McFarland Land and Cattle v. Caprock Solar

Office of the Director
10:21:52 2023.08.23 New Mexico
Compilation
'00'06- Commission
2020.005.30514
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2023-NMSC-018

Filing Date: July 13, 2023

No. S-1-SC-38934

MCFARLAND LAND AND CATTLE INC.,

Plaintiff-Respondent,

v.

CAPROCK SOLAR 1, LLC, a Delaware
limited liability company, and SWINERTON
BUILDERS, a California corporation,

Defendants,

and

COUNTY OF QUAY,

Intervenor-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Matthew E. Chandler, District Judge

Warren F. Frost, P.C.
Warren F. Frost
Logan, NM

for Petitioner

Hinkle Shanor LLP
Richard E. Olson
Jeremy D. Angenend
Roswell, NM

for Respondent

Moses, Dunn, Farmer & Tuthill, P.C.
Joseph Lee Werntz
Albuquerque, NM
for Defendants

OPINION

THOMSON, Justice.

{1} This case involves a dispute about whether a public prescriptive easement
existed over a road in Quay County. Defendants Caprock Solar 1 (Caprock) and
Swinerton Builders (collectively, Defendants) and Intervenor Quay County (the County)
contend that the Court of Appeals erred by reversing the district court and creating an
additional requirement to establish a public prescriptive easement claim—namely, that a
claimant must prove frequency of use by the public and a minimum number of public
users. We agree that the Court of Appeals’ stricter proof requirement was improper and
take this opportunity to clarify what is required to prove a public prescriptive easement
claim. In doing so, we adopt the holding in Trigg v. Allemand, 1980-NMCA-151, ¶ 9, 95
N.M. 128, 619 P.2d 573, that “[f]requency of use or number of users is unimportant, it
being enough if use of the road in question was free and common to all who had
occasion to use it as a public highway” (internal quotation marks and citation omitted).
We also adopt the principle articulated in Luevano v. Maestas, 1994-NMCA-051, ¶¶ 23,
25, 117 N.M. 580, 874 P.2d 788, that the public character of the road is key to
establishing a public prescriptive easement claim. In this case, there is substantial
evidence to support the district court’s finding of a public prescriptive easement over the
disputed road. Therefore, we reverse the Court of Appeals and affirm the district court.

I. BACKGROUND

{2} Quay Road AI (QR AI) begins on State Road 278 and runs south along tracts
owned by Robert and Billie Abercrombie (the Abercrombies) and Plaintiff McFarland
Land & Cattle Inc. (McFarland), eventually reaching state-owned land. Sometime in
1954, a flood washed out a wooden bridge on QR AI that crossed an arroyo near the
southeast corner of McFarland’s property. After the flood, QR AI was rerouted one
hundred feet west onto McFarland’s property. This area became known as the “low
water crossing.” The low water crossing, which is located on McFarland’s property, is
the subject of this dispute.

{3} In 2015, Caprock entered into a lease with the Abercrombies for the construction
and operation of a solar energy farm on the Abercrombies’ property. Caprock hired
Swinerton Builders as its general contractor and entered into a sublease with the
County in order to acquire industrial revenue bonds to assist in financing the solar farm.
QR AI, including the low water crossing, is the only means of vehicular access to lands
owned by the Abercrombies that were leased to Caprock, state lease land, and lands
owned by the Dean Hodges family. Consequently, Caprock and Swinerton Builders
used the low water crossing on QR AI to reach the leased land on the Abercrombies’
property for construction of the solar farm.

