June 22, 2012 – Lyle A. Dethlefsen and Vera A. Dethlefsen v. William H. Weddle, Ardeen J. Weddle, Individually and as Trustees of the Weddle Family Revocable Trust, Robert Cochran, Susan Cochran, Dan Warren, Von Eva Warren, Fred Brown, Bob Johnston, and the New Mexico Land Conservancy, No. 30,312

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 22, 2012
NO. 30,312

LYLE A. DETHLEFSEN and
VERA A. DETHLEFSEN,

Plaintiffs-A ppellants,
V.

WILLIAM H. WEDDLE, ARDEEN
J. WEDDLE, Individually and as
TRUSTEES OF THE WEDDLE
FAMILY REVOCABLE TRUST,
ROBERT COCHRAN, SUSAN
COCHRAN, DAN WARREN,
VONEVA WARREN, FRED
BROWN, BOBJOHNSTON, and
THE NEW MEXICO LAND
CONSERVANCY,

Defendants-A ppellees.
APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
KEVIN SWEAZEA, District J udge
Deschamps & Kortemeier Law Offices
Stephen Karl Kortemeier
Socorro, NM

for Appellants
Fitch & Tausch, LLC

Thomas G. Fitch
Socorro, NM

for Appellees Weddle

OPINION
HANISEE, Judge.
{1} 	Lyle and Vera Dethlefsen (the Dethlefsens), property owners in Sierra County,
brought suit against their neighbors and interested parties, sounding in tort, contract,
and 	declaratory 	judgment, 	primarily 	regarding 	the 	use 	of 	an 	easement 	and
corresponding road traversing their land. Following a bench trial, the district court
ruled against the Dethlefsens, finding there had been no trespass upon their property,
no breach of any agreement in existence between the parties, and declaring the
easement to be unambiguous in dimension and unlimited in scope. On appeal, the
Dethlefsens challenge only the district court’s declarations that pertain to the creation
and scope of the easement, and its conclusion regarding the use of a lockable gate at
the easement’s point of origin. We affirm the district court’s determination that an
express easement was unambiguously created over both the Dethlefsen property and
a neighboring tract, the Warren property. 	But because we separately hold that the
recorded documents establishing the easement are ambiguous with respect to the
easement’s scope, and the district court did not, we reverse its decision in part. We
remand to allow the admission of extrinsic evidence and consideration of the
surrounding circumstances to determine the proper scope of the easement, including
whether and how a lockable gate can be used at the easement’s point of origin.

1 For ease of identification, the properties discussed in this Opinion are each
referenced by use of the current property owner’s surname.
2
I. 	PROCEDURAL POSTURE
{2} 	The four properties affected by this case are located along the eastern boundary
of the Gila National Forest and collectively form the southern half of Section 17, as
well as the eastern portion of Section 18 of Township 12 South, Range 8 West,
N.M.P.M., Sierra County, New Mexico. The properties were all once held by the Eng
family, who divided and conveyed the land, and assigned corresponding easements
as follows (in chronological order): 1
(1) 	Cochran Property:
“[A] certain deed [was executed] from Kenneth S. Eng, Jr. to James R.
Forrister and Kristie M. Forrister, dated [and filed for recording] August
14, 1992,” for lands that included the eastern half of the southeastern
quarter of Section 18. 	An easement quitclaim was also executed that
same day by Eng to the Forristers “for the purposes of ingress and
egress, and the moving of livestock, more particularly described as . . .
[a]n easement along and across the existing road or any replacement of
the existing road located in the S½ of Section 17 . . . .”
That same land and easement were sold by “Kristie M. Hawkins,
formerly Kristie M. Forrister,” to “Robert A. Cochran and Susan D.
Cochran” on March 16, 2007.
(2) 	Dethlefsen Property:
On 	May 	31, 	1997, 	“A.A.T. 	Inc., 	Robert 	Bechtel, 	President, 	for
consideration paid grant[ed] to Lyle A. Dethlefsen and Vera A.
Dethlefsen” “[a] tract of land being the south one-half of the southwest

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one-quarter and the west one-half of the southeast one-quarter [of]
Section 17 . . . , subject to easements, restrictions, and reservations of
record, including a fifty (50) foot wide road easement to and across said
property as shown on Loftus & Co. Plat 197-97 . . . .” 	(Emphasis
added.)
On April 7, 1999, “Kenneth S. Eng, Jr., and Caroline Eng, husband and
wife, for consideration paid, grant[ed] to AAT, Inc., Robert Bechtel,
President” “[a] tract of land being the south one-half of the southwest
one-quarter and the west one-half of the southeast one-quarter [of]
Section 17,” subject to the same easement language.
(3) 	Weddle Property
“Kenneth S. Eng, as Trustee of the K.S. ENG, INC. PROFIT SHARING
PLAN AND TRUST, for consideration paid, grant[ed] to William H.
Weddle 	and 	Ardeen 	J. 	Weddle, 	Trustees 	of 	the 	Weddle 	Family
Revocable Trust, dated June 23, 1998” on December 16, 2004. 	The
same deed states “Seller grantees [sic] ingress/egress through deeded
lands to property. 	Purchase [sic] reserves right to review other than
above easement[.] 	Purchasers have 2 weeks to inspect survey on
property after survey is completed. 	Purchaser recommends that any
easements be in or along creek beds.”
(4) 	Warren Property
“Kenneth S. Eng, Jr. And Caroline M. Eng, husband and wife for
consideration paid, grant[ed] to St. Cloud Mining Company” several
tracts of land, including the eastern half of the southeastern quarter of
Section 17 on April 20, 2001. Notably, the deed does not contain any
easement reservation language.
“St. Cloud Mining Company, for consideration paid, grant[ed] to Robert
F. Johnston and Rita T. Johnston, husband and wife and Fred M. Brown
and Shirley Brown, husband and wife . . . [t]he E/2 of the SE/4 of
Section 17 . . . on August 29, 2001,” subject to “existing and continuing
mining operations and . . . easements and other rights including
uninterruptable [sic] and unrestricted access to the mine site . . . .”

