estoppel

11   {8}   The Jaramillos next argue that the easement at issue arose by way of estoppel.

12 New Mexico courts have yet to apply the doctrine of easement by estoppel, although

13 the possible viability of that doctrine has been recognized in dicta. See Luevano v.

14 Maestas, 1994-NMCA-051, ¶ 14, 117 N.M. 580, 874 P.2d 788 (“On some facts,

15 long-standing use of a road coupled with inaction by the landowner may give rise to

16 an easement by estoppel.”); Luchetti v. Bandler, 1989-NMCA-048, ¶ 14, 108 N.M.

17 682, 777 P.2d 1326 (assuming without deciding that easements may arise by estoppel

18 in New Mexico). As a result, the doctrine has not been fully defined by the courts of

19 this state, and the Jaramillos provide no further delineation of the doctrine in their


                                              6
 1 briefing before this Court. For present purposes, we will assume that the Jaramillos

 2 intend the doctrine to be applied as defined in the Restatement (Third) of Property

 3 (Servitudes):

 4         If injustice can be avoided only by establishment of a servitude, the
 5         owner or occupier of land is estopped to deny the existence of a
 6         servitude burdening the land when:

 7               (1) the owner or occupier permitted another to use that land
 8               under circumstances in which it was reasonable to foresee that the
 9               user would substantially change position believing that the
10               permission would not be revoked, and the user did substantially
11               change position in reasonable reliance on that belief; or

12               (2) the owner or occupier represented that the land was
13               burdened by a servitude under circumstances in which it was
14               reasonable to foresee that the person to whom the representation
15               was made would substantially change position on the basis of that
16               representation, and the person did substantially change position in
17               reasonable reliance on that representation.

18 Restatement (Third) of Prop.: Servitudes § 2.10 (2000); see also Young v. Seven Bar

19 Flying Serv., Inc., 1984-NMSC-069, ¶ 9, 101 N.M. 545, 685 P.2d 953 (describing

20 elements of estoppel).

21   {9}   At trial, the Jaramillos asserted that an easement arose by way of estoppel

22 sometime after 1992, when the Romeros acquired their first parcel at issue in this case.

23 On appeal, the Jaramillos argue for the first time that an easement by estoppel arose

24 sometime prior to 1992. This Court, of course, reviews “the case litigated below, not



                                              7
 1 the case that is fleshed out for the first time on appeal.” In re T.B., 1996-NMCA-035,

 2 ¶ 13, 121 N.M. 465, 913 P.2d 272.

 3   {10}   At trial, the district court entered a specific finding that the Romeros erected

 4 a gate in 1992 or 1993 that prevented access to their property by others. This finding

 5 negates the first and second elements of easement by estoppel, which require, first,

 6 that the defendant “permitted another to use [the] land” and, second, that such

 7 permission was given “under circumstances in which it was reasonable to foresee that

 8 the user would substantially change position believing that the permission would not

 9 be revoked.” Restatement (Third) of Prop.: Servitudes § 2.10(1). Thus, if the

10 Romeros did not permit the Jaramillos to use their property, it is not possible for that

11 property to have been burdened by an easement by estoppel.

12   {11}   There was substantial evidence to support the district court’s finding that the

13 Romeros did not permit the Jaramillos to cross their land. The Defendants offered

14 testimony at trial that as they acquired the property at issue, they built various fences

15 around their land, repaired two bridges that crossed drainage ditches, and erected a

16 new metal gate across an access road at the point where it crosses a drainage ditch.

17 Importantly, they testified that they kept that gate locked, thereby preventing the

18 Jaramillos from accessing their property. Fermin Romero Jr. specifically testified that

19 the gate was erected and locked beginning sometime in 1993. Fermin Romero Sr.


                                                8
 1 testified that the gate was locked “in 1992-93, around there sometime.” Asked

 2 whether he had ever seen the Jaramillos drive across his property, Fermin Romero Sr.

 3 testified, “No, it was locked.”

 4   {12}   Although the Jaramillos argue that “other evidence points in the opposite

 5 direction,” the question for this Court is “not whether substantial evidence exists to

 6 support the opposite result, but rather[,] whether such evidence supports the result

 7 reached.” Skeen, 2009-NMCA-080, ¶ 17 (internal quotation marks and citation

 8 omitted). The Romeros’ testimony regarding the gate was both relevant to the issue

 9 of easement by estoppel and adequate to support the district court’s conclusion that

10 no such easement arose. See id. The district court’s findings regarding the gate were

11 supported by substantial evidence, and its conclusion regarding easement by estoppel

12 is affirmed.

