October 20, 2022- Feliberto Ulibarri v. Jeffery Jesionowski, No. A-1-CA-38029

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
1
Opinion Number:
Filing Date: October 20, 2022
No. A-1-CA-38029
Court of Appeals of New Mexico Filed 10/20/22 8:23 AM
Mark Reynolds
FELIBERTO ULIBARRI, in his capacity as Trustee of the FELIBERTO AND DOMITILIA ULIBARRI REVOCABLE TRUST, and RONALD ULIBARRI,
Plaintiffs-Appellants/Cross-Appellees,
V.
JEFFERY JESIONOWSKI, YOLANDA M. CANO f/k/a YOLANDA M. MONTANO; KATHERINE LECKRONE; ELENA LAVICTOIRE; TONY ESQUIBEL; CATHERINE ESQUIBEL; CHRISTINA ESQUIBEL; and PAUL ESQUIBEL,
Defendants-Appellees,
and
SJS INVESTMENTS, LLC, a New Mexico limited liability company,
Defendant-Appellee/Cross-Appellant.
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY David K. Thomson, District Judge
2 3 4 5
6 7 8 9 10
11 12 13 14 15 16 17 18 19 20 21 22 23

Sommer, Udall, Hardwick & Jones, P.A.	1
Jack N. Hardwick	2
Santa Fe, NM	3
for Appellants	4
Moses, Dunn, Farmer & Tuthill, P.C.	5
Joseph L. Werntz	6
Albuquerque, NM	7
for Appellee SJS Investment, LLC	8

OPINION	1
BUSTAMANTE, Judge, retired, sitting by designation.	2
{1} 	This case presents vexing, but not unusual, issues arising from a dispute	3
between neighboring landowners in rural northern New Mexico. Plaintiffs	4
below (the Ulibarris) claimed that they had easements rights to cross	5
Defendants SJS Investments, LLC’s (SJS) property over four dirt trails	6
described as “Roads.” 1 The district court tried the matter in a bifurcated	7
proceeding. A jury found that the Ulibarris have prescriptive easements over	8
the four Roads. After the jury trial, the district court held a bench trial to	9
determine the scope of use allowable under the easements. The district court’s	10
final judgment adopted the jury verdict as its own regarding the existence of	11
prescriptive easements over the four Roads, described limits on the Ulibarris’	12
use of the Roads, and concluded that, in addition to the prescriptive rights	13
found by the jury, the Ulibarris have easements by estoppel over Roads 1 and	14
2, and easements by necessity over Roads 3 and 4.	15
{2} 	The Ulibarris appeal, challenging the limits placed on their use of Road	16
2. SJS cross-appeals, arguing: (1) there was insufficient evidence to support	17
finding a prescriptive easement as to Road 1; (2) the district court erred in	18
1See Appendix A, which generally depicts the location of the Roads and
the various properties relevant to this case and entered as Exhibit 1A.

2
refusing a jury instruction explaining implied permission in the context of	1
easement law; (3) the district court erred as a matter of law in finding an	2
easement by estoppel as to Roads 1 and 2; and (4) the district court erred in	3
finding prescriptive easements as to Roads 3 and 4. We affirm in part and	4
reverse in part.	5
BACKGROUND	6
Procedural Background	7
Parties and Property Ownership	8
{3} 	The Ulibarris include Feliberto and Domitilia Ulibarri, their sons	9
Ronald and Teodoro, and the Feliberto and Domitilia Revocable Trust (the	10
Trust). Between them in various combinations, the Ulibarris own the Ranch	11
headquarters and the Winter Pasture depicted on Appendix A. The Ranch	12
Headquarters—owned by the Ulibarri family since the “late 1800s”—is	13
currently owned by the Trust. The Trust also shares ownership of the southern	14
half of the Winter Pasture with Ronald and Teodoro. Feliberto and Domitilia	15
own the northern half of the Winter Pasture.	16
{4} 	SJS is a New Mexico limited liability company. SJS is the only one of	17
the defendants below actively participating in this appeal. SJS purchased the	18
land located between the Ranch Headquarters and the Winter Pasture (the	19

3
Roybal Property) in August 2013. SJS also entered into a real estate contract	1
to purchase the Leckrone-LaVictoire property in 2013.	2
{5} 	Yolanda Cano was named as a defendant below because Road 3 crosses	3
her property at its intersection with U.S. Highway 84. Cano is not participating	4
in this appeal, but it is necessary to include information about her property in	5
order to discuss the merits of the easement by necessity issue raised by SJS.	6
{6} 	The properties involved in this case were at one time owned by the	7
United States and passed into private ownership by patent at various times	8
starting in 1891. All of the patents were issued pursuant to the Homestead Act.	9
See Homestead Act of 1862, ch. 75, 12 Stat. 392 (1862) (codified at 43 U.S.C.	10
§ 177 (1926)) (allowing a homesteader to purchase up to 160 acres of	11
cultivated public lands for a minimal price). A summary of the alienation	12
history of the properties is attached to this opinion as Appendix B. Translated	13
to a narrative format, it reveals the following history.	14
{7} 	Private ownership of the northern half of the Winter Pasture originated	15
with a patent from the United States to Juan A. Ulibarri in 1939. Feliberto’s	16
mother—Juan’s 	widow—deeded 	the 	property 	to 	him 	in 	1958. 	Private	17
ownership of the southern half of the Winter Pasture originated with a patent	18
from the United States to Medardo Sanchez in 1962. Mr. Sanchez’s son	19
conveyed the property to Feliberto, Ronald, and Teodoro in 2006.	20

4
{8} 	Private ownership of the Roybal Property originated with three separate	1
patents issued by the United States: the first issued in 1907 to Epifanio Miera,	2
the second issued to Stan Roybal in 1960, and the third issued to Stan Roybal	3
in 1962.	4
{9} 	Private ownership of the Leckrone-LaVictoire property derived from a	5
patent issued by the United States in 1921. Private ownership of the Cano	6
property derived from a patent issued in 1891.	7
Litigation Proceedings	8
{10} 	The Ulibarris filed their complaint seeking declaratory and injunctive	9
relief, quiet title, and damages less than a year after SJS purchased the Roybal	10
and Leckrone-LaVictoire properties. The complaint alleged that since the	11
1930s, 	the 	Ulibarris 	have 	operated 	a 	cattle 	business 	on 	the 	Ranch	12
Headquarters, the Winter Pasture, and on public lands located to the east of	13
their deeded properties, using the Roads to move cattle and equipment as	14
needed to maintain and develop the business. The complaint asserted that their	15
use of the Roads was “adverse, open, notorious, continuous, and uninterrupted	16
. . . with the knowledge or imputed knowledge of the owners of the property,”	17
and that no one other than SJS and its managing member “ever interfered with,	18
or threatened to interfere with,” the Ulibarris’ use of the Roads. And the	19
complaint alleged that SJS had locked the gates on Roads 1, 2, and 4 and had	20

5
“threatened to prevent the Ulibarris from using Roads 1, 2, 3, and 4, in the	1
manner in which [they] have historically used those roads.” The complaint	2
asked for entry of a declaratory judgment that the Ulibarris have “easements	3
by prescription, estoppel, implication, and necessity to use” the Roads. The	4
complaint also requested injunctive relief, quiet title, and damages for trespass	5
and interference.	6
{11} 	Nine days after the complaint was filed, the Ulibarris filed a motion for	7
preliminary 	injunction 	prohibiting 	SJS 	and 	the 	other 	defendants 	from	8
interfering with the Ulibarris’ access to and use of Roads 3 and 4. The motion	9
was assertedly prompted by the placement of a lock on the gate leading to	10
Road 3 at its juncture with U.S. Highway 84. SJS and Cano filed their own	11
motion for preliminary injunction, asking the district court to order the	12
Ulibarris to stop cutting the locks on the gates to Roads 3 and 4. Following	13
limited discovery, the district court held an evidentiary hearing on the	14
Ulibarris’ motion and, in October 2014 entered an order granting their motion	15
for preliminary injunction and denying SJS’s and Cano’s motions. That order	16
appears to have remained in place through the end of the proceedings in the	17
district court.	18
{12} 	Litigation in the district court thereafter followed what can be described	19
as the normal course, with the exchange of discovery and battling motions for	20

