March 02, 2015 – Janeka Mayer v. Susan Smith, No. 32,338

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_____________
Filing Date: 	March 2, 2015
NO. 32,338
JANEKA MAYER,
Plaintiff-Appellee,
v.
SUSAN SMITH,
Defendant,
and
MARILYN JONES, GARY JONES,
ROBERT LONG, and STEPHANIE LONG,
Intervenors/Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Clay Campbell, District Judge
Alex Chisholm
Albuquerque, NM
for Appellee
Ronald T. Taylor
Albuquerque, NM
for Appellants

OPINION
KENNEDY, Judge.
{1} 	Janeka Mayer (Plaintiff) owns property which is burdened by an easement. She
erected a fence using trees within the easement as posts and thus encroached onto the
easement. Gary and Marilyn Jones (Jones) and Robert and Stephanie Long (Long)
(collectively, Intervenors), owners of the dominant estate, intervened in a suit Plaintiff
had filed against another neighbor, but involving the same easement. Jones and Long
sought to enforce the easement and force removal of Plaintiff’s fence. The district
court ruled against Intervenors, restricting the scope and ownership of the easement
and leaving the fence undisturbed. We reverse and remand for further proceedings.
I. 	BACKGROUND
{2} 	The physical relationships between properties are depicted in the appended
illustration, which appears in the record as Intervenors’ Exhibit F, provided to aid in
understanding the facts presented herein.
{3} 	Jones bought his property, Tract 5B and 5C, in 1977. In 1979, he purchased an
easement from Anne Clarke and Peggy Clarke (Clarke). Carlos Arguello bought Tract
5A, immediately north of Tract 5B and 5C from Clarke. In 2002, Plaintiff purchased
land, Tract 5-1B, from Arguello. 	It is undisputed that land was subject to the
easement Jones purchased from Clarke in 1979. The easement served Tracts 5B and

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5C, which Jones has owned since 1972. In addition to a detailed description of the
servient estate, the easement at issue provides the following language:
WHEREAS, the family of . . . Jones [seeks] a non[-]exclusive
[e]asement across the lands of the “grantors” for the personal use of
theirselves, their families, their heirs, and their assigns, for ingress and
egress over and across “grantors” property for household purposes[.]
NOW, THEREFORE, for valuable consideration . . . , the
undersigned hereby grant to . . . Jones, and to their families, heirs, and
assigns, the non[-]exclusive right of ingress and egress, for household
and non[-]commercial purposes, over and across a [t]wenty[-]foot[-]wide
portion 	of 	the 	afore 	described 	property 	inside 	and 	along 	the
[n]orthernmost and [w]esternmost boundaries thereof.
Jones cleared trees to create the path that is in the easement now and used it to access
a portion of his land that was inaccessible by vehicle via any other existing roads due
to a “boulder strewn and tree covered, eroded, and very steep” ridge that divided his
property. 	Jones used the land “at least [fifty] times a year . . . for landscaping, . . .
wood cutting, pinon picking, [and] picnicking[,]” and his sons learned how to drive
there. The easement was occasionally used to bring in a wood chipper to dispose of
unwanted brush piles, and Jones plowed the easement to remove snow. In 2009, Jones
sold a portion of his land, specifically Tract 5C, which was accessible using other
existing roadways, to Long. The tracts owned by Jones and Long together make up
the dominant estate as Jones owned it when the easement was purchased in 1979.
After the sale to Long of Tract 5C, the easement on Plaintiff’s property was the only
vehicular access to Tract 5B, which Jones still owns.

