The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA
, authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: March 20, 2023 3

No. A

- 1

- CA

- 39046 4

MIMBRES HOT SPRINGS RANCH, 5 INC., 6

Plaintiff

- Appellee, 7

v. 8

DAVID VARGAS and DEBORAH 9 VARGAS, 10

Defendants

- Appellants. 11

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 12 Thomas F. Stewart, District Court Judge 13
Douglas C. Littlejohn 14 Silver City, NM 15
for Appellee 16
Lopez, Dietzel, & Perkins, P.C. 17 William Perkins 18 Silver City, NM 19
for Appellants 20OPINION 1

H ENDERSON , J udge

. 2

{1} David and De borah Vargas (Defendants) appeal from summary judgment in 3
favor of Mimbres Hot Springs Ranch, Inc. (Plaintiff). The judgment required 4
Defendants to remove a locked gate blocking vehicular access to Plaintiff’s express 5
easement over Defendants’ property. The judgment further permitted Plaintiff to 6
modify and maintain the roadway that constitutes the easement
, to better 7

a ccommodate vehicular access. This appeal requires us to determine whether 8
Defendants’ locked gate was sufficient to prescriptively extinguish Plaintiff’s right 9

to drive over the easement. We hold that an easement will be prescriptively 10
extinguished, partia lly or completely, if the servient owner adversely uses the 11
property in an open or notorious manner continuously for the prescriptive period. 12

See Restatement (Third) of Prop.: Servitudes § 7.7 (2000). However, because 13

Defendants ’ use of the easement was no t sufficiently adverse, Plaintiff’s easement 14
was not prescriptively extinguished

. 15

BACKGROUND 16

{ 2 } Neither party disputes any of the relevant facts. Plaintiff’s property is 17
comprised of an eastern and western parcel, divi ded in two by a creek

. In 1981, a 18
third party who owned property abutting Plaintiff’s we stern parcel granted Plaintiff 19

an express easement , twenty feet in width, for ingress and egress. The easement, 202 which consists of an old road, allows Plaintiff to access its western parcel without 1
needing to cross the creek, which tends to flood during monsoon season. 2

{ 3 } In 1993, Defendants purchased the property from the third party, subject to 3

Plaintiff’s easement. When Defendants bought their property, there was alre ady an 4
existing locked wire gate, and even though that gate crossed the easement, they 5
acknowledged Plaintiff had the right to drive over the easement. Soon after, 6

Defendants replaced the locked wire gate with a locked metal tube gate across the 7

easement. T he gate is fenced on both sides, and is near, but not on, the parties’ shared 8
property line, which is unfenced. The gate has remaine d locked since it was first 9

installed, and prevents any vehicular traffic from traveling the full length of 10

Plain tiff’s easement. Plaintiff had at one time driven over the easement prior to 11
Defendants buying the property, but never after that point. Despite the gate
, 12

Plaintiff ’s individual members still used the easement for walking, hiking , and 13
occasionally surveying the property , by going around the gate and adjoining fence

. 14

{ 4 } Plain tiff knew it could not drive past the gate but did not immediately a sk that 15
the gate be opened or removed . This is because t he gate also benefitted Plaintiff by 16
reducing traffic over its property, traffic that could potentially harm the natural 17
landscape Plaintiff wanted to preserve. However, around 2015 Plaintiff sought to 18
build a house on its western parcel. It asked Defendants to remove the gate so that it 19

cou ld improve the easement into a road that could be driven on more easily

. 203 Defendants den ied Plaintiff’s request and told Plai ntiff in two separate letters that its 1

easement was “not valid, due to non

- use.” Defendant s threatened that if Plaintiff 2

continued to use the easement they would take legal action

. 3

{ 5 } Plaintiff beat Defendants to it. Two years after Defendants’ second letter was 4
sent, Plaintiff filed suit against Defendants, primarily for trespass. Plaintiff sought a 5
declaration of its rights and to quiet title to the easement , along with an order 6
enjoi ning Defen dants from blocking it . Defendants counterclaimed seeking to quiet 7

