This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 PRISCILLA JARAMILLO and 2 VERNON JARAMILLO, 3 Plaintiffs-Appellants, 4

v. NO. 32,298 5 FERMIN ROMERO SR. and 6 FERMIN L. ROMERO JR., 7 Defendants-Appellees, 8 and 9 THE ESTATE OF RICHARD SUAZO, 10 and BETSY SUAZO ALLANDER, 11 Defendants. 12 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 13 Sheri A. Raphaelson, District Judge 14 VanAmberg, Rogers, Yepa, 15 Abeita & Gomez, LLP 16 Ronald J. VanAmberg 17 Santa Fe, NM 18 for Appellants 19 Jones & Smith Law Firm LLC 202 J. Brian Smith 1 Albuquerque, NM 2

Chandler Law of Los Alamos 3 George Chandler 4 Los Alamos, NM 5 for Appellees 6 MEMORANDUM OPINION 7 ZAMORA, Judge. 8 {1} Plaintiffs Priscilla and Vernon Jaramillo(Jaramillos) appeal the entry of an 9 adverse judgment following a bench trial at which the district court was asked to quiet 10 title to an easement across the land of Defe ndants Fermin Romero Sr. and Fermin L. 11 Romero Jr. (Romeros) for the benefit of the Jaramillos’ adjacent parcel. The district 12 court found that the Jaramillos had not met their burden of establishing the existence 13 of any type of easement across the Romero s’ property and also that any claimed 14 easement for the purpose of providing access tothe Jaramillos’ parcel was (or would 15 have been) extinguished when the Jaramillos obtained an adjacent parcel that abutted 16 a public roadway. Based upon the facts and argument presented to the district court, 17 we find no error and, accordingly, affirm. 18 STANDARD OF REVIEW 193 {2} In reviewing a judgment entered after a bench trial, we re view the district 1 court’s application of law to facts de novo while reviewing the district court’s findings 2 of fact for substantial evidence. Skeen v. Boyles , 2009-NMCA-080, ¶ 17, 146 N.M. 3 627, 213 P.3d 531. In reviewing facts found by the district court, we consider whether 4 substantial evidence supports the result reached, not whether there is substantial 5 evidence to support the opposite result. Id. “Substantial evidence is relevant evidence 6 that a reasonable mind would find adequate to support a conclusion.” Sitterly v. 7 Matthews , 2000-NMCA-037, ¶ 22, 129 N.M. 134, 2 P.3d 871. Further, where “a 8 finding is made against the party with th e burden of proof, we can affirm such a 9 finding if it was rational for the fact finder to disbelieve the evidence offered in 10 support of that finding.” Sosa v. Empire Roofing Co. , 1990-NMCA-097, ¶ 8, 110 11 N.M. 614, 798 P.2d 215. 12 THEORIES OF EASEMENT CREATION 13 {3} At trial, the Jaramillos bore the burden of proof with regard to the establishment 14 of an easement appurtenant to their property. The Jaramillos asserted four separate 15 theories for the existence of such an eas ement, each of which was rejected by the 16 district court. We will address each of those easement theories in sequence before 17 turning to the district court’s basis for conc luding that, even if aneasement had arisen, 18 such easement would have been extingui shed by the Jaramillos’ subsequent 194 acquisition of title to “contiguous property from County Road 177 to the Ojo Caliente 1 River.” 2

I. Express Easement 3 {4} The Jaramillos first argue that the easemen t they seek to enforce was expressly 4 reserved by a common grantor. Prior to 1949, all of the property at issue in this case 5 was part of a common parcel owned by an ancestor of the Jaramillos (Federico) who 6 divided the property and conve yed separate parcels to eachof his children. Thus, title 7 to all the property at issue in this case canbe traced to a comm on grantor. Several of 8 the parcels at issue were conveyed over the years by deed s that included the Spanish 9 phrase “con sus derechos de agua y entradas y salidas libres.” The Jaramillos translate 10 this phrase to mean “with your rights to the water and free access.” The Romeros 11 translate the phrase to mean “with your rights to the water and free entrance and 12 exits.” For purposes of analysis, we assume that the Jaramillo’s translation is correct. 13 The parties dispute whether this deed language is sufficiently specific to create an 14 express easement. Generally, although no “partic ular words” must be used to create 15 an express easement, the language used must be “certain and definite in its term[s].” 