Lobato v. Taylor

71 P.3d 938, 2002 Colo. LEXIS 527, 2002 WL 1360432

• Court: Supreme Court of Colorado
• Decided: June 24, 2002
• Docket: 00SC527
• Status: Published

Opinions

Chief Justice MULLARKEY

delivered the Opinion of the Court.

The history of this property rights controversy began before Colorado’s statehood, at a time when southern Colorado was part of Mexico; at a time when all of the parties’ lands were part of the one million acre Sangre de Cristo grant, an 1844 Mexican land grant. Here, we determine access rights of the owners of farmlands in Costilla County to a mountainous parcel of land now known as the Taylor Ranch. As successors in title to the original settlers in the region, the landowners exercised rights to enter and use the Taylor Ranch property for over one hundred years until Jack Taylor fenced the land in 1960 and forcibly excluded them. These rights, they assert, derive from Mexican law, prescription, and an express or implied grant, and were impermissibly denied when the mountain land was fenced.

We are reviewing this case for the second time in this protracted twenty-one year litigation. In the first phase of this litigation, the trial court dismissed the plaintiffs’ claims, holding that a federal decision in the 1960s on the same issue barred their suit. We reversed and remanded, holding that the notice given in the federal case did not comport with due process. The subject matter of the current appeal is the landowners’ substantive claims of rights. The trial court and the court of appeals held that the landowners failed to prove rights on any of their three theories.

We find that evidence of traditional settlement practices, repeated references to settlement rights in documents associated with the Sangre de Cristo grant, the one hundred year history of the landowners’ use of the Taylor Ranch, and other evidence of necessity, reliance, and intention support a finding of implied rights in this case. While we reject the landowners’ claims for hunting, fishing, and recreation rights, we find that the landowners have rights of access for grazing, firewood, and timber through a prescriptive easement, an easement by estop-pel, and an easement from prior use. Furthermore, we retain jurisdiction in order to examine the trial court’s due process determination.

I. Facts and Prior Proceedings

In 1844, the governor of New Mexico granted two Mexican nationals a one million-acre land grant, located mainly in present-day southern Colorado (Sangre de Cristo grant), for the purpose of settlement. The original grantees died during the war between the United States and Mexico. The land was not settled in earnest until after the cessation of the war, and Charles (Carlos) Beaubien then owned the grant.

In 1848, the United States and Mexico entered into the Treaty of Guadalupe Hidal-go, ending the war between the two countries. Treaty of Peace, Friendship, Limits, and Settlement (Treaty of Guadalupe Hidal-go), February 2, 1848, U.S.-Mex., 9 Stat. 922. Pursuant to the treaty, Mexico ceded land to the United States, including all of California, Nevada, and Utah; most of New Mexico and Arizona; and a portion of Colorado. The United States agreed to honor the existing property rights in the ceded territory. Relevant to the Sangre de Cristo grant, Congress asked the Surveyor General of the Territory of New Mexico to determine what property rights existed at the time of the treaty. On the Surveyor General’s recommendation, Congress confirmed Carlos Beaubien’s claim to the Sangre de Cristo grant in the 1860 Act of Confirmation. 12 Stat. 71 (1860).

In the early 1850s, Beaubien successfully recruited farm families to settle the Colorado portion of the Sangre de Cristo grant. He leased a portion of his land to the United States government to be used to establish Fort Massachusetts and recruited farmers to settle other areas. The settlement system he employed was common to Spain and Mexico: strips of arable land called vara strips were allotted to families for farming, and areas not open for cultivation were available for common use. These common areas were used for grazing and recreation and as a source for timber, firewood, fish, and game.

In 1863, Beaubien gave established settlers deeds to their vara strips. That same year, Beaubien executed and recorded a Spanish language document that purports to grant rights of access to common lands to settlers on the Sangre de Cristo grant (Beaubien Document). In relevant part, this document guarantees that “all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.”

A year later, Beaubien died. Pursuant to a prior oral agreement, his heirs sold his interest in the Sangre de Cristo grant to William Gilpin, who was Colorado’s first territorial governor. The sales agreement (Gil-pin agreement) stated that Gilpin agreed to provide vara strip deeds to settlers who had not yet received them. The agreement further stated that Gilpin took the land on condition that certain “settlement rights before then conceded ... to the residents of the settlements ... shall be confirmed by said William Gilpin as made by him.”

In 1960, Jack Taylor, a North Carolina lumberman, purchased roughly 77,000 acres of the Sangre de Cristo grant (mountain tract) from a successor in interest to William Gilpin. Taylor’s deed indicated that he took the land subject to “claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land.”

Despite the language in Taylor’s deed, he denied the local landowners access to his land and began to fence the property. Taylor then filed a Torrens title action in the United States District Court for the District of Colorado to perfect his title (Torrens action).¹ Taylor v. Jaquez, No. 6904 (D.Colo. Oct. 5, 1965). The district court found that the local landowners did not have any rights to the mountain tract; the Tenth Circuit Court of Appeals affirmed. Sanchez v. Taylor, 377 F.2d 733 (10th Cir.1967).

In 1973, Taylor purchased an adjoining, roughly 2,500 acre parcel that was also part of the Sangre de Cristo grant (Salazar estate). Taylor’s predecessor in title to the Salazar estate had also filed a Torrens title action in 1960 which determined that local landowners had no rights in the estate. Together, the mountain tract and the Salazar estate are known as the Taylor Ranch.

The current case began in 1981. In that year a number of local landowners filed suit in Costilla County District Court. The landowners asserted that they had settlement rights to the Taylor Ranch and that Taylor had impermissibly denied those rights.² The court held that the doctrine of res judicata barred the suit because the Salazar Torrens action and the Sanchez decision regarding Taylor’s Torrens action were binding upon the plaintiffs. Rael v. Taylor, No. 81CV5 (Costilla Co. Dist. Ct. Sept. 22, 1986) (Judgment for Defendant on Motion for Judgment on the Pleadings or for Summary Judgment).

The court of appeals affirmed. Rael v. Taylor, 832 P.2d 1011, 1014 (Colo.App.1991). This court granted certiorari and reversed and remanded, questioning the constitutional adequacy of the publication notice in the Torrens action. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo.1994). We directed the trial court to determine which of the plaintiffs received adequate notice in the Torrens action and to hold a trial on the merits for those who did not have proper notice. Id.

