March 20, 2023- Mimbres Hot Springs Ranch, Inc. v. David Vargas, No. A-1-CA-39046

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: March 20, 2023	3
No. A-1-CA-39046	4
MIMBRES HOT SPRINGS RANCH,	5
INC.,	6
Plaintiff-Appellee,	7
v.	8
DAVID VARGAS and DEBORAH	9
VARGAS,	10
Defendants-Appellants.	11
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY	12
Thomas F. Stewart, District Court Judge	13
Douglas C. Littlejohn	14
Silver City, NM	15
for Appellee	16
Lopez, Dietzel, & Perkins, P.C.	17
William Perkins	18
Silver City, NM	19
for Appellants	20
Court of Appeals of New Mexico
Filed 3/20/2023 9:25 AM

OPINION	1
HENDERSON, Judge.	2
{1} 	David and Deborah Vargas (Defendants) appeal from summary judgment in	3
favor of Mimbres 	Hot Springs Ranch, Inc. (Plaintiff). The judgment required	4
Defendants to remove a locked gate blocking vehicular access to Plaintiff’s express	5
easement over Defendants’ property. The judgment further permitted Plaintiff to	6
modify 	and 	maintain 	the 	roadway 	that 	constitutes 	the 	easement, 	to 	better	7
accommodate vehicular access. 	This 	appeal requires us to determine whether	8
Defendants’ locked gate was sufficient to prescriptively extinguish Plaintiff’s right	9
to drive over the easement. 	We hold that an easement will be prescriptively	10
extinguished, 	partially or completely, 	if the servient owner adversely uses the	11
property in an open or notorious manner continuously for the prescriptive period.	12
See Restatement 	(Third) of Prop.: Servitudes § 7.7 (2000). 	However, because	13
Defendants’ use of the easement was not sufficiently adverse, Plaintiff’s easement	14
was not prescriptively extinguished.	15
BACKGROUND	16
{2} 	Neither 	party disputes 	any of the 	relevant facts. 	Plaintiff’s 	property is	17
comprised of an eastern and western parcel, divided in two by a creek. In 1981, a	18
third party who owned property abutting Plaintiff’s western parcel granted Plaintiff	19
an express easement, twenty feet in width, for ingress and egress. The easement,	20

2
which consists of an old road, allows Plaintiff to access its western parcel without	1
needing to cross the creek, which tends to flood during monsoon season.	2
{3} 	In 1993, Defendants purchased the property from the third party, subject to	3
Plaintiff’s easement. When Defendants bought their property, there was already an	4
existing locked wire gate, and even though that gate crossed the easement, they	5
acknowledged Plaintiff 	had the right to drive over the easement. 	Soon after,	6
Defendants replaced the locked wire gate with a locked metal tube gate across the	7
easement. The gate is fenced on both sides, and is near, but not on, the parties’ shared	8
property line, which is unfenced. The gate has remained locked since it was first	9
installed, 	and prevents any vehicular 	traffic from traveling the full length 	of	10
Plaintiff’s easement. Plaintiff had at one time driven over the easement prior to	11
Defendants 	buying the property, but never after that point. Despite 	the gate,	12
Plaintiff’s individual members still used the easement for walking, hiking, and	13
occasionally surveying the property, by going around the gate and adjoining fence.	14
{4} 	Plaintiff knew it could not drive past the gate but did not immediately ask that	15
the gate be opened or removed. This is because the gate also benefitted Plaintiff by	16
reducing traffic over its property, traffic that could potentially harm the natural	17
landscape Plaintiff wanted to preserve. However, around 2015 Plaintiff sought to	18
build a house on its western parcel. It asked Defendants to remove the gate so that it	19
could improve the easement into a road that could be driven on more easily.	20

