1. Shared Easements
2. Supporting Documents
3. Easement No. 13 of 1965 and 1967
4. La Senda 1974 Resurvey
5. Tract "H" Subdivision of 1978
6. Equestrian and Bicycle Paths of 1974

1. Shared Easements
   
   An easement is a permission (a document) granted by the landowner A to the user B for the use of a right-of-way (real estate) owned by A. Any third party C wishing to use the property must obtain permission from the owner A. The easement holder B may not share (apportion) the easement unless the terms of the easement explicitly provide for sharing the easement with third parties. See the supporting documents below.
   
   
2. Supporting Documents
   
   
   1. THE LAW OF EASEMENTS AND LICENSES IN LAND .02[1], at 8-3 (rev. ed. 1995), Jon. W. Bruce and James W. Ely, Jr. In a leading treatise on the subject, the authors state the general rule regarding easements to be

      "[w]hen precise language is employed to create an easement, such terminology governs the extent of usage."

   2. Cox v. Hanlen, 953 P.2d 294, 302+, 124 N.M. 529, 537+, 1998-NMCA-015, 15+ (N.M.App. Nov 10, 1997) (NO. 17,594). A water case:
      
      
      "When construing a deed, the court will seek to ascertain the intention of the parties "viewed in light of the surrounding circumstances." Camino Sin Pasada Neighborhood Association v. Rockstroh, 119 N.M. 212, 214, 889 P.2d 247, 249 (Ct.App.1994) To determine the true intent of the parties, the court may look at all the evidence, extending beyond the four corners of the deed. See id. at 215, 889 P.2d at 250; see also Martinez v. Martinez, 93 N.M. 673, 675, 604 P.2d 366, 368 (1979)."
   
   
   3. Valencia v. Lundgren, 1 P.3d 975, 979, 129 N.M. 57, 57, 2000-NMCA-045, 045 (N.M.App. May 01, 2000) (NO. 20082), local copy, From KeyCite . Citations
      
      
      "A court should not look beyond the language in the deeds to determine the grantor's intent if the deeds are unambiguous. See Sanders v. Lutz, 109 N.M. 193, 195-96, 784 P.2d 12, 14- 15 (1989). The general rule in deed construction is that the grantor's intent is to be ascertained from the language employed in the deed or deeds, viewed in light of the surrounding circumstances."
   
   
   4. Differences Under the Law between PUBLIC Rights-of-way and Easements and PRIVATE Rights-of-Way and Easements (Brief "E-4").
   5. Definitions of Legal Terms (Brief "E-2").
   6. Apportionability in New Mexico (Brief "P-3").
   7. Cable Arizona v. CoxCom (case "P-8").
   8. Alert Cable v. CP Limited Partnership (case "P-5").
   9. Krohn v. Marcus Cable (case "P-6").


3. Easement No. 13 of 1965 and 1967.
   
   These are the private easements granted by the A. E. C. to Public Service Company of New Mexico (Exhibit "A-10", county document # 11677) and Mountain Bell Telephone Company (Exhibit "A-11", county document # 11731), which allowed the installation of poles, power lines, and telephone cables from near the intersection of Grand Canyon drive and Sherwood Boulevard to near the intersection of Monte Rey North and Piedra Drive. This serves to connect White Rock with Pajarito Acres. It traverses what has been developed into the La Senda and the Canada Way neighborhoods.
   
   
   1. The original granting of easements in these neighborhoods is described in "Survey of White Rock, County of Los Alamos, State of New Mexico" dated August 20, 1965 and on file as document number 4710 in the county clerk's office.
      
      
      1. Page 1 of document 4710 is presented as Exhibit "A-47". A detail of Exhibit "A-47" is presented as (Exhibit "A-12") and includes the following:
         
         
         "SPECIAL NOTE: Easements designated on the attached sheets, except for the 12' wide sewer line easement shown on pages 10, 11 & 12, have been granted by separate document and are shown herein for information. "
      
      
      2. Page 2 of document 4710 is presented as Exhibit "A-48". On the index on Page 2 (Exhibit "A-13") is shown the La Senda and Canada Way neighborhoods as Tracts A, B, G, and H, on Sheets 13, 14, 17, 18, 21, and 22.
      
