v. Cielo Vista Ranch

2018 COA 160, 433 P.3d 596

• Court: Colorado Court of Appeals
• Decided: November 15, 2018
• Docket: 16CA2083, Alire
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 15, 2018

2018COA160

No. 16CA2083, Alire v. Cielo Vista Ranch — Real Property — Easements Appurtenant; Public Lands — Mexican Land Grants

Fifteen years after the supreme court remanded this case to

the district court with instructions to “identify all landowners who

have access rights to the Taylor Ranch,” a division of the court of

appeals reviews whether the district court’s proceedings on remand

discharged the mandate.

The supreme court’s decisions in Lobato v. Taylor, 71 P.3d 938

(Colo. 2002), and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003),

constitute the mandate in this case. In the Lobato decisions, the

supreme court held that present-day San Luis Valley landowners

have the right to access the Taylor Ranch — now the Cielo Vista

Ranch — upon showing their land was settled by 1869. Around

that time, Charles Beaubien persuaded frontier families from New Mexico to settle in the valley by granting these settlers the right to

graze their animals and gather wood and timber from the forested,

mountainous areas nearby. Today, these areas comprise the Cielo

Vista Ranch.

In 2004, the district court began identifying and decreeing

access rights for landowners in the San Luis Valley whose land was

settled by 1869. From 2004 until 2010, the district court relied on

the best available evidence to decree access rights for individual

landowners without requiring any landowner to come forward to

assert a claim. In 2010, this changed. After 2010, the district

court decreed access rights for only those landowners who came

forward to assert claims.

In this opinion, the division concludes that the proceedings on

remand were largely consistent with the mandate, but that the

district court did not completely discharge its mandate because the

identification process used after 2010 could have been, but was

not, comprehensive. The division concludes that the undisputed

evidence would enable the district court to “identify all landowners

who have access rights,” and, therefore, remands for the district

court to completely discharge its mandate by identifying all current owners of lands which the undisputed evidence shows were settled

as of 1869. COLORADO COURT OF APPEALS 2018COA160

Court of Appeals No. 16CA2083 Costilla County District Court Nos. 81CV5 & 81CV100005 Honorable Gaspar F. Perricone, Judge Honorable Kenneth A. Plotz, Judge

Cielo Vista Ranch I, LLC; Jaroso Creek Ranch, LLC; and Western Properties Investors, LLC,

Defendants-Appellants and Cross-Appellees,

v.

Billy Alire, Willie Alire, Leonides Atencio, Robert Atencio, Frances D. Berggran- Buhrles, Zach Bernal, Jose Fred Carson, Emilio DeHerrera, Juan DeHerrera, Adeline Espinosa, Edward Espinosa, Elmer Manuel Espinoza, Margurito Espinoza, Pete E. Espinoza, Corpus Gallegos, Gloria Gallegos, Jose A. Gallegos, Moises Gallegos, Ruben Gallegos, Rupert Gallegos, Raymond Garcia, Richard J. Garcia, Robert Garcia, Manuel Gardunio, Ruben Herrara, Gilbert G. Herrera, Charlie Jacquez, Jr., J.R. Jaquez, Jeffrey Jaquez, Maria Jaquez, Adelmo Kaber, Juan Lacombe, Adolph J. Lobato, Bonifacio “Bonnie” Lobato, Carlos Lobato, Emilio Lobato, Jr., Eugene Lobato, Henry Lobato, Jose F. Lobato, Pete Lobato, Presesentacion Lobato, Crucito Maes, Bert Maestas, Manuel Maestas, Norman Maestas, Raymond J. Maestas, Robert “Bobby” Maestas, Clorindo Martinez, David Martinez, Eugene Martinez, Hubert J. Martinez, Jesse Martinez, Jesse Martinez, Leonardo Martinez, Rosendo Martinez, Solestiano Martinez, Agatha Medina, Alfonso Medina, Cory Medina, Gilbert Medina, Leonardo Medina, Loyola Medina, Marvin Medina, Orry Medina, Raymond M. Medina, Gilbert “Andres” Montoya, Rudy Montoya, Willie Ray Montoya, Frank Olivas, Gurtrude C. Olivas, Shirley Romero Otero, Eppy Quintana, Apolinar Rael, Henry Rodriguez, Robert Romero, Bentura Roybal, Lucille Samelko, Anthony Sanchez, Bonnie Sanchez, Eugene Sanchez, Evan Sanchez, Frank Sanchez, Gerald Sanchez, James Sanchez, Jose G. Sanchez, Rufino Sanchez, S.R. Sanchez, Vernon Sanchez, Ronald A. Sandoval, Elesam Santistevan, Daniel Segura, Floyd R. Solan, Carolyn Taylor, Jose R. Torres, Arnold Valdez, Sam Valdez, Emejido Vialpando, Lawrence Vialpando, Martha Vialpando, Ervin L. Vigil, Joe P. Vigil, Larry J. Vigil, Manuel Vigil, Michael J. Vigil, Walter Vigil, David Cordova, Jerome Cordova, Matthew Cordova, Rodney Cordova, S. Raymond Cordova, Theresa Cordova, Isidro Gomez, Rosalie Gallegos, Mark Martinez, Daniel Martinez, Mike Martinez, Joseph Medina, Manuel Pacheco, Silas Pacheco, Julian Padilla, and Mary Renden, Plaintiffs-Appellees and Cross-Appellants.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE WELLING Webb and Harris, JJ., concur

Announced November 15, 2018

Squire Patton Boggs, LLP, Carolyn L. McIntosh, Aaron A. Boschee, Brent R. Owen, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants Billy Alire, Willie Alire, Leonides Atencio, Robert Atencio, Frances D. Berggran- Buhrles, Zach Bernal, Jose Fred Carson, Emilio DeHerrera, Juan DeHerrera, Adeline Espinosa, Edward Espinosa, Elmer Manuel Espinoza, Margurito Espinoza, Pete E. Espinoza, Corpus Gallegos, Gloria Gallegos, Jose A. Gallegos, Moises Gallegos, Ruben Gallegos, Rupert Gallegos, Raymond Garcia, Richard J. Garcia, Robert Garcia, Manuel Gardunio, Ruben Herrara, Gilbert G. Herrera, Charlie Jacquez, Jr., J.R. Jaquez, Jeffrey Jaquez, Maria Jaquez, Adelmo Kaber, Juan Lacombe, Adolph J. Lobato, Bonifacio “Bonnie” Lobato, Carlos Lobato, Emilio Lobato, Jr., Eugene Lobato, Henry Lobato, Jose F. Lobato, Pete Lobato, Presesentacion Lobato, Crucito Maes, Bert Maestas, Manuel Maestas, Norman Maestas, Raymond J. Maestas, Robert “Bobby” Maestas, Clorindo Martinez, David Martinez, Eugene Martinez, Hubert J. Martinez, Jesse Martinez, Jesse Martinez, Leonardo Martinez, Rosendo Martinez, Solestiano Martinez, Agatha Medina, Alfonso Medina, Cory Medina, Gilbert Medina, Leonardo Medina, Loyola Medina, Marvin Medina, Orry Medina, Raymond M. Medina, Gilbert “Andres” Montoya, Rudy Montoya, Willie Ray Montoya, Frank Olivas, Gurtrude C. Olivas, Shirley Romero Otero, Eppy Quintana, Apolinar Rael, Henry Rodriguez, Robert Romero, Bentura Roybal, Lucille Samelko, Anthony Sanchez, Bonnie Sanchez, Eugene Sanchez, Evan Sanchez, Frank Sanchez, Gerald Sanchez, James Sanchez, Jose G. Sanchez, Rufino Sanchez, S.R. Sanchez, Vernon Sanchez, Ronald A. Sandoval, Elesam Santistevan, Daniel Segura, Floyd R. Solan, Carolyn Taylor, Jose R. Torres, Arnold Valdez, Sam Valdez, Emejido Vialpando, Lawrence Vialpando, Martha Vialpando, Ervin L. Vigil, Joe P. Vigil, Larry J. Vigil, Manuel Vigil, Michael J. Vigil, and Walter Vigil

Polsinelli, PC, Bennett L. Cohen, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants David Cordova, Jerome Cordova, Matthew Cordova, Rodney Cordova, S. Raymond Cordova, Theresa Cordova, Isidro Gomez, Rosalie Gallegos, Mark Martinez, Daniel Martinez, Mike Martinez, Joseph Medina, Manuel Pacheco, Silas Pacheco, Julian Padilla, and Mary Renden Spencer Fane LLP, Ronald L. Fano, Jamie N. Cotter, Denver, Colorado, for Defendant-Appellant and Cross-Appellee Cielo Vista Ranch I, LLC

Dill, Dill, Carr, Stonbraker & Hutchings, P.C., John J. Coates, Denver, Colorado, for Defendants-Appellants and Cross-Appellees Jaroso Creek Ranch, LLC, and Western Properties Investors, LLC

Butler Snow, LLP, Martina Hinojosa, Denver, Colorado, for Amicus Curiae ¶1 The origins of this case predate Colorado’s statehood, and

along the way the parties have endured a long and circuitous road,

which has included three prior visits to this court and three

supreme court opinions. This appeal concerns the remand

proceedings conducted pursuant to the supreme court’s two most

recent decisions in this case: Lobato v. Taylor, 71 P.3d 938 (Colo.

2002) (Lobato I), and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003), as

modified on denial of reh’g (June 16, 2003) (Lobato II). These

remand proceedings were initiated fourteen years ago, in 2004, and

remained active until this appeal.

¶2 Appellants are CVR Properties, Ltd., Jaroso Creek Ranch, LLC,

and Western Properties Investors LLC, the owners of Cielo Vista

Ranch and other properties that were once known as the Taylor

Ranch (the Ranch). (We will refer to appellants collectively as

Ranch Owner.) Ranch Owner challenges the trial court’s

implementation of the supreme court’s mandate on remand.

Appellees are landowners in Costilla County whose rights to access

the Ranch to graze livestock and gather firewood and timber were

decreed through the remand proceedings. Landowners have also

1 cross-appealed, challenging certain proceedings on remand as

contrary to the mandate.

¶3 In Lobato I and Lobato II, the supreme court held that Costilla

County landowners whose land was settled as of 1869 were entitled

to access the Ranch for grazing and to take firewood and timber.1

See Lobato I, 71 P.3d at 956; Lobato II, 70 P.3d at 1167. Carlos

Beaubien had recruited frontier families to settle in the area in the

1850s and induced settlement by granting settlers the right to

access and use the Ranch for grazing, firewood, and timber. This

grant was memorialized in a Spanish language document — the

Beaubien Document — that was executed and recorded by

Beaubien in 1863. The supreme court held that Beaubien had

granted permanent access rights that run with the land. Lobato I,

71 P.3d at 948-50. When it remanded the case after Lobato II, the

supreme court “direct[ed] the trial court to identify all landowners

who have access rights to the [Ranch] and to enter all necessary

1This is also referred to as the time of Gilpin because at that time William Gilpin owned the Ranch. In October 2007, the trial court determined that the time of Gilpin ended on January 27, 1869. This determination is not being contested on appeal.

2 and appropriate orders to safeguard those rights.” Lobato II, 70

P.3d at 1156.

¶4 To the extent the issues on appeal challenge the trial court’s

implementation of the supreme court’s mandate, our role is limited

to reviewing the trial court’s compliance with the mandate. We are

not free to disregard or modify the supreme court’s mandate.

Simply put, we have no more latitude than the trial court to rewrite

or second-guess the mandate. Only the supreme court is free to

modify its mandate. To the extent either party invites us to do so,

we must decline.

¶5 On appeal, Ranch Owner contends that the proceedings on

remand from 2004 through 2010, when the trial court identified

most of the landowners with access rights to the Ranch, violated

the mandate. Ranch Owner raises several contentions of error.

Ranch Owner’s central contention is that the trial court’s “opt-out”

process, pursuant to which it decreed access rights for individual

Costilla County landowners even if they had not come forward to

make a claim, improperly relieved these landowners of their burden

of proof.

3 ¶6 On cross-appeal, landowners contend that the trial court

violated the mandate when, in 2010, it switched to an “opt-in”

process to identify any remaining Costilla County landowners with

access rights. They contend that this opt-in process, implemented

from 2010 through 2016, failed to comprehensively identify all

Costilla County landowners with access rights, as required by the

mandate.

¶7 For the reasons set forth in this opinion, we conclude that the

opt-out proceedings on remand from 2004 through 2010 were

largely consistent with Lobato II’s mandate. But we also conclude

that the opt-in process implemented from 2010 through 2016 failed

to discharge the mandate because that portion of the identification

process also could have been comprehensive, but was not.

