Maloney v. Wreyford

804 P.2d 412, 111 N.M. 221
CourtNew Mexico Court of Appeals
DecidedDecember 4, 1990
Docket10748
StatusPublished
Cited by14 cases

This text of 804 P.2d 412 (Maloney v. Wreyford) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maloney v. Wreyford, 804 P.2d 412, 111 N.M. 221 (N.M. Ct. App. 1990).

Opinion

OPINION

CHAVEZ, Judge.

Defendant Wreyford appeals a decision declaring that plaintiff Maloney has the right by prescriptive easement over a portion of Wreyford’s property. Wreyford also appeals the award of damages. The issues on appeal are: (1) sufficiency of the evidence supporting a prescriptive easement over Wreyford’s property, (2) sufficiency of the evidence supporting the width and length of the easement, and (3) appropriateness of the trial court’s award of compensatory damages. Issues listed in the docketing statement and not briefed on appeal are deemed abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App. 1977). We affirm in part, and reverse in part.

INTRODUCTION

The Leightons owned a fifty (50) acre tract of land, located north of U.S. Highway 550 east of Kirtland, New Mexico. This tract included all of the later conveyed parcels which are at issue in this case. The Leightons deeded to an intermediate party a parcel of land approximately 200' x 400', which was later conveyed to Wreyford. The Leightons also deeded to Maloney and a partner title to the 4.38-acre parcel just west of Wreyford’s property. The partner later conveyed his interest to Maloney. In addition, Leighton conveyed to Maloney another 15 acres of land immediately north of the parcel Maloney owned.

Because Wreyford’s parcel and Maloney’s parcel were surveyed beginning at different comer posts, a 43-foot overlap in the two parcels was created. This discrepancy was carried forward in the descriptions of the tracts in question. The dispute between the parties focuses first on the question of which party held superior title to a disputed area shown as overlapping on the survey plats of the respective parties. Maloney’s deed described a fifty (50) foot access, which the court held encompassed the forty-three (43) foot overlap of Wreyford’s tract.

In October of 1981, the Leightons deeded to Maloney a panhandle shaped parcel, including about 15 acres to the north of the parcel deeded to Maloney in 1974. The trial court found that there was a discrepancy of approximately forty-three feet, in the deed calls of the adjoining tracts of the parties, which “when combined with the 1981 Leighton to Maloney deed description of the fifty (50) foot access surveyed from the West Quarter corner of Section 8 by distance calls, creates a forty-three (43) foot overlap of the Drolet-Wreyford tract and the Maloney tract.”

The New Mexico Highway Department installed a gate at the entrance to the roadway and paved a highway turnout to the gate. Maloney chained and locked the gate and exercised control over it for a period in excess of ten (10) years.

PRESCRIPTIVE EASEMENT

First, we address Wreyford’s argument that the trial court’s finding of a prescriptive easement over his property is not supported by substantial evidence. Findings of fact that are supported by substantial evidence will not be disturbed on appeal. See Tome Land & Improvement Co., Ine. v. Silva, 83 N.M. 549, 494 P.2d 962 (1972). If the evidence shows that the trial court’s decision is based on reasonable, substantial, and probative evidence, so that it can be said that a reasonable person might have reached the same conclusion, the trial court’s decision should be affirmed. Id. We find here that the court’s decision is supported by substantial evidence.

In order for the trial court to grant a prescriptive easement, the plaintiff must show that he acquired the easement by a use which was “open, uninterrupted, peaceable, notorious, adverse, under a claim of right, and [continuous] for a period of ten years with the knowledge or imputed knowledge of the owner.” Hester v. Sawyers, 41 N.M. 497, 504, 71 P.2d 646, 651 (1937); see also Herbertson v. Iliff, 108 N.M. 552, 775 P.2d 754 (Ct.App.1989). Wreyford contends that plaintiff’s use was neither continuous and uninterrupted nor was it with the knowledge or imputed knowledge of the owner.

The standard of review on appeal to a challenge of the trial court’s determination that a prescriptive easement exists, is whether each element required to establish a prescriptive easement has been proven by clear and convincing evidence. See Vigil v. Baltzley, 79 N.M. 659, 448 P.2d 171 (1968).

Maloney is correct in pointing out that the terms “continuous” and “uninterrupted” are not synonymous. The term “continuous” is concerned with the behavior of the party claiming a prescriptive easement. The term “uninterrupted” deals with the behavior of the potential servient owner of the prescriptive easement. 3 R. Powell on Real Property § 413 (1990). The general requirement of continuity has been construed using a reasonable standard. Kogod v. Cogito, 200 F.2d 743 (D.C.Cir. 1952). Continuity is to be determined in relation to the right claimed, and is sufficient if the property is used whenever needed, if it is reasonably frequent. Id.

The evidence below includes testimony from Claudine Riddle, who was employed as a real estate broker by Maloney. Ms. Riddle testified that, at Maloney’s direction between 1980 and 1985, she drove onto the roadway many times (“in the twenties”) to show the property to prospective buyers. Riddle stated that the road went from the gate at the highway to the northern most boundary of the adjoining tract owned by Maloney. Additionally, Mr. Max Larson, Maloney’s former partner, testified that between 1974 and 1975, he and Maloney used the road to gain access to the property. Moreover, Maloney testified that, after he bought the westerly property in February of 1974, he used the road for access along the eastern side of that property until 1986. His use varied from once a week to once a month to once every three months, as his need required. This evidence supports Maloney’s use being neither infrequent nor sporadic, as argued by Wreyford.

An easement by prescription also requires that the use be uninterrupted by the prospective servient owner. Hester v. Sawyers. There is no evidence that Wreyford interrupted Maloney’s use of the property until 1986, when Wreyford blocked the road. Therefore, the element that the use be uninterrupted was met.

Wreyford then contends that he had no knowledge of the claimed easement. The general rule is that “[i]f the user was open, adverse, notorious, peaceable, and uninterrupted, [then] the owner is charged with knowledge of such user, and acquiescence in it is implied.” Id. at 504, 71 P.2d at 651. Therefore, in light of the aforementioned testimony and the finding that Maloney’s use was continuous and uninterrupted, we find the record below supports the trial court’s finding of Wreyford’s imputed knowledge. Wreyford does not appeal any other elements of a prescriptive easement. We, therefore, hold that Maloney has met his burden of establishing the right to a prescriptive easement.

LIMITATIONS

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Bluebook (online)
804 P.2d 412, 111 N.M. 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maloney-v-wreyford-nmctapp-1990.