3
Defendants denied Plaintiff’s request and told Plaintiff in two separate letters that its	1
easement was “not valid, due to non-use.” Defendants threatened that if Plaintiff	2
continued to use the easement they would take legal action.	3
{5} 	Plaintiff beat Defendants to it. Two years after Defendants’ second letter was	4
sent, Plaintiff filed suit against Defendants, primarily for trespass. Plaintiff sought a	5
declaration of its rights and to quiet title to the easement, along with an order	6
enjoining Defendants from blocking it. Defendants counterclaimed seeking to quiet	7
title in their favor, alleging the easement had either been abandoned or prescriptively	8
extinguished. After roughly two more years had passed, Plaintiff filed a motion for	9
summary judgment. 	Plaintiff’s 	motion took aim 	at Defendants’ 	counterclaim,	10
arguing mainly that there was no evidence that Plaintiff intended to abandon its	11
easement or that Defendants had adversely used the easement to extinguish it via	12
prescription. Plaintiff also sought to establish that its easement, although expressly	13
granted, was one of necessity not subject to abandonment or prescription.	14
{6} 	The district 	court granted 	the motion. It found that Plaintiff 	made no	15
affirmative acts “which unequivocally showed an intent to abandon [its] easement.”	16
Because Plaintiff had an interest in keeping the gate, and because the gate did not	17
prevent Plaintiff’s members from using the easement for “recreational purposes”	18
other than driving, the district court found that failing to drive over the easement or	19
cut the lock did not demonstrate an intent to abandon. Finally, the district court found	20

4
that “[t]here was a dearth of evidence to show” that the easement had been	1
prescriptively extinguished. The district court did not rule on Plaintiff’s necessity	2
argument.	3
{7} 	Defendants appealed. Like those below, the arguments offered by the parties	4
on appeal center on the legal effect of the undisputed facts. However, Defendants no	5
longer press that Plaintiff’s 	easement has been abandoned. Instead, their only	6
argument on appeal is that the easement has been prescriptively 	extinguished	7
because (1) the locked gate violated Plaintiff’s easement rights, (2) Plaintiff knew	8
its rights were being violated, yet did nothing to stop Defendants, and (3) the locked	9
gate had been in place for well over ten years, the prescriptive period. Although they	10
initially claimed that the entire easement was extinguished, Defendants have limited	11
their argument to attack only Plaintiff’s right to drive over it.	12
DISCUSSION	13
{8} 	Because the parties only dispute the legal effect of the underlying facts, we	14
review the district 	court’s 	legal 	conclusions on summary judgment de novo.	15
Amethyst Land Co. v. Terhune, 2014-NMSC-015, ¶ 9, 362 P.3d 12. To resolve this	16
appeal, we first discuss the law governing prescriptive extinguishment of easements.	17
After explaining the necessary elements, we consider whether Defendants have met	18
their burden of showing a genuine dispute exists as to each element so as to warrant	19
a trial on the merits. See Horne v. Los Alamos Nat’l Sec., L.L.C., 2013-NMSC- 004,	20

5
¶ 15, 296 P.3d 478. (“Once the movant makes a prima facie showing [of entitlement	1
to judgment as a matter of law], the party opposing summary judgment has the	2
burden to demonstrate the existence of specific evidentiary facts which would	3
require trial on the merits.” (internal quotation marks and citation omitted)). We	4
conclude that they have not.	5
I. 	Prescriptive Extinguishment Jurisprudence	6
{9} 	The parties do not agree on the law that should govern this dispute. Defendants	7
argue that Luevano v. Maestas, 1994-NMCA-051, ¶ 13, 117 N.M. 580, 874 P.2d	8
788, dictates when an easement is prescriptively extinguished. Defendants also cite	9
to multiple cases from other states, as well as the Restatement (Third) of Property.	10
In contrast, Plaintiff contends that Algermissen v. Sutin, resolves any dispute over	11
when an easement is prescriptively extinguished. 2003-NMSC-001, 133 N.M. 50,	12
61 P.3d 176. And like Defendants, Plaintiff also suggests that we should follow	13
various approaches from other states and treatises. 	Ultimately, 	we believe that	14
neither Luevano nor Algermissen alone completely state the law governing when an	15
easement is prescriptively extinguished.	16
{10} 	Luevano involved a dispute amongst neighbors, in which the plaintiffs sought	17
to preclude use of a road that multiple properties abutted. 1994-NMCA-051, ¶¶ 5, 8-	18
9. As part of their argument, the plaintiffs asserted that they had a greater right to the	19
easement because it had been expressly granted to them, over any rights that may	20

