Firstenberg v. Leith

• Court: New Mexico Court of Appeals
• Decided: January 17, 2018
• Docket: A-1-CA-36151
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 ARTHUR FIRSTENBERG,

3 Plaintiff-Appellant/Cross-Appellee,

4 v. NO. A-1-CA-36151

5 ROBIN LEITH,

6 Defendant-Appellee/Cross-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Sarah M. Singleton, District Judge

9 Arthur Firstenberg 10 Santa Fe, NM

11 Pro Se Appellant/Cross-Appellee

12 Stiff, Keith & Garcia, LLC 13 Ann L. Keith 14 Justin D. Goodman 15 Albuquerque, NM

16 for Appellee/Cross-Appellant

17 MEMORANDUM OPINION

18 VANZI, Chief Judge. 1 {1} Plaintiff appeals, and Defendant cross-appeals, the district court’s decision in

2 this civil case. We issued a notice of proposed summary disposition proposing to

3 affirm on both the appeal and the cross-appeal, and Plaintiff has responded with a

4 memorandum in opposition. Defendant did not respond to the proposed disposition.

5 We have carefully considered Plaintiff’s memorandum but continue to believe that

6 affirmance is warranted in this case. Therefore, for the reasons set out below and in

7 our notice of proposed summary disposition, we affirm.

8 {2} We note first that Plaintiff has clarified that the only meter at issue in this

9 appeal is his electric meter, and that the gas meter is not involved. [MIO 5] As to the

10 merits, in response to our notice, Plaintiff argues only one issue in his memorandum

11 in opposition—whether the district court had discretion to relocate the implied

12 easement for the electric meter. In the notice we pointed to language in two different

13 New Mexico cases that seems to provide district courts with equitable power over

14 easements. Sedillo Title Guar., Inc. v. Wagner, 1969-NMSC-087, ¶ 19, 80 N.M. 429,

15 457 P.2d 361; Sanders v. Lutz, 1989-NMSC-076, ¶ 15, 109 N.M. 193, 784 P.2d 12.

16 Plaintiff argues that our citations to these cases was inapposite because they are both

17 distinguishable. For example, he points out that in Sedillo, the owner of the easement

18 consented to relocation of the easement. [MIO 4] He also points out that Sanders

19 involved interpretation of an easement’s terms, not relocation of the easement. [Id. 4-

20 5]

2 1 {3} We agree with Plaintiff that the facts and circumstances in Sedillo and Sanders

2 are different than those of this case. However, we did not cite those cases as directly

3 controlling, but merely as stating general principles of law—that courts have equitable

4 power over easements, and specifically have the power to relocate easements in

5 limited, special circumstances. There is considerable dispute in case law around the

6 country concerning the existence of this power; in 2002, for example, one court

7 opined that the majority position is to the contrary. MacMeekin v. Low Income Hous.

8 Inst., 45 P.3d 570, 575-76 (Wash. App. 2002). However, the Restatement (Third) of

9 Property (Servitudes) § 4.8(3) (2000) takes the position that an easement may be

10 relocated, even by the servient owner and not necessarily a court, if the changes do not

11 significantly lessen the utility of the easement, increase the burdens on the owner of

12 the easement, or frustrate the purpose for which the easement was created. Many

13 courts around the country have adopted this more modern position, including among

14 others courts in Colorado, Illinois, Massachusetts, Utah, and Vermont. See, e.g.,

15 Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1235-37 (Colo. 2001) (noting

16 that “inflexible notions of dominant and servient estates do little to advance [the]

17 accommodation” of competing uses between two interested owners, and adopting the

18 Restatement position described above); 527 S. Clinton, LLC v. Westloop Equities,

19 LLC, 932 N.E.2d 1127, 1138 (Ill. App. Ct. 2010); M.P.M. Builders LLC v. Dwyer, 809

20 N.E.2d 1053, 1056-57 (Mass. 2004); Hubble v. Cache Cnty. Drainage Dist No. 3, 259

3 1 P.2d 893, 896 (Utah 1953); Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, ¶ 24,

2 195 Vt. 427, 94 A.3d 530 (2014). This Court has found the Restatement of Property

3 to be persuasive authority in the easement context and has followed its provisions.

4 See, e.g., Firstenberg v. Monribot, 2015-NMCA-062, ¶ 45, 350 P.3d 1205; Burciaga

5 Segura v. Van Dien, 2015-NMCA-017, ¶¶ 10-11, 344 P.3d 1009. And the Supreme

6 Court, as we have stated, recognized a court’s equitable authority to relocate an

7 easement in the Sedillo case. We therefore reject Plaintiff’s contention that a court

8 categorically cannot relocate an easement over the objections of the dominant estate

9 owner.

10 {4} In this case there is no indication that relocation of the electric meter to the

11 other side of Defendant’s house interferes at all with Plaintiff’s use of the meter. In

12 fact, Plaintiff concedes as much in his memorandum in opposition by stating that he

13 “never has a need to read” the meter. [MIO 6] This concession, standing alone, could

14 provide an alternate reason to affirm—the apparent lack of any possible harm to

15 Plaintiff as a result of moving the meter makes this issue a “mere trifle” that should

16 not result in reversal. See, e.g., Amkco, Ltd. v. Welborn, 2001-NMSC-012, ¶ 15, 130

17 N.M. 155, 21 P.3d 24 (pointing out that under the de minimis rule, a venerable legal

18 maxim, equity will not involve itself with mere trifles). Be that as it may, the district

19 court in its discretion decided that the electric meter could be moved, and no abuse of

4 1 that discretion has been demonstrated here. We therefore affirm the district court on

2 this issue.

3 {5} Based on the foregoing as well as the discussion in our notice of proposed

4 summary disposition, we affirm the district court’s decision in its entirety.

5 {6} IT IS SO ORDERED.

6 __________________________________ 7 LINDA M. VANZI, Chief Judge

8 WE CONCUR:

9 _________________________________ 10 STEPHEN G. FRENCH, Judge

11 _________________________________ 12 HENRY M. BOHNHOFF, Judge