{4} When construction of the solar farm began, McFarland demanded that certain
conditions be met, including payment from Caprock, to use the crossing. Up to that
point, McFarland made no effort to keep others from using QR AI. Negotiations between
McFarland and Caprock regarding use of the crossing failed, driving McFarland to file a
petition for a permanent injunction seeking to enjoin Defendants from using the low
water crossing. In their answer, Defendants asserted, among others, the affirmative
defenses of implied easement, prescriptive easement, and easement by necessity. The
district court allowed the County to intervene, and the County filed a complaint seeking
a declaration that QR AI’s low water crossing is within a public prescriptive easement
and that McFarland had no right to interfere with the public’s use of QR AI and the low
water crossing. Prior to trial, Defendants and the County filed a joint trial brief,
contending that “a right of access exists across QR AI, including ‘the low water
crossing’[] where it crosses the McFarland land,” under the theories of easement by
prescription, implied dedication, and easement by estoppel.

{5} After a bench trial, the district court entered judgment in favor of Defendants and
the County. The district court did not make any findings or conclusions on the implied
dedication or easement by estoppel theories. Instead, it focused its findings on the
existence of a public prescriptive easement, concluding that Defendants and the County
“prove[d] the elements of a public prescriptive easement on QR AI, where it crosses
[McFarland’s property] by clear and convincing evidence.”

{6} The conclusion that a public prescriptive easement existed over QR AI was
based on evidence of records, certifications, and maps showing QR AI as a County
road. The district court made additional findings regarding QR AI’s reputation as a
public road. It found that McFarland’s neighbors used QR AI and never felt the need to
ask for permission to use it, that McFarland never prevented others from using QR AI,
and that the local title company that issued the title insurance policy for the solar farm
identified QR AI as a public road.

{7} The Court of Appeals reversed the district court, concluding that the County and
Defendants did not prove the public use element of their public prescriptive easement
claim by clear and convincing evidence. McFarland Land & Cattle Inc. v. Caprock Solar
1, LLC, 2021-NMCA-057, ¶ 16, 497 P.3d 665. Acknowledging its holding in Trigg that
“‘[f]requency of use or number of users is unimportant, it being enough if use of the road
in question was free and common to all who had occasion to use it as a public
highway,’” the Court of Appeals, in its substantial evidence review, nonetheless
concluded that public use of the road “might have amounted to five to ten times over an
approximate thirty-year period” and that “[t]here was no other evidence of actual use of
the road by the general public.” McFarland Land & Cattle Inc., 2021-NMCA-057, ¶¶ 10,
16 (quoting Trigg, 1980-NMCA-151, ¶ 9 (first alteration in original)). The Court read
Luevano to require the district court to disregard evidence of QR AI’s reputation as a
public road because, in its view, that evidence relied exclusively on the use made by
McFarland’s neighbors and invitees. See McFarland Land & Cattle Inc., 2021-NMCA-
057, ¶¶ 12, 16. The Court of Appeals remanded the case to the district court to consider
the unresolved theories of implied dedication and easement by estoppel advanced by
the County and Defendants. Id. ¶ 17. The County filed a petition for writ of certiorari,
which we granted, and Defendants joined the County in the briefing. Our review on
appeal is limited to the public prescriptive easement claim as this is the only question
presented by the parties. See Rule 12-502(C)(2)(b) NMRA (“[T]he Court will consider
only the questions set forth in the petition.”). We conclude that the Court of Appeals
erred in requiring evidence establishing frequency of use or a minimum number of
users, given the other evidence presented at trial and findings of the district court that
sufficient evidence proved a public prescriptive easement existed for the low water
crossing on QR AI. We reverse the Court of Appeals and affirm the district court’s
original judgment.

II. DISCUSSION

A. Standard of Review

{8} We begin by reviewing the Court of Appeals’ legal conclusion on prescriptive
easements de novo. Amethyst Land Co., Inc. v. Terhune, 2014-NMSC-015, ¶ 9, 326
P.3d 12. We then determine “whether substantial evidence supports the district court’s
findings and whether these findings support the conclusions that the elements required
to establish a public easement by prescription were . . . proved by clear and convincing
evidence.” Algermissen v. Sutin, 2003-NMSC-001, ¶ 9, 133 N.M. 50, 61 P.3d 176.
Review for substantial evidence is a deferential standard, and

[e]ven in a case involving issues that must be established by clear and
convincing evidence, it is for the finder of fact, and not for reviewing
courts, to weigh conflicting evidence and decide where the truth lies. We
defer to the trial court, not because it is convenient, but because the trial
court is in a better position than we are to make findings of fact and also
because that is one of the responsibilities given to trial courts rather than
appellate courts.