16 Martinez v. Martinez , 1979-NMSC-104, ¶ 10, 93 N.M. 673, 604 P.2d 366; but see 17 Vill. of Wagon Mound v. Mora Trust , 2003-NMCA-035, ¶ 47, 133 N.M. 373, 62 P.3d 185 1255 (recognizing a “floating” easement where the burdened parcel was identified, 1 although the actual location thereof was not specifically delineated). Although the 2 Jaramillos’ deeds contained the “free access” language, none of those deeds ever 3 described the location of any easements nor did they identify any land that would be 4 burdened by such easements. 5 {5} This Court need not address the questi on of whether the words “free access” are 6 sufficiently certain and definite to createan easement, however, because there is no 7 dispute that one of the parcels that the Jaramillos propose to burden with an easement 8 was conveyed without reference to any eas ement and without the inclusion of any 9 reference to “free access.” And, importantly , that conveyance occurred in 1949, prior 10 to Federico’s conveyance of any of the parcels that would be benefitted by the 11 Jaramillos’ proposed easement. As a result, at the time that Federico subsequently 12 conveyed the property by way of deeds th at included the “free access” language, he 13 no longer owned one of the parcels that th e Jaramillos now claim is burdened by their 14 easement. 15 {6} As the district court noted, Federico could not have intended to create an 16 easement on land he did not own, since “he would not have [had] the ability to grant 17 an easement through someone else’s property.” It is well-settled that a “ ‘grantor 18 cannot place restrictions on land he does not own.’ ” Pollock v. Ramirez , 1994- 196 NMCA-011, ¶ 14, 117 N.M. 187, 870 P.2d 149 (quoting Trahms v. Starrett , 110 Cal. 1 Rptr. 239, 242 (Ct. App. 1973)); see also Martinez , 1979-NMSC-104, ¶ 9 (noting that 2 rights of ingress and egress referenced in a deed could only refer to land involved in 3 conveyance, and “not to any third party's land abutting the devised land”). 4 {7} Because the Jaramillos’ proposed easemen t crossed land that Federico did not 5 own at the time he conveyed the property that would be benefitted by that easement, 6 it is not possible that the easement asserted by the Jaramillos was created by express 7 reservation of the parties’ common grantor. The district court’s conclusion that no 8 such easement existed is affirmed on that basis. 9 II. Easement by Estoppel 10 {8} The Jaramillos next argue that the easement at issue arose by way of estoppel. 11 New Mexico courts have ye t to apply the doctrine of easement by estoppel, although 12 the possible viability of that doc trine has been recognized in dicta

. See Luevano v. 13 Maestas , 1994-NMCA-051, ¶ 14, 117 N.M. 580, 874 P.2d 788 (“On some facts, 14 long-standing use of a road coupled with inaction by the landowner may give rise to 15 an easement by estoppel.”); Luchetti v. Bandler , 1989-NMCA-048, ¶ 14, 108 N.M. 16 682, 777 P.2d 1326 (assuming without deciding that easements may arise by estoppel 17 in New Mexico). As a result, the doctrine has not been fully defined by the courts of 18 this state, and the Jaramillos provide no further delineation of the doctrine in their 197 briefing before this Court. For present purposes, we will assume that the Jaramillos 1 intend the doctrine to be applied as define d in the Restatement (Third) of Property 2 (Servitudes): 3 If injustice can be avoided only by establishment of a servitude, the 4 owner or occupier of land is es topped to deny the existence of a 5 servitude burdening the land when: 6 (1) the owner or occupier permitted another to use that land 7 under circumstances in which it was reasonable to foresee that the 8 user would substantially change position believing that the 9 permission would not be revoked, and the user did substantially 10 change position in reasonable reliance on that belief; or 11 (2) the owner or occupier represented that the land was 12 burdened by a servitude under ci rcumstances in which it was 13 reasonable to foresee that the pe rson to whom the representation 14 was made would substantially ch ange position on the basis of that 15 representation, and the person di d substantially change position in 16 reasonable reliance on that representation. 