¶8 During the opt-out proceedings from 2004 through 2010, the

trial court identified benefited landowners based on an official 1894

Costilla County land survey, which the supreme court described as

“the best [available] evidence of benefited properties conveyed by

Beaubien.” Lobato II, 70 P.3d at 1159 n.6. We refer to the 1894

survey as “Map A and Book E” because of its location in the Costilla

County records. Map A demarcates the boundaries and locations of

4 the original vara strip tracts2 conveyed by Beaubien to settlers,

while Book E describes each tract shown on Map A and identifies

the settler to whom Beaubien originally conveyed the tract.3 Based

on footnote six from Lobato II and the absence of contrary evidence,

the trial court presumed that all Map A and Book E lands were

settled as of 1869, which entitled their present-day owners to

access the Ranch.

¶9 For the duration of the opt-out process, the trial court worked

backward from Map A and Book E to identify benefited Costilla

County landowners and adjudicate their rights. It appointed the

owner of the San Luis Valley Title Company to identify the present-

day owners of the lands shown on Map A. After these benefited

landowners were identified, Ranch Owner could assert res judicata

as an affirmative defense to bar the claims of any individual

2 A “vara” refers to a stretch of approximately 33 inches along the bank of a river or creek. A “vara strip” is an area of land one vara long with its width running to the boundary of the adjacent watershed. 3 Ultimately, in January 2015, Ranch Owner stipulated that all Map

A lands were timely settled.

5 landowners.4 Once the trial court determined that a benefited

landowner was not subject to res judicata, it notified that

landowner of his or her right to access the Ranch for reasonable

grazing of livestock and to gather timber and firewood for household

use. Any landowner whom the trial court found to be barred by res

judicata was notified and given an opportunity for a hearing.

Landowners were not otherwise required to come forward in order

to assert individual claims as a condition of the trial court

adjudicating their rights. Around 4500 Costilla County landowners

gained access rights to the Ranch through the proceedings from

2004 through 2010, which we refer to as the opt-out process.

¶ 10 In 2010, once the trial court had identified and adjudicated

the rights of most present-day owners of the lands in Map A and

Book E, it implemented a new process under which any remaining

4 Ranch Owner asserted res judicata against certain landowners by presenting evidence that the landowner or the landowner’s predecessor in interest was personally served with adequate notice of the 1960 Torrens actions brought in federal court, described in Part I, infra. We use the term “res judicata” throughout this opinion instead of the preferred term “claim preclusion” in order to be consistent with the prior opinions in this case. See Lobato II, 70 P.3d at 1156 n.2 (explaining use of the term res judicata instead of claim preclusion).

6 landowners with access rights were required to come forward and

assert a claim before the trial court would adjudicate their rights.

Because this process required landowners to affirmatively come

forward to have their rights adjudicated, we refer to the proceedings

from 2010 through 2016 as the opt-in process. Approximately 350

more Costilla County landowners gained access rights to the Ranch

during this time.

¶ 11 We conclude that the opt-out process implemented from 2004

through 2010 produced an efficient and comprehensive result with

respect to the Map A portion of Costilla County. In our view, the

opt-out process was consistent with the supreme court’s mandate

to identify all benefited landowners on remand.

¶ 12 In contrast, however, we conclude that the opt-in process

implemented from 2010 through 2016 did not fully comport with

the mandate because the trial court, pursuant to that process,

failed to comprehensively and conclusively adjudicate the access

rights of landowners in the remainder of Costilla County, even

though it could have done so while remaining faithful to the

7 ¶ 13 During this second phase of the proceedings on remand, the

trial court could have identified all remaining Costilla County

landowners with access rights by using a combination of the same

general opt-out process used from 2004 through 2010, in addition

to a modified opt-in process. Although Map A and Book E had been

exhausted as a reference for identifying benefited lands, landowners

presented undisputed evidence showing that other lands — lands

outside of Map A — were timely settled. Because the trial court

never attempted to identify all present-day owners of these

undisputedly timely settled lands, instead adjudicating the rights of

only those landowners who came forward to assert claims, we

conclude that it failed to discharge its mandate. We, therefore,

reverse the trial court’s October 2016 order to the extent it requires

any remaining landowners entitled to access the Ranch to come

forward, and remand the case to the trial court with instructions to

identify all remaining owners of benefited lands in Costilla County

and adjudicate their rights. In all other respects, we affirm the trial

court’s orders that are challenged on appeal.

8 I. Background

¶ 14 A detailed recitation of the historical events underlying this

case was provided by the supreme court in Lobato I, see 71 P.3d at

942-45, and Lobato II, see 70 P.3d at 1155-57. We will not repeat it

here. Instead, we limit our background section to the facts

necessary to understand the issues presented by this appeal.

¶ 15 The relevant case history begins in 1960, when Jack Taylor

purchased the vast majority of the land that now constitutes the

Ranch. Taylor purchased the land with notice of landowners’

existing use of the Ranch; his deed provided that he took the land

subject to “claims of the local people by prescription or otherwise to

right to pasture, wood, and lumber . . . upon said land.”

Nevertheless, he soon fenced the property and barred landowners’

entry. In 1960, Taylor also filed a Torrens action in federal district

court in Denver.5 In his Torrens action, Taylor sought to perfect his

title and extinguish the landowners’ access claims. But Taylor

5 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, C.R.S. 1960 (now codified at §§ 38-36-101 to -199, C.R.S. 2018). Because Taylor was a North Carolina resident, he invoked the federal court’s diversity jurisdiction. See Lobato I, 71 P.3d at 943, n.1.

9 personally served only a small fraction of Costilla County

landowners with notice of his Torrens action, with the majority of

landowners receiving notice only by publication. The district court

ruled that landowners had no rights to the Ranch, and the Tenth

Circuit Court of Appeals affirmed. See Sanchez v. Taylor, 377 F.2d

733 (10th Cir. 1967).

¶ 16 In 1973, Taylor purchased an adjoining, 2500-acre parcel of

land known as the Salazar estate. The Salazar estate was also part

of the original Sangre de Cristo grant that was once owned by

Beaubien. Taylor’s predecessor in title to the Salazar estate had

also filed a Torrens title action in 1960, which similarly determined

that Costilla County landowners had no rights to access the estate.

We will refer to Taylor’s 1960 Torrens action and the 1960 Salazar

Torrens action together as the 1960 Torrens actions.

¶ 17 In 1981, a number of Costilla County landowners filed this

action in Colorado state court, asserting that Taylor’s actions to bar

their entry violated their rights to access the Ranch. The district

court held that the doctrine of res judicata barred the suit because

the Salazar Torrens action and the Sanchez decision were binding

upon them. A division of this court affirmed. Rael v. Taylor, 832

10 P.2d 1011, 1014 (Colo. App. 1991). The supreme court then

granted certiorari and reversed in part and remanded, questioning

the constitutional adequacy of the publication notice in the 1960

Torrens actions. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo. 1994).

The supreme court directed the trial court to determine which

landowner plaintiffs had received adequate notice in the 1960

Torrens actions, and to hold a trial on the merits.

¶ 18 The trial court, on remand, dismissed all but ten landowner

plaintiffs as barred by res judicata and denied class certification. It

then held a trial on the merits and determined that the remaining

landowners had not proved prescriptive rights to the Ranch because

their use was not adverse. The trial court also denied landowners’

claims based on the Beaubien Document and implied rights

doctrines. A division of this court affirmed. Lobato v. Taylor, 13

P.3d 821 (Colo. App. 2000). Landowners appealed, and the

supreme court granted certiorari in Lobato I.

A. Lobato I

¶ 19 In Lobato I, the supreme court reversed the court of appeals

and held that the original settlers of Beaubien’s grant and their

successors in title had implied rights of access to the Taylor Ranch

11 for reasonable grazing, firewood, and timber. 71 P.3d at 957. The

supreme court excluded hunting, fishing, and recreation from the

scope of the landowners’ rights. Id. It defined the Taylor Ranch as

including two parcels of land: the 77,000-acre mountain tract and

the 2500-acre Salazar estate. Id. at 943-44.

¶ 20 After deciding Lobato I, the supreme court retained jurisdiction

and directed the parties to brief due process and res judicata issues

left unresolved by the supreme court’s Lobato I opinion. Id.

B. Lobato II

¶ 21 The supreme court decided the remaining issues in Lobato II,

where it held that landowners who were successors to the original

settlers of the land grant had reasonable access rights to the Taylor

Ranch. 70 P.3d at 1167. The supreme court also held that Taylor

had not satisfied due process when he served landowners with

notice by publication in his 1960 Torrens action, but that res

judicata barred claims by landowners and their successors who

were “personally named and served” in the Torrens action. Id. at

1166-67.

¶ 22 With those remaining issues resolved, the supreme court

remanded the case for the trial court to “identify all landowners who

12 have access rights to the Taylor Ranch and to enter all necessary

and appropriate orders to safeguard these rights.” Id. at 1167-68.

C. Remand Process Following Lobato II

¶ 23 Early in the remand proceedings, the trial court articulated its

understanding of the supreme court’s mandate. It explained that,

pursuant to Lobato II, it was “responsible for identifying the current

landowners who have access rights to the former Taylor Ranch.”

The trial court described this process as an “administrative task”

that should be completed “as quickly as possible.” It acknowledged

that “other contested issues” would arise during the identification

process but advised the parties that any such issues “should be

litigated after the major portion of the identification process is

completed.”

¶ 24 Before the identification process began, the trial court granted

access rights to the nine landowners who the supreme court held

had proved their claims by tracing their titles to the time of Gilpin.6

See Lobato II, 70 P.3d at 1159 n.5. The trial court ordered that

these landowners were not restricted as to whom they were allowed

6The nine landowners include the seven plaintiffs in Lobato II as well as two landowner intervenors.

13 to bring onto the Ranch to assist in the exercise of their rights, but

it advised Ranch Owner that it “may subsequently present matters

to the Court” if landowners “are abusing the land or their rights.”

¶ 25 In January 2004, before the trial court had decided how to

proceed, Ranch Owner proposed a plan to personally serve all

Costilla County landowners with notice of the proceedings and

require them to come forward and make a claim to access the

Ranch or be forever barred from asserting an access claim. The

trial court rejected Ranch Owner’s proposal, observing that “[t]here

are presently over 31,000 individual landowners” in Costilla County

and that joinder of each individual landowner to the action would

be “totally impractical.” Additionally, the trial court expressed

concern that personal service on all Costilla County landowners

would not be sufficient to ensure the participation of all benefited

landowners because many landowners would likely misapprehend

the notices and believe that their rights had been adjudicated.

¶ 26 Rather than require each individual landowner to come

forward to make a claim, the trial court decided to adjudicate

landowners’ rights by relying on the best available evidence of

timely settlement — namely, Map A and Book E. The trial court

14 then certified a class comprised of “all Costilla County landowners

with use rights claims.”7 Finding that “this case represents a

unique situation in which the conventional requirements of a class

action have been determined” by the supreme court and that

joinder of all 31,000 landowners in Costilla County would be

impractical, the trial court ruled that class certification was both

necessary and authorized under C.R.C.P. 23.

¶ 27 Next, the trial court laid out a two-phase process to identify

and adjudicate the rights of benefited landowners.

¶ 28 First, the trial court would identify all present-day owners of

the lands shown on Map A. For that purpose, the trial court

appointed David Duncan, the owner of San Luis Valley Title

Company, as “an abstractor to advise the Court by written report of

those present-day landowners in Costilla County who are

successors in title to the original settlers of the Beaubien grant.”8

This was the opt-out process.

7 The trial court designated as class representatives the seven landowner plaintiffs and two intervenors who the supreme court held were entitled to access the Ranch. 8 With respect to its decision to appoint Mr. Duncan in this

capacity, the trial court observed that “the San Luis Valley Title

15 ¶ 29 Second, once the identification process based on Map A and

Book E was completed “to the Court’s satisfaction,” the trial court

advised that it would “adopt other procedures to notify, locate, and

adjudicate the rights of other present landowners who claim access”

to the Ranch. This became the opt-in process.

¶ 30 Both the opt-out and opt-in processes included a res judicata

component. Where Ranch Owner presented evidence sufficient to

show that any individual landowner or a predecessor in interest

was personally served in Taylor’s 1960 Torrens action or the 1960

Salazar Torrens action, the trial court barred his or her access

claim pursuant to res judicata. Depending on whether the evidence

showed that the landowner was personally served in Taylor’s 1960

Torrens action, the 1960 Salazar Torrens action, or both, the trial

court barred that landowner’s claim to the mountain tract, the

Salazar estate portion of the Ranch, or both.

Company has the plat of real estate records and transactions in Costilla County that is superior to that in the office of the county clerk and recorder.”

