May 21, 2019- Melvin A. Elkins, Jr. v. Waterfall Community Water Users Association, No. A-1-CA-33634

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	MELVIN A. ELKINS, JR.
3 ·and WANDA L. ELKINS,
4 	Plaintiffs-Appellants,
5 v. 	No. A-1-CA-33634
6 WATERFALL COMMUNITY WATER
7 USERS ASSOCIATION,
8 	Defendant-Appellee.
9 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
10 James Waylon Counts, District Judge
11 	Cuddy & McCarthy, .LLP
12 Rebecca Dempsey
13 	Santa Fe, NM
14 Holt Babington Mynatt Martinez P.C.
15 	David McN eill, Jr.
16 Las Cruces, NM
17 for Appellants
18 	Sheehan & Sheehan, P.A.
19 Joshua A. Allison
20 	Quentin Smith
21 	Albuquerque, NM
22 	for Appellee
Court of Appeals of New Mexico
Filed 5/21/2019 1:43 PM

1 	MEMORANDUM OPINION
2 M. ZAMORA, Chief Judge.
3 	{t} 	Plaintiffs Melvin A. Elkins, Jr. (Elkins, individually) and Wanda L. Elkins
4 (Plaintiffs; collectively)1 appeal ap. order of the district court denying their motion
5 . for summary judgment; granting partial summary judgment in favor of Waterfall
6 Community Water Users Association (Defendant); and declaring Defendant and its
7 property owners as having ownership in certain water rights and a water delivery
8 system held in a constructive trust. Plaintiffs also appeal the district court's damages
9 award to Defendant for services including use of the water delivery system, which
10 delivered water to Plaintiffs' properties. We affirm.
11 	BACKGROUND
12 	{2} 	This case is the latest in a decades-long series of disputes involving water
13 	rights from a surface water source, now known as the Culbertson Springs, located in
14 the Waterfall Subdivisions and Waterfall East Subdivisions (collectively, Waterfall
1For purposes of the binding effect of previous contracts, agreements, and
orders that Elkins has individually entered, it is immaterial that Mrs. Elkins joined
this particular case as both she and Elkins appear on the quitclaim deeds, Elkins is
also a party, and Elkins and.Mrs. Elkins are in privity. See Boyd Estate ex rel. Boyd
v. 	United States, 2015-NMCA-018, , 	25, 344 P.3d 1013 ("Privity requires, at a
minimum, a substantial identity between the issues in·controversy and showing that
the parties in the two actions are really and substantially in interest the same."
(internal quotation marks and citation.omitted)).
2

1 subdivisions) in Otero County, New Mexico. Because of the complexity of the
2 historical, factual, and procedural backgrounds, we explain the background in
3 greater detail than we ordinarily would for a memorandum opinion.
4 {3} 	The district court based its summary judgment decision on the. following
5 facts,2 which it accepted as undisputed and ruled accordingly. The water rights at
6 issue were adjudicated and awarded to Ysleta College Corp. on April 30, 	1945
7 (Ysleta Decree). See Bass v. Ysleta College Corp., Otero County Cause No. 4116
8 (1945). The court in Ysleta College decreed that the "rights of said YSLETA
. 9 COLLEGE in and to said Culbertson Spring[ s] and to the use of the water thereof
10 are and forever hereafter shall be appurtenant to and non-severable from the
11 	hereinabove described land now owned by it[.]" That area of land owned by Ysleta
12 College, together with all appurtenant rights, came to be known as the "Waterfall."
13 	After a series of conveyances, on May 31, 1971, Waterfall, Inc. acquired the
2We note that the district court's minute order after the hearing on the cross
motions for summary judgment purports to reflect the court's "findings." We caution
the district court .on its wording in the future as findings. within the context of a
motion for summary judgment are procedurally inappropriate. See Summers v. Am.
Reliable Ins. Co., 1973-NMSC-060, 110, 85 N.M. 224, 511 P.2d 550 ("Resolution
of disputed questions of material fact is improper in summary judgment proceedings,
whether by findings of fact or otherwise."). Summary judgment "is not used to
decide an issue of fact, but, rather, to determine whether one exists," and it '"is not
to be used as a substitute for a trial on the merits." Pharmaseal Labs., Inc. v. Goffe,
1977-NMSC-071, 127, 90 N.M. 753, 568 P.2d 589. There.is no impact here given
the district court's conclusion that there were no genuine disputes of material fact
and Plaintiffs' statement that they do not dispute the "findings" in the Minute Order. .
3

1 Waterfall, "including water rights and all water rights in and to the Culbertson
2 	Spring[s]." From 1971 to 1973, Waterfall, Inc. recorded plats for the Waterfall
3 	subdivisions.
4 {4} 	On June 21, 1976, Waterfall, Inc. 3 by sole shareholder Ira Rupp conveyed the
5 Waterfall subdivisions to Caidas Del Agua, Inc. (Caidas Del Agua) "together with
6 all water rights appurtenant thereto, and the rights to all springs located upon, or
7 presently being utilized by or upon the properties conveyed [t]hereby, together with!
8 all such rights and springs which Grantor might have or claim on lands in the
9 	immediate vicinity of the lands conveyed [t]hereby." On July 25, 1976, Caidas Del
10 Agua mortgaged the same interest in the Waterfall subdivisions to the Bank of Santa
11 	Fe. 4 On August 15, 1978, Caidas Del Agua mortgaged the same interest in the
12 Waterfall subdivisions to Consumer Credit Corporation (CCC). Caidas Del Agua
13 	operated the Waterfall Water Distribution System (the WDS) for the benefit of the
14 Waterfall subdivisions property owners, until it defaulted on CCC's mortgage in
15 	1979. CCC foreclosed on the mortgage, and received two Special Master's deeds to
3It appears from the record that Waterfall, Inc. provided the water service to
the Waterfall subdivisions lot owners at that time; however, the first time the WDS
appears by name in the record is in the 1991 Settlement Agreement referencing a
transfer of ownership to Caidas Del Agua in 1976.
4It appears from the record that the mortgage with Bank of Santa Fe was
released on July 26, 1976.
4