17 Restatement (Third) of Prop.: Servitudes § 2.10 (2000); see also Young v. Seven Bar 18 Flying Serv., Inc. , 1984-NMSC-069, ¶ 9, 101 N.M. 545, 685 P.2d 953 (describing 19 elements of estoppel). 20 {9} At trial, the Jaramillos asserted thatan easement arose by way of estoppel 21 sometime after 1992, when the Romeros acquired their first parcel at issue in this case. 22 On appeal, the Jaramillos argue for the fi rst time that an easement by estoppel arose 23 sometime prior to 1992. This Court, of c ourse, reviews “the case litigated below, not 248 the case that is fleshed out for the first time on appeal.” In re T.B. , 1996-NMCA-035, 1 ¶ 13, 121 N.M. 465, 913 P.2d 272. 2 {10} At trial, the district court entered a specific finding that the Romeros erected 3 a gate in 1992 or 1993 that prevented access to their property by others. This finding 4 negates the first and second elements of easement by estoppel, which require, first, 5 that the defendant “permitted another to use [the] land” and, second, that such 6 permission was given “under circumstances inwhich it was reasonable to foresee that 7 the user would substantially change pos ition believing that the permission would not 8 be revoked.” Restatement (Third) of Prop. : Servitudes § 2.10(1). Thus, if the 9 Romeros did not permit the Jaramillos to use their property, it is not possible for that 10 property to have been burdened by an easement by estoppel. 11 {11} There was substantial evidence to support the district court’s finding that the 12 Romeros did not permit the Jaramillos to cross their land. The Defendants offered 13 testimony at trial that as they acquired the property at issue, they built various fences 14 around their land, repaired two bridges that crossed drainage ditches, and erected a 15 new metal gate across an access road at th e point where it crosses a drainage ditch. 16 Importantly, they testified that they kept that gate locked, thereby preventing the 17 Jaramillos from accessing their property. Fermin Romero Jr. specifically testified that 18 the gate was erected and locked begi nning sometime in 1993. Fermin Romero Sr. 199 testified that the gate was locked “in 1992-93, around there sometime.” Asked 1 whether he had ever seen the Jaramillos drive across his property, Fermin Romero Sr. 2 testified, “No, it was locked.” 3 {12} Although the Jaramillos argue that “other evidence points in the opposite 4 direction,” the question for this Court is “not whether substantial evidence exists to 5 support the opposite result, but rather[,] wh ether such evidence supports the result 6 reached.” Skeen , 2009-NMCA-080, ¶ 17 (internal quotation marks and citation 7 omitted). The Romeros’ testimony regarding th e gate was both relevant to the issue 8 of easement by estoppel and adequate to s upport the district court’s conclusion that 9 no such easement arose. See id. The district court’s findi ngs regarding the gate were 10 supported by substantial evidence, and its conclusion regarding easement by estoppel 11 is affirmed. 12 III. Prescriptive Easement 13 {13} The Jaramillos next claim that they acquired an easement across the Romeros’ 14 land by way of prescription. In order to cl arify the law of prescriptive easements, our 15 Supreme Court has adopted the approach of the Restatement (Third) of Property, 16 which explains that “an easement by prescrip tion is created by an adverse use of land, 17 that is open or notorious, and continue d without effective interruption for the 18 prescriptive period (of ten years).” Algermissen v. Sutin , 2003-NMSC-001, ¶ 10, 133 1910 N.M. 50, 61 P.3d 176 (citing Restatement (Third) of Prop.: Serv itudes §§ 2.16, 2.17 1 (2000)). In order to establish an easement by prescription, each of the elements thereof 2 must be proved by clear and convincing evidence. Algermissen , 2003-NMSC-001, ¶ 3 9. 4 {14} At trial, the Jaramillos asserted both th at a prescriptive eas ement arose prior to 5 1992, when the Romeros first acquired thei r property and, alternatively, that a 6 prescriptive easement arose sometime af ter 1992, while the Romeros owned the 7 property at issue. With regard to the period following 1992, the Jaramillos’ claim fails 8 by virtue of the district court’s finding, discussed immediately above, that the 9 Romeros erected a gate that prevented th e Jaramillos from crossing their land. And it 10 appears that the Jaramillos have abandone d that alternative argument on appeal. 