6
have been created through public use. Id. ¶ 12. In clarifying that even the plaintiffs’	1
express easement was vulnerable to interference, this Court explained that “[a]n	2
easement appurtenant is subject to extinction by prescription of the estate to which	3
the easement is appurtenant.” Id. ¶ 13. This happens when a property owner whose	4
property is burdened by the easement, the servient owner, uses their property in a	5
way 	that 	is 	“adverse, 	and 	for 	the 	period 	of 	prescription, 	continuous 	and	6
uninterrupted,” to 	the 	easement 	owner’s 	rights. 	Id. 	The whole of 	Leuvano’s	7
discussion of prescriptive extinguishment relied on Section 506 comment b of the	8
Restatement (First) of Property (1944). See Luevano, 1994-NMCA-051, ¶ 13. Other	9
than recognizing the basic concept, however, the Luevano Court had no occasion to	10
apply the rule to the facts of the case. Luevano was instead resolved in favor of the	11
defendants, who had created rights in the road. See id. ¶¶ 31-32.	12
{11} 	Beyond Luevano, New Mexico courts have not further addressed when an	13
easement may be extinguished by prescription. And while it enunciated certain	14
necessary elements for an easement to be extinguished by prescription, Luevano fails	15
to offer any helpful analysis of them. In contrast, a significant number of cases have	16
discussed the law concerning the creation of an easement by prescription. See, e.g.,	17
Algermissen, 2003-NMSC-001; 	Segura v. Van Dien, 2015-NMCA-017, 344 P.3d	18
1009; 	Brannock v. Lotus Fund, 2016-NMCA-030, 	367 	P.2d 888; 	Ulibarri v.	19
Jesionowski, 	2023-NMCA-008, 	523 	P.3d 	624. 	The modern 	statement 	of the	20

7
elements 	necessary 	to 	create 	an 	easement 	by 	prescription 	were 	laid 	out 	in	1
Algermissen: “[A]n easement by prescription is created by an adverse use of land,	2
that is open or notorious, and continued without effective interruption for the	3
prescriptive period (of ten years).” 2003-NMSC-001, 	¶ 10 (citing Restatement	4
(Third) of Prop.: Servitudes §§ 2.16, 2.17 (2000)). Algermissen went on to elaborate	5
on each element. “An 	adverse use is a use made without the consent of the	6
landowner. It is also the type of use that would normally give rise to a cause of action	7
in tort.” Id. ¶ 11. “To be open, the use must be visible or apparent,” and “[t]o be	8
notorious, the claimant’s use of the property must be either actually known to the	9
owner or widely known in the neighborhood.” Id. ¶ 19. Finally, “[f]or the use to be	10
continuous, it must take place with the same consistency that a normal owner of the	11
claimed servitude would make, so long as that use is reasonably frequent.” Id. ¶ 23.	12
{12} 	Thus far, it is apparent that the elements for prescriptively extinguishing an	13
easement and prescriptively creating an easement both require an adverse use that is	14
continued for the prescriptive period. The Restatement (Third) of Property, relied on	15
throughout Algermissen, recognizes this connection as well: “Adverse uses meeting	16
the requirements [to create an easement by prescription] that unreasonably interfere	17
with easements . . ., if continued throughout the prescriptive period, extinguish the	18
benefit of the servitude to the extent of the adverse use.” Restatement (Third) of	19
Prop.: Servitudes § 7.7 cmt. b; see Algermissen, 2003-NMSC-001, ¶¶ 10-11, 18-19,	20

