February 26, 2013 – Amethyst Land Co., Inc. v. James F. Terhune and Elizabeth R. Terhune, No. 31,165

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: February 26, 2013
NO. 31,165
AMETHYST LAND CO., INC.,
a New Mexico corporation,
Plaintiff-Appellant,
v.
JAMES F. TERHUNE and
ELIZABETH R. TERHUNE,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge
O’Friel and Levy, P.C.
Aimee S. Bevan
Santa Fe, NM
for Appellant
Clifford C. Gramer, Jr.
Albuquerque, NM
for Appellees

OPINION
VANZI, Judge.
{1} 	Appellant Amethyst Land Co., Inc. (Amethyst) and Appellees James F. Terhune
and Elizabeth R. Terhune (the Terhunes) are adjoining property owners in Santa Fe
County, New Mexico. 	For several years, access to the property now owned by
Amethyst was provided by a 40-foot, non-exclusive roadway and utility easement
located on the land now owned by the Terhunes. 	In 2001, when the Terhunes
purchased their property, a predecessor in interest to Amethyst and the Terhunes
signed an Extinguishment Agreement to terminate this easement. However, before
the Extinguishment Agreement was recorded in the county clerk’s office, the
predecessor sold its property to Desert Sunrise, LLC (Desert Sunrise), who was
unaware of the Extinguishment Agreement and who later sold the property to
Amethyst.
{2} 	In 2006, Amethyst filed suit against the Terhunes in district court, claiming that
the easement had not been terminated by the Extinguishment Agreement and that a
second easement on the Terhunes’ land also benefitted its property. The district court
entered judgment in favor of the Terhunes, and Amethyst appeals. We reverse the
district court’s ruling that the easement providing ingress/egress to Amethyst’s

2
property has been extinguished, and we affirm the district court’s ruling as to the
second easement.
BACKGROUND
{3} 	Amethyst holds title to a 22-acre parcel of land located in Santa Fe County,
New Mexico, which is referred to as “the 22-acre parcel” throughout this Opinion.
The Terhunes own a 5-acre parcel adjacent to Amethyst’s property, which is referred
to as “Tract 3.” The subject of the parties’ dispute are two easements that run across
Tract 3, which Amethyst claims benefit the 22-acre parcel. The first easement is a 40-
foot, non-exclusive roadway and utility easement (the 40-foot easement) providing
access to Tract 3 as well as across Tract 3 to the 22-acre parcel. Since at least 1979,
access to both properties has been provided by a road known as Coyote Mountain
Road located on the 40-foot easement from Old Santa Fe Trail. The second easement
at issue in this case is an express easement created in 1981 (the 1981 easement). We
set forth the relevant history of each of these easements followed by the procedural
history of this case.
{4} 	The 1981 easement was created by an express written conveyance that
described the 1981 easement as “an access-egress-underground utility easement along
and across certain real estate described as Tracts 2 and . . . 3.”
{5} 	The 40-foot easement was created by John W. Turner and Marion T. Turner in
1979 in the Turners’ warranty deed for sixty acres to Peter Pineda and Lewis Greer.

3
The warranty deed reserved the easement for the benefit of the 22-acre parcel, which
was also owned by the Turners at the time. In 1983, the Turners conveyed the 22-acre
parcel to Keith MacDuffee, including the 40-foot easement, by warranty deed. Also
in 1983, Ocia Peters, Alice Peters, and Caroline Schindler conveyed Tract 3 to Keith
MacDuffee via warranty deed. That warranty deed likewise included the existing 40-
foot easement providing access to Tract 3, as well as across Tract 3 to the 22-acre
parcel. Accordingly, in 1983, Keith MacDuffee owned both Tract 3 and the 22-acre
parcel.
{6} 	On or about February 16, 2001, Keith MacDuffee and his wife signed a
warranty deed conveying Tract 3 to the Terhunes. The warranty deed was signed on
February 16, 2001, notarized on February 29, 2001, and recorded on March 7, 2001.
The Terhunes’ warranty deed specifically stated that Tract 3 remained burdened by
the 40-foot easement. 	Thus, at the time it was acquired by the Terhunes, Tract 3
continued to be expressly burdened by the 40-foot easement that provided access to
the 22-acre parcel.
{7} 	The parties agree that the Terhunes required that the MacDuffees sign an
“Extinguishment Agreement” to extinguish access across Tract 3 to the 22-acre parcel
as a precondition to their purchase of Tract 3. The Terhunes’ attorney prepared the

