The slip opinion is the first version of an opinion released by the Chi ef Clerk of the Supreme Court. Once an opinion is selected 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 d eviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number:

________________ 2

F iling Date: September 21, 2022 3

No. A

- 1

- CA

- 38797 4

THE ACEQUIA COMPOUND OWNERS’ 5 ASSOCIATION, INC., 6

Plaintiff

- Appellee, 7

v. 8

ORCHARD METAL CAPITAL CORP., 9

Defendant

- Appellant. 10

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 Francis J. Mathew, District Judge 12
Katz Herdman MacGillivray & Fullerton PC 13 Frank T. Herdman 14 Brecken N. Larson 15 Santa Fe, NM 16
for Appellee 17

Holland & Hart LLP 18 Larry J. Montaño 19 Julia Broggi 20 Santa Fe, NM 21
for Appellant 22OPINION 1

WRAY , Judge. 2

{1} Defendant Orchard Metal Capital Corporation (OMC) appeals the district 3
court’s entry of partial summary judgment and an injunction in favor of Plaintiff the 4
Acequia Compound Association (the Association), as well as the dismissal without 5
prejudice of the A ssociation’s remaining claim. We affirm. 6

BACKGROUND 7

{ 2 } The Association is a condominium association that is responsible for the 8

administration, management, operation, and control of the common elements of the 9
Acequia Compound Condominium (Condominium Prop erty). The Condominium 10
Property is located at the southern end of a public street, Halona Street, in Santa Fe
, 11

New Mexico . An easement (Condominium Property Easement) runs along the west 12
side of the Condominium Property, connecting Halona Street to both the 13
Condominium Property to the east and several other abutting properties to the west, 14
including property owned at one time by the New Mexico Association of Counties 15

(NMAC)
, located at 613 Old Santa Fe Trail. The language of the original 16

Condominium Property Easement granted a “non

- exclusive access

- egress and 17
underground utility easement twenty feet in width along the west boundary of the 18

property of grantor [the Association]” and asserted that the “easement granted herein 192 shall run with the land [and ] serve only the following described property, hereinafter 1

the dominant estate,” which was defined as 613 Old Santa Fe Trail. 2

{ 3 } Defendant OMC owns property at 621 Old Santa Fe Trail, immediately to the 3

south of 613 Old Santa Fe Trail. The Condominium Pro perty and OMC property do 4

not abut ; 613 Old Santa Fe Trail is located to the north of the OMC property and the 5
Condominium Property is located directly to the east of 613 Old Santa Fe Trail. 6
NMAC, the owner of 613 Old Santa Fe Trail at the time, granted OM C an easement 7
(the Wedge Easement) for OMC to use the southeastern wedge of 613 Old Santa Fe 8

Trail in return for a one

- time fee of $5,000 an d payment of maintenance costs. See 9

Appendix A. This southeastern wedge of 613 Old Santa Fe Trail abuts (1) the 10

west ern edge of the Condominium Property Easement, and (2) the northern edge of 11
OMC’s property at 621 Old Santa Fe Trail. The Wedge Easement connects 12

Defendant OMC’s property at 621 Old Santa Fe Trail to the Condominium Property 13
Easement, giving Defendant OMC access to Halona Street. 1 The Wedge Easement 14
was subsequently amended to ensure that 15

[OMC] acknowledges and represents that [NMAC] has made no 16 representations or warranties whatsoever regarding the access from the 17 [Wedge Easement] beyond the boundary lin e of [613 Old Santa Fe 18

1 Appendix A includes an image that depicts the long rectangular property, 613 Old Santa Fe Trail, outlined in black in the middle of the page, and the Condominium Property Easement highlighted in light grayscale to the fa r right. The property at 621 Old Santa Fe Trail is located directly to the south of 613 Old Santa Fe Trail and the Wedge Easement is in darker grayscale to the left of the Condominium Property Easement.3 Trail] to the public portion of Halona Street or the “Halona Road 1

e xtension” 2 referenced in paragraph 3 of the April 10, 2013 Easement 2 Agreement. 3