8
23. Moreover, “[t]he rationale for extinguishing servitude benefits by prescription is	1
the same as that for permitting their acquisition by prescription.” Restatement	2
(Third) of Prop.: Servitudes § 7.7 cmt. a (noting how interference with easement	3
rights creates a “succession of causes of action” that prescription brings to a close);	4
see Algermissen, 2003-NMSC-001, 	¶ 11 (stating that adversity typically creates a	5
cause of action in tort). Given the interrelation between prescriptively extinguishing	6
and creating an easement, Algermissen’s additional development of the elements	7
required to prescriptively create an easement may also be used to analyze when an	8
easement is prescriptively extinguished.	9
{13} 	The parties’ arguments have highlighted, 	however, that Leuvano’s brief	10
enumeration of the elements 	omitted the open or notorious requirement from	11
Algermissen. In Matoush v. Lovingood, the Colorado Supreme Court recognized	12
what we do here—that extinguishing an easement and creating an easement by	13
prescription require elements that “mirror” each other. 177 P.3d 1262, 1269 (Colo.	14
2008) (en banc). The court thus adopted elements for prescriptively extinguishing	15
an easement that mirror those for creating one by prescription. Id. at 1270. Those	16
elements are the same as those our Supreme Court adopted in Algermissen, including	17
that the servient owner’s use be open or notorious. See 2003-NMSC-001, ¶ 10. The	18
majority of the cases around the country also require that the use be open or	19
notorious. See Mid-Valley Res., Inc. v. Foxglove Properties, LLP, 381 P.3d 910, 919-	20

9
20 (Or. Ct. App. 2016); Childs v. Harada, 311 P.3d 710, 722 (Haw. Ct. App. 2013);	1
Hansen v. 	Davis, 	220 	P.3d 	911, 	916 	(Alaska 	2009); 	Meadow Lake Estates	2
Homeowners Ass’n v. Shoemaker, 2008 MT 41, ¶ 36, 341 Mont. 345, 178 P.3d 81;	3
see also Jon W. Bruce & James W. Ely, Jr., The Law of Easements & Licenses in	4
Land § 10:25, Westlaw (database updated March 2023) (“In order for an easement	5
to be extinguished by prescription, the servient owner’s use or possession must	6
satisfy the same elements required for obtaining an easement by prescription.”);	7
Bruce & Ely, supra, § 10:25 n.4 (collecting cases). 25 Am. Jur. 2d Easements &	8
Licenses § 89, Westlaw (database updated February 2023) 	(“To claim adverse	9
possession of an easement, the servient owner must prove . . . open and notorious	10
use of the easement area . . . .” (footnotes omitted)); 25 Am. Jur. 2d Easements &	11
Licenses § 89 n.4 (collecting cases). Ensuring the servient owner’s use is open or	12
notorious serves an important purpose: it establishes that the easement owner had	13
notice of the adverse use and ample opportunity to protect against losing its rights.	14
See Restatement (Third) of Prop.: Servitudes § 2.17 cmt. h. We follow the majority	15
approach and conclude that a servient owner’s adverse use must be open or	16
notorious.	17
{14} 	Although both prescriptively extinguishing an easement and prescriptively	18
creating an easement require adverse use, there is an important conceptual and	19
practical difference concerning that element. A servient owner already has the right	20