On remand, the trial court granted Taylor’s motion for summary judgment on the Mexican law claim. The court then bifurcated the proceedings: it determined the due process and class action certification issues before holding a trial on the merits. During the due process phase, the court dismissed most of the plaintiffs. The court determined that seven of the plaintiffs could pursue their claims regarding the mountain tract and that three of the plaintiffs could proceed with their claims regarding the Salazar estate.³ Without further hearing, the court denied class certification. The court then held a trial on the merits.

After the trial, the court made a finding of fact that the landowners or their predecessors in title had “grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960.” The trial court further found that the community referred to Taylor Ranch as “open range,” and that prior to 1960, the landowners “were never denied access to the land.” The court also stated that it did “not dispute” that the settlers could not have survived without use of the mountain area of the grant.

Despite theses findings, the court determined that the landowners had not proved prescriptive rights because their use was not adverse. The court further held that the Beaubien Document was not an effective express grant of rights because it did not identify the parties to the rights or the locations where the rights should be exercised. Regarding an implied grant by Beaubien, the court concluded that Colorado law did not recognize the implied rights the landowners claimed. The landowners appealed both the due process determination and the rulings on their claim of rights.

The court of appeals affirmed. Lobato v. Taylor, 13 P.3d 821 (Colo.App.2000). The court agreed with the trial court’s conclusions regarding all three of the landowners’ theories. Regarding an express grant of rights, the court of appeals engaged in a technical application of the 1863 property laws of the Colorado Territory. Id. at 831. The court concluded that the document included neither the “Christian and surnames” of the grantees nor an accurate description of the property to be burdened. Id. Furthermore, the court of appeals noted that that because the document does not use the words, “and heirs and assigns” it does not indicate that Beaubien intended any rights to run with the land. Id. Because the court rejected all of the landowners’ substantive claims, the court did not reach the question of whether the trial court erred in its due process decision.

We granted certiorari.

II. Analysis

The landowners claim rights to graze livestock, gather firewood and timber, hunt, fish, and recreate. Before discussing the sources of the settlement rights, we characterize the claimed rights in order to determine the rules of law that govern them.

A. The Rights at Issue

The parties, at various points in the voluminous briefing of this twenty-one year-old litigation, agree that the rights at issue are most appropriately characterized as profits á prendre. A profit á prendre — in modern parlance, a profit — “is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another.” Restatement (Third) of Property: Servitudes § 1.2(2)(1998) [hereinafter Restatement]. Thus, a profit is a type of easement.

This court has described an easement as “a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter.” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998)(quotation marks omitted).

An easement can be in gross or appurtenant. An easement in gross does not belong to an individual by virtue of her ownership of land, but rather is a personal right to use another’s property. Lewitz v. Porath Family Trust, 36 P.3d 120, 122 (Colo.App.2001). An easement appurtenant, on the other hand, runs with the land. It is meant to benefit the property, or an owner by virtue of her property ownership. See Lazy Dog, 965 P.2d at 1234. An easement is presumed to be appurtenant, rather than in gross. Lewitz, 36 P.3d at 122; Restatement, supra, § 4.5(2).

In this case, the landowners allege that the settlement rights were to be used in connection with their land. They argue that the firewood was used to heat their homes, the timber to frame their adobe houses, and the grazing necessary to the viability of their farms. The landowners also assert that the settlement rights were granted to their predecessors in title by virtue of their interest in their vara strips and were in fact a necessary incentive for settlement in the area.

We conclude that the rights the landowners are claiming are best characterized as easements appurtenant to the land. We reach this conclusion from the evidence that under Mexican custom access to common land was given to surrounding landowners, the evidence that this access was used to benefit the use of the land, and the presumption in favor of appurtenant easements.

Having established the nature of the rights at issue, we now turn to the sources of these rights.

B. Sources of the Rights

The landowners argue that their settlement rights stem from three sources: Mexican law, prescription, and an express or implied grant from Beaubien.

Regarding the Mexican law claim, the landowners claim that community rights to common lands not only are recognized by Mexican law, but also are integral to the settlement of an area. The landowners further point out that in the Treaty of Guadalupe Hidalgo, the United States government agreed that the land rights of the residents of the ceded territories would be “inviolably respected.” Under the landowners’ theory, the treaty dictates that the court apply Mexican law to the Taylor Ranch and accordingly recognize the settlement rights.

The landowners further argue that use rights can be found via prescription. For this claim, they point to their regular use of the Taylor Ranch land for over one hundred years until the area was fenced in 1960.

Lastly, the landowners assert that their use rights were obtained by either an express or implied grant from Carlos Beaubien. For this claim, the landowners rely primarily on the Beaubien Document.

The trial court dismissed the Mexican law claim on motion for summary judgment, and after a trial on the merits, rejected the two remaining claims. The court of appeals affirmed. The court of appeals held that the Mexican law claim failed because whatever rights may have existed at the time of the Treaty of Guadalupe Hidalgo were subsequently extinguished by Congress’s 1860 Act of Confirmation. Lobato, 13 P.3d at 829. The court further held that the landowners could not claim prescriptive rights because their use of the Taylor Ranch was not adverse. Id. at 834-35. Lastly, the court held that the Beaubien Document fails as an express grant of rights and that Colorado does not recognize implied easements in the form of profits. Id. at 832-33.

We agree that the landowners cannot claim rights under Mexican law. Their predecessors in title did not settle on the Sangre de Cristo grant until after the land was ceded to the United States⁴ and thus their use rights developed under United States law. Mexican land use and property law are highly relevant in this case in ascertaining the intentions of the parties involved, see infra. However, because the settlement of the grant occurred after the land was ceded to the United States, we conclude that Mexican law cannot be a source of the landowners’ claims.

We disagree, however, with the court of appeals’ resolution of the landowners’ other claims. While the Beaubien Document cannot support an express grant of rights, when coupled with the Gilpin agreement and other evidence, it supports a finding of a prescriptive easement, an easement by estoppel, and an easement from prior use.

1. The Beaubien Document

As evidence of a grant of rights from Carlos Beaubien, the landowners rely primarily on the Beaubien Document. The document was written by Beaubien in 1863, one year before his death.