State ex. rel. Dep’t of Human Servs. v. Williams, 1989-NMCA-008, ¶ 7, 108 N.M. 332,
772 P.2d 366.

B. Frequency of Use or Minimum Number of Users Is Not Required to
Establish a Public Prescriptive Easement Claim

{9} The County and Defendants challenge the Court of Appeals’ conclusion that they
did not present sufficient evidence to establish a public prescriptive easement. See
McFarland Land & Cattle Inc., 2021-NMCA-057, ¶ 16. Specifically, they argue that if a
road has a public character, they need not prove a “minim[um] number of uses by the
public,” and therefore the Court of Appeals’ additional proof requirement is inconsistent
with our law on public prescriptive easements.

{10} In order to establish a public prescriptive easement claim, the claiming party
must prove that the public used the property and that there was “an adverse use of
land, that is open or notorious, and continued without effective interruption for the
prescriptive period (of ten years).” Algermissen, 2003-NMSC-001, ¶¶ 9, 10. At issue in
this case is whether the Court of Appeals erred by holding that a minimum number of
users or amount of use by the public is required to support a district court’s conclusion
that a public prescriptive easement exists.

{11} Our analysis starts with a discussion of the public use element of a public
prescriptive easement claim. In Trigg, the district court concluded that the defendant, a
neighboring landowner, established a public prescriptive easement over a road that
crossed the plaintiff’s land. 1980-NMCA-151, ¶¶ 4-5. The Court of Appeals held that
there was substantial evidence to support the district court’s conclusion because
although the road was not formally listed as a county road, “[a]ll of the witnesses
testified that [it] was a public road, freely used by the public” for more than fifty years,
the county maintained and graded the road, and on one occasion, the plaintiff
landowner told the defendant neighbor that he believed the road was a public road. Id.
¶¶ 6-7, 14. Noting that “[a] public highway can be established by use alone,” the Trigg
Court highlighted that the character of the road is critical, stating, “Frequency of use or
number of users is unimportant, it being enough if use of the road in question was free
and common to all who had occasion to use it as a public highway.” Id. ¶¶ 8-9 (internal
quotation marks and citation omitted); see also Koch v. Mraz, 165 N.E. 343, 346 (Ill.
1929) (“The test whether a strip of ground has become a public highway by user is, not
the number of persons actually using it, but the character of the use; that is, whether the
public generally had free and unrestricted right to use the road.”). The Court also
concluded that “[o]nce a road is found to be open to the public and free and common to
all citizens, [it] should be open for all uses reasonably foreseeable,” thus setting out the
boundaries of a public prescriptive easement. Trigg, 1980-NMCA-151, ¶ 9.

{12} The importance of a road’s character as public was later clarified in Luevano,
where the Court of Appeals reviewed a district court’s grant of a motion for summary
judgment in favor of a public prescriptive easement claim. 1994-NMCA-051, ¶¶ 1, 8-9.
“Having determined there were no material issues of fact in dispute,” the district court
granted the defendants’ motion for summary judgment. Id. ¶¶ 1, 8. The defendants
argued that a road on the plaintiffs’ property was a public prescriptive easement,
presenting evidence that neighbors used the road, the county maintained the road,
public records showed the road as a public road, and neighbors believed the road was
public. See id. ¶¶ 8-9, 18-19, 22. The Court of Appeals held that “the evidence of
prescription was [not] sufficient to support judgment for [the d]efendants as a matter of
law.” Id. ¶ 24. The Court first explained that, as a matter of law, use by a landowner’s
business invitees and neighbors is insufficient on its own to establish the public
character of a road. Id. ¶ 21 (“We agree with [the p]laintiffs that the evidence of use by
their business invitees is not sufficient to establish the public character of the road as a
matter of law, and thus to support summary judgment.”). “That is because their invitees’
use was use in effect by them. No adverse public use resulted when the public utilized
an access drive to reach a specific business adjacent to it.” Id. (text only) 1 (citation
omitted). However, the Court of Appeals later explained that there was additional
evidence that the road had a reputation as public. Id. ¶ 21 (“[T]here is more here than

