Court overturns easement ruling

A New Mexico appellate court last week unanimously overturned a district court decision that ruled Quay County didn't hold an easement over a section of road that was re-routed almost 70 years ago.

Barring an appeal to the New Mexico Supreme Court, Wednesday's ruling would allow the McFarland Land and Cattle Inc. to reinstate a five-figure lease with defendant Caprock Solar, a division of Duke Energy, to use the road so it can access its solar farm near Mesa Redonda. The 25-megawatt solar array used by Western Farmers Electric Cooperative can power about 5,000 homes.

The 13-page ruling, filed Wednesday, was written by Megan Duffy, with fellow appellate judges J. Miles Hanisee and Zachary Ives concurring. The ruling stated that remaining theories by the defendants and county not ruled on by the district judge could be remanded for consideration.

The county's attorney, Warren Frost of Logan, stated in an email Wednesday he didn't agree with the decision and would appeal.

The defendants' other lawyer, Joseph Werntz of Albuquerque, declined comment in an email Wednesday but stated he would not appeal. When informed about Frost's vow to appeal, Werntz replied: "Well, maybe he will convince me to join him."

McFarland Land's original attorney in the case, Donald Schutte of Tucumcari, died last February.

Kelly McFarland, owner of McFarland Land and Cattle, said by phone Wednesday he hadn't yet found an attorney to replace Schutte.

McFarland declined to comment on the case.

Original case

The road involved is Quay Road AI, south of where Highway 278 turns east in the southern part of the county. Quay Road AI originally crossed an arroyo over a wooden bridge, but a flash flood washed out the span in 1954.

According to court filings, the road was re-routed about 100 feet west onto McFarland's land and contains a concrete low-water crossing.

McFarland's neighbors to the south allowed Caprock to construct a solar farm on their land and entered into a sublease with the county to finance the project. To access that property, Caprock and its general contractor, Swinerton Builders, were forced to use the low-water crossing on McFarland's land.

McFarland requested compensation from Caprock and Swineton for their use of that section of road with a $20,000 initial payment and $15,000 annually for 25 years.

The county sent McFarland a cease-and-desist letter, stating it had no right to charge for the use of the road.

McFarland responded with a permanent injunction against the defendants, claiming the low-water crossing was on private property and they didn't have permission to use it. The defendants replied that McFarland's claims were barred due to a prescriptive easement and that the public had the right to use Quay Road AI.

McFarland's initial lawsuit was filed in August 2016.

Quay County District Judge Matthew Chandler in May 2018 found in favor of the defendants and county after a bench trial.

Schutte appealed the case later that month, and final briefs were submitted to the Court of Appeals about 10 months later.

Appeals case

The appellate court said the defendants failed to prove by "clear and convincing evidence" the easement for the low-water crossing was established.

It stated "no history of general public use" was found with the crossing, despite the road being listed on the annual certifications since 1956 and the county performing regular maintenance.

McFarland's ranch manager, who'd been employed there for 16 years, testified he never saw strangers near the low-water crossing and only neighbors.

Kelly McFarland testified he never saw anyone crossing his land except neighbors and occasionally their contractors.

When asked in court whether the property was public, McFarland answered: "Absolutely not, they did not want strangers out there on that land."

A neighbor to McFarland also testified the only strangers he saw on the property in 30 years were deer hunters who had permission to be there.

The county's road supervisor, the now-retired Harry Heckendorn, testified the road was "low traffic," and only those who had business there would use it.

A county road worker testified he never saw anyone on the road he didn't know.

"This Court has made clear ... that use by neighboring property owners and their invitees is not sufficient to establish public use of the road," the appellate ruling stated. "From the testimony elicited at trial, public use of QR AI might have amounted to five to ten times over an approximate thirty-year period. There was no other evidence of actual use of the road by the general public, particularly within a prescriptive period."

The road today

One day after the ruling, a drive down the dirt-and-gravel Quay Road AI soon revealed a home with a sign on a nearby fence that read "Slow down," along with another that warned motorists to be aware of children playing. A speed bump also was constructed on the road near the house.

Further south was a chained but unlocked gate across the road. The solar farm could be seen in the distance, shining like a sun-reflected lake near Mesa Redonda.

Less than a mile south, the road curved gently west into a gulley with the low-water bridge. Nearby was a "No trespassing; private property" sign. In smaller letters read "Admittance only by written permission," then in red letters "Duke Energy does not have permission" and signed by "McFarland Land & Cattle Company."

Buzzards roosted on remnants of the long-defunct bridge that washed away in 1954.

About 1,000 feet south were more gates and more "no trespassing" signs.

During the entire 30-minute period on the road, no other vehicles were encountered.