July 27, 2018

Definitions:

• Easement: generally a liberty, privilege, right, or advantage which one person has in the land of another. Martinez v. Martinez, 93 N.M. 673, 604 P.2d 366, 1979; Kennedy v. Bond, 80 N.M. 734, 460 P.2d 809, 1969. An easement is not an estate in the land, but it is considered an interest in land, and so may constitute an encumbrance on the title to land. 25 Am Jur 2d, Easements and Licenses, §2. An easement does not carry any right to take anything from the soil of the land on which the easement is imposed.

• License: a revocable, personal, and unassignable privilege to do some act on land. A license does not carry any interest in land and can be created by parol. 25 Am Jur 2d,

Easements and Licenses, § 123.

• Profit à Prendre: similar to an easement, but also carries a right to take something from the land which is burdened. Examples include the right to remove timber, gravel, and minerals, and the right to take forage by grazing animals.

• Servient Estate: The creation of an easement will establish some burden or servitude on the land which is subjected to the easement. The burdened land is the “servient estate.” It follows that a party cannot have an easement in his own land. Michelet v. Cole, 20 N.M. 357, 1915.

• Dominant Estate and Easement Appurtenant: The rights and privileges granted by an easement may be for the benefit of a different tract of land. Example: an easement for ingress and egress across a front, street-abutting lot for the benefit of a rear lot that does not abut the street. This is an “Easement Appurtenant” to the “dominant estate.”

• Easement in Gross: An easement establishing rights and privileges for the benefit of persons without regard to other land. The persons benefitted may be private parties or may be the public. A private easement is not subject to public use. Trigg v. Allemand, 95 N.M. 128, 619 P.2d 573, 1980.

• Negative Easement: Not really an easement, but a covenant. Frequently encountered as a “preservation easement” or a “view easement”.

Drafting Express Easements

Easements are expressly created in one of three ways, express grant, express reservation or designation on a plat. We will examine the pitfalls of each material element in each method of creation.

Private Easements

1. Designate the beneficiary.

If creating an easement by deed, be clear about who has the right to use it. Is it the owner of property also conveyed by the deed? Is it the owner of a designated property he already owns (not conveyed in the deed)? The easement should be appurtenant to a described property. Say "an easement appurtenant to ... ", and use a real property description.

How about utility companies? Utility easements are usually "easements in gross" for the use of the utility company in carrying out its business of distributing the commodity it provides. If you intend to grant a utility easement to your neighbor, grant it to him, not the utility company.

2. Specify the use for which it is granted.

The easement must have a purpose, or use, for which it is granted. The usual language is "for ingress, egress and utilities". Is it for some other purpose: drainage, sublateral support, so that the neighbor can stucco the side of a wall facing your property or service a well located on your property?

3. Locate the easement.

The more exact the description, the better. Granting an easement for a road "in place" may succeed in granting an easement, but a road may be relocated through use when it gets wet and muddy. The parties are always left to argue where the road was when the easement was granted. When granting a road easement, at least the centerline and width should be located by a surveyor.

4. Restrictions and limitations.

If there is to be any restriction on the grantee's use of the easement, set it forth as exactly as possible. Intend a trail easement to be used for pedestrian use only? Want to grant an easement for the neighbor's house, say "to serve one single-family dwelling"? If the grantee is to maintain the easement, set forth a standard. If the cost of maintenance is to be shared, state the formula. If the easement is to be temporary, set forth the time of termination or the circumstances which will cause termination. If a utility easement is to be created, is it below ground or above? Absolutely anything which diminishes the right of the grantee should be detailed.

A recent New Mexico Court of Appeals case provides a cautionary tale in drafting express easements. Dethlefsen v. Weddle, et al., 2012-NMCA-077, 284 P.3d 452 (2012). In this case, the court found the following easement language to be ambiguous and remanded to allow admission of extrinsic evidence and consideration of the surrounding circumstances to determine the proper scope of the easement: “a fifty (50) foot wide road easement to and across said property as shown on Loftus & Co. Plat 197-97….” The referenced plat depicted the easement’s location and contained relevant labels.

Easements by Reservation

In drafting a deed of conveyance, an easement can be created to benefit lands of the grantor. While no specific language is required, the drafter should follow the warranty clause with the phrase "reserving to the grantor an easement..." While an easement might be created by stating "subject to an easement..." this could also mean that an easement encumbers the property to benefit lands owned by a stranger to the conveyance. All rules applicable to granted easements also apply.