4
“Robert F. Johnston and Rita T. Johnston, husband and wife[,] and Fred
M. Brown and Shirley Brown, husband and wife, . . . entered into a
binding Real Estate Contract with Daniel J. Warren and Von Eva
Warren, husband and wife, . . . [on] August 9, 2006 for . . . [t]he E2 of
the SE/4 of Section 17,” subject to the same mining reservations.
The current ownership and physical relationship between the properties are depicted
in the following simplified map, which is provided to assist the reader’s understanding
and not to define any legal rights or precise dimensions.

2 The complaint was amended once before and once after the August 27, 2007,
amendment, but the proceedings continued based on the amendment filed on August
27, 2007.
3 The NMLC was granted a “Conservation Easement” by the Dethlefsens in
2004 to all of the Dethlefsen property at issue here, “for the purpose of forever
conserving [the land’s] natural, scenic and open space character[,] [and] wildlife
habitat values[.]” The conservation easement explicitly prohibits the Dethlefsens from
engaging in property uses inconsistent with “Conservation Values” as defined by the
easement, including moving or paving the “existing access road.” But even after the
NMLC “was named as a party, it disclaimed all intent to participate, stating, in effect,
that it was relying on [the Dethlefsens] to properly and adequately protect its interest.”
4 Johnston and Brown remained defendants in the case, despite also divesting
their 	property 	interest 	by 	subsequent 	transfer 	(to 	the 	Warrens), 	because 	the
Dethlefsens alleged that they “continue to retain a financial interest in the property.”
Each is unrepresented on appeal and has submitted no briefing to this Court. As well,
Appellees Cochrans, Warrens and the NMLC have not participated in the proceedings
on appeal.
5
{3} 	The Dethlefsens filed suit on December 28, 2006, against their surrounding
property owners—the Weddles, Kristie Forrister (former owner of the Cochran
Property), and Bob Johnston and Fred Brown (former owners of the Warren property).
The complaint was amended2 on August 27, 2007, to include the Cochrans, the
Warrens, and the New Mexico Land Conservancy (NMLC)3 as defendants. The court
later dismissed Kristie Forrister from the case because the Dethlefsens “failed to state
a claim against [her], under the [amended] complaint.”4 The Dethlefsens asserted
three counts against the remaining and additional defendants: (Count One) “Breach
of Agreement” regarding the Dethlefsens’ right to access the Weddle property to

6
maintain fencing between the two properties, and seeking to enforce a separate oral
agreement purportedly entered into by all owners to “secure the access” to the
easement with a lockable gate at its point of origin on Forest Service Road 157,
(Count Two) “Action for Declaratory Relief” seeking to restrict the Weddles’ and
Cochrans’ use of the easement to a historical fourteen-foot-wide road “approximately
following Monument Creek” to be used only for limited residential and agricultural
purposes, and (Count Three) “Trespass” regarding the Weddles’ use of the easement
for commercial purposes, including “driv[ing] cattle” and providing third-party
“access for commercial hunting.” After years of pre-trial litigation and several failed
attempts at mediation, a bench trial on the merits was held on October 21, 2009.
{4} 	At trial, the Dethlefsens’ attorney sought to present Mr. Dethlefsen as the
primary witness to establish the case-in-chief. 	But less than half an hour into Mr.
Dethlefsen’s direct examination, the district court began to disallow testimony
regarding the circumstances surrounding the nature of the easement and gate. The
court ruled that the recorded “documents [were not] ambiguous” and on that basis
barred admission of the extrinsic evidence being offered.

7
The court stated more fully:
My ruling on that would be the document by which Mr.
Dethlefsen took title contains a reservation of an explicit fifty-foot-wide
easement and that’s not ambiguous . . . and that the Warren property is
also subject to that same easement. The testimony that you are offering
seems to be directed to vary or modify the terms of that written
instrument.
As a result, the Dethlefsens’ attorney was forced to forego his planned presentation
of extrinsic evidence regarding the intended scope of the easement:
I apologize for taking a few minutes here to . . . put this in the
context of the court’s . . . comments about the lack of ambiguity about
the nature of the easement. As the court may well appreciate those things
have taken quite a few things that I was going to go into out of
consideration and so I need to regroup a little bit and if the court would
. . . indulge me in a moment or two?
{5} 	Ultimately, the court accepted some extrinsic evidence, such as the recorded
property deeds for the surrounding properties and several photographs of the road and
gate system that was installed at the origin of the easement at Forest Service Road
157. Yet it disallowed the Dethlefsens the opportunity to further develop the record
with evidence regarding the use of the road or of the common grantor’s intent
surrounding the initial establishment of the easement and gate. At the outset of trial,
the Dethlefsens’ attorney asserted that:
There are some facts that need to be elicited regarding the intention of
the parties, particularly . . . [that] of Dr. Eng, the circumstances that
existed back in ‘92, the circumstances that gave rise to the expansion .
. . of the change of the gate, from twelve to fourteen feet, and to the