One English translation of the document reads, in part:

Plaza of San Luis de la Culebra, May 11, 1863.

It has been decided that the lands of the Rito Seco remain uncultivated for the benefit of the community members (gente) of the plazas of San Luis, San Pablo and Los Ballejos and for the other inhabitants of these plazas for pasturing cattle by the payment of a fee per head, etc. and that the water of the said Rito remains partitioned among the inhabitants of the same plaza of San Luis and those from the other side of the vega who hold lands almost adjacent to it as their own lands, that are not irrigated with the waters of the Rio Culebra. The vega, after the measurement of three acres from it in front of the chapel, to which they have been donated, will remain for the benefit of the inhabitants of this plaza and those of the Culebra as far as above the plaza of Los Balle-jos .... Those below the road as far as the narrows will have the right to enjoy the same benefit.... [No one may] place any obstacle or obstruction to anyone in the enjoyment of his legitimate rights .... Likewise, each one should take scrupulous care in the use of water without causing damage with it to his neighbors nor to anyone. According to the corresponding rale, all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.

(Emphases added.)

The landowners assert that this document evidences an express grant of settlement rights on the Taylor Ranch land. The trial court concluded that the Beaubien Document did not vest any rights in the Taylor Ranch. The court noted that although the document lists rights of pasture, water, firewood, and timber, the only locations specified for access are the Rito Seco and the vega, two areas that the parties agree are not part of the Taylor Ranch. The trial court did admit extrinsic evidence to determine whether there was a “latent ambiguity” in the document. However, because the court ultimately found that the document was unambiguous, it ruled that extrinsic evidence could not be considered in interpreting the document.

The court of appeals affirmed. Lobato, 13 P.3d 821. The appeals court agreed that the Beaubien Document was ultimately unambiguous and that the trial court properly treated the extrinsic evidence of Beaubien’s intent. Id. at 832. The court then applied 1863 Colorado property law and concluded that the Beaubien Document did not meet the formal requirements for conveying rights to the landowners’ predecessors in title. Loba-to, 13 P.3d at 831. Moreover, the court held that profits must be expressly granted and thus rejected any claim of implied rights. Id. at 832-33.

We agree that the Beaubien Document does not meet the formal requirements for an express grant of rights. However, we find that the document, when taken together with the other unique facts of this case, establishes a prescriptive easement, an easement by estoppel, and an easement from prior use.

Extrinsic evidence is relevant in interpreting the Beaubien Document. In Lazy Dog, we articulated when a court could examine extrinsic evidence in order to ascertain the nature of an easement. In that case, we expressly followed the Restatement and concluded that “[o]ur paramount concern in construing a deed is to ascertain the intentions of the parties.” Lazy Dog, 965 at 1235. We also recognized that “circumstances surrounding the grant may be relevant to interpreting the language of the grant.” Id. at 1236; see also Restatement, supra, § 4.1(l)(noting that an easement “should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created”). Moreover, the question of whether or not the document is ambiguous “may be answered by reference to extrinsic evidence.” Lazy Dog, 965 P.2d at 1235.

Here, we look to extrinsic evidence to construe the Beaubien Document for two reasons. First, as Lazy Dog tells us, extrinsic evidence may reveal ambiguities. Second, the document is ambiguous on its face with respect to where the landowners could exercise their rights.

Lazy Dog tells us that extrinsic evidence may reveal ambiguities in modern documents; that principle can be only more true with respect to the Beaubien Document. We are attempting to construe a 150 year-old document written in Spanish by a French Canadian who obtained a conditional grant to an enormous land area under Mexican law and perfected it under American law. Beau-bien wrote this document when he was near the end of his adventurous life in an apparent attempt to memorialize commitments he had made to induce families to move hundreds of miles to make homes in the wilderness. It would be the height of arrogance and nothing but a legal fiction for us to claim that we can interpret this document without putting it in its historical context.

For the most part, the document is reasonably specific in identifying places where rights are to be exercised.⁵ That is not true with respect to the rights asserted by the landowners. The key language reads: “According to the corresponding rule, all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.”

Thus, given the specificity of other parts of the document, the lack of specificity in this sentence creates an ambiguity. We cannot determine from the face of the document what lands were burdened by the rights Beaubien conveyed to the first settlers.

Following Lazy Dog, we look to the extrinsic evidence in this case. Amici assert that the contrast between the specificity of the majority of the Beaubien Document and the casual reference to the settlement rights at the end of the document can best be explained by the events surrounding the execution of the document. Beaubien penned the document at a time when settlement was moving to the northern area of the grant, which lies northwest of the Taylor Ranch area. At that time, he wrote the Beaubien Document to establish common rights to the area in and around San Luis and at the same time memorialize settlement rights that had already been in existence in the more southern areas of the grant, where Taylor Ranch is located.

We agree with the amici. From the trial court findings, expert testimony, the documents associated with the grant, and a review of the settlement system under which Beaubien and the settlers were operating, we draw two conclusions. First, we conclude that the location for the settlement rights referenced in the Beaubien Document is the mountainous area of the grant on which Taylor Ranch is located. Second, we conclude that Beaubien meant to grant permanent access rights that run with the land.

We first discuss the location for the rights. The evidence in this case establishes that the reference to pasture, water, firewood, and timber in the Beaubien Document refers to access on the mountain area of the grant of which Taylor Ranch is a part.

First, the trial court found that the landowners or their predecessors in title accessed the Taylor Ranch land for over one hundred years to exercise the rights outlined in the Beaubien Document. This strongly suggests that the parties understood that the Taylor Ranch land was the location of their access rights.

Second, experts testified that the resources listed in the document were only available in the Taylor Ranch area of the grant. Expert testimony established that summer grazing, wood, and timber were only available in the mountain area of the grant.⁶ This is perhaps the most significant evidence that points to the Taylor Ranch as the location of the rights.

Third, the landowners’ access rights are expressly mentioned in Taylor’s deed. The deed subjects his property interest not only to “rights of way of record,” but also to “all rights of way heretofore located and now maintained and used on, through, over, and across the same.” It further subjects the conveyance to‘“claims of the local people by prescription or otherwise to rights to pasturage, wood, and lumber and so-called settlement rights in, to, and upon said land.” (Emphasis added.) This resolves any doubt that the access rights were meant to burden Taylor’s land.