Plats

For reasons unknown, surveyors are fond of showing a road or path on a plat and labeling it an "easement." The status of the road or path as an easement is a legal conclusion and should not be made by a surveyor. In addition, surveyors are fond of placing a dedication block on the plat and having the land owner execute it. It will say something like "all easements are granted as shown." The land owner frequently does not understand the import of signing this block, and grants easements he did not intend to grant. In addition, plats usually do not do more than locate the easement. They do not specify the beneficiary of the easement or its purpose. Pay close attention to the notations on a plat prepared for your client. If an easement is shown, there should be a note specifying the recorded document which created it. If it is to be created by the plat itself, verify that the owner knows he is creating an easement and determine the material facts. A better practice is to create any easement by a separate document which contains all the material information.

Public Roads

Right of Way: a right belonging to a party to pass over land of another .. Black's Law Dictionary, Fifth Edition, page 1191.

Public Highways: All roads and highways, except private roads, established in pursuance of any law of New Mexico, and roads dedicated to public use, that have not been vacated or abandoned, and such other roads as are recognized and maintained by the corporate authorities of any county in New Mexico, are hereby declared to be public highways. Section 67-2-1 NMSA 1978.

Highway, as ordinarily used, means a way over land open to use of the general public, without unreasonable distinction or discrimination, established in a manner provided by state law. Lovelace v. Hightower, 50 N.M. 50, 168 P.2d 864 (1946).

State Highway: state highway shall include any highway declared to be a state highway by an act of the legislature or designated as such by the state highway engineer; ... §67-2-4(A) NMSA 1978.

Street: any thoroughfare that can accommodate pedestrian or vehicular traffic, is open to the public and is under the control of the municipality. §3-1-2(M) NMSA 1978. Centralized control of state highways is vested in the State Transportation Commission, formerly known as the state highway commission. Gallegos v. Conroy, 38 N.M. 154, 29 P.2d 334 (1934). The State Transportation Commission is created by the New Mexico Constitution, Article V, Section 14. The statutory act describing the "state highway commission" and creating the "state highway and transportation department" is set forth at §§67-3-1 through 67-3-77 NMSA 1978.

The State Transportation Commission is empowered and charged with the duty of determining all matters of policy relating to state highways. State ex reI. State Highway Comm'n v. City of Albuquerque, 67 N.M. 383, 355 P.2d 925 (1960). The State Transportation Commission has the general duties and powers set forth in §67-3-12 NMSA 1978. Control of purely local county roads rests with the board of county commissions. Gallegos, supra. Control of streets, being roads within the municipality not considered state highways, is with the appropriate city government structure. Primus v. City of Hot Springs, 57 N.M.190, 256 P.2d 1065 (1960). Depending on the public entity involved, responsibility for the control, supervision and management of public roads can rest with the State Transportation Commission for highways constructed or maintained with state funds, even those highways within municipalities (§§67 -3- 16 and 67-4-13 NMSA 1978); by the municipalities for streets not considered state highways (§3-49-1 NMSA 1978); by the counties for public roads not constructed or maintained with state funds nor within a municipality (§67 -2-2 NMSA 1978); and even the United States Government due to conditions attached to the use of federal highway funds.

Deeds and Petitions

Public authorities having the power of eminent domain through condemnation actions have the authority to take direct action to establish public highways, roads and streets for various public purposes. The power of eminent domain and payment of just compensation is provided in the New Mexico Constitution, Article 11, Section 20. The procedure for condemnation actions is set forth at §§42-2-1 through 42-2-24 NMSA 1978. When no actual taking by eminent domain occurs but a public body infringes or damages by use or planning a landowner's property rights, then an action for inverse condemnation by the landowner may be presented to secure the recovery of just compensation. Garver v. Public Servo Co., 77 N.M. 262,421 P.2d 788 (1966).  Public authorities may also acquire property for public highways, roads and streets by more conventional direct action, such as purchase, exchange, donation and use of public land already owned by the public entity.

Direct action may involve the express grant by deed of property to public authorities for use as public highways, roads and streets. In some cases, such express grant may be interpreted by the courts as providing for an easement of right to use and pass over the property for street purposes and not to convey a fee simple interest based upon the intention, rather than the strict language employed. Blain v. Staab,10 N.M. 743, 65 P. 177 (1901). Also, see, Nickson v. Garry, 51 N.M. 100, 179 P.2d 524 (1947).

A public body ordinarily acquires an interest in property for use as streets or highways and is authorized to use such lands for all lawful purposes consistent with normal uses of public streets and highways. Hall v. Lea County Elec. Co-op., 78 N.M. 792,438 P.2d 632 (1968). Landowners may petition the board of county commissioners of any county to alter, widen or change any established road or layout any new road. See §67-5-5 et seq. NMSA 1978.