10
to use their property, including land over which an easement has been granted, unlike	1
a prospective easement 	owner trying 	to 	establish 	rights 	by prescription. 	See	2
Matoush, 177 P.3d at 1270; Hansen, 220 P.3d at 916. Thus, even “significant activity	3
in the easement area by the servient owner may not be adverse to the easement	4
holder’s interest.” Bruce & Ely, supra, § 10:25; id. § 10:25 n.10 (collecting cases).	5
The use must interfere “significantly enough with the easement owner’s enjoyment	6
of the easement to give notice that the easement is under threat.” 25 Am. Jur. 2d	7
Easements & Licenses § 89. We believe such a requirement comports with New	8
Mexico’s acknowledgement that “[f]orfeitures of easements are not favored in law.”	9
Ritter-Walker Co. v. Bell, 1942-NMSC-008, ¶ 9, 46 N.M. 125, 123 P.2d 381.	10
{15} 	Finally, 	because 	real 	property 	rights 	are 	divisible, 	extinguishment 	by	11
prescription “may be complete or partial.” Restatement (Third) of Prop.: Servitudes	12
§ 7.7 cmt. b. The extent to which the beneficial use of the easement is extinguished	13
is based on which benefit is irreconcilable with the servient estate’s prescriptive use.	14
See Pappas v. Maxwell, 150 N.E.2d 521, 524-25 (Mass. 1958) (“Where . . . acts of	15
the servient tenant render the use of only part of a right of way impossible, the	16
easement is extinguished only as to that part.”); 28A C.J.S. Easements § 157,	17
Westlaw (database updated March 2023) (“[W]here the servient owner’s use of land	18
was entirely irreconcilable with certain uses of the easement and remained so for the	19
prescriptive period, the easement is extinguished as to those uses.”).	20

11
{16} 	To summarize, an easement will be prescriptively extinguished if the servient	1
owner’s use of the area is (1) adverse to the easement owner’s rights in the easement,	2
(2) open or notorious, and (3) continuous without effective interruption for the	3
prescriptive period (ten years). While different courts and treatises 	have used	4
different language to explain the level of adversity required, it must amount to an	5
unreasonable interference such that the easement owner is on “notice that the	6
easement is 	under threat.” 	25 Am. Jur. 2d 	Easements & Licenses 	§ 89; 	see	7
Restatement (Third) of Prop.: Servitudes § 7.7 (requiring uses that “unreasonably	8
interfere” with an easement owner’s rights); see, e.g., Moutash, 177 P.3d at 1270	9
(requiring “incompatible or irreconcilable” use). The extinguishment resulting from	10
the servient owner’s adverse use may be complete, or partial, based on the extent it	11
interferes with the easement holder’s rights.	12
II. 	Application	13
{17} 	Turning now to the facts at hand, we conclude that Defendants’ use of their	14
property—replacing a locked gate with their own locked gate over the easement—	15
was not sufficiently adverse so as to put Plaintiff on notice that its rights were under	16
threat. We note that Algermissen instructs on various presumptions that assist in	17
determining adversity. See 2003-NMSC-001, 	¶ 11. However, Defendants offer no	18
argument on appeal that we should apply them in this case. Nor did they present	19
such an argument to the district court. Because the parties do not argue that the	20

12
presumptions apply in the context of extinguishment, we do not address the question.	1
We 	thus examine 	the facts 	to determine 	whether they demonstrate 	sufficient	2
adversity.	3
{18} 	Our task is to determine whether Defendants unreasonably interfered with	4
Plaintiff’s enjoyment of the easement such that Plaintiff was on notice that the	5
easement was under threat. 1 See 25 Am. Jur. 2d Easements & Licenses 	§ 89;	6
Restatement (Third) of Prop.: Servitudes § 7.7. This is a heavily fact dependent	7
determination. See 25 Am. Jur. 2d Easements & Licenses § 89 (“Determining what	8
constitutes unreasonable interference will be heavily fact dependent.”); Bruce & Ely,	9
1
Plaintiff would also have us adopt a rule from Castle Associates v. Schwartz,
407 N.Y.S.2d 717, 723 (N.Y. App. Div. 1978), which states,
[W]here an easement has been created but no occasion has arisen
for its use, the owner of the servient tenement may fence his land and
such use will not be deemed adverse to the existence of the easement
until such time as (1) the need for the right of way arises, (2) a demand
is made by the owner of the dominant tenement that the easement be
opened and (3) the owner of the servient tenement refuses to do so.
It has received mixed reception across the country. See, e.g., Matoush, 177 P.3d at
1268 (adopting the Castle rule); Halverson v. Turner, 885 P.2d 1285, 1290 (Mont.
1994) (same). But cf. Hansen, 220 P.3d at 915 (criticizing and refusing to adopt the
Castle rule); Humphreys v. Wooldridge, 408 S.W.3d 261, 270 n.7 (Mo. Ct. App.
2013) (finding the Castle rule “unpersuasive”). The rule was also limited in the state
it was created to apply only to “easements not definitively located and developed
through use” because they are “not yet in functional existence . . . .” Spiegel v.
Ferraro, 541 N.E.2d 15, 17 (N.Y. 1989). However, this appeal does not require us
to determine whether New Mexico follows the rule. And even if it did, it would be
inapplicable in this case, as Plaintiff’s easement was definitively located and used,
even for vehicular use at one time. See Crutchfield v. N.M. Dep’t of Tax’n &
Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A reviewing court
generally does not decide academic . . . questions.”).