There is also ample evidence that the document was meant to create permanent rights that run with the land. Both the settlement system under which Beaubien and the settlers were operating and the Gilpin agreement are strong evidence of this.

Access to common areas was an integral feature of the settlement system under which the settlers and Beaubien were operating. Under Spanish and Mexican law, the government awarded community and private grants for the purpose of settling the frontier. See Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico 23 (1994).

The Mexican grants were issued under specific procedures. The governor would refer a petition to the local alcalde (mayor) for his recommendations on whether the grant should be made. Availability of pasture, water, and firewood on common lands was among the primary considerations:

The primary considerations were whether the land was being used or claimed by others, the sufficiency of the petitioner’s qualifications, and in the case of a community grant, the availability of resources like pasture> water, and firewood.

Id. (emphasis added). Large private grants were made during the Mexican period. If the recommendation from the alcalde was favorable, the governor would make the private grant to an individual. The individual’s ownership, however, was conditional upon successful settlement of the grant.

Agriculture and stock raising were the primary means of subsistence for the settlers on the grants. Id. at 25. The settlers supplemented their irrigated plots by use of commonly accessible community or private grant lands for gathering firewood and grazing livestock:

The pattern of land tenure and use was the foundation for these tightly knit communities. Produce from their small irrigated plots supplemented by the use of common lands for gathering firewood and for grazing a few head of livestock furnished the bare necessities for the village families, a lifestyle to which they were accustomed.

Ira G. Clark, Water in New Mexico, A History of Its Management and Use 34 (1987) (emphasis added).

Under colonial and Mexican law, the difference between a community grant⁷ and a private grant was that the common lands of the community could not be sold; the grantee of a private grant could sell the lands. See Ebright, supra, at 25.

Expert reports submitted in this ease reveal that Beaubien and the original settlers operated under this traditional system. Common areas were not only a typical feature but a necessary incentive for settlement.

As discussed above, because the Sangre de Cristo grant was part of the United States at the time permanent settlement began, this Mexican settlement tradition is not the source of the landowners’ rights. However, because the settlers and Beaubien were so familiar with the settlement system, it is highly relevant in ascertaining the parties’ intentions and expectations.

The express language in the Gilpin agreement, recorded one year after the Beaubien Document, further supports the conclusion that the rights referenced in the Beaubien Document were meant to burden the land. Gilpin was Beaubien’s immediate successor as owner of the grant land. The Gilpin agreement contains an express condition confirming the settlers’ rights:

[Gilpin agrees to the] express condition that the settlement rights before then conceded by said Charles Beaubien to residents of Costilla, Culebra & Trinchera, within said Tract included, shall be confirmed by the said William Gilpin as confirmed by him.

This deed also recites that the settlers paid consideration to Beaubien for those rights and that Gilpin succeeds to the settlers’ obligations to Beaubien, including payments due on promissory notes held by Beaubien and his agents. The Gilpin agreement is in Taylor’s chain of title and Taylor’s own deed expressly refers to the landowners’ settlement rights.

Thus, we conclude both that rights were granted and exercised from the time of settlement and that the Beaubien Document memorialized them. Moreover, we conclude that the location for the rights is the mountain portion of the grant of which Taylor Ranch is a part, and that the benefit and burden of these rights were meant to run with the land.

We do not take issue with the court of appeals’ application of 1863 Colorado property law to the Beaubien Document. It is not surprising that Carlos Beaubien failed to comply with the nuances and technical requirements of the conveyance of real property rights. Beaubien’s failure to comply with the territorial property law, however, is not the end of the inquiry. The territorial supreme court made it clear that rights to access and use the property of another landowner could be found in the law of implied easements. Yunker v. Nichols, 1 Colo. 551 (1872). The law of implied easements recognizes that rights may be implied even though they were not properly expressly conveyed. This well-established area of property law is concerned with honoring the intentions of the parties to land transactions and avoiding injustice.

2. Implied Grant of Settlement Rights

The evidence in this case overwhelmingly supports the conclusion that the landowners have implied rights in the Taylor Ranch. We first review the law of implied servitudes. Second, we discuss how traditional settlement practices, repeated references to settlement rights in documents associated with the Sangre de Cristo grant, the hundred year history of the landowners’ use of the Taylor Ranch, and other evidence of necessity, reliance, and intention support a finding of implied rights in this case.

a. Implied Servitudes

An easement is created if the owner of the servient estate either enters into a contract or makes a conveyance intended to create a servitude that complies with the Statute of Frauds or an exception to the Statute of Frauds. Restatement, supra, § 2.1.

Servitudes that are not created by contract or conveyance include servitudes created by dedication, prescription, and estoppel. Those which are not created by express contract or conveyance are the implied ser-vitudes, which may be based on prior use, map or boundary descriptions, necessity, or other circumstances surrounding the conveyance of other interests in land, which give rise to the inference that the parties intended to create a servitude.

Id. § 2.8 cmt. b; see also Wright v. Horse Creek Ranches, 697 P.2d 384, 387-88 (Colo.1985)(noting that an easement may be established by “necessity; by preexisting use; by express or implied grant; or by prescription”); Wagner v. Fairlamb, 151 Colo. 481, 484, 379 P.2d 165, 167 (1963)(noting that implied easements are “not expressed by the parties in writing, but ... arise[ ] out of the existence of certain facts implied from the transaction”).

Easements can be implied in a number of situations. Easements created by prescription, Restatement, supra, § 2.17; easements by estoppel, id. § 2.10; and easements implied from prior use, id. § 2.12, are the most relevant to this case. We discuss each of these in turn, discussing both Colorado ease law and the Restatement, which is consistent with our precedent.

An easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant. Id. § 2.17, § 2.16.

A court can imply an easement created by estoppel when 1) the owner of the servient estate “permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked,” 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude. Id. § 2.10. Whether reliance is justified depends upon the nature of the transaction, including the sophistication of the parties. Id. § 2.9 cmt. e. The Restatement does not have a requirement of deception, neither does Colorado.⁸ See Graybill v. Corlett, 60 Colo. 551, 154 P. 730 (1916); Hoehne Ditch Co. v. John Flood Ditch Co., 68 Colo. 531, 191 P. 108 (1920). An easement by estoppel is an equitable remedy. It recognizes that when a landowner induces another to change position in reliance upon his promise, he is estopped from then denying the existence of the rights simply because they did not meet the formal conveyance rules. The rule “is founded on the policy of preventing injustice.” Id. § 2.10.