8
nature of the locking system.
The Dethlefsens’ exhibit list, which includes “Kenneth Eng Letter dated August 8,
2005 to Counsel,” as well as their supplemental exhibit list, which provides “[f]our
pages of correspondence with Dr. Eng, including signed response from Dr. Eng,”
likewise anticipated allowance of extrinsic evidence during trial. 	Similarly, the
Dethlefsens’ appellate docketing statement outlines the evidence they sought to
present in district court, including “testimony concerning the intent of the grantor, Dr.
Eng, and the circumstances surrounding the grants and reservations.”
{6} 	To support their argument that the scope of the easement traversing their
subservient property was ambiguous, the Dethlefsens offered recorded documents
from two of the adjoining and dominant properties—the Weddle property and the
Cochran property—that contained differing easement-granting clauses. The Weddles’
easement was granted within the Weddle property deed itself, while the Cochrans’
easement was quitclaimed in a separate document entitled, “Easement.” The language
used to describe the single easement burdening the Dethlefsen property varied
between the dominant property documents, and from the descriptive language used
in the Dethlefsen deed and from a plat referenced therein (hereinafter, “Dethlefsen
plat” or “the plat”). 	The variations existed despite the fact that each property
conveyance originated from one common grantor. The Dethlefsens maintained that

9
the court needed to consider each of the three easement-establishing documents, the
plat, as well as the surrounding circumstances, to determine the intended scope of the
easement. They maintained that the easement reservation contained in the Dethlefsen
deed, when compared to the Weddle deed and the Cochran easement quitclaim, is
ambiguous. 	On the one hand, the court agreed that the Dethlefsen deed must be
construed in conjunction with the dominant estates’ documents of record. But it stated
on the other hand that it did not “perceive that the [dominant property] documents
would be able to restrict or affect the express reservation in the easement that was
contained in the . . . Dethlefsen [deed].” The court admonished counsel that “[t]he
argument that you’re making and whatever testimony you might offer to support it
would [impermissibly] vary the terms of the written instrument.”
{7} 	As a result of its finding regarding the absence of ambiguity and the
corresponding truncation of testimony, the district court entered a judgment, based
only on the admitted testimony and evidence, declaring the easement rights regarding
the scope of the easement as follows:
[1] 	The road easement as described on the [plat] . . . and referred to in
the Dethlefsens’ deed is an express easement, is not ambiguous
and is not subject to any limitations or restrictions concerning the
use of the road easement.
[2] 	The lands of the Dethlefsens and the Warrens are both subject to
a 50 ft. wide road easement (the Road) running from Forest Road
157 through the lands of Warren and Dethlefsen to lands of

10
Weddle 	and 	generally 	following 	Monument 	Creek 	as 	its
centerline[.]
[3] 	Neither the Dethlefsens nor the Warrens have a right to dictate the
type of lock or locks to be used at the gate across the Road where
it meets Forest Road 157 nor, indeed, to require that the gate be
locked.
(Emphasis added.) As to Count One (“Breach of Agreement” regarding fencing and
access security) and Count Three (“Trespass” regarding the Weddles’ alleged
commercial use of the easement), the court ruled that “[t]here has been no breach of
any agreement or promise as alleged,” “no trespass,” “no damages incurred,” and “no
conduct . . . undertaken in justifiable reliance upon agreements made by any
Defendant.”
{8} 	On appeal, the Dethlefsens do not raise any assertion of error as to the district
court’s rulings pertaining to the alleged breach of agreement to maintain fencing set
forth in Count One of the amended complaint or as to the trespass asserted in Count
Three. Our review is thus confined to the district court’s rulings pertaining to the gate
agreement separately asserted in Count One and to the easement declarations entered
pursuant to Count Two.
II. 	DISCUSSION

5 The Dethlefsens’ brief in chief challenges the district court’s determinations
that (1) the easement reservation contained in the Dethlefsen deed “was unambiguous
and determinative,” (2) the “‘roadway’ easement” is fifty feet wide and follows
Monument Creek as its centerline, (3) the Dethlefsen survey “created an express
easement over the lands of Warren,” (4) “the roadway easement . . . is not subject to
any limitations or restrictions,” (5) “the ‘bell-housing’ lock system and gate across the
easement where it meets Forest Road 157 were in use as a matter of neighborly
accommodation and that any party was free to disregard the same,” as well as the
district court’s failure to (6) find the easement traversing Warren’s land to be an
easement by implication and (7) consider that the express grants within the Weddle
deed and the Cochran easement quitclaim “were more restrictive than the reservation”
in the Dethlefsen deed.
6 This issue addresses the Dethlefsens’ points of appeal numbers 1, 2, 4, and 7
as set forth in footnote 5, supra.
11
{9} 	The Dethlefsens raise seven points on appeal,5 which we consolidate into three:
Whether 	the 	district 	court 	erred 	in 	concluding 	that 	(1) 	the 	deed 	and 	plat
unambiguously reserve “a fifty (50) foot wide ‘roadway’ easement following
Monument Creek as [the] centerline,” without “any limitations or restrictions
concerning use”; (2) the Dethlefsen plat created an express easement, and not an
easement by implication, over the lands of Warren; and (3) neither the easement nor
any oral agreement created a provision for a gate and locking system.
Issue 1: 	Whether the Grant and Reservation of the Easement Through the
Dethlefsen Property Were Ambiguous in Scope6
{10} 	The determination of whether language utilized to establish an easement is
ambiguous as a matter of law entails the analysis of deeds and other property