13
supra, §10.25 (“Resolution of the adversity issue is heavily fact dependent. Only an	1
examination of the numerous cases in the area can provide a sense of the type of	2
activity 	that 	constitutes 	adverse 	use 	or 	possession.” 	(footnote 	omitted)).	3
Unsurprisingly, the effect of gates, fences, and other obstructions have long been	4
evaluated by courts, resulting in a wide array of decisions hinging on the facts of	5
each case. See Restatement (Third) of Prop: Servitudes § 4.9 (2000); 	see, e.g.,	6
Hansen, 220 P.3d at 917; Shors v. Branch, 720 P.2d 239, 244 (Mont. 1986); Sevier	7
v. Locher, 272 Cal. Rptr. 287, 290 (Ct. App. 1990); Horecny v. Raichl, 571 P.2d 495,	8
497 (Or. 1977).	9
{19} 	Here, we conclude, based on the undisputed facts, that Defendants’ use did	10
not unreasonably interfere with Plaintiff’s enjoyment of the easement and so did not	11
put Plaintiff on notice that its rights in the easement were being threatened, even as	12
to its right to drive over the easement. Defendants essentially argue that their locked	13
gate was sufficiently adverse because it was a violation of Plaintiff’s easement rights	14
and Plaintiff did nothing to stop it. Even if both of these facts were true, however, in	15
this case they do not alone demonstrate sufficient adversity. Defendants’ gate merely	16
replaced a locked gate that was already across the easement when Defendants bought	17
the 	property, 	Defendants 	acknowledged 	that 	Plaintiff’s 	easement 	permitted	18
vehicular traffic, and no evidence was presented demonstrating that Defendants,	19
through words or deeds, put Plaintiff on notice that the purpose of the replacement	20

14
gate was to thwart Plaintiff’s use of the easement. See Gandy Co. v. Freuer, 313	1
N.W.2d. 576, 579 (Minn. 1981) (holding that a padlocked gate was not adverse when	2
the “purpose of the lock was to keep hunters [off the property]”); Sevier, 272 Cal.	3
Rptr. at 290 (locked gate adverse in part because the owner “refused to give”	4
easement owner the key). The lack of such evidence is especially critical considering	5
facts demonstrating that Plaintiff permitted the locked gate to remain in place	6
because it benefited Plaintiff by restricting traffic over the property.	7
{20} 	Additionally, the locked gate is not on the parties’ shared property line, which	8
makes it unclear whether the purpose of the gate was to restrict Plaintiff’s entry. But	9
see Hansen, 220 P.3d at 916 (noting that an unreasonable interference is adverse in	10
part because “such extensive use constitutes a ‘distinct and positive assertion’ by the	11
servient estate owner that his or her use of the easement is hostile to the rights of the	12
easement holder and is not merely a permissive use” (emphasis added)). Moreover,	13
Defendants did nothing to restrict or otherwise dissuade Plaintiff’s multifaceted use	14
of the easement, which undoubtedly required circumventing the gate. By the time	15
Defendants expressly contested Plaintiff’s right to use the easement in their letters,	16
it was 2015—even if this act demonstrated adverse use, it did not continue for the	17
prescriptive period of ten years. The undisputed facts establish that Defendants did	18
not satisfy the adversity element of an extinguishment claim.	19