13 III.     Prescriptive Easement

14   {13}   The Jaramillos next claim that they acquired an easement across the Romeros’

15 land by way of prescription. In order to clarify the law of prescriptive easements, our

16 Supreme Court has adopted the approach of the Restatement (Third) of Property,

17 which explains that “an easement by prescription is created by an adverse use of land,

18 that is open or notorious, and continued without effective interruption for the

19 prescriptive period (of ten years).” Algermissen v. Sutin, 2003-NMSC-001, ¶ 10, 133


                                              9
 1 N.M. 50, 61 P.3d 176 (citing Restatement (Third) of Prop.: Servitudes §§ 2.16, 2.17

 2 (2000)). In order to establish an easement by prescription, each of the elements thereof

 3 must be proved by clear and convincing evidence. Algermissen, 2003-NMSC-001, ¶

 4 9.

 5   {14}   At trial, the Jaramillos asserted both that a prescriptive easement arose prior to

 6 1992, when the Romeros first acquired their property and, alternatively, that a

 7 prescriptive easement arose sometime after 1992, while the Romeros owned the

 8 property at issue. With regard to the period following 1992, the Jaramillos’ claim fails

 9 by virtue of the district court’s finding, discussed immediately above, that the

10 Romeros erected a gate that prevented the Jaramillos from crossing their land. And it

11 appears that the Jaramillos have abandoned that alternative argument on appeal.

12   {15}   With regard to the period prior to 1992, the central issue is whether the use of

13 an access road across what is now the property of the Romeros by the Jaramillos (and

14 by their predecessors in interest) was “an adverse use,” as required by the Restatement

15 approach. The district court answered that question in the negative, specifically

16 finding that there was “never any hostile use” of the property. Because the Jaramillos

17 bore the burden of proving adverse use of the property, the district court’s finding may

18 be affirmed “if it was rational for the fact finder to disbelieve” the Jaramillos’

19 evidence on point. Sosa, 1990-NMCA-097, ¶ 8.


                                                10
 1   {16}   However, because it is often difficult to prove adversity or lack thereof, “a

 2 series of presumptions are used” to accomplish that task. Algermissen, 2003-NMSC-

 3 001, ¶ 11. The Jaramillos assert that they are entitled to a presumption that “the use

 4 is presumed to be adverse in the absence of proof of express permission.” Id. Various

 5 counter-presumptions are also available. For instance, where the claimed easement

 6 crosses “large bodies of privately owned land [that] are open and [unenclosed],” the

 7 use is presumed to be permissive. Hester v. Sawyers, 1937-NMSC-056, ¶ 22, 41 N.M.

 8 497, 71 P.2d 646. Similarly, where “the initial users were closely related, or enjoyed

 9 close neighborly relations, or [where] a custom existed in the neighborhood for

10 neighborly accommodation by permitting use of neighboring land for access to fields

11 and public roads,” the use is presumed to be permissive, instead of adverse.

12 Restatement (Third) of Prop.: Servitudes § 2.16, cmt. g. vol. 1, at 234.

13   {17}   Further, where “a use has its inception in permission, express or implied, it is

14 stamped with such permissive character and will continue as such[,] until a distinct

15 and positive assertion of a right hostile to the owner is brought home to him by words

16 or acts.” Hester, 1937-NMSC-056, ¶ 25. Thus, the task for the district court in this

17 case was to determine whether the Jaramillos’ predecessors made use of the Romeros’

18 property in a way that was either adverse at its inception or that subsequently became

19 adverse by the “positive assertion of a right hostile to the owner” of the land. Id.


                                               11
 1   {18}   In addressing that task, the district court was entitled to consider both the

 2 character of the land at issue, which encompassed large bodies of unenclosed land,

 3 and also the relationship between the historical owners of that land, who were all

 4 closely-related family members. See Algermissen, 2003-NMSC-001 ¶ 13 (“Evidence

 5 of permission, be it express or implied, is relevant to this inquiry.”). Thus, the district

 6 court could properly conclude from the evidence received at trial that the Jaramillos

 7 were not entitled to a presumption of adversity. Further, although presumptions shift

 8 the burden of production from one party to another, the burden of persuasion always

 9 “remains on the party who had it originally.” Rule 11-301 NMRA. Thus, the district

10 court could also properly have concluded that the Jaramillos simply did not meet their

11 burden of establishing adversity with regard to the historical uses of the property at

12 issue.