11 {15} With regard to the period prior to 1992, the central issue is whether the use of 12 an access road across what is now the property of the Romeros by the Jaramillos (and 13 by their predecessors in interest) was “an adverse use,” as required by the Restatement 14 approach. The district court answered th at question in the negative, specifically 15 finding that there was “never any hostile us e” of the property. Because the Jaramillos 16 bore the burden of proving adverse use of the property, the district court’s finding may 17 be affirmed “if it was rati onal for the fact finder to disbelieve” the Jaramillos’ 18 evidence on point. Sosa , 1990-NMCA-097, ¶ 8. 1911 {16} However, because it is often difficult toprove adversity or lack thereof, “a 1 series of presumptions are used” to accomplish that task. Algermissen , 2003-NMSC2 001, ¶ 11. The Jaramillos assert that they are entitled to a presumption that “the use 3 is presumed to be adverse in the ab sence of proof of express permission.” Id. Various 4 counter-presumptions are also available. For instance, where the claimed easement 5 crosses “large bodies of privately owned land [that] are open and [unenclosed],” the 6 use is presumed to be permissive. Hester v. Sawyers , 1937-NMSC-056, ¶ 22, 41 N.M. 7 497, 71 P.2d 646. Similarly, where “the initial users were closely re lated, or enjoyed 8 close neighborly relations, or [where] a custom existed in the neighborhood for 9 neighborly accommodation by permitting use of neighboring land for access to fields 10 and public roads,” the use is presumed to be permissive, instead of adverse. 11 Restatement (Third) of Prop.: Servitudes § 2.16, cmt. g. vol. 1, at 234. 12 {17} Further, where “a use has its inception inpermission, express or implied, it is 13 stamped with such permissive character and will continue as such[,] until a distinct 14 and positive assertion of a right hostile to the owner is brought home to him by words 15 or acts.” Hester , 1937-NMSC-056, ¶ 25. Thus, the taskfor the district court in this 16 case was to determine whether the Jaramillos’ predecessors made use of the Romeros’ 17 property in a way that was e ither adverse at its inception or that subsequently became 18 adverse by the “positive assertion of a ri ght hostile to the owner” of the land. Id

. 1912 {18} In addressing that task, the district court was entitled to consider both the 1 character of the land at issue, which encompassed large bodies of unenclosed land, 2 and also the relationship between the historical owners of that land, who were all 3 closely-related family members. See Algermissen , 2003-NMSC-001 ¶ 13 (“Evidence 4 of permission, be it express or implied, is relevant to this inquiry.”). Thus, the district 5 court could properly concludefrom the evidence received attrial that the Jaramillos 6 were not entitled to a presumption of adversity. Further, although presumptions shift 7 the burden of production from one party to another, the burden of persuasion always 8 “remains on the party who had it originally.” Rule 11-301 NMRA. Thus, the district 9 court could also properly haveconcluded that the Jaramillo s simply did not meet their 10 burden of establishing adversity with regard to the historical uses of the property at 11 issue. 12 {19} Having reviewed the evidence and argumen t presented, we conclude that the 13 district court’s finding of permissive use, as opposed to hostile use, is supported by 14 substantial evidence. Having properly found that the uses of the property were not 15 adverse to the owners thereof, the di strict court properly concluded that no 16 prescriptive easement in favor of the Jaramillos arose, and that conclusion is here 17 affirmed. 1813 IV. Easement Implied by Necessity 1 {20} Finally, the Jaramillos assert that the district court should have implied an 2 easement across the land of the Romeros by necessity. 