1 the property listing the remaining lots in the Waterfall subdivisions "together with
2 all tenements and appurtenances thereto belonging[.]"
3 	{5} 	The district court concluded as a matter of law that it was at this juncture that
4 the WDS was abandoned to the property owners and was held in a constructive trust.
5 for the property owners. After Caidas Del Agua went out of business, the Waterfall
6 subdivisions lot owners formed the Waterfall Property Owners' Association, Inc.
7 (WPOA) to operate the WDS. WPOA eventually "ceased to exist due to non-
8 activity." 	Since 	1999, Defendant, a public entity, has 	operat~d the WDS 	and
9 	controlled the water rights as successor trustee to WPOA.
10 {6} 	On March 	17, 	1992, CCC deeded nineteen Waterfall subdivisions 	lots,
11 	"subject to the usual exceptions, easements, restrictions and reservations of record,.
12 together with all their appurtenances," to Plaintiffs (1992 Purchase). Then, on May
13 	25, 2005, CCC quitclaimed to Plaintiffs "all rights, and interest to the tenements and
14 appurtenances" it owned under the Special Master's deed. Plaintiffs do not challenge
15 	the district court's "findings of fact" on appeal.
16 {7} 	. Plaintiffs initiated the current lawsuit against Defendant in the district court
17 	in 2007, after acquisition of the 2005 quitclaim deed from CCC. Plaintiffs' complaint
18 	asserts six claims for relief. Count I sought a declaration that Plaintiffs are owners
19 	of "the Culbertson Spring[ s] water rights and the [WDS to] resolve the question of
20 	ownership thereof left open by the 1991 [Agreement] ... [and] declare WPOA's
5

1 [2000] Special Warranty Deed void." Count II sought dissolution of the constructive
2 trust because Plaintiffs' "ownership of the Culbertson Spring[s] water rights and the
3 	[WDS] eliminate the need for the implied constructive trust created by the 1991
4 [Stipulated Agreement]." Count III sought injunctive relief against Defendant, as
5 successor to WPOA, and asked the district court, to enjoin Defendant: 	(1) to
6 withdraw its claim of ownership of water rights filed with the Office of State
7 Engineer on November 11, 1980; (2) from using "the January 5, 1990, Ira Rupp
8 quitclaim deed and affidavit as evidence of its claimed ownership" because the 1991
9 Stipulated Agreement declared it null and void; (3) from demanding that any lot
10 "owner be required to join the Association as a condition to receiving or continuing
11 	to receive water service"; (4) "from refusing or threatening to refuse water service
12 or water connections to any property owner"; (5) "to prepare and file with the Otero
13 	County Clerk withdrawals ofany and all purported conveyances, easements or water
14 rights as [directed by] the 1991 O]udgment"; (6) "from taking any action that may
15 or will interfere with [PlaintiffJs' peaceful use or alienation of their properties"; and
16 (7) "from using the -[2000] WPOA Special Warranty Deed as evidence of or in
17 support of any claim of ownership interest in the ... water rights or the [WDS]."
18 	Count IV sought damages for conversion alleging Defendant took water from
19 Culbertson Springs and used the WDS without payment to Plaintiffs. Count V
20 alleged a claim and sought damages for slander of title resulting from Defendant's
6

1 publishing notice that it would not provide water service to new lot purchasers due
2 to the water.being fully committed to the current owners, which caused real estate
. 3 brokers to refuse to purchase Plaintiffs' lots. Finally, Count VI raised a claim and
4 sought damages for interference with prospective sale of real property resulting from
5 the same notice referenced ii). Count V.
6 	{8} 	The district court resolved Plaintiffs' claims on the parties' cross motions for
7 summary Judgment. 5 Following a hearing, the district court entered judgment in
8 fa~or of Defendant "as to all issues, except the issues raised by [Defendant's]
9 counter[]claims," and ordered that the parties proceed to trial on Defendant's
10 counterclaims. Plaintiffs appealed this ruling, arguing that the issue of whether
11 	separate ownership of water rights and the real estate to which those rights are
12 beneficially applied constitute a "severance" under state law was "determinative of
13 	all other claims." See Elkins v. Waterfall Cmty. Water Users Ass 'n (Elkins II), No.
14 30,683, mem. op. at * 1 (N.M. Ct. App. Mar. 29, 2011) 6 (non-precedenthil). We
5Although Plaintiffs argued in their motion for summary judgment that they
"are entitled to judgment as a matter of law on all issues raised in the [c]omplaint ·
and [c]ounterclaim," neither party argued the merits of their claims in Count V for
"slander of title" and Count VI for "interference with prospective sale of property."
· 6 Although the district court in this matter found that Defendant "has been
since 1999 successor trustee to WPOA ... and was so recognized in Otero County
district cause CV 2001-520 by [o]rder entered August 27, 2003, which was appealed
by Elkins and which [o]rder was affirmed by the N[.]M[.] Court of A,ppeals on July
18, 2006," we do not find a memorandum opinion issued by our court on that date.
W~ assume the district court meant to refer to our February 8, 2008, memorandum
opinion in cause No. 26,767 wherein we affirmed "th~ district court's findings of
7

1 declined to 	consider the 	merits 	because Defendant's 	counterclaims remained
2 outstanding and the order was "not sufficiently final for purposes of appeal." Id. at
3 *3.
4 	{9} 	Defendant asserted two counterclaims against Plaintiffs: 	( 1) 	"costs and
5 charges for the operation of [the WDS]" owed to Defendant in the amount of
6 $8,830.65 for water delivery service fo Plaintiffs' properties since 1989; and (2)
7 "slander of title and interference with business relationships" due to Plaintiffs'
8 interference with Defendant's receipt and utilization of public grants from the
9 Legislature for improvements to the WDS. After a trial on the merits, the district
10 	court determined that the water rights are appurtenant to and non-severable from
11 	each parcel of the Waterfall subdivisions; that the water rights are held in trust by
12 Defendant; and that the WDS, abandoned by Caidas Del Agua to the Waterfall
13 	subdivisions property owners, is likewise held in trust by Defendant for the property
14 	owners. The district court entered a final judgment awarding Defendant the cost of
15 	delivering water to Plaintiffs' properties in the amount of $6,841.38 plus 15 percent
16 	interest, dismissing with prejudice Plaintiffs' complaint, dismissing with prejudice
17 Defendant's 	second counterclaim for 	tortious 	interference 	with 	contract, 	and
18 	dismissing 	with 	prejudice 	Plaintiffs' 	claim 	that 	they 	were 	subject 	to 	an
fact and conclusions of law and the district court's March 29, 2006 judgment,"
corresponding to the August 27, 2003, minute order entered in CV-2001-520.
8