12
documents to ascertain the legal rights associated therewith. Accordingly, our review
is de novo. Garcia v. Garcia, 2010-NMCA-014, ¶ 17, 147 N.M. 652, 227 P.3d 621
(“We review de novo the court’s resolution of an ambiguity in documents.”); see
Kirkpatrick v. Introspect Healthcare Corp., 114 N.M. 706, 711, 845 P.2d 800, 805
(1992) (“When the resolution of the issue depends upon the interpretation of
documentary evidence, this Court is in as good a position as the trial court to interpret
the evidence.”).
{11} 	We start our analysis by setting forth general rules of construction with respect
to easements, followed by a summary of our law related to the determination of
easement ambiguity. We then apply the principles distilled from our precedent to the
easement that burdens the Dethlefsen property.
A. 	Rules of Express Easement Construction
{12} 	“An easement is distinguished from a fee, and constitutes a liberty, privilege,
right, or advantage which one has in the land of another.” Kennedy v. Bond, 80 N.M.
734, 736, 460 P.2d 809, 811 (1969). It is created by express agreement, prescription
or by implication. Herrera v. Roman Catholic Church, 112 N.M. 717, 720, 819 P.2d
264, 267 (Ct. App. 1991). The existence of an express easement and its corresponding
scope are “determined according to the intent of the parties.” Skeen v. Boyles, 2009-
NMCA-080, ¶ 18, 146 N.M. 627, 213 P.3d 531. In discerning that intent, we “place

13
heavy emphasis . . . on the [parties’] written expressions.” 	City of Rio Rancho v.
Amrep Sw., Inc., 2011-NMSC-037, ¶ 37, 150 N.M. 428, 260 P.3d 414 (omission in
original) 	(internal 	quotation 	marks 	and 	citation 	omitted). 	Unlike 	contract
construction, the written language of an easement should be conclusive, and
consideration of extrinsic evidence is generally inappropriate. 	Id. (“[T]he legal
treatment of language in a recorded plat is different than the legal treatment of
language in a contract.”). 	If, however, “the grant or reservation is ambiguous, the
parties’ intention must be determined from the language of the instrument as well as
from the surrounding circumstances.” Sanders v. Lutz, 109 N.M. 193, 194-95, 784
P.2d 12, 13-14 (1989).
{13} 	Our appellate courts have allowed consideration of extrinsic evidence to resolve
ambiguities in easements under several notable circumstances. First, when necessary
terms are omitted, our courts have found ambiguity and considered outside evidence.
See, e.g., Martinez v. Martinez, 93 N.M. 673, 675-76, 604 P.2d 366, 368-69 (1979)
(holding that a “right of ingress and egress” was sufficiently certain and definite to
create an easement, but remanding for “a determination of the location of appellant’s
easement” based on the parties’ behavior, where that term was omitted from the
granting language); Skeen, 2009-NMCA-080, ¶ 22 (following the rule that “‘[i]f the
granting instrument does not specify whether the easement is appurtenant or in gross,

14
the court decides from the surrounding circumstances’” (quoting Luevano v. Group
One, 108 N.M. 774, 777, 779 P.2d 552, 555 (Ct. App. 1989)); Vill. of Wagon Mound
v. Mora Trust, 2003-NMCA-035, ¶¶ 46-47, 50-51, 133 N.M. 373, 62 P.3d 1255
(recognizing the validity of a “floating easement” and considering evidence of actual
usage where “documents lack a specific description of the actual location of the
easement”).
{14} 	Second, our courts will consider surrounding circumstances when the terms of
an easement are subject to more than a single reasonable construction. Cox v. Hanlen,
1998-NMCA-015, ¶ 29, 124 N.M. 529, 953 P.2d 294 (noting that “[t]he district court
did not err in going beyond the literal language of the deed” in construing the
reservation language, “[s]ubject to . . . a 7 foot utility and ditch easement,” because
it was uncertain “whether the seven-foot limitation applie[d] to both the utility and
ditch easements or only to use for utility purposes” (first alteration and omission in
original) (internal quotation marks omitted)); Quintana v. Knowles, 115 N.M. 360,
363, 851 P.2d 482, 485 (Ct. App. 1993) (concluding that the survey language,
“‘existing 30-foot access and utility easement . . . [did] not make clear the width of
either the road or the utility easement’” (emphasis added)); 	accord 	Jones v.
Schoellkopf, 2005-NMCA-124, ¶ 12, 138 N.M. 477, 122 P.3d 844 (recognizing that
ambiguity exists when provisions are “reasonably and fairly susceptible to two