After obtaining the Wedge Easement, Defendant OMC removed a portion of a fence 4

at the northeastern corner of its property, 621 Old Santa Fe Trail

. The removal of the 5

fence allowed OMC’s president to enter and exit OMC’s property by traveling across 6

613 Old Santa Fe Trail, using the Wedge Easement to access the Condominium 7

Property Easem ent and travel to Halona St reet. 8

{ 4 } The Association filed a complaint for trespass and injunctive relief against 9
Defendant OMC, alleging that OMC was trespassing and causing or permitting 10

others to trespass on the Condominium Property. The Association qu ickly moved 11
for partial summary judgment on the issue of OMC’s trespass and sought an 12
injunction to prevent OMC from trespassing and to require OMC to erect a fence to 13

p revent others from trespassing. OMC filed a motion to strike the affidavit of the 14

Assoc iation’s president and alleged that she lacked personal knowledge about the 15
number of vehicles entering the Condominium Property Easement going to or from 16
OMC’s property. In response to the Association’s motion for summary judgment, 17

Defendant OMC contended that by granting the Wedge Easement, NMAC had 18
authorized OMC to use the Condominium Property Easement, which was next to 19

NMAC’s property at 613 Old Santa Fe Trail. After hearing argument, the district 20

2 The record does not indicate to what the “Halona Road extension” refers.4 court determined that OMC had failed to rebut the Asso ciation’s evidence t hat 1
established OMC’s trespass. Although the district court enjoined OMC and its 2

employees and agents from trespassing, the district court declined to require the 3
construction of a fence or other permanent barrier. As a practical matter, the district 4
court noted that the case would go f orward “at least . . . for the purpose of the 5

establishment of the appropriate remedy as it relates to the gap in the fence.” In the 6
order granting partial summary judgment, the district court ordered that 7

1. [OMC], including [OMC]’s employees and agents (which 8 includes its president, David Lamb), is permanently enjoined and 9 prohibited from using the [Condominium Property] Easement across 10 [the Association’s] property. 11

2. [The Association’s] request for an injunction requiring 12 [OMC] to install a permanent barrier on the northern boundary of the 13 [OMC] Property is not granted at this time but the request for such relief 14 is reserved and may be raised by motion or at trial at a later date. 15

{ 5 } Following entry of the district court’s order, the Association fil ed a second 16
summary judgment motion and argued again that the district court should require 17
OMC to erect a fence or other permanent barrier. Attached to this motion was 18

another affidavit from the Association’s president, as well as multiple video 19
recording s purporting to depict traffic moving across the Condominium Property 20
Easement to and from OMC’s property (621 Old Santa Fe Trail). OMC again moved 21

to strike the affidavit. At the hearing, the district court agreed that certain paragraphs 22

of the affidavit were speculative and argumentative and additionally declined to 235 consider the video recordings. Following the district court’s ruling, the Association 1
withdrew its summary judgment motion and moved to dismiss without prejudice its 2

remaining claim related to the permanent barrier. OMC opposed the motion and 3
argued that the dismissal should be with prejudice. During the hearing, the district 4
court asked OMC if the Association could refile a lawsuit if the trespass continued, 5
regardless of whether the present c ase was dismissed with or without prejudice. 6
OMC responded that it was positioned to defend against the current claims and that 7

to dismiss wit hout prejudice would be unfair. OMC acknowledged that the district 8

court had the discretion to dismiss with or wit hout prejudice but maintained that it 9

would only be “fair to OMC to dismiss it with prejudice at this stage in the 10
litigation.” The district court ruled that OMC had failed to demonstrate that any 11
prejudice would result from dismissal without prejudice and granted the 12
Association’s motion to dismiss without prejudice. This appeal followed. 13

DISCUSSION 14

{ 6 } OMC argues that the district court improperly granted partial summary 15
judgment to the Association and wrongly dismissed the Association’s remaining 16
claim without prejudice. We review grants of summary judgment de novo. City of 17
Rio Rancho v. Amrep S w. Inc.
, 2011

- NMSC

- 037, ¶ 14, 150 N.M. 428, 260 P.3d 414. 18
Whether to dismiss claims with or without prejudice is within the district court’s 19

discretion, and we review that decision for abuse of discretion. Trinosky v. 206 Johnstone
, 2011