1 unconstitutional taking· of water. Plaintiffs appeal the grant of partial summary
2 judgment in Defendant's favor (Counts I, II, III, and IV); dismissal of the complaint
3 with prejudice 	(Counts 	V 	and VI); 	and 	final judgment in Defendant's 	favor
4 (Counterclaim I). We reserve discussion of additional pertinent facts and procedure
5 for our analysis.
6 DISCUSSION
7 	I. 	The District Court Did Not Err as a Matter of Law in Granting Partial
8 	Summary Judgment in Favor of Defendant
9 	{to} 	We begin by first addressing Plaintiffs' claim that the district court erred in
10 denying their motion for summary judgment and dismissing their complaint with
1J 	prejudice in the final order. Because Plaintiffs do not contend that any facts are
12 disputed, but rather challenge the district court's "incorrect legal interpretation of
13 	the Y sleta Decree" and "incorrect application of the law regarding severance of [the]
14 appurtenant irrigation rights from the land to the facts of this case," this argument is
15 	reviewable. See Green v. Gen. Accident Ins. Co. ofAm., 1987-NMSC-111, 119, 106
16 N.M. 523, 746 P.2d 152 (holding that "denial of a motion for summary judgment is
17 not reviewable after final judgment on the merits[, and i]f a summary judgment
18 	motion is improperly denied, the error is not reversible for the result becomes
19 merged in the subsequent trial"); Gallegos v. State Bd. of Educ.,.1997-NMCA-040,
20 117-12, 123 N.M. 362, 940 P.2d 468 (stating that a narrow exception to the general
21 	rule stated in Green applies to permit post-trial appeal of denial of summary
9

1 judgment, but only if "(1) the facts are not in dispute[;] (2) the only basis of the
2 ruling is a matter oflaw which does not depend to any degree on facts to be addressed
3 at trial[;] (3) there is a denial of the motion[;] and (4) there is. an entry of a final
4 judgment with an appeal therefrom").
5 {11} 	"The application of the law to the undisputed facts is a legal conclusion that
6 we review de novo." Sabatini v. Roybal, 2011-NMCA-086, il 16, 150 N.M. 478,261
7 P.3d 1110. "Upon the movant making a prima facie showing [that he or she is
8 entitled to summary judgment], the burden shifts to the party opposing the motion
9 to demonstrate the existence of specific evidentiary facts which would require trial
10 on the merits." Bank ofNew York Mellon v. Lopes, 2014-NMCA-097, il 6, 336 P.3d
11 	443 	(internal 	quotation marks 	and 	citation omitted). 	"Where 	an issue 	to 	be
12 	determined rests upon the interpretation of documentary evidence, an appellate court
13 	is in as good a position as the trial court to determine the facts and draw its own
14 conclusions." Maestas v. Martinez, 1988-NMCA-020, il 15, 107 N.M. 91, 752 P.2d
15 	1107.
16 	A.
17
18 	{12}
Declaratory Relief and Plaintiffs' Claimed Ownership of Water Rights
and the WDS
The record demonstrates that in 1991, Elkins sued WPOA alleging failure to
19 comply with the 1990 Settlement, (resolving a prior lawsuit which we discuss in
20 greater detail below) and for creating a hazardous area on his property. See Elkins v.
21 	Waterfall 	Prop. 	Owners, 	Inc., 	Otero 	County 	Cause 	No. 	CV-91-26. 	WPOA
10

1 responded by suing all of the Waterfall subdivisions property owners to quiet title in
2 the WDS. See Waterfall Prop. Owners Ass'n v. Big Am. Co., Otero County Cause
3 No. CV-91-47 (1991). The district court consolidated the lawsuits and the parties
4 entered into a stipulated agreement, resolving three lawsuits (1991 Agreement): CV-
5 88-355, 7 CV-91-26, 	and 	CV-91-47. 	The 	district court incorporated the 	1991
6 Agreement into an order signed by two district court judges and filed with the court.
7 The parties agreed that "[o]n the date of the final Order of the Special Master's Deed,
8 Caidas [D]el Agua notified 8 the water users in [the Waterfall subdivisions], in
9 writing, that it no longer owned an interest in the [Waterfall subdivisions] ... and,
10 therefore, water and gas service would no· longer be furnished by Caidas [D]el
11 	Agua." 	The 	parties 	further 	agreed 	that 	"[n]o 	water 	collection, 	storage, 	and
12 	distribution system was ever set out, described and recorded, as required by law, by
13 	the original developer or Caidas [D]el Agua, and no conveyance to. the water
14 collection, storage, or distribution system was ever recorded from Caidas [D]el Agua
15 	to any subsequent entity." As such, the 1991 Agreement ordered "that [WPOA
7 1n 1988, WPOA filed a lawsuit against Elkins claiming ownership and
operation of the WDS since 1980, and alleging that it had assumed road maintenance
responsibilities since early 1988. This lawsuit is discussed in further detail at
paragraph 33.
8The parties do not dispute that the Caidas Del Agua notice stated specifically:
"These 	[gas, 	water, 	and 	other] 	services 	were . provided 	previously 	as 	an ..
accommodation only, and not because of any legal requirement. We advise that you
either organize a Utility Association, or that you make. arrangements to personally
provide yourself with gas, water and road maintenance."
11