1An intervenor’s burden is that which would have existed if he or she had been
an original party in the suit. “If he tenders an affirmative issue which is met with a
denial, he must assume the burden of proof.” 	Maldonado v. Haney, 1980-NMCA-
053, ¶ 18, 94 N.M. 335, 610 P.2d 222 (Lopez, J. dissenting) (internal quotation marks
and citation omitted).
3
{4} 	This lawsuit began when Plaintiff brought suit against another neighbor to
prevent the cutting and removal of trees within the easement. Intervenors intervened
at the district court’s invitation in order to enforce their rights against Plaintiff to allow
them full use of the twenty-foot easement over the servient estate. As the trees grew
in the easement, Plaintiff used her fence to include them in her property, resulting in
a nine- to eleven-foot area becoming inaccessible to Intervenors.
{5} 	In the district court, Intervenors presented their case.1 Plaintiff moved for
directed verdict. The district court stated: “I’m granting in part and denying in part
the motion for [d]irected [v]erdict.” In its written judgment, the district court stated
that “[t]he dominant estate belongs to the property of . . . Long” and “does not, as a
matter of law, belong to both Intervenors.” The district court held that “[t]he intended
use of the easement was for household purposes, which was historically limited to
occasional use as a hiking . . . [and] vehicle [trail].” Next, the district court limited
Intervenors’ rights to the easement by stating that they had “no authority to expand
the historic use, boundaries[,] or existing cleared portion of the easement.” 	The
district court allowed for Plaintiff’s fence to remain inside the easement boundaries.

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{6} 	On appeal, neither party attacks the validity of the original twenty-foot
easement. 	Similarly, both parties agree that the easement is appurtenant. 	We
therefore treat the validity and terms of the appurtenant easement as fact on appeal.
Varos v. Union Oil Co. of Cal., 1984-NMCA-091, ¶ 2, 101 N.M. 713, 688 P.2d 31
(acknowledging facts that are not disputed become facts on appeal); see Kikta v.
Hughes, 	1988-NMCA-105, 	¶ 	12, 	108 	N.M. 	61, 	766 	P.2d 	321 	(allowing
characterization of easement to become a fact on appeal where both parties
characterized easement at issue as an appurtenant easement).
II. 	DISCUSSION
A. 	Standard of Review
{7} 	Although Plaintiff presented a “legal argument for [d]irected [v]erdict,” the
district court, having heard Intervenors’ evidence and given its findings, acted as a
trier of fact. As such, the motion was actually a motion for involuntary dismissal as
provided for by Rule 1-041(B) NMRA. Garcia v. Am. Furniture Co., 1984-NMCA-
090, ¶ 3, 101 N.M. 785, 689 P.2d 934 (stating that, in a non-jury trial, “motion for a
directed verdict was, in effect, a motion to dismiss under . . . Rule [1-041(B)]”).
{8} 	Rule 1-041(B) provides for the dismissal of an action upon the motion of the
defendant after the close of the plaintiff’s case-in-chief on the ground that, “upon the
facts and the law[,] the plaintiff has shown no right to relief.” The district court as
trier of the fact may then “render judgment against the plaintiff or may decline to

5
render any judgment until the close of all the evidence.” Id. A dismissal operates as
an adjudication upon the merits unless the district court specifies otherwise in its order
for dismissal. Id. A judge, deciding an involuntary dismissal, “is not bound to give
[the] plaintiff’s testimony the most favorable aspect[,] but rather should give the
testimony such weight as it is entitled to receive.” 	Carlile v. Cont’l Oil Co., 1970-
NMCA-051, ¶ 28, 81 N.M. 484, 468 P.2d 885.
{9} 	Appellate courts “uphold an involuntary dismissal under Rule 1-041(B) if the
dismissal is rationally based on the evidence.” Hull v. Feinstein, 2003-NMCA-052,
¶ 14, 133 N.M. 531, 65 P.3d 266. On appeal, evidence is examined “only to the extent
necessary to determine whether it gives substantial support to the [district] court’s
findings.” Worthey v. Sedillo Title Guar., Inc., 1973-NMSC-072, ¶ 7, 85 N.M. 339,
512 P.2d 667. Substantial support is that “which is acceptable to a reasonable mind
as adequate support for a conclusion.” Id. The appellate courts view evidence in the
“most favorable light to support the findings, and evidence inconsistent with or
unfavorable to the findings will be disregarded.” Id.
{10} 	At trial, the district court stated that, in granting the directed verdict, it was
“taking all the evidence in the light most favorable to the party putting on the
case . . . and giving them any benefit of the doubt.” We note that, under Carlile, this
is an incorrect standard. See 1970-NMCA-051, ¶ 28. The parties failed to address the
issue of whether the district court was applying the correct evidentiary standard during