- NMCA

- 045, ¶¶ 18, 20, 149 N.M. 605, 252 P.3d 829. We consider 1
each argument in turn. 2

I. The District Court Properly Granted Summary Judgment 3

{ 7 } The district court properly grants summary judgment if “ there are no genuine 4
issues of material fact and the movant is entitled to judgment as a matter of law.” 5
City of Rio Rancho
, 2011

- NMSC

- 037, ¶ 14 (internal quotation marks and citation 6
omitted). OMC offers several arguments to support its position that the district court 7
improperly granted summary judgment on the Association’s trespass claim. To put 8
the Association’s trespass cl aim in context, we briefly explain the connection 9

between trespass and easements. “The gist of an action of trespass to real property 10
is in tort for the alleged injury to the right of possession.” Pacheco v. Martinez , 1981

- 11

NMCA

- 116, ¶ 14, 97 N.M. 37, 636 P .2d 308. New Mexico law explains that “[a]n 12

easement creates a nonpossessory right to enter and use land in the possession of 13
another and obligates the possessor not to interfere with the uses authorized by the 14

easement.” City of Rio Rancho , 2011

- NMSC

- 037, ¶ 33 (quoting Restatement (Third) 15

of Prop.: Servitudes § 1.2 (1) (2000)). A trespass claimant, like the Association, must 16

prove that the defendant had no right to enter and use the land. But if an easement 17
grants the right to enter and use land, use of tha t land in accordance with the 18
easement causes no injury to the right of possession, and no action for trespass exists. 197 { 8 } In the present case, to make a prima facie case for summary judgment, the 1
Association had to demonstrate that the undisputed materia l facts established that 2

OMC had no right to enter and use the Condominium Property Easement. See City 3
of Rio Rancho , 2011

- NMSC

- 037, ¶ 14 (“The party moving for summary judgment 4
has the initial burden of establishing a prima facie case for summary judgment by 5
presenting such evidence as is sufficient in law to raise a presumption of fact or 6
establish the fact in question unless rebutted.” (internal quotation marks and citation 7
omitted)). In its response, OMC primarily contends that as a matter of law, OMC 8

“ may use the [Condominium Property Easement] for ingress/egress [across 613 Old 9

Santa Fe Trail] by v irtue of the [Wedge] Easement.” The Association responds that 10
the undisputed facts show that the Wedge Easement, “permitting OMC to cross over 11
a tiny portion of 613 Old Santa Fe Trail, cannot, as a matter of law,” create a right 12

for OMC to use the Condominium Property Easement. We agree with the 13
Association and explain. 14

{ 9 } An easement that is “ created to benefit a dominant estate cannot be expanded, 15

changed, or modified without the express consent of the servient estate.” Mayer v. 16

Smith
, 2015

- NMCA

- 060, ¶ 29, 350 P.3d 1191 ( omission , int ernal quotation marks, 17
and citation omitted). An easement can be either appurtenant or in gross. See 18

Luevano v. Group One , 1989

- NMCA

- 061, ¶ 9, 108 N.M. 774, 779 P.2d 552. An 19
appurtenant easement is generally granted to an adjoining property owner for the 208 b enefit of the adjoining property. See Skeen v. Boyle s , 2009

- NMCA

- 080, ¶ 23, 146 1

N.M. 627, 213 P.3d 531. In the present case, the parties do not dispute that the 2

Condominium Property Easement is an easement appurtenant to the property at 613 3

Old Santa Fe Tr ail, granted for the benefit of that property. The dominant estate for 4
purposes of the Condominium Property Easement is 613 Old Santa Fe Trail, and the 5
servient estate is the Condominium Property. “The owner of the dominant estate 6
cannot change the extent of the easement or subject the servient estate to an 7
additional burden not contemplated by the grant of easement.” Kikta v. Hughes
, 8

1988

- NMCA

- 105, ¶ 14, 108 N.M. 61, 766 P.2d 321. 9

{ 10 } Along these lines, “[a]n easement can be used only in connection with the 10
estate to which it is appurtenant.” 28A C.J.S. Easements § 226 (2022); see Weeks v. 11