1 would] operate and manage the water rights, easements, and [the WDS] as Trustee
2 under a constructive trust."
3 {13} 	Then, after a trial on the merits in a 2001 lawsuit, the district court found that
4 Defendant had been operating the 	WDS 	as 	successor trustee to 	WPOA and
5 concluded that Defendant was the sole operator and in control of the WDS. See
6 	Waterfall Cmty Water Users Ass'n v. Elkins, Otero County Cause No. D-1215-CV-
7 	2001-520 (Mar. 29, 2006). This Court affirmed. See Elkins v. Waterfall Subdivision
8 	Water Users Ass 'n, (Elkins I), No. 26,767, mem. op. at 13 (N.M. Ct. App. Feb. 8,
9 2008) 	(non-precedential) 	(affirming "the 	district 	court's 	findings 	of fact 	and
10 conclusions of law and the district court's March 29, 2006 judgment").
11 	{14} 	In the present action, the district court concluded, based on the undisputed
12 	facts and as a matter of law, the following: (1) "none of [Plaintiffs'] predecessors in
13 	title severed the water rights from the lands to which the- rights were appurtenant"
14 and (2) "[a]ny attempt to sever the rights from the land was contrary to [the Ysleta
15 	Decree] and New Mexico law, and thus was ineffective in creating a severance."
16 The court reasoned that because "[a] grantee cannot get better title or rights than the
17 grantor had[,]" the "[a]ppurtenant water rights transferred to the new owners of the
18 	dominate estate as the property changed hands." Finally, the court conclud,ed that
19 "[t]here [was] no genuine issue of material fact that, as between Plaintiffs and
20 Defendant, Plaintiffs own, at most, water rights appurtenant to the lots in Waterfall
12

1 currently owned by Plaintiffs." The district court ordered that the appurtenant water
2 rights and the WDS abandoned to the property owners were held in trust for the
3 Waterfall subdivisions property owners by Defendant.
4 {15} 	Plaintiffs argue that they have record title to the water rights and the WDS
5 through a chain of recorded deeds, dating back to the Y sleta Decree. Plaintiffs argue
6 that Waterfall, Inc. expressly retained the water rights in the deeds to individual lot
7 owners, and, thus, the water rights did not pass to the Waterfall subdivisions lot
8 owners. In support of this contention, Plaintiffs argue on appeal that at the time it
9 platted the lots, Waterfall, Inc. submitted a "Property Report Notice and Disclaimer
10 to 	the 	Office 	of Interstate Land 	Sales Registration for 	the 	U[nited] 	S[tates]
11 	Department of Housing and Urban Development" expressly stating that purchases
12 	of the lots would not be free of :restriction, including: "That all oil, gas, mineral and
13 	water rights are retained by Waterfall, Inc." Plaintiffs argue that this separation of
14 water rights from ownership of appurtenant land is permitted under New Mexico
15 	law and in accordance with the Y sleta Decree. Plaintiffs purport that Waterfall, Inc.
16 then conveyed the retained collective water rights.to Caidas Del Agua, who lost them
17 to CCC in the foreclosure action. Plaintiffs argue that they subsequently acquired
18 the collective water rights and the WDS in the 1984 and 1992 Purchases from CCC,
13

1 and 2005 and 2008 Quitclaim Deeds from CCC. 9 Finally, Plaintiffs argue that the
2 district court erred as a matter.of law in concluding that Caidas Del Agua abandoned
. 3 the WDS to the Waterfall subdivisions property owners because Caidas Del Agua
4 did not have an ownership interest to abandon; rather, its interest in the WDS was
5 conveyed to CCC in the Special Master's Deeds.
6 	{16} 	New Mexico follows the prior appropriation doctrine, which provides that "in
7 the absence of an express grant of water rights, a conveyance will only include water
8 rights if they are appurtenant to the land." Roybal v. Lujan de la Fuente, 2009-
9Plaintiffs alleged in their motion for summary judgment and in their briefing
to this Court that, "[i]n 1984 [they] purchased [twenty-four] Waterfall [subdivisions]
lots, including the Water Rights[,]" (1984 Purchase) and that on February 14, 2008,
CCC executed a second, corrected quitclaim deed to Plaintiffs, which they allege
conveyed "[a]ll rights and interest to the tenements and lands and appurtenances
granted to [CCC] in that certain Special Master's Deed dated May 17, 1979 ...
together with all water rights, and the rights to all ~prings located upon, or presently
being utilized by or upon the properties conveyed hereby, together with all such
water rights and springs which grantor might have or claim" (2008 Quitclaim Deed).
Defendant disputes that the 2008 Quitclaim Deed had the legal effect of conveying
all of the water rights claimed by Plaintiffs, and instead argues that both conveyances
"included only the water rights which might be appurtenant to those lots." Under
Rule 1-056(C) NMRA, the district. court was not obligated to accept the parties'
conclusions regarding the legal effect of the alleged conveyances; ·On the contrary,
the court had a legal obligation to independently determine the legal effect of the
conveyance of water rights. See Vives v. Verzino, 2009-NMCA-083, 110, 146 N.M.
673, 213 P.3d 823 ("[I]n ruling on a motion for summary judgment, a court is not
wed to a party's assertion of conclusions of law whether in a petition, complaint, or
motion for summary judgment, even if the conclusions are admitted by the opposing
party."). As such, the parties' partial admissions regarding the alleged conveyances
via the 1984 Purchase and 2008 Quitclaim Deed were not material to the district
court's. determination 	of whether 	disputed issues 	of fact 	precluded 	summary
judgment in favor of Defendant.
.. 14

1 NMCA-114, 111, 147 N.M. 193, 218 P.3d 879; see Walker v. United States, 2007-
2 NMSC-038, 1 21, 142 N.M. 45, 162 P.3d 882 (stating "a water right is not an
3 automatic stick in the bundle of rights a landowner receives upon purchasing even a
4 fee interest in land"); Hydro Res. Corp. v. Gray, 2007-NMSC-061, 123, 143 N.M.
5 142, 173 P.3d 749 (recognizing that water rights will not automatically accompany
6 a conveyance of land except for water rights that are appurtenant to irrigated land).
7 Plaintiffs argue that the water rights were expressly granted to CCC in the Special
8 Master's Deeds, which Plai~tiffs thereafter bought f~om CCC. However, the record
9 does not contain an expre_ss grant of water rights to CCC in the Special Masters
10 Deeds. Although. Caidas Del Agua mortgaged to CCC "all water rights appurtenant
11 	thereto, and the rights to all springs located upon, or presently being utilized by or
12 upon the properties conveyed hereby," the Special Master's Deeds only expressly
13 	granted to CCC "all tenements and appurtenances." The Special Master's J?eeds are
14 	silent with respect to the interest in the "rights to all springs located upon, or
15 	presently being utilized by or upon the properties conveyed hereby."
16 	{17} 	This Court in Roybal v. Lujan de la Fuente analyzed an issue similar to the
17 .present case: whether certain water rights are conveyed without specific language in
18 the deed granting those rights. 2009-NMCA-114, 11. We explained that except for
'
19 water used for irrigation, water rights are not appurtenant to the conveyance of land.
20 Id. 1 12. This Court held that the failure of the deed to specifically convey water
15