Colorado law has repeatedly recognized this equitable right. For example, in Gray-bill, we examined a landowner’s right to maintain a water ditch across the land of his neighbor. The owner of the servient estate had granted the owner of the dominant estate the right to establish a ditch across his land. This was an oral promise; the parties did not comply with conveyance and recording formalities. 60 Colo. at 552, 154 P. at 730. In reliance on the parol agreement, the owner of the dominant estate used the ditch as the irrigation source for his land and cleaned, repaired, and made improvements to the ditch. Id. On these facts, we noted that, “[i]t is too well settled to require discussion that under the circumstances above stated a licensee holds under an irrevocable license, and his right is as valid as if acquired by grant.” Id. at 553, 154 P. at 731; see also Hoehne Ditch Co., 68 Colo. 531, 191 P. 108 (applying the “well settled” rule that “although an oral contract relating to realty is within the statute [of frauds], where a consideration has passed, and it has been fully performed by both parties and possession taken in pursuance thereof, the bar of the statute is removed and equity will enforce the right thus acquired”).

An easement implied from prior use is created when 1) the servient and dominant estates were once under common ownership, 2) the rights alleged were exercised prior to the severance of the estate, 3) the use was not merely temporary, 4) the continuation of this use was reasonably necessary to the enjoyment of the parcel, and 5) a contrary intention is neither expressed nor implied. Restatement, supra, § 2.12; see also Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 435 P.2d 232, 235-36 (1967); Proper v. Greager, 827 P.2d 591, 593 (Colo.App.1992). The rationale for this servitude is as follows:

The rule stated in this section is not based solely on the presumed actual intent of the parties. It furthers the policy of protecting reasonable expectations, as well as actual intent, of parties to land transactions.

Restatement, supra, § 2.12 cmt. a.

Colorado has long applied this implied easement. This court has found an easement from prior use in Lee. In Lee, the owner of one parcel of land claimed a right of way across his neighbor’s land to access his property. The servient and dominant estates had once been under common ownership and this right of way was used before the severance of title. Seven years after the severance of title, the defendant bought the servient estate and attempted to block the right of way, claiming a lack of an enforceable agreement. This court found that an easement from prior use had been established. Lee, 164 Colo. at 333, 435 P.2d at 236.

Similarly, the court of appeals found an easement from prior use in Proper. There, the plaintiff landowner used his neighbor’s land to access his property. This use had begun when the two plots were under common ownership. Although the neighbor allowed this use, there was no formal agreement. The neighbor sought to rescind his permission after twenty-five years of the easement’s use, and to construct a fence. Proper 827 P.2d at 592. The court found that under these facts, an easement from prior use had been established. Id. at 594.

Having outlined the law of implied easements, we now turn to the facts of this case.

b. Application to the Landowners’ Claims

Despite the long history of implied easements in Colorado, the court of appeals in this case rejected the landowners’ claims of an implied easement. The court did so because it believed that, although easements in the form of access rights could be implied, easements in the form of profits could not. Lobato, 13 P.3d at 833. In reaching this conclusion, the court misapplied a 1964 decision of this court, Dawson v. Fling, 155 Colo. 599, 396 P.2d 599 (1964).

In Dawson, the Flings claimed easement rights to a lake owned by a corporation. The document establishing the rights was a deed which read, in part, that the lake could be used “for boating and swimming purposes, for the use of said grantees by themselves, their heirs and assigns, their servants, agents, friends, guests, and whomever they may select.” Id. at 602, 396 P.2d at 601. Although the deed specified boating and swimming rights, the Flings petitioned the court to find that they had the right to fish as well. This court concluded that the language of the conveyance clearly limited the rights to boating and swimming and thus declined to imply fishing rights as well. Id. at 604, 396 P.2d at 602.

In dicta, this court asserted that “[a] right to profits á prendre must be expressly granted.” Id., 396 P.2d at 601. However, from the circumstances of the case it is clear that this court declined to find implied rights because the deed of conveyance expressly limited the rights: “A court cannot rewrite a contract and thereby change its terms when it is plain, clear and unambiguous.” Id. at 604-05, 396 P.2d at 602. In Dawson, then, a crucial element of an implied easement was missing because a contrary intention was expressly stated in the deed. For that reason, we declined to imply additional profits in Dawson.

Although this court has not addressed implied profits for over thirty-five years, there is a modern trend to apply the same rules to easements of access and to profits. See, e.g., State v. Kortge, 84 Or.App. 153, 733 P.2d 466, 469 (1987)(noting that “[wjhether defendants’ rights are in the nature of a profit á prendre or an easement, the interests in this case are governed by the same general rules”); Figliuzzi v. Carcajou Shooting Club, 184 Wis.2d 572, 516 N.W.2d 410, 415 (1994)(ap-plying a statutory rule of easements to profits in part because the court was persuaded by the Restatement of Property § 450 Special Note (1944), which states that it treats “easements” and “profits” the same because “in no case was there a rule applicable to one of these interests which was not also applicable to the other”).

The Restatement explains that, although some profits such as mineral and water rights⁹ have specific rules, generally as between easements in the form of access rights and easements in the form of profits, “there are no doctrinal differences between them.” Restatement, supra, § 1.2 reporter’s note.¹⁰ “Generally, the rules governing creation, interpretation, transfer, and termination of easements and profits are the same in American law.” Id. § 1.2 cmt. e.

Easements and profits are treated equally because the same public policy and practical considerations that underlie implied rights of access also underlie implied profits. A recognition that parties do not always comply with strict rules of express conveyance, a desire to effectuate the intent of the parties, and the aim of fairness apply equally to easements and profits.