Wolf Creek Indus.
, 941 So. 2d 263, 269 (Ala. 2006) (“ To be sure, if the grant is for the 12

benefit of some particular land it can[]not be used to accommodate some other tract 13
of land adjoining or lying beyond.” (alteration, internal quotation marks, and citation 14
omitted)); Z e h v. Ka r ker
, 351 N.Y.S.2d 478, 479 (N.Y. App. Div. 1974) (“ It is well 15

settled that a right of way granted in connection with one parcel may not be used for 16
the benefit of any land other than that to which it was made appurtenant when it was 17
granted.”); Restatement (Third) of Prop.: Servitudes § 4.11 (2000) (“ Unless t he 18

terms of the servitude

. . . provide otherwise, an appurtenant easement or profit may 19

not be used for the benefit of property other than the dominant estate. ”)

. When the 209 holder of a dominant estate also owns a separate estate, which is not appurtenant to 1
the easement, the holder of the dominant estate generally cannot use the easement to 2

reach that separate estate, absent some right granted by the easement. See Jordan v. 3

Rash , 745 S.W.2d 549, 553 (Tex. App. 19 88) (“ Unless the wording of an easement 4
creates a more extended right of use, the grantee cannot use it to benefit other 5
premises owned by him or others.”); Lichteig v. Churinetz , 519 A.2d 99, 102 (Conn. 6
App. Ct. 1986) (“ An easement cannot be used for the benefit of land other than the 7
dominant estate.”) ; Cleve v. Nairin , 264 S.W. 741, 742 (Ky. Ct. App. 1924) (“ There 8
is no dissent from the rule that an easement for the benefit of a particular piece of 9

land cannot be enlarged and extended to other parcels of land, whether adjoining or 10
distinct tracts to which the right is not attached.”). In the present case, OMC claims 11
the right to use the Condominium Property Easement based on (1) the language of 12
the Condominium Property Easement, and (2) cases from other j urisdictions holding 13
that dominant easement holders can permit use of the servient pro perty under some 14

circumstances. 15

{ 11 } Beginning with the language of the easement, OMC argues that the 16
Condominium Property Easement does not limit use of the easement “for a specific 17
purpose or a specific number of people or vehicles
, ” and its purpose “is expressly 18

stated as ‘non

- exclusive access

- egress. ’ ” We agree with OMC that “the purpose of 19

the access would include access in order to use the easement in a m anner that is 2010 reasonably necessary for the full enjoyment” of the Condominium Property 1
Easement by the dominant estate ( 613 Old Santa Fe Trail )

. See City of Rio Rancho
, 2

2011

- NMSC

- 037, ¶ 33. We disagree, however, that generally an easement permits 3

all uses that it fails to specifically limit or prohibit, and here, the Condominium 4
Property Easement is not silent. The language of the Condominium Property 5
Easement not only does not give the dominant estate (613 Old Santa Fe Trail) the 6
right to allow third parti es to use the easement to benefit other premises, it explicitly 7
states that it “shall serve only” the domina n t estate ( 613 Old Santa Fe Trail ) . Thus, 8
the language of the Condominium Property Easement does not grant “a more 9

extended right of use” in order to benefit premises other than the dominant estate 10
(613 Old Santa Fe Trail). See Jordan , 745 S.W.2d at 553; see , e.g. , Dethlefsen v. 11

Weddle , 20 12

- NMCA

- 077, ¶ 12, 284 P.3d 452 (“[T]he written language of an 12

easement should be conclusive.”). 13

{ 12 } Defendant OMC cites authorities in which the dominant estate was permitted 14
to allow third parties to use an easement in order to benefit the dominant est ate. See 15

Weeks
, 941 So. 2d at 267, 269, 271

- 72 ; Fruth Farms, Ltd. v. Vill

. of Holgate , 442 F. 16

Supp. 2d 470, 474

- 75, 477 (N.D. Ohio 2006); Cellco P’ship v. Shelby C nty. , 172 S.W.3d 17

574, 581, 584, 597 (Tenn. Ct. App. 2005) ; Gowen v. Cote
, 875 S.W.2d 637, 639

- 42 18

(Mo. Ct. App. 1994)