title in their favor
, alleging the easement had either been abandoned or prescriptively 8
extinguished. After roughly two more years had passed
, Plaintiff filed a motion for 9

summary judgment. Plaintiff’s motion took aim at Defendants’ counterclaim, 10
arguing mainly that there was no evidence that Plaintiff intended to abandon its 11
easement or that Defendants had adversely used the easement to extinguish it via 12
prescription. Plaintiff al so sought to establish that its easement, alth ough expressly 13
granted, was one of necessity not subject to abandonment or prescription

. 14

{ 6 } The district court granted the motion. It found that Plaintiff made no 15

affirmative acts “which unequivocally s howed an intent to abandon [its] easement.” 16

Because Plaintiff had an interest in kee ping the gate, and because the gate did not 17
prevent Plaintiff’s members from using the easement for “recreational purposes” 18
other than driving, the district court found that failing to drive over the easement or 19

cut the lock did not demonstrate a n intent to abandon . Finally, the district court found 204 that “[t]here was a dearth of evidence to show” that the easement had been 1
prescriptively extinguished. The dist rict court did not rule on Plaintiff’s necessity 2

argument. 3

{ 7 } Defendants appealed. Like those below, the arguments offered by the parties 4
on appeal center on the legal effect of the undisputed facts. However, Defendant s no 5
longer press that Plaintiff’s e asement has been abandoned. Instead, their only 6
argument on appeal is that the easement has b een prescriptively extinguis hed 7
because (1) the locked gate violated Plaintiff’s easement rights , (2) Plaintiff knew 8
its rights were being violated, yet did nothing to stop Defendants
, and (3) the locked 9
gate had been in place for well over ten years, the prescriptive period

. Although they 10
initially claimed that the entire easement was extinguished, Defen dants have limited 11
their argument to attack only Plaintiff’s right to drive over it. 12

DISCUSSION 13

{ 8 } Because the parties only dispute the legal effect of the underlying facts, we 14

review the district court’s legal conclusions on summary judgment de novo. 15
Amethyst Land Co. v. Terhune , 2014

- NMSC

- 015, ¶ 9, 362 P.3d 12. To resolve this 16
appeal , we first discuss the law governing prescriptive extinguishment of easements. 17
After explaining the necessary elements, we consider whether Defendants have met 18
their burden of showing a genuine dispute exists as to each element s o as to warrant 19

a trial on the mer its. See Ho rne v. Los Alamos Nat’l Sec.

, L.L.C.
, 2013

- NMSC

- 004, 205 ¶ 15, 296 P.3d 478. (“Once the movant makes a prima facie showing [of entitlement 1
to judgment as a matter of law], the party opposing summary judgment has the 2

burden to demonstrate the existence of specific evidentiary facts which would 3
require trial on the merits.” (internal quotation marks and citation omitted) ) . We 4
conclude that they have not. 5

I

. Prescriptive Extinguishment Jurisprudence 6

{ 9 } The parties do not agree on the law that should govern t his dispute. D efendants 7
argue that Luevano v. Maestas , 1994

- NMCA

- 051, ¶ 13, 117 N.M. 580, 874 P.2d 8
788, dictates when an easement is prescriptively extinguished. D efendants also cite 9

to multiple cases from other states, as well as the Restatement (Third) of Property. 10

In contrast, Plaintiff contends that Algermissen v. Sutin , resolves any dispute over 11
when an easement is prescriptively extinguished. 2003

- NMSC

- 001, 133 N.M. 50, 12

61 P.3d 176

. And like Defendants, Plaintiff also suggest s that we should follow 13
various approaches from other states and treatises. Ultimately
, we believe that 14

neither Luevano nor Algermissen alone completely state the law governing when an 15

easement is prescriptively extinguished. 16

{ 10 } Luevano involved a dispute amongst neighbors, in which the plaintiffs sought 17
to preclude use of a road that m ultiple properties abutted. 1994