1We acknowledge that the parties dispute whether the MacDuffees signed the
Extinguishment Agreement on March 5, 2000, the date that was acknowledged by a
notary on the document, or on March 5, 2001, which coincided with the closing and
sale of Tract 3 to the Terhunes. 	Although it appears that the year “2000” was a
mistake based on trial testimony, the date is not central to our holding.
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Extinguishment Agreement, which was signed by the MacDuffees on March 5, 2001,1
and 	by 	the 	Terhunes 	on 	April 	12, 	2001. 	The 	MacDuffees 	delivered 	the
Extinguishment Agreement to the Terhunes prior to the March 7, 2001 closing.
However, the Terhunes did not record the Extinguishment Agreement when they
recorded the warranty deed and boundary survey for Tract 3 on March 7, 2001.
{8} 	On March 20, 2001, the MacDuffees gave a special warranty deed for the 22-
acre parcel to Desert Sunrise, LLC (Desert Sunrise), which was recorded by Desert
Sunrise on April 25, 2001. Five days later, on April 30, 2001, the Terhunes recorded
the Extinguishment Agreement. On the date that the Extinguishment Agreement was
recorded, the MacDuffees no longer owned the 22-acre parcel, having already sold
that parcel to Desert Sunrise.
{9} 	Approximately two years after it acquired the 22-acre parcel, Desert Sunrise
sold the parcel to Amethyst by a quitclaim deed that was recorded on April 30, 2003.
Following the purchase of the property, Amethyst’s attorney performed and completed
a records search and subsequently prepared corrected deeds that contained the
information he located in the records concerning the easements. Amethyst’s attorney

5
then prepared corrected deeds for the transfer of the 22-acre parcel from the
MacDuffees to Desert Sunrise, as well as for the subsequent transfer from Desert
Sunrise to Amethyst. Thus, the MacDuffees signed a special warranty deed corrected
as to Desert Sunrise, which was recorded on September 8, 2003. Desert Sunrise next
signed a newly conforming and correcting quitclaim deed to Amethyst, which was
recorded on September 22, 2003. One of the documents Amethyst’s attorney found
in his record review, and subsequently referenced in both of the corrected deeds, was
the Extinguishment Agreement.
Procedural History
{10} 	In 2006, Amethyst filed a declaratory action against the Terhunes in district
court, claiming that the 40-foot easement and the 1981 easement both provided access
to and benefitted the 22-acre parcel. 	Amethyst specifically claimed that the
Extinguishment Agreement was of no force and effect. The district court ruled on
summary judgment that the 1981 easement does not benefit the 22-acre parcel. 	A
bench trial took place on all remaining issues shortly thereafter, and the district court
entered judgment in favor of the Terhunes on the 40-foot easement, determining that
the 40-foot easement had been extinguished across Tract 3. Specifically, the district
court found that the Extinguishment Agreement was valid and effective; that the
Extinguishment Agreement was in the public record at the time Amethyst acquired the
22-acre parcel; that Desert Sunrise and Amethyst, by their corrected deeds, acquiesced

6
to the vacation of the easement across Tract 3; and that Amethyst was equitably
estopped by its prior actions from denying the extinguishment of the 40-foot easement
on Tract 3. This appeal timely followed.
DISCUSSION
{11} 	Amethyst appeals the district court’s determination that (1) the 40-foot
easement had been extinguished across Tract 3 and (2) that the 1981 easement does
not benefit the 22-acre parcel. 	We address Amethyst’s specific arguments with
respect to each easement in turn.
A. 	The 40-Foot Easement
{12} 	Amethyst contends that the district court improperly entered judgment that the
40-foot easement had been extinguished across Tract 3. Because the relevant facts
concerning the 40-foot easement are undisputed and our review is of the district
court’s legal conclusions, we apply de novo review. See Johnson v. Yates Petroleum
Corp., 1999-NMCA-066, ¶ 3, 127 N.M. 355, 981 P.2d 288 (stating that when the
relevant facts are undisputed, the legal interpretation of those facts is subject to de
novo review on appeal); see also Ponder v. State Farm Mut. Auto. Ins. Co., 2000-
NMSC-033, ¶ 7, 129 N.M. 698, 12 P.3d 960 (“We review de novo the trial court’s
application of the law to the facts in arriving at its legal conclusions.”). However, to
the extent that the district court granted equitable relief in its decision regarding the

