July 14, 2021- McFarland Land and Cattle Inc. v. Caprock Solar 1, LLC, No. A-1-CA-37468

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 7/14/2021 10:53 AM

Filing Date: July 14, 2021 A. we [= |
ark Reynolds

No. A-1-CA-37468 M

MCFARLAND LAND AND CATTLE INC.,
Plaintiff-A ppellant,

Vv.

CAPROCK SOLAR 1, LLC, a Delaware

limited liability company, and SWINERTON

BUILDERS, a California corporation,
Defendants-A ppellees,

and

COUNTY OF QUAY,
Intervenor- Appellee.

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Matthew E. Chandler, District J udge

Schutte Law Office, LLC
Donald C. Schutte
Tucumcan, NM

for Appellant

Moses, Dunn, Farmer & Tuthill, P.C.
Joseph L. Wemtz

Albuquerque, NM

for Appellees

4

Warren F. Frost, P.C.
Warren F. Frost
Logan, NM

for Intervenor- Appellee

OPINION	1
DUFFY, Judge.	2
{1} 	Plaintiff McFarland Land and Cattle Inc. appeals from a final judgment in	3
which the district court concluded that Quay County and Defendant Caprock Solar	4
1, LLC, had established the existence of a public prescriptive easement where Quay	5
Road AI (QR AI) crosses over Plaintiff’s property. Plaintiff contends that the	6
elements necessary to establish such an easement were not proved by clear and	7
convincing evidence at trial. We agree and reverse.	8
BACKGROUND	9
{2} 	QR AI begins at State Road 278 and runs south along a section line that	10
divides sections of land in Quay County. At issue in this appeal is the portion of that	11
road that runs along the eastern border of Plaintiff’s property. QR AI originally	12
crossed an arroyo near the southeast corner of Plaintiff’s property via a wooden	13
bridge, but sometime in 1954, the bridge washed out. Afterward, the road was	14
rerouted about one hundred feet west onto Plaintiff’s land. This “jog” is now referred	15
to as the “low water crossing.”	16
{3} 	In 2016, Plaintiff’s neighbors to the south allowed Caprock to construct a solar	17
array on their property. Caprock also entered into a sublease with the County to	18
finance the project. To access the solar array, Caprock and its general contractor,	19
Swinerton Builders (collectively, Defendants), had to travel south on QR AI, through	20

2
the low water crossing. According to Plaintiff, Defendants’ use of the low water	1
crossing was initially permissive, though Plaintiff requested compensation for their	2
continued use of the road. Specifically, Plaintiff sought an initial payment of $20,000	3
followed by annual payments of $15,000 for the next twenty-five years. When the	4
County learned Plaintiff was attempting to charge Caprock for use of the road, the	5
County sent a cease and desist letter to Plaintiff stating that Plaintiff had no right to	6
charge for the use of a county road.	7
{4} 	Plaintiff filed a petition for a permanent injunction to stop Defendants from	8
using the low water crossing. Plaintiff claimed the low water crossing was private	9
property and Defendants did not have permission to use it. Defendants answered and	10
asserted as affirmative defenses that Plaintiff’s claims were barred by virtue of an	11
implied easement, prescriptive easement, or an easement by necessity. The County	12
intervened and filed a complaint for declaratory judgment, arguing that the public,	13
including Defendants, had the right to use QR AI because it was a county road. The	14
County asked the district court to declare that QR AI and the low water crossing are	15
within a public prescriptive easement. Caprock and the County filed a joint trial brief	16
stating that they were relying primarily on three legal theories to establish a right of	17
access: (1) prescription, (2) implied dedication, and (3) easement by estoppel.	18
{5} 	Following a bench trial, the district court entered judgment in favor of	19
Defendants and the County, declaring that the County and Caprock “have proven	20