1 rights· required the reversal of the district court's conclusion that the defendant
2 possessed water rights through the deed. Id This Court explained that since the deed
3 was "silent as to water rights," that the water rights were therefore not conveyed with
4 the land. Id.; see also Hydro Res. Corp., 2007-NMSC-061, 123 ("Water rights that
5 are not appurtenant to land are separate items of property and must be separately
6 conveyed.").
7 	{18} 	Here, because the Special .Master's Deeds were silent as to the water rights,
8 the rights were not conveyed with the land. In responding to Defendant's counter
9 motion for summary judgment, Plaintiffs bore the burden of showing that the water
10 rights and the WDS ·were included in CCC's foreclosure of its interest in Caidas Del
11 	Agua' s property. See Roth v. Thompson, 1992-NMSC-O 11, 1 17, 113 N .M. 331, 825
12 P.2d 1241 ("Upon the movant [of the summary judgment motion] making a prima
13 	facie showing, the burden shifts to the party opposing the motion to demonstrate the
14 existence of specific evidentiary facts which would require trial on the merits."). To
15 	the extent Plaintiffs argue that CCC's 2008 Corrected Quitclaim Deed included
16 language conveying all of the water rights to Plaintiffs, black letter law makes clear
17 that CCC could not convey what it did not own. See Metzger v. Elliz, 1959-NMSC-
18 	031, 114, 65 N.M. 357,347 P.2d 609 ("[A] quitclaim deed conveys nothing if the
19 	grantor himself did not have title or an interest in the property."). The district court
20 declared that the constructive trust existed since 1980. Thus, to the extent Plaintiffs
16

1 rely on any conveyances from CCC after 1980, Elkins could not have received the
2 water rights or the WDS via the 1992 Purchase or2005 Quitclaim Deed because the
3 subdivisions' water rights were already held in trust by Defendant, appurtenant to
4 each lot. Mo,:eover, nowhere in the record, not even the 2008 Corrected Quitclaim,
5 do Plaintiffs purport to receive "record title" of the WDS. See Farmers, Inc. v. Dal
6 Mach. 	& Fabricating, Inc., 	1990-NMSC-100, , 	8, 111 N.M. 6, 800 P.2d 1063
7 (stating the burden is on the appellant to clearly demonstrate that the district court
8 erred).
9 	{19} 	Because Plaintiffs failed to present any evidence otherwise, we conclude that
10 the district court did not err in granting Defendant's motion for partial summary
11 judgment and concluding that there was no genuine issue of material fact that
12 Plaintiffs own, at most, the water rights appurtenant to the lots they ·currently own in
13 	the Waterfall subdivisions, and that the WDS was abandoned to the property owners.
14 Consequently, under New Mexico's prior appropriation doctrine, Plaintiffs have no
15 	claim to ownership to all the water rights. We therefore do not reach the issue of
16 whether the Ysleta Decree and New Mexico law permit separation of the water rights
17 because we hold that Plaintiffs have not demonstrated that they could have record
18 title to the water rights or the WDS.
17

1 B.
2
3
4 	{20}
The. District Court Did Not Err in Granting Defendant's Motion for
Partial Summary Judgment and Dismissing Counts II, III, and IV of
Plaintiffs' Complaint with Prejudice
Plaintiffs argue that the district court erred in dismissing Count II, seeking the
5 dissolution of the constructive trust. Plaintiffs also argue that the district court erred
6 in dismissing Counts III and IV "presumably on the ground that dismissal of
7 	[Plaintiffs'] ownership claims mooted the rest of the Complaint," because it did not
8 "consider the undisputed evidence relating to these claims." Defendant argues that
9 Plaintiffs did not preserve these claims. Defendant further argues that from the time
10 	of the entry of the district court's minute order on February 24, 2010, to the entry of
11 	the district court's final judgment, Plaintiffs did not object to the dismissal of their
12 remaining claims, 	did not bring the outstanding claims to the 	district court's
13 	attention, and did not otherwise invoke a more specific ruling. We review Plaintiffs'
14 arguments to the extent they are based on something other than Plaintiffs' asserted. 	.
15 	ownership rights. To the extent they are predicated on ownership rights, those claims
16 fail as a matter of law given our affirmance of the district court's ruling as to Count
17 I of Plaintiffs' complaint asserting ownership of the collective water rights.
18 	{21} 	"To preserve an issue for review on appeal, it must appear that [the] appellant
19 fairly invoked a ruling of the trial court on the same grounds argued in the appellate
20 	court." Benz v. Town Ctr. Land, LLC, 2013-NMCA-11 l,, 24,314 P.3d 688 (internal
21 	quotation marks and citation omitted).
18

1
2
3
4
5
6
7
The primary purposes for the preservation rule are: ( 1) to specifically
alert the district court to a claim of error so that any mistake can be
corrected at that time, (2) to allow the opposing party a fair opportunity
to respond to the claim of error and to show why the court should rule
against that claim, and (3) to create a record sufficient to allow this
Court to make an informed decision regarding the contested issue.
8 Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ,r 56, 146
9 N.M. 853,215 P.3d 791.
10 	{22} 	Contrary to Plaintiffs' argument, the district court assumed that any claim
11 	based on Plaintiffs' asserted ownership of water rights beyond those appurtenant to
12 their own purchased parcels is resolved as a matter of law by the district court's
13 	ruling regarding ownership. These counts were briefed and argued by the parties at
14 the summary judgment stage. After the district court granted Defendant's partial
15 	summary judgment motion, it denied Plaintiffs' motion and effectively dismissed
16 Counts II, III, and IV as a matter of law based on the court's judgment to proceed to
17 trial only on the merits of the counterclaims. We affirm the dismissal as a matter of
18 	law.
19 Count II 	. /'
20 	{23} 	For Count II, Plaintiffs sought dissolution of the constructive trust because
21 	"[Plaintiffs'] ownership of the Culbertson Spring[s] water rights and the [WDS]
22 eliminate the need for the implied constructive trust." On appeal, Plaintiffs argue
23 	that the constructive trust was only a "stop-gap measure" to exist "in the absence of
24 clarity regarding the ownership and management responsibilities" and until the
19