6
summary disposition of various aspects of the case. The district court appears	1
to have denied all of the dispositive motions, and thus they do not merit	2
attention here. 2
3
{13} 	SJS’s motion requesting that the district court conduct a bench trial	4
before submitting any issues to a jury does merit attention because the	5
decision to conduct the jury trial first affected the course of the litigation	6
thereafter, including the district court’s final judgment. The case was first set	7
for trial by jury in a scheduling order entered in December 2014. That setting	8
was confirmed in an order entered in May 2015. In November 2015, SJS filed	9
its motion asking the district court to hold a bench trial first, arguing that the	10
Ulibarris’ claims for declaratory relief, injunctive relief, and quiet title were	11
all equitable claims with no right to a trial by jury. The district court denied	12
the motion, concluding that the underlying issue as to whether an easement	13
exists presents factual and legal questions most appropriately decided by a	14
jury in the first instance. See Blea v. Fields, 2005-NMSC-029, ¶ 5, 138 N.M.	15
348, 120 P.3d 430. The district court indicated that, once the jury ruled, it	16
would hold a bench trial “regarding relief relating” to the easements.	17
2 The parties do not raise any issues about the denial of their dispositive
motions. In addition, the record does not contain an order denying the
Ulibarris’ motion for summary judgment on their claim for prescriptive
easements and easement by estoppel on all four roads.

7
{14} 	The pleadings filed leading up to the jury trial reflect the district court’s	1
order. The pretrial order included mention of the Ulibarris’ claim to easements	2
by prescription, estoppel, and necessity in its claims of the parties section.	3
And, the contested issues of fact section alluded to factual questions relevant	4
to the same three varieties of easement. In addition, the parties’ trial	5
memorandums included their legal arguments as to each of the types of	6
easement. Further, the parties’ requested jury instructions included language	7
about each of the three types of easements.	8
{15} 	Notably, the instructions given to the jury contained no reference to the	9
claims for easement by estoppel or necessity. The two issues were nonetheless	10
actively litigated during the trial, given that they figured in SJS’s motion for	11
directed verdict at the close of the Ulibarris’ case. The district court denied	12
the motion with regard to easement by necessity as to Road 3 and took the	13
motion under advisement as to Road 4. The district court also took the motion	14
as to easement by estoppel under advisement, stating that it would rule on it	15
before the case was submitted to the jury. The record designated to this Court,	16
pursuant to Rule 12-211 NMRA, provides no indication why the issues of	17
easement by estoppel and necessity were not submitted to the jury, and the	18
parties do not make an issue of it. For purposes of this opinion, we assume	19

8
that the district court and the parties determined to postpone the decision on	1
these issues to the bench trial.	2
{16} 	The jury found in favor of the Ulibarris on their claims for prescriptive	3
easements on all four Roads. The district court entered its judgment on the	4
verdict, noting that it would “conduct further proceedings to determine the	5
scope, width, and location of the prescriptive easements, the equitable relief	6
to which [the Ulibarris] may be entitled, and [the Ulibarris’] claims to	7
establish easements by necessity and easements by estoppel, and any other	8
matters within the [c]ourt’s purview.”	9
{17} 	Following entry of the judgment on the jury verdict, SJS filed a motion	10
for a new trial pursuant to Rule 1-059 NMRA and a motion for judgment as a	11
matter of law pursuant to Rule 1-050(B) NMRA. The motion for new trial	12
primarily argued that there was no substantial evidence to support the jury’s	13
award. The district court denied the motion for a new trial with respect to	14
Roads 2, 3, and 4. It took the motion under advisement as to Road 1. The	15
motion for judgment as a matter of law primarily reiterated SJS’s prior legal	16
arguments concerning the required elements of easement by estoppel and	17
easement by necessity and why they could not be met in this case. The district	18
court granted the motion with regard to easements by estoppel as to all four	19

9
Roads, determining there to be no such easements, but took the issue of	1
easements by necessity under advisement again.	2
{18} 	The bench trial was conducted over three days in June 2016. The district	3
court entered an order containing its findings of fact and conclusions of law	4
in May 2018. The final judgment was entered in June 2018. In its final	5
judgment, the district court reversed itself, and—without explanation or	6
reference to its prior contrary order—held that there were easements by	7
estoppel over Roads 1 and 2. The final judgment also held that Roads 3 and 4	8
were subject to easements by necessity.	9
{19} 	The Ulibarris and SJS filed motions asking to amend or alter certain	10
aspects of the district court’s order and judgment. SJS’s motion asked the	11
district court to order the Ulibarris to have a survey performed of all four	12
Roads, give notice of the time they would conduct their cattle drives, and for	13
shared daisy chain access through the gate at the intersection of Road 3 and	14
Highway 84. The Ulibarris made the same arguments they make in this appeal	15
with regard to the scope of the Road 2 easement, as discussed below. The	16
district court denied most of the requests, but did order the Ulibarris to give	17
one-week notice to SJS prior to moving cattle on Road 2. It also ordered that	18
a daisy chain be placed on the gate to Road 3. This appeal followed.	19

10
General Factual Background	1
{20} 	There is little disagreement about many of the facts in this case. The	2
following narrative is drawn primarily from the district court’s unchallenged	3
findings of fact.	4
{21} 	The Roads consist of unsurveyed dirt paths in ranching country in a	5
rural area of Rio Arriba County. Road 1 is a cow trail for much of its length,	6
though it coincides in places with dirt roads on the Roybal Property. Road 2	7
is a dirt road that crosses the Roybal Property in a generally north/south	8
direction connecting the Ranch Headquarters with the northern half of the	9
Winter Pasture. Roads 3 and 4 are also dirt roads that connect the Winter	10
Pasture to Highway 84. Road 3 crosses the Cano and the Leckrone-LaVictoire	11
properties before entering the northern half of the Winter Pasture. Road 4	12
crosses the Leckrone-LaVictoire property before it reaches the southern half	13
of the Winter Pasture. Without access through the Cano and Leckrone-	14
LaVictoire 	properties, 	SJS’s 	lands 	and 	the 	Winter 	Pasture 	would 	be	15
landlocked.	16
{22} 	The Cano and Leckrone-LaVictoire properties have been fenced and	17
enclosed for as long as the Ulibarris can remember, and during the entire time	18
Ronald has used Roads 3 and 4 to access the Winter Pasture. The Roybal	19
Property has been fenced and enclosed for as long as Ronald can remember,	20

11
and during that entire time he has used Road 1 to drive the Ulibarris’ cattle to	1
and from the Carson National Forest—some forty years.	2
{23} 	The Ulibarris’ use of Roads 1, 3, and 4 is essentially undisputed. The	3
Ulibarris have used Road 1 to move their cattle to and from the Carson	4
National Forest each spring and fall for over forty years. They generally move	5
the cattle to the forest in late June, and back to the Ranch Headquarters in late	6
September. The Ulibarris have used Road 3 since 1939 to access the northern	7
half of the Winter Pasture. And they have used Roads 3 and 4 since 1999 to	8
access the southern half of the Winter Pasture. They have used Road 3 “as	9
needed and without restriction, for various purposes including caring for their	10
cattle, monitoring the property, moving farm machinery, bulldozers, tractors	11
and stock trailers, making improvements, maintaining fences, . . . hunting, and	12
wood cutting.” The Ulibarris have also maintained Road 3 over the years.	13
{24} 	The scope of the Ulibarris’ use of Road 2 over the years is less clear,	14
though the parties do agree that its original use starting in 1939 was for the	15
movement of cattle from the Ranch Headquarters to the Winter Pasture and	16
back, up to four times a year. We will provide more detail concerning the	17
parties’ disagreements in our substantive analysis.	18