3
the elements of a public prescriptive easement on QR AI, where it crosses [Plaintiff’s	1
property] by clear and convincing evidence.” The district court did not make any	2
findings or conclusions of law on the other theories brought forth by Defendants and	3
the County. Plaintiff appeals.	4
DISCUSSION	5
{6} 	Plaintiff argues that the district court’s conclusion that a public prescriptive	6
easement had been established was not supported by the evidence. Plaintiff	7
maintains that Defendants presented no evidence that the general public used the	8
roadway.	9
{7} 	“On appeal, we decide whether substantial evidence supports the district	10
court’s findings and whether these findings support the conclusions that the elements	11
required to establish a public easement by prescription were . . . proved by clear and	12
convincing evidence.” Algermissen v. Sutin, 2003-NMSC-001, ¶ 9, 133 N.M. 50, 61	13
P.3d 176; see Scholes v. Post Office Canyon Ranch, Inc., 1992-NMCA-078, ¶ 4, 115	14
N.M. 410, 852 P.2d 683 (explaining that “we review the challenge to a court’s	15
determination that a prescriptive easement exists by determining whether each	16
element required to establish a prescriptive easement has been proven by clear and	17
convincing 	evidence” 	(internal 	quotation 	marks 	and 	citation 	omitted)). 	“For	18
evidence to be clear and convincing, it must instantly tilt the scales in the affirmative	19
when weighed against the evidence in opposition and the fact finder’s mind is left	20

4
with the abiding conviction that the evidence is true.” Brannock v. Lotus Fund, 2016-	1
NMCA-030, ¶ 25, 367 P.3d 888 (internal quotation marks and citation omitted).	2
{8} 	Defendants bore the burden to establish that “an easement by prescription	3
[was] created by an adverse use of land, that is open or notorious, and continued	4
without 	effective 	interruption 	for 	the 	prescriptive 	period 	(of 	ten 	years).”	5
Algermissen, 2003-NMSC-001, ¶ 10. For a 	public 	easement by prescription,	6
Defendants were required to show “usage by the general public [that] continued for	7
the length of time necessary to create a right of prescription if the use had been by	8
an individual.” Luevano v. Maestas, 1994-NMCA-051, ¶ 17, 117 N.M. 580, 874	9
P.2d 788 (internal quotation marks and citation omitted); see Herbertson v. Iliff,	10
1989-NMCA-027, ¶ 19, 108 N.M. 552, 775 P.2d 754 (upholding the district court’s	11
finding that the disputed parcel had not been used in such a manner to establish a	12
public road by adverse user because there was “ ‘no history of general public use’ of	13
the disputed parcel”). In other words, Defendants must have “prove[d] use by the	14
public in general, as opposed to use by particular individuals, as in private	15
prescriptive easements, or even use by a limited segment of the public.” 2 Am. Jur.	16
3d Proof of Facts 197 § 4 (2021). “ ‘Public’ use is the sine qua non of public	17
prescriptive easements.” 2 Am. Jur. 3d Proof of Facts 197 § 2.	18
{9} 	Although the question of whether the general public used the road is at the	19
heart of this case, the district court made no specific findings on the topic. The	20

5
court’s findings, instead, centered on the fact that Plaintiff’s neighbors and their	1
invitees used the road, and that the County considers QR AI a public road and has	2
expended funds to maintain and repair the road. The court found that the County has	3
listed QR AI as a county road on annual road certifications and on county road	4
system maps dating back to 1956.1 The court also found that the County used public	5
funds to blade QR AI and made repairs when requested by property owners who use	6
QR AI for access.	7
{10} 	Defendants and the County maintain that this evidence was sufficient to	8
establish a public prescriptive easement, noting that this Court has previously stated	9
that the “[f]requency of use or number of users is unimportant, it being enough if	10
use of the road in question was free and common to all who had occasion to use it	11
as a public highway.” Trigg v. Allemand, 1980-NMCA-151, ¶ 9, 95 N.M. 128, 619	12
P.2d 573 (internal quotation marks and citation omitted); Luevano, 1994-NMCA-	13
051, ¶ 25 (same). This Court has made clear, however, that use by neighboring	14
property owners and their invitees is not sufficient to establish public use of the road.	15
Luevano, 1994-NMCA-051, ¶ 21; see also Herbertson, 1989-NMCA-027, ¶ 19	16
1 The County does not claim that it established QR AI as a county road through
statutory procedures. See NMSA 1978, § 67-4-12 (2003) (setting out procedure for
county designation of rights of way). Rather, it argues that our Supreme Court has
recognized that in New Mexico a public road can be established by a prescriptive
easement. See Vill. of Capitan v. Kaywood, 1981-NMSC-082, ¶ 5, 96 N.M. 524, 632
P.2d 1162. Thus, the County’s sole argument on appeal is that it established QR AI
as a public road by prescription.

