## Facts

- Albert Simms owned a tract of land with a road running east–west along the tract’s northern border.
- In 1953, Simms granted a right-of-way easement over that road to a group of homeowners whose lots lay north of the road (Group One), and to their “heirs and assignees.”
- Group One’s lots touched only part of the road, but the 1953 written grant described the easement as covering the entire road.
- A separate set of landowners (Group Five) owned lots also north of the road and adjacent to Group One’s lots.
- John and Marilyn Luevano later succeeded to Simms’s tract.
- In 1987, the Luevanos built a fence along the north edge of the roadway, blocking Group Five’s access to the rear of their homes.
- The Luevanos filed a quiet title action seeking to extinguish the portion of the road easement that ran behind Group Five’s homes.
- After the lawsuit began, two Group One members, William and Sophia Padilla, executed an “assignment” of their easement rights to Group Five.
- Group Five argued that the 1953 grant’s reference to “heirs and assignees” showed the easement was intended to be freely assignable.
- The trial court granted summary judgment to Group Five, ruled the assignment valid, and ordered the Luevanos to remove the fence.
- The Luevanos appealed.

## Issues

1. Whether the trial court’s summary-judgment order requiring removal of the fence was a final, appealable order.
2. Whether the 1953 road easement was appurtenant or in gross, and, based on that characterization, whether Group Five could obtain a valid easement by assignment from the Padillas (Group One).

## Decision

- The Court of Appeals held the order was final and appealable because it fully resolved the dispute between the Luevanos and Group Five and commanded immediate relief (removal of the fence).
- The court reversed the summary judgment for Group Five and remanded for further proceedings on issues not reached in the trial court.
- The court held the 1953 road easement was an easement appurtenant benefiting the Group One parcels, not an easement in gross.
- Because the easement was appurtenant, it could not be severed from the Group One dominant estates and assigned to Group Five to create easement rights for different parcels.
- The phrase “heirs and assignees” did not convert the easement into a personal, freely transferable right; it was consistent with an appurtenant easement passing with transfers of the dominant land.

## Legal Principles

- An easement appurtenant benefits a particular dominant estate, runs with that land to successors, and generally cannot be transferred apart from the dominant estate.
- An easement in gross is a personal right not tied to ownership of a dominant parcel; courts do not treat an easement as in gross unless the instrument and circumstances clearly show that intent.
- When a grant is ambiguous as to whether an easement is appurtenant or in gross, New Mexico law favors construing it as appurtenant.
- Standard deed phrasing such as “heirs and assignees” is consistent with an appurtenant easement running with the dominant estate and does not, by itself, authorize detaching the easement and transferring it to benefit unrelated land.
- An appurtenant easement may not be expanded by assignment so that it benefits additional parcels beyond the original dominant estate.

## Conclusion

The New Mexico Court of Appeals reversed the summary judgment that enforced an assignment of a 1953 road easement to neighboring owners, holding that the easement was appurtenant to Group One’s parcels and could not be separated from those parcels to benefit Group Five; the fence-removal order was appealable and the case was remanded for remaining issues.


Luevano v. Group One, 779 P.2d 552 (1989)