Starks v. White, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT STARKS,

Plaintiff - Appellee,

v.

RANDOLPH "DUKE" WHITE,

Defendant - Appellant,

and

WILLIAM LOGAN; DAVE

CORDOVA; JOHN DOE, AND

OTHER UNKNOWN AND

SIMILARLY SITUATED PERSONS

ACTING IN CONCERT WITH THE

ABOVE NAMED PARTIES,

Defendants.

No.
name="1">01-2309

D.C. No. CIV-98-630-JC

(D. New Mexico)

ORDER AND JUDGMENT
name="txt*">(*)

Before MURPHY, ANDERSON, and

HARTZ, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is

therefore ordered submitted without oral argument.

This action was initiated by Robert Starks, fee simple owner of property

called Ute Mountain Ranch in Taos County, New Mexico, in an effort to enjoin

certain trespassers from coming onto his property and to quiet title to the land.

He also sought damages for the destruction of his fences and the diminution of his

property's value. Defendants initially included three named defendants and the

Ghost Clan of the Native American Church. The Clan was subsequently

dismissed and the Secretary of the Interior added because of a scenic easement

granted to the United States (Bureau of Land Management) by a previous

landowner.

Multiple complaints, answers, counterclaims, as well as numerous motions,

both procedural and dispositive, were filed during the course of this litigation.

We need not review each in detail, inasmuch as the parties are intimately familiar

with one another's arguments. Prior to trial, Starks settled with the Bureau of

Land Management and the individual defendants except White, who proceeds pro

se. The district court granted summary judgment in favor of Starks on White's

claim of adverse possession and a private prescriptive easement. Following a

bench trial, the court entered judgment for Starks on the remaining claims. We

have jurisdiction, and we affirm.

I. BACKGROUND

In 1995 Starks purchased the Ute Mountain Ranch, consisting of

approximately 15,000 acres of mostly wild and uninhabited land. The property

was subject to a scenic easement which borders the Costilla Creek and Rio

Grande River Gorges, south of and adjoining the New Mexico/Colorado state line.

Prior to Starks's purchase of the property, Ute Mountain Ranch was open and

unfenced. Local residents had used the area for recreational purposes, and White

had picnicked and camped on the property. White also claimed to have conducted

religious meetings and ceremonies as part of his connection to the Ghost Clan of

the Native American Church.

Shortly after purchasing the property, Starks discovered a number of

slaughtered deer on the ranch. This prompted him to construct a barbed wire

fence along the northern boundary of the property. Defendant White and others

cut the fence a number of times, expressly for the purpose of entering the ranch.

Fence posts were also taken. Eventually some or all of the individual defendants

erected their own locked gate at the entrance to a ranch road called Old Road.

Defendants claimed they had the right to access the property based on several

legal theories, chiefly prescriptive easements, easement by necessity, adverse

possession, and the existence of a public highway.

In October of 1999, the district court granted partial summary

judgment to

Starks on White's counterclaims of adverse possession and private prescriptive

easement. Specifically, the court found that White had failed to establish the

elements of adverse possession under New Mexico law, which requires "color of

title, acquired in good faith, with open, exclusive, notorious, continuous, and

hostile possession, and payment of taxes for the statutory period [of ten years]."

Aplee. Br., Attach. A at 6 (quoting Castellano v. Ortega, 770 P.2d 540, 541

(N.M. Ct. App. 1989). The court also determined that White could not claim both

a private and a public prescriptive easement because findings of private and

public use are inconsistent. The court noted there was undisputed evidence of

public use in this case. Id. at 4. The court also held that White could not

establish the existence of a public road created by state law or maintained by the

corporate authority of a New Mexico county. See N.M. Stat. Ann.

§ 67-2-1

(listing methods for establishing public highways).

The court denied Starks's motion for summary judgment on White's claims

of a public prescriptive easement, public highway established by implied

dedication, and creation of an easement by necessity. Aplee. Br., Attach A at 3-9.