      
      
      3. Page 3 of document 4710 is presented as Exhibit "A-49". It contains the legal description of the tracts.
      
      
      
      4. On page 17 detail shown as (Exhibit "A-14") and page 18 detail shown as (Exhibit "A-15") are shown the designation of the location of "12' wide Easement No. 13"
      
      
      
      5. On page 21 and page 22 are also shown the designation of the location of "12' wide Easement No. 13"
   
   
   2. In a special warranty deed in 1967 (Exhibit "A-7", county document # 11004) the United States of America conveyed Tract "A" of the above survey subject to:
      
      
      "There are hereby reserved to the United States of America its successors and assigns the following easements . . .
      (2) Easement number 13, to construct, operate, maintain, repair, replace, relocate and remove electric lines, facilities and appurtenances and telephone lines, facilities and appurtenances, whether underground or overhead."
      
      
   3. "Easement No. 13". Two similar private easements were granted by the U.S. Atomic Energy Commission to Public Service Company of New Mexico Exhibit "A-10" and to The Mountain States Telephone and Telegraph Company Exhibit "A-11".
      
      
      1. Note that these grants are narrow and specific private easements, and are not public easements. Note that the words "public" and "utility" do not appear in these documents except that "Public" is used as a proper noun in "Public Service Company of New Mexico".
      
      
      
      2. Both easements contain identical phrases:
         
         
         "For good and valuable consideration the Grantor hereby grants to the Grantee, subject to certain conditions, restrictions and limitations hereinafter stated, non-exclusive easements to construct, operate, maintain, repair, replace, relocate and remove..."
      
      

      3. Both easements are expressly non-exclusive and are therefore not apportionable. For a discussion of apportionability, see the attached "Apportionability in New Mexico" (Brief "P-3"). Both easements are assignable, but may not be subdivided or subleased. For the legal definition of "assign" and other terms, see the attached "Definitions of Legal Terms" (Brief "E-2").

         "Assignment: A transfer or making over to another of the whole of any property, ... The transfer by a party of all of its rights to some kind of property, usually intangible property such as rights in a lease, mortgage, agreement of sale or a partnership." Black's Law Dictionary, fifth edition
         
         
   4. The easement granted to Public Service Company was assigned to Los Alamos County when the county bought the electric power system from PNM.
   
   
   
   5. Easement No. 13 is not a public utility easement. It did not grant access to the Gas Company of New Mexico, nor for water nor sewer use. If the easement grantor had intended to grant a public utility easement, it could have produced a single document instead of the two private grant documents. Easement No. 13 is a private utility easement, granting access to the expressly described parties for the expressly defined purposes.


4. La Senda 1974 Resurvey is on six sheets from the county clerk as documents # 28264 and # 29088.
   
   
   1. Complete sheets are shown here.
      Tract A is on three sheets, Exhibit "A-38", Exhibit "A-39", Exhibit "A-40".
      Tract B is on three sheets, Exhibit "A-41", Exhibit "A-42", Exhibit "A-43".
   
   
   
   2. Details of the above plats are shown in (Exhibit "A-16") (Exhibit "A-17") (Exhibit "A-18") and La Senda Replat of Portion of Tract "B" (Exhibit "A-22") (Exhibit "A-23") (Exhibit "A-26") and Clarifications of Intents for Easements to Property on Replat of La Senda Tract "A" (Exhibit "A" county document # 140384).
   
   
   
   3. The easement granted as "Easement No. 13" is shown on the plats. On these latest replats, the dividing line between Tract "A" and Tract "B" is the centerline of Easement No. 13. It is described on the documents as:
      
      
      1. "… the centerline of a Public Service Company easement …" (Exhibit "A-41")
      
      
      
      2. "… Telephone and Public Service Co., utility easement" (Exhibit "A-16")
      
      
      
      3. "Easement No. 13 … Telephone and Public Service Company utility easement…" (Exhibit "A-23")
      
      
      
      4. "The Public Service Company easement to property along the boundary between Tract A and Tract B is granted only for electrical power transmission facilities. It does not grant access to any other party or for any other use or purpose. It does not grant a utility easement. It does not grant a public right of way or easement…." (Exhibit "A")
      
