## Facts

- Martin E. Romero and Dennis C. Romero and Ronald Bernell held undivided interests in a tract of land in Taos County, New Mexico, as tenants in common.
- The Romeros sought partition of the co-owned tract under New Mexico’s partition statute, NMSA 1978, § 42-5-1, requesting division according to the parties’ respective interests.
- Bernell opposed partition, asserting the land’s principal value was for potential wind-farm development and arguing that “wind power rights,” like mineral rights, were not capable of partition.
- Bernell also contended partition could disadvantage him if the Romeros developed wind power on their portion without including his share.
- After removal to federal court and joinder of an additional party as a third-party defendant, the district court heard briefing and argument on the petition to partition.

## Issues

1. Whether a cotenant’s asserted interest in potential future wind-power development can prevent partition under NMSA 1978, § 42-5-1.
2. Whether wind should be treated like minerals in situ so that “wind rights” constitute a non-partitionable interest that defeats partition of the surface estate.
3. Whether speculative future economic disadvantage from divided ownership qualifies as “great prejudice” sufficient to deny partition.

## Decision

- The court granted the petition to partition.
- It held that an inchoate interest in potential wind-power rights does not bar partition under New Mexico law.
- It rejected the analogy between wind and minerals in situ, concluding minerals provide an ill-fitting framework for analyzing wind.
- It treated wind more like water: any right to harvest wind is use-dependent and does not vest as a present, severable property interest absent actual appropriation or use.
- It concluded that speculative future business disadvantages did not amount to “great prejudice” or otherwise justify denying a cotenant’s right to partition.

## Legal Principles

- Partition is strongly favored under New Mexico law; a cotenant is entitled to partition as a matter of right, not merely within the court’s discretion.
- Partition may be denied only on narrow grounds (e.g., conflict with public policy, legal or equitable principles, or waiver by agreement).
- An unexercised, potential interest in harvesting wind is inchoate and does not constitute a present vested estate that can defeat partition of co-owned land.
- Speculative or contingent future economic impacts from possible development plans are insufficient, without more, to establish the “great prejudice” required to deny partition under § 42-5-1.

## Conclusion

The court ordered partition of the co-owned land, holding that prospective wind-farm value and an asserted, unvested interest in harvesting wind do not provide legal or equitable grounds to defeat a cotenant’s statutory right to partition.


Romero v. Bernell, 603 F. Supp. 2d 1333 (D.N.M. 2009)