These issues were tried to the court in November of 2000 and resolved in favor of

Starks by the court's Findings of Fact and Conclusions of Law entered July 2,

2001, Amended Judgment filed September 20, 2001, and Judgment, Decree and

Entry of Permanent Injunction entered October 30, 2001. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.
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II. Appeal Deficiencies

White has failed to clearly set forth the precise issues he would raise on

appeal. In addition he has not furnished us with specific references to the

voluminous record amassed in this case, nor has he provided this court with the

trial transcript. Finally, he has violated the rule requiring him to cite legal

authority in support of his arguments. See Phillips v. Calhoun, 956 F.2d 949,

953-54 (10th Cir. 1992). Thus our review of this matter is considerably

hampered, and, consequently, necessarily limited. We will not sift through the

record to find support for White's arguments, see SEC v. Thomas, 965 F.2d 825,

827 (10th Cir. 1992), nor will we craft his arguments for him. See Perry v.

Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999). "[A]n appellant's pro

se

status does not excuse the obligation of any litigant to comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure."

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

III. Standards of Review

With these principles in mind, we review the district court's findings of

fact for clear error and its legal conclusions de novo, bearing in mind that the

underlying dispute is governed by New Mexico law. See Keys Youth Servs, Inc.

v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001) (reviewing factfindings

for clear error and legal conclusions de novo in appeal from bench trial); Salve

Regina Coll. v. Russell, 499 U.S. 225, 231 (1991) (reviewing de novo district

court's rulings on issues of state law). With regard to issues determined on

summary judgment, "[w]e review the district court's grant of summary judgment

de novo, applying the same legal standard used by the district court." Simms v.

Okla. ex. rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999).

IV. Analysis

A. Private Prescriptive Easement

White alleges the district court erred in granting summary judgment against

him on his private prescriptive easement claim in favor of allowing him to

proceed on the claim of a public prescriptive easement. He appears to argue that

because several of his witnesses testified that they personally had used roads on

the Ute Mountain Ranch, he has established the existence of one or more private

prescriptive easements. To the contrary, this testimony merely reinforces the

district court's determination that there was evidence of public use.
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A finding

that the general public has used the road is inconsistent with the conclusion that a

private prescriptive easement has been established. Luevano v. Maestas, 874 P.2d

788, 796 (N.M. Ct. App. 1994) (following Garmond v. Kinney, 579 P.2d 178, 179

(N.M. 1978)). This is further supported by White's insistence that one or more of

the ranch roads are in fact public roads. See Trigg v. Allemand, 619 P.2d 573,

579 (N.M. Ct. App. 1980) (describing private ways as class of easements in which

particular person or class of persons have interest or right distinguished from

general public and public ways as ways every citizen has right to use). The

district court therefore correctly restricted the claim at trial to whether a public

prescriptive easement had been established.

The next issue is whether the district court erred in determining that White

had failed to establish the elements of a public prescriptive easement under New

Mexico law. Such an "easement is acquired by an open, uninterrupted, peaceable,

notorious, adverse use, under a claim of right, and continued for a period of ten

years with the knowledge, or imputed knowledge of the owner." Sanchez v. Dale

Bellamah Homes of N.M., Inc., 417 P.2d 25, 27 (N.M. 1966) (citing Hester v.

Sawyers, 71 P.2d 646 (N.M. 1937)). Each element required to establish a

prescriptive easement must be proved by clear and convincing evidence. Scholes

v. Post Office Canyon Ranch, Inc., 852 P.2d 683, 684 (N.M. Ct. App. 1992).

White bases his easement claim primarily on use for a period of ten years

with the knowledge, actual or imputed, of the owners of Ute Mountain Ranch.

New Mexico courts have held that "[i]n the absence of proof of express

permission, the general rule is that the use will be presumed adverse under claim

of right." Id. (further quotations omitted). An exception to this presumption,

however, is the neighbor accommodation principle applicable "where large bodies

of privately owned land are open and unenclosed, [because] it is a matter of

common knowledge that the owners do not object to persons passing over them

for their accommodation and convenience . . . ." Hester, 71 P.2d at 651. Under

such circumstances, it would be unjust and unreasonable for a person using a way

over lands to acquire any permanent right "unless his intention to do so was

known to the owner, or so plainly apparent from acts that knowledge should be

imputed to him." Id. Furthermore, what begins as "permissive use does not

become adverse until a distinct and positive claim of right hostile to the owner is

brought home to the owner by claimant's words or action." Castillo v. Tabet

Lumber Co., 406 P.2d 361, 362 (N.M. 1965). And, "[a] prescriptive right cannot

grow out of a strictly permissive use, no matter how long the use." Hester, 71

P.2d at 651.

