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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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 JOHN POLK, 2 Plaintiff-Appellant, 3

v. NO. 32,297 consolidated 4 with NO. 32,427 5 DAVID AUBREY and JOYSREE 6 AUBREY, 7 Defendants-Appellees. 8 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 9 Sheri A. Raphaelson, District Judge 10 John R. Polk 11 David A. Archuleta 12 Albuquerque, NM 13 for Appellant 14 West Law Firm, PLLC 15 Judd C. West 16 Albuquerque, NM 17 for Appellees 18 MEMORANDUM OPINION 19 ZAMORA, Judge. 202 {1} John Polk (Plaintiff) appeals a judgment and final order of the district court 1 dismissing his claims for a prescriptive eas ement and an easement by implication over 2 a road located on property owned by Davi d and Joysree Aubrey (Defendants). We 3 affirm. 4 {2} Additionally, we are compelled to reiterate our concern about the practice of 5 some district courts adopting, verbatim, a prevailing party’s requested findings of fact 6 and conclusions of law. Los Vigiles Land Grant v. Rebar Haygood Ranch, LLC , 2014- 7 NMCA-017, ¶ 2, 317 P.3d 842. “This Court looks askance at wholesale verbatim 8 adoption of . . . requested findings of fact and conclusions of law[,]” because, “[t]his 9 practice can all too often result in unsupported, ambiguous , inconsistent, overreaching, 10 or unnecessary findings and conclusions.” Id. As a result, where appropriate, “we will 11 relax our usual deferential review.” Id. 12 BACKGROUND 13 {3} In 1949, Rex Shroyer and his wife (Shroyer) purchased several thousand acres 14 of land in Rio Arriba County and operated a cattle ranch on the property. In the late 15 1960’s, Shroyer began subdividing the land and building roads to prepare the land for 16 marketing. A portion of the Shroyer ranch was developed and became known as 17 Laguna Vista. Plaintiff acquired land in Laguna Vista in the early 1980’s. 183 {4} Plaintiff regularly accessed undeveloped areas of Laguna Vista, including one 1 road in particular, Sierra Leone Drive, wh ere he routinely hiked and ran his dogs. The 2 parcel of land containing Sierra Leone Drive does not adjoin Plaintiff’s property. At 3 the time Plaintiff began using Sierra LeoneDrive, Shroyer still owned the property. 4 Shroyer knew that Plaintiff and others used the road; however, during the period of 5 time relevant to this appeal, he did not obj ect or attempt to keep them from using it. 6 {5} In 2004, Defendants bought the parcel of land containing Sierra Leone Drive 7 from Shroyer. Subsequently, Defendants atte mpted to restrict access to the road by 8 erecting fencing and gate s. Plaintiff sent several letters to Defendants requesting that 9 he be granted access to Sierra Leone Drive. Eventually, Plaintiff filed a complaint for 10 declaratory judgment and injunction, asserting a claim to an easement over Sierra 11 Leone Drive, and requesting that the distri ct court issue a restraining order and an 12 injunction prohibiting Defendants from re stricting access to the roads on their 13 property. After a two-day benc h trial, the district court found that Plaintiff failed to 14 prove the necessary legal elements for an easement or that he had any other right to 15 access the property, and entered a judgment in favor of Defendants. This appeal 16 followed. 17 DISCUSSION 184 {6} On appeal Plaintiff argues that the distri ct court erred in fi nding that he failed 1 to establish prescriptive and implied easements over Sierra Leone Drive because he 2 has adversely used the road for recreati on and convenience and as part of a common 3 network of roads for more thantwenty years, and because the road has served as his 4 anticipated means of emergency egress. We disagree. 5 Standard of Review 6 {7} On appeal, we review the district c ourt’s findings to determine whether they 7 were supported by substantial evidence. Algermissen v. Sutin , 2003-NMSC-001, ¶ 9, 8 133 N.M. 50, 61 P.3d 176. We revi ew legal questions arising from a district court’s 9 application of law to the facts involvi ng the existence of an easement de novo. Skeen 10 v. Boyles, 2009-NMCA-080, ¶ 17, 146 N.M. 627, 213 P.3d 531. 11 Prescriptive Easement 12 {8} Plaintiff contends that he acquired three types of prescriptive easements over 13 Sierra Leone Drive: (1) a prescriptive eas ement for recreational use or convenience, 14 (2) a public prescriptive easement due to the fact that Sierra Leone was a part of a 15 common network of roads, and (3) a pres criptive easement for emergency egress. We 16 recognize that in addition to his claims of private prescriptive easements, Plaintiff 17 asserts the creation of a publicprescriptive easement, and th at the “[c]reation of such 18 an easement presents unique analytical problems (such as whether it amounts to a 195 taking of private property without compensation).” Algermissen , 2003-NMSC-001, 1 ¶ 10. As in Algermissen , and with the facts before us, our analysis of this type of 2 prescriptive easement is the sameas it would be if Plainti ff had only asserted a private 3 prescriptive easement. Id. Therefore, we analyze all of Plaintiff’s claims for 4 prescriptive easements together. 5 {9} “[A]n easement by prescription is created by an adverse use of land, that is open 6 or notorious, and continued without effec tive interruption for the prescriptive period 7 (of ten years).” Id. In order to establish an easement by prescription, each of the 8 elements thereof must be proved by clear and convincing evidence. Id. ¶ 9. With 9 regard to all three of Plaintiff’s claimed prescriptive easements , the central issue is 10 whether Plaintiff’s use of Sierra Leone Drive was adverse. 11 {10} Adversity or lack thereof is often difficult to prove. Id. ¶ 11. As a result, “a 12 series of presumptions are used” to accomplish that task. Id. Where there is no 13 evidence that a property owner has granted express permission to use the property, a 14 presumption of adversity applies. Id. ¶ 13. However, when determining whether a 15 plaintiff’s use was adverse, a property owner need not de monstrate express permission 16 in order to defeat a prescrip tive easement claim; the distri ct court may consider other 17 evidence of permission. Id. ¶¶ 12-13 (“[I]mplied permission is also permission 18 sufficient to rebut the presumption [of adverse use].”); see also Hester v. Sawyers , 196 1937-NMSC-056, ¶ 25, 41 N.M. 497, 71 P. 2d 646 (“If a use has its inception in 1 permission, express or implied, it is stamped with such permissive character and will 2 continue as such until a distinct and positiv e assertion of a right hostile to the owner 3 is brought home to him by words or acts.” (emphasis added)). If the presumption of 4 adversity is rebutted by evidence of express or implied permission, the plaintiffs still 5 must prove that their use was adverse. Algermissen , 2003-NMSC-001, ¶ 13. The issue 6 before the district court was whether Plain tiff initially made use of the road in a way 7 that was either adverse or that subseque ntly became adverse by the “positive assertion 8 of a right hostile to the owner” of the land. Hester, 1937-NMSC-056, ¶ 25