3 An easement by necessity requires: (1) unity of title, indicating that the 4 dominant and servient estates were owned as a single unit prior to the 5 separation of such tracts[;] (2) that the dominant estate has been severed 6 from the servient tract, thereby curtailing access of the owner of the 7 dominant estate to and from a public roadway; and (3) that a reasonable 8 necessity existed for such right of way at the time the dominant parcel 9 was severed from the servient tract. 10 Hurlocker v. Medina , 1994-NMCA-082, ¶ 5, 118 N.M. 30, 878 P.2d 348 (internal 11 quotation marks and citation omitted). Mere convenience will not be enough to 12 establish an easement by necessity. See Otero v. Pacheco, 1980-NMCA-058, ¶ 5, 94 13 N.M. 524, 612 P.2d 1335. 14 {21} As noted above, title to all of the property at issue in this case can be traced to 15 a common grantor, Federico, who divided th e property and conveye d separate parcels 16 to his children. The Jaramillos assert that , because some of the parcels created by 17 those conveyances had no access to a public roadway, easements by necessity for the 18 purpose of ingress and egress arose by virtue of Federico’s division of the property 19 into separate parcels. Because easement by necessity requires that a reasonable 20 necessity for a right of way exists at the time the parcels are severed from one another, 21 it is important to consider the sequence in which the parcels were conveyed by 2214 Federico. See Venegas v. Luby , 1945-NMSC-045, ¶ 15, 49 N.M. 381, 164 P.2d 584 1 (stating that “necessity at the time of the conveyance governs” (internal quotation 2 marks and citation omitted)). 3 {22} Federico’s division of the property at i ssue in this case occurred over the course 4 of a quarter-century. As noted above, Federico conveyed away a parcel of land in 5 1949 that would eventually beowned by the Romeros. At that time, both Federico’s 6 remaining land and the parcel conveyed had roadway access. [Id.] In September, 1962, 7 however, Federico conveyed fiveseparate plots to his fivechildren, none of which had 8 access to a public roadway. Finally, by way of three conveyances in the summers of 9 1965 and 1975, Federico deeded to various children the remainder of the property at 10 issue in this case. 11 {23} Thus, if any easement arose by necessity , it must have arisen in September, 12 1962, when Federico deeded five newly-landl ocked plots to his children. At that time, 13 Federico still owned property between the newly-severed plots and the road, but he 14 did not own the parcel conveyed in 1949, across which the Jaramillos’ proposed 15 easement would now run. 16 {24} Because Federico did not own that parcel in 1962, the Jaramillos cannot 17 establish that any land was severed from that parcel in 1962. See Hurlocker , 1994- 18 NMCA-082, ¶ 5 (noting that a dominant estate must be severed from servient tract, 1915 “thereby curtailing access of the owner of the dominant estate to and from a public 1 roadway” (internal quotation ma rks and citation omitted)). Further, because that parcel 2 was severed from Federico’s estate in 1949, when Federico’s remaining holdings still 3 fronted a public road, the Jaramillos cannot establish any reasonable necessity for an 4 easement across that parcel at the time it was severed from th e rest of Federico’s land. 5 See id. (noting that the need for an easement must exist “at the time the dominant 6 parcel was severed from the servient tract ”). Thus, contrary to the claim of the 7 Jaramillos, it is not possible for an easement to have arisen by necessity across that 8 portion of the Romeros’ land that was conveyed by Federico in 1949. Because the 9 Jaramillos’ claim depends upon an easement thatcrosses that parcel, the district court 10 could properly have concluded that no easement by necessity arose in this case. 11 {25} Instead, the district court merely f ound that no such easement exists today, 12 apparently relying upon the cessation of purpose doctrine, which is discussed 13 immediately below. This Court, however, “may affirm the district court's order on 14 grounds not relied upon by the district court if those grounds do not require us to look 15 beyond the factual allegations that were raised and considered below.” State v. 16 Wasson , 1998-NMCA-087, ¶ 16, 125 N.M. 656, 964 P. 2d 820. The failure of the facts 17 in this case to establish the Jaramillos’ claimed easement by necessity is evident 18 without looking beyond the facts raised below. Those facts establish that the easement 1916 proposed by the Jaramillos did not arise by necessity because no such necessity 1 existed in 1949, when the first parcel alleged to be burdened by that easement was 2 severed from the estate of th e parties’ common grantor. Th e district court’s rejection 3 of an easement by necessity is affirmed on that basis. 