6
the trial and continued to ignore the issue on appeal. Thus, we do not address it. See
In re Doe, 1982-NMSC-099, ¶ 3, 98 N.M. 540, 650 P.2d 824 (indicating that an
appellate court should not reach issues that the parties have failed to raise in their
briefs).
B. 	Scope of the Easement
1. 	An Unambiguous Easement Agreement Sufficiently States the Parties’
Intent; Evidence of Intent Extrinsic to That Agreement Is Irrelevant
{11} 	The existence and scope of an express easement are “determined according to
the intent of the parties.” Skeen v. Boyles, 2009-NMCA-080, ¶ 18, 146 N.M. 627, 213
P.3d 531. The intent of the parties is derived from the language of the agreement. Id.
“[T]he written language of an easement should be conclusive, and consideration of
extrinsic evidence is generally inappropriate.” Dethlefsen v. Weddle, 2012-NMCA-
077, ¶ 12, 284 P.3d 452. Furthermore, “[w]here . . . the grant or reservation is specific
in its terms, it is . . . decisive of the limits of the easement.” Dyer v. Compere, 1937-
NMSC-088, ¶ 12, 41 N.M. 716, 73 P.2d 1356. (Emphasis added.) If the easement
language is ambiguous, however, “ ‘the parties’ intention must be determined from
the language of the instrument as well as from the surrounding circumstances.’ ”
Dethlefsen, 2012-NMCA-077, ¶ 12 (quoting Sanders v. Lutz, 1989-NMSC-076, ¶ 8,
109 N.M. 193, 784 P.2d 12). 	As such, we must determine whether the written
agreement in this case is ambiguous.

7
a. 	The Easement Is Unambiguous
{12} 	None of the parties nor the district court ever intimated a belief that the grant
of easement in this case was ambiguous. 	In Dethlefsen, this Court conducted a
lengthy analysis of easement ambiguity. 	While concluding that the easement
documents in question unambiguously reserved a fifty-foot-wide easement, we also
concluded that the easement’s scope was ambiguous. This conclusion was based on
the omission of necessary terms: “(1) the nature and purpose of the easement, (2) an
identification of each of the dominant estate holders, and (3) its duration.” Dethlefsen,
2012-NMCA-077, ¶ 19. Similarly, we concluded that a “lack of a definite location
[led] to an ambiguity.” Id. ¶ 22. Just as the Dethlefsen Court determined there was
an unambiguous reservation of a fifty-foot-wide easement, we determine there is an
unambiguous reservation of a twenty-foot easement. As such, we next analyze the
easement in the context of each of these sources of ambiguity to determine whether
the scope of the easement is ambiguous.
{13} 	First, unlike in Dethlefsen, where we determined a right of ingress and egress
was “not definitive as to the specific nature and purpose of the easement[,]” id. ¶ 19,
the easement agreement’s stated purpose in this case provides for ingress and egress,
for personal use, and for household and non-commercial purposes. Taken together,
these phrases clearly identify the nature of the use as non-commercial and personal
and the purpose of the easement as a right of access. Next, the easement agreement

2The easement agreement grants the easement to John and Patricia Shows as
well. 	As they are not involved in this lawsuit in any way, that language from the
agreement has been omitted.
8
adequately identifies “each of the dominant estate holders” as Dethlefsen suggested
was necessary. 	Id. 	The agreement grants an easement “to . . . Jones, and to their
families, heirs, and assigns[.]”2 Next, Dethlefsen looks for information in the
easement agreement disclosing the duration of the easement.
{14} 	An easement terminates when it expires by its terms. Where no definite term
is established, the duration of an express easement is indeterminate. 	Restatement
(Third) of Property: Servitudes § 4.3 cmt. e (2000) (“The duration of most servitudes
is left indefinite because they are created to implement arrangements whose useful
lives cannot be predicted when they are created. . . . When no definite term is
established in the creation of the servitude, its term is indeterminate under the rule
stated in this subsection. This rule applies to . . . expressly created servitudes.”). As
such, the duration of Jones’s easement is indeterminate. 	Finally, the easement
agreement at issue identifies a definite location: “A [t]wenty[-]foot[-]wide portion of
the afore described property inside and along the [n]orthernmost and [w]esternmost
boundaries thereof.” 	See Dethlefsen, 2012-NMCA-077, ¶¶ 22-23 (identifying
easement as “the [s]outherly twelve . . . feet of the above described property” as an

