A-1-CA-35712 | Omnilex

Texte intégral

Court of Appeals of New Mexico
Filed 5/21/2019 11:39 AM

OCR transcription for search; preserved printed pages are authoritative

—

10
1]

12
13
14
15
16
17

Court of Appeals of New Mexico
Filed 5/21/2019 11:39 AM

/
aed

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

RIO GRANDE CREDIT UNION,

Plaintiff-Appellant,
v. No. A-1-CA-35712
CITY OF ALBUQUERQUE,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Beatrice J. Brickhouse, District Judge

Barnett Law Firm, P.A.

Roman Esquibel

Albuquerque, NM

for Appellant

City of Albuquerque

Esteban A. Aguilar, Jr., City Attorney
John E. DuBois, Assistant City Attorney
Kevin A. Morrow, Assistant City Attorney
Albuquerque, NM

for Appellee

MEMORANDUM OPINION
MEDINA, Judge.
{1B Plaintiff Rio Grande Credit Union appeals the district court’s order granting
the City of Albuquerque summary judgment in an inverse condemnation action

involving a drainage easement across Plaintiff's property. Plaintiff claims the City’s

Reynolds

10
11
12
13
14
15
16
17
18
19

20
21

placement of a drainage pipe on its property resulted in a taking without just
compensation. The district court granted the City’s motion for summary judgment,
concluding the City’s drainage pipe was placed within the unambiguous drainage
easement for the benefit of the City. We address three issues on appeal: (1) whether
the district court erred in concluding the City’s easement was unambiguous; (2)
whether the district court erred in concluding the easement had not been modified;
and (3) whether the district court erred in finding no taking. We affirm.
BACKGROUND
23 We set forth only a brief recitation of facts as the parties are familiar with the
factual and procedural history. Except where noted, the facts were undisputed.
Plaintiff purchased certain commercial property (property) subject to a recorded
easement granted to the City and AMAFCA (City’s easement). In 1986, Plaintiff's
predecessors-in-interest filed a plat of several lots, including Plaintiff's property.
The plat contained language stating that the property was subject to a ninety-foot
“public drainage easement granted by this plat” for the benefit of the City along the
western portion of the property and further provided:

10. DRAINAGE EASEMENTS—Drainage easements are granted to

AMAFCA and the City of Albuquerque for the benefit of all owners of

the subdivision or indicated on the Plat for the passage, containment or

diversion of surface waters; and between individual property owners as
indicated on the Plat by reference or notation.

3} The plat also granted a separate twenty-four foot “private ingress, egress,
drainage [and] public utility easement” to the City, the Public Service Company of
New Mexico, the Gas Company of New Mexico, Mountain Bell, and all owners of
the subdivision (twenty-four-foot easement). The twenty-four-foot easement is
located to the south of the City’s easement.

{4; Plaintiff's predecessor-in-interest submitted a site plan to the City for a
building permit on the portion of the property not encumbered by the easement,
which the City approved. Plaintiff then purchased the property from its predecessor-
in-interest, subject to all easements of record. Neither Plaintiff nor Plaintiff's
predecessor-in-interest vacated the easement by following the City’s ordinance
procedures. No new or amended plat was filed between the filing of the 1986 plat
and the commencement of Plaintiff's inverse condemnation suit.

{5} In 2005 the City installed a drainage pipe on Plaintiff's property entirely
within the City’s easement as identified in the 1986 plat. Eight years later, Plaintiff
filed suit for inverse condemnation claiming the installation of the drainage pipe
constituted a taking of Plaintiff's property because the drainage pipe’s location
prevents Plaintiff from erecting a building or any other improvement on the property.
Plaintiff argued that the City’s prior approval of a building site plan informally
consolidated the City’s easement into the twenty-four-foot easement, rendering the

location of the drainage pipe outside the City’s easement. The City filed a motion

for summary judgment arguing that (1) the 1986 plat granted the City a ninety-foot-
wide public drainage easement extending through the western portion of the
property; (2) the easement had not and could not be informally consolidated by the
site plan; (3) Plaintiff did not seek to vacate or amend the easement through the
City’s ordinance procedures; and (4) Plaintiff has no inverse condemnation claim
because the drainage pipe was placed entirely within the City’s easement. See Rule
1-056(C) NMRA (providing that summary judgment “shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, . .. show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law”).

