Gallegos v. Trujillo

• Court: New Mexico Court of Appeals
• Decided: September 23, 2009
• Docket: 29,645
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 SANDRA GALLEGOS and 8 DAMACIO GALLEGOS,

9 Plaintiffs-Appellees,

10 v. NO. 29,645

11 JUDY GONZALES, MANNIE J. TRUJILLO 12 and TOMMY F. TRUJILLO,

13 Defendants-Appellants.

14 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 15 Karen L. Parsons, District Judge

16 David M. Stevens, Attorneys at Law, P.C. 17 William N. Griffin 18 Ruidoso, NM

19 for Appellees

20 The Rose Law Firm 21 Timothy L. Rose 22 Ruidoso, NM

23 for Appellants

24 MEMORANDUM OPINION 1 WECHSLER, Judge.

2 Defendants appeal from the district court judgment that Plaintiffs have a

3 prescriptive easement. Our notice proposed to affirm, and Defendants filed a timely

4 memorandum in opposition. We remain unpersuaded by Defendants’ arguments, and

5 therefore affirm.

6 Issue (1): Defendants continue to argue that the district court failed to properly

7 instruct the jury as to the elements of prescriptive easement. [DS 4; MIO 1] In

8 response to our notice, Defendants do not provide this Court with any additional facts

9 or argument and, instead, elect to rely on the arguments set forth in their docketing

10 statement. [MIO 1] Therefore, for the reasons provided in our notice, we affirm. See

11 State v. Mondragon, 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct. App. 1988)

12 (providing that a party responding to a summary calendar notice must come forward

13 and specifically point out errors of law and fact, and the repetition of earlier arguments

14 does not fulfill this requirement).

15 Issue (2): Defendants continue to argue that the district court abused its

16 discretion in defining the scope of the easement. [DS 5; MIO 1] Defendants argue

17 that the district court effectively divested Defendants of all use of their right to the

18 land [MIO 1] and that they should be “able to use their land to any extent as they see

2 1 fit as long as they do not disrupt [Plaintiffs’] established easement.” [MIO 1]

2 The district court ruled that “the existing fence shall remain in place” (emphasis

3 omitted) [RP 387; DS 5; MIO 1] and that Defendant’s use of the easement shall be

4 “limited to emergency and occasional ingress for maintenance of their buildings, trees

5 and fences, as is reasonable” and for “access to allow public service employees to

6 maintain utilities.” [RP 387; DS 5; MIO 1] The district court’s ruling allows

7 Defendants access to the easement for some purposes (emergency use, maintenance,

8 access to utilities) [RP 387], but does not allow Defendants to use the easement

9 without restrictions or, as advocated by Defendants, “as they see fit.” [DS 5; MIO 1]

10 As recognized in Cunningham v. Otero County Electric Cooperative, 114

11 N.M. 739, 743, 845 P.2d 833, 837 (Ct. App. 1992), “[t]he extent of an easement

12 created by prescription is fixed by the use through which it was created.” (internal

13 quotation marks and citation omitted). Indeed, the district court’s ruling that

14 “Defendants shall make no use of the easement area that interferes in any way with

15 the use of the easement by . . . Plaintiffs” [RP 387] is an entirely reasonable restriction

16 on Defendants’ use of the easement. See generally Cox v. Hanlen, 1998-NMCA-015,

17 ¶ 20, 124 N.M. 529, 953 P.2d 294 (filed 1997) (holding that “[t]he possessor of land

3 1 subject to an easement created by prescription is privileged, as against the owner of

2 the easement, to make such uses of the servient tenement as are not incompatible with

3 the use authorized by the easement” (internal quotation marks and citation omitted));

4 Archibeck v. Mongiello, 58 N.M. 749, 754, 276 P.2d 736, 741 (1954) (recognizing

5 that “[i]f the adverse user has established the right to a prescriptive easement which

6 is free from obstruction, such easement can not be burdened, changed, or lessened in

7 any way by the owner of the servient estate except with the consent of the holder of

8 the easement [because] [i]t is a vested property right” (emphasis, internal quotation

9 marks, and citation omitted)).

10 Moreover, although Defendants complain that the scope of the easement

11 granted by the district court improperly infringes on their rights [DS 5; MIO 1],

12 Defendants have not specifically pointed to any activities they are precluded from

13 conducting on the land in question that would not interfere with Plaintiffs’ easement.

14 Accordingly, for all of the reasons set forth above and in our notice, we affirm

15 the scope of the prescriptive easement granted to Plaintiffs.

16 IT IS SO ORDERED.

17 _______________________________ 18 JAMES J. WECHSLER, Judge

4 1 WE CONCUR:

2 _______________________________ 3 RODERICK T. KENNEDY, Judge

4 _______________________________ 5 LINDA M. VANZI, Judge