9
example of unambiguous easement language which “plainly answered” all of the
legally relevant questions (internal quotation marks and citation omitted)).
{15} 	In this easement, the purposes are listed, the dominant estate holders clearly set
out, the dimensions of the easement unequivocal, the duration unlimited, and the
location clearly identified. Absent any of the ambiguity discussed above, which has
been the basis for a determination of ambiguity in our previous easement cases, we
conclude that the easement agreement at issue in this case is unambiguous. Because
the easement agreement is unambiguous, easement law demands that the intent of the
parties and, therefore, the scope of the easement be derived from the written
agreement alone and that the circumstances surrounding the creation of the agreement
not be considered. See Brooks v. Tanner, 1984-NMSC-048, ¶ 18, 101 N.M. 203, 680
P.2d 343 (“Here, we are presented with a specific, straightforward reservation of an
easement. We find the intentions of the parties to be clear from the language utilized
in the contract. 	The terms of the easement reservation . . . are specific and
unambiguous. There is no need for reference to extrinsic evidence; the terms of the
reservation are decisive of the limits of the easement.”).
b. 	The District Court Misused the Extrinsic Evidence
{16} 	The district court used extrinsic evidence to limit the easement’s scope based
on what it interpreted the parties’ intentions to be. 	Although Intervenors’ counsel
pointed out that a court cannot go beyond the written language of the easement when

10
the writing clearly states the intent of the parties, the district court responded that
“there is actually an opportunity to go beyond the four corners of the agreement to
provide me with information about the facts surrounding the circumstances at the time
this was purchased.” The district court lamented that it had “almost zero testimony
concerning the circumstances surrounding the purchase of the easement.” In support
of its conclusion that it could consider evidence extrinsic to the agreement, the district
court cited to three authorities: (1) Luevano v. Group One, 1989-NMCA-061, 108
N.M. 774, 779 P.2d 552; (2) Camino Sin Pasada Neighborhood Ass’n v. Rockstroh,
1994-NMCA-164, 119 N.M. 212, 889 P.2d 247; and (3) the “current state of the law
. . . with respect to contracts.”
{17} 	These authorities do not support the district court’s conclusion. Luevano and
Camino Sin Pasada are inapposite in a case such as this where the easement is clearly
defined in length, width, parties, location, and purpose, and where the nature of the
grant is undisputed. See Aladdin Petroleum Corp. v. Gold Crown Props., Inc., 561
P.2d 818, 822 (Kan. 1977) (stating that where the width, length, and location of an
easement for ingress and egress have been expressly set forth in the instrument, the
easement is sufficiently specific and definite that considerations of present use of the
dominant estate are not controlling). In Luevano, this Court addressed whether the
defendants had a valid easement and whether that easement was assignable absent any
express reference to land owned by grantees and without language specifying whether

11
the easement stated was appurtenant or in gross. 1989-NMCA-061, ¶¶ 1, 11. Here,
neither the validity nor boundaries of the easement are questioned. And the parties
agree that the easement was appurtenant. 	In Camino Sin Pasada, we addressed
whether the intent to create an easement existed where the language in the deed at
issue was ambiguous and, therefore, “susceptible of clarification through the use of
extrinsic evidence.” 1994-NMCA-164, ¶¶ 6, 8. The ambiguities and missing terms
that gave rise to a consideration of extrinsic evidence in Luevano and Camino Sin
Pasada simply do not exist in this case. 	Neither the parties nor the district court
suggested ambiguity existed, and neither party points to a single place in the record
where ambiguity was asserted or argued. 	This Court has established a distinction
between contract interpretation and easement interpretation with regard to extrinsic
evidence. See Dethlefsen, 2012-NMCA-077, ¶ 12 (“Unlike contract construction, the
written language of an easement should be conclusive, and consideration of extrinsic
evidence is generally inappropriate.”).
{18} 	We pause here to clarify that we do not fault the district court for admitting
evidence extrinsic to the written agreement given that both parties offered such
evidence. Rather, we find the district court’s use of that evidence in determining the
parties’ intent impermissible in light of the unambiguity of the easement agreement.
2. 	The Dominant Estate Owners Must Have Access to the Easement’s Full
Twenty Foot Width