{6} Plaintiff then filed a cross-motion for summary judgment. Plaintiff conceded
the City was granted the ninety-foot drainage easement described in the 1986 plat,
but argued it was entitled to summary judgment as a matter of law because the City’s
placement of the drainage pipe rendered Plaintiff's land worthless. The City
responded that the drainage pipe was built within its easement, and Plaintiff's
inability to build on the encumbered portion of the land was a result of the pre-
existing easement.

{7} After a hearing, the district court issued a written decision denying Plaintiff's
motion for summary judgment and granting the City’s. The district court ruled the

City’s easement is unambiguous, there was no express agreement to modify the

easement, Plaintiff provided no authority allowing an easement to be modified rather
than vacated, and Plaintiff offered no on-point authority that an express easement
can be “informally consolidated.” Plaintiff subsequently filed a motion to reconsider
arguing the district court misapprehended the facts and, for the first time, asserting
that the City was estopped from using its full easement. The district court denied
Plaintiff's motion to reconsider.

STANDARD OF REVIEW

{8}. We review the grant or denial of summary judgment on appeal de novo. City
of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, J 14, 150 N.M. 428, 260 P.3d
414. We will affirm the district court “if we conclude that there are no genuine issues
of material fact and the movant is entitled to judgment as a matter of law.” Id.
(internal quotation marks and citation omitted). ““We view the facts in a light most
favorable to the party opposing summary judgment and draw all reasonable
inferences in support of a trial on the merits.” /d. (internal quotation marks and
citation omitted). “The party moving for summary judgment has the initial burden
of establishing a prima facie case for summary judgment by presenting such
evidence as is sufficient in law to raise a presumption of fact or establish the fact in
question unless rebutted.” /d. (internal quotation marks and citation omitted). Once
the movant meets this burden, “the burden shifts to the non-movant to demonstrate

the existence of specific evidentiary facts which would require trial on the merits.”

Romero v. Philip Morris Inc., 2010-NMSC-035, § 10, 148 N.M. 713, 242 P.3d 280
(internal quotation marks and citations omitted). A fact is material if “under the
pertinent substantive law, the fact is necessary to give rise to a claim.” City of Rio
Rancho, 2011-NMSC-037, § 14 (internal quotation marks and citation omitted).
DISCUSSION

{9} | This appeal arises from an inverse condemnation claim which required the
district court to address the scope of the City’s easement. On appeal, this Court must
also address the scope of the City’s easement to determine the validity of Plaintiff's
inverse condemnation claim. Accordingly, prior to addressing the scope of the City’s
easement, we briefly address inverse condemnation claims in general. An inverse
condemnation proceeding is an action initiated by a property owner against a
governmental entity “and is generally available where private property has been
taken for public use without a formal condemnation proceeding.” Moongate Water
Co., Inc. v. City of Las Cruces, 2014-NMCA-075, § 7, 329 P.3d 727; see N.M. Const.
art. 2, § 20 (“Private property shall not be taken or damaged for public use without
Just compensation.”); NMSA 1978, § 42A-1-29(A) (1983) (“A person authorized to
exercise the right of eminent domain who has taken or damaged . . . property for
public use without making just compensation or without instituting . . . any
proceeding for condemnation is liable to the condemnee . . . for the value [of] . . . the

property [when it was] taken or damaged[.]”); North v. Pub. Serv. Co. of N.M., 1983-

NMCA-124, 4 9, 101 N.M. 222, 680 P.2d 603 (explaining that if the governmental
entity “has taken or damaged property for public use without making just
compensation therefor or without initiating proceedings to do so, the property owner
has recourse through inverse condemnation proceedings”).

{10} To prove it is entitled to recover damages from the City for inverse
condemnation, Plaintiff must prove that the City took or damaged its property for
public use without properly compensating Plaintiff or bringing a formal
condemnation proceeding against it. See Moongate, 2014-NMCA-075, § 7. It is
undisputed that the City did not provide any compensation or bring a formal
condemnation proceeding against Plaintiff. Plaintiff argues its property was
damaged when the City installed the drainage pipe on Plaintiff's property,
precluding Plaintiff from constructing any improvements on the property.

{11} While it is undisputed the drainage pipe was installed within the easement
granted in the 1986 plat, Plaintiff argues the City’s easement is ambiguous or has
been modified from its original grant such that the drainage pipe was placed outside
the City’s modified easement. Thus the success of Plaintiff's inverse condemnation
claim rests on whether the instrument creating the City’s easement is ambiguous or
whether the City’s easement has been modified since it was created. Therefore, we
must first determine the scope of the City’s easement before we can properly

consider Plaintiff's inverse condemnation claim.