16 1. The Opt-Out Process: 2004-2010

¶ 31 The title company submitted its initial report to the trial court

in September 2004 (the 2004 Duncan Report). The report identified

sixteen separate tracts of land from Map A. For each tract, the

report cited to the page number within Book E where the tract was

located and identified to whom Charles Beaubien made the original

conveyance, the 1960 owner,9 and the present-day owner.

¶ 32 In March 2005, the trial court decreed access rights for the

owners of the tracts identified in the 2004 Duncan Report. In the

order granting access rights, the trial court found that the

information contained in the 2004 Duncan Report, considered

along with the statements of the title company owner describing

“the use of Map A and Book E together with the book and page

number of each transaction,” established by a preponderance of the

evidence that “the information contained therein is true.” The trial

9The trial court directed the title company to identify the 1960 owner of each tract to enable Ranch Owner to assert res judicata as a defense by presenting evidence to show that the 1960 owner was personally named and served in connection with the 1960 Torrens actions.

17 court also found that “no objection has been raised to the accuracy

of or the factual information in the” 2004 Duncan Report.

¶ 33 The trial court then found that “all tracts identified in the

Duncan Report of September 30, 2004 were timely settled,”

explaining that “[t]he report identifies each tract examined as one

deeded by Carlos Beaubien to a first settler during Beaubien’s

lifetime and that such determination is sufficient to establish the

issue of timely settlement. The [Ranch Owner] Defendants have

presented no competent evidence to the contrary.” Later in the

remand proceedings, Ranch Owner stipulated to the timely

settlement of all Map A lands.

¶ 34 In addition to finding that these tracts were timely settled, the

trial court found that the 2004 Duncan Report “establishes the

conclusive identity of the current owners,” and that Ranch Owner

“presented no competent evidence to the contrary.” The trial court

concluded, therefore, that the landowners identified in the 2004

Duncan Report had access rights to the Ranch, subject to the res

judicata bar.

¶ 35 It then turned to the res judicata bar. The trial court found

that, because “[r]es judicata in this case is a limitation upon a

18 person otherwise entitled to the right of access,” the bar “must be

total and complete to be effective.”10 For example, the trial court

explained, “a successor in title is not barred by the doctrine of Res

Judicata who receives title through the barred co-owner and a co-

owner who is not barred.” The trial court also considered Ranch

Owner’s offer of proof, which included evidence of the returns of

service in the 1960 Torrens actions.

¶ 36 The trial court then determined, on a tract-by-tract basis,

whether any of the tracts listed in the 2004 Duncan Report were

subject to the res judicata bar. After making findings about each

tract, the trial court concluded that all such tracts that were not

subject to the bar were entitled to access the Ranch “to graze

animals, gather firewood, and remove timber.”

10 Additionally, the trial court found that the Colorado Rules of Civil Procedure in effect when the Torrens actions were filed in 1960 required that, to be effective, personal service must be made either to the named individual personally or to an adult family member at the individual’s residence. See C.R.C.P. 4(e)(1) (1960); see also § 118-10-21, C.R.S. 1960 (requiring that service in a Torrens action must comply with the Colorado Rules of Civil Procedure). It also found that the summons must be served with the application for personal service to be adequate. See § 118-10-15, C.R.S. 1960.

19 ¶ 37 From 2005 to 2010, the title company periodically issued new

reports identifying separate Map A tracts and the present and 1960

owners of each tract. In 2006, the title company’s reports revealed

that certain portions of the Ranch were comprised of original vara

strip lands that were once benefited by Beaubien’s grant.

¶ 38 The trial court decreed access rights for the landowners

identified in the Duncan Reports whose claims were not barred by

res judicata. When the court determined that a landowner was

barred by res judicata, that landowner was notified and offered a

hearing. Through this initial phase of the identification process, the

trial court identified all present-day owners of land within Map A.

Altogether, this process resulted in access rights being decreed for

4500 landowners and 6000 parcels.11

11During the opt-out process, the trial court also presumed timely settlement and decreed access rights for landowners in the towns of San Luis, San Pablo, and Los Vallejo, on the grounds that each town was mentioned in Beaubien’s granting document. The trial court adjudicated access rights for these landowners through the same process used for Map A and Book E landowners.

20 ¶ 39 The opt-out process reached substantial completion by 2010.12

With the opt-out process nearing completion and upon finding no

just reason to further delay entry of a final judgment, the trial court

certified its orders on remand as final under C.R.C.P. 54(b). Ranch

Owner appealed the judgment. Landowners cross-appealed. But a

division of this court dismissed the appeal without prejudice as

premature, concluding that the trial court had not, in fact, entered

a final appealable judgment. See Lobato v. CVR Props., Ltd., (Colo.

App. No. 09CA1822, Feb. 4, 2010) (unpublished order).

2. The Opt-In Process: 2010-2016

¶ 40 In 2010, having exhausted the identification based on Map A

and Book E, the trial court initiated a new identification process,

the opt-in process.13

¶ 41 The trial court initiated the opt-in process by sending notices

by mail to all landowners in the southern portion of Costilla

12 Because the pace of the title company’s work slowed toward the end of the process due to the ailing health of the principals, it did not issue its final report until May 2012. 13 In February 2010, the presiding trial court judge, Judge Gaspar

Perricone, retired and was replaced by Judge Kenneth Plotz.

21 County14 advising them of their right to participate in the opt-in

identification process. Ranch Owner did not renew its proposal to

personally serve all Costilla County landowners.15 Each notice

advised that the landowner must respond within 120 days to

participate in the opt-in process, but stated that “[l]andowners will

not lose their opportunity to establish access rights if they choose

not to participate in the identification process.” Altogether,

approximately 23,000 advisory notices were mailed; roughly 1200

landowners came forward to make claims, and the trial court

granted access rights to around 350 additional parcels.

¶ 42 In January 2015, landowners and Ranch Owner entered into a

joint stipulation “to delineate certain geographic areas within

Costilla County that were settled by January 1869.” The parties

stipulated that “landowners in Costilla County who are able to trace

14 In the time of Gilpin, the Sangre de Cristo land grant was divided into two parcels: a southern portion (Costilla Estate) and a northern portion (Trinchera Estate). Finding no evidence that Gilpin transferred any lands in the northern portion to settlers, the trial court concluded that notice need only be mailed to landowners in the southern half of Costilla County. The parties thereafter stipulated to a line dividing the northern and southern halves of Costilla County. 15 Nor did Ranch Owner request to personally serve all landowners

whose access rights had not been adjudicated one way or the other.

22 the settlement of their property to the Time of Gilpin, defined as

January 1869 . . . are entitled to all appurtenant easement rights

delineated by the Court in Lobato II.” The parties further stipulated

that all lands delineated in the map attached to the stipulation —

areas termed the “Stipulated Settled Lands” — were settled no later

than January 1869. The Stipulated Settled Lands encompassed all

of the Map A and Book E land, plus the towns that were named in

the Beaubien Document and lands that were within the other

settlements to which Ranch Owner previously stipulated. The

stipulation provided that “landowners may obtain Easement Rights

for their property by showing, through the best available evidence,

that their property is situated within the Stipulated Settled Lands.”

¶ 43 In 2016, after the trial court adjudicated the claims of those

landowners who responded to the 2010 advisory notices, Ranch

Owner moved to serve any unidentified or nonresponding claimants

with notice through publication. The trial court denied Ranch

Owner’s motion, concluding that service by publication would

violate the supreme court’s mandate by extinguishing the rights of

any landowners who did not then come forward, without any

attempt to personally serve them. The trial court concluded that

23 “pragmatic finality” was achievable for purposes of Rule 54(b)

without service by publication and certified its orders as final for

appeal. The trial court reiterated that landowners whose rights had

not been adjudicated were not foreclosed from asserting a claim in

the future.

¶ 44 This appeal and cross-appeal followed.

II. Analysis

¶ 45 Ranch Owner presents six claims on appeal, contending that

(1) the trial court’s opt-out identification process on remand violated

the supreme court’s mandate; (2) the trial court improperly decreed

access rights to the Salazar estate portion of the Ranch through the

same process used for the mountain tract portion of the Ranch; (3)

the trial court erred in limiting the res judicata bar to landowners

“personally named and served” in the 1960 Torrens actions,

ignoring well-settled Colorado law concerning co-owners and

successors; (4) the trial court improperly deprived Ranch Owner of

the finality required in a quiet title action pursuant to C.R.C.P. 105

by denying Ranch Owner’s request for service by publication at the

conclusion of the opt-in process; (5) the trial court improperly

refused to apportion landowners’ access rights in proportion to their

24 parcel sizes or implement rules and regulations governing their use

to avoid harm to the Ranch; and (6) the trial court improperly

refused to bar landowners from exercising access rights on portions

of the present-day Ranch that were once part of the dominant

estate and, therefore, not subject to the access rights.

¶ 46 Landowners cross-appeal, contending that the trial court’s

opt-in identification process implemented in 2010 violated the

supreme court’s mandate.

¶ 47 Before we discuss each issue raised by the parties, we first

address whether the trial court properly certified its orders as a

final judgment for appeal pursuant to Rule 54(b), as a jurisdictional

requirement.

A. Finality of the Trial Court’s Judgment for Appeal

¶ 48 Ranch Owner and landowners contend that the trial court’s

final judgment is sufficiently final pursuant to Rule 54(b) to confer

jurisdiction over the appeal and cross-appeal. For the reasons set

forth below, we agree.

1. Additional Background

¶ 49 In October 2016, as described in Part I.C, supra, the trial

court issued a final order that certified all prior orders adjudicating

25 access rights for landowners as final and appealable pursuant to

Rule 54(b). The trial court acknowledged that “there may be

additional landowners whose property has access rights that have

not yet been adjudicated,” but concluded that it had carried out its

mandate “as completely as is reasonably possible” and “reached

pragmatic finality.” The trial court also noted that “the

identification process has taken over a decade,” and that no new

landowner claimants had come forward in the past eight months. It

reasoned that the remand proceedings “at some point must be

considered final” for appeal, even though any remaining landowner

claimants were not foreclosed from coming forward in the future.

¶ 50 In June 2017, this court ordered the parties to show cause as

to why Ranch Owner’s appeal and landowners’ cross-appeal should

not be dismissed for lack of jurisdiction. In the show cause order,

we noted that the trial court’s October 2016 order “does not contain

an express determination that there is no just reason for delay

and . . . express direction for the entry of judgment,” as Rule 54(b)

requires for an order to be certified as final and appealable.

26 2. Rule 54(b)

¶ 51 When an action involves multiple parties or multiple claims for

relief, Rule 54(b) permits a court to direct entry of a final judgment

as to fewer than all claims or parties. Rule 54(b) creates an

exception to the general rule that an entire case must be resolved

by a final judgment before an appeal is brought. Grear v. Mulvihill,

207 P.3d 918, 921 (Colo. App. 2009). Rule 54(b) provides that the

court may direct the entry of a final judgment as to fewer than all

claims or parties “only upon an express determination that there is

no just reason for delay and upon an express direction for the entry

of judgment.”

¶ 52 Where multiple parties are involved, a certification under Rule

54(b) is proper when (1) the decision certified is final in the sense of

being an ultimate disposition of an individual claim and (2) the trial

court determines that there is no just reason for delay in entry of a

final judgment on the claim. See Harding Glass Co. v. Jones, 640

P.2d 1123, 1125 (Colo. 1982) (describing a three-step process to

determine whether Rule 54(b) certification is proper); see also Lytle

v. Kite, 728 P.2d 305, 308 (Colo. 1986) (“[T]he first prong of the

27 Harding Glass requirements does not apply to a certified decision

involving multiple parties.”).

¶ 53 Our jurisdiction to entertain an appeal of a decision certified

under Rule 54(b) depends upon the correctness of the certification.

Carothers v. Archuleta Cty. Sheriff, 159 P.3d 647, 651 (Colo. App.

2006). We review de novo the legal sufficiency of the trial court’s

certification. Id.

3. The Trial Court Properly Certified Its Orders as Final Judgments for Appeal

¶ 54 We conclude that, under these unusual circumstances, the

trial court properly certified its judgment as final pursuant to Rule

54(b). Directed by the supreme court in Lobato II to “identify all

landowners who have access rights,” 70 P.3d at 1167 (emphasis

added), the trial court spent more than a decade identifying and

adjudicating access rights for thousands of landowners in Costilla

County. These landowners’ claims were definitively resolved by the

trial court. See Harding Glass Co., 640 P.2d at 1125 (Rule 54(b)

certification requires ultimate disposition of an individual claim).

Thus, the first of the two relevant Harding Glass requirements is

satisfied here.