1The “text only” parenthetical as used in this opinion indicates the omission—for enhanced readability—of
all of the following nontextual marks that may be present in the source text: brackets, ellipses, and
internal quotation marks.
use by [the p]laintiffs’ invitees and by [the d]efendant neighbors.”). The Luevano Court
focused on evidence that the road was shown as a public road in public records and
testimony from neighbors that they and their predecessors in interest believed the road
was a public road and that the road was referred to as a public road when they
purchased their properties. Id. ¶¶ 22-23. Notably, the Court held that evidence of a
road’s reputation as public supports an inference that the road is “‘open to the public’”
and clarified that “Trigg emphasizes character rather than amount of use.” Id. ¶¶ 23, 25-
26 (citation omitted). Explaining that “[u]nder Trigg, the evidence of the road’s reputation
certainly would support an inference of public use,” the Court ultimately concluded that
there was a triable issue as to whether evidence of the road’s reputation as public
“might have arisen at least in part as a result of [the p]laintiffs’ business and the use
made by their invitees.” Id. ¶¶ 24-26.

{13} Thus, Trigg and Luevano make clear that a claimant does not need to prove
frequency of use or a minimum number of users to establish public use. Although public
use can be proven with evidence of actual use by the public, ultimately, a claimant must
prove that the road has a character or reputation as public that does not arise as a
result of use by the landowner’s business and invitees.

{14} In this case, the Court of Appeals acknowledged that there was evidence to
support QR AI’s reputation as public, such as the County considering QR AI as a public
road for decades and the County expending funds on maintaining QR AI. McFarland
Land & Cattle Inc., 2021-NMCA-057, ¶ 9. However, the Court of Appeals disregarded
this reputation evidence because the County and Defendants did not additionally show
a sufficient amount of actual use by the general public. Id. ¶¶ 10-12, 16 (“From the
testimony elicited at trial, public use of QR AI might have amounted to five to ten times
over an approximate thirty-year period. There was no other evidence of actual use of
the road by the general public.”). Moreover, the Court of Appeals declined to consider
the use by McFarland’s neighbors and invitees, stating that “use by neighbors and their
invitees does not constitute use by the general public.” Id. ¶ 16 (citing Luevano, 1994-
NMCA-051, ¶¶ 20-21). As a result, the Court of Appeals concluded that Defendants and
the County failed to present clear and convincing evidence of public use of QR AI
necessary to establish a public prescriptive easement. Id.

{15} The Court of Appeals’ requirement in this case that a claimant prove a minimum
number of users or amount of use by the public is in direct conflict with and is
unworkable in light of the guidelines provided in Trigg and Luevano. See Trigg, 1980-
NMCA-151, ¶ 9 (“Frequency of use or number of users is unimportant, it being enough if
use of the road in question was free and common to all who had occasion to use it as a
public highway.” (text only) (citation omitted)); Luevano, 1994-NMCA-051, ¶ 25 (“Trigg
emphasizes character rather than amount of use.”). Furthermore, the Court of Appeals
over-read Luevano as creating a per se rule that evidence of use by neighbors or
invitees cannot ever be considered to establish public use. See McFarland Land &
Cattle Inc., 2021-NMCA-057, ¶ 10. However, the Court in Luevano explained that
neighbor and invitee use cannot, by itself, establish the public character of the road as a
matter of law. Luevano, 1994-NMCA-051, ¶ 21. Rather, a claimant must present
additional evidence demonstrating that a road has a public character and that the
character did not arise as a result of a landowner’s business or use made by the
landowner’s invitees. See id. ¶¶ 21-23, 26.