12
{25} 	Similarly, we will provide more detail as to the evidence elicited	1
concerning Stan Roybal’s knowledge about the Ulibarris’ use of Road 1 while	2
he owned the property.	3
DISCUSSION	4
The Ulibarri Appeal	5
{26} 	The Ulibarris’ sole argument in their appeal is that the district court	6
improperly narrowed the scope of their prescriptive easement in Road 2. The	7
district court’s findings of fact describing what it termed the limited “historic	8
use” of Road 2 are spread between findings of fact numbers 68, 69, and 78.	9
68. 	The Ulibarris use of Road 2 is essential for the	10
operation 	of 	the 	Ulibarris’ 	cattle 	business 	because, 	if 	the	11
Ulibarris have to travel between the Ranch Headquarters and the	12
Winter Pasture using Roads 3 and 4 to transport cattle, it would	13
be cost prohibitive to travel, and transport cattle, back and forth	14
between the Ranch Headquarters and Winter Pasture. . . . This is	15
not 	the 	case 	for 	maintenance 	of 	the 	Southern 	Pasture.	16
Maintenance of the Southern Pasture, now done by disks, is not	17
a historic use of this easement.	18
69. 	In late 2013, after the Defendant SJS . . . purchased	19
the Roybal Property, SJS blocked the Ulibarris’ access on Road	20
2 by, among other things, directing Mike Lopez to place a rock	21
pile on Road 2. . . . This is not true regarding maintenance of the	22
land and pasture. The Ulibarris undoubtedly want a shorter route	23
to the Ranch Headquarters; the historic use of the land does not	24
account for such use. The historic use was to move the cattle.	25
[The Ulibarris], however, argue they have a right to use the	26
easement as a corridor between their properties to transport	27
hunters/invitees, maintenance equipment and other non-historic	28
uses. There is no evidence to support such an order.	29

13
. . . .	1
78. 	Road 2 is still too narrow for the Ulibarris to move	2
their disks on Road 2 to the Winter Pasture and may not be used	3
for that purpose.	4
{27} 	The district court as a consequence ruled that the Ulibarris could only	5
use Road 2 as “a cattle easement . . . to move cattle back and forth between	6
the Ranch Headquarters and Winter Pasture for one and one-half hours up to	7
four times per year.” The district court determined they were allowed to use	8
workers on horseback and ATVs as reasonably necessary to accomplish the	9
task. In addition, the Ulibarris could use Road 2 to “transport wood—twice in	10
the fall and winter.” But, if they “wish[ed] to hunt the Winter Pasture . . . they	11
must use the Road 3 easement.”	12
{28} 	The Ulibarris argue variously that (1) the district court’s ruling is not	13
supported by substantial evidence; (2) the district court improperly ignored	14
uncontradicted evidence about their use of Road 2; and (3) the district court’s	15
finding of fact number 69 is impossible to harmonize with findings of fact	16
numbers 65 and 66. They ask us both to reverse finding of fact number 69,	17
and modify the final judgment such that the scope of their easement matches	18
findings of fact numbers 65 and 66. The district court’s finding of fact number	19
65 stated, in pertinent part:	20
65. 	The Ulibarris use Road 2 to travel between the	21
Ranch Headquarters and Winter Pasture in connection with the	22

14
Ulibarris use and improvement of the Winter Pasture, and the	1
Ulibarris’ cattle business. The Ulibarris, and their invitees, travel	2
upon Road 2 on foot, on horseback, using ATV’s and using other	3
vehicles. The Ulibarris, and others who have the Ulibarris’	4
permission, use Road 2, as needed to access the Winter Pasture	5
for 	various 	purposes 	including 	making 	improvements,	6
maintaining fences, monitoring the property, and wood cutting.	7
These uses generally take place in the spring, summer, and fall,	8
depending upon the weather and amount of snow on the ground.	9
{29} 	Using finding of fact number 65 as a template for the scope of the	10
easement would result in a markedly broader and more frequent use of Road	11
2 than the district court contemplated.	12
{30} 	We review the district court’s findings of fact for substantial evidence,	13
viewing the evidence in the light most favorable to support the district court’s	14
findings, resolving all conflicts, and indulging all permissible inferences in	15
favor of the decision below. Jones v. Schoellkopf, 2005-NMCA-124, ¶ 8, 138	16
N.M. 477, 122 P.3d 844. While we are deferential to facts found by the district	17
court, we review conclusions of law de novo. Benavidez v. Benavidez, 2006-	18
NMCA-138, ¶ 21, 140 N.M. 637, 145 P.3d 117. In addition, the Ulibarris	19
remind us that “when a district court makes specific written findings of fact	20
that are supported by substantial evidence, those findings prevail over any	21
inconsistent conclusions of law or inconsistent judgment.” Id. (alterations,	22
internal quotation marks, and citation omitted); see Wilson v. Richardson	23
Ford Sales, Inc., 1981-NMSC-123, ¶ 7, 97 N.M. 226, 638 P.2d 1071 (“[W]hen	24

15
the facts are not in dispute and a reasonable inference can be drawn, an	1
appellate court may independently draw its own conclusions and overrule	2
contrary conclusions made by the [district] court.”).	3
{31} 	We start the analysis with the law describing how the scope of use of a	4
prescriptive easement is determined. We then measure the evidence in the	5
record against the district court’s findings of fact in light of the legal	6
guidelines. And, finally, we consider if there is any remedy we can provide	7
other than reversal and remand.	8
{32} 	The general rule is that the extent—or scope—of a prescriptive	9
easement is established by its historical usage. Maloney v. Wreyford, 1990-	10
NMCA-124, ¶ 15, 111 N.M. 221, 804 P.2d 412 (citing Twin Peaks Land Co.	11
v. Briggs, 181 Cal. Rptr. 25, 28 (Ct. App. 1982)). Determining historical usage	12
involves proof of the use made during the prescriptive period. Confederated	13
Salish & Kootenai Tribes of Flathead Rsrv. v. Vulles, 437 F.2d 177, 180 (9th	14
Cir. 1971). As the court in O’Dell v. Stegall, 703 S.E.2d 561, 591 (2010) put	15
it, “The entire history of the claimant’s usage of the way over which an	16
easement is sought must be evaluated to determine the character and scope of	17
the prescriptive easement.”	18
{33} 	Once set, however, variations in usage will predictably occur, and	19
questions can arise as to whether the variation is permissible. Courts generally	20

16
analyze “whether a specific use is within the pattern of the establishing uses”	1
by considering “(1) their similarity or dissimilarity of purpose; (2) their	2
respective physical attributes; and (3) the relative burden caused by them upon	3
the servient parcel.” 4 Michael Allan Wolf, Powell on Real Property § 34.13	4
at 34-154 to 34-156 (2020) (footnotes omitted).	5
{34} 	It is not clear what the district court meant when it emphasized that the	6
“historic use” of Road 2 was to move cattle back and forth. Perhaps it meant	7
to convey that cattle drives were the first, establishing use, and that other	8
uses—such 	as 	those 	listed 	in 	finding 	of 	fact 	number 	65—constituted	9
impermissible variations. We conclude that we do not need to parse the	10
question. Regardless of the district court’s intent, the basic issue remains:	11
What uses of Road 2 did the Ulibarris make during the prescriptive period?	12
We now turn to the evidence and the district court’s findings of fact.	13
{35} 	We first note that the Ulibarris did not request any findings of fact	14
concerning the applicable prescriptive period. And the district court did not	15
define a prescriptive period either. This gap is of no great moment for early	16
uses given the long span of continuous ranching activity on Road 2 described	17
by the Ulibarris—sixty-seven years for Feliberto and forty for Ronald. This	18
span easily covers the time frame when Road 2 passed into private ownership	19
and became potentially subject to prescriptive rights. See Herbertson v. Iliff,	20