28 ¶ 55 Next, it is not fatal that the trial court’s final order itself did

not include an express finding of no just reason for delay. See Cyr

v. Dist. Court, 685 P.2d 769, 770 (Colo. 1984) (“In determining

whether an order constitutes a final judgment, we must look not to

the title of the instrument but to its content.”). At a June 2016

hearing on whether to certify a final judgment pursuant to Rule

54(b), the trial court made an oral finding that this was “a unique

case yet there’s no just reason for further delay.” While this express

finding was not included in the trial court’s final written order, the

court determined that it had carried out its mandate “as completely

as is reasonably possible” and reasoned that the proceedings “at

some point must be considered final.” In our view, these findings

are the functional equivalent to a finding that there is no just

reason for delay.

¶ 56 Our conclusion is consistent with the purpose of Rule 54(b) —

to avoid undue hardship from a delay in allowing an appeal. Allison

v. Engel, 2017 COA 43, ¶ 32. Remand proceedings in this case

have been ongoing for more than a decade. Therefore, the equitable

interest in reaching an appealable resolution also weighs in favor of

granting Rule 54(b) certification. See Lytle, 728 P.2d at 309 (stating

29 that equitable concerns favored resolution of dispute that had been

ongoing for nine years).

¶ 57 Finally, Rule 54(b) certification in this case was not premature

simply because the trial court had not adjudicated the rights of all

potential landowner claimants in Costilla County, as the mandate

directed. Requiring a comprehensive and complete result as a

prerequisite for Rule 54(b) certification under these circumstances

would potentially shield the trial court’s orders on remand from

appellate review indefinitely. This is so because the trial court

understood that any additional landowner claimants’ rights could

not be adjudicated until they came forward on their own — a

process with no identifiable end date. But while certain unknown

claimants had not had their rights adjudicated when the trial court

entered the Rule 54(b) certification, the trial court concluded that it

had discharged its mandate to the extent “reasonably possible.”

With no pending claims for a period of eight months, the trial court

was well within its discretion in certifying its orders as final

pursuant to Rule 54(b). Indeed, doing so allows this court to review

the trial court’s conclusion that more comprehensive identification

procedures were not reasonably possible, and to determine whether

30 additional identification procedures are required. If we instead

concluded that a comprehensive and complete result was a

prerequisite for Rule 54(b) certification, we would be required to

remand for the trial court to produce a result that it already

concluded was not reasonably possible, without reviewing the

propriety of its conclusion in this regard. This would be untenable.

¶ 58 For these reasons, we conclude that the trial court’s Rule 54(b)

certification was proper and we, therefore, have jurisdiction over

this appeal.

B. Adherence to the Mandate During the Opt-Out Process

¶ 59 As discussed above, the proceedings on remand from 2004

through 2010 comprise the opt-out process. Ranch Owner

contends that the trial court contravened the supreme court’s

mandate on remand during the opt-out process by granting access

rights without requiring each claimant to first be notified and then

appear to assert a claim or present evidence at a hearing. Ranch

Owner argues that the trial court’s process on remand violated the

mandate by eliminating the landowners’ burden to present evidence

sufficient to meet their burden of proof, while at the same time

31 denying Ranch Owner the opportunity to test the evidence of timely

settlement or present rebuttal evidence.

¶ 60 We are not persuaded that the trial court’s opt-out process

was inconsistent with the supreme court’s mandate in Lobato II.

1. The Supreme Court’s Mandate and Instructions for Remand

¶ 61 In Lobato II, the supreme court provided specific directions to

guide the remand proceedings. It held that, “[b]ecause the plaintiff

landowners have prevailed on their claims, [Ranch Owner] now

must pay the costs associated with identifying and notifying all

persons who have access rights to the Taylor Ranch.” 70 P.3d at

1167. The supreme court then “direct[ed] the trial court to identify

all landowners who have access rights to the Taylor Ranch and to

enter all necessary and appropriate orders to safeguard these

rights.” Id. at 1167-68.

¶ 62 The supreme court’s opinion further instructed the trial court

how to perform the identification on remand. It held that, “in order

to have actual access rights to the Taylor Ranch, landowners must

be able to show that their lands were settled at the time of the

creation of the Beaubien document in 1863.” Id. at 1157. The

supreme court also prescribed the actual mechanics for how

32 landowners were expected to prove their claims on remand. See id.

(“For practical purposes, this requirement [to show that one’s lands

were timely settled] can be established by tracing settlement of

one’s property to the time of Gilpin’s ownership of the Taylor

Ranch.”).

¶ 63 The supreme court also specified the standard of proof and

identified the evidence that would presumptively meet the standard.

It held that, “[u]sing the best available evidence, landowners must

prove by a preponderance of the evidence that their property is

included within the boundaries of property owned or occupied by

settlers during the time of Gilpin’s ownership of the lands of the

Sangre de Cristo grant.” Id. at 1159.

¶ 64 When the supreme court modified its Lobato II opinion in

response to the parties’ petitions for rehearing, it included a

footnote at the end of the sentence quoted above. That footnote

provided as follows:

We emphasize that the landowners need not prove a marketable chain of title for their property. As stated in the text, the landowners must use the best available evidence to prove their lands are benefited by the easements Beaubien granted. From the record before us, it appears that the best evidence of benefited

33 properties conveyed by Beaubien is the official 1894 Costilla County survey and inventory of lands held by individuals along the Culebra, Vallejos, and San Francisco Creeks.16 Of course, we do not foreclose the landowners from presenting other evidence to prove their settlement claims.

Id. at 1159 n.6.

2. Standard of Review

¶ 65 A trial court’s implementation of an appellate mandate is

reviewed de novo. Super Valu Stores, Inc. v. Dist. Court, 906 P.2d

72, 77 (Colo. 1995); Hardesty v. Pino, 222 P.3d 336, 340 (Colo. App.

2009). Where compliance with the appellate mandate requires

evidentiary or other post-remand factual determinations by the trial

court, we review for an abuse of discretion. Murray v. Just In Case

Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16.

3. The Trial Court’s Remand Process During the Opt-Out Process Comported with the Supreme Court’s Mandate

¶ 66 Ranch Owner contends that the trial court’s opt-out process

violated the supreme court’s mandate. Ranch Owner argues that

the trial court should have implemented a process akin to the opt-

16 As mentioned above, the 1894 Costilla County survey is referred to as “Map A and Book E” based on its location in the Costilla County real property records.

34 in process from the outset, and that the opt-out process was

improper for three reasons. Ranch Owner argues that the trial

court (1) relied on a conclusive presumption that relieved

landowners of their burden of proof; (2) denied Ranch Owner the

opportunity to examine the title company or inspect its work; and

(3) improperly denied Ranch Owner the opportunity to present

rebuttal evidence.

¶ 67 We are not persuaded that the trial court’s opt-out process

was inconsistent with the mandate. We discuss each specific issue

raised by Ranch Owner in turn.

a. The Trial Court’s Reliance on Map A and Book E During the Opt-Out Process Did Not Violate the Mandate

¶ 68 First, Ranch Owner contends that the trial court’s reliance on

Map A and Book E evidence established a conclusive presumption

that improperly relieved landowners of their burden of proof. We

disagree. Instead, we conclude that the trial court’s reliance on

Map A and Book E was consistent with the supreme court’s

mandate in Lobato II.

¶ 69 In footnote six, which was added to Lobato II when it was

modified after the parties’ petitions for rehearing, the supreme court

35 held that “landowners need not prove a marketable chain of title for

their property.” 70 P.3d at 1159 n.6. Additionally, footnote six

provided that, “[f]rom the record before us, it appears that the best

evidence of benefited properties conveyed by Beaubien is the official

1894 Costilla County survey and inventory of lands.” Id. As noted,

the 1894 Costilla County survey referenced in footnote six is also

known as Map A and Book E. Thus, the supreme court identified

Map A and Book E as evidence presumptively sufficient (but not

necessary) on remand to prove that an owner of a tract of land has

rights to access the Ranch.

¶ 70 The relationship between footnote six and landowners’ petition

for rehearing is also illuminating. In their petition, landowners

asked the supreme court to “clarify the mechanism of proof that

plaintiffs can use on remand to establish their claims.” Landowners

“requested confirmation” that they would be able to “satisfactorily

meet the Court’s requirement by presenting the best proof available

of locations of land” settled in the time of Gilpin, “and that plaintiffs

currently own or possess such tracts or portions thereof.”

Landowners noted that the results of the 1894 Costilla County

survey “are contained in” Map A and Book E, and that they were

36 “deeply concerned” that, on remand, Ranch Owner would argue

“that each Plaintiff claiming access rights must individually produce

a formal abstract or similar evidence containing a complete chain of

title,” notwithstanding that “[s]uch information is what Map A and

Book E officially catalogued.”

¶ 71 When the supreme court subsequently modified Lobato II, it

added the statement prescribing the burden of proof that Ranch

Owner contends was improperly lightened on remand: “Using the

best available evidence, landowners must prove by a preponderance

of the evidence that their property is included within the boundaries

of property owned or occupied by settlers during the time of Gilpin’s

ownership of the lands of the Sangre de Cristo grant.” 70 P.3d at

1159. The supreme court appended footnote six to this sentence,

stating that the “best evidence” in the record to meet this standard

is Map A and Book E. Id. at 1159 n.6.

¶ 72 Because the supreme court’s identification of Map A and Book

E as the “best evidence” appears to directly respond to landowners’

request to clarify the “mechanism of proof” that would be sufficient

on remand, we conclude that the trial court’s reliance on Map A and

Book E was consistent with the mandate. For this reason — and

37 also because we conclude, as discussed below, that Ranch Owner

was not denied the opportunity to challenge the Map A and Book E

evidence before the trial court decreed access rights — we are not

persuaded by Ranch Owner’s contention that the trial court

improperly relied on a conclusive presumption that current owners

of any property within the Map A and Book E record had access

rights.

b. Any Restrictions Placed By the Trial Court on Discovery of a Court-Appointed Expert Do Not Warrant Reversal

¶ 73 Second, Ranch Owner contends that the trial court improperly

denied Ranch Owner the opportunity to depose or otherwise

examine any representative of the title company during the remand

proceedings or inspect the title company’s work product. We

conclude that, even assuming the trial court erred by denying the

parties access to a representative of the title company for

depositions or other discovery, any error was harmless.

¶ 74 The trial court appointed the principal of the title company as

“an abstractor to advise the Court by written report” of the present-

day landowners whose property was settled in the time of Gilpin.

Out of concern that allowing direct contact with title company

38 personnel would “interfere with” the title company’s work, the trial

court barred the parties from deposing or otherwise directly

contacting representatives of the title company. The court instead

interposed itself between the parties and the title company,

describing the title company’s process to the parties and inviting

them to submit questions, which the trial court would then raise

with the title company’s representatives. In prohibiting the parties

from contacting representatives of the title company, the trial court

also found that the title company’s reports were “self-explanatory”

and provided “the background information for each one of the

tracts.”

¶ 75 In its order of appointment, the trial court made no reference

to CRE 706, but we conclude that the principal of the title company

acted as a court-appointed expert witness pursuant to that rule.

See CRE 706(a) (“The court may appoint any expert witnesses

agreed upon by the parties, and may appoint expert witnesses of its

own selection.”). CRE 706 is essentially identical to Federal Rule of

Evidence 706, and “when the Colorado and Federal Rules of Civil

Procedure are essentially identical, case law interpreting the federal

rule is persuasive in analysis of the Colorado rule,” Forbes v.

39 Goldenhersh, 899 P.2d 246, 249 (Colo. App. 1994) (citing Harding

Glass, 640 P.2d at 1125 n.3). Both rules authorize the parties to

depose and cross-examine a court-appointed expert. See Fed. R.

Evid. 706(b)(2), (b)(4); CRE 706(a). But these discovery

requirements are inapplicable to court-appointed “advisors or

consultants.” Reilly v. United States, 863 F.2d 149, 155 (1st Cir.

1988). The line between “advisors or consultants” and expert

witnesses is drawn based on whether the appointee “contribute[s]

new evidence.” Id. at 156; see also Ass’n of Mexican-Am. Educators

v. California, 231 F.3d 572, 590-91 (9th Cir. 2000) (deciding that

court appointee not subject to Fed. R. Evid. 706 where court never

relied on appointee “as a source of evidence”). Here, because the

trial court relied on the title company as a source of evidence, it was

not acting simply as an advisor or consultant. Thus, the trial

court’s decision to prohibit the parties from examining

representatives of the title company seems to have been contrary to

CRE 706(a).