      
      
      5. "The telephone easement to property along the boundary between Tract A and Tract B is granted only for telephone facilities already established at the time of the filing of the Replat. It is granted only to Mountain Bell Telephone Company. It does not grant access to any other party or for any other use or purpose. It does not grant a utility easement. It does not grant a public right of way or easement…." (Exhibit "A")
      
      
      
   4. Utility Easements granted by the plats.
      
      
      1. Utility easements granted by these documents are wholly private. The following language is found on both plats (Exhibit "A-2"):
         
         
         "… further, the owners of this property do hereby grant to the County of Los Alamos, Mountain Bell Telephone Company (telephone), Public service Company of New Mexico (Electric), Southern Union Gas Company (gas) and the successors and assignees of each, utility easements, over, across, in and upon the real estate shown hereon, …."
      
      
      2. And the area of the utility easements (Exhibit "A-3") (Exhibit "A-4"):
         
         
         "Where each lot shown hereon shares a common boundary with a street there is a ten-foot-wide utility easement within each lot along said common boundary. Streets as shown hereon are designated for public use and may be used for utility purposes."
         
         The area granted in an easement must be described precisely. The plats do not grant easements except where described above. Germany v. Murdock, 99 N.M. 679, 681 (1983). Cited in Highway Properties v. Dollar Savings:
         "More specifically, in the context of a right-of-way, in Hoard v. Railroad Co., 59 W. Va. 91, 53 S.E. 278 (1906), we concluded that a deed which described the dimensions of a right-of-way, but failed to establish its beginning point, was insufficient to convey the right-of-way. See footnote 7. We stated this principle in Syllabus Point 1:
         "A deed granting to a railroad company land for its right of way must contain on its face a description of the land in itself certain, so as to be identified, or if not in itself so certain, it must give such description as, with the aid of evidence outside the deed, not contradicting it, will identify and locate the land, otherwise the deed is void for uncertainty."
         Other jurisdictions have evolved similar rules with regard to the sufficiency of the description of an easement created in a deed. One of the best summaries is given by the North Carolina Supreme Court in Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984):
         "When an easement is created by deed, either by express grant or by reservation, the description thereof 'must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. . . . There must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land.' Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942)." (Emphasis in original; citations omitted).
         See also Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 650 P.2d 432 (1982); Parkinson v. Board of Assessors of Medfield, 395 Mass. 643, 481 N.E.2d 491 (1985); Royse v. Easter Seal Soc'y for Cr. Children, 256 N.W.2d 542 (N.D. 1977); Germany v. Murdock, 99 N.M. 679, 662 P.2d 1346 (1983); Lewis v. Midgett, 448 S.W.2d 548 (Tex. Civ. App. 1969)."
      
      
      3. In the absence on the plats of specific provisions for apportionment, these utility easements are not apportionable, according to common law.
         
         
         31A TX Jur. 3d Easements and Licenses in Real Property § 71 (1994)
         
         
         "71. GENERALLY; EASEMENTS IN GROSS. At common law an easement in gross, being attached to the person, cannot be transferred to another. And it has been held in more recent times that easements in gross ordinarily are not transferable or assignable. On the other hand, there is authority that the parties may make an easement in gross assignable by the terms of the instrument creating the right, particularly where the easement is of a commercial character, such as an expansible pipeline easement or multiple lines grant.
         
         An easement verbally reserved is personal to its owner and cannot inure to the benefit of the owner's vendees."
         
         Cite by Texas AG,      Cite in Houston Pipe
      
      
      4. Being granted to specific parties, the easements are private utility easements, not public utility easements.
         
         
         1. See Brief "E-4" Differences Under the Law Between PUBLIC Rights-of-Way and Easements and PRIVATE Rights-of-Way and Easements -- a discussion.
         
         
         
         2. Exhibit "E-5" County map with public Rights-of-way in La Senda shown in yellow.
         
         
         
         3. Brief "E-6" Attorney General Opinion from Kansas: A utility easement that has been dedicated to a city is not a "public right-of-way".
         