4 CESSATION OF PURPOSE 5 {26} The district court also concluded that, if any easement in favor of the 6 Jaramillos’ property ever existed, sucheasement would have been extinguished 7 pursuant to the doctrine of cessation of purpose. Pursuant to that doctrine, “[a]n 8 easement created to serve a particular purpose terminates when the underlying purpose 9 for the easement ceases to exist.” Sitterly , 2000-NMCA-037, ¶ 23 (citing Olson v. H 10 & B Props., Inc. , 1994-NMSC-100, ¶ 13, 118 N.M. 495, 882 P.2d 536). 11 {27} The Jaramillos contend that Sitterlydoes not apply to defeat their right to an 12 easement because the eas ement is by grant. [ BIC 15; RB 8-9 ] As noted above, we 13 affirm the district court’s conclusion th at no express easement was created by the 14 parties’ common grantor. And, in any event, the Jaramillos misstate the law as it was 15 declared in Sitterly

. 16 {28} That opinion affirmed the extinguishment of an easement by necessity despite 17 the defendant’s assertion that the easement atissue had been converted to an express 18 easement by an intervening action to quiet title. Sitterly , 2000-NMCA-037, ¶ 25

. In 1917 explaining the defendant’s argument on app eal, this Court quoted a passage from a 1 New York case to the effect that “ ‘when we are dealing with an easement by grant, 2 the fact that it may have also qualified as an easement of necessity, does not detract 3 from its permanency as a property right, which survives the termination of the 4 necessity.’ ” Id. (quoting Valicenti v. Schultz , 209 N.Y.S.2d 33, 37 (1960)). 5 {29} The passage quoted, however, played no part in the holding in Sitterly . In fact, 6 the Sitterly Court neither adopted nor applied th e principle stated in that quote, 7 because the easement at issue in Sitterlyretained its character as an easement by 8 necessity, intervening events notwithstanding. Id. ¶ 26. As a result, Sitterly does not 9 hold that the cessation of purpose doctrine applies any less to e xpress easements than 10 it does to easements by necessity. Further, our Supreme Court has explicitly applied 11 the cessation of purpose doctrine to an express easement. See Olson , 1994-NMSC12 100, ¶¶ 11, 15 (viewing document “as creati ng an express easement” and holding that 13 “pursuant to the cessation of purpose doctrine [the easement] was extinguished”). 14 Thus, under current New Mexico law, when an easement—even an express easement 15 —is created for a specific purpose, such as ingress and egress, that easement may be 16 terminated “when the underlying purpose for the easement no longer exists.” Id. ¶ 13. 17 {30} In this case, the parties stipulated and the district court found that from October 18 28, 1993 until September 7, 1999, “the Jaramillos owned contiguous property from 1918 County Road 177 to the Ojo Caliente River.” As a result, the Jaramillos’ property had 1 direct access to a public road, and the Jaramillos did not need any easement across the 2 land of the Romeros in order to access their land. Thus, even if the Jaramillos ever 3 held an easement for purposes of ingre ss and egress, the underlying purpose of such 4 easement would have ceased to exist as of October 28, 1993. The district court 5 correctly concluded, based upon these stipulated facts, that when the Jaramillos 6 “gained title to property that gave them access to a County road, any easement or 7 claim of easement that the Jaramillos had to the Romero Property was extinguished.” 8 {31} The judgment of the district court is affirmed in its entirety. 9 {32} IT IS SO ORDERED. 10 11

___________________________ 12 M. MONICA ZAMORA, Judge 13 WE CONCUR: 14

_______________________________ 15 MICHAEL D. BUSTAMANTE, Judge 16

_______________________________ 17 MICHAEL E. VIGIL, Judge 18