¶ 76 Nevertheless, Ranch Owner has not identified any prejudice

that resulted from the trial court’s decision to limit access. Indeed,

the record belies Ranch Owner’s contention that it was denied the

40 opportunity to inspect the title company’s work product. The title

company’s reports were available for Ranch Owner’s inspection, and

the trial court provided time after each status conference for Ranch

Owner to raise questions about the title company’s process.

Moreover, Ranch Owner has not identified any error in the title

company’s work, nor any tract of land that was improperly granted

access. Accordingly, because we cannot discern what, if any,

information Ranch Owner could have acquired only through

examination of the title company’s representatives and not through

other means, any error by the trial court is harmless.

¶ 77 We are also not persuaded by Ranch Owner’s argument that

being precluded from examining the principal of the title company

prevented it from challenging the presumption that all of the land in

the Map A and Book E area was timely settled. Ranch Owner’s

argument in this regard appears to conflate the significance of the

title company’s reports with that of the Map A and Book E evidence.

The title company identified the owners and current descriptions of

properties within the bounds of the land presumed to be timely

settled (i.e., land on Map A). It did not determine that these

properties were or were not timely settled. Thus, Ranch Owner’s

41 inability to examine a title company representative about these

reports would not have prejudiced Ranch Owner’s ability to

challenge the presumption that lands within Map A and Book E

were timely settled. Moreover, any such issue was mooted by

Ranch Owner’s eventual stipulation to the timely settlement of all

Map A lands.

c. The Trial Court Did Not Deny Ranch Owner the Opportunity to Present Rebuttal Evidence to Map A and Book E

¶ 78 Next, Ranch Owner contends that the trial court denied it the

opportunity to present rebuttal evidence to challenge the timely

settlement of the area covered by Map A and Book E. We conclude

that this contention is unsupported by the record.

¶ 79 In January 2015, Ranch Owner ultimately stipulated that all

lands within Map A and Book E,17 as well as certain lands outside

that area, were timely settled. Ranch Owner contends that the

stipulation does not preclude this argument on appeal because the

stipulation contained a clause reserving Ranch Owner’s “right to

appeal any and all rulings, orders or determinations” entered on

17At oral argument, both sides agreed that all of the Map A and Book E land is included in the map of Stipulated Settled Lands.

42 remand, including “those that determined . . . whether the

Stipulated Settled Lands are part of the Burdened Property.” We

are not persuaded that Ranch Owner’s reservation of the right to

appeal the trial court’s orders nullifies its unambiguous stipulation

to a factual matter — that is, that the lands identified in the

stipulation were timely settled. To the extent Ranch Owner now

argues that it was prejudiced because the trial court prevented it

from presenting evidence to rebut the presumption that Map A and

Book E lands were timely settled, we conclude that Ranch Owner’s

contention is foreclosed by Ranch Owner’s eventual stipulation to

that very fact.

¶ 80 The record further belies Ranch Owner’s claim that it was

prevented from presenting rebuttal evidence. On appeal, Ranch

Owner points to just one piece of evidence that it contends the trial

court did not allow it to present — a 1913 survey of Costilla County.

Ranch Owner contends that it was “prepared to present” the 1913

survey to challenge the presumption that all land in Map A and

Book E was timely settled. Ranch Owner cites to a February 2005

brief where counsel argued that, “[i]f an opportunity to present

evidence would be afforded as [Ranch Owner] has requested,”

43 Ranch Owner “would be prepared to present evidence, including a

1913 survey of the county that resulted in a substantial reduction

of the vara strip area, that would contest the settlement of various

lands.” Ranch Owner, however, does not cite to any hearing or

other portion of the record where Ranch Owner actually requested

that the trial court consider the 1913 survey as evidence, or where

it provided the trial court with an offer of proof as to what the 1913

survey would show.

¶ 81 Nor does Ranch Owner cite to any portion of the record where

the trial court denied Ranch Owner’s request to present the 1913

survey or other evidence. Ranch Owner contends that the trial

court did not allow it to present evidence challenging the Map A and

Book E presumption, but only cites to a March 2005 order in which

the trial court concluded that all tracts in the 2004 Duncan Report

were timely settled and found that Ranch Owner “presented no

competent evidence to the contrary.” This order does not support

Ranch Owner’s contention that it tried but was not allowed to

present the 1913 survey as evidence.

¶ 82 Additionally, the record shows that the trial court accepted

and considered evidence from Ranch Owner in the form of an offer

44 of proof before it decided that the landowners in the 2004 Duncan

Report had access rights. Ranch Owner’s offer of proof included

evidence of personal service in the 1960 Torrens actions on certain

landowners, offered by Ranch Owner to show that their successors

should be subject to the res judicata bar. The trial court advised

Ranch Owner that, if it wished the trial court to reconsider its

ruling (that landowners in the 2004 Duncan Report had access

rights), Ranch Owner could “expand upon [its] offer of proof.” But

Ranch Owner did not thereafter supplement its offer of proof or

request to present additional evidence.

¶ 83 For these reasons, we conclude that the trial court followed

the mandate during the opt-out process. As described above, the

trial court’s identification of landowners based on Map A and

Book E did not establish a conclusive presumption, and Ranch

Owner was not precluded from presenting evidence to rebut the

Map A and Book E presumption of timely settlement. And while the

trial court may have erroneously restricted discovery of its court-

appointed expert, any such error was harmless.

45 C. Inclusion of the Salazar Estate in Remand Proceedings

¶ 84 Ranch Owner next contends that the trial court’s reliance on

the same process on remand to decree rights to both the Salazar

estate and the mountain tract portions of the Ranch was improper

because it failed to consider the Salazar estate’s distinct factual and

procedural history and was premised on findings pertaining only to

the mountain tract portion. We disagree.

¶ 85 In 1960, Taylor purchased the roughly 77,000 acres

comprising the mountain tract of the Ranch. In 1973, Taylor

purchased an adjoining parcel of roughly 2500 acres that was also

part of the Sangre de Cristo grant. These 2500 acres comprise the

Salazar estate. See Lobato I, 71 P.3d at 943-44.

2. The Trial Court Properly Included the Salazar Estate in Remand Proceedings

¶ 86 Ranch Owner’s argument is foreclosed by the supreme court’s

mandate. In Lobato I, the supreme court specifically held that the

mountain tract and the Salazar estate together comprised the

Taylor Ranch. 71 P.3d at 944 (“Together, the mountain tract and

the Salazar estate are known as the Taylor Ranch.”). Ranch Owner

46 argued in its Lobato II brief that the Salazar estate should not be a

part of the case. But the supreme court in Lobato II reiterated that

“the Taylor Ranch includes those lands known as the Salazar

estate” and held that, “[a]s such, our decision in the present case

also applies to the Salazar estate.” 70 P.3d at 1155 n.1. Thus, we

conclude that the supreme court has considered and rejected

Ranch Owner’s argument, and neither the trial court nor this court

is free to revisit it. See People v. Roybal, 672 P.2d 1003, 1005 (Colo.

1983) (“The law of the case as established by an appellate court

must be followed in subsequent proceedings before the trial court.”).

D. Res Judicata

1. Ranch Owner’s Contentions

¶ 87 Ranch Owner contends that the trial court erroneously limited

the application of res judicata to landowners who received personal

service in the 1960 Torrens actions and their successors. Ranch

Owner contends that it is well settled under Colorado law that (1) a

person may consent to personal jurisdiction — thereby waiving any

due process notice requirements — through participation in the

litigation; and (2) a res judicata bar applicable to one person also

bars anyone in privity with that person. Ranch Owner argues that

47 the trial court erroneously refused to apply res judicata to

landowners under these circumstances, notwithstanding the

supreme court’s holding that “individuals who should have been

personally named and served, and were not, are not barred from

presently bringing such claims.” Lobato II, 70 P.3d at 1158. We

conclude that Ranch Owner’s arguments are foreclosed by the

supreme court’s mandate and the law of the case, as established in

Lobato II.

2. The Trial Court Properly Denied Ranch Owner’s Motion for Broader Application of Res Judicata

¶ 88 Ranch Owner’s first argument — that res judicata must apply

to landowners who participated in the 1960 Torrens actions and

their successors — was considered and rejected by the supreme

court in Lobato II. Ranch Owner advanced this argument in its

Lobato II brief, arguing then that personal jurisdiction and proper

service should both be presumed for any landowner who

participated in the 1960 Torrens actions, even absent personal

service. Ranch Owner specifically argued that “[t]he appearances

by counsel [for landowners] eliminated the necessity for personal

service on all defendants individually named in the Torrens action.”

48 But this argument did not carry the day. Instead, the supreme

court held that “the claims made by all present-day landowners or

their predecessors in title not personally named or served in the

1960s Torrens action are not barred.” Lobato II, 70 P.3d at 1165.

This holding was a rejection of Ranch Owner’s argument that a

landowner’s participation in the 1960 Torrens actions was sufficient

for due process purposes to overcome the absence of personal

service.

¶ 89 The supreme court’s analysis in Lobato II provides further

support for our conclusion. After determining that, “[t]o have a

preclusive effect on the landowners’ current claims, Taylor’s Torrens

judgment must satisfy the minimum procedural requirements of the

Due Process Clause of the Fourteenth Amendment,” id. at 1160, the

supreme court held that “the Torrens bar on future challenges

cannot be sustained where constitutional deficiencies of notice are

present.” Id. Because the supreme court relied on the presence of

“constitutional deficiencies of notice” to hold that due process

limited the application of the res judicata bar, we conclude that the

supreme court intended to limit the application of res judicata to

landowners who received personal service — without regard to

49 whether they participated in the litigation. See Hardesty, 222 P.3d

at 340 (“[B]oth an appellate holding and its necessary rationale

become law of the case controlling future proceedings.”).

¶ 90 As to Ranch Owner’s second argument, we conclude that the

application of the res judicata bar to landowners whose co-owner

was personally served in the 1960 Torrens actions is also foreclosed

by the law of the case under Lobato II. In denying Ranch Owner’s

request for a hearing on res judicata issues, the trial court reasoned

that the supreme court “continually made the declaration that

those persons personally named and served were the only ones who

would be barred by res judicata.” Indeed, the supreme court

reiterated its specific holding that res judicata applied only to

landowners “personally named and served” on at least five

occasions throughout its Lobato II opinion. The fact that Ranch

Owner did not make the specific argument it advances now prior to

the supreme court deciding Lobato II does not prevent such a

contention from being foreclosed by the supreme court’s holding.

See Hardesty, 222 P.3d at 341 (On remand, an appellate holding is

not limited to its specific rationale “because the decided ‘issue may

be broader than the specific arguments addressed to the court of

50 appeals.’” (quoting 18B Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 4478.3, at 759-

60 (2d ed. 2002))).

¶ 91 In summary, the supreme court made clear that the res

judicata bar only extended to landowners and successors who were

“personally named and served” in the 1960 Torrens actions, and the

trial court was not free to disregard or modify this language. Nor

are we.

E. Service by Publication

¶ 92 Ranch Owner next contends that the trial court’s denial of its

motion to serve any remaining unknown claimants with notice

through publication was error because it prevented Ranch Owner

from achieving the finality required of a quiet title action under Rule

105. We disagree.

¶ 93 As described in Part I.C, supra, the trial court denied Ranch

Owner’s request at the outset of the remand proceedings to

personally serve all Costilla County landowners with notice of their

obligation to come forward and assert a claim to access the Ranch.

The trial court decided instead to proceed with an opt-out process,

51 which it began by identifying landowners with access rights based

upon the Map A and Book E record, and only notified landowners

after their rights were adjudicated. At the conclusion of the opt-out

process, the trial court initiated the opt-in process, during which all

Costilla County landowners were mailed notices advising of the

ongoing proceedings but informing each landowner that his or her

right to make a future claim would not be foreclosed by a failure to

respond.

¶ 94 At the conclusion of the opt-in process, Ranch Owner sought

to achieve finality through service of notice by publication to all

remaining, unidentified claimants. Ranch Owner did not renew its

request to personally serve all Costilla County landowners — or

even the subset of landowners whose claims had not been

adjudicated. In fact, Ranch Owner indicated that it would “resist”

any such approach. The trial court denied Ranch Owner’s request

for service by publication, concluding that it would violate the

supreme court’s mandate by extinguishing the rights of any non-

responding claimants without first personally serving them. We

discern no error on the part of the trial court in this regard.

52 2. The Trial Court Properly Denied Ranch Owner’s Request to Achieve Finality Through Service by Publication

¶ 95 Ranch Owner contends that the trial court’s refusal to allow

service by publication on unknown parties who may in the future

claim an interest in the Ranch deprived Ranch Owner of the

complete and final adjudication that Rule 105 requires in a quiet

title action. Lobato II, 70 P.3d at 1165. Ranch Owner argues that

the due process concerns identified by the supreme court in Rael,

876 P.2d 1210, Lobato I, and Lobato II were satisfied through the

trial court’s exhaustive, decade-long efforts to identify potential

claimants and decree access rights and that, because the trial court

had concluded that process, service by publication was an

appropriate method to achieve finality.