7
40-foot easement, we review under an abuse of discretion standard. See D’Antonio
v. Crowder, 2011-NMCA-017, ¶ 38, 149 N.M. 426, 249 P.3d 1249.
{13} 	In addressing Amethyst’s arguments regarding the 40-foot easement, we
undertake two interrelated inquiries. First, we examine whether the district court erred
in determining that the Extinguishment Agreement was valid and effective in
terminating the 40-foot easement. 	Second, we address whether the district court’s
application of equitable principles in this case was erroneous, and more specifically,
whether the court improperly determined that Desert Sunrise and Amethyst, by
executing corrected deeds that referenced the Extinguishment Agreement, had
“acquiesced” to the vacation of the 40-foot easement across Tract 3.
1. 	The Extinguishment Agreement
{14} 	Before addressing whether the Extinguishment Agreement resulted in the
termination of the 40-foot easement, we provide some pertinent details regarding its
terms and execution by the parties. 	The parties to the Extinguishment Agreement
were the MacDuffees, who were identified therein as the owners of the 22-acre parcel,
and the Terhunes, who were named as the owners of Tract 3. The Extinguishment
Agreement stated that these two parties “desire[d] to extinguish an easement that
burdens the Terhune [p]roperty and benefits the MacDuffee [p]roperty.” 	The
easement described in the Extinguishment Agreement was the 40-foot easement. It
further stated that “for good and valuable consideration, . . . [t]he parties hereby

8
extinguish th[e 40-foot] easement . . . on . . . Tract 3[,]” and that the Extinguishment
Agreement “shall run with the land and shall be binding upon and inure to the benefit
of the land, and any person or entity vested in title to the tracts of land described
herein.” 	Based on the foregoing language, we consider the Extinguishment
Agreement in this case to constitute a release, which is typically defined as a formal
agreement between parties to terminate an easement, and we thus apply the law
governing extinguishment of easements by release to this case. 	See Restatement
(Third) of Property: Servitudes § 7.1 cmt. a (2000) (defining “releases” as “formal
documents used to terminate servitudes by conveyance from the benefited to the
burdened parties”); id. § 7.3 (describing extinguishment of easements by release); see
also Sedillo Title Guar., Inc. v. Wagner, 80 N.M. 429, 432, 457 P.2d 361, 364 (1969)
(stating that “[a]n easement may be extinguished by an express written release of the
servient estate” and that “[i]n order to be effectual, a release must be executed with
the same formalities as are generally required in making transfers of interest in land”).
{15} 	The Extinguishment Agreement further provided that it was to be “effective
upon recordation in the records of Santa Fe County, New Mexico.” But even if no
such 	provision 	had 	been 	included, 	we 	would 	nonetheless 	conclude 	that 	the
Extinguishment Agreement, as a written instrument affecting the title to real estate,
was subject to the general recording provisions of NMSA 1978, Sections 14-9-1 to -3
(1886-87, as amended through 1991). See § 14-9-1 (providing that “[a]ll . . . writings