17
1989-NMCA-027, ¶ 11, 108 N.M. 552, 775 P.2d 754 (reiterating that	1
prescriptive rights cannot be acquired against the United States). It is	2
potentially more problematic for uses that began or were conducted in later	3
years; in particular in the ten years preceding the purchase of the Roybal	4
Property in 2013. The record is murkier for that time frame, and the district	5
court’s findings of fact do not address what adverse uses—if any—may have	6
been conducted in that time frame. The dearth of findings and evidence	7
concerning the start date for some uses will be discussed in more detail when	8
we consider remedy options.	9
{36} 	There is no question that the Ulibarris have used Road 2 to move cattle	10
from the Ranch Headquarters to the Winter Pasture since at least the 1950s.	11
The basic pattern set is for two round-trip moves, one in the early spring and	12
another in the late fall. According to Ronald, Road 2 is a “two-track road”	13
usable by “small vehicles . . . Jeeps, [and] four-wheelers.” It is not used for	14
“equipment, heavy equipment, [or] pulling trailers.” Ronald also testified at	15
the jury trial that he and his father made “25 to 30” trips over Road 2 to do	16
range improvements on the Winter Pasture with tractors and other equipment.	17
He did not specify how long that type of use had gone on. Nor did he expand	18
on what kind of equipment was moved or what type of range improvements	19
were done. At the bench trial, Ronald reiterated that he had used Road 2 to	20

18
move machinery and tractors, but again did not describe in any detail what	1
kind of machinery he was referring to. Feliberto testified that he first bought	2
a “small tractor[]” for use in the cattle business in 1958 and that he has used	3
Road 2 to get the tractors from the Ranch Headquarters to the Winter Pasture.	4
{37} 	This testimony, which the district court did not directly reject, is	5
sufficient for us to conclude that the ruling limiting the use of Road 2 to	6
moving cattle and prohibiting all vehicular traffic not connected with that	7
activity is not supported by substantial evidence. The easement on Road 2	8
allows for greater use, but how much greater is not clear. For example, the	9
terms “equipment” and “machinery” can in ordinary usage include heavy	10
tractors, loaders, bulldozers, and farm equipment such as disks and plows.	11
But, other testimony indicates that such equipment has routinely been brought	12
into the Winter Pasture via Roads 3 and 4. Ronald testified that he would not	13
have been able to make improvements such as stock ponds, sagebrush control,	14
green planting, and fencing to the Winter Pasture without the use of Roads 3	15
and 4. In addition, it is not clear from the record when the improvements	16
requiring heavy equipment were undertaken. The exhibit introduced to prove	17
the contract with USDA covered the years 2013 to 2016. But, there is	18
testimony that the arrangement started ten or twelve years prior to the trials in	19
this case and that the Ulibarris used Roads 3 and 4 to perform the work.	20

19
{38} 	The Ulibarris ask us to resolve the matter by simply accepting the	1
district court’s finding of fact number 65 and amending the final judgment to	2
match. We decline to do so given the uncertainties as to the actual facts	3
evident in our partial exposition of the record above. It would be more	4
appropriate and efficient to remand to the district court for further proceedings	5
and argument. We contemplate that proceedings on remand will not include	6
new testimony or evidence. This matter has already been the subject of two	7
trials at which the parties had a reasonable opportunity to present all the	8
evidence they deemed appropriate to prove their cases.	9
{39} 	We acknowledge that this Court has on occasion corrected district court	10
conclusions of law and ordered entry of a new judgment or order as a matter	11
of law. But, we have done so only in instances where the facts were clear.	12
That is not the case here. In Wilson, 1981-NMSC-123, ¶ 7, for example, the	13
events leading to and giving rise to the worker’s injuries were undisputed.	14
Similarly, in Roybal v. Chavez Concrete & Excavation Contractors, Inc.,	15
1985-NMCA-020, ¶¶ 8-10, 102 N.M. 428, 696 P.2d 1021, the district court’s	16
accurate finding of fact as to the partial loss of use injury suffered by the	17
worker 	precluded 	it 	from 	ordering 	payment 	of 	100 	percent 	of 	the	18
compensation rate.	19

20
{40} 	There are two items of use that should not be subject to reconsideration	1
on remand. First, the district found that “Road 2 is still too narrow for the	2
Ulibarris to move their disks on Road 2 to the winter pasture and may not be	3
used for that purpose.” The district court conducted an on-site view of the four	4
Roads prior to the bench trial. It thus had first-hand knowledge about the	5
configuration of the Road. We cannot say that its finding of fact concerning	6
the use of Road 2 to transport the disks is not supported by substantial	7
evidence.	8
{41} 	Second, the district court specifically held that “[i]f the Ulibarris wish	9
to hunt the Winter Pasture (north and south tracts), they must use the Road 3	10
easement.” This ruling impliedly reflects a decision by the district court that	11
the Ulibarris had not proven an easement for hunting access using Road 2.	12
That finding is supported in the record. The evidence concerning hunting is	13
scant for the time period to 2010. Around 2000 Ronald became a licensed	14
outfitter and began using Roads 2, 3, and 4 for his hunting parties. However,	15
he “got” Stan Roybal’s hunting permits, and Mr. Roybal gave him permission	16
to use Road 2 and his property for hunting. Given that permission, the	17
Ulibarris could not prove an adverse use supporting a prescriptive easement.	18
See Algermissen v. Sutin, 2003-NMSC-001, ¶ 10, 133 N.M. 50, 61 P.3d 176	19

21
(holding that to establish a prescriptive easement there must be adverse use of	1
land).	2
SJS’s Cross-Appeal	3
{42} 	SJS’s cross-appeal addresses three issues. First, it asks us to reverse the	4
ruling that Road 1 is subject to a prescriptive easement. It bases its request on	5
a mixture of factual and legal arguments, which we will address separately.	6
Second, it argues that there is no evidence supporting the ruling that Roads 1	7
and 2 are subject to easements by estoppel. Third, it asserts that Roads 3 and	8
4 cannot be subject to prescriptive easements given the district court’s ruling	9
that the Ulibarris have an easement by necessity over them.	10
The Record Supports the Jury’s and the District Court’s Decisions That	11
the Ulibarris Have a Prescriptive Easement as to Road 1	12
{43} 	In Algermissen, our Supreme Court clarified the law of prescriptive	13
easements for New Mexico, consolidating the “elements into a more succinct	14
and less redundant test.” Id. Per Algermissen, “an easement by prescription is	15
created by an adverse use of land, that is open or notorious, and continued	16
without effective interruption for the prescriptive period (of ten years).” Id.	17
Algermissen 	expressly 	relied 	on 	the 	Restatement 	(Third) 	of 	Property:	18
Servitudes Sections 2.16, 2.17 (2000) as its model for this test. Algermissen,	19
2003-NMSC-001, ¶ 10. SJS only addresses the “adverse” and “open or	20
notorious” prongs of the test in its cross-appeal. See id.	21

22
{44} 	The first element is adverse use. Id. ¶ 11. “An adverse use is a use made	1
without the consent of the landowner. It is also the type of use that would	2
normally give rise to a cause of action in tort.” Id. The observation in	3
Algermissen that adversity can be hard to prove due to the passage of time,	4
id., strikes a chord here in that the original owners of the servient estates—in	5
particular 	Stan 	Roybal—were 	no 	longer 	living 	when 	the 	litigation	6
commenced. As noted in Algermissen, because of the potential for problems	7
related to proof, the cases have developed a series of presumptions as starting	8
points for evaluation of the evidence presented. Id. For reasons unexplained	9
in the record, the presumptions described in Algermissen played no role in the	10
trials below. There is no mention of the presumptions in the jury instructions	11
and no mention of them in the rulings issued by the district court following	12
the bench trial.	13
Adverse Use Analysis	14
{45} 	SJS advances three separate arguments concerning adverse use. First, it	15
asserts that the use of Road 1 during the time the Bureau of Land Management	16
(BLM) owned the land and before Mr. Roybal purchased the properties was	17
necessarily permissive. As such, it argues, the permissive nature of the use	18
continued absent an express assertion of adversity by the Ulibarris to Mr.	19
Roybal. See id.; Hester v. Sawyers, 1937-NMSC-056, ¶ 25, 41 N.M. 497, 71	20