- NMCA

- 051, ¶¶ 5, 8

- 18

9 . As part of their argument, the plaintiffs asserted that the y had a greater right to the 19

easement because it had been expressly granted to them, over any rights that may 206 have been created through public use. Id. ¶ 12. In clarifying that even th e plaintiffs’ 1

express easement wa s vulnerable to interference, this Court explained that “[a] n 2
easement appurtenant is subject to extinction by prescription of the estate to which 3
the easement is appurtenant. ” Id. ¶ 13. This happens when a property owner whose 4
property is burdened by the easement, the se rvient owner, uses their property in a 5
way that is “adverse, and for the period of prescription, continuous and 6
uninterrupted,” to the easement owner ’ s rights. Id. The whole of Leuvano ’s 7
discussion of prescriptive extinguishment relied on Section 506 comme nt b of the 8
Restatement (First) of Property (1944)

. See Luevano , 1994

- NMCA

- 051, ¶ 13

. Other 9

than recognizing the basic concept, however, the Luevano C ourt had no occasion to 10
apply the rule to the facts of the case. Luevano was instead resolved in favor of the 11

defendants, who had created rights in the road. See i d. ¶¶ 31

- 32. 12

{ 11 } Beyond Luevano , New Mexico c ourts have not further addressed when an 13

easeme nt may be extinguished by prescription. And while it enunciated certain 14
necessary elements for an easement to be extinguished by prescription
, Luevano fails 15
to offer any helpful analysis of them. In contrast, a significant number of cases have 16
discussed the law concerning the creation of an easement by prescription. See, e.g.
, 17
Algermissen
, 2003

- NMSC

- 001 ; Segura v. Van Dien , 2015

- NMCA

- 017, 344 P.3d 18

1009; Brannock v. Lotus Fund
, 2016

- NMCA

- 030, 367 P. 2d 888; Ulibarri v. 19

Jesionowski
, 2023

- NMCA

- 008
, 523 P.3d 624

. The modern statement of the 207 elements necessary to create an easement by prescription were laid out in 1
Algermissen : “[A]n easement by prescription is created by an adverse use of land, 2
that is op en or notorious, and continued without effective interruption for the 3
prescriptive period (of ten years).” 2003

- NMSC

- 001
, ¶ 10 (citing Restatement 4
(Third) of Prop. : Servitudes §§ 2.16, 2.17 (2000) ). Algermissen went on to elaborate 5

on each element. “An adverse use is a use made without the consent of the 6
landowner. It is also the type of use that would normally give rise to a cause of action 7

in tort. ” Id. ¶ 11. “To be open, the use must be visible or apparent,” and “[t]o be 8
notorious, the claimant’s use of the property must be either actually known to the 9
owner or widely known in the neighborhood.” Id. ¶ 19. Finally, “[f]or the use to be 10

continuous, it must take place with the same consistency that a normal owner of the 11
claimed servitude would make, so long as that use is reasonably frequent.” Id. ¶ 23. 12

{ 12 } Thus far, i t is apparent that the elements for prescriptively extinguishing an 13
easement and prescriptively creating an easement both require an adverse use that is 14
continued for the prescriptive per iod. The Restatement (Third) of Property , relied on 15
throughout Algermissen , recognizes this connection as well : “Adverse uses meeting 16
the requirements [to create an easement by prescription] that unreasonably interfere 17

with easements

. . ., if continued throughout the prescriptive period, extinguish the 18

benefit of the servitude to the extent of the adverse use.” R estatement (Third) of 19

Prop. : Servitudes § 7.7 cmt. b ; see Algermissen , 2003

- NMSC

- 001, ¶¶ 10

- 11, 18

- 19, 208 23

. Moreover, “[t]he rationale for extinguishing servitude benefits by prescription is 1
the same as that for permitting their acquisition by prescription.” Restatement 2
(Third) of Prop.: Servitudes § 7.7 cmt. a (noting how interference with easement 3
rights creates a “succession of causes of action” that prescription brings to a close ) ; 4
see Algermissen
, 2003