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(explaining that the court does “not view use of the disputed parcel by tenants and	1
their guests and invitees as sufficient to establish public use of the parcel”).	2
Similarly, although this Court has indicated that evidence of the road’s reputation as	3
a public road may support an inference of public use, Luevano, 1994-NMCA-051,	4
¶¶ 22-26, neither our Supreme Court nor this Court has ever held that such evidence	5
is sufficient to establish a public prescriptive easement in the absence of other	6
evidence of public use.	7
{11} 	Rather, our Supreme Court has made clear that the party seeking the easement	8
must present clear and convincing evidence that the general public used the land.	9
Algermissen, 2003-NMSC-001, ¶¶ 9-10; see 2 Am. Jur. 3d Proof of Facts 197 § 4	10
(“The fact that a parcel of land or a roadway is listed in government records as public	11
land or a public road, by itself, has been held to not warrant a finding of public use	12
or control; proof of actual adverse use by the public for the prescriptive period is still	13
necessary for a finding of public prescriptive rights.”). Indeed, even though both	14
Luevano and Trigg considered the character of the road, both cases also considered	15
evidence of actual use by the public. In Trigg, “[a]ll of the witnesses testified that	16
this was a public road, freely used by the public . . . for half a century before [the	17
plaintiff] acquired his property in 1964.” 1980-NMCA-151, ¶ 6. And in Luevano,	18
this Court concluded that even though the road at issue had a reputation as open to	19
the public, “that reputation might have arisen at least in part as a result of [the	20

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p]laintiffs’ business and the use made by their invitees[,]” in which case, evidence	1
of public use was lacking. 1994-NMCA-051, ¶ 26.	2
{12} 	In this case, although Defendants presented some evidence that QR AI has a	3
reputation as a public road, the testimony did not establish use of QR AI by the	4
general public. Plaintiff’s ranch manager, Ted Quintana, testified that at the time of	5
trial, he had been working for Plaintiff for sixteen years, during which he helped	6
take care of the cattle in the pasture. He stated that he worked near the low water	7
crossing on QR AI approximately two to three times every week. Throughout his	8
time working on the ranch, he testified that he never saw strangers on the property;	9
the only people he saw were neighbors who owned the adjoining land. He further	10
stated that he never saw anyone crossing Plaintiff’s land for any recreational	11
purpose.	12
{13} 	Plaintiff’s president, Kelly McFarland, testified that in his many decades	13
living and working on the property he did not see anyone “willy-nilly” crossing his	14
land. The only people McFarland testified to seeing on the property were his	15
neighbors and, on a few occasions, their contractors. He further explained that his	16
neighbors keep watch on the land and have been known to stop both him and his	17
wife when they did not recognize their cars because they wanted to know who was	18
in the area and for what purpose. When asked if his neighbors considered the	19