9
affecting the title to real estate shall be recorded in the office of the county clerk of the
county or counties in which the real estate affected thereby is situated”). Our Supreme
Court 	recently 	applied 	New 	Mexico’s 	recording 	provisions 	to 	extinguish 	an
unrecorded easement where a good faith purchaser acquired real estate without notice
of the easement. See City of Rio Rancho v. Amrep Sw., Inc., 2011-NMSC-037, ¶¶ 42-
43, 150 N.M. 428, 260 P.3d 414 (reasoning that the “benefits produced by subjecting
easements to extinguishment under the recording act will outweigh the social costs
because prospective purchasers will be able to rely on the property records”
(alteration, internal quotation marks, and citation omitted)). Although the case before
us involves a real estate transaction at the other end of the spectrum—that is, an
agreement attempting to terminate, rather than create, an easement—we see no reason
to exclude written releases from New Mexico’s recording provisions. We thus agree
with the Restatement (Third) of Property that releases “should be recorded to protect
the servient owner against the possibility that a subsequent bona fide purchaser of the
dominant estate will take free of the release.” 	Restatement (Third) of Property:
Servitudes § 7.3 cmt. a; see id. § 7.15 cmt. a (stating that in order “[t]o protect
themselves against revival of a servitude that has been modified or terminated, the
parties should record the release or modification agreement”).
{16} 	Turning now to the relevant facts concerning the execution and recording of the
Extinguishment Agreement, we observe that the Extinguishment Agreement was

10
signed by the MacDuffees on March 5, 2001, and nearly six weeks later by the
Terhunes on April 12, 2001. During this gap in execution, the MacDuffees sold the
22-acre parcel to Desert Sunrise, Amethyst’s predecessor, and Desert Sunrise recorded
its special warranty deed for the purchase of the 22-acre parcel on April 25, 2001.
Five days later, the Terhunes recorded the Extinguishment Agreement. Thus, on the
date that the Extinguishment Agreement was recorded, the MacDuffees were no
longer the owners of the 22-acre parcel. We must therefore determine whether the
Extinguishment Agreement was effective in terminating the 40-foot easement even
though it was recorded after Desert Sunrise purchased the 22-acre parcel and recorded
its deed.
{17} 	The district court ruled that since the Extinguishment Agreement was in the
public record when Amethyst acquired the 22-acre parcel from Desert Sunrise,
Amethyst took title to the 22-acre parcel “with notice of, and subject to, the
Extinguishment Agreement.” On appeal, Amethyst contends that the district court
erred in its application of New Mexico’s recording provisions, Sections 14-9-1 to -3,
to the facts of this case. Amethyst specifically argues that its predecessor in interest,
Desert Sunrise, was a bona fide purchaser who acquired the 22-acre parcel without
notice of the Extinguishment Agreement and, consequently, the Extinguishment
Agreement was ineffective in terminating the 40-foot easement, such that Desert
Sunrise essentially acquired the 22-acre parcel with the 40-foot easement still in place.

2Although this warranty deed was later “corrected” by Amethyst’s attorney, our
discussion here concerns the original special warranty deed that was recorded by
Desert Sunrise. We address the impact of the corrected deeds filed by Amethyst’s
attorney on our ultimate holding later on in this Opinion. See Op. ¶¶ 24-27.
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Having acquired the 22-acre parcel from Desert Sunrise, Amethyst contends that it,
too, acquired the 22-acre parcel with the benefit of the 40-foot easement. In addition,
Amethyst argues that the Extinguishment Agreement was ineffective in terminating
the 40-foot easement because the MacDuffees no longer owned the 22-acre parcel on
the date that the Extinguishment Agreement was recorded.
{18} 	We agree with Amethyst that the district court erred in its application of New
Mexico’s recording provisions to the facts of this case. “Section 14-9-3 provides that
unrecorded instruments asserting interests in real estate shall not affect the title or
rights of purchasers to real estate if the purchaser did not have knowledge of the
existence of such unrecorded instruments.” Amrep Sw., 2011-NMSC-037, ¶ 40. In
this case, Desert Sunrise did not have notice of the Extinguishment Agreement. The
original special warranty deed2 from the MacDuffees to Desert Sunrise did not
mention the 40-foot easement or the Extinguishment Agreement. And although the
deed corresponding to MacDuffee’s sale of Tract 3 to the Terhunes was already
recorded at the time Desert Sunrise acquired title to the 22-acre parcel, that deed stated
only that Tract 3 was still burdened by the 40-foot easement and did not mention the
Extinguishment Agreement. 	Thus, even if Desert Sunrise had come across the