15
constructions”).
{15} 	Third, our courts review extrinsic evidence to resolve conflicting terms of an
easement. In Sanders for example, the New Mexico Supreme Court determined that
even though the easement was otherwise expressly “laid out with square corners,” it
was nonetheless ambiguous because those dimensions prevented the easement from
being “used as a roadway,” which was its express purpose. 109 N.M. at 196, 784 P.2d
at 15. The Court therefore affirmed the district court’s decision to review extrinsic
evidence to resolve the conflict and revise the written terms accordingly. Id.
{16} 	And last, evidence beyond the documentary confines is admissible when the
granting 	language 	is 	not 	itself 	technically 	accurate. 	Camino 	Sin 	Pasada
Neighborhood Ass’n v. Rockstroh, 119 N.M. 212, 214, 889 P.2d 247, 249 (Ct. App.
1994) (holding that the use of the phrase “subject to,” rather than “grant” or
“reservation,” 	to 	create 	an 	easement 	was 	sufficiently 	ambiguous 	to 	justify
consideration of “the surrounding circumstances”).
{17} 	We also note that a preference within our case law exists to narrowly construe
rights created by an easement. Walker v. United States, 2007-NMSC-038, ¶ 49, 142
N.M. 45, 162 P.3d 882 (“In New Mexico, the scope of an easement, or right-of-way,
is narrow and is measured by the ‘nature and purpose of the easement.’” (citation
omitted)). 	The New Mexico Supreme Court has noted that the “law is jealous of

7 Although the easement does not visually extend to the Cochran property on
the Dethlefsen plat, all parties appear to accept that the easement in fact connects to
the Cochran property. 	That view is supported by the easement-granting clause
contained in the Cochran deed—“[a]n easement along and across the existing road or
any replacement of the existing road located in the S½ of Section 17.” Similarly, the
16
easement claims, and the burden is on the party asserting such a claim to prove it
clearly.” Amoco Prod. Co. v. Sims, 97 N.M. 324, 325, 639 P.2d 1178, 1179 (1981)
(internal quotation marks and citation omitted). Against this backdrop, we address the
language used in the Dethlefsen deed to determine whether an ambiguity exists.
B. 	Application of Easement Construction Rules to the Dethlefsen Deed
{18} 	The Dethlefsen deed, which was recorded in 1997, conveyed a tract of land in
fee “subject to easements, restrictions, and reservations of record, including a fifty
(50) foot wide road easement to and across said property as shown on Loftus & Co.
Plat 197-97, filed for record with the Sierra County Clerk.” 	The referenced plat,
which was also recorded in 1997, portrays the easement visually and includes both a
written description and relevant labels associated with the easement. The plat shows
the easement as generally running from east to west, beginning at an unidentified
Forest Service road, traversing the property of Johnston/Brown (now the Warren
property) and then the Dethlefsen property, and connecting with the Weddle property.
To the west of the Weddle property lies the Forrister (now the Cochran) property, but
the plat does not show the easement connecting to the Cochran property.7 The written

district court noted in its findings and conclusions that “[a]n extension of the Road
continues in westerly [sic] direction through the Weddles’ land to the Cochrans’ land.”
17
description contains language identical to the deed quoted above. But the plat labels
describe the easement as follows: “ROAD & 50’ WIDE EASEMENT FOLLOWS
APPROX. C/L OF MONUMENT CREEK” and “EASEMENT EXTENDS TO
FOREST SERVICE ROAD.”
{19} 	While we agree with the district court that these documents unambiguously
reserve at least a fifty-foot-wide easement over the Dethlefsen property, we
nonetheless conclude that the scope of the easement is ambiguous as a matter of law
because it omits necessary terms and because the included terms are subject to more
than one reasonable construction. 	Specifically, the easement fails to disclose the
following terms necessary to an understanding of precisely what was conveyed: (1)
the nature and purpose of the easement, (2) an identification of each of the dominant
estate holders, and (3) its duration. Although use of the term “road” in the context of
easement language does denote rights of ingress and egress for vehicle use, it is not
definitive as to the specific nature and purpose of the easement. And while the plat
does identify neighboring tracts of land, it is unclear based solely on the Dethlefsen
deed and plat which of the parties possess easement rights over the Dethlefsen
property.

18
{20} 	Also with respect to the easement’s dimensions, which the deed and plat
establish as “fifty feet,” it is contextually unclear what exactly has been reserved. The
language used in the Dethlefsen deed—“fifty (50) foot wide road easement”—and the
Dethlefsen plat—“ROAD & 50’ WIDE EASEMENT”—can be construed as either a
fifty-foot wide roadway, the entirety of which can be graded or paved; a fifty-foot-
wide easement, within which a typically sized roadway can be placed; or a fifty-foot-
wide easement and an additional road of undefined dimension, not necessarily within
the 	easement 	boundaries. 	Under 	the 	Cox 	analysis, 	which 	noted 	alternative
constructions of the “7 foot utility and ditch easement,” the district court here should
have gone beyond the literal language to include consideration of the parties’ actual
use and grantor intent to resolve the conflicting constructions. 1998-NMCA-015, ¶
29 (emphasis added).
{21} 	The width of the road, if established at fifty feet, is also notably peculiar in such
a rural setting. 	Historically, our courts have addressed private ingress and egress
roadway easements of widths considerably less than fifty feet. Dyer v. Compere, 41
N.M. 716, 718, 73 P.2d 1356, 1357 (1937) (construing easement language creating
“a roadway 8 feet in width”); Redman-Tafoya v. Armijo, 2006-NMCA-011, ¶ 3, 138
N.M. 836, 126 P.3d 1200 (construing a “five foot wide ingress, egress . . . easement”);
Maloney v. Wreyford, 111 N.M. 221, 223-25, 804 P.2d 412, 414-16 (Ct. App. 1990)