¶ 96 Landowners respond that service by publication, because it

would extinguish the rights of any landowner who did not respond,

would violate the supreme court’s mandate in Lobato II, which held

that personal service was required before any landowner’s rights to

access the Ranch could be extinguished. Landowners also argue

that the general requirement that a quiet title action completely

53 adjudicate the rights of all interested parties is not applicable here

because the property rights at issue are not mutually exclusive.

¶ 97 We agree with landowners that Ranch Owner’s requested

service by publication would have violated the supreme court’s

mandate in Lobato II, and, therefore, we conclude that the trial

court properly denied Ranch Owner’s request.

¶ 98 The supreme court’s mandate in Lobato II required Ranch

Owner to first attempt to personally serve all Costilla County

landowners before the requirements of procedural due process

would allow any landowner’s rights to be extinguished utilizing a

lesser form of service. Lobato II, 70 P.3d at 1165. With respect to

the 1960 Torrens action, the supreme court held that “[u]nder the

circumstances of this unique case, reasonable diligence required

that Taylor personally name and serve all landowners in Costilla

County.” Id. at 1164. Because the supreme court found that the

names and addresses of all landowners in Costilla County were

“reasonably ascertainable” through public tax records, it held that

Taylor failed to exercise reasonable diligence when he resorted to

publication service without first attempting to effectuate personal

service. Id. at 1164-65; see also Weber v. Williams, 137 Colo. 269,

54 276, 324 P.2d 365, 368 (1958) (“The law requires that personal

service shall be had whenever it is obtainable.”). The same was just

as true at the end of the opt-in process as it was in 1960. After the

conclusion of the identification process on remand, Ranch Owner

never renewed its request to personally serve all Costilla County

landowners whose claims had not been adjudicated.

¶ 99 Nor are we persuaded that the due process concerns identified

by the supreme court were satisfied upon completion of the trial

court’s identification process on remand. Ranch Owner argues that

service by publication was appropriate because, upon completion of

the trial court’s identification process, reasonably diligent efforts

had been made to personally serve all potential claimants who were

reasonably ascertainable. But this contention is not supported by

the record and is contrary to the supreme court’s express holding

that reasonable diligence requires an attempt to achieve personal

service on all Costilla County landowners, whose names and

addresses are reasonably ascertainable from public records. See

Lobato II, 70 P.3d at 1164. At the conclusion of the trial court’s

process, personal service on all landowners identified in public

records would have achieved finality without violating the due

55 process rights of Costilla County landowners, but Ranch Owner did

not ask the trial court to proceed in that manner. Because it was

not within the trial court’s discretion to alter or disregard the

supreme court’s mandate and authorize publication notice in the

absence of reasonable diligence by Ranch Owner as understood in

the context of Lobato II, the trial court correctly concluded that

publication notice (without first attempting personal service) would

be contrary to the appellate mandate and the law of the case.

¶ 100 We are not persuaded otherwise by Ranch Owner’s argument

that the trial court’s refusal to authorize publication notice

prevented the finality required in a quiet title action under Rule

105. To the extent Rule 105 conflicts with the supreme court’s

holdings and mandate, the mandate controls. See Roybal, 672 P.2d

at 1005 (“The law of the case as established by an appellate court

must be followed in subsequent proceedings before the trial court.”);

see also Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484 (1989) (“If a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow the

56 case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.”).

F. Apportionment of Rights and Rules Governing Use

¶ 101 Ranch Owner next contends that the trial court erroneously

refused to apportion each landowner’s access right in proportion to

the size of each subdivided parcel. Apportionment is necessary,

Ranch Owner argues, to avoid imposing an unsustainable burden

on the Ranch. Ranch Owner also contends that the trial court

erroneously refused to further define the scope of the access rights

and impose rules and regulations for their exercise. Landowners

respond that Ranch Owner failed to prove actual overuse by any

landowner and so was not entitled to relief for an injury that had

not yet occurred nor was demonstrably imminent. We are not

persuaded that the trial court abused its discretion in declining to

apportion access rights or impose rules and regulations to govern

landowners’ exercise of their rights.

¶ 102 In Lobato I, the supreme court held that landowners had

implied rights to the Ranch in three forms: “a prescriptive

easement, an easement by estoppel, and an easement from prior

57 use.” 71 P.3d at 946. It held that the extent of landowners’ access

rights was determined by “the rights memorialized in the Beaubien

Document” and, therefore, included rights to access the Ranch for

pasture, firewood, and timber. Id. at 956. The supreme court

further held that landowners’ use of the Ranch must comport with

a reasonable use standard, under which their use must 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.

Id.

¶ 103 In 2004, at the outset of the proceedings on remand,

landowners filed a motion to enforce the reasonable use standard.

The trial court granted the motion in part. It found that

landowners’ “grazing right of access is limited to reasonable use of

livestock given the size of the vara strips” under the reasonable use

standard, and that the Beaubien Document authorized grazing “for

the purpose of survival or for household use.” In addition, the trial

court found that “[h]ousehold use does not include commercial

use,” and that “commercial use” is a use “made and done or

58 operated primarily for profit.” It then concluded that “[a]t this

time . . . there is no legal basis to deny enforcement of these access

rights,” but it noted that, once the trial court’s identification process

“has matured, [if] the Ranch Owner Defendants reasonably believe

that Plaintiffs are not in compliance with the Supreme Court’s

standards then they may seek further relief.”

¶ 104 A year later, Ranch Owner filed a motion requesting “further

clarification and definition of scope of access rights,” alleging that

landowners’ use of the Ranch violated the supreme court’s

reasonable use standard. Ranch Owner’s motion was supported by

an affidavit from a ranch manager, averring that the Ranch had a

grazing capacity of 470 animal units at 60 acres to the animal

unit.18 Ranch Owner submitted a second affidavit from another

ranch manager attesting that, as of August 2004, one landowner

was grazing 51 animal units, and that this landowner, along with

two others,19 was grazing 107 animal units on the 2500-acre

18 According to the affidavit, a single animal unit is comprised of one cow and one calf, or five sheep. One bull counts as 1.5 animal units. 19 These landowners’ access rights were decreed in June 2004 and

were limited to the Salazar estate.

59 Salazar estate. Ranch Owner argued that the identified uses

exceeded the reasonable use standard.

¶ 105 Ranch Owner further asserted that it had “met repeatedly with

the Lobato plaintiffs and other plaintiffs and have been able to work

out numerous issues” concerning grazing practices, but that other

issues were not amenable to informal resolution and would

compound as additional access rights were decreed. Ranch Owner,

therefore, sought the issuance of several remedial orders.

Specifically, Ranch Owner requested orders (1) tying each

landowner’s right to a legal description of his or her property; (2)

apportioning each landowner’s right in proportion to the

subdivision of the original benefited vara strip parcel; (3) providing

rules, regulations, and guidelines to govern access and use of the

Ranch; and (4) designating a group to represent the landowners in

negotiations.

¶ 106 At a hearing on the issue, the trial court denied Ranch

Owner’s motion. The trial court found that there was no evidence of

an adverse effect from landowners’ grazing practices and ruled that

it would not grant Ranch Owner’s requested prospective relief. It

also found that “the interest of the current property owners is so

60 fragmented as it relates to the original settlers that . . . [it] makes

the creation of rules based on apportion[ment] impossible.”

¶ 107 In 2006, Ranch Owner filed a motion seeking “to limit the

extent of use of the Ranch based on the size of the property granted

access.” Ranch Owner argued that apportionment was necessary

because the Ranch would be overburdened if even a fraction of the

landowners granted access rights to date were to graze livestock “as

if they have the whole of the original right that was appurtenant to

the original vara conveyance.” Ranch Owner requested that the

trial court limit each landowner’s rights based on the size of his or

her parcel, and also order that each landowner desiring to access

the Ranch must complete a form identifying his or her property and

the extent of his or her intended use. Ranch Owner asserted that

the information on the form would allow it to determine whether

there was a basis to object to the intended use as beyond the scope

of the landowner’s parcel.

¶ 108 At a hearing, the trial court granted Ranch Owner’s request to

require landowners to complete an intended-use form. It then

reiterated that landowners’ use of the Ranch was limited to

“reasonable use based upon the size of the original parcel conveyed

61 by Mr. Beaubien,” and encouraged the parties to resolve land use

issues between themselves. Beyond that, however, the trial court

refused to enter further orders.

¶ 109 A few months later, the trial court approved a “Notice of

Intended Use” form that landowners would be required to complete.

The trial court required landowners to complete the Notice of

Intended Use form as a prerequisite to access by describing their

property ownership and their intended use of the Ranch. The trial

court also ruled that Ranch Owner could not limit access to the

Ranch because of the information provided on the Notices without

further order of the court. But Ranch Owner could use the

information on the form to seek relief from the trial court through a

separate abuse or trespass action. Nothing in the record indicates

that Ranch Owner has done so thus far.20

¶ 110 Later that year, Ranch Owner moved for the trial court to hold

an evidentiary hearing to determine the grazing capacity of the

Ranch. Landowners opposed the requested hearing, arguing that

20At a February 2009 hearing, Ranch Owner’s counsel advised the court that “[t]he Notice of Intended Use forms have been in place for two years. The ranch owner has found the returns of those forms incredibly useful, with respect to the grazing numbers especially.”

62 Ranch Owner failed to present evidence of actual overburdening of

the Ranch. In support of their position, landowners submitted an

affidavit from an expert attesting that the historical grazing

practices on the Ranch greatly exceeded Ranch Owner’s estimate of

the Ranch’s total grazing capacity. Landowners further argued that

a determination of grazing capacity was outside the scope of the

mandate on remand and would delay the trial court’s completion of

the identification process.

¶ 111 The trial court denied Ranch Owner’s motion without a

hearing. In a written order, the trial court found that the grazing

capacity of the Ranch was dependent on seasonal weather

conditions and, therefore, “an order issued today may not serve the

interest of justice in the ensuing years.” It also found that the issue

did not implicate an issue of fact common to all class members. It

advised that, instead of a hearing, Ranch Owner should use the

Notices of Intended Use to determine whether to pursue claims for

overuse or abuse of access rights against individual landowners,

such as in a trespass action. To date, no such claim has been

asserted.

63 2. Legal Principles

¶ 112 Access rights must be apportioned when necessary to avoid

“an unreasonable increase in the burden on the servient estate.”

See Restatement (Third) of Property: Servitudes § 5.7(1) (Am. Law

Inst. 2000) (hereinafter Restatement). Easement holders are not

permitted to “cause unreasonable damage to the servient estate or

interfere unreasonably with its enjoyment.” Id. § 4.10. When a

benefited property has been subdivided, “[e]ach separately owned

parcel is entitled to make the uses privileged by an easement or

profit; provided, however, that if apportionment is required to avoid

an unreasonable increase in the burden on the servient estate, the

use rights are appropriately apportioned among the parcels.” Id. §

5.7(1).

¶ 113 A benefited property may expand its use of an easement

without creating an unreasonable burden. Wright v. Horse Creek

Ranches, 697 P.2d 384, 388-89 (Colo. 1985) (“[T]he beneficiary of

an easement established by prescription will be permitted to vary

the use of the easement to a reasonable extent.”). The “manner,

frequency, and intensity of the use may change over time,” for

example, “to accommodate normal development of the dominant

64 estate.” Restatement § 4.10; see also Westland Nursing Home, Inc.

v. Benson, 33 Colo. App. 245, 252, 517 P.2d 862, 867 (1974)

(same).

¶ 114 In determining whether “an additional use of the servient

estate is permissible,” a court should compare “the use originally

acquired and the additional use,” giving consideration to “their

purpose, the normal evolution in the use of the dominant estate,

and the relative burden to the servient estate.” 4 Herbert Tiffany,

Real Property § 1209, Westlaw (3d ed. database updated Sept.

2018).

3. Standard of Review

¶ 115 While a trial court’s implementation of an appellate mandate is

reviewed de novo, see Super Valu, 906 P.2d at 77, evidentiary or

other post-remand factual determinations are reviewed for abuse of

discretion, Murray, ¶ 16.