8
property to be public, Plaintiff answered, “Absolutely not, they didn’t want any	1
strangers out there on that land.”	2
{14} 	Dean Hodges has operated the cattle ranch on Plaintiff’s neighbor’s property	3
since approximately 1991. During cross-examination, Plaintiff’s counsel asked Mr.	4
Hodges about use of QR AI by the general public and the following exchange took	5
place:	6
Q: 	How often do you see people just driving up and down the road	7
who don’t belong there?	8
A: 	Not very often. I have seen them, but not very often.	9
Q: 	In the last thirty years, would you have seen people ten times?	10
Five times?	11
A: 	Probably. Yes, they go deer hunting out there.	12
Q: 	If you see deer hunters out there, do you check on them? If there	13
is someone on your property, do you go find out why they’re	14
there?	15
A: 	Most everybody I’ve had dealings with have called and got	16
permission.	17
Q: 	Oh okay, so the people that come out on your land call you first	18
to get permission.	19
A: 	Right.	20
Q: 	Now if I was just a sightseer, I’m a guest here in Tucumcari and	21
I go down road [QR] AI, how would I know that there is a key to	22
the lock?	23
A: 	You wouldn’t.	24

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Q: 	Well how would I, as a member of the public, get on down the	1
road?	2
A: 	You’d have to get access to the lock.	3
Q: 	I’d have to get permission from somebody down there?	4
A: 	Right.	5
{15} 	In addition to Plaintiff’s neighbors’ testimony, two County employees also	6
testified about their observations of the general public using QR AI. The County	7
Road Superintendent, Harry Heckendorn, testified about how he maintained county	8
roads, including QR AI. He described QR AI as being “low traffic” because the only	9
people who would go down the road were those who lived at the south end—that is,	10
Plaintiff’s neighbors. He testified that based on his own personal observations, no	11
one was using the road for sight-seeing purposes; only those who had business along	12
QR AI would use it. In addition to Mr. Heckendorn, Tony Gresham, who also	13
worked for the County, testified about his work blading roads in Quay County,	14
including QR AI. In his approximately ten years of blading QR AI, he stated that he	15
never saw anyone using the road who he did not know.	16
{16} 	From the testimony elicited at trial, public use of QR AI might have amounted	17
to five to ten times over an approximate thirty-year period. There was no other	18
evidence of actual use of the road by the general public, particularly within a	19
prescriptive period. Cf. Jicarilla Apache Tribe v. Bd. of Cnty. Comm’rs, 1993-	20
NMCA-094, ¶¶ 37-38, 116 N.M. 320, 862 P.2d 428 (holding that evidence supported	21

10
the claim that the road in question was public because testimony showed the road	1
had been used for recreational purposes, to drive cattle, sheep, and horses, and for	2
use by the public when necessary or convenient since time immemorial), rev’d on	3
other grounds by 1994-NMSC-104, ¶ 24, 118 N.M. 550, 883 P.2d 136. In fact, most	4
of the witnesses who testified explained that the people they did see were other	5
ranchers, neighbors, or their invitees. This use by neighbors and their invitees does	6
not constitute use by the general public. Luevano, 1994-NMCA-051, ¶¶ 20-21;	7
Herbertson, 1989-NMCA-027, ¶ 19. Consequently, we conclude that Defendants	8
did not meet their burden to establish by clear and convincing evidence that the	9
general public used QR AI, and thus, have not established the requirements for a	10
public prescriptive easement. See Algermissen, 2003-NMSC-001, ¶ 9 (stating that if	11
any one of the elements necessary for the creation of a public prescriptive easement	12
is lacking, then we must hold that the party seeking the easement failed in their	13
claim). We therefore reverse the district court’s final judgment.	14
CONCLUSION	15
{17} 	For the foregoing reasons, we reverse the district court’s final judgment that	16
Defendants and the County established a public prescriptive easement and remand	17
for further consideration of the remaining theories raised by Defendants and the	18
County but not ruled upon by the district court following trial.	19

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{18} 	IT IS SO ORDERED.	1
__________________________________	2
MEGAN P. DUFFY, Judge	3
WE CONCUR:	4
_________________________________	5
J. MILES HANISEE, Chief Judge	6
_________________________________	7
ZACHARY A. IVES, Judge	8