1 parties formed a water and sanitation district. 	They argue that "with a final
2 determination of the ownership of the [w]ater [r]ights and WDS," the constructive
3 trust should be dissolved.
4 {24} 	Defendant argues that since Plaintiffs are not the "lawful owners" of the water
5 rights or the WDS, their claim for dissolution of the constructive trust fails as a
6 matter oflaw. In their reply brief, Plaintiffs do not respond to Defendant's argument
7 that the claim fails as a matter of law, and given the conclusion affirmed here as to
8 Count I that Plaintiffs do not have the ownership rights they claim, we agree that
9 Plaintiffs' argument fails. Otherwise, to the extent Plaintiffs argue anything beyond
10 ownership relating to the constructive trust, the argument is not developed and we
11 	cannot review it. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ,-r 15, 137
12 N.M. 339, 110 .P.3d 1076 (stating that an appellate court need not review an
13 	undeveloped argument); see also Farmers, Inc., 1990-NMSC-100, ,-r 8 (stating the
14 burden is on the appellant to clearly demonstrate that the trial court ·erred). We
15 	therefore conclude that the district court did not err in dismissing Plaintiffs' claim
16 for dissolution of the constructive trust.
17 Count III
18 {25} 	For Count _III, Plaintiffs sought injunctive relief and requested that Defendant
19 be enjoined to withdraw its alleged declarations of ownership, stop demanding
20 property owners to join Defendant's Association as a condition to receiving water,
20

1 and provide water service to all lot owners. "Injunctions are harsh and drastic
2 remedies which should issue only in extreme cases of pressing necessity and only
3 where there is a showing of irreparable injury for which there is no adequate and
4 complete remedy at law." Padilla v. Lawrence, 1984-NMCA-064, ,r 22, 101 N.M.
5 556, 685 P.2d 964. "The phrases 'irreparable injury' and 'no adequate and complete
6 remedy at law' tend to overlap. An injury that is irreparable is without adequate
7 remedy 	at 	law. 	Thus, 	an 	'irreparable 	injury' 	is 	an 	injury 	which 	cannot 	be
8 compensated or for which compensation cannot be measured by any certain
9 pecuniary standard." State ex rel. State Highway & Transp. Dep 't v. City of Sunland
10 Park, 	2000-NMCA-044, ,r 	19, 	129 N.M. 	151, 3 P.3d 	128 (alteration, internal
11 	quotation marks, and citations omitted). "The injury must be actual and substantial,
'
12 	or an affirmative prospect thereof, and not a mere possibility of harm." Id. (internal
13 	quotation marks and citation ·omitted). "It is not enough that the party seeking
14 	injunctive relief merely claim irreparable harm; he must come forth with evidence
15 	of the irreparability of his harm or inadequacy of any remedy." Id
16 {26} 	In City of Sunland Park, we reversed a grant of injunctive relief because the
17 alleged economic harm was inadequate. Id ,r 21. In that case, the plaintiff, Dofia Ana
18 	County, alleged injury in the form of"economic harm it would suffer if its plans to
19 supply water to parts of the [c]ounty were thwarted by the [c]ity's construction of a
20 water system covering some of the same areas." Id We held ~hat that harm was
21

1 "entirely too speculative to support the issuance of an injunction." Id. In addition,
2 the loss of a revenue source or the costs of constructing a water system was a
3 quantifiable harm and went to the adequacy or inadequacy of the remedy at law, but
4 was not presented. Id. The plaintiff was not entitled to an injunction because it failed
5 to present evidence of past or future revenue losses·, making its plan "too incomplete
6 and indefinite to support injunctive relief." Id. Although we pointed out that "under
7 certain circumstances the continuing interference with another's rights inland might
8 render a remedy at law inadequate," there were not enough facts in the record to rule
9 on "whether the [c]ity had the authority to condemn the right of way and pay the
10 	[c]ounty therefor." Id. , 	23 (internal quotation marks and citation omitted); see
11 	Kennedyv. Bond, 1969-NMSC-119, ,, 15-17, 80 N.M. 734,460 P.2d 809 (affirming
12 	grant of injunctive relief where the appellant's interference with reasonable use of
13 	an easement by the other party for ingress and egress to their property was a constant
14 recurrence that could only be remedied by a multiplicity of suits).
15 	{27} 	Similarly, in this case, Plaintiffs' only assertion not based on ownership that
16 points to an "irreparable injury" is that Defendant's notice that it will riot provide
17 water to future lot purchasers "makes it impossible for Waterfall owners to sell their
18 lots." This, Plaintiffs argue, "interferes with [their] right to alienate their property."
19 In support, they cite to Elkins' affidavit wherein he states that (1) Defendant issued
20 a notice in the local paper that it would not provide water to future property owners;
22

1 (2) they had "numerous lots" listed with a real estate broker who placed them for
2 sale; and (3) they have not been able to list or sell any of their lots since the notice
3 "becam~e buyers would not purchase these residential lots unless they have water
4 service." We find no further support or evidence referenced in their motion or reply,
5 or in Elkins' testimony at trial. As we held in City of Sunland, we likewise hold here
6 that Plaintiffs' conclusory and self-serving statements are insufficient to establish an
7 actual and substantial injury for which relief may be granted as a matter of law.
8 Plaintiffs' alleged harm needed to have been quantified to support the adequacy or
9 inadequacy of the remedy; yet, as presented, their purported harm is too speculative
10 and unsupported. 	We therefore affirm the district court's denial 	of summary
11 judgment and dismissal of this claim.
12 	CountIV
13 	{28} 	For Count IV, Plaintiffs argue that they are entitled to summary judgment on
14 their claim for damages resulting from Defendant's conversion of the water without
15 	payment, and included an additional claim that Defendant) use 	of the water
16 amounted to an unconstitutional taking without jus(compensation under the New
17 Mexico Constitution Article II,§§ 4, 18, 20, and U.S. Constitution Amendments V
18 	and XIV. Conversion is "the unlawful exercise of dominion and control over
19 property belonging to another in defiance of the o~er' s rights, or acts constitute an
20 unauthorized and injurious use of another's property, or a wrongful detention after
23