         
         
         4. Exhibit "H-2" Excerpt from Comcast submittal to the FCC as Comments under CS Docket No. 95-184. In this submittal by Comcast to the FCC, Comcast Recognizes that many easements to private property are private Easements, and that most cable franchises do not authorize the cable operator to construct its system without the consent of property owners. Nor do the franchise agreements authorize the cable operators to use any easements other than public easements.
         
         
         
   5. Equestrian paths granted by the replats are limited to persons on horseback with the horses that they control, according to the above document Exhibit "A".
      
      
      "The equestrian easements are granted exclusively to persons on horseback and the horses that accompany them and that are under the direct control and responsibility of the rider. No equestrian easement grants a public right-of-way or easement. No equestrian easement grants a public area. No equestrian easement grants a public way."
      
      
   6. Bicycle Paths granted by the replats are limited to persons riding bicycles, according to the above document:
      "The bicycle easement is granted exclusively to persons riding bicycles. No bicycle easement grants a public right-of-way or easement. No bicycle easement grants a public area. No bicycle easement grants a public way."
      
      
5. Tract "H" Subdivision of 1978 (Exhibit "A-45", county document # 44695) and Lot 2 subdivision of Tract "H" of 1979 (Exhibit "A-46", county document # 46872)
   
   

   1. On the new plats, Easement No. 13 is described on the documents as:

      "6' Wide Easement No. 13" (detail shown in Exhibit "A-30" Tract "H" Subdivision of 1978)

      and

      "6' Wide Utility Easement No. 13" (detail shown in Exhibit "A-31" Lot 2 subdivision of Tract "H" of 1979)
   
   
   2. Utility easements granted by these documents are wholly private, as described in the following language found on both plats (Exhibit "A-32) (Exhibit "A-33"):
      
      
      "EASEMENTS Utility easements shown hereon are hereby reserved to the County of Los Alamos, Mountain Bell and Public Service Company of NM."
   
   
   3. In the absence on the plats of specific provisions for apportionment or assignment, these utility easements are neither apportionable nor assignable, according to common law.
      
      
      31A TX Jur. 3d Easements and Licenses in Real Property § 71 (1994)
      
      
      "71. GENERALLY; EASEMENTS IN GROSS. At common law an easement in gross, being attached to the person, cannot be transferred to another. And it has been held in more recent times that easements in gross ordinarily are not transferable or assignable. On the other hand, there is authority that the parties may make an easement in gross assignable by the terms of the instrument creating the right, particularly where the easement is of a commercial character, such as an expansible pipeline easement or multiple lines grant.
      
      An easement verbally reserved is personal to its owner and cannot inure to the benefit of the owner's vendees."
      
      Cite by Texas AG,      Cite in Houston Pipe
   
   
   4. These two plats grant no public easements or generic utility easements except for the streets.
   
   
6. Equestrian and Bicycle Paths of 1974.
   
   
   1. Brief "A-9" is a discussion of the bicycle path in the La Senda Neighborhood.
   
   
   
   2. During the planning and construction of the La Senda subdivision, equestrian and bicycle paths granted by the replats were discussed by the developer, the contractor, the County Surveyor, The County Engineer, the County Attorney, a contract attorney, the attorney for the developer, the Planning and Zoning Commission, and the County Planning Department.
   
   
   
   3. The private nature of easements is apparent. The only mention of access for cable television is the question of whether the streets would be available for the use of cable infrastructure.
   
   
   
   4. There was never a plan for sidewalks in the entire subdivision. The only pedestrian easement is in Tract B (document 29088, sheet 2 of 3 (Exhibit "A-24"). Excepting that single easement and the parks and streets, no facilities or easements for pedestrians have been provided.
   
   
   
   5. This is confirmed by an examination of the planning and permitting process as it occurred in the County during 1973 through 1977. Copies of the following documents were obtained from the County archives:
      
      
      1. In a letter from the Land Planning contractor to the Planning and Zoning Commission on September 12, 1973, the following improvements were itemized (Exhibit "U-2"):
         
         
         • - paved streets
         • - city water
         • - Armon sewage system
         • - underground utilities
         • - limited lighting
         • - equestrian trails
         • - bicycle paths
         • - no curb and gutter
         • - no sidewalks
         
         
      2. The Specifications and Contract Documents for Roads and Utilities, dated September 1973 (Exhibit "U-3") does not mention pedestrian ways or facilities. It specifies equestrian paths and bicycle paths.
      
