July 27, 2018
The first step in attempting to identify, resolve, or litigate an easement dispute is the same: investigate the issue. Determine if there are written documents, including deeds, surveys, or easement grants. A title search is usually imperative. The cost of the title search varies depending on numerous factors. It is also possible for a client to begin the title research him or herself by visiting the county clerk’s office. An accurate survey is also essential. Historical documents, particularly aerial photographs, are important if there is a dispute as to the location of the easement, the length of time during which the easement has existed, and the like. Many of these materials are now available on-line. They may also be available from the state highway department or from the Earth Data Analysis Center (EDAC) at the University of New Mexico, the USGS, and other federalagencies, such as the BLM.
If the dispute is currently “friendly,” it may be helpful for all parties involved to look at the property together to understand the lay of the land and what each party believes as to the nature of the easement (or lack of easement). If the relationship is contentious, a property visit should still be made. During a property visit, it is important to make a drawing or annotate a plat and take photos of the area. It is often helpful to measure the easement’s width and length.
The pleadings will be used to frame the case and are important in providing a notice of claim to both the other party and the other party’s insurer.
1. Filing of Notice of Lis Pendens
Litigation over easements and other property issues may result in the filing of a notice of lis pendens by the party seeking to place potential purchasers on notice of litigation affecting title to the 38-1-14. Notice of lis pendens; contents; recording; effect. In all actions in the district court of this state or in the United States district court for the district of New Mexico affecting the title to real estate in this state, the plaintiff, at the time of filing his petition or complaint, or at any time thereafter before judgment or decree, may record with the county clerk of each county in which the property may be situate a notice of the pendency of the suit containing the names of the parties
thereto, the object of the action and the description of the property so affected and concerned, and, if the action is to foreclose a mortgage, the notice shall contain, in addition, the date of the mortgage, the parties thereto and the time and place of recording, and must be recorded five days before judgment, and the pendency of such action shall be only from the time of recording the notice, and shall be constructive notice to a purchaser or encumbrancer of the property concerned; and any person whose conveyance is subsequently recorded shall be considered a subsequent purchaser or encumbrancer and shall be bound by all the proceedings taken after the recording of the notice to the same extent as if he were made a party to the said action. The lis pendens notice need not be acknowledged to entitle it to be recorded. Id., emphasis added.
An attorney who incorrectly files a notice of lis pendens is potentially subject to Rule 11 sanctions and a cause of action for malicious abuse of process. The New Mexico Court of Appeals in High Mesa Gen. P’ship v. Patterson, 2010-NMCA-072, addressed whether an attorney (and his client) who filed a notice of lis pendens from an administrative appeal following a County’s approval of a subdivision plat were subject to a claim for malicious abuse of process. It was undisputed that the parties filing the notice of lis pendens themselves did not claim title to or an interest in the subject property. Nevertheless, the Court of Appeals broadly construed the statute concluding “where a party has standing to file a lawsuit in district court affecting the title to real property, Section 38-1-14 allows for the filing of a notice of lis pendens in connection with the pending lawsuit,” without regard to the interest of the filer in the subject property. Id., ¶ 10. Because the “titles to the subdivided lots were clearly subject to change based upon the district court’s ruling in Patterson’s appeal … title was affected by the suit.” Id. at ¶15.
2. Causes of Action/Judge or Jury?
Litigation with regard to easements usually takes the form of either a quiet title or ejectment action, but may also be an action for declaratory judgment or trespass. A jury is not available for most claims related to what will ultimately amount to a declaration of easement (or, a declaration that no easement exists).
Easement litigation often begins with the need for a temporary restraining order. There is nothing unique about the burdens of the party seeking a TRO in the context of having an easement unblocked, a gate unlocked, and the like. Before seeking a TRO, the party needs to ensure that the facts support a TRO, and later a preliminary injunction. The battle over or against injunctive relief is important, as the prevailing party is the one who is able to establish a likelihood of success on the merits. If a party does not have adequate documentary support or testimonial evidence, thought should be given to taking discovery and conducting the necessary research before seeking injunctive relief.