4. The Trial Court Did Not Abuse Its Discretion by Denying Ranch Owner’s Requests for Apportionment and Establishment of Rules

¶ 116 Ranch Owner contends that the trial court improperly refused

to apportion landowners’ rights to access the Ranch or establish a

management plan to govern consumption of its resources. Ranch

65 Owner contends that the trial court disregarded evidence that

landowners’ livestock grazing overburdened the Ranch, failed to

enforce the supreme court’s mandate requiring entry on remand of

all necessary orders to safeguard landowners’ rights to use the

Ranch, and ignored fundamental tenets of easement law under

which the trial court was obligated to issue orders designed to limit

the additional burden imposed on the Ranch. Ranch Owner also

contends that, because the trial court found that apportionment

would be impossible under the circumstances, it was required to

extinguish landowners’ access rights. We are not persuaded. We

discuss each of Ranch Owner’s contentions in turn.

¶ 117 First, the record does not support Ranch Owner’s contention

that the trial court disregarded evidence showing that landowners’

grazing of livestock overburdened the Ranch. Ranch Owner’s

March 2005 motion, which Ranch Owner points to on appeal as

support for this claim, presented evidence that four landowners had

each grazed between twenty-three and fifty-one livestock animal

units at one time. Ranch Owner also submitted an affidavit from its

ranch manager estimating the grazing capacity of the Ranch. In its

2005 motion and on appeal, Ranch Owner’s claim that it has

66 demonstrated actual overuse of the Ranch amounts to a claim that

landowners’ grazing practices exceed Ranch Owner’s estimate of the

Ranch’s capacity. Neither Ranch Owner nor the ranch manager’s

affidavit asserted that these grazing practices had caused actual

harm to the Ranch — only that such harm was inevitable if the trial

court did not apportion rights and set rules. Ranch Owner’s claims

of harm to the Ranch are belied by the fact that, even though

landowners have been required since 2006 to complete forms

describing their intended use of the Ranch in order to gain access

to the Ranch, Ranch Owner has not asserted any specific claims of

actual overuse.

¶ 118 Nor are we persuaded by Ranch Owner’s contention that the

sheer number of parcels and landowners granted access rights was

sufficient to conclude that the Ranch was subject to an

unreasonable increase in burden. Generally, an “increase in the

number of persons holding the benefit of the servitude alone does

not constitute an unreasonable increase in the burden,” even

though such an increase may subject the servient estate owner to a

“greater number of enforcement actions and higher transaction

67 costs in negotiating with the benefit holders.” Restatement § 5.7

cmt. c.

¶ 119 In short, because the record does not show that Ranch Owner

ever presented evidence of actual or imminent overuse, we cannot

agree with Ranch Owner’s contention that the trial court was

required to consider the remedy of apportionment in order to avoid

damage to the Ranch’s resources. That injury was unsubstantiated

in the eyes of the trial court. We perceive no abuse of discretion in

that conclusion.

¶ 120 Second, we are not persuaded that the supreme court’s

mandate required the trial court to apportion rights or establish the

rules Ranch Owner requested. Ranch Owner points to the supreme

court’s instruction for the trial court on remand to “identify all

landowners who have access rights to the Taylor Ranch and to enter

all necessary and appropriate orders to safeguard these rights.”

Lobato II, 70 P.3d at 1167-68 (emphasis added). For an

apportionment order to have been necessary to “safeguard”

landowners’ access rights, however, Ranch Owner would have

needed to show that landowners’ use had caused actual harm to

the Ranch or that risk of such harm was imminent. For the

68 reasons described above, we conclude that the trial court did not

abuse its discretion in determining that Ranch Owner failed to

make this threshold showing.

¶ 121 Third, we disagree with Ranch Owner that principles of

easement law required the trial court to apportion landowners’

access rights or set the rules and regulations Ranch Owner

requested. Ranch Owner argues that there is an unreasonable

increase in the burden on the Ranch because it is reasonable to

assume that, had the landowners’ use of the Ranch increased from

the original 170 parcels to 6000 parcels during the original

prescriptive period, such an increase would have prompted the

owner of the Ranch at that time to interrupt the use, thus limiting

the extent of landowners’ prescriptive right. Because this standard

applies only to prescriptive easements, we need not address this

argument.

¶ 122 The supreme court held that landowners had established “a

prescriptive easement, an easement by estoppel, and an easement

from prior use.” Lobato I, 71 P.3d at 946. With respect to the

prescriptive easement, the supreme court held that landowners

satisfied the requirement of continuous use for the prescriptive

69 period through their continuous access to the Ranch “from the

1800s to the date the land was acquired by the defendant, in 1960.”

Id. at 954. We offer no opinion as to whether it is reasonable to

assume that the owner or owners of the Ranch would have

interrupted landowners’ use had landowners’ property been

subdivided then to the extent that it is today. Instead, we conclude

that, even if we assume that an unreasonable increase in burden

exists with respect to landowners’ prescriptive easement, their

increased use remains within the scope of the other two easements

the supreme court recognized.

¶ 123 “[P]recise delineation of the means by which a particular

easement is acquired is critical to any determination of the extent to

which the owner of the dominant estate is entitled to burden the

servient estate.” Wright, 697 P.2d at 388. In Lobato I, the supreme

court held that landowners had an easement by estoppel in part

because Ranch Owner’s predecessors allowed access to the Ranch

for the purpose of inducing landowners to establish new

settlements on adjacent land, and such rights were necessary for

any settlement to succeed. See 71 P.3d at 955. Moreover, because

“[a] servitude should be interpreted to give effect to the intention of

70 the parties ascertained from . . . the circumstances surrounding

creation of the servitude” and “to carry out the purpose for which it

was created,” we are especially reluctant to conclude that

landowners’ use of the Ranch is either unreasonable or unforeseen

based on the fact that the original settlement has survived and

grown since the 1860s. Restatement § 4.1(1); see also id. § 4.10

cmt. b (“In resolving conflicts among the parties to servitudes, the

public policy favoring socially productive use of land generally leads

to striking a balance that maximizes the aggregate utility of the

servitude beneficiary and the servient estate.”). Nor has Ranch

Owner persuasively argued that the increase in use of the Ranch

establishes an unreasonable increase in burden under any test

applicable to an easement by estoppel or easement based on prior

use.

¶ 124 Applying easement law principles, the increased use of the

easement by present-day Costilla County landowners as compared

to the original settlers does not represent a change in the kind of

use, which would be disfavored, but instead a change in the degree

of use. Where only the degree of use is changed, this favors a

finding that the current degree of use is within the scope of the

71 easement. See Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo. App.

2003) (affirming defendants’ right to increased use of prescriptive

easement and distinguishing Wright, 697 P.2d 384, on the basis

that “[Wright] involved a change in kind, rather than in degree, of

use”); Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo. App.

1982) (holding that construction of power line on easement

acquired by prescription was within the scope of the easement

because it represented “a change in the degree of use, not the kind

of use”).

¶ 125 Fourth, Ranch Owner’s contention that the trial court was

required to extinguish landowners’ access rights because it found

apportionment to be “impossible” is unpersuasive. The comments

to the Restatement acknowledge that “[i]f there is no practical

means of apportionment . . . modification or termination of the

easement may be appropriate under § 7.10 (changed conditions).”

Restatement § 5.7 cmt. c (emphasis added). But the question of

whether apportionment is practicable cannot arise until after a

finding has been made that apportionment is required. Here,

because Ranch Owner has not shown that landowners’ use imposes

72 an unreasonable increase in the burden on the Ranch, the question

of whether apportionment is possible is not yet relevant.

¶ 126 For these reasons, we conclude that Ranch Owner did not

show that the increased use of the Ranch as a result of the access

rights granted on remand resulted in an unreasonable increase in

the burden. Accordingly, the trial court did not abuse its discretion

in denying Ranch Owner’s request for apportionment or

establishment of rules and regulations.

G. Rights to Access Original Vara Strips that Are Now Located Within the Ranch

¶ 127 The title company’s November 2006 report showed that certain

portions of the Ranch were once vara strip parcels benefited by

Beaubien’s grant. Ranch Owner later hired a surveyor to confirm

the title company’s finding. Ranch Owner contends that the trial

court erroneously refused to prohibit landowners from exercising

their access rights on these portions of the Ranch. Ranch Owner

argues that because it is undisputed that a landowner’s access

rights cannot be exercised over another vara strip parcel, any

portions of the Ranch that were original vara strip parcels must be

73 excluded from the servient estate. Landowners respond that Ranch

Owner waived this argument by failing to raise it earlier in the

litigation. Ranch Owner replies that it could not have raised the

argument earlier because prior to Lobato II it could not have known

that access rights would be tied to original vara strip parcels. We

perceive no error by the trial court.

2. Ranch Owner’s Requested Determination Was Outside the Scope of the Mandate

¶ 128 As discussed above, the supreme court’s mandate required the

trial court on remand to determine the scope of the dominant

estate. But the supreme court’s opinions in Lobato I and Lobato II

determined the scope of the servient estate, holding that the entire

Taylor Ranch was burdened. Thus, the trial court did not have

discretion to revisit the issue of what constituted the servient

estate. See Roybal, 672 P.2d at 1005. Accordingly, the trial court

did not err in declining to redefine the servient estate.

H. Adherence to the Mandate During the Opt-In Process

¶ 129 In their cross-appeal, landowners contend that the trial court

violated the Lobato II mandate by requiring certain individual

Costilla County landowners to opt into the proceedings from 2010

74 through 2016 as a prerequisite for having their rights adjudicated.

Landowners assert that they presented undisputed — and,

ultimately, stipulated — evidence showing that certain areas in the

southern half of Costilla County were settled in the time of Gilpin.

These were previously referred to as the Stipulated Settled Lands.

Because timely settlement of these lands was undisputed,

landowners argue that the Lobato II mandate required the trial

court to identify all current owners of any such benefited lands and

adjudicate their access rights, without requiring them to first come

forward to assert a claim. We agree that the trial court’s opt-in

identification process was inadequate to discharge the mandate, at

least with respect to the Stipulated Settled Lands.

¶ 130 As described in Part I.C, supra, from 2004 through 2010, the

trial court decreed access rights for the owners of lands identified in

Map A and Book E (the opt-out process). Once the trial court had

identified all owners of Map A and Book E lands and adjudicated

their rights, it turned to the remaining portions of Costilla County.

From 2010 through 2016, after providing all landowners in the

southern half of Costilla County with notice by mail, the trial court

75 ultimately decreed access rights for the approximately 350

landowners who came forward and asserted claims (the opt-in

process).

¶ 131 The procedural transition that occurred in 2010 coincided

with the retirement of the then-presiding trial judge, Judge Gaspar

Perricone. Before his retirement, however, Judge Perricone

recognized that Costilla County landowners located outside of Map

A and Book E would need to present different evidence to meet their

burden of proof because they could not rely on the presumption of

timely settlement derived from Map A and Book E. Judge Perricone

also approved the parties’ plan to begin the second phase by

mailing notices to all landowners in the southern half of Costilla

County advising each recipient of his or her right to come forward

and participate in the proceedings. Each notice required the

landowner to respond within 120 days in order to make a claim, but

stated that “[l]andowners will not lose their opportunity to establish

access rights if they choose not to participate in the identification

process.”

¶ 132 In March 2010, Judge Kenneth Plotz replaced Judge Perricone

as the presiding judge in this case. In April 2010, Judge Plotz

76 authorized the mailing of 23,000 advisory notices to landowners in

the southern half of Costilla County. Approximately 1200

landowners responded. Based on the responses received, the trial

court subdivided the southern half of Costilla County into four

regions and set evidentiary hearings for landowners from each

region.

¶ 133 Soon thereafter, landowners’ counsel gathered historical maps

and other documentary evidence showing that specific areas in the

southern half of Costilla County were settled by the time of Gilpin.

Based on landowners’ evidence, Ranch Owner stipulated that each

such area was timely settled.21

¶ 134 From 2012 through 2014, Ranch Owner stipulated to the

timely settlement of several towns, including Garcia, Los Fuertes,

Old San Acacio, and Chama Canyon. In January 2015, Ranch

Owner stipulated to a master map demarcating all known timely

settled land in Costilla County, which we referred to earlier as the

“Stipulated Settled Lands.”

21Ranch Owner did not present any rebuttal evidence to dispute the timely settlement of any areas identified by landowners.

77 ¶ 135 In 2013, once Ranch Owner stipulated that the town of Garcia

was timely settled,22 landowners from Garcia moved for the trial

court to identify and decree rights for the owners of all land inside

of Garcia’s stipulated boundaries — including landowners who had

not come forward to assert claims. They argued that, by virtue of

Ranch Owner’s stipulation to Garcia’s timely settlement,

“[l]andowners in Garcia are in the same position as the owners of

land shown on Map A and Book E.” They requested, therefore, that

the trial court complete the identification process for Garcia by

“identify[ing] the owners of the land within the stipulated area.”