- NMSC

- 001, ¶ 11 ( stating that adversity typically creates a 5
cause of action in tort). Given the interrelation between prescriptively extinguishing 6
and creating an easement, Algermissen ’s additional development of the elements 7
required to prescriptively create an easement may also be used to analyze when an 8
easement is prescriptively extinguished. 9

{ 13 } The parties’ arguments have highlighted, however, that Leuvano ’s brief 10

enumeration of the elements omitted the open or notorious re quirement from 11
Algermissen

. In M atou sh v. Lovingood , the Colorado Supreme Court recognized 12

what we do here

— that extinguishing an easement and creating an easement by 13
prescription require elements that “mirror” each other. 177 P.3d 1262, 1269 (Colo. 14
2008) (en banc)

. The c ourt thus adopted elements for prescriptively extinguishing 15

an easement that mirror those for creating one by prescription. Id. at 1270. Those 16
elements are the same as those our Supreme Court adopted in Algermissen , including 17
that the servient owner’s use be open or notorious. See 2003

- NMSC

- 001, ¶ 10. T he 18
majority of the cases around the country also require that the use be open or 19

notorious

. See Mid

- Valley Res., Inc. v. Foxglove Properties, LLP , 381 P.3d 910, 919

- 209 20 (Or. Ct. App. 2016); Childs v. Harada , 311 P.3d 710, 72 2 (Haw. Ct. App. 2013); 1

Hansen v. Davis , 220 P.3d 911, 91 6 (Alaska 2009); Meadow Lake E states 2

Homeowners Ass’n v. Shoemaker , 2008 MT 41, ¶ 36, 341 Mont. 345, 178 P.3d 81; 3

s ee also Jo n W. Bruce & James W. Ely, Jr., The Law of Easements & Licenses in 4

Land § 10:25 , Westlaw (database updated March 2023) (“ In order for an easement 5
to be extinguished by prescription, the servient owner ’ s use or possession must 6
satisfy the same elements required for obtaining an easement by prescription. ”) ; 7
Bruce & Ely , supra , § 10:25 n.4 (collecting cases). 25 Am. Jur. 2d Easements & 8

Licenses § 89 , Westlaw ( database updated February 202 3 ) (“To claim adv erse 9
possession of an easement, the servient owner must prove

. . . open and notorious 10

use of the easement area

. . . .” (footnote s omitted) ) ; 25 Am. Jur. 2d Easements & 11

Licenses § 89 n.4 (collecting cases). Ensuring the servient owner’s use is open or 12
notorious serves an important purpose: it establishes that the easement owner had 13

notice of the adverse use and ample opportunit y to protect against losing its rights. 14

See Restatement (Third) of Prop.: Servitudes § 2.17 cmt. h. We follow the majority 15
approach and conclude that a servient owner’s adverse use must be open or 16

notorious

. 17

{ 14 } Although both prescriptively extinguishing an easement and prescriptively 18
creating an easement require adverse use, there is an important conceptual and 19
practical difference concerning that element. A servient owner already has the right 2010 to use their property, including land over which an easement has been granted, unlike 1
a prospective easement owner trying to establish rights by p rescription. See 2

Matoush , 177 P.3d at 1270; Hansen , 220 P.3d at 916. Thus, even “significant activity 3
in the easement area by the servient owner may not be adverse to the easement 4

holder’s interest.” Bruce & Ely
, supra , § 10:25 ; id. § 10:25 n .1 0 (collecting cases). 5
The use must interfere “significantly enough with the easement owner’s enjoyment 6
of the easement to give notice that the easement is under threat.” 25 Am. Jur. 2d 7

Easements & Licenses § 89 . We believe such a requirement comports with New 8

Mexico’s acknowle dgement that “[f]orfeitures of easements are not favored in law.” 9