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{19} 	As explained above, the written language of the easement agreement in this case
lays out the width, length, location, and purpose of the easement and reflects a clear
intention to create a twenty foot wide easement. 	The scope of an easement must
conform to the intent of the parties who created it by express agreement. See Skeen,
2009-NMCA-080, ¶ 18.
a. 	The District Court’s Ruling Perpetuated an Unlawful Encroachment
{20} 	The district court’s judgment allowed for Plaintiff’s fence to remain inside the
twenty foot easement and prohibited the dominant estate owner from returning the
easement to the width provided for by its terms. 	The judgment specified that the
easement was limited to the “existing cleared portion” of land and had to remain as
it stood before the lawsuit. The easement provides for a twenty-foot-wide easement.
Plaintiff admits she placed her fence well inside the twenty-foot easement, limiting it
to approximately nine- to eleven-feet wide in some places. In order for Intervenors
to access all twenty feet of the easement they have been granted, Plaintiff’s fence must
be removed.
3. 	Historic Limitations Applied to the Easement and Dominant Estate Were
Impermissible
{21} 	The determinative factor in defining the scope of an appurtenant easement is the
intent of the parties. That intent is interpreted from the language of the unambiguous
agreement. See Skeen, 2009-NMCA-080, ¶ 18. The district court erroneously relied

13
on extrinsic evidence by considering testimony regarding use of the easement and
dominant estate since the easement’s creation in 1979.
{22} 	The testimony which the district court relied on in limiting the easement was
as follows. Jones testified that he and his family used the easement a minimum of
fifty times per year to access Tract 5B in order to gather stones, cut wood, pick pinons,
and picnic. Jones also testified that the easement was occasionally used for bringing
in a wood chipper to clear brush and that he plowed snow from it, but Plaintiff’s fence
now prohibits plowing.
{23} 	The district court restricted the scope of the easement to household purposes
and limited household purposes to the historic uses of the easement. 	The district
court’s determination, by focusing solely on the “household purposes” language of the
agreement, ignores that the easement also permits any non-commercial purposes, as
well as an otherwise unqualified right of ingress and egress.
{24} 	This Court has previously held that a right of “ingress and egress” allows for
“access to the land in question plus the [c]rossing of another’s land in order to obtain
this access.” Martinez v. Martinez, 1979-NMSC-104, ¶ 8, 93 N.M. 673, 604 P.2d 366
(defining “right[s] of ingress and egress” while determining whether sufficient
language existed to constitute an express easement (internal quotation marks and
citation)); cf. Restatement (Third) of Property: 	Servitudes § 4.10 cmt. c, illus. 1
(2000) (“[T]he owner of [an easement is] entitled to use the road [twenty-four] hours

14
a day by any form of transportation that does not inflict unreasonable damage or
unreasonably interfere with the enjoyment of [the property].”).
{25} 	Additionally, the district court’s reliance on historic use in creating an all-
inclusive list of permissible uses of the easement is a misapplication of the law of
appurtenant easements. 	Although historic use is a valid and, indeed, necessary
consideration in determining the scope of a prescriptive easement, we have found, and
the district court and Plaintiff’s counsel directs us to, no case law that considers
historic use determinative in defining the scope of an express and unambiguous
appurtenant easement. Maloney v. Wreyford, 1990-NMCA-124, ¶ 15, 111 N.M. 221,
804 P.2d 412 (“The rule is that the extent of a prescriptive easement is established by
its historical usage.” (emphasis added)).
C. 	Division of the Easement’s Dominant Estate
{26} 	Last, we conclude that the easement still serves the entire dominant estate, now
comprised of Tracts 5B and 5C. 	“An appurtenant easement runs with the land to
which it is appurtenant . . . and passes with the land to a subsequent grantee with
passage of the title.” Skeen, 2009-NMCA-080, ¶ 22 (omission in original) (internal
quotation marks and citation omitted). 	“[A]n appurtenant easement cannot be
assigned in the absence of a transfer of the dominant estate[.]” Kikta, 1988-NMCA-
105, ¶ 11. Generally, “a right of way appurtenant to land is appurtenant to every part
of it, and if the owner divides it into several lots, the grantee of each lot has an equal