Here, the land in question is largely open range, which was unfenced until

1996. No prior owner has ever resided on or developed the property. No witness

had seen anyone claiming to be the owner, and White himself testified that for

some time he did not know who owned it. R. Vol. V at 24-25. His claim that the

owners had knowledge the roads were being used is based on the fact that there

are existing maps showing one or more of the ranch roads. That a map might

depict a particular road, however, is only one factor to be considered. See

Luchetti v. Bandler, 777 P.2d 1326, 1330 (N.M. Ct. App. 1989) (citing

Sanchez

for proposition that depiction of road on United States Geological Survey map

was only one factor in charging landowner with knowledge of road); Jicarilla

Apache Tribe of N. M. v. Bd. of County Comm'r, 862 P.2d 428, 438 (N.M. Ct.

App. 1993), rev'd on other grounds, 883 P.2d 136 (N.M. 1994) (same).

In considering the matter of road usage, the district court relied on evidence

and testimony concerning the visibility of the road's prior use as shown on

various aerial photographs, which were consistent with road use by prior owners

and family members of guests. The court further found that visible use of the

roads had diminished sufficiently over time as to be inconsistent with the required

open, continuous, and notorious use by the general public. The court also found

that the view of the nearest neighbor of any possible activities on the road was

blocked by Ute Mountain itself as further support of the nonvisibility of road use.

White does not challenge the factual accuracy of these findings by direct and

contrary citations to the record. See Harolds Stores, Inc. v. Dillard Dep't Stores,

Inc., 82 F.3d 1533, 1540 n.3 (10th Cir. 1996) (declining to consider issue where

appellant failed to provide specific record references). For these and the reasons

set forth in the district court's July 2, 2001, Findings of Fact and Conclusions of

Law, White therefore failed to meet his burden of establishing by clear and

convincing evidence the elements of a public prescriptive easement over any of

the Ute Mountain Ranch roads.

B. Public Highway by Implied Dedication

The district court also held that White had failed to prove the implied

dedication of a public highway, the essential elements of which are "acts by the

landowner that induced the belief the landowner intended to dedicate the road to

public use, the landowner was competent, the public relied on the acts and will be

served by the dedication, and there was an offer and acceptance of the

dedication." Luevano, 874 P.2d at 794. "The theory of implied dedication

. . .

rests on the presumption of an intent on the part of the landowner to devote his

property to public use." Id. (further quotation omitted). Specifically, the district

court concluded that no implied dedication had been shown because there was no

evidence that any public body had accepted or maintained any route or trail

within the ranch. In his appellate brief, White argues that the district court lacked

jurisdiction over the abandonment of roads as provided for in N.M. Stat. Ann.

§ 67-2-6. He does not, however, challenge the district court's application of the

Luevano requirements to the facts of this case as failing to establish the existence

of a public highway. Abandonment of a public highway cannot occur if there has

never been one in the first place.

C. Public Easement by Necessity

Finally, the district court determined that White had failed to prove the

necessary elements for a public easement by necessity. White does not

specifically challenge this ruling on appeal, and we therefore deem it waived. See

Utahns for Better Transp. v. United States Dep't of Transp., __F.3d__,

No. 01-4216, 2002 WL 31053978, at *8 (10th Cir. Sept. 16, 2002) (deeming

argument waived for failure to brief).

The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. We reject Starks's argument that we

lack jurisdiction over the October 30,

2001 judgment. White's notice of appeal, filed October 4, 2001, falls within the

coverage of Fed. R. App. P. 4(a)(2) (treating notice of appeal filed after decision

but before judgment as filed on date of and after entry of judgment).

2. Indeed, White has testified that many

people have used the Ute Mountain

Ranch roads. See Aplee. Supp. App., Vol. I at 157.

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