Ritter

- Walker Co. v. Bell , 1942

- NMSC

- 008, ¶ 9, 46 N.M. 125, 123 P.2d 381. 10

{ 15 } Finally, because r eal property rights are divisible
, extinguishment by 11
prescription “may be complete or partial.” Res tatement (Third) of Prop. : S e r vitudes 12
§ 7.7 cmt. b. The extent to which the beneficial use of the easement is extinguished 13

is based on which benefit is irreconcilable with the servient estate ’s prescriptive use. 14
See Pappas v. Maxwell
, 150 N.E.2d 521, 524

- 25 ( Mass. 1958) ( “Where

. . . acts of 15
the servient tenant render the use of only part of a right of way impossible, the 16
easement is extinguished only as to that part.”) ; 28 A C.J.S. Easements § 157
, 17

Westlaw (database updated March 2023) (“[W]here the servient owner’s use of land 18
was entirely irreconcilable with certain uses of the easement and remained so for the 19
prescriptive period, the easement is extinguished as to those uses.”). 2011 { 16 } To summarize , an easement will be prescriptively extinguished if the servient 1
owner’s use of the area is (1) adverse to the easement owner’s rights in the easement
, 2
(2) open or notorious
, and (3) continuous without effective interruption for the 3
prescriptive period (ten years). While different courts and treatises have used 4
different language to explain the level of adversity required, it must amount to an 5

unreasonable interference such that the easement owner is on “notice that the 6

easement is under threat.” 25 Am. Jur. 2d Easements & Licenses § 89; see 7
Restatement (Th ird) of Prop.: Servitudes § 7.7 (requiring uses that “unreasonably 8
interfere” with an easement owner’s rights) ; see , e.g. , Moutash , 177 P.3d at 1270 9
(requiring “incompatible or irreconcilable” use)

. The extinguishment resulting from 10

the servient owner’s adverse use may be complete, or partial , based on the extent it 11

interferes with the easement holder’s rights

. 12

I I

. Application 13

{ 17 } Turning n ow to the facts at hand, we conclude that Defendants’ use of their 14

property

— replacing a locked gate with their own locked gate over the easement

— 15
was not sufficiently adverse so as to put Plaintiff on notice that its rights were under 16

threat. We note that Algermissen instructs on various presumptions that assist in 17
determining adversity. See 2003

- NMSC

- 001, ¶ 11. However, Defendants offer no 18
argument on appeal that we should apply them in this case. Nor did they present 19
such an argument to the district court. Because t he parties do not argue that the 2012 presumptions apply in the context of extinguishment, we do not address the question

. 1
We thus examine the facts to determine whether they demonstrate sufficient 2
adversity

. 3

{ 18 } Our task is to determine whether Defendants unreasonabl y interfere d with 4

Plaintiff’s enjoyment of the easement such that Plaintiff was on notice that the 5

easement was under threat. 1 See 25 Am. Jur. 2d Easements & Licenses § 89 ; 6
Restatement (Third) of Prop.: Servitudes § 7.7

. This is a heavily fact dependent 7

determination. See 25 Am. Jur. 2d Easements & Licenses § 89 (“ Determining what 8
constitutes unreasonable interference will be heavily fact dependent. ”); Bruce & Ely
, 9

1 Plaintiff would also have us adopt a rule from Castle Associates v. Schwartz
, 407 N.Y.S.2d 717, 723 (N.Y. App. Div. 1978 ), which states, [W] here an easement has been created but no occasion has arisen for its use, the owner of the servient tenement may fence his land and such use will not be deemed adverse to the existence of the easement until such time as (1) the need fo r the right of way arises, (2) a demand is made by the owner of the dominant tenement that the easement be opened and (3) the owner of the servient tenement refuses to do so. It has received mixed reception across the country. See, e.g.
, Matoush , 177 P.3d at 1268 (adopting the Castle rule); Halverson v. Turner , 885 P.2d 1285, 1290 (Mont. 1994) (same). But cf. Hansen , 220 P.3d at 915 (criticizing and refusing to adopt the Castle rule); Humphreys v. Wooldridge , 408 S.W.3d 261, 270 n.7 (Mo. Ct. App. 2013) (fi nding the Castle rule “unpersuasive”). The rule was also limited in the state it was created to apply only to “easements not definitively located and developed through use” because they are “not yet in functional existence