. These cases address the use of the easement either by guests or 19

invitees to a dominant estate or for the enjoyment of new developments on the 2011 dominant property. OMC seeks to extend these cases to permit the dominant estate 1

to grant others access to the easement across the servient estate in order to reach a 2

different property. OMC argues that the dominant estate ( 613 Old Santa Fe Trail ) 3
benefits from OMC’s use, because OMC agreed to pay $5,000 and expenses for the 4
Wedge Easemen t. As we explain, extending these cases as OMC suggests

— fee 5
notwithstanding

— disregards the general rule that easements cannot be used to 6
benefit property that is not appurtenant to the easement. See 28A C.J.S. Easements 7

§ 226. Two cases illustrate the dist inction between this general rule and the cases on 8

which OMC relies. 9

{ 13 } OMC has repeatedly cited Arcidi v. Town of Rye
, 846 A.2d 535 (N.H. 2004). In 10

Arcidi , the dominant easement owner, identified as VPI , had an easement to use the 11

plaintiff’s property to access VPI’s property (access easement). Id. at 697, 699. VPI 12

additionally gave the town an easement to build a pump station on VPI’s property 13

(pump station easement). Id. at 697. The plaintiff argued th at the town had no right to 14

use the access easement, and the Arcidi court held that “ VPI, as the dominant estate 15
holder, may authorize others, such as the town, to use the appurtenant easement over 16

the plaintiff’s property[, and t]hus, the town has the rig ht to use the [appurtenant] 17
easement over the plaintiff’s property because VPI has permitted it to do so.” Id. at 18

698, 701. The Arcidi court applied this legal principle because the factual 19

circumstances supported it ; the third party, the town, used the ea sement over the 2012 plaintiff’s property in order to access its development, which was on the dominant 1
estate. In the present case, OMC used the Condominium Property Easement to cross 2

the dominant estate (613 Old Santa Fe Trail) to access a different property (621 Old 3
Santa Fe Trail)

. 4

{ 14 } Occupying the other, more relevant sphere is Southwick v. Planning B oar d of 5
Plymouth
, in which a town held an easement over private roads that were 6

appurtenant to a lot owned by the town. 839 N.E.2d 351, 35 3
, 355 (Mass. App. Ct. 7
2005). The lot owned by the town abutted another parcel that was landlocked with 8

no right to access the private roads. Id. at 352

- 53. A developer intending to build a 9

subdivision on the landlocked parcel obtained a separate easement from th e town to 10

access the lot owned by the town, but access to the proposed subdivision would have 11

also required use of the town’s appurtenant easement over the private roads. Id. at 12

353

- 54. The proposed subdivision developer relied on the minimal burden it cla imed 13
would be placed on the easement by extending its use for the benefit of two 14

additional lots. Id. at 354. The Southwick court concluded that the developer’s 15

argument confused “the question of overburdening an easement by frequency, type 16
or intensity of use” with “the question of which land may enjoy the benefit of an 17

appurtenant easement.” Id. (emphasis added). The Southwick court explained that 18

the proposed subdivision developer had “demonstrated no legal right to use any 19
portion” of the town’s road easement. Id. at 35 5 n.13. 2013 { 15 } The present case more closely resembles Southwick than Arcidi . The Arcidi 1

court and the courts in the other cases cited by OMC considered whether a dominant 2

easement owner could allow others to use the easement to access the dominant 3
easement owner’s property. In the present case, however, the dominant easement 4
owner (613 Old Santa Fe Trail) has all owed OMC to cross the Condominium 5
Property Easement to access property that is not the dominant estate or appurtenant 6
to the Condominium Property Easement. This scenario is similar to Southwick , in 7
which the town permitted the proposed subdivision develope r to use the town’s 8
easement over the private roads, together with a separate easement over the town’s 9

property, to reach the landlocked subdivision property. The separate easement over 10
the town’s property did not give the developer the right to use the pr ivate road 11
easement, which had been granted to the town by the servient estate solely to access 12

the town’s property. Just as the developer in Southwick could not use the private road 13
easement because the landlocked property was not appurtenant to the priva te road 14
easement, OMC has no right to use the Condominium Property Easement