12
Terhunes’ deed for Tract 3 during the course of its record search, the deed would not
have alerted Desert Sunrise to the existence of the Extinguishment Agreement. In
addition to the lack of record notice, the parties do not dispute that Desert Sunrise did
not have actual or inquiry notice of the Extinguishment Agreement at the time that it
acquired the 22-acre parcel.
{19} 	Accordingly, because Desert Sunrise was a bona fide purchaser without notice
of the Extinguishment Agreement, it acquired title to the 22-acre parcel free of the
Extinguishment Agreement, and the 22-acre parcel continued to be benefitted by the
40-foot easement. See Restatement (Third) of Property: Servitudes § 7.15 (providing
that “[a]n unrecorded modification or termination of a recorded servitude is not
effective against a subsequent taker of an interest in property burdened or benefited
by the servitude who is otherwise entitled to the protection of the recording act”).
Stated differently, the release in this case—the Extinguishment Agreement—was
extinguished under Section 14-9-3 by Desert Sunrise’s good faith purchaser status.
See § 14-9-3 (providing that an unrecorded instrument shall not affect the rights or
title to property of a purchaser without knowledge of the unrecorded instrument). We
find the following example from the Restatement particularly instructive:
Dawn purchased Lot 2 relying on the record title which showed that Lot
2 was benefited by a covenant requiring that any structure built on Lot
1 be located so as not to interfere with the view of the ocean from Lot 2.
Prior to Dawn’s purchase of Lot 2, the owners of Lots 1 and 2 had
entered into a written agreement by which the owner of Lot 2 released

13
the covenant. The release was not recorded until after the conveyance
of Lot 2 to Dawn, who had no notice. In the absence of other facts or
circumstances, Dawn takes free of the release; Lot 2 continues to be
entitled to the benefit of the covenant.
Restatement (Third) of Property: Servitudes, § 7.15 cmt. a, illus. 4 (emphasis added).
Although the Terhunes later recorded the Extinguishment Agreement, this recording
did not revive the Extinguishment Agreement, and it thus remained ineffective against
Desert Sunrise. Tract 3 remained burdened by the 40-foot easement during the time
period that Desert Sunrise owned the 22-acre parcel.
{20} 	The Terhunes resolutely ignore Desert Sunrise’s bona fide purchaser status in
their answer brief and instead focus on the fact that the Extinguishment Agreement
was recorded prior to Amethyst’s purchase of the 22-acre parcel from Desert Sunrise.
Relying on Angle v. Slayton, 102 N.M. 521, 697 P.2d 940 (1985), the Terhunes argue
that “even though the Extinguishment Agreement was recorded out-of-sequence with
[Desert Sunrise’s] record title to the 22-acre[ parcel],” Amethyst took title subsequent
to the recording and therefore had constructive notice of and was subject to the
Extinguishment Agreement. We are not persuaded by this argument because the facts
of this case bear little resemblance to those found in Angle. 	Angle involved an
individual who recorded her partial interest in an oil and gas lease several years after
having received it and after her grantor had divested itself of all title to the lease. Id.
at 522, 697 P.2d at 941. However, because she recorded her interest prior to a third

14
party’s acquisition of the lease by quitclaim deed, our Supreme Court concluded that
the third party had constructive notice of the recorded interest and could not seek the
protection of the recording laws. 	Id. at 523-24, 697 P.2d at 942-43. 	The Court
essentially applied the general rule that in order to “prevail over a subsequent
purchaser under [New Mexico’s notice recording] statute, an owner of an interest in
real property must record before the acquisition of a conflicting interest in the same
property by the subsequent purchaser.” Id. at 523, 697 P.2d at 942.
{21} 	Whereas Angle involved a timely recorded instrument, the Terhunes failed to
record the Extinguishment Agreement until after Desert Sunrise recorded its deed for
the 22-acre parcel. 	Angle is therefore distinguishable and does not support the
Terhunes’ argument that the Extinguishment Agreement, once recorded, continued to
be effective even though Desert Sunrise acquired the 22-acre parcel prior to the
recording and without any notice of the Extinguishment Agreement. To permit such
a result would circumvent the purpose of our state recording provisions, which is “to
protect [good faith] purchasers against loss” and protect their property rights. 	See
Amrep Sw., 2011-NMSC-037, ¶ 39 (alteration in original) (internal quotation marks
and citation omitted). We conclude that Amethyst acquired the property interests and
rights that Desert Sunrise had at that time in the 22-acre parcel, which included the
benefit of the 40-foot easement. 	That is, the Extinguishment Agreement was
ineffective against Amethyst, even though Amethyst’s attorney came across the