23
P.2d 646. Second, it argues that the neighborhood accommodation exception	1
to the presumption of adversity applies. SJS appears to ground this argument	2
in part on the testimony adduced concerning community attitudes about	3
crossing each other’s properties, and as a matter of law based on the fact the	4
lands are large and sparsely populated. We address both to the extent we are	5
able to parse SJS’s briefing. And, third, it asserts that the evidence submitted	6
at the trials was not sufficient to support the finding of adversity under the	7
standard of clear and convincing evidence.	8
BLM Permissive Use Argument	9
{46} 	SJS’s argument that the Ulibarris’ use of Road 1 was permissive while	10
the property was owned by the BLM is problematic. SJS initially supports the	11
argument with a citation to Herbertson, 1989-NMCA-027, ¶ 11. As the	12
Ulibarris point out, however, 	Herbertson 	only held that a prescriptive	13
easement cannot be acquired on land owned by the United States. Id. That	14
does not necessarily mean that the use of federal lands is as a result	15
permissive. In its reply brief, SJS relies on Southern Utah Wilderness Alliance	16
v. Bureau of Land Management, 425 F.3d 735, 741 (10th Cir. 2005), quoting	17
the following language: “If someone wished to traverse unappropriated public	18
land, he could do so, with or without a[] . . . right of way, and given the federal	19
government’s pre-1976 policy of opening and developing the public lands,	20

24
federal land managers generally had no reason to question use of the land for	1
travel.” This language is taken from the introductory remarks to a case, id. at	2
740, dealing with the problems flowing from the repeal of a statute—	3
commonly referred to as “R.S. 2477”—passed in 1866 to encourage the	4
establishment of public roads across the western United States. Act of July 26,	5
1866, ch. 262, § 8, 14 Stat. 251 (“And be it further enacted, That the right of	6
way for the construction of highways over public lands, not reserved for	7
public uses, is hereby granted.”). The statute was repealed by Congress in	8
1976. Federal Land Policy Management Act of 1976 (FLPMA), Pub. L. No.	9
94-579 § 706(a), 90 Stat. 2743, 2793 (1976). The FLPMA grandfathered all	10
roads established under R.S. 2477. Pub. L. No. 94-579 § 509(a), 90 Stat. 2743,	11
2781; see also 43 U.S.C. § 1769. This reservation of rights created questions	12
as to the status and scope of use of such roads, and that was the issue discussed	13
in Southern Utah Wilderness Alliance, 425 F.3d at 740-42. The case simply	14
does not address the issue before us, and is of no aid to our analysis.	15
{47} 	Further, there is no basis in the record before us to conclude whether	16
Road 1 would or could be considered a “highway” within the meaning of R.S.	17
2477. And there is no basis in the record to even speculate as to whether the	18
Roybal Properties were “reserved for public purposes” at the time the	19
Ulibarris began using Road 1. See R.S. 2477. Thus, there is no basis to	20

25
conclude that the statute provided permission to the Ulibarris to use Road 1 to	1
move cattle to their Forest Service allotment.	2
{48} 	Even if R.S. 2477 did apply, it likely would not help SJS, because the	3
grandfather clause in the FLPMA quoted above could give the Ulibarris a	4
statutory right to continue using Road 1 after the land passed into private	5
hands. In addition, if R.S. 2477 applied to Road 1, it would also apply to the	6
analysis of Road 2, yet SJS concedes that the Ulibarris have a prescriptive	7
easement in Road 2.	8
{49} 	In its reply brief, SJS also cites current BLM regulation, 43 C.F.R.	9
§ 2804.29 (2022), that describes the kind of activity allowed on public lands	10
without a BLM grant as an applicant for a right-of-way waits for approval.	11
The regulation provides, “You may conduct casual activities on the BLM	12
lands covered by the application, as may any other member of the public.	13
BLM does not require a grant for casual use on BLM lands.” 43 C.F.R.	14
§ 2804.29(a). Citing 43 C.F.R. § 2801.5(b) (2022), SJS argues that driving	15
cattle would be casual use because it would create a “negligible disturbance	16
to the BLM land.” SJS overlooks 43 C.F.R. § 2801.9(a)(6) (2022), which	17
requires a BLM grant for “livestock driveways.” This requirement belies	18
SJS’s argument entirely.	19

26
{50} 	Given that it is not possible to say that the Ulibarris’ use of Road 1 was	1
permissive before it passed into private hands, there is no basis to apply the	2
presumption of continuing permission.	3
Neighborhood Accommodation Exception Argument	4
{51} 	As 	we 	noted 	above, 	there 	appears 	to 	be 	two 	aspects 	to 	SJS’s	5
neighborhood 	accommodation 	argument. 	We 	address 	the 	purely 	legal	6
assertion first. SJS argues that a presumption of permission should apply here	7
because the lands here were sparsely populated, open and unenclosed	8
privately owned land. Hester, 1937-NMSC-056, ¶ 22. The difficulty for this	9
argument lies in the undisputed fact that the Roybal Property has been fenced	10
and gated for as long as Ronald has used Road 1 to move cattle—some forty	11
years. “New Mexico law is clear that the neighbor accommodation exception	12
set forth in Hester is inapplicable to fenced land.” Scholes v. Post Off. Canyon	13
Ranch, Inc., 1992-NMCA-078, ¶ 9, 115 N.M. 410, 852 P.2d 683; see Vigil v.	14
Baltzley, 1968-NMSC-191, ¶ 7, 79 N.M. 659, 448 P.2d 171 (“The property	15
which is traversed . . . although in high, rough country, is not open and	16
unenclosed but, to the contrary is and has been enclosed by a fence during the	17
entire period during which the prescriptive right is claimed to have accrued,	18
and accordingly the rule to be applied is the general one wherein a conclusive	19
grant is presumed, and not the exception where the use is presumptively	20

27
permissive.”). Thus, SJS is limited to a substantial evidence argument, and we	1
now turn to the testimony adduced at the two trials.	2
Substantial Evidence Analysis	3
{52} 	When analyzing a challenge to the sufficiency of the evidence at the	4
trial level, “[t]he appellate court must review the evidence in the light most	5
favorable to the prevailing party, indulging all reasonable inferences in	6
support of the verdict and disregarding all inferences or evidence to the	7
contrary.” State ex rel. Dep’t of Hum. Servs. v. Williams, 1989-NMCA-008,	8
¶ 7, 108 N.M. 332, 772 P.2d 366. “Even in a case involving issues that must	9
be established by clear and convincing evidence, it is for the finder of fact,	10
and not for reviewing courts, to weigh conflicting evidence and decide where	11
the truth lies.” Id. “The question is not whether substantial evidence exists to	12
support the opposite result, but rather whether such evidence supports the	13
result reached.” N.M. Tax’n & Revenue Dep’t v. Casias Trucking, 2014-	14
NMCA-099, ¶ 20, 336 P.3d 436 (internal quotation marks and citation	15
omitted). “We will not reweigh the evidence nor substitute our judgment for	16
that of the fact[-]finder.” Id. (alteration, internal quotation marks, and citation	17
omitted).	18
{53} 	The jury answered, “Yes” to the following special interrogatory with	19
regard to Road 1: “Was the [Ulibarris’] use of Road 1 adverse? (An adverse	20