13   {19}   Having reviewed the evidence and argument presented, we conclude that the

14 district court’s finding of permissive use, as opposed to hostile use, is supported by

15 substantial evidence. Having properly found that the uses of the property were not

16 adverse to the owners thereof, the district court properly concluded that no

17 prescriptive easement in favor of the Jaramillos arose, and that conclusion is here

18 affirmed.




                                               12
 1 IV.      Easement Implied by Necessity

 2   {20}   Finally, the Jaramillos assert that the district court should have implied an

 3 easement across the land of the Romeros by necessity.

 4          An easement by necessity requires: (1) unity of title, indicating that the
 5          dominant and servient estates were owned as a single unit prior to the
 6          separation of such tracts[;] (2) that the dominant estate has been severed
 7          from the servient tract, thereby curtailing access of the owner of the
 8          dominant estate to and from a public roadway; and (3) that a reasonable
 9          necessity existed for such right of way at the time the dominant parcel
10          was severed from the servient tract.

11 Hurlocker v. Medina, 1994-NMCA-082, ¶ 5, 118 N.M. 30, 878 P.2d 348 (internal

12 quotation marks and citation omitted). Mere convenience will not be enough to

13 establish an easement by necessity. See Otero v. Pacheco, 1980-NMCA-058, ¶ 5, 94

14 N.M. 524, 612 P.2d 1335.

15   {21}   As noted above, title to all of the property at issue in this case can be traced to

16 a common grantor, Federico, who divided the property and conveyed separate parcels

17 to his children. The Jaramillos assert that, because some of the parcels created by

18 those conveyances had no access to a public roadway, easements by necessity for the

19 purpose of ingress and egress arose by virtue of Federico’s division of the property

20 into separate parcels. Because easement by necessity requires that a reasonable

21 necessity for a right of way exists at the time the parcels are severed from one another,

22 it is important to consider the sequence in which the parcels were conveyed by


                                                13
 1 Federico. See Venegas v. Luby, 1945-NMSC-045, ¶ 15, 49 N.M. 381, 164 P.2d 584

 2 (stating that “necessity at the time of the conveyance governs” (internal quotation

 3 marks and citation omitted)).

 4   {22}   Federico’s division of the property at issue in this case occurred over the course

 5 of a quarter-century. As noted above, Federico conveyed away a parcel of land in

 6 1949 that would eventually be owned by the Romeros. At that time, both Federico’s

 7 remaining land and the parcel conveyed had roadway access. [Id.] In September, 1962,

 8 however, Federico conveyed five separate plots to his five children, none of which had

 9 access to a public roadway. Finally, by way of three conveyances in the summers of

10 1965 and 1975, Federico deeded to various children the remainder of the property at

11 issue in this case.

12   {23}   Thus, if any easement arose by necessity, it must have arisen in September,

13 1962, when Federico deeded five newly-landlocked plots to his children. At that time,

14 Federico still owned property between the newly-severed plots and the road, but he

15 did not own the parcel conveyed in 1949, across which the Jaramillos’ proposed

16 easement would now run.

17   {24}   Because Federico did not own that parcel in 1962, the Jaramillos cannot

18 establish that any land was severed from that parcel in 1962. See Hurlocker, 1994-

19 NMCA-082, ¶ 5 (noting that a dominant estate must be severed from servient tract,


                                                14
 1 “thereby curtailing access of the owner of the dominant estate to and from a public

 2 roadway” (internal quotation marks and citation omitted)). Further, because that parcel

 3 was severed from Federico’s estate in 1949, when Federico’s remaining holdings still

 4 fronted a public road, the Jaramillos cannot establish any reasonable necessity for an

 5 easement across that parcel at the time it was severed from the rest of Federico’s land.

 6 See id. (noting that the need for an easement must exist “at the time the dominant

 7 parcel was severed from the servient tract”). Thus, contrary to the claim of the

 8 Jaramillos, it is not possible for an easement to have arisen by necessity across that

 9 portion of the Romeros’ land that was conveyed by Federico in 1949. Because the

10 Jaramillos’ claim depends upon an easement that crosses that parcel, the district court

11 could properly have concluded that no easement by necessity arose in this case.

12   {25}   Instead, the district court merely found that no such easement exists today,

13 apparently relying upon the cessation of purpose doctrine, which is discussed

14 immediately below. This Court, however, “may affirm the district court's order on

15 grounds not relied upon by the district court if those grounds do not require us to look

16 beyond the factual allegations that were raised and considered below.” State v.