15
recorded Extinguishment Agreement during the title search prior to purchasing the 22-
acre parcel. See 14 Richard R. Powell, Powell on Real Property § 82.03[2][b], at 82-
76 & n.24 (Michael Allan Wolf ed., Matthew Bender 2008) (stating in the context of
a hypothetical example, that where a bona fide purchaser later resells his property to
a third party, “the bona fide purchaser status would descend to [the third party], even
if [the third party] knows of [the unrecorded or late-recorded conflicting] interest.
This is necessary, not to protect [the third party], but rather to protect [the bona fide
purchaser]. Without this protection, [the bona fide purchaser] might be secure in his
own possession, but he would be unable to convey it to anyone else. Such a result
would not adequately protect [the bona fide purchaser’s] property rights in the real
estate.”); see also Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 524 (Minn.
1990) (stating that a bona fide purchaser “may pass title free of [an] unrecorded
interest to a subsequent purchaser who otherwise would not qualify as a bona fide
purchaser under the recording act” because otherwise, a “bona fide purchaser would
be deprived of the full benefit of the purchase—the right to transfer good title to a
subsequent purchaser”); Hicks v. Loveless, 714 S.W.2d 30, 32 (Tex. Ct. App. 1986)
(stating that if a purchaser acquired a lot without notice of deed restrictions, “the
restrictions would not burden his title” and the purchaser could transfer the lot free of
the restrictions to a third party, even if the third party “had notice of the restrictions”).

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{22} 	Furthermore, Amethyst correctly points out that on the date the Extinguishment
Agreement was recorded, the MacDuffees no longer owned the 22-acre parcel and had
no authority to extinguish easements benefitting that property. We agree. In Pollock
v. Ramirez, 117 N.M. 187, 188, 870 P.2d 149, 150 (Ct. App. 1994), the owners of a
subdivision attempted to impose restrictive covenants on the subdivision. We held
that two attempts by the owners to file and record the restrictive covenants were
unsuccessful because the first filing did not comply with the acknowledgment
requirements of our recording act, id. at 189-90, 870 P.2d at 151-52, and the second
filing and recording occurred after the owners no longer owned the property, having
already conveyed it to a third party prior to recording. Id. at 190, 870 P.2d at 152. Of
specific relevance here, we held that the second attempt was invalid in imposing
restrictive covenants on the subdivision because the grantors could not place
restrictions on land they did not own. 	Id. 	As in Pollock, the Extinguishment
Agreement that was recorded by the Terhunes was invalid in terminating the 40-foot
easement because the MacDuffees no longer owned the 22-acre parcel on the
recording date and consequently had no legal authority to release an easement on
property that they no longer owned.
{23} 	Based on the foregoing, we conclude that the district court erred in determining
that the Extinguishment Agreement was valid and effective. However, the district
court went on to conclude that by filing corrected deeds that referred to the

17
Extinguishment Agreement, Amethyst was equitably estopped from denying the
extinguishment of the 40-foot easement. We therefore consider whether the district
court erred in determining that Desert Sunrise and Amethyst, by filing corrected
deeds, acquiesced to the extinguishment of the 40-foot easement.
2. 	The District Court’s Grant of Equitable Relief Based on the Corrected
Deeds
{24} 	The parties’ dispute in this case was unnecessarily complicated by the actions
of Amethyst’s attorney following Amethyst’s purchase of the 22-acre parcel. 	By
drafting and recording “corrected” deeds for the MacDuffee-Desert Sunrise and
Desert Sunrise-Amethyst transfers of the 22-acre parcel, Amethyst’s attorney muddied
what, otherwise, would have been a relatively straightforward application of the
recording provisions to the Extinguishment Agreement by the district court. 	Both
corrected deeds that were signed by all parties to the deeds and recorded by Amethyst
described the 22-acre parcel as including:
Together with a non-exclusive easement . . . (40) feet in width for
utilities and right of way . . . said easement . . . partially vacated in Book
1895, Pages 602-604, all in the records of the Clerk of Santa Fe County,
New Mexico.
(Emphasis added.) The italicized language above was the recorded Extinguishment
Agreement, which we have determined above was invalid and ineffective in
terminating the 40-foot easement. The district court, however, determined that the
reference to the Extinguishment Agreement in the corrected deeds rendered it