. . . .” Spiegel v. Ferraro , 541 N.E.2d 15, 17 (N.Y. 1989). However, this appeal does not require us to determine whether New Mexico follows the rule. And even if it did, it would be inapplicable in this case, as Plaintiff’s easement was definitively located and used, even for vehicular u se at one time. See Crutchfield v. N.M. Dep’t of Tax’n & Revenue , 2005

- NMCA

- 022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A reviewing court generally does not decide academic . . . questions.”).13 supra , §10.25 (“ Resolution of the adversity issue is heavily fact dependent. Only an 1
examination of the numerous cases in the area can provide a sense of the type of 2
activity that constitutes adverse use or possession. ” (footnote omitted) ). 3
Unsurprisingly, t he effect of gates, fences, and other obstructions have long been 4
evaluated by courts, resulting in a wide array of decisions hinging on the facts of 5

each case

. See Restatement (Third) of Prop: Servitudes § 4.9 (2000) ; see , e.g. , 6

Hansen , 220 P.3d at 917; Shors v. Branch , 720 P.2d 239 , 244 ( Mont. 1986) ; Sevier 7

v. Locher
, 272 Cal. Rptr. 287, 290 (Ct. App. 1990) ; Horecny v. Raichl
, 571 P.2d 495, 8

497 (Or. 1977)

. 9

{ 19 } Here, we conclude, based on the undisputed facts, that Defendants’ use did 10
not unreasonably interfere with Plaintiff’s enjoyment of the easement and so did not 11
put Plaintiff on notice that its rights in the easement were being threatened, even as 12

to its ri ght to drive over the easement. Defendant s essentially argue that the ir locked 13
gate was sufficiently adverse because it was a violation of Plaintiff’s easement rights 14
and Plaintiff did nothing to stop it. Even if both of these facts were true, however, in 15

this case they do not alone demonstrate sufficient adversity. Defendants’ gate merely 16
replaced a locked gate that was already across the easement when Defendants bought 17
the property, Defendants acknowledged that Plaintiff’s easement permitted 18

vehicular tra ffic
, and no evidence was presented demonstrating that Defendants
, 19
through words or deeds, put Plaintiff on notice that the purpose of the replacement 2014 gate was to thwart Plaintiff’s use of the easement. See Gandy Co. v. Freuer , 313 1

N.W.2d. 5 76, 5 79 (Minn. 1981) (holding that a padlocked gate was not adverse when 2
the “purpose of the lock was to keep hunters [ off the property ] ”) ; Sevier , 272 Cal. 3
Rptr. at 290 (locked gate adverse in part because the owner “refused to give” 4
easement owner the key)

. T he lack of s uch evidence is especially critical considering 5

fact s demonstrating that Plaintiff permitted the locked gate to remain in place 6

because it benefited Plaintiff by restrict ing traffic over the property. 7

{ 20 } Ad ditionally, the locked gate is not on the parties’ shared property line, which 8
makes it unclear whether the purpose of the gate was to restrict Plaintiff’s entry. But 9

see Hansen , 220 P.3d at 916 ( noting that an unreasonable interference is adverse in 10
part because “such extensive use constitutes a ‘distinct and positive assertion’ by the 11
servient estate owner that his or her use of the easement is hostile to the rights of the 12

easement holder and is not merely a permissive use ” (emphasis added) ) . Moreover, 13
Defendants did nothing to restrict or otherwise dissuade Plaintiff’s multifaceted use 14
of the easement, which undoubtedly required circumventing the gate. By the time 15