{123} The fact that the City installed the drainage pipe entirely within the easement
as granted by the 1986 plat satisfies the City’s obligation to make a prima facie case
for summary judgment and the burden therefore shifts to Plaintiff to prove there is a
genuine issue of material fact for trial or that the City was otherwise not entitled to
a judgment as a matter of law. See Romero, 2010-NMSC-035, { 10. The district court
determined Plaintiff failed to satisfy its burden because it failed to come forward
with admissible evidence to show the 1986 plat was ambiguous or that the City’s
easement had been modified from its original terms. See Rule 1-056. |

413}. Plaintiff argues the district court erroneously granted the City’s motion for
summary judgment by: (1) concluding the City’s easement was unambiguous; (2)
failing to recognize the easement had been modified; (3) failing to find the City owed
Plaintiff a duty of good faith and fair dealing; and (4) finding no evidence the City’s
placement of the drainage pipe damaged Plaintiff's property.

I. The Easement Recorded in the 1986 Plat Was Unambiguous

(14; Plaintiff argues the City’s easement is ambiguous because the City’s easement
could be used in a number of ways to accomplish its purpose, and the district court
should have considered extrinsic evidence to determine the easement’s location and
dimensions were not as expressed in the plat. As explained below, we disagree.

15} We interpret the language creating an easement de novo. Dethlefsen v.

Weddle, 2012-NMCA-077, 10, 284 P.3d 452; see also Brooks v. Tanner, 1984-

NMSC-048, ¥ 11, 101 N.M. 203, 680 P.2d 343 (“The evidence bearing on the issue
is substantially all documentary, being comprised of the contract and the various
instruments referred to therein. [An appellate court] is therefore as well positioned
as the district court to consider the evidence and determine the extent of the
easement.’’).

{16} “An easement is distinguished from a fee, and constitutes a liberty, privilege,
right, or advantage which one has in the land of another.” Dethlefsen, 2012-NMCA-
077, § 12 (internal quotation marks and citation omitted). Easements are “created by
express agreement, prescription or by implication.” Jd. “The existence and scope of
an express easement are determined according to the intent of the parties.” Mayer v.
Smith, 2015-NMCA-060, ¥ 11, 350 P.3d 1191 (internal quotation marks and citation
omitted). The intent of the parties is derived from the language of the agreement. See
Skeen v. Boyles, 2009-NMCA-080, 7 18, 146 N.M. 627, 213 P.3d 531. “Where...
the grant or reservation is specific in its terms, it is . . . decisive of the limits of the
easement.” Dyer v. Compere, 1937-NMSC-088, J 12, 41 N.M. 716, 73 P.2d 1356
(emphasis added). “[W]hen interpreting the nature and extent of an easement, we
place ‘heavy emphasis . . . on the written expressions of the parties’ intent.’ ” City
of Rio Rancho, 2011-NMSC-037, § 37 (omission in original) (quoting Restatement
(Third) of Prop.: Servitudes § 4.1 cmt. d, at 499 (2000)). “The recorded instrument

is often the primary source of the information available to a prospective purchaser

of the land[,]” and “[a]n easement should be construed according to its express and
specific terms as a manifestation of the intent of the parties.” /d. (internal quotation
marks and citation omitted). “[T]he written language of an easement should be
conclusive, and consideration of extrinsic evidence is _ generally
inappropriate.” Dethlefsen, 2012-NMCA-077, { 12. 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.” Sanders v.
Lutz, 1989-NMSC-076, J 8, 109 N.M. 193, 784 P.2d 12.

{17} An easement is unambiguous when its written expression includes: (1) its
nature and purpose; (2) identification of each dominant estate holder; (3) a duration;
and (4) a definite location, including any dimensions. Mayer, 2015-NMCA-060,
{| 12. Plaintiff does not contest or otherwise dispute that the express terms of the
easement establish the first three elements. The City’s easement identifies its nature
and purpose as a drainage easement “for the passage, containment or diversion of
surface waters.” See City of Rio Rancho, 201 1-NMSC-037, f 16, 33 (concluding an
easement described as a “drainage easement” is unambiguous). The 1986 plat
identifies the City as one of the dominant estate holders. The 1986 plat does not
express a definite term and under our easement jurisprudence, it is therefore of

indeterminate duration. See Mayer, 2015-NMCA-060, § 14 (“Where no definite term

is established, the duration of an express easement is indeterminate.” (citing
Restatement (Third) of Property: Servitudes § 4.3 cmt. e, at 526)).