19
(determining that, in the context of a prescriptive easement, the roadway was only
sixteen feet wide based on actual use despite deed language describing “a fifty (50)
foot access”). 	And despite the statutory mandate requiring public highways to be
“sixty feet in width,” NMSA 1978, § 67-5-2 (1905), public highways created by
prescription are often recognized as being far narrower. State ex rel. Baxter v. Egolf,
107 N.M. 315, 318-19, 757 P.2d 371, 374-75 (Ct. App. 1988) (declining to apply
Section 67-5-2 to State Road 22 because the use of the road established its width at
eighteen feet rather than sixty).
{22} 	Equally unclear is whether the roadway, the easement, or both follow the
centerline of Monument Creek. The lack of a definite location leads to an ambiguity
similar to that identified in Village of Wagon Mound and Martinez, where because
“the documents lack[ed] a specific description of the actual location of the easement,”
Village of Wagon Mound, 2003-NMCA-035, ¶ 46, “[t]he parties’ behavior [could]
furnish the scope or location of the missing details[.]” Martinez, 93 N.M. at 676, 604
P.2d at 369.
{23} 	In contrast to the language used in the Dethlefsen deed and plat and to those
above-cited instances where our courts have declared easement language to be
ambiguous, the following cases serve as examples of unambiguous easement
language. In Brooks v. Tanner, 101 N.M. 203, 206, 680 P.2d 343, 346 (1984), the

20
examined language plainly answered all pertinent questions with regard to scope:
SUBJECT also to a road easement granted to Hazel Calverley along and
over the Southerly twelve (12’) feet of the above described property,
recorded in Book D-598, page 80, Records of Bernalillo County, New
Mexico; and Owner hereby reserves an easement for road purposes over
the Southerly twelve (12’) feet of the above described property for use
in connection with that portion of Lots 140 and 141 of Monticello and
not included in this sale and for ingress and egress from his property to
Monticello Drive which easement shall be left open.
Similarly, each of the easements described in 	City of Rio Rancho 	and 	Dyer
unambiguously provide the requisite information to answer the legal questions
presented. City of Rio Rancho, 2011-NMSC-037, ¶ 42 (holding that “the recorded plat
unambiguously grant[ed] a drainage easement to the City,” as opposed to an open
space easement); Dyer, 41 N.M. at 719, 73 P.2d at 1359 (“[W]e find a specific
reservation of an easement in the form of a right of way ‘eight feet in width . . . along
the north line of the [property].’” (omission in original)).
{24} 	We also note that the ambiguities apparent in the Dethlefsen deed and plat are
not resolved by the recorded deeds of the lands surrounding the Dethlefsen property.
Of those recorded documents accepted by the district court, only two describe having
easements over the Dethlefsen property—the Weddle deed and the Cochran easement
quitclaim. And neither document locates or even references the easement in wording
consistent with each other or with the Dethlefsen deed or the expressly incorporated
Dethlefsen plat. 	The Weddle deed recommends that the easement be “in or along

21
creek beds,” while the Cochran easement quitclaim locates the easement along “the
existing road or any replacement [thereof.]” While both descriptions could indicate
a roadway along Monument Creek, as referenced in the Dethlefsen deed and plat,
neither definitively does so. 	As expressed by the New Mexico Supreme Court in
Sanders, where the recorded documentary terms do not agree, the court must look to
extrinsic evidence to resolve the conflict. 109 N.M. at 196, 784 P.2d at 15 (“In the
present case . . . the instrument is ambiguous [and as a result, we] hold that the trial
court properly acted . . . by determining the intent of the parties and revising the
written instrument accordingly.”).
{25} 	Similarly, neither document specifies a width or a consistent specific use for the
road, or whether the easement is appurtenant or in gross. 	The Cochran easement
quitclaim specifies that it is “for the purposes of ingress and egress, and the moving
of 	livestock.” 	But 	the 	Weddle 	deed 	states 	only 	that 	“Seller 	grantees 	[sic]
ingress/egress through deeded lands to property.” And the reservation language in the
Dethlefsen deed provides no purpose at all. While we recognize that differing uses
of an easement and road may be granted to different dominant property owners, based
on the inconsistency between these documents we cannot conclude that the nature and
purpose of the road has been clearly defined. We also note the incongruence between
the normal use associated with a roadway and the differently paced and dimensional

8 This issue addresses the Dethlefsens’ points of appeal numbers 3 and 6 as set
forth in footnote 5, supra.
22
movement of livestock. The consideration of the related documents of record, absent
the illumination of surrounding circumstances, advances us no closer to a definitive
explanation of the full scope of the Dethlefsen easement that is the subject of the
declaration action. Thus we determine, based on our analysis of the documents of
record and in accord with our precedent, that the scope of the easement here is
ambiguous.
Issue 2: 	Whether the Warren Property Is Subject to an Express Easement 8
{26} 	The district court entered findings that “[t]he road easement as described on the
Loftus & Co. survey plat No. 197-97 . . . and referred to in the Dethlefsens’ deed is
an express easement,” and “runs from Forest Road 157 through the lands of Warren
and Dethlefsen to lands of Weddle.” At trial, the district court reasoned that since the
Warren property was still held by the common grantor at the time the Dethlefsen
property was surveyed, the Dethlefsen deed and plat, which depicted the easement
traversing the Warren property, created an express easement over the Warren property
as well. The court found that “[t]he Warrens also knew or should have known in the
exercise of reasonable diligence that their land was burdened with a fifty ft. wide road
easement, the Road, when they purchased their land.”