28
use is a use made without the consent of the landowner. It is also the type of	1
use that would normally give rise to a trespass claim).” In addition, the jury	2
answered, “Yes” to the following question on the verdict form: “Have [the	3
Ulibarris] 	proven 	by 	clear 	and 	convincing 	evidence 	that 	they 	have 	a	4
prescriptive easement over Road 1?” SJS does not argue that the jury	5
instruction defining clear and convincing evidence was unclear or wrong. The	6
normal assumption is that the jury followed the instructions given to it by the	7
district court. Norwest Bank N.M., N.A. v. Chrysler Corp., 1999-NMCA-070,	8
¶ 40, 127 N.M. 397, 981 P.2d 1215.	9
{54} 	The 	district 	court 	adopted 	the 	jury’s 	answers 	to 	the 	special	10
interrogatories and the jury verdict as its own finding of fact regarding the	11
existence of a prescriptive easement over the four Roads. In addition, the	12
district court entered the following findings of fact specifically addressing	13
Road 1:	14
47. 	Feliberto never asked anyone for permission to use	15
Road 1 to drive cattle between the Ulibarri Ranch Headquarters	16
and the Carson National Forest, and no one ever gave permission	17
to Feliberto to use Road 1. At all times, Feliberto understood that	18
he had a right to use Road 1, and did not need permission from	19
anyone. Feliberto often saw Stan Roybal when Feliberto was	20
using Road 1, and Stan Roybal was well aware of the Ulibarris’	21
use of Road 1.	22
48. 	Ronald never asked anyone for permission to use	23
Road 1 to drive cattle between the Ulibarri Ranch Headquarters	24
and the Carson National Forest, and no one ever gave permission	25

29
to Ronald to use Road 1. At all times, Ronald understood that he	1
had a right to use Road 1, and did not need permission from	2
anyone. Ronald often saw Stan Roybal when Ronald was using	3
Road 1, and Stan Roybal was well aware of the Ulibarris’ use of	4
Road 1.	5
{55} 	The district court’s findings track testimony provided by Feliberto and	6
Ronald at the jury trial. The essence of the testimony from Feliberto and	7
Ronald was that they simply assumed—given the Ulibarris’ sixty-plus years	8
of using the Roads, including Road 1—that they had established the “right”	9
to continue to use them no matter what the various landowners thought. No	10
evidence was introduced that Mr. Roybal ever gave the Ulibarris permission	11
to use Road 1 or Road 2. The notion of permission was apparently simply not	12
a topic of discussion between them.	13
{56} 	Such evidence has been held to be substantial enough to support a	14
finding of a prescriptive easement in at least two New Mexico cases. For	15
example, in Brannock v. Lotus Fund, 2016-NMCA-030, ¶¶ 28-29, 367 P.3d	16
888, the plaintiffs testified that they never sought permission to use the road	17
because they thought that permission was not required. The owner of the	18
servient estate was available to testify in Bannock, unlike in this case. See id.	19
¶ 29. The owner’s testimony indicated that he “was not concerned with people	20
trespassing on [his] property.” Id. (internal quotation marks omitted). In	21
addition, he never spoke with the plaintiffs concerning their use of the road	22

30
until the first lawsuit was filed. Id. And in Silverstein v. Byers, 1992-NMCA-	1
123, ¶¶ 2-5, 14-17, 114 N.M. 745, 845 P.2d 839, this Court found substantial	2
evidence of adversity based on a long term use of the road even though the	3
parties 	were 	neighborly 	and 	provided 	keys 	to 	the 	locks 	the 	servient	4
landowners had placed on the gates to their property. See also Kaufer v.	5
Beccaris, 584 A.2d 357, 359 (Pa. Super. Ct. 1991) (noting and holding that	6
“absence of objection by the owner to use of the land is not equivalent to a	7
grant of permission by him such as will preclude the acquisition of title to an	8
easement by prescriptive use” (alteration, internal quotation marks, and	9
citation omitted)).	10
{57} 	SJS relies on other testimony in the record concerning the local	11
landowners’ practice of allowing neighbors to use their lands as passageways	12
for herding cattle from one area to another as well as the cooperative	13
relationship between the Ulibarris and Mr. Roybal. This evidence tends to be	14
contrary to the jury’s finding of adversity. But, it cannot be said that it is	15
determinative of the issue. Taken as a whole the evidence provides conflicting	16
views of the parties’ actions, understandings, and motivations. None of it	17
requires a ruling in favor of either party as a matter of law. SJS asks us to	18
reweigh the evidence and decide that one side should win. But, the jury found	19

31
adversity under appropriate instructions after having reviewed all of the	1
testimony. We will not substitute our judgment for that of the fact-finder.	2
{58} 	The same analysis applies to SJS’s argument that the Ulibarris failed to	3
prove that their use of Road 1 was open and notorious. There was evidence	4
that they had used Road 1 for over sixty years to move their cattle to the	5
national forest. There was evidence that the Ulibarris met and spoke with Mr.	6
Roybal when they were using Road 1 for the cattle drive. The jury could	7
reasonably infer that Mr. Roybal—as the owner of a substantial piece of	8
property he fenced—would know of his neighbors’ cattle driving routine over	9
his property. The fact that the drive on Road 1 occurred only twice a year is a	10
factor for the jury to weigh in deciding what level of knowledge was	11
reasonably attributable to Mr. Roybal. The jury decided the facts were	12
sufficient to find that the use was open and notorious within the meaning of	13
the law of easements. We have no basis to disagree.	14
SJS’s Requested Jury Instruction Number 9	15
{59} 	SJS requested the following jury instruction:	16
With 	regard 	to 	[the Ulibarris’] claim of 	prescriptive	17
easement, you may presume the use of the easement was adverse	18
only if [the Ulibarris] have proven all of the other elements of	19
this claim and if Defendants have not demonstrated they gave	20
[the 	Ulibarris] 	express 	or 	implied 	permission 	to 	use 	the	21
easements.	22

32
Implied permission to use the easements exists if [SJS]	1
have demonstrated the use of the road began with permission of	2
the owner of the property and that use did not change until after	3
SJS . . . bought the property. A use remains permissive until a	4
distinct and positive assertion is made to the landowner by words	5
or acts that the user of the road claims a right to use the road.	6
The burden of establishing the fact of adversity rests upon	7
the person claiming the easement.	8
The district court did not submit the instruction to the jury. SJS argues that an	9
instruction describing implied permission “was critical because Stan Roybal	10
was deceased, and therefore, SJS could not call a witness to testify about	11
whether the Ulibarris had express permission to use Road 1 once the BLM	12
conveyed the property to Stan Roybal.”	13
{60} 	We hesitate to substantively address this issue given what appears to be	14
an absence of preservation in the trial court. See Hinger v. Parker & Parsley	15
Petroleum Co., 1995-NMCA-069, ¶ 32, 120 N.M. 430, 902 P.2d 1033 (“No	16
New Mexico civil case has permitted a litigant to fashion legal objections to	17
jury instructions for the first time on appeal.”). The record before us reflects	18
only one discussion between the district court and counsel addressing jury	19
instructions. That discussion was held on February 26, 2016, a few days	20
before the jury trial began. The conversation first reflects the parties’	21
disagreement about whether SJS’s requested instruction number 9 accurately	22
reflected Algermissen and its discussion about the use of presumptions in	23

33
these types of cases. The discussion then reflects that counsel were not looking	1
at the same instruction form. At that point the district court begins to ask for	2
more authority, and the colloquy turned to how they will be provided to it.	3
The entire discussion concerning instructions reflected preliminary, pretrial	4
concerns. The district court came to no conclusions and made no rulings on	5
any of the instructions.	6
{61} 	The record thereafter does not include any discussions concerning the	7
jury instructions. If there was a session settling jury instructions before the	8
case was submitted to the jury, we are not privy to it. Thus we do not know	9
why the district court settled on the instructions submitted to the jury, and we	10
do not know the objections, if any, made by the parties to the instructions	11
given. In short, we do not have the basic information that provides the usual	12
grist of jury instruction appeals. See Sandoval v. Baker Hughes Oilfield	13
Operations, Inc., 2009-NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791 (“It is	14
the duty of the appellant to provide a record adequate to review the issues on	15
appeal.”). To preserve error in this area, it is necessary to object or tender a	16
correct jury instruction. Andrus v. Gas Co. of N.M., 1990-NMCA-049, ¶ 26,	17
110 N.M. 593, 798 P.2d 194.	18