15
{21} 	In trying to avoid this result, Defendants direct us to two New Mexico cases	1
as support for the proposition that their gate is sufficiently adverse, but neither case	2
offers analysis on when an obstruction is sufficient to prescriptively extinguish an	3
easement—an act that requires a higher level of adversity. See Huff v. McClannahan,	4
1976-NMCA-121, 	¶ 8, 89 N.M. 	762, 557 P.2d 1111 (concluding that servient	5
owner’s placement of gates on easement “was unreasonable”); Dethlefsen v. Weddel,	6
2012-NMCA-077, ¶¶ 35-36, 284 P.3d 452 (determining that an easement grant was	7
ambiguous as to whether it “contemplated the use of a lockable gate” and remanding	8
for further proceedings).	9
{22} 	The cases Defendants cite from other jurisdictions are likewise inapposite. In	10
Public Lands Access Ass’n, Inc. v. Boone & Crocket Club Foundation, Inc., the	11
Montana Supreme Court determined that the public lost any claim to a prescriptive	12
easement 	when the servient owner engaged 	in an extensive 	program heavily	13
restricting access to its property. 856 P.2d 525, 532 (Mont. 1993). There, the servient	14
owner closed its road as part of a “walk-in” program with which the State of Montana	15
assisted. Id. at 531. There were also clear signs indicating that no one was permitted	16
to drive beyond the parking area, and that written permission was required to	17
continue on foot or horseback on the servient owner’s property. Id. Citations were	18
even issued to people using the area without permission. Id. Here, Defendants never	19
engaged 	in 	similarly 	extensive 	regulation 	of 	Plaintiff’s 	easement 	such 	that	20

16
Defendants would know its use of the easement was being intentionally restricted,	1
like the public’s use of the land in Boone & Crocket Club Foundation, Inc.	2
{23} 	The next case pressed by Defendants, Yagjian v. O’Brien, 477 N.E.2d 202	3
(Mass. App. Ct. 1985), likewise involved an extensive impediment to an easement.	4
There, the entire length of the easement had been fenced off, either by a stone wall	5
or wire fencing, such that any entry to the easement required passing over the fence	6
or wall. Id. at 203. Here, most of Plaintiff’s easement is accessible, even by vehicle.	7
Finally, Defendants point us to Sevier, however, that case presented a situation	8
where the defendants “extinguished [the plaintiff’s] right to use [the easement] as a	9
roadway for vehicles of all kinds, pedestrians and animals,” with a six-foot gate that	10
could not be avoided, and refused to provide the plaintiffs with a key—expressly	11
putting the plaintiffs on notice of a restriction on their easement rights. 272 Cal. Rptr.	12
at 290 (internal quotation marks omitted).	13
{24} 	We hold that the district court properly entered summary judgment because,
based on the undisputed facts, Defendants do not satisfy the adversity element for
extinguishment by prescription. It is therefore unnecessary for us to determine
whether the easement was one of necessity, 	not subject to extinguishment by
prescription.

17
CONCLUSION	1
{25} 	For the foregoing reasons, we affirm the district court’s grant of summary	2
judgment in favor of Plaintiff. Each party shall bear their own costs and attorney fees	3
on appeal.	4
{26} 	IT IS SO ORDERED.	5
____________________________________	6
SHAMMARA H. HENDERSON, Judge	7
WE CONCUR:	8
____________________________	9
ZACHARY A. IVES, Judge	10
____________________________	11
JANE B. YOHALEM, Judge	12