18
effective against Amethyst. The court granted equitable relief to the Terhunes, finding
that Amethyst had “acquiesced to the vacation of the easement” and was “equitably
estopped” from denying the extinguishment of the 40-foot easement.
{25} 	While we do not take lightly the actions of Amethyst’s attorney, we ultimately
conclude that the corrected deeds did not revive the Extinguishment Agreement or
otherwise terminate the 40-foot easement. We are not persuaded that the reference in
the corrected deeds to the Extinguishment Agreement was adequate to establish an
intent of the parties to the corrected deeds to revive the Extinguishment Agreement
and terminate the 40-foot easement. See, e.g., Breliant v. Preferred Equities Corp.,
918 P.2d 314, 319 (Nev. 1996) (“[T]he mere reference to an extinguished easement
in a deed is insufficient, as a matter of law, to revive the easement.”); Capital Candy
Co. v. Savard, 369 A.2d 1363, 1365 (Vt. 1976) (holding that a reference in a deed to
an earlier right-of-way that was extinguished by law did not constitute a re-creation
of the right-of-way). The use of the term “partially vacated” in the corrected deeds
further confirms that the parties to the corrected deeds did not believe that the 40-foot
easement was completely extinguished.
{26} 	Moreover, the district court’s application of equitable estoppel in this case was
erroneous and, therefore, constituted an abuse of discretion. 	See State v. Elinski,
1997-NMCA-117, 	¶ 	8, 	124 	N.M. 	261, 	948 	P.2d 	1209 	(providing 	that 	a
misapprehension of the law constitutes an abuse of discretion), overruled on other

19
grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. “Equitable estoppel
is the effect of the voluntary conduct of a party whereby he is absolutely precluded,
both at law and in equity, from asserting rights which might perhaps have otherwise
existed, either of property, of contract, or of remedy, as against another person, who
has in good faith relied upon such conduct, and has been led thereby to change his
position for the worse, and who on his part acquires some corresponding right, either
of property, of contract, or of remedy.” 	Gonzales v. Gonzales, 116 N.M. 838, 846,
867 P.2d 1220, 1228 (Ct. App. 1993) (internal quotation marks and citation omitted).
“[T]he following elements must be shown as to the party claiming estoppel: (1) [l]ack
of knowledge and of the means of knowledge of the truth as to the facts in question;
(2) reliance upon the conduct of the party estopped; and (3) action based thereon of
such a character as to change his position prejudicially.” 	Mem’l Med. Ctr., Inc. v.
Tatsch Constr., Inc., 2000-NMSC-030, ¶ 9, 129 N.M. 677, 12 P.3d 431 (internal
quotation marks and citation omitted). 	In this case, the district court entered no
findings or conclusions on any of these elements. Our review of the record also does
not show any indication that the Terhunes were deceived or misled by Amethyst’s
conduct or that they relied upon the language of the corrected deeds into believing that
the 40-foot easement had been extinguished. Accordingly, there was no factual basis
upon which the district court could apply equitable estoppel.