Colorado law is replete with precedent that reflects a strong policy to be true to parties’ intentions and recognizes that Colorado’s unique history and geography further necessitate judicial recognition of implied rights in land. See, e.g., Roaring Fork Club v. St. Jude’s Co., 36 P.3d 1229, 1231 (Colo.2001)(noting that “our lawmakers [have] recognized that our arid climate require[s] the creation of a right to appropriate and convey water across the land of another”); Lazy Dog Ranch, 965 P.2d at 1235 (in determining the scope of an easement, noting that the “paramount concern” is to ascertain the intentions of the parties and that when a deed is silent as to a particular right, the court shall look at the circumstances surrounding the transaction); Thompson, 895 P.2d at 540 (in implying an easement, noting that “sound public policy dictates that land should not be rendered unfit for occupancy and that there is a presumption, therefore, that whenever a party conveys property he conveys whatever is necessary for the beneficial use of that property” (quotation marks omitted)); Yunker, 1 Colo. at 554 (noting that certain water rights are necessary for enjoying land and that the law will “imply a grant of such easement where it is especially necessary to the enjoyment of the dominant estate,” and that such rights come not out of the literal terms of the contract, but rather out of “pre-existing and higher authority of laws of nature, of nations, or of the community to which the parties belong”).

Thus, the aim of honoring parties’ intentions and avoiding injustice that the Restatement expresses has long been the goal of Colorado law. Specifically, Colorado has a strong history of implying servitudes based on equitable concerns. As the Restatement concludes, it is arbitrary and inconsistent to apply these principles to easements of access but not to profits.¹¹ Such a limitation would be directly contrary to our legacy of implied easements.

Having concluded that the trial court and court of appeals in this case incorrectly held that Colorado law does not recognize implied easements in the form of profits, we now apply the law of implied easements to the landowners’ claims.

Our review of the record leads us to conclude that there is ample evidence to imply certain rights in the landowners to access and use the Taylor Ranch. The prior unity of title of the landowners’ and Taylor’s land; the necessity of the rights; the significant reliance upon the. promise of these rights; the fact that the rights were exercised for over one hundred years; and fact that these rights were memorialized in the Beaubien Document, the Gilpin agreement, and every deed of conveyance in Taylor’s chain of title, satisfy every element of the Restatement test and the implied easements we recognized in the eases discussed above.

i. Prescriptive Easement

Because Taylor’s deed indicates that Taylor’s ownership of the land is subject to the landowners’ prescriptive rights, we begin with an application of the law of prescriptive easements. The court of appeals in this case concluded that the landowners failed to prove a prescriptive easement claim because their use was not adverse. Lobato, 13 P.3d at 834. The court erred in this respect.

Although adversity is a necessary requisite for adverse possession claims, Smith v. Hayden, 772 P.2d 47, 52 (Colo.1989), it is not required for a prescriptive easement. Courts often find prescriptive easements even when the owner of the ser-vient estate allows the use. Significantly, the Restatement articulates that a prescriptive use is either:

(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or

(2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.

Restatement, supra, § 2.16.

Although an easement by prescription without adversity has been codified only in the recent restatement, “it has always been present in American servitudes law.” Id. § 2.16 cmt. a. Because many jurisdictions technically required adversity for a prescriptive easement, decisions in those states often used “convoluted explanations” to explain how a permitted use was actually hostile and met the adversity requirement. Id. Some courts acknowledged an exception to the adversity rule in certain circumstances. See, e.g., Nat’l Props. Corp. v. Polk County, 386 N.W.2d 98, 105 (Iowa 1986)(noting that there may be a prescriptive easement even “where the original use was with a servant [sic] owner’s consent”); Kirby v. Hook, 347 Md. 380, 701 A.2d 397, 404 (1997)(applying an exception to the “general rule [that] permissive use can never ripen into a prescriptive easement ... where there has been an attempt to grant an irrevocable easement which is void because of the statute of frauds”). Other jurisdictions, such as Colorado, simply glossed over the adversity requirement without comment. See, e.g., Wright, 697 P.2d at 388 (finding an easement by prescription in the form of a right of way across the servient estate even though the use of the right of way was permitted and ultimately reduced to writing); Proper, 827 P.2d at 595-96 (listing adversity as a requirement of an easement by prescription but then, although the parties stipulated that the use was permissive, finding a prescriptive easement for access and use of a commercial parking lot via a complex application of presumptions).

It has long been established, then, that the element of adversity is not required in all circumstances. It is not required when other evidence makes clear that the parties intend an easement, but fail “because they do not fully articulate their intent or reduce their agreement to writing, or because they fail to comply with some other formal requirement imposed in the jurisdiction.” Restatement, supra, § 2.16, cmt. a. Thus, the court of appeals in the current case erred when it required a finding of adversity in all circumstances.

Having established that adversity is not required when a grant has been imperfectly attempted, we turn to the facts of the current ease. The trial court’s findings of fact and our interpretation of the Beaubien Document fit every element of a prescriptive easement.

First, the use must be open and notorious. There is no doubt that the landowners’ use was well known to Taylor and his predecessors in title. The trial court noted that Taylor’s predecessors in title not only knew of the landowners’ access, but they even went so far as to direct the location of grazing. Most significantly, Taylor and his predecessors in title had express notice of the landowners’ claims of right from the language of their deeds. The use was open and notorious.

Second, the use must continue without effective interruption for the prescriptive period. In Colorado, the statutory period is eighteen years. § 38-41-101, 10 C.R.S. (2001); Proper, 827 P.2d at 595. Here, the trial court explicitly found that the landowners and their predecessors in title “grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960.” The trial court also found that this access was never denied. This more than satisfies the statutory time period.

Third, the access must either be adverse or pursuant to an intended, but imperfectly executed, grant. Here, the access was permissive, rather than adverse. However, there is ample evidence of an intended grant of these rights. The Beaubien Document, although imperfect as an express grant, evidences Beaubien’s intent to grant rights to the landowners’ predecessors in title (see supra). Moreover, the express language in the deeds of conveyance for the Taylor Ranch, from Gilpin ultimately to Taylor, indicate an intention that the rights burden the land.

Thus, the landowners have established a prescriptive claim.¹²

ii. Easement by Estoppel

The landowners have also established every element of an easement by es-toppel. , First, Taylor’s predecessors in title “permitted [the settlers] to use [the] land under circumstances in which it was reasonable to foresee that the [settlers] would substantially change position believing that the permission would not be revoked.” Restatement, swpra, § 2.10.' The settlers’ reliance was reasonable because rights were expected, intended, and necessary. It was expected because of the Mexican settlement system discussed above. Also discussed above, this settlement system, combined with the actual practices and the deeds associated with the Taylor Ranch, show that rights were intended.