{18} The dispute in this case focuses on the fourth element, the location and
dimensions of the City’s easement. Plaintiff does not dispute and concedes that “the
Easement’s dimensions and location were originally set in the 1986 Platt [sic].”
However, Plaintiff contends the easement is ambiguous because when the easement
was granted, the parties did not have a full understanding of what the City’s future
drainage needs would be, and thus, the ultimate location and dimensions of the
drainage system were unknown. We need not consider these future drainage needs
because “[t]o allow extrinsic evidence to establish an ambiguity in the meaning of
language in a plat, when the language itself is unambiguous, would frustrate the
purpose of our law that governs the recording of instruments affecting real estate.”
City of Rio Rancho, 201 1-NMSC-037, § 38. The 1986 plat clearly describes a ninety-
foot easement along the western portion of the property. Nothing in the granting
language of the plat indicates any intent on the part of the parties to modify the
easement based on the actual size of any installed drainage pipe.

419} Plaintiff relies on Section 4.8 of the Restatement (Third) Property: Servitudes
to support its argument that as the owner of the servient estate, the law grants it the
ability to dictate the location and dimensions of an easement. Plaintiff's reliance on

this Section is misplaced because, by its own terms, the cited section does not apply

when the location and dimensions of an easement are defined in the recorded plat.
See Restatement (Third) Prop.: Servitudes § 4.8, at 559 (excepting servitudes “where
the location and dimensions are determined by the instrument” from the methods
described) (emphasis added)). As Plaintiff concedes the location and dimensions of
the City’s easement are set forth in the 1986 plat, Section 4.8 of the Restatement
does not assist Plaintiff.

20} Plaintiff failed to show “the existence of specific evidentiary facts which
would require trial on the merits” regarding the alleged ambiguous nature of the
City’s easement. See Romero, 2010-NMSC-035, § 10 (internal quotation marks and
citations omitted). Therefore, we affirm the district court’s ruling that Plaintiff failed
to show there was a genuine issue of material fact for trial on its claim that the City’s
easement granted in the 1986 plat was ambiguous.

II. The City’s Easement Has Not Been Modified

(213. Plaintiff next argues that even if the City’s easement is unambiguous, it was
modified by implication, consolidation, or estoppel when the City approved the site
plan and during discussions regarding Plaintiff's future plans for the property.
Plaintiff contends that this modification of the easement resulted in the City’s
placement of the drainage pipe outside of the easement, thereby damaging Plaintiff's
property. The City argues that to “modify” the easement in the manner suggested by

Plaintiff would be, in effect, a vacation of the easement, and to vacate the City’s

easement, Plaintiff must comply with the City’s ordinance procedures, which
Plaintiff did not.

22} Plaintiff directs this Court to the Restatement regarding modification of
easements, which states, “A servitude may be modified or terminated by agreement
of the parties, pursuant to its terms, or under the rules stated in this Chapter.
Restatement (Third) Prop.: Servitudes § 7.1, at 337. Even when “all of the parties
interested” agree to modify an easement, “[t]he formality requirements for creation
of a servitude . . . [still] apply to modification and termination agreements.” Jd. cmt.
b, at 339. These formality requirements include a writing, unless another exception
applies. See id. § 2.8 cmt. a, at 132. Absent a writing, the Restatement contemplates
a modification or vacation by estoppel. Jd. § 7.6, at 370-71.

23} The formality requirements of the Restatement comport with our case law. An
easement is a limited property right describing a “liberty, privilege, right or
advantage which one has in the land of another.” Martinez v. Martinez, 1979-
NMSC-104, 4 11, 93 N.M. 673, 604 P.2d 366; see Cox v. Hanlen, 1998-NMCA-015,
q 26, 124 N.M. 529, 953 P.2d 294 (describing easements as “real property
interest[s]”). See generally Muckleroy v. Muckleroy, 1972-NMSC-051, 75, 84 N.M.
14, 498 P.2d 1357 (“Broadly defined, property includes every interest a person may
have in a thing that can be the subject of ownership, including the right to enjoy, use,

freely possess and transfer that interest.”). As a property interest, “[t]itle to an

easement passes like title to any other real estate[.]” Ritter-Walker Co. v. Bell, 1942-
NMSC-008, 9 5, 46 N.M. 125, 123 P.2d 381 (explaining that a grant of an easement
is subject to the statute of frauds “unless acquired by adverse user[, b]ut an oral grant
is sufficient if the consideration is paid by, and possession is given to, the
purchaser”). Without a writing to satisfy the statute of frauds, Plaintiff must prove
both the existence of an oral agreement to transfer title “by clear, cogent and
convincing evidence” and the contents of the agreement. Cox, 1998-NMCA-015,
{ 26 (internal quotation marks and citation omitted).