. 9 {11} In Algermissen, the district court found that property owners had given implied 10 permission to neighbors and members of the community to use their property for 11 various recreational activities. 2003-NMSC- 001, ¶ 15. This finding was supported by 12 evidence that the property owners would greet, wave to, and chat with people who 13 lived in the area, which our Supreme Court characterized as conduct “consistent with 14 permission.” Id. ¶ 14. Additionally, there was no evidence of hostility from the 15 property owners which would have rebutted the presump tion of implied permission. 16 Id. ¶ 15. As a result, the Court held that th e district court had properly presumed that 17 the plaintiffs’ use of the property was imp liedly permissive and remained so until the 18 property owners restricted access to the property. Id. In that case, implied permission 197 was presumed for most of the alleged prescriptive period, and the Court held that the 1 plaintiffs “could not have used the property adversely for the required prescriptive 2 period . . . and thus the [district] court was free to weigh this evidence more heavily 3 than the presumption of adverse use.” Id. 4 {12} In this case, during the alleged prescrip tive period, Plaintiff and other members 5 of Laguna Vista used Sierra Leone Driv e for recreation and convenience. Shroyer, 6 who owned the land during th at period, testified that he permitted specific Laguna 7 Vista residents to use the road, and knew thatothers were also using it. Shroyer also 8 testified that at one point, toward the be ginning of the alleged prescriptive period, he 9 erected a gate with a few feetof fencing on either side to keep hunters out of the area, 10 but that his intention was not to excludelocal residents from accessing the property 11 by foot. Though the gate was initially lockedtoward the beginni ng of the alleged 12 prescriptive period, Shroyer removed the lock after a short time (two to four years), 13 making the road accessible once again. 14 {13} Additionally, Plaintiff testified that Shroyer was aware that Plaintiff frequently 15 accessed the property, and that Shroyer did not object. In fact, Plaintiff testified that 16 he personally told Shroyer that he was “up there all the time” and that Shroyer offered 17 no objection. 188 {14} Because Shroyer made Sierra Leone Drive accessible for most of the 1 prescriptive period, and because he knew thatPlaintiff and others were using the road 2 and did not object to their use, we conclude that th e district court’s finding of 3 permissive use, as opposed to adverse use, is supported by substantial evidence. 4 Having properly found that Plaintiff’s uses of the road were not adverse for a 5 prescriptive period of ten or more years, weconclude that the district court properly 6 rejected Plaintiff’s claim of prescriptive easement, and affirm that conclusion here. 7 Easement by Implication 8 {15} Defendant claims an easement by implication over Sierra Leone Drive. 9 “Generally, the law does not favor claims of easement and the burden is on the party 10 asserting such . . . claim to prove it clearly.” Herrera v. Roman Catholic Church , 11 1991-NMCA-089, ¶ 11, 112 N.M. 717, 819 P.2d 264 (alteration inoriginal) (internal 12 quotation marks and citation omitted). An easement by implication arises out of 13 reasonable necessity “when there is no reas onable way to use the property without the 14 easement[.]” Winrock Inn Co. v. Prude ntial Ins. Co. of Am. , 1996-NMCA-113, ¶ 19, 15 122 N.M. 562, 928 P.2d 947. Because Plaintiff’s claim to an easement over Sierra 16 Leone Drive is not related to a landlocked parcel, we must determine whether an 17 easement over the road arises out of imp lication because Plaintiff cannot reasonably 189 use his property without the easement. In this context, the el ements to create an 1 easement by implication are: 2 (1) A separation of the title; (2) necessity that, before the separation 3 takes place, the use which gives rise to the easement shall have been so 4 long continued and obvious or manifest as to show that it was meant to 5 be permanent; and (3) necessity that the easement be essential to the 6 beneficial enjoyment of the land granted or retained. 