The rights were also necessary. The plaintiffs’ expert, Dr. Marianne Stoller, testified that access to wood was necessary to heat homes, access to timber was necessary to build homes, and access to grazing was necessary for maintaining livestock.¹³ Moreover, Beaubien included each of these resources in a lease to the United States for the first military post in Colorado. See Le-Roy R. Hafen & Ann W. Hafen, Colorado: A Story of the State and its People 130 (1947). The trial court found that during the 1850s Beaubien executed a lease to the United States government for the maintenance of Fort Massachusetts on grant land. In this lease Beaubien granted the army the right to “pasture, cut grass, timber and collect firewood” on Beaubien’s land. We can safely assume that the United States was more sophisticated in its dealings with Beaubien than were the landowners’ predecessors in title and that it insisted on putting Beau-bien’s promises into writing.¹⁴ Under these circumstances, it is reasonable to foresee that that a settler would substantially change position believing that the permission would not be revoked.

The second element, that the user substantially change position in reasonable reliance on the belief, is easily found. The landowners’ predecessors in title settled Beaubien’s grant for him. They moved onto the land and established permanent farms.

The third element, the avoidance of injustice, is also undeniably present. The original Sangre de Cristo grant was given on the condition that it be settled. Indeed, under Mexican law, the grant would have been revoked if settlement did not succeed. The settlers, then, fulfilled the condition of the grant that made Beaubien' fee owner of one million acres of land.

Beaubien attracted settlers to the area by convincing them that he would provide them with the rights they needed for survival. Beaubien knew that families would rely on his promises and leave their homes to travel hundreds of miles on foot or horseback to establish new homes.

A condition of the conveyance of Beau-bien’s land, from Gilpin down to Taylor, was that the owner honor these rights. Although these promised rights were exercised for over one hundred years, although these rights were necessary to the settlers’ very existence, and although Taylor had ample notice of these rights, Taylor fenced his land over forty years ago. It is an understatement to say that this is an injustice.

The landowners have established each element of an easement by estoppel.

iii. Easement From Prior Use

Lastly, every element of an easement from prior use has been shown. First, both Taylor’s and the landowners’ lands were originally under the common ownership of Beaubien who owned the entire Sangre de Cristo grant before settlement. See Tameling v. United States Freehold Land & Emigration Co., 2 Colo. 411 (1874).

Second, the rights were exercised prior to the severance of the estate. As discussed above, many of the rights the landowners claim were needed and expected for life in the San Luis Valley. This necessity existed from the first days of settlement — indicating that these rights were exercised prior to severance of title.

The third and fourth prongs — that the use was not merely temporary and is reasonably necessary to the enjoyment of the land — are also easily established. The trial court’s findings of fact establish that the rights were exercised from the time of settlement until Taylor came on the scene. Moreover, as discussed above, the rights were reasonably necessary.

Lastly, no contrary intention is expressed or implied; thus, the fifth element is present. Custom, expectation, practice, and language in the documents and deeds surrounding the Taylor ranch property indicate not only that a contrary intention did not exist, but that the parties affirmatively intended for these rights to exist.

All five elements of an easement from pri- or use have been established.

C. Extent of the Rights

Having found that the landowners have implied profits in the Taylor Ranch, we now must address the scope of those rights. We imply the rights memorialized in the Beau-bien Document. We do so for four reasons.

First, the document is the strongest evidence we have of the parties’ intentions and expectations. Second, the rights in the document were likely the most necessary. Third, the Fort Massachusetts lease lists these same rights. Fourth, the document is the only evidence we have of an attempted express grant. This is particularly important for the prescriptive easement claim. See Restatement, supra, § 2.16 cmt. a.¹⁵

Accordingly, we hold that the landowners have implied rights in Taylor’s land for the access detailed in the Beaubien Document — pasture, firewood, and timber. These easements should be limited to reasonable use — the grazing access is limited to a reasonable number of livestock given the size of the vara strips; the firewood limited to that needed for each residence; and the timber limited to that needed to construct and maintain residence and farm buildings located on the vara strips.

III. Remaining Issues

Over the years, a host of contested issues have arisen in this case; many were not addressed on appeal because the court of appeals’ holding that the landowners did not have any rights rendered the ancillary questions moot. We have reviewed the remaining issues and conclude that the only appellate issue that must be addressed is whether the trial court engaged in the appropriate due process inquiry on remand from Rael.

In Rael, we remanded this case for a determination of which landowners received adequate notice in the Torrens title actions. 876 P.2d 1210. Although in Rael we highlighted facts in the record that indicated Taylor knew that local landowners claimed rights in the land, on remand the trial court found criteria other than landowning disposi-tive. The court dismissed most of the plaintiffs, allowing only seven to pursue their claims regarding the mountain tract and only three to pursue their claims regarding the Salazar estate. This must be reviewed.

As a matter of judicial economy, and as a matter of fairness, given the forty-one year denial of access to the Taylor Ranch and this twenty-one year litigation, we decline to remand this case to the court of appeals for a determination of this issue. Rather, we will revisit the due process issue after full briefing, in a separate opinion. See Ballow v. Phico Ins. Co., 875 P.2d 1354, 1364 (Colo.1993)(retaining jurisdiction rather than remanding to the court of appeals as a matter of judicial economy).

IV. Conclusion

In sum, we imply access rights in the landowners to the Taylor Ranch for reasonable grazing, firewood, and timber. We reject the landowner’s claims for hunting, fishing, and recreation. Before we remand to the trial court for a permanent order of access, additional briefing is necessary in order to determine which landowners received adequate notice in the Taylor and Salazar Torrens actions. The clerk of this court will set a briefing schedule for the parties.

Justice MARTINEZ dissents only as to part II.C. Justice KOURLIS dissents, and Justice RICE joins in the dissent. Justice COATS does not participate.