Defendants expressly contested P laintiff’s right to use the easement in their letters
, 16

it was 2015

— even if this act demonstrate d adverse use , it did not continue for the 17
prescriptive period of ten years

. The undisputed facts establish that Defendants did 18
not satisfy the adversity element of an extinguishment claim. 1915 { 21 } In trying to avoid this result, Defendants direct us to two New Mexico cases 1

as support for the proposition that their gate is sufficiently adverse , but neither case 2

offer s a n alysis on when an obstruction is sufficient to prescriptively extinguish an 3

easement

— an act that requires a higher level of adversity

. See Huff v. McClannahan
, 4

1976

- NMCA

- 121, ¶ 8, 89 N.M. 762, 557 P

. 2d 1111 (concluding that servient 5

owner’s placement of gates on easement “was unreasonable”) ; Dethlefsen v. Weddel
, 6

2012

- NMCA

- 077, ¶¶ 35

- 36, 284 P.3d 452 (determining that an easement grant was 7
ambiguous as to whether it “contemplated the use of a lockable gate” and remanding 8
for further proceedin gs). 9

{ 22 } The cases Defendants cite from other jurisdictions are likewise inapposite. In 10

Public Lands Access Ass’n, Inc. v. Boone & Crocket Club Foundation, Inc. , the 11
Montana Supreme Court determined that the public lost any claim to a prescriptive 12

easeme nt when the servient owner engaged in an extensive program heavily 13
restricting access to its property. 856 P.2d 525, 532 (Mont. 1993). T here, the servient 14

owner closed its road as part of a “walk

- in” program with which the State of Montana 15

assisted. Id. at 531. There were also clear signs indicating that no one was permitted 16
to drive beyond the parking area, and that written permission was required to 17

continue on foot or horseback on the servient owner’s property

. Id. Citations were 18

even issued to people using the area without permission. Id. Here, Defendants never 19
engaged in similarly extensive regulation of Plaintiff’s easement such that 2016 Defendants would know its use of the easement was being intentionally restricted, 1
like the public’s use of the land in Boone & Crocket Club Foundation, Inc. 2

{ 23 } The next case pressed by Defendants, Yagjian v. O’Brien , 477 N.E.2d 202 3
( Mass

. App. Ct

. 1985), likewise involved an extensive impediment to an easement. 4
There, the entire length of the easement had been fenced off, either by a stone wall 5
or wire fencing, such that any entry to the easement required passing over the fence 6

or wall. Id. at 203. Here, most of Plaintiff’s easement is accessible, even by vehicle. 7
Finally, Defendants point us to Se vier , however
, that case presented a situation 8

where the defendants “extinguished [ the plaintiff’s ] right to use [the easement] as a 9
roadway for vehicles of all kinds, pedestrians and animals, ” with a six

- foot gate that 10

could not be avoided, and refused to provide the plaintiffs with a key

— expressly 11
putting the plaintiffs on notice of a restrict ion on the ir easement rights. 272 Cal. Rptr. 12

at 290 (i nternal quotation marks omitted)

. 13

{ 24 } We hold that the district court properly entered summary judgment because
,
based on the undisputed facts
, Defendants do not satisfy the adversity element for
extinguish ment by prescripti on

. It is therefore unnecessary for us to determine
whether the easement was one of necessity
, not subject to extinguishment by
prescription.17 CONCLUSION 1

{ 25 } For the foregoing reasons, we affirm the district court’s grant of summary 2
judgment in favor of Plaintiff. Each party shall bear their own costs and attorney fees 3
on appeal. 4

{ 26 } IT IS SO ORDERED. 5

_______________________________ _____ 6 SHAMMARA H. HENDERSON , Judge 7

WE CONCUR: 8

____________________________ 9 ZACHARY A. IVES , Judge 10

____________________________ 11 JANE B. YOHALEM , Judge 12