Express Dedication

Express dedication is the procedure by which a landowner intentionally sets aside a certain portion of the property to be used for a public road, street or highway.

A public highway may be established pursuant to law by dedication and acceptance. Board of Com’rs of San Miguel County v. Friendly Haven Ranch Co., 32 N.M. 342, 257 P. 998 (1927); Lovelace v. Hightower, 50 N.M. 50, 168 P.2d 864 (1946).

Express dedication is a two step process: offer of dedication by the landowner and acceptance by the public body. An offer of dedication is only effective when the landowner making the dedication holds an unlimited estate or an estate in fee simple, or through an expressly authorized agent. There is no power of dedication where there is no power in the landowner to alienate the property. Metzger v. Ellis, 65 N.M. 347, 337 P.2d 609 (1959); City of Albuquerque v. Chapinan, 77 N.M. 86, 419 P.2d 460 (1966).

The statutory dedication of land for a public street by a landowner does not bind the county or municipality until the dedication has been accepted by the board of county commissioners or municipal governing body, respectively. State ex reI. Shelton v. Board of Com’rs of BernalilloCounty, 49 N.M. 218, 161 P.2d 212 (1945); City of Carlsbad v. Neal, 56 N.M. 465, 245 P.2d 384 (1952); Watson v. City of Albuquerque, 76 N.M. 566, 417 P.2d 54 (1966); Williams v. Town of Silver City, 84 N.M. 279, 502 P.2d 304 (Ct. App.), cert. denied, 84 N.M. 271, 502 P.2d 296 (1972).

Acceptance by the public entity of an offer of dedication is the taking of some act which unequivocally shows an intent by the public body to assume jurisdiction over the property dedicated by the landowner. Watson, supra. Acceptance of offered dedication of land for a highway may be established by proof of affirmative acts of taking possession by public authorities or by general use by the public, if the use is sufficient to constitute acceptance. Lovelace, supra; Williams, supra. The burden of proving acceptance is on landowner and must be shown by clear, satisfactory and unequivocal evidence. Watson, supra. The issue of sufficient acts to constitute acceptance is a question of fact. City of Carlsbad, supra; Watson, supra. The issue of what constitutes acceptance for dedication under any given set of facts is a question of law. Id. In one New Mexico case, neither the maintenance of the street on a regular basis, the use of the right-of-way by the city to collect garbage, the installation of street signs, the city's granting of permission to an utility company to install poles in the right-of-way nor failure of the city to assess the right-of-way for taxes were sufficient evidence to establish an acceptance by the city of the landowner's dedication of property for street purposes. Watson, supra.

The act of express dedication for streets by the landowner within a subdivision is usually reflected in a subdivision plat, §3-20-11 NMSA 1978. However, a street designated for public use on a plat does not eliminate the necessity of acceptance of the streets by the municipality or county to complete the dedication of the streets, §47-6-5 NMSA 1978; City of Carlsbad, supra.

A landowner cannot by dedicating property in a plat impose the upon the local government the burden of opening, improving, caring for or otherwise accepting streets shown on the plat, until the offer of dedication has been accepted. Id., Watson, supra. On the other hand, the landowner is irrevocably bound by the offer of dedication of property shown on the plat. State ex rel. Shelton, supra; City of Carlsbad, supra.

If the dedication is accepted by the public body, the dedicated rights of way are owned by the appropriate public entity in fee simple. See, §§3-20-11 and 47-6-5 NMSA 1978 relating to municipal corporations and counties, respectively. Under statute providing that acknowledgment and recording of plat shall operate as dedication to public use and that all streets and alleys designated for public use on plat shall be deemed public property, the dedication is deemed to be an absolute gift by the landowner and the public body is deemed to have absolute fee simple title in the streets, unless the dedication contains conditional language or the grantor reserves a present or future interest. Wheeler v. Monroe, 86 N.M. 296, 523 P.2d 540 (1974), appeal dismissed, 419 U.S. 1014, 95 S.Ct. 487, 42 L.Ed.2d 288, overruling Phillips Mercantile Co. v. City of Albuquerque, 60 N.M. 1,287 P.2d 77 (1955).

Condemnation

The subject of eminent domain and the determination of "just compensation" is beyond the scope of this program. However, the State of New Mexico and all counties and municipalities have the power of eminent domain, enabling them to take land for the creation of public roads. There are two procedures set forth in the statutes. The Eminent Domain Code is to be found in Chapter 42A NMSA 1978, and the Special Alternative Condemnation Procedure is located in Chapter 42, Article 2 NMSA 1978.