      
      
      3. In a Memorandum dated December 3, 1973 from County Surveyor Joe A. Washburn to County Engineer Robert Blanton regarding Final Plat - La Senda, Tract A (Exhibit "U-4"):
         
         
         "The subdivision regulations state that 'No land which is burdened by any easement for any purpose shall be dedicated to the public,' (Sec. 8BK). I assume Southern Union Gas and the Public Service Co. have the right to use the public ways for utilities under their franchise. I wonder if this statement would allow others, such as cable TV, to use the streets for their lines."
      
      
      4. In a letter from the contractor to the developer dated March 11, 1974 (Exhibit "U-5"), Furnish and Install costs include descriptions of equestrian paths and bicycle paths, but nothing about pedestrian ways or facilities.
      
      
      
      5. In a letter dated May 8, 1974 from Abner Schreiber, County Attorney, to Edwin W. Stockly, attorney at law, regarding the La Senda Subdivision - White Rock, Pedestrian, Equestrian and Bicycle Paths (Exhibit "U-6"):
         
         
         "I hand you herewith a copy of Planning Director Pat Brown's memo to this office dated May 6, 1974, wherein he asks an opinion of this office relative to pedestrian, equestrian and bicycle trail "easements".
         
         From a review of this matter with Mr. Brown, I am left with the opinion that this trail is not an easement which has been conveyed to the County. I am of the further opinion that this may be a trail which is designated as such by the subdivider and is in the nature of a covenant that runs with the land."
      
      
      6. In a letter dated May 10, 1974 from Edwin W. Stockly, attorney at law, to Abner Schreiber, County Attorney regarding the La Senda Subdivision - White Rock, Pedestrian, Equestrian and Bicycle Paths (Exhibit "U-7").
         
         
         "Upon examination of the plat of Tract A, La Senda, I find no language conveying the equestrian easements or the bicycle path, and I am advised by the attorney for the subdivider that there has been no conveyance of the easements since the recordation of the plat. It is, therefore, my opinion that the easements in question are owned by the subdivider, Jemez View Investment Company, Inc.".
      
      
      7. In a Memorandum from County Surveyor Joe A. Washburn, L.S. to County Engineer Robert Blanton, PE. Tract A Final Plat review (Exhibit "U-8").
         
         
         "The new equestrian easements are not formally dedicated to anyone"
      
      
      8. In a letter dated August 11, 1977 from John P. Bradley, Los Alamos Public Services Director, to Mr. George Emanuel, President of the La Senda Property Owners Association (Exhibit "U-9").
         
         
         "We would suggest that when residents in La Senda observe motor vehicles on the bicycle path they report license numbers to the Police Department."
      
      
      9. Letter dated November 8, 1977, from La Senda Property Owners Association, David M. Lee, et al, to John Bradley, Public Service Director, County of Los Alamos (Exhibit "U-10").
         
         
         "…. As you know we do not have sidewalks…."
      
      
      10. Report to the Planning Commission by the Planning Department, 1977. Exhibit "U-11".
          
          
          "...utility easement areas ...are not designated as pedestrian walkways or paths."
          
          
          "The Plat Review and Interdepartmental Committees ... had the following comments: 1. Residents of the La Senda area were present at this meeting and expressed their strong objection to the development of a walkway, since it would only encourage people to cut across private properties in either La Senda or Valle del Sol;"
          
          
      11. Newsletter from La Senda Property Owners Association, 1977: Exhibit "U-12"
          
          
          "Posting of Stop signs warning motorists of the bike paths at Piedra Loop and La Senda Road."
          
          
      12. Newsletter from La Senda Property Owners Association, 1977: Exhibit "U-13"
          
          
          "We also requested motor vehicle impediments for the bike path that runs through La Senda."
          
          
      13. Newsletter from La Senda Property Owners Association, 1978: Exhibit "U-14"
          
          
          "1. Road striping where bicycle paths intersect Piedra Loop and and La Senda Road, and vehicle warning signs."
          
          
          "4. Install stop signs on the bike path where the path intersects the roads."
          
          

A-1.EasementDescription.html 8 April 2007 Brief A-1