7 Venegas v. Luby , 1945-NMSC-045, ¶ 14, 49 N.M . 381, 164 P.2d 584 (internal 8 quotation marks and citation omitted). 9 {16} We do not address the first and second elements because we conclude that the 10 third element is dispositive. The Plainti ff failed to establish that the easement was 11 essential to the beneficial enjoyment of his land. 12 {17} Plaintiff argues that his use of Sierra Le one Drive is necessary to the beneficial 13 enjoyment of his own property because: (1) hehas used the road to visit clients and 14 property owners on property to the west of Defendants’ land; (2) he has used the road 15 for recreational purposes for so long that he thought he would be permitted to do so 16 permanently; and (3) he planned to use the road as an alternative method of egress in 17 case of a fire. We are not persuaded. 18 {18} “The basis for an easement by implication must be reasonable necessity , as 19 distinguished from mere convenience [.]” Venegas , 1945-NMSC-045, ¶ 17 (emphasis 20 added) (internal quotation marks and citation omitted); see also Otero v. Pacheco , 2110 1980-NMCA-058, ¶ 5, 94 N.M. 524, 612 P.2d 1335 (stating that Venegasmakes it 1 clear that “reasonable necessity is not synonymous with mere convenience”). Here, 2 Plaintiff testified that: (1) on one occasion heused the Sierra Leone Drive to “consult 3 about some of th[e] area” and to show pe ople around and on another occasion, he used 4 the road for business related to the Jicarilla Apache Nation; (2) he enjoys using Sierra 5 Leone Drive to walk with hi s dogs; and (3) he traveled th e Sierra Leone Drive looking 6 for emergency egress and planned to use th e road as an emergency escape route. 7 {19} Notably, Defendants offered eviden ce of possible routes of egress from 8 Plaintiff’s property apart from Sierra Leone Drive. At trial, th e Captain of the Laguna 9 Vista Fire Department testified that the Fire Department’s current emergency exit 10 plans for Laguna Vista do not involve the us e of Sierra Leone Drive because the road 11 is inaccessible and would be dangerous as an escape route. 12 {20} From a review of the record, it appears that Plaintiff’s consistent use of the road 13 is for recreational purposes, to wit, walki ng his dogs. However, Plaintiff does not cite 14 any evidence in the record to support his claim that these uses of Sierra Leone Drive 15

are necessaryfor the beneficial enjoyment of his land or that there is no reasonable 16 way to use his property without the easement, and we have found none. 17 {21} Accordingly we hold that the district court did not err in rejecting Plaintiff’s 18 claim of easement by implication. See Santa Fe Exploration Co. v. Oil Conservation 1911 Comm’n , 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 (holding that where a 1 party fails to cite any portion of the recordto support its factual allegations, the Court 2 need not consider its argument on appeal); see also Muse v. Muse , 2009-NMCA-003, 3 ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for facts, 4 arguments, and rulings in order to support generalized arguments.”). 5 CONCLUSION 6 {22} For the foregoing reasons, we affirm the judgment of the district court. 7 {23} IT IS SO ORDERED. 8

_______________________________ 9 M. MONICA ZAMORA, Judge 10 WE CONCUR: 11

_________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13

__________________________________ 14 LINDA M. VANZI, Judge 15