34
{62} 	We note that the Ulibarris do not raise lack of preservation in their	1
briefing. Raising the matter on our own, we conclude that the issue was not	2
properly preserved, and we will not address it.	3
The Location of Road 1	4
{63} 	SJS argues that the Ulibarris did not sufficiently prove a definite	5
location for Road 1. SJS relies on certain testimony from Ronald conceding	6
that cattle tend to wander as they are driven from one place to another. SJS	7
also points to the testimony of a land surveyor who testified that Road 1 has	8
no fixed and obvious landmarks and is not capable of being surveyed. As	9
noted by the Ulibarris, this argument ignores the testimony provided by	10
Ronald using aerial photography and photographs taken on the ground as to	11
the location of Road 1 as used over the forty years prior to the trial.	12
{64} 	The testimony provided by Ronald was apparently sufficient to allow	13
the district court to fashion the description of the route Road 1 takes found in	14
its finding of fact number 30. SJS does not argue that the description is not	15
accurate, or that it cannot be followed on the ground. Nor does SJS argue or	16
cite to any authority that an easement such as Road 1 must be surveyable to	17
be granted or used. We agree with the district court’s citation to Brown &	18
Brown of MT, Inc. v. Raty, 2012 MT 264, ¶¶ 37-39, 367 Mont. 67, 289 P.3d	19
156, for its apt description of a “cattle easement.”	20

35
{65} 	We conclude there was sufficient evidence to support the district	1
court’s description of the location of Road 1 and its use.	2
The District Court Erred in Concluding That Roads 1 and 2 Were	3
Subject to an Easement by Estoppel	4
{66} 	SJS argues that the district court erred in granting an easement by	5
estoppel as to Roads 1 and 2 because there was no evidentiary support for the	6
ruling and because as a conceptual/legal matter the ruling is incompatible with	7
the district court’s grant of a prescriptive easement. We agree.	8
{67} 	As both parties note, New Mexico courts have yet to apply and define	9
the contours of easement by estoppel. In an unreported opinion, this court	10
applied the concept as described in the Restatement (Third) of Property:	11
Servitudes Section 2.10 (2000). See Jaramillo v. Romero, No. 32,298, mem.	12
op. ¶ 8 (N.M. Ct. App. Sept. 23, 2013) (nonprecedential). This case presents	13
an appropriate opportunity to adopt and apply the Restatement definition:	14
If injustice can be avoided only by establishment of a servitude,	15
the owner or occupier of land is estopped to deny the existence	16
of a servitude burdening the land when:	17
(1) 	the owner or occupier permitted another to use that	18
land under circumstances in which it was reasonable to	19
foresee that the user would substantially change position	20
believing that the permission would not be revoked, and	21
the user did substantially change position in reasonable	22
reliance on that belief; or	23
(2) 	the owner or occupier represented that the land was	24
burdened by a servitude under circumstances in which it	25

36
was reasonable to foresee that the person to whom the	1
representation 	was 	made 	would 	substantially 	change	2
position on the basis of that representation, and the person	3
did substantially change position in reasonable reliance on	4
that representation.	5
Restatement (Third) of Prop.: Servitudes § 2.10. No one asserts that there was	6
an oral promise, grant, or representation by Mr. Roybal that the Ulibarris	7
relied on. Thus, Subsection 2 of the Restatement (Third) of Property:	8
Servitudes Section 2.10 of the definition does not apply.	9
{68} 	The overarching issue in all cases involving easements by estoppel is	10
whether an “injustice can be avoided only by establishment of a servitude.”	11
Restatement (Third) of Prop.: Servitudes § 2.10. These cases present equitable	12
issues requiring courts to balance the reasonable expectations and needs of	13
both parties and consider appropriate alternatives to imposing a servitude if	14
possible. Restatement (Third) of Prop.: Servitudes § 2.10. cmt. c, d. As a	15
practical matter, there is no need in this case to impose an easement by	16
estoppel because the district court found that a prescriptive easement exists.	17
As such, the Ulibarris’ right to access the Roads is protected and there is no	18
injustice to be avoided.	19
{69} 	The factual issues in cases covered by Subsection 1 of Restatement	20
(Third) of Property: Servitudes Section 2.10 are whether the owner of the	21
property “permitted” another to use the land when it was foreseeable that the	22

37
other would substantially change her position reasonably relying on the idea	1
that permission would not be withdrawn. This case centers on whether Mr.	2
Roybal gave the Ulibarris permission to use Roads 1 and 2 as contemplated	3
by the Restatement (Third) of Property: Servitudes Section 2.10.	4
{70} 	We note that the district court did not enter a finding of fact that Mr.	5
Roybal gave permission in any sense to the Ulibarris. Rather, the district	6
court’s findings are to the contrary. Finding of fact numbers 47 and 72 state	7
that Feliberto never asked for permission to use Roads 1 and 2 and no one	8
ever gave him permission to use them. The district court entered identical	9
findings relating to Ronald’s use of the Roads.	10
{71} 	The district court also found that Feliberto and Ronald relied on their	11
belief that their right to use Roads 1 and 2 could not be revoked as they	12
developed their cattle business. These findings do not refer to reliance by the	13
Ulibarris on any act or forbearance on the part of Mr. Roybal. Rather they	14
refer to the Ulibarris’ belief that they had the right to use Roads. But	15
“permission” of some sort emanating from the landowner must be present for	16
reliance to be reasonable. There is simply no evidence of any express or	17
implied permission from Mr. Roybal.	18
{72} 	Further, as a conceptual matter, we agree with SJS’s argument that to	19
find any type of permission would negate the jury’s finding of prescriptive	20

38
easements in the Roads. To find an “adverse use,” the jury had to find that the	1
Ulibarris’ use of the roads was “made without the consent of the landowner,”	2
and that the use “would normally give rise to a trespass claim.” It is difficult	3
to conceive how a use without consent that constitutes a trespass can be	4
deemed to include or allow any aspect of “permission” as used in Restatement	5
(Third) of Property: Servitudes Section 2.10. We agree with SJS with	6
easements by prescriptions and easements by estoppel are mutually exclusive.	7
{73} 	Citing illustration 5 to Restatement (Third) of Property: Servitudes	8
Section 2.10, the Ulibarris argue that permission can be found if an owner is	9
aware of a use and does nothing to stop it, and that permission to use that	10
would support a finding of estoppel is somehow different from permission	11
that undermines adversity. We disagree. Slicing and dicing the concept of	12
“permission” in this context as the Ulibarris suggest would add another layer	13
of complication to a set of rules that are perhaps already overly opaque. There	14
is simply no reason to try and parse how many angels can dance on the head	15
of this pin.	16
{74} 	In addition, the case from which illustration 5 is drawn does not support	17
the Ulibarris’ sweeping assertion. Restatement (Third) of Prop.: Servitudes	18
§ 2.10 illus. 5. Illustration 5 is based on Holbrook v. Taylor, 532 S.W.2d 763	19
(Ky. 1976). Restatement (Third) of Prop.: Servitudes § 2.10. There the road	20

39
had been used for over twenty years with permission of the landowner—	1
appellants in the case—for use as a mining haul road. Holbrook, 532 S.W.2d	2
at 764. In 1965, the appellees built a residence on property adjoining the	3
appellants’ property. Id. Five years later, the appellants refused the appellees’	4
use of the road. Id. at 766. At trial, the parties litigated whether there was an	5
easement by prescription or by estoppel. 	Id. 	at 764. The homeowners	6
appellees argued that they had a prescriptive easement. Id. The trial court ruled	7
that there was no basis to find a prescriptive easement since all uses prior to	8
this were by permission. Id. The landowner appellants argued that all uses had	9
been with their permission. Id. The trial court took them at their word and held	10
that they could not sit by, watch the appellees build their home, and then five	11
years later, deny them use of the road. Id. at 766. Holbrook simply does not	12
support the Ulibarris’ position.	13
The Ulibarris Are Limited to an Easement by Necessity Over Roads 3	14
and 4	15
{75} 	SJS argues that once the district court found that the Ulibarris had an	16
easement by necessity over Roads 3 and 4, it was inappropriate, as a matter of	17
law, for it to also recognize and grant an easement by prescription. 3 We agree.	18
3 SJS also makes a substantial evidence argument, which we do not
address given our holding above.