1 demand has been made." In re Yalkut, 2008-NMSC-009, , 25, 143 N.M. 387, 176
2 P.3d 1119. "The elements of the tort of conversion by demand and refusal are: (1)
3 that the plaintiff had the right of possession of personal property; (2) that the plaintiff
4 demanded that the defendant return the property to [the] plaintiff; and (3) that the
5 defendant refused to return the property to [the] plaintiff." Nosker v. Trinity Land
6 Co., 1988-NMCA-035,, 15, 107 N.M. 333, 757 P.2d 803.
7 {29} 	In. their motion for summary judgment, Plaintiffs claim that Defendant
8 converted their water because Defendant ignored their "demands for reimbursement
9 for use of their water" since 2005, thus entitling Plaintiffs to "reasonable payment
10 for [Defendant]'s unauthorized use of their water and [the] WDS." The premise of
11 	this claim, that Plaintiffs own the water rights for the Waterfall subdivisions, has
12 been rejected by the district court and which we have affirmed as discussed earlier
13 	in this opinion. Absent ownership or the right of possession of the water rights and
14 the WDS, this claim fails as a matter of law. See Nosker, 1988-NMCA-035, ,, 18-
15 	20 (concluding that the plaintiffs conversion claim failed because the plaintiff did
16 not establish that he had a possessory or ownership interest in the equipment at the
17 time of the alleged conversion since he had assigned his interest to athird party and
18 	failed to make a demand for return of personal property right after his right to possess ·
19 had accrued). Thus, the dismissal of Count IV was proper.
24

1 II. 	The District Court Did Not Err as a Matter of Law in 	Dismissing
2 	Plaintiffs' Counts V and VI in the Final Judgment
3 	{30} 	Plaintiffs 	also 	argue that the district court erred as a matter of law in
4 dismissing Counts V and VI "regardless [of] whether the lower [c]ourt's rulings on
5 the ownership issues are reverse or affirmed." Count V sought damages for slander
6 of title, regarding a notice Defendant published stating it would not provide water
7 service to new lot purchasers. Count VI sought damages for interference with the
8 prospective sale of Plaintiffs' real estate. Counts V and VI were neither briefed by
9 the parties at the summary judgment stage, nor litigated at the trial on the merits, and
10 arguably 	are 	not resolved by the 	district 	court's 	conclusion with respect to
11 	ownership, but were nevertheless dismissed by the district court in the final
12 judgment without any further action by Plaintiffs. We therefore decline to consider
13 	these unpreserved claims. See Crutchfield v. N.M Dep 't of Taxation & Revenue,
14 2005-NMCA-022, 114, 137 N.M. 26, 106 P.3d 1273 ("[O]n appeal, the party must
'
15 	specifically point olit where, in the record, the party invoked the court's ruling on
16 the issue. Absent that citation to the record or any obvious preservation, we will not
17 consider the issue.").
18 	{31} 	We note, however, that the record supports Defendant's contention that
19 Plaintiffs had several opportunities to raise the merits of Counts V and VI prior to
20 dismissal: litigating these issues at the trial in submitting proposed findings of facts
21 	and conclusions of law; in filing an amended final argument; at the presentment
25

1 hearing on Plaintiffs' form of order reflecting the final judgment; or in· approving
2 the final form of judgment dismissing the complaint ~ith prejudice. "It is the duty
3 of a litigant, if he desires a review of the ruling of the court, to see that the record.
4 presented is properly prepared and completed." Berksteresser v. 	Voight, 	1958-
5 NMSC-017, 1 13, 63 N.M. 470, 321 P.2d 1115. "Otherwise, the correctness of the
6 ruling cannot be questioned~" Id We therefore conclude that the district court did
7 not err in dismissing these claims. See id. 	(holding that the district court did not err
8 in omitting theory of negligence from jury instructions where the theory was not in
9 the pre-trial order because "appellant seems to have made no attempt to clarify the
10 record,_ if it were not correct").
11 	III.
12
13 	{32}
The District Court ·Did not Err in Entering Judgment for Defendant
After a Trial on the Merits of Defendant's Counterclaims
We review "the [district] court's findings of fact to determine if there is
14 	substantial evidence to support the determinations." Stika v. Styka, 1999-NMCA-
15 	002, 18, 126 N.M. 515,972 P.2d 16. "Substantial evidence is such relevant evidence
16 that a re~sonable mind would find adequate to support a conclusion." Sanchez v.
17 Saylor, 2000-NMCA-099, 1 12, 129 N.M. 742, 13 P.3d 960 (internal quotation
18 marks and citation omitted). Defendant's successful counterclaim against Plaintiffs
19 was for costs and charges for the operation of the WDS for water delivery service to
20 Plaintiffs' properties. We begin by reviewing the scope of Plaintiffs' obligations to
21 	pay Defendant and its predecessor in interest, WPOA.
26

1 {33} 	In 1988, WPOA filed a lawsuit against Elkins, claiming ownership and
2 operation of the WDS since 1980 and alleging that it had assumed road maintenance
3 responsibilities since early 1988. See Waterfall Prop. 	Owners v. 	Elkins, 	Otero
4 County Cause No. CV-88-355. WPOA sought damages for wrongfully-appropriated
5 water. Id. 	The 1988 lawsuit was resolved after the parties entered a settlement
6 agreement (1990 Settlement), whereby Elkins agreed, in relevant part, to pay "the
7 normal water distribution fee for permanent water service." The parties' agreement
8 to comply with the 1990 Settlement was memorialized in the 1991 Settlement
9 Agreement.
10 {34} 	After the trial on the merits in a subsequent 2001 lawsuit, the district court
11 	concluded that Defendant was the sole operator and in control of the WDS including
12 the maintenance of roads, all utility easements, sanitary waste disposal, and snow
13 	removal necessary to operate the WDS; and that Elkins was liable to Defendant for
14 "all normal water charges including necessary expenses to operation of the [WDS]
15 	pursuant to the [1991] Agreement." The district court concluded that water delivery
16 charges "may include. expenses incurred by [Defendant] for street maintenance,
17 snow removal, 	solid waste 	disposal, 	a 	computer and other reasonable. office
18 expenses, liability insurance for officers and directors of [Defendant], and attorney
19 fees, including fees expended to seek court ordered compliance by [Elkins]." But,
20 the district court concluded, Elkins would not be "liable to [Defendant] for water
27

