New Mexico Solar Developer Fails to Establish Prescriptive Easement

Co-author David Leonard

McFarland Land & Cattle, Inc. v. Caprock Solar I, LLC considered what is the required under New Mexico law to establish a public prescriptive easement, and brings to life the full meaning of “100 feet of bad road”.

The facts

A state road runs along section lines that divides property owned by McFarland from his neighbor. After a bridge washed out in 1954 the road was rerouted about 100 feet onto McFarland’s land, thereby presenting a problem for Caprock, the solar developer.

McFarland sued Caprock to enjoin them from using the 100 feet of road to access a solar project located on adjacent property. McFarland argued the road was private, and had demanded compensation from Caprock of far more money that Caprock was willing to pay.

Caprock and Quay County (who intervened), claimed the road was public under the doctrines of easement by prescription, easement by implied dedication, and easement by estoppel.  The road (including the 100 foot jog) had never been formally established as a public road using ordinary statutory procedures.

At trial several witnesses testified that the road was only used by neighboring ranchers or their invitees.  There was also testimony, relied upon by the court of appeals, that members of the general public might have used the road five to ten times over a thirty-year period.

The trial court entered judgment in favor of defendants and Quay County, declaring that the road was public.

Requirements for a prescriptive easement

A party wanting to establish an easement by prescription in New Mexico must prove:

• adverse possession of the land,
• that is open and notorious,
• continued without interruption,
• for the 10-year prescriptive period.

The result

The court of appeals found that the limited use by the general public did not satisfy Caprock and the County’s burden of proof:  To present clear and convincing evidence of public use (a higher standard than the preponderance of the evidence typically required in a civil case).  Use by neighbors and their invitees did not qualify. The court reversed and remanded the case for trial on the other theories that might be used to establish Caprock and Quay County’s right to use the road:  easement by estoppel and easement by implied dedication.

RIP Don Everly

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