24} Because the written instrument that creates an easement is given heavy
emphasis when interpreting an easement’s nature and extent, modifying the creating
instrument modifies the easement. See City of Rio Rancho, 2011-NMSC-037, § 37.
Comporting with the requirements above, the City’s ordinances provided procedures
for vacating or amending an easement during the events of this case. See
Albuquerque, N.M., Rev. Ordinances ch. 14, art. 14, §§ 14-14-7-1 to -2 (1994,
amended 2010) (repealed 2018). A person seeking only vacation of a public
easement could vacate an easement by following procedures set forth in
Albuquerque, N.M., Rev. Ordinances, § 14-14-7-2 of the Albuquerque ordinances.
A person could amend or vacate any plat by following the procedures in
Albuquerque, N.M., Rev. Ordinances, § 14-14-7-1. To amend an instrument is to

formally revise it. Black’s Law Dictionary 98 (10th ed. 2014). Such a revision could

modify the express grant of the easement, and thus the scope of the easement itself.
See City of Rio Rancho, 2011-NMSC-037, § 37.

{25} Specifically, to amend a plat under the City ordinance, Plaintiff would have
been required to record a new subdivision plat. See Albuquerque, N.M., Rev.
Ordinances §14-14-7-1(A)(1) (addressing the amendment, vacation, or voiding of a
plat absent misrepresentation or fraud). Such a plat could also serve as a means to
modify the language creating the easement, and thus its nature and extent. See City
of Rio Rancho, 2011-NMSC-037, 37. Because such a re-plat would affect the rights
of the City’s pre-existing public drainage easement, in order to be effective under
the City’s ordinances, the re-plat would require the signature of an authorized
representative of the City. See Albuquerque, N.M., Rev. Ordinances, § 14-14-7-
1(D). Plaintiff provided no evidence that it took any of the steps necessary under the
City’s ordinances to vacate, amend, or modify the City’s easement. Plaintiff also has
not presented a grant transferring title of the easement, Ritter-Walker Co., 1942-
NMSC-008, # 5, or clear, cogent, and convincing evidence of an oral agreement. See
Cox, 1998-NMCA-015, ¥ 26. Plaintiff has not presented sufficient evidence to
demonstrate the City’s easement has been officially modified or vacated in
accordance with the Restatement, state law, or the relevant City ordinances.

6} Plaintiff also argues the approved site plan “informally consolidated” the

City’s easement into the twenty-four-foot easement. Plaintiff does not explain what

an “informal consolidation” is or how it is legally distinct from an amendment or
modification, nor does Plaintiff provide authority to support its contention. See
Curry v. Great Nw. Ins. Co., 2014-NMCA-031, 9 28, 320 P.3d 482 (declining “to
depart from well-established jurisprudence” where a party cites no authority).

27; Plaintiff does not explain, or cite authority, for its position that the site plan
satisfies the formality requirements for modifying an easement. See Ritter-Walker
Co., 1942-NMSC-008, ] 5; see also Corona v. Corona, 2014-NMCA-071, § 28, 329
P.3d 701 (“This Court has no duty to review an argument that is not adequately
developed.”). We assume no such authority exists, see In re Adoption of Doe, 1984-
NMSC-024, 4 2, 100 N.M. 764, 676 P.2d 1329, and conclude there was no “informal
consolidation” of the recorded easement.

28} Plaintiff additionally asserts, as it did for the first time in its motion to
reconsider, that the City’s easement was modified by estoppel. Denial of a motion
to reconsider is reviewed for an abuse of discretion, and “we cannot say that the
[district] court abused its discretion” when it denies a motion to reconsider an issue
“raised for the first time in the motion for reconsideration.” Nance v. L.J. Dolloff'
Assocs., Inc., 2006-NMCA-012, [§ 23-26, 138 N.M. 851, 126 P.3d 1215. We
consider Plaintiff's argument and affirm the district court.