— 15

notwithstanding the Wedge Easement

— to reach 621 Old Santa Fe Trail, because 16
621 Old Santa Fe Trail is not appurtenant to the Condominium Property Easement. 17

Because, as a matter of law, OMC had no right to use the Condominium Property 18

Easement in order to reach 621 Old Santa Fe Trail, we reject OMC’s primary basis 19

for challenging the district court’s grant of summary judgment. 2014 { 16 } OMC additionally contends that disputed material fa cts demonstrated that 1

OMC’s use of the Condominium Property Easement was reasonable and challenges 2

(1) the quality of the evidence submitted by the Associati on to support summary 3
judgment; (2) the Association’s failure to address OMC’s affirmative defenses 4
relating to the impact of the Wedge Easement, failure to join the owners of 613 Old 5

Santa Fe Trail, and the acts or omissions of other parties; and (3) OMC’s request t o 6

conduct additional discovery. Each of these arguments is based on the relevance of 7

additional disputed facts or a need for more evidence. Our analysis of the 8

Association’s trespass claim, however, relies entirely on OMC’s undisputed use of 9

the Condominium Property Easement and conclud es OMC had no legal right to do 10

so. No additional facts or evidence are relevant. OMC had no legal right to use the 11

easement, and the district court properly granted summary judgment on the 12

Association’s trespass claim. We therefore affirm the district cou rt. 13

II. The District Court Did Not Abuse Its Discretion in Dismissing the 14 Association’s Remaining Claim Without Prejudice 15

{ 17 } OMC additionally argues that the district court abused its discretion to grant 16
the Association’s motion to dismiss the remaining claim without prejudice. “An 17
abuse of discretion will be found when the district court’s decision is clearly 18
untenable or contrary to logic and reason ” or when the district court “ exercises its 19

discretion based on a misunderstanding of the law.” Trinosky
, 2011

- NMCA

- 045, 20

¶ 23 (alteration, internal quotation marks, and citations omitted). OMC contends that 2115 “[t]he district court abused its discretion by granting [the Association’s] motion to 1
dismiss without prejudice because it is ‘clearly untenable’ and ‘contrary to logic and 2

reason.’” Specifically, OMC argues that “[t]he equities in this case favor[ed] 3
dismissal with prejudice,” because (1) the Association could not produce evidence 4
to support its claim to force OMC to build a barrier ; (2) OMC had already expended 5
significant time and money in its defense ; (3) the Association hoped to refile before 6
a more favorable judge ; and (4) the Association identified no equities supporting 7
dismissal without prejudice. OMC’s arguments do not suggest th at the district court 8
misapprehended the law, so we consider only whether the decision to dismiss 9
without prejudice was contrary to logic and reason. 10

{ 18 } Rule 1

- 041(A)(2) NMRA permits the district court to dismiss an action “on 11
motion of the plaintiff . . . upon such terms and conditions as the court deems 12

proper.” According to the rule, “ [u]nless otherwise specified in the order, a dismissal 13
under this paragraph is without prejudice.” Id. The district court indicated at the 14
hearing that it saw no prejudic e to OMC in granting the Association’s motion, 15

because regardless of whether the claim was dismissed with or without prejudice, 16
the Association could refile a trespass claim if trespass by third parties was ongoing. 17
The district court’s ruling was permissi ble under Rule 1

- 041(A)(2) and not contrary 18

to logic and reason. We therefore affirm the grant of the Association’s motion to 19
dismiss the remaining claim without prejudice. 2016 CONCLUSION 1

{ 19 } For the reasons stated herein, we affirm the district court. 2

{ 20 } IT IS SO ORDERED. 3

_________________________________ 4 KATHERINE A. WRAY , Judge 5

WE CONCUR: 6

_________________________________ 7 SHAMMARA H. HENDERSON , Judge 8

_________________________________ 9 JANE B. YOHALEM , Judge 1017 A PPENDIX A