23
{27} 	The Dethlefsens contend on appeal that the district court erred when it
concluded that the Dethlefsen plat created an express easement over the Warren
property. The Dethlefsens make this argument pursuant to their understanding that
an implied easement is defined by and limited to reasonable necessity. 	In the
Dethlefsens’ view, “reasonable necessity” in this context “may be less than a
fifty[-]foot[-]wide road.” The Dethlefsens contend that if the easement over the lands
of Warren is limited to reasonable necessity, then the Cochrans and the Weddles
“cannot benefit from a fifty foot wide road easement over the lands of Dethlefsen.”
Because we hold that the district court did not err in determining that the Dethlefsen
plat created an express easement over the lands of Warren, we do not consider the
substance of the Dethlefsens’ argument in this regard.
{28} 	We review a determination of whether an express easement has been created
for sufficiency of the evidence. Camino Sin Pasada, 119 N.M. at 215-16, 889 P.2d
at 250-51 (applying the substantial evidence standard to determine whether “[t]he trial
court could properly find that there was sufficient evidence of grantor intent” to create
an express easement). 	“[T]he prevailing rule in New Mexico is that no particular
words of grant are necessary to create an easement. Any words which clearly show
intention to grant an easement are sufficient, provided the language is certain and
definite in its term.” Id. at 214, 889 P.2d at 249 (alteration, internal quotation marks,

24
and citation omitted).
{29} 	Here, the Dethlefsen deed explicitly states that the Dethlefsen property “is
subject to easements, restrictions, and reservations of record, including a fifty (50)
foot wide road easement to and across said property as shown on Loftus & Co. Plat
197-97 . . . .” (Emphasis added.) A fair reading of that clause indicates an intent to
both reserve an easement “across” the Dethlefsen property and grant easement access
“to” the Dethlefsen property. Additionally, the plat attached to the Dethlefsens’ deed
clearly shows the easement extending across the Warren property and connecting with
Forest Service Road 157. 	The plat even notes that “EASEMENT EXTENDS TO
FOREST SERVICE ROAD.” Finally, the Warrens’ chain of title demonstrates that
at the time the easement was reserved in the Dethlefsen deed and plat, the Warren
property was still owned by Eng, the same grantor that devised the Dethlefsen deed
and plat.
{30} 	Under these circumstances and pursuant to our substantial evidence review, the
district court could properly find sufficient evidence of grantor intent to create an
express easement over the Warren property. 	Hernandez v. Mead Foods, Inc., 104
N.M. 67, 71, 716 P.2d 645, 649 (Ct. App. 1986) (“The question is not whether
substantial evidence would have supported an opposite result; it is whether such
evidence supports the result reached.”). We recognize, however, that while the district

9 This issue addresses the Dethlefsens’ points of appeal numbers 4 and 5 as set
forth in footnote 5, supra.
25
court was correct insofar as the Warren property is burdened by an express easement
by virtue of the Dethlefsen deed and plat, the nature and scope of the easement
necessarily suffers from the same ambiguities identified above. See Issue 1, Part B,
¶¶ 18-25, supra. Because we hold there was sufficient evidence for the district court
to determine the existence of an express easement, it is not necessary for us to address
the Dethlefsens’ argument that the easement is created by implication. We also do not
address the Weddles’ argument that the “Dethlefsens do not have standing to
challenge a road over Warrens’ land which the Warrens acknowledge” because the
Weddles offered no legal authority in support of the argument. See In re Adoption of
Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that where a party cites
no authority to support an argument, we may assume no such authority exists). Thus,
we affirm the district court’s holding that an express easement exists over the Warren
property. 	But pursuant to our analysis set forth in “Issue 1,” we conclude that the
nature and scope of the easement must be determined following the admission and
consideration of extrinsic evidence on remand.
Issue 3: 	Whether the Easement or any Oral Agreement Provide for the Use
of a Lockable Gate 9
{31} 	The Dethlefsens’ final assertion on appeal challenges the district court’s

26
declaration that “[t]here are no restrictions or limitations on the use of the said road
easement through the lands of Dethlefsen and Warren,” and “there has been no breach
of any agreement or promise” to maintain a lockable gate. The Dethlefsens’ argument
at trial attempting to legally establish the gate and locking system at Forest Service
Road 157 was two-fold: 	First, pursuant to Count One of the complaint, the
Dethlefsens alleged that there was an oral agreement between the parties to use a
fourteen-foot gate and bell-housing lock. We decline to review the first prong of the
Dethlefsens’ argument, as Count One was dismissed by the district court and the
Dethlefsens elected not to challenge that determination on appeal.
{32} 	Second, pursuant to Count Two of the complaint, the Dethlefsens sought a
declaratory judgment regarding “whether the use of a bell lock [was] a reasonable
restriction by [the Dethlefsens] to further their security and still permit neighbor’s
use[.]” Additionally in Count Two, the Dethlefsens requested the court to declare that
“Defendants Johnston, Brown, [and] Warren . . . shall consent to all reasonable
restrictions for use of the easement offered by [the Dethlefsens] and that the
Dethlefsens 	had “the right to restrict access to the easement to neighboring
landowners[] only, with reasonable security measure[.]” We interpret the Dethlefsens’
claim to be that the easement implicitly included the use of a 14-foot gate with a single
bell-lock and limited keys based on the surrounding circumstances. The particular