1 . The Colorado Torrens Title Registration Act allowed land owners to file an action that would essentially quiet title to their land. §§ 118-10-1 to -102, 5 C.R.S. (1952)(now codified at §§ 38-36-101 to -199)(for a full discussion of the Torrens Title Registration Act, see Rael v. Taylor, 876 P.2d 1210, 1219-23 (Colo.1994)). Because Taylor was a North Carolina resident he invoked diversity jurisdiction.

2 . Jack Taylor died during the pendency of this litigation. His son, Zachary Taylor, stepped in as the executor of his father's estate. At some point, the Taylor estate sold the Taylor Ranch to another party. This party bought the land subject to the landowners’ claims and subject to this litigation. For the sake of simplicity, Jack Taylor and his successors in title are referred to as "Taylor” in this opinion.

3 . Taylor claims that the Salazar estate is no longer at issue in this case because our opinion in Rael did not expressly discuss this property. We find that the Salazar estate is still at issue. The trial court, on remand from Rael, continued to make findings of fact regarding the Salazar estate. To the extent that Rael did not specifically address that portion of the Taylor Ranch, it was an oversight.

4 . It is evident from the record that permanent settlement of the Sangre de Cristo grant did not begin until after 1848. Although some settlement was attempted prior to the Treaty of Guadalupe Hidalgo, those settlers did not succeed, due, in part, to Indian hostilities and aggression between the United States and Mexico. The plaintiffs, in their second amended complaint, admit that "[t]he erection of Fort Massachusetts in 1852 ... marked the start of the settlement of the area in earnest” and that the permanent settlements were established as follows: "Costil-la and Garcia in 1849; San Acacio and San Luis in 1850; San Pablo in 1852; San Francisco and La Valle in 1854; and Chama in 1855."

5 . The locations referenced in the beginning portion of the document all refer to areas in and around the present day town of San Luis. For example, the document explains that the vega is three acres in front of the chapel that still exists in the town of San Luis.

6 . Of Taylor’s 80,000 acres, a 77,000 acre area has historically been called La Sierra or the Mountain Tract. The Taylor Ranch is situated on the eastern most part of the grant. The eastern boundary of the Sangre de Cristo grant is along the peaks of the Sangre de Cristo range. Thus, the Taylor Ranch is in the mountain portion of the grant on which wood is available. In contrast, the western portion of the grant is along the valley floor and thus was cleared and used for farming. There are obviously other mountain areas of the original million-acre Sangre de Cristo grant other than the Taylor Ranch; these are not at issue here.

7 . Because the lands of a community grant could not be sold and were held in common in perpetuity, settlers could use them for hunting, fishing, gathering herbs, and rock quarrying, among other uses, without any question or conflict with subsequent landowners or the need of courts to define the intended uses. Some private grants operated like community grants; others did not. See Ebright, supra, at 25. Two examples of community grants in the Sangre de Cristo grant are the San Luis vega and chapel referenced in the Beaubien Document. The chapel and the vega continue to exist in the town of San Luis and they are used for the originally intended purposes as a church and as a common pasture. Although a portion of the Beaubien Document establishes these two community grants, the general references to settlement rights were'meant to memorialize access and use rights. This is clear from the Gilpin agreement.

8 . Aubert v. Town of Fruita, 192 Colo. 372, 559 P.2d 232 (1977), has no impact here because that case deals with estoppel in the context of water rights as opposed to estoppel in the context of easements, such as ditches.

9 . The case before us contains no claim to water use based on the Beaubien Document. We note that on April 10, 1852, the settlers of the Sangre de Cristo grant commenced construction of the San Luis People's Ditch, the oldest irrigation right in Colorado in continuous use. See Carl Ubbelohde et al., A Colorado History, Revised Centennial Edition 195 (1976). All water in Colorado is a public resource, dedicated to the beneficial use of public agencies and private persons wherever they might make beneficial use of the water under use rights established as prescribed by law. See Bd. of County Comm’rs v. Park County Sportsmen’s Ranch, LLP, 45 P.3d 693, 706 (Colo.2002).

10 . The first Restatement of Property, concluding that the same rules apply to easements of access as to profits, dropped the term "profit.” However, because the word "profit” is useful as a descriptive term, it survives. Restatement, supra, § 1.2 cmt. e.

11 . Notably, one of the goals of the Restatement is to "present[ ] a comprehensive modern treatment of the law of servitudes that substantially simplifies and clarifies one of the most complex and archaic bodies of 20th century American law.... It is designed to allow both traditional and innovative land-development practices using servitudes without imposing artificial constraints as to form or arbitrary limitations as to substance.” Restatement, supra, Introduction at 3.

12 .The trial court in the current case heard evidence and ruled on the prescription claim as a matter of judicial economy. However, the court also ruled that the landowners could not bring a prescription claim because Taylor did not have adequate notice. Our review of the record does not support this determination. Although the landowners did not formally file for leave to add a prescription claim until 1992, all of their factual allegations from the birth of this case clearly implicate prescriptive rights — particularly their claim that they and their predecessors in title continuously accessed the Taylor Ranch for over one hundred years. Significantly, the deed of conveyance explicitly informed Taylor that he purchased the land subject to the "claims of the local people by prescription or otherwise.” (Emphasis added.) Taylor had adequate notice of this claim.

13 . Dr. Stoller, at one point in her testimony, also mentioned that the settlers fished, hunted, and recreated on the land. She did not, however, indicate that such practices were necessary. Significantly, in her written report, which the landowners submitted to the trial court. Dr. Stol-ler lists the landowners' rights as use rights to "pasture, firewood, timber, and water.”

14 . The landowners’ expert, Dr. Stoller, agreed that the rights included in Beaubien's lease to the government were significant: “he gave [the United States Army] use rights for pasture, cutting grass, firewood and timber to the adjacent lands.... Thus he was following the same practice in the 1863 document for his settlers, and for the same reasons — the need for these resources for human survival.”

15 . The landowners acknowledge that the Beau-bien Document does not reference rights for hunting, fishing, and recreation and thus that there is no evidence of an express or implied grant of these rights from Carlos Beaubien. However the landowners claim that these rights exist via a prescriptive easement. We disagree. As discussed above, in order to find a prescriptive easement in the absence of adversity, there must be evidence of an attempted express grant. In this case, the Beaubien Document is the only evidence of an attempted express grant to the landowners. Because it makes no reference to hunting, fishing, or recreation, there can be no prescriptive easement for those rights.