29} Plaintiff's estoppel argument relies on the same extrinsic evidence that

Plaintiff argues creates an ambiguity in the City’s easement, and we find it

10
11
12
13
14
15
16
17
18
19
20
21
22

unavailing. Equitable estoppel requires (1) a false representation or concealment of
material facts, (2) knowledge of the real facts, and (3) an intention or expectation
that an innocent party would rely on those facts. Mem’l Med. Ctr., Inc. v. Tatsch
Constr., Inc., 2000-NMSC-030, J 9, 129 N.M. 677, 12 P.3d 431. The required
reliance must be to the innocent party’s detriment. Jd. The site plan, a document
submitted to the City and not created by either party, makes no reference to the City’s
easement. Plaintiff also cites a section of deposition testimony provided by a co-
owner of the real estate company that sold the land to Plaintiff:

And the technical stuff, we may have made a mistake, but I think the

City .. . made representations to [Plaintiff] that we had the right to rely

on. And I think at the end of the day, everyone we’ve talked to at the

City, with the exception of Municipal Development who said we had

the right to build it there—everyone else in the discussion has agreed

they wanted to buy the property anyway.
Based on the site plan and deposition testimony, Plaintiff asks this Court to infer a
false representation by the City of an intent to reduce the City’s easement into the
twenty-four-foot easement.
30}. Weare unpersuaded that the testimony demonstrates a false representation by
the City regarding an extinguishment of, or modification to, the City’s easement,
even though the testimony contains allegations that the City intended to buy the
property at one point, and an assertion that people working for the City told the real

estate developer it had “the right to build it there.” The site plan does not reference

the City’s easement, does not contain a structure over the easement’s location, and

was not created by the City. Accordingly, we conclude the district court did not
abuse its discretion by denying Plaintiff's motion to reconsider.

II. The City’s Easement Has Not Been Vacated or Abandoned

31} While Plaintiff fails to acknowledge it, Plaintiff's argument necessarily entails
a vacation, in whole or in part, of the City’s easement. The City argues its easement
could not be “consolidated” into the twenty-four-foot easement without first
vacating the original ninety-foot easement.

{32} An agreement seeking to vacate or extinguish an easement “must be executed
with the same formalities as are generally required in making transfers of interest in
land.” Sedillo Title Guar., Inc. v. Wagner, 1969-NMSC-087, 4 18, 80 N.M. 429, 457
P.2d 361. “An easement cannot be extinguished by an unexecuted oral agreement.”
Id. J 16. The owner of an easement “may abandon the right to [the] easement[,]” by
“evince[ing] a clear and unequivocal intention to do so.” Sitterly v. Matthews, 2000-
NMCA-037, 9 31, 129 N.M. 134, 2 P.3d 871. Here, Plaintiff has introduced no
evidence of an extinguishment agreement or any other evidence of the City’s clear
and unequivocal intention to abandon the City’s easement. We conclude the City’s
easement was not vacated or abandoned.

IV. Plaintiff Has Failed to Show Damage or a Taking

33; Lastly, Plaintiff argues the district court failed to recognize a taking based on

the contractual duties of good faith and fair dealing owed by the City to Plaintiff

arising from the City’s ownership of the City’s easement. Relying on the
Restatement (Third) Property: Servitudes, Plaintiff argues the City violated its duty
to develop and design the drainage project in the least restrictive manner, including
exploring ways to place the drainage pipe on someone else’s land to ensure
Plaintiff's property was not rendered useless. As in the district court, Plaintiff asserts
this argument without authority supporting its claim that a beneficiary of an
easement imposes the duties of good faith and fair dealing. We assume no such
authority exists and do not consider this claim of error. In re Adoption of Doe, 1984-
NMSC-024, { 2.

CONCLUSION

34; In light of the City’s prima facie showing that the 1986 plat expressly granted
the City the ninety-foot public drainage easement across Plaintiffs property and that
the drainage pipe was built entirely within that easement, the burden shifted to
Plaintiff to show that a genuine issue of material fact existed or that the City was
otherwise not entitled to a judgment as a matter of law. See Romero, 2010-NMSC-
035, J 10. Because Plaintiff failed to meet its burden, the district court properly
granted summary judgment in favor of the City.

{35} We affirm the district court’s grant of summary judgment to the City and

denial of Plaintiff's motion for summary judgment.

1
{36} IT IS SO ORDERED.
2 3 4| WE CONCUR:
5
Ul tone Zaman
c _
6|
M. MONICA ZAMORA, Chief Judge
Julie Vargar
7 8 JULIE J. VARGAS, Judge
20
Jacqueline R. Medina JACQUELINE R. MEDINA, Judge

May 21, 2019- Rio Grande Credit Union v. City of Albuquerque, No. A-1-CA-35712

Texte intégral

OCR transcription for search; preserved printed pages are authoritative

Poursuivez vos recherches dans ChatGPT ou Claude