{16} We adopt the principles set out in Trigg and Luevano and hold that when proving
a public prescriptive easement claim, one does not need to prove a minimum number of
users or frequency of use. Rather, a claimant only needs to prove that “use of the road
in question was free and common to all who had occasion to use it as a public
highway.” Trigg, 1980-NMCA-151, ¶ 9 (internal quotation marks and citation omitted).
Thus, when proving the public use element, there must be evidence that the road has a
public character. See id.; Luevano, 1994-NMCA-051, ¶ 25. The public character of a
road must arise independently from the landowner’s business and invitees. See
Luevano, 1994-NMCA-051, ¶ 26. However, evidence of use by neighbors and their
invitees, though not dispositive, can be used to support a road’s public character. See
id. ¶¶ 21-23, 26; Trigg, 1980-NMCA-151, ¶¶ 6-7. It does not make sense to conclude
that a road with a clear reputation as public is made less so because neighbors use the
road or because a claimant does not show a minimum amount of use by other members
of the public. See Smith v. Bixby, 242 N.W. 2d 115, 118 (Neb. 1976) (“The defendant
cites no authority, nor do we find any, to support the contention that when only a few
members of the public use a road regularly, the road may be deemed abandoned.
Neither is there any authority to support the proposition that public rights acquired by
prescription are lost or abandoned because of a substantial reduction in the number of
members of the public who continue to make use of the rights previously acquired.”).
Neighbors and their invitees are a class of the public, and evidence of their use can be
considered along with other evidence of a road’s public character.

{17} Therefore, we conclude that the Court of Appeals erred in requiring the County
and Defendants to prove a minimum amount of use by the public in establishing their
public prescriptive easement claim and erred in holding that evidence of neighbor or
invitee use can never be considered to prove public use.

C. Substantial Evidence Supports the District Court’s Conclusion of a Public
Prescriptive Easement

{18} Applying the principles articulated above, we determine that the Court of
Appeals’ erred in holding that there was not substantial evidence to support the district
court’s conclusions that the public used QR AI and that a public prescriptive easement
existed over it at the low water crossing. See id. ¶¶ 16-17.

{19} The County and Defendants presented evidence of QR AI’s reputation as public,
including evidence that QR AI (1) appears on the 1956 Quay County General Highway
Map which the State Highway Department prepared, (2) appears on the 1970 Quay
County Roadmap which identifies it as a County-maintained road, and (3) appears on
County annual road certification maps from 1993 to 2017 as a County-maintained road.
Additionally, there was evidence that a connecting road, QR 51, was also listed as a
County road in public records, but the County decertified QR 51 as a public road in a
formal process and deleted it from the County’s certification maps in 2018. There is no
evidence that QR AI was subject to that same decertification process, which indicates
that QR AI still had a reputation as public even though a connecting road did not.
Moreover, current and former County employees testified that they maintained and
bladed QR AI, including the low water crossing, for decades and that the County has
made specific repairs to segments of QR AI when needed and when requested by
property owners who use QR AI. Finally, a title producer testified that the title company
issued the title insurance policy to Caprock for the solar farm under the belief that QR AI
was a public road.

{20} In addition, there was evidence that McFarland’s neighbors and their invitees had
used QR AI, believing it was a public road, and that other members of the public also
used QR AI. McFarland’s neighbors, Robert Abercrombie and Dean Hodges, provided
affidavit testimony that for more than forty years, users of QR AI, including the low water
crossing, believed it was an open road for all to use, and the users did not ask
McFarland or its predecessors in title for permission to use QR AI. In their affidavits,
Abercrombie and Hodges also stated that McFarland never attempted to stop them from
using QR AI, and, although McFarland tried to block the use of QR AI during
construction of the solar farm, the neighbors’ crossings were never interrupted.
McFarland’s ranch manager, Ted Quintana, also testified that he observed neighboring
landowners using the low water crossing. Additionally, Hodges testified that he
observed unknown members of the public traveling on QR AI on a few occasions. This
evidence of QR AI’s reputation as public as well as the use made by McFarland’s
neighbors pursuant to that reputation and the use made by other members of the public
substantially supports a determination that QR AI has a public character.