They further argued that any process that required individual

landowners to come forward and show that their land was located

within Garcia’s stipulated boundaries would discourage many

Garcia landowners and impede finality. The Garcia landowners

requested that the trial court appoint Integrated Land Services23 as

a court-appointed expert witness, pursuant to CRE 706, “to identify

22 Ranch Owner also stipulated that a 19th century ditch map introduced by landowners’ counsel was the best available evidence of the area that was settled. 23 Integrated Land Services is a surveying company that partnered

with the San Luis Valley Geographic Information System (GIS) Authority to provide GIS services in San Luis Valley.

78 the specific lots and parcels of land within the stipulated boundary

of the Garcia Settlement Map.”

¶ 136 Ranch Owner opposed the requested identification process,

arguing that the trial court was only required to decree rights for

the nine Garcia landowners who had come forward after the 2010

advisory notices were mailed. Ranch Owner further argued that the

law of the case, as articulated by Judge Perricone, required a

process whereby individual landowners must come forward to

assert claims.

¶ 137 The trial court denied the Garcia landowners’ motion. It relied

on an earlier description by Judge Perricone of how the second

phase of the identification process should unfold, determining that

Judge Perricone’s statement constituted the law of the case. Judge

Perricone, at a February 2009 hearing, had advised the parties:

We’ve been operating up to now on a presumption that I [Judge Perricone] have determined existed as a result of the Supreme Court decisions in reference to Map A, Book E, and the Beaubien document. I think that presumption ends and the burden now rests with those people who want access.

¶ 138 Judge Plotz concluded that Judge Perricone intended to

require any future landowner claimants to come forward and assert

79 claims, and that Ranch Owner would not be required to bear the

cost of identifying benefited landowners who had not come forward.

Specifically, with respect to Judge Perricone’s February 2009

statement, Judge Plotz concluded:

Put in context, by stating that the presumption ends, [this statement] means that landowners, such as those in the Garcia Township, may come to the trial court and assert those claims, but that since these landowners do not reside within the confines of Map A, Book E, the [Ranch Owner] Defendants are no longer under an order of the trial court to pay for a process which identifies all landowners in an area such as the Garcia Township.

¶ 139 The trial court concluded that “the law of this case holds that

the Garcia Residents,” because their land is “not identified in Map

A, Book E,” must “bear the burden of coming forward and proving”

that their land was settled in the time of Gilpin.

2. The Opt-In Process Was Not Required By the Law of the Case

¶ 140 We conclude that the trial court erred in determining that it

was bound by the law of the case doctrine to implement an opt-in

process with respect to the Stipulated Settled Lands during the final

phase on remand. Pursuant to the law of the case doctrine, the

trial court was bound to adhere to the Lobato II mandate but had

80 discretion to depart from statements made by the prior trial judge,

Judge Perricone. In any event, Judge Perricone’s statements did

not preclude the trial court from adjudicating rights of all Garcia

landowners, as they requested.

¶ 141 The law of the case doctrine does not demand strict adherence

by a trial court to its own previous rulings. While the doctrine

“generally requires the court to follow its prior relevant rulings,” it is

“merely discretionary when applied to a court’s power to reconsider

its own prior rulings.” Giampapa v. Am. Family Mut. Ins. Co., 64

P.3d 230, 243 (Colo. 2003); see also Roybal, 672 P.2d at 1005 n.5

(“[T]he law of the case as established by trial court rulings is not

binding if it results in error or is no longer sound due to changed

conditions . . . .”). Judge Perricone’s statements were not elevated

to the level of a mandate by his retirement. Insofar as his

statements constituted the law of the case, their binding effect was

the same as if they had been Judge Plotz’s own statements.

¶ 142 Moreover, when a court reconsiders its own prior decision,

“the only purpose of the doctrine is efficiency of disposition.”

Roybal, 672 P.2d at 1005 n.5. Because adherence to Judge

Perricone’s statement ultimately prevented the trial court from

81 fulfilling its mandate to “identify all landowners who have access

rights to the Taylor Ranch,” Lobato II, 70 P.3d at 1167-68 (emphasis

added), the trial court could have and should have reconsidered

whether the latter phase of the identification process should be

structured as an exclusively opt-in process.

¶ 143 Even if Judge Perricone’s statement was entitled to

considerable deference under the law of the case doctrine, we

conclude that it did not preclude the trial court from implementing

an opt-out process to identify and decree access rights for the

owners of lands that Ranch Owner stipulated were timely settled —

including Garcia and any other unadjudicated lands within the

Stipulated Settled Lands. Importantly, the “presumption” Judge

Perricone described in February 2009 was the presumption of

timely settlement. By observing that “the presumption ends,”

Judge Perricone recognized that Map A and Book E lands had been

treated as presumptively settled, but landowners would need to

present different proof of timely settlement for any lands outside of

Map A and Book E. But Judge Perricone did not prescribe a new

process by which these non-Map A landowners’ access rights

should be adjudicated. Rather, Judge Perricone’s observation that

82 “the burden now rests with those people who want access” was an

acknowledgment that landowners in later phases of the remand

proceedings could not depend on the Map A and Book E

presumption to meet their burden of proof on the issue of timely

settlement, as landowners had done during the first phase. When

Judge Perricone made this observation, landowners had not yet

presented evidence showing that any areas of Costilla County

outside of Map A were timely settled.

¶ 144 But by the time the trial court denied the Garcia landowners’

motion in 2013, landowners had not only presented undisputed

evidence that the town of Garcia was settled by January 1869, but

Ranch Owner had also stipulated that Garcia was timely settled.

Because Ranch Owner stipulated to Garcia’s timely settlement, any

Garcia landowners were entitled to access rights upon showing that

their property was located inside the boundaries of the stipulated

map of Garcia. See Lobato II, 70 P.3d at 1159 (“[L]andowners of

Costilla County who are able to show that their property was settled

during the time of Gilpin’s ownership . . . will be granted access

rights to the Taylor Ranch . . . .”). Thus, because Ranch Owner’s

stipulation satisfied landowners’ burden to prove timely settlement,

83 it served the same evidentiary function as the Map A and Book E

presumption referenced by Judge Perricone in February 2009.

Indeed, Ranch Owner’s stipulation obviated the need to apply a

presumption of timely settlement at all. The stipulation rendered

the presumption irrelevant.

¶ 145 Judge Perricone’s statement that “the presumption ends,”

therefore, does not justify the trial court’s implementation of an

opt-in process for all non-Map A landowners. The trial court, in

relying on this statement, appeared to conflate the presumption of

timely settlement with the opt-out process itself. It reasoned that,

“by stating that the presumption ends, [Judge Perricone] means

that landowners, such as those in the Garcia Township, may come

to the trial court and assert those claims.” But Judge Perricone

was merely observing that a presumption of timely settlement

would not attach to non-Map A lands — unless and until timely

settlement of any such lands was established through different

evidence.

¶ 146 In summary, we conclude that the trial court mistakenly

concluded that it was bound by the law of the case doctrine to

implement an opt-in process with respect to the yet-to-be-

84 adjudicated Stipulated Settled Lands during the last phase on

remand. In our view, Judge Perricone’s statements did not

preclude an opt-out process for all non-Map A lands, even

assuming such statements were entitled to deference. Having

concluded that Judge Plotz was not required to implement an opt-in

process from 2010 through 2016, we now turn to the question of

whether that process was consistent with the mandate.

3. The Mandate Requires Identification of All Landowners Within the Stipulated Settled Lands

¶ 147 As previously discussed, the supreme court’s mandate

required the trial court to identify “all landowners who have access

rights to the Taylor Ranch.” Lobato II, 70 P.3d at 1167-68

(emphasis added). Although the opt-in process implemented by the

trial court from 2010 through 2016 resulted in access decrees for

roughly 350 additional Costilla County landowners, the process

was, almost by design, not comprehensive.

¶ 148 Ranch Owner’s stipulations changed the complexion of the

identification process on remand by creating a map of land that

was, like Map A, accepted as being timely settled. By early 2015,

Ranch Owner had stipulated to a master map of all Costilla County

85 land that was settled as of 1869 (the Stipulated Settled Lands).

Thus, as the Garcia landowners argued below, any land within the

boundaries of these stipulations became identically situated to the

Map A and Book E land. In 2004, at the outset of the remand, the

trial court decided that the most comprehensive and efficient result

would be achieved by starting from the best evidence of timely

settlement (Map A and Book E) and, with the help of an expert,

identifying the current owners of the land therein. Once Ranch

Owner stipulated that certain non-Map A lands were also timely

settled, the trial court’s calculus should have been the same as in

2004 — namely, it should have pursued an administrative process

to identify the current owners of the Stipulated Settled Lands

outside of Map A. As discussed above, Judge Perricone’s February

2009 statements neither required nor supported a departure from

the opt-out process. Instead, because the trial court could have

identified all current owners of the Stipulated Settled Lands, the

mandate required that that be done.

¶ 149 We cannot find any justification in the record for requiring

landowners to come forward and assert individual claims in order to

become eligible to access the Ranch, and the deficiencies of an opt-

86 in process under these circumstances are plain to see. As the trial

court noted in its final order, the opt-in process left the owners of

certain benefited lands unidentified. For example, although Ranch

Owner stipulated the Garcia Township was timely settled —

entitling Garcia landowners to access rights unless barred by res

judicata — only nine landowners responded to the 2010 advisory

notices and came forward to assert individual claims. In 2014,

landowners’ counsel persuaded an additional six Garcia landowners

to submit affidavits describing their ownership of land within the

stipulated boundary. Counsel noted, however, that other Garcia

landowners who had expressed interest in asserting a claim had

never followed through by providing executed affidavits. Ranch

Owner stipulated that the fifteen Garcia landowners who submitted

affidavits were entitled to access the Ranch, and the trial court

decreed access rights for them on that basis. Ranch Owner later

stipulated that landowners from other areas within the Stipulated

Settled Lands were also entitled to access rights based on similar

affidavits.

¶ 150 We conclude that, while Ranch Owner’s stipulations to access

rights for some landowners within the Stipulated Settled Lands

87 partially remedied the incompleteness of the trial court’s opt-in

process, neither landowners nor their counsel should bear the

burden to identify all Costilla County landowners with access rights

to the Ranch. Instead, the supreme court’s Lobato II mandate

specifically directed the trial court to perform that identification,

with costs to be paid by the Ranch Owner. 70 P.3d at 1167

(“Because the plaintiff landowners have prevailed on their claims,

Taylor now must pay the costs associated with identifying and

notifying all persons who have access rights to the Taylor Ranch.”).

¶ 151 For these reasons, we conclude that the opt-in process by

which the trial court adjudicated landowners’ access rights from

2010 through 2016 was insufficient to discharge its mandate.

Because the trial court could have comprehensively identified all

benefited Costilla County landowners but did not do so, we

conclude that further proceedings are required.

4. Remand Instructions

¶ 152 We remand the case for the trial court to identify and decree

rights for all persons who own property within the boundaries of the

88 Stipulated Settled Lands.24 Landowners are not required to come

forward in order to have their rights adjudicated.

¶ 153 We anticipate that Ranch Owner’s concerns regarding finality

will arise again once access rights for the owners of the Stipulated

Settled Lands have been adjudicated. Once the current owners of

the Stipulated Settled Lands have been identified and their access

rights adjudicated, Ranch Owner may elect at that time to

personally serve all remaining Costilla County landowners whose

rights have not been adjudicated. Such notice should advise

landowners that they must make a claim for access within a

reasonable time as determined by the trial court or be forever

barred from making a claim. Ranch Owner must bear the cost of

personal service if that election is made. Lobato II, 70 P.3d at 1167

(“In light of our holding that Taylor failed to exercise reasonable

diligence in personally naming and serving all reasonably

ascertainable individuals with an identifiable interest in the Taylor

Ranch, the cost of remedying this failure on remand must be borne

by Taylor.”). Once personal service on all remaining Costilla County

24These landowners will be subject to the same res judicata defense as the Map A and Book E landowners.

89 landowners has been attempted, Ranch Owner may then serve any

unknown, unidentified persons through publication in order to

bring finality to the action. If, on the other hand, Ranch Owner

elects not to attempt personal service on nonadjudicated

landowners, then such landowners with unadjudicated rights

remain free to come forward at some later date.

III. Conclusion

¶ 154 For the reasons set forth in this opinion, we affirm the trial

court’s orders decreeing access rights for Costilla County

landowners. We reverse the trial court’s October 2016 order to the

extent it requires any remaining Costilla County landowners

entitled to access the Ranch to come forward to assert individual

claims, and we remand for the trial court to identify and adjudicate

access rights for any yet-unidentified persons who own property

within the Stipulated Settled Lands, consistent with this opinion.

JUDGE WEBB and JUDGE HARRIS concur.