20
{27} 	We note that the Terhunes appear to concede that the district court’s application
of equitable estoppel was erroneous, and they argue instead that the court “considered
and applied estoppel by deed in this case.” The district court nowhere in its findings
and conclusions stated that it was applying estoppel by deed. Based on the foregoing,
we conclude that the district court erred in determining that the 40-foot easement had
been extinguished. We hold that the 40-foot easement continues to burden Tract 3.
B. 	The 1981 Easement
{28} 	Amethyst also appeals the district court’s ruling on summary judgment that the
1981 easement does not provide access to the 22-acre parcel. We review de novo an
order granting or denying summary judgment. 	See Romero v. Philip Morris Inc.,
2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. 	As noted earlier, the 1981
easement was created by an express written conveyance to the MacDuffees. Amethyst
contends on appeal that the language of the 1981 easement, as well as a subsequent
easement for encroachment granted by MacDuffee in 1987, indicate that the 1981
easement was intended to benefit the 22-acre parcel. In order to ascertain whether the
district court erred in its interpretation of these easements, we examine the language
of both of these express easements.
{29} 	“[A]n easement should be construed according to the intent of the parties.”
Amrep Sw., 2011-NMSC-037, ¶ 35 (internal quotation marks and citation omitted).
In discerning that intent, “we place heavy emphasis . . . on the written expressions of

21
the parties’ intent.” 	Id. ¶ 37 (omission in original) (internal quotation marks and
citation omitted). “[T]he language in a granting instrument should be interpreted to
accord with the meaning an ordinary purchaser would ascribe to it in the context of
the parcels of land involved.” Id. (internal quotation marks and citation omitted); see
Sanders v. Lutz, 109 N.M. 193, 194, 784 P.2d 12, 13 (1989) (providing that an
“easement should be construed according to its express and specific terms as a
manifestation of the intent of the parties”).
{30} 	Viewing the language of the 1981 easement in light of the foregoing principles,
we conclude that the district court correctly determined that this easement was not
meant to benefit the 22-acre parcel. The 1981 easement was described in the written
conveyance as “an access-egress-underground utility easement along and across
certain real estate described as Tracts 2 and . . . 3.” (Emphasis added.) The 22-acre
parcel was not mentioned either in the description of the easement or elsewhere in the
written instrument. More significantly, the written instrument included a limitation
on the estates that could be served by the 1981 easement—expressly requiring the
MacDuffees, as grantees, to “agree, covenant and contract with [the] grantors” that
they “will never allow the easement . . . to be extended so as to serve any other lot,
tract[,] or property except . . . Tract 1.” 	We view this language as an express
manifestation of the parties’ intent that the easement was not to serve any lots other

22
than Tracts 2 and 3 (on which the easement ran) and Tract 1. We therefore conclude
that the district court did not err in its interpretation of the terms of the 1981 easement.
{31} 	In addition, the easement for encroachment granted six years later by
MacDuffee does not support Amethyst’s position that the 1981 easement was intended
to provide access to and benefit the 22-acre parcel. 	Aspects of the easement for
encroachment undercut its validity. The written instrument creating the easement for
encroachment named MacDuffee as both the grantor and grantee of the easement.
And as Amethyst acknowledges in its briefing, the easement was granted at a time
when MacDuffee was the owner of both the 22-acre parcel as well as Tract 3. It is
well established that a landowner “cannot have an easement in his own land, as all the
uses of an easement are fully comprehended and embraced in his general right of
ownership.” Michelet v. Cole, 20 N.M. 357, 363, 149 P. 310, 311 (1915). As a result,
it does not appear that the easement for encroachment is valid and effective, and we
therefore do not consider this easement further. See Jon W. Bruce & James W. Ely,
Jr., The Law of Easements and Licenses in Land § 3.11, at 3-34 to -35 (2012)
(confirming that a landowner cannot obtain an easement in his/her own property and
that, generally, “[i]f a landowner attempts to create an express easement in favor of
[himself], the purported interest is a nullity”). 	We affirm the district court’s
determination that the 1981 easement does not benefit the 22-acre parcel.
CONCLUSION

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{32} 	Based on the foregoing, we reverse in part and affirm in part the judgment of
the district court. We reverse the district court’s ruling as to the 40-foot easement and
conclude that the 40-foot easement has not been extinguished and continues to benefit
the 22-acre parcel. 	We affirm the district court’s determination that the 1981
easement does not benefit the 22-acre parcel.
{33} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
RODERICK T. KENNEDY, Chief Judge
_________________________________
J. MILES HANISEE, Judge