27
factual allegations contained in the Dethlefsens’ complaint in regard to the foregoing
were the following:
10. 	The 	Dethlefsens, 	Defendants 	Weddle, 	and 	Defendant
Cochran all rely on legal and physical access to their properties from
Forest Road 157, by an easement across the property previously owned
by Defendants Johnston and Brown and now owned by Defendants
Warren.
. . . .
12. 	In approximately June of 1992, prior to any Defendants
purchasing their respective property, Kenneth Eng, . . . the predecessor
in interest to all of the parties as to their respective real property interests
at issue herein, installed a locked gate preventing access to the easement
at approximately the entrance to the property now owned by Defendants
Warren (hereinafter the “common gate”).
13. 	After Defendants Weddle, former property owner Forrister,
and the Dethlefsens purchased their properties from Dr. Eng, in
approximately 1998, these parties and Dr. Eng agreed to install a single
bell lock on a fourteen foot . . . wide gate across the entrance to the
easement.
. . . .
16. 	The predecessors in interest to Defendants Johnston and
Brown and to Defendants Warren consented to installation of the
improved gate and lock and to a system to limit and control keys for the
new gate.
17. 	The Dethlefsens constructed a residence on their property,
in material reliance on the agreement to maintain the secure new gate
with a bell lock and limited keys.
18. 	After the Dethlefsens constructed completed construction
of their residence, they changed the lock for the new gate and re-issued

28
keys to all the parties to the agreement, to ensure continued security for
their residence.
19. 	Defendants Weddle rejected the keys offered by the
Dethlefsens, and added additional locks to the new gate with a chain
outside the bell, exposed to the public at large.
. . . .
21. 	Defendants Johnston and Brown purchased their property
with the gated, locked access and controlled key procedures in place for
the new common gate.
. . . .
24. 	Defendants 	Weddle 	have 	provided 	public 	access 	for
commercial hunting on their properties, requiring public use of the
private easement burdening the Dethlefsens’ property.
. . . .
26. 	Defendants Johnston and Brown also provided public access
for commerical hunting on their properties, and required that the gates
be left unlocked, compromising the security of the Dethlefsens.
{33} 	At trial, the Dethlefsens sought to present Mr. Dethlefsen’s testimony regarding
the understanding that existed between Dr. Eng (prior to his having sold the Warren
property) and Mr. Dethlefsen regarding the gate and the bell lock. Mr. Dethlefsen’s
testimony in this regard was excluded as hearsay. 	Further, although the court
permitted Mr. Dethlefsen to testify as to his agreement and understanding with Mr.
Weddle regarding the gate at Forest Road 157 and the use of a bell lock, the court
ruled that whatever oral agreement the parties made years after the grant and

29
reservation of the easement was invalid under “the rules of property that require
interests in land to be in writing to be enforceable.” The court further explained that,
in its view, the testimony regarding the gate and the bell lock was an attempt to vary
or modify the terms of the written instrument which, on its face, did not provide for
a gated and locked easement.” The Dethlefsens likewise elected not to challenge that
legal determination.
{34} 	We thus focus our review only on the second prong of the Dethlefsens’ gate
argument: that the nature of the easement at the time it was established contained an
implicit provision for a lockable gate to exist at the intersection of the easement and
Forest Service Road 157, based on the ambiguity of the easement documents and the
initial presence of a locked gate at that point.
{35} 	As with the scope of the easement generally, the district court refused to
consider extrinsic evidence with respect to the locked gate based upon its finding of
an absence of ambiguity in the Dethlefsen deed and plat. But none of the pertinent
easement language in the appellate record contains a provision allowing or prohibiting
the use of lockable gates. The argument the Dethlefsens wished to assert, and offer
evidence at trial in support of, was that a locked gate existed at the easement’s point
of origin prior to the easement reservation in the Dethlefsens’ deed and plat. Under
the same case law cited above, we hold that the documents that both create and

30
reference the easement are ambiguous—indeed, silent—as to the inclusion of a
lockable gate on the easement at any location. See Issue 1, Part A, ¶ 13 & Part B, ¶
22, supra. 	We conclude again that extrinsic evidence, as a tool to discern the
grantor’s intent, must be admitted and employed by the district court in its
consideration of whether the easement contemplated the use of a lockable gate.
III. 	CONCLUSION
{36} 	Based on the foregoing, we affirm in part and reverse in part the judgment of
the district court. 	We affirm the determination that an express, fifty-foot-wide
easement and road of some undetermined dimension burdens both the Dethlefsen and
Warren properties. But we reverse the declaration that “[t]here are no restrictions or
limitations on the use of the . . . easement,” including its application to both the scope
of the easement and the use of a lockable gate at the easement’s point of origin. We
conclude that the recorded property documents are ambiguous with respect to the
width of the road, the location of the road within—or separate from—the fifty-foot-
wide easement, the use, nature, and purpose of the road, and the permissibility of a
lockable gate. We remand for admission and consideration of all relevant extrinsic
evidence to determine the proper scope and use of the easement as intended by the
common grantor, including a determination of the history and use of a locked gate at
Forest Service Road 157.

31
{37} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
JONATHAN B. SUTIN, Judge