{21} Here and unlike the disputed portion of the road in Luevano, there was no
evidence that the road’s character as public arose as a result of McFarland’s business
and the use made by its invitees. See Luevano, 1994-NMCA-051, ¶ 26. Instead, there is
evidence that QR AI had a reputation as a public road because QR AI was listed as a
County road in public records for more than twenty years, QR AI was maintained by the
County for decades, and McFarland’s neighbors as well as a local title company
believed that QR AI was an open road for all to use. From the record, it appears that the
neighbors’ and invitees’ use of QR AI arose from its reputation as a public road, not that
the reputation as a public road arose as a result of the neighbors’ and invitees’ use of
the road. In addition, there was evidence that unknown members of the public travelled
on QR AI on a few occasions.

{22} The district court focused its findings and conclusions regarding the public
prescriptive easement mostly on the evidence of County ownership through maps,
certifications, and County maintenance. The district court also found that McFarland’s
neighbors used QR AI without McFarland’s express permission and that they never felt
the need to ask McFarland for permission. Additionally, McFarland never attempted to
stop its neighbors or others from using QR AI. In fact, McFarland made no effort to
block the use of QR AI until after construction began on the solar energy farm.
Moreover, to the extent that McFarland placed gates near the low water crossing, the
presence of gates did not interrupt the use by neighbors or County maintenance.
Finally, the district court found that a local title company identified QR AI as a public
road based on County road maps and issued a title insurance policy to Caprock for the
solar farm under that belief. We hold that the evidence mentioned above substantially
supports the district court’s findings and its conclusion that the public used QR AI.

{23} By reweighing the evidence presented to the district court described herein, the
Court of Appeals disregarded its obligation to “not reweigh the evidence nor substitute
[its] judgment for that of the fact finder.” Las Cruces Pro. Fire Fighters v. City of Las
Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. “The question is not
whether substantial evidence would have supported an opposite result; it is whether
such evidence supports the result reached.” Hernandez v. Mead Foods, Inc., 1986-
NMCA-020, ¶ 16, 104 N.M. 67, 716 P.2d 645. Specifically, the Court of Appeals relied
on testimony from McFarland’s president, Kelly McFarland, about not seeing people
crossing the property “willy-nilly,” and from Quintana, who said he never saw strangers
on the property, just neighbors. McFarland Land & Cattle Inc., 2021-NMCA-057, ¶¶ 12-
13. The Court of Appeals also gave more weight to Hodges’ testimony that public users
of the road would get permission, and to testimony from County employees that they
never observed members of the public using the road. Id. ¶¶ 14-15. While an appellate
court may consider all the evidence in its review for substantial evidence, the court may
not reweigh evidence and reverse the district court because it would have come to a
different conclusion. See Williams, 1989-NMCA-008, ¶¶ 7-8. Because there is
substantial evidence to support the district court’s determination, we affirm the district
court’s conclusion that a public prescriptive easement existed on QR AI at the low water
crossing.

III. CONCLUSION

{24} The law of public prescriptive easements in New Mexico does not require a
showing of a minimum amount of use or number of users, as it is the public character of
the road that guides a fact finder’s determination of a public prescriptive easement.
Here, there is substantial evidence to support the district court’s conclusion that the
public used the low water crossing and that a public prescriptive easement exists over
this portion of QR AI. As a result, we reverse the judgment of the Court of Appeals and
affirm the findings and conclusions of the district court. We remand to the district court
to enter judgment in favor of Defendants and the County on their public prescriptive
easement claim.

{25} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

MICHAEL E. VIGIL, Justice

BRIANA H. ZAMORA, Justice
LISA CHAVEZ ORTEGA, Judge
Sitting by designation