15
right over the servient land even though the subdivision does not abut upon such right
of way[.]” R.W. Gascoyne, Annotation, Property Which Does Not Abut Upon Right
of Way—Easement By Necessity Over One Part of Dominant Tenement To Reach
Right of Way Appurtenant To Entire Tenement, 10 A.L.R.3d 960, § 5[b] (1966).
“[B]enefits and burdens of appurtenant servitudes are not affected by the subdivision
of either the benefited or burdened property.” 	Restatement (Third) of Property:
Servitudes § 5.7 cmt. a (2000). “[U]pon transfer of a part of a dominant tenement
having appurtenant thereto a right of way over a servient tenement, the new owner of
the transferred part of the dominant tenement acquires a right to use the right of way
over the servient tenement.” 	R.W. Gascoyne, Annotation, General Rule That
Subsequent Owner Has Right To Use Right of Way, 10 A.L.R.3d 960, § 3 (1966); see
James W. Ely, Jr. & Jon W. Bruce, The Law of Easements & Licenses in Land:
Division of Easements Appurtenant § 9:3 (2014) (“[T]he right to use an easement
appurtenant extends to each subdivided portion of the dominant estate.”).
{27} 	Jones moved to Tijeras in 1972. Jones bought Tracts 5B and 5C and built a
home on what is now Tract 5C. 	In 1979, Jones purchased an easement to provide
access to the present Tract 5B because that portion of his property was otherwise
inaccessible via the existing roads. 	The existence of both Tracts 5B and 5C was
known to Clarke at the time the easement was sold. 	However, at trial, the district
court, in the absence of evidence to support it, summarized its finding, stating that

16
“regardless of who owns the property, the easement was sold for the benefit of one
family, not two.” 	The district court also stated that the easement “was intended to
benefit one family because only one family existed at the time.” 	The district court
cited no legal principle to support this conclusion and, in light of the foregoing stated
principles and easement provision extending benefit of the easement to families, heirs,
and assigns, we are aware of none that would permit it. The district court’s judgment
concludes that “[t]he dominant estate does not, as a matter of law, belong to both
Intervenors.” We disagree.
{28} 	The district court’s reasoning that the easement was intended to benefit a single
family mischaracterizes appurtenant easements. They benefit the land that comprises
the dominant estate, rather than individual owners as the district court’s reasoning
suggests. 	See 28A C.J.S. Easements § 17 (2014) (“The benefit of an appurtenant
easement can be used only in conjunction with the ownership or occupancy of a
particular parcel of land.”). 	Jones did not attempt to assign the right to use the
easement separately from the dominant estate, but only made a valid transfer of title
of a portion of the dominant estate. There is nothing in our case law to suggest the
division of the dominant estate alone extinguishes the rights to the easement and,
under the facts presented at trial, the easement remains appurtenant to the entire
dominant estate regardless of the division of ownership. We hold that the partition of
a dominant tenement alone does not extinguish an easement. We now turn to whether

17
the district court properly determined the increased number of dominant estate owners
constitutes an undue burden on the servient estate.
D. 	Additional Burden of Two Dominant Estates
{29} 	“The owner of the dominant estate cannot change the extent of the easement or
subject the servient estate to an additional burden not contemplated by the grant of
easement.” Kikta, 1988-NMCA-105, ¶ 14; Stout v. Christian, 593 S.W.2d 146, 150
(Tex. App. 1980) (stating that the servient estate is subjected to additional burden
when “use of the servient estate is curtailed, or destroyed, by the manner in which the
easement is used”). Similarly, “easements created to benefit a dominant estate . . .
cannot be expanded, changed, or modified without the express consent of the servient
estate.” Camino Sin Pasada, 1994-NMCA-164, ¶ 14. A right of way to divided land,
as described above, exists “only if the easement can be enjoyed as to the separate
parcels without any additional burden upon the servient tenement.” 10 A.L.R.3d 960,
§ 4 (1966). An “increase in the number of persons holding the benefit of the servitude
alone does not constitute an unreasonable increase in the burden[.]” 	Restatement
(Third) of Property: Servitudes § 5.7 cmt. c.
{30} 	The problem in this regard proceeds from the district court’s consideration of
irrelevant evidence. The district court stated: “I certainly don’t have any evidence
from which I can draw a conclusion that . . . [Clarke] intended to . . . benefit[] two
households.” Similarly, the district court declined to acknowledge both Intervenors