40
{76} 	The issue of easement by necessity has a curious history in this	1
litigation. Before the jury trial, SJS filed a motion for summary judgment	2
arguing that it was not possible for an easement of necessity to arise as to	3
Roads 3 and 4. SJS made a two-step argument. First, it noted that common	4
ownership is a fundamental requirement of a claim for an easement by	5
necessity. Brooks. v. Tanner, 1984-NMSC-048, ¶ 25, 101 N.M. 203, 680 P.2d	6
343. The common owner of the properties was the United States. Second, it	7
argued, that under the ruling in Leo Sheep Co. v. United States, 440 U.S. 668	8
(1979), the United States had no right to an easement by necessity across the	9
land it had patented when it issued the patents to the Winter Pasture. As such	10
its successors could not claim an easement by necessity either. The district	11
court denied the motion on its merits, concluding that Leo Sheep did not	12
control under the facts present in this case. Having argued for a ruling granting	13
them an implied easement by necessity in Roads 3 and 4, the Ulibarris	14
continue to defend the ruling on appeal. Having lost in its attempt to dismiss	15
the claim for an easement by necessity, SJS apparently determined it is to its	16
advantage to accept the district court’s ruling.	17
{77} 	Easements 	by 	necessity 	are 	a 	specie 	of 	implied 	easement. 	The	18
Restatement describes them as follows:	19
A conveyance that would otherwise deprive the land conveyed	20
to the grantee, or land retained by the grantor, of rights necessary	21

41
to reasonable enjoyment of the land implies the creation of a	1
servitude granting or reserving such rights, unless the language	2
or circumstances of the conveyance clearly indicate that the	3
parties intended to deprive the property of those rights.	4
Restatement 	(Third) 	of 	Prop.: 	Servitudes 	§ 	2.15 	(2000). 	The 	theories	5
underlying the rule of implication have vacillated over the years. The first	6
rationale in the early common law was that allowing access to otherwise	7
landlocked property was necessary as a matter of public policy to encourage	8
profitable use of land. Restatement (Third) of Prop.: Servitudes § 2.15 cmt. a.	9
The rationale later shifted to incorporate a presumed intent of the parties to	10
allow access. Restatement (Third) of Prop.: Servitudes § 2.15 cmt. a. The two	11
rationales continue to the present in varied formulations. Restatement (Third)	12
of Prop.: Servitudes § 2.15 cmt. a. Regardless of the underlying policy	13
rationale for the rule, the result is the same: A person benefiting from an	14
easement by necessity is endowed with the right to have access to property	15
over the land blocking access to a public highway.	16
{78} 	The right to access landlocked property over another person’s land is	17
what prevents the use from being adverse for purposes of establishing a	18
prescriptive easement. Bino v. City of Hurley, 109 N.W.2d 544, 546 (Wis.	19
1961) (“The use of a way of necessity is permissive and not adverse, and	20
cannot constitute the foundation of a prescriptive easement.”); Oyler v.	21
Gilliland, 351 So. 2d 886, 887-88 (Ala. 1977) (same). The concept is	22

42
summarized as follows: “As a general rule, no matter how long an easement	1
is used as a way of necessity, such a use cannot be adverse or confer a	2
prescriptive right.” 25 Am. Jur. 2d Easements & Licenses § 28 (2022). Thus,	3
the authorities seem to require that if an easement by necessity is proven and	4
granted, a prescriptive easement cannot simultaneously be granted over the	5
same road. Given that both parties here agree that an easement by necessity	6
exists over Roads 3 and 4 as a matter of law, we cannot weigh the evidence to	7
determine “which easement is most consonant with the evidence” adduced at	8
the trial. See Berkeley Dev. Corp. v. Hutzler, 229 S.E.2d 732, 736 (W. Va.	9
1976) (holding that the evidence in the case “more directly supports the	10
implied easement than the prescriptive right”), overruled on other grounds by	11
O’Dell, 703 S.E.2d at 586 n.28.	12
{79} 	We are fully aware that this holding results in overturning the jury’s	13
decision and verdict. It is not a problematic result, however, because the jury	14
was not aware of the possibility of the existence of the easement by necessity.	15
And our ruling is based on a principle of law, not fact. Thus, we are not	16
questioning the decision the jury made under the facts and instructions it was	17
provided.	18

43
CONCLUSION	1
{80} 	In sum, we: (1) reverse the district court’s ruling with regard to the	2
scope of the easement over Road 2 and remand for further consideration in	3
accordance with our ruling above; (2) reverse the district court’s grant of an	4
easement by estoppel as to Roads 1 and 2; (3) reverse the district court’s ruling	5
that Roads 3 and 4 were subject to a prescriptive easement; and (4) affirm all	6
other rulings in this matter, including that easements by necessity exist over	7
Roads 3 and 4.	8
{81} 	IT IS SO ORDERED.	9
__________________________________	10
MICHAEL D. BUSTAMANTE, Judge,	11
retired, sitting by designation.	12
WE CONCUR:	13
________________________________	14
J. MILES HANISEE, Chief Judge	15
________________________________	16
KRISTINA BOGARDUS, Judge	17
_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__
M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	MIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIC	C	C	C	C	C	CH	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	H	HA	A	A	A	A	A	A	A	A	A	A	A	A	A	A	A	A	A	A	A	A	AE	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	E	EL	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L	L D. B	B	B	B	B	B	B	BU	U	U	U	U	U	U	U	U	U	US	S	STAMANTE, Ju
retired, sitting by designation.
___	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_ _	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	____	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_____________	_	_
J. M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	M	MILES HANISEE, Chief Judg
_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	___	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	_	__	_	_	_	_	_	_	_	_	_	_	__	_	_	_
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Appendix A
A-1-CA-38029
10
=
ULIBARRI
2
ROAD 73
ROAD Z
$75
10
12
is
LOCKRONE VICTOIRE
15
ESQUIBEL
CAND
ULIBARRI WINTER PASTURE
- ROAD 4
16
15 14
HD
T27N R4E NM.P.M.
PLAINTIFF'S EXHIBIT
12
44

Appendix B
ATTACHMENT A
The order of alienation for Road 1:
Property
Legal
Alienation date
Roybal
N/2 SE/4 - Sec. 10
08/28/1907
N/2 SW/4 - Sec. 11
Roybal
N/2 SE/4 - Sec 11
04/11/1960
Roybal
S/2 S/2 - Sec. 11
02/02/1962
S/2 SW/4 - Sec. 12
SW/4 SE/4 - Sec. 12
The order of alienation for Road 2:
Property
Legal
Alienation date
Roybal
N/2 SE/4 - Sec. 10
08/28/1907
N/2 SW/4 - Sec. 11
Roybal
SE/2 SE/4 - Sec 10
02/02/1962
The order of alienation for Roads 3 and 4:
Property
Legal
Alienation date
Cano
SW/4/ NW/4 - Sec. 15
12/01/1891
Esquibel
N/2 NW/4 - Sec. 15
07/15/1921
SE/4 NW/4 - Sec. 15
NE/4 SW/4 - Sec. 15
Winter Pasture - N/2
NW/4 - Sec 14
08/28/1939
NE/ 4 - Sec. 15
Winter Pasture - S/2
SE/4 - Sec. 15
02/09/1962
SW/4 - Sec. 14
11
RP- Page 560
45