17 Wasson, 1998-NMCA-087, ¶ 16, 125 N.M. 656, 964 P.2d 820. The failure of the facts

18 in this case to establish the Jaramillos’ claimed easement by necessity is evident

19 without looking beyond the facts raised below. Those facts establish that the easement


                                              15
 1 proposed by the Jaramillos did not arise by necessity because no such necessity

 2 existed in 1949, when the first parcel alleged to be burdened by that easement was

 3 severed from the estate of the parties’ common grantor. The district court’s rejection

 4 of an easement by necessity is affirmed on that basis.

 5 CESSATION OF PURPOSE

 6   {26}   The district court also concluded that, if any easement in favor of the

 7 Jaramillos’ property ever existed, such easement would have been extinguished

 8 pursuant to the doctrine of cessation of purpose. Pursuant to that doctrine, “[a]n

 9 easement created to serve a particular purpose terminates when the underlying purpose

10 for the easement ceases to exist.” Sitterly, 2000-NMCA-037, ¶ 23 (citing Olson v. H

11 & B Props., Inc., 1994-NMSC-100, ¶ 13, 118 N.M. 495, 882 P.2d 536).

12   {27}   The Jaramillos contend that Sitterly does not apply to defeat their right to an

13 easement because the easement is by grant. [BIC 15; RB 8-9] As noted above, we

14 affirm the district court’s conclusion that no express easement was created by the

15 parties’ common grantor. And, in any event, the Jaramillos misstate the law as it was

16 declared in Sitterly.

17   {28}   That opinion affirmed the extinguishment of an easement by necessity despite

18 the defendant’s assertion that the easement at issue had been converted to an express

19 easement by an intervening action to quiet title. Sitterly, 2000-NMCA-037, ¶ 25. In


                                              16
 1 explaining the defendant’s argument on appeal, this Court quoted a passage from a

 2 New York case to the effect that “ ‘when we are dealing with an easement by grant,

 3 the fact that it may have also qualified as an easement of necessity, does not detract

 4 from its permanency as a property right, which survives the termination of the

 5 necessity.’ ” Id. (quoting Valicenti v. Schultz, 209 N.Y.S.2d 33, 37 (1960)).

 6   {29}   The passage quoted, however, played no part in the holding in Sitterly. In fact,

 7 the Sitterly Court neither adopted nor applied the principle stated in that quote,

 8 because the easement at issue in Sitterly retained its character as an easement by

 9 necessity, intervening events notwithstanding. Id. ¶ 26. As a result, Sitterly does not

10 hold that the cessation of purpose doctrine applies any less to express easements than

11 it does to easements by necessity. Further, our Supreme Court has explicitly applied

12 the cessation of purpose doctrine to an express easement. See Olson, 1994-NMSC-

13 100, ¶¶ 11, 15 (viewing document “as creating an express easement” and holding that

14 “pursuant to the cessation of purpose doctrine [the easement] was extinguished”).

15 Thus, under current New Mexico law, when an easement—even an express easement

16 —is created for a specific purpose, such as ingress and egress, that easement may be

17 terminated “when the underlying purpose for the easement no longer exists.” Id. ¶ 13.

18   {30}   In this case, the parties stipulated and the district court found that from October

19 28, 1993 until September 7, 1999, “the Jaramillos owned contiguous property from


                                                17
 1 County Road 177 to the Ojo Caliente River.” As a result, the Jaramillos’ property had

 2 direct access to a public road, and the Jaramillos did not need any easement across the

 3 land of the Romeros in order to access their land. Thus, even if the Jaramillos ever

 4 held an easement for purposes of ingress and egress, the underlying purpose of such

 5 easement would have ceased to exist as of October 28, 1993. The district court

 6 correctly concluded, based upon these stipulated facts, that when the Jaramillos

 7 “gained title to property that gave them access to a County road, any easement or

 8 claim of easement that the Jaramillos had to the Romero Property was extinguished.”

 9   {31}   The judgment of the district court is affirmed in its entirety.

10   {32}   IT IS SO ORDERED.

11

12                                           ___________________________
13                                           M. MONICA ZAMORA, Judge

14 WE CONCUR:

15 _______________________________
16 MICHAEL D. BUSTAMANTE, Judge


17 _______________________________
18 MICHAEL E. VIGIL, Judge




                                                18