1 delivery fees which include charges for real property taxes on real property holdings
2 not related to the production of water for the water system and for expenses in
3 maintaining ponds and streams that are not a source of water for the water system."
4 Elkins appealed to this Court, and we affirmed. Elkins I, No. 26,767, mem. op. at 13.
5 {35} 	After a trial 	on the merits in the current lawsuit, 	on Defendant's two
6 counterclaims, the district court entered the following findings. Prior to 	1999,
7 WPOA operated the WDS. Since 1999, Defendant has been the duly constituted
8 successor trustee to WPOA for control of the water rights and has been operating the
,!
9 	water system utilizing such water rights for distribution of domestic water to the lot
10 owners in the Waterfall subdivisions. Defendant, a political subdivision ofthe State
11 	of New Mexico and a public entity, has operated the system under the provisions of
12 the Sanitary Projects Act, NMSA 1978, Sections 3-29-1 to -21 (1965, as amended
13 	through 201 7). Defendant charges its members for the cost of maintaining the WDS
14 and delivering water to members' property in the community. Plaintiffs have water
15 	connections and, thus, delivery of water to their properties. Defendant may charge
16 Plaintiffs for use of Defendant's water delivery lines, but not the cost of the water
17 delivered to Plaintiffs' property. The lines running to Plaintiffs' properties are not.
18 metered, and therefore Defendant does not meter water used, but rather charges for
19 maintenance of the delivery lines. Defendant's charges to Plaintiffs are reasonable.
20 Since at least 2003, Plaintiffs have refused to pay any portion of the costs and
28

1 charges assessed for the operation of the WDS, and have failed to pay $6,481.38 for
2 water services to lots owned by Plaintiffs from the 2003-2004 fiscal· year through
3 August 2011. Plaintiffs assert that they have voluntarily declined to use water from
4 Defendant's water lines, and otherwise offered no proof that they were deprived of
5 any water owned by them.
6 	{36} 	The district court concluded, 	as 	a matter 	of law, 	that water had been
7 "delivered" to the Plaintiffs' properties and, thus, Plaintiffs could be charged for the
8 cost 	of the use 	of Defendant's WDS. 	The district court also 	concluded that
9 "Defendant is entitled to the reasonable cost of deliver[y] 	access to water to
10 Plaintiffs" and that "Plaintiffs' voluntary non-use of water is a surrender of their
11 	water to Defendant."
12 	{37} 	On appeal, Plaintiffs argue that the district court erred in awarding Defendant
13 	$6,481.38 for unpaid costs and charges for the operation of the WDS. Plaintiffs do
14 not take issue with the amount awarded to Defendant, but rather argue that they are
15 	not required to pay for water that was not actually "delivered" to their properties.
16 	{38} 	The district court's judgment is based on the 1990 Settlement, wherein Elkins
17 agreed "to pay the normal connection fees for permanent water service to any lot
18 owned by [Elkins] prior to the permanent connection" and "to pay the normal water
19 distribution fee for permanent water service." See,Envtl. Control, Inc. v. City of
20 Santa Fe, 2002-NMCA-003, , 	19, 131 N.M. 450, 38 P.3d 891 	("Public policy
29

1 encourages settlement agreements, apd the courts have a duty to enforce them.").
2 The language of that agreement, which was incorporated into the 1991 Agreement
3 and enforced by the 2006 judgment, does not condition Plaintiffs' liability on actual
4 "delivery" 	of 	water, 	as 	Plaintiffs 	now 	argue, 	particularly 	where 	Plaintiffs
5 acknowledged that they have refused to accept water from Defendant's pipelines.
6 Although Plaintiffs contend that no water was ever "delivered," they fail to develop
7 or demonstrate why delivery is at issue for these unpaid water charges given that
8 they have been liable to Defendant for associated operation costs since 1990. See
9 Headley, 2005-NMCA-045,, 15.
10 {39} 	Plaintiffs attempt to argue on appeal that although they chose not to receive
11 	water at their properties, this amounted to a non-delivery within the meaning of the
12 prior agreements and court order. The district court rejected this argument. Plaintiffs
13 	proposed finding of fact number 35 that Defendant's representative, testified on
14 behalf of [Defendant], "[i]f [Defendant] is not delivering water to Elkins, he does
15 	not have to pay for.it," and proposed finding of fact number 30 that "[Defendant]
16 admits that after it disconnected the water supply to [Plaintiffs'] Properties, there
17 was no further water delivery to [Plaintiffs] while they owned those properties. The
18 	district court rejected Plaintiffs' proposed findings of fact, and on appeal, we are
19 bound by the district court's rejection. See Hill v. Cmty. ofDamien ofMolokai, 1996-
20 NMSC-008,, 41, 121 N.M. 353,911 P.2d 861 ("Failure to adopt a proposed finding
30

1 of fact is in effect a negative finding with respect to that fact, which binds th[ e] Court
2 on appeal."); Las Cruces Prof'! Fire Fighters v. City of Las Cruces, 1997-NMCA-
3 044, 112, 123 N.M. 329, 940 P.2d 177 (stating that "we will not reweigh the
4 evidence nor substitute our judgment for that of the fact[-]finder"). Accordingly, the
5 district court's judgment is supported by substantial evidence found in the parties'.
6 	1990 Settlement and 1991 Agreement; the district court's judgment in the 2001
7 lawsuit (which was affirmed in this court's 2008 opinion); and the district court's
8 rejection of Plaintiffs' 	proposed findings 	of fact. 	See Las Cruces Prof'! Fire
9 Fighters, 1997-NMCA-044, 112 ("The question is not whether substantial evidence
10 exists to support the opposite result, but rather whether such evidence supports the
11 	result reached.").
12 	CONCLUSION
13 	{40} 	For the foregoing reasons, we affirm the district court.
14 	{41} 	IT IS SO ORDERED.
15
16
17 I CONCUR:
19 LINDA M. VANZI, Judge, concurs in result only.
31