18
as dominant estate owners and stated: “I don’t have any evidence, zero evidence to
expand the scope of the easement.” 	Ultimately, the district court held that “[t]he
dominant estate has no authority to expand the historic use, boundaries[,] or existing
cleared portion of the easement” and that the dominant estate owner therefore could
not cut any trees or bring heavy construction equipment on the easement. In total, the
easement was to “remain as it was before the lawsuit[,]” and Plaintiff’s fence could
remain within the easement. 	Contrary to the district court’s reasoning, there is no
expansion of the easement’s use to be considered in this case. The relevant inquiry
in determining whether an additional burden exists lies not in whether the parties
intended the division of, or increased burden from, the dominant estate, but whether
the division created an additional burden on the servient estate.
{31} 	As explained above, the division of a dominant estate does not generally create
an unreasonable additional burden. Rather, the relevant inquiry lies in whether any
evidence existed that the scope and use of the easement had increased since the sale
or division of the dominant estate. Rather than look for “evidence to expand the scope
of the easement[,]” to restrict a valid easement, the district court was obligated to
determine whether Intervenors were entitled to a finding of no additional burden based
on the testimony given. After reviewing the testimony, we conclude that the district
court’s finding of an additional burden is not supported by the testimony, and the

19
testimony does not lend the substantial support necessary for us to uphold the district
court’s decision.
{32} 	The nature of the evidence presented at trial suggests that the easement in this
case is not being expanded, changed, or modified in any way by the division of the
dominant estate. 	While the district court used Jones’s testimony as evidence of
“historic use” that determined intent, it seems to have been more pertinent to the issue
of additional burden. For example, the majority of Jones’s testimony on historic use
came in response to counsel’s question regarding the frequency of use and type of
property being accessed. 	Counsel’s follow-up question—whether the previously
described 	frequency 	of 	use 	of 	the 	previously 	described 	property 	had
increased—reveals that both the question asked and the answer given were more
relevant to the issue of additional burden than the intent of the parties. Jones testified
that there had been no change to the use of the easement since it was purchased in
1979.
{33} 	Long also testified regarding the use of the easement. He testified that he had
never driven on the easement, and there have been no changes to his use of the
property since he purchased Tract 5C. Jones testified that there had been no changes
in his use of the property since he sold Tract 5C to Long in 2009. Long’s property is
accessible from a public road. The easement is still the same twenty feet in width that
it has been since 1979 and is appurtenant to the same dominant estate as it was in

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1979. The division of the dominant estate has not changed the amount of benefited
land or the size of burdened property. 	The easement is also not modified by the
division. 	It is still used for ingress and egress of household and non-commercial
purposes as was intended by the 1979 agreement. In light of this evidence, and absent
any evidence whatsoever that the use of the easement has changed, we cannot hold
that the district court’s finding of an additional burden to the servient estate is
rationally based on the evidence.
{34} 	The easement in question can be appurtenant to two dominant estates without
expanding, changing, or modifying the burden on the servient estate. We therefore
reverse the district court’s ruling regarding the ownership of the dominant estate.
III. 	CONCLUSION
{35} 	Rather than limiting itself to the unambiguous terms of the easement as it
should have done in construing the parties’ intent and, thereby, the scope of the
easement, the district court relied on historic use of the dominant estate to determine
how the easement and dominant estate should be used. According to the unambiguous
written agreement, the easement was intended to be twenty-feet wide. Plaintiff’s fence
currently prevents access to the full twenty feet of the easement. Plaintiff is therefore
required to remove her fence from the easement, so as to effectuate the intent of the
parties. The district court’s judgment regarding the scope of the easement is therefore
reversed.

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{36} 	The district court also determined that the division of the dominant estate
constituted an impermissible additional burden on the servient estate. Because the
division of the dominant estate did not constitute an expansion, change, or
modification to the easement, we reverse the district court’s decision. 	Both
Intervenors own the dominant estate and possess the right of ingress and egress for
household and non-commercial purposes over the easement. 	We remand for
proceedings consistent with this Opinion concerning the fate of the trees within the
fence, and such other matters as may be required by this Opinion.
{37} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
JONATHAN B. SUTIN, Judge