Wood Cutters, Grazers, Loggers. . . Not So Fast There, Peak Baggers
The 80,000-acre Taylor ranch in the south of Colorado’s San Luis Valley has birds, mammals, fish, fresh streams, high lakes, tree-lined meadows, and tall pine forests, all crowned by 14,047-foot Culebra Peak.
Last month in the town of San Luis a district court judge issued an order opening the mountain ranch to a group of local people for livestock grazing, firewood gathering and timber cutting. Adam Saytanides, apparently the only journalist there, followed the resulting convoy of Sangre de Cristo land grant heirs to the ranch.
The steel gate, which had been locked to locals for 44 years, was open. The padlock was gone. One of the heirs drove through in a pickup with a chain saw in back, saying he had waited a long time for his first load of fire wood. Others were bantering about getting their cows on the road to the ranch that very day.
The order by Judge Gaspar Perricone of Costilla County applied only to the nine plaintiffs in the 23-year-old Lobato v. Taylor case, but eventually it will be extended to all local owners of property with title going back to the Sangre de Cristo grant. The judge ordered a title search, at government and Taylor ranch expense, to be completed in year for what likely will be the final order in the case. Lawyers for the current ranch owner, former Enron executive Lou Pai, have exhausted all appeals in the case.
The 98-page Colorado Supreme Court “Lobato” decision in June 2002 is worth study from the perspective of New Mexico, where the courts have been conservative in land grant cases, as were the trial court and the Colorado Court of Appeals in the Lobato case. But the Colorado Supreme Court followed a new (and apparently popular)liberal trend modifying one of the fundamental concepts of real estate law. It’s decision reversed the lower courts and now stands as an exception to the precedents of New Mexico case law.
The fundamental concept has to do with a kind of easement called profit à prendre, defined in the decision as “the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another.” Previously the right of “profit,” as the easement is called for short, required a more rigorous proof than the common sort of easement that gives access to, for example, cross a neighbor’s land with a road or a ditch.
In other words, profit easements could not be merely implied. Now they can be. “Although this court has not addressed implied profits for over thirty-five years, there is a modern trend to apply the same rules to easements of access and to profits,” says the opinion. . . .
The particulars in the Lobato case begin in 1844, when, according to standard histories, Gov. Manuel Armijo of Santa Fe handed out a land grant to Stephen Lee, the whiskey-making sheriff of Taos, and a boy named Narcisco Beaubien. Both died soon afterwards, and the boy’s father, Charles Beaubien, inherited his son’s half of the grant and bought the sheriff’s half for $100.
In 1860 the U.S. Congress generously confirmed the grant at 1 million acres. And in 1863, Beaubien signed a Spanish language document setting aside common lands for the use of new settlers who were at the same time given title to small farm plots, or varas, on the grant.
The translation used by the Colorado courts begins: “It has been decided that the lands of the Rito Seco remain uncultivated for the benefit of the community members (gente) of the plazas (towns) of San Luis, San Pablo and Los Ballejos.” The document goes on to apportion the water of the Rito Seco and the Rio Culebra, to donate three acres to the San Luis chapel and to set aside a meadow for common use. . . .
Interpretation of the language that came next is a key to the Lobato decision. There are two ways of looking at land grants: micro and macro. The Colorado Supreme court chose the macro way, seeing a broad and general picture in the wording: “All the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.”
A year after the document was executed and recorded, Beaubien died. The confirmed Sangre de Cristo grant was sold by his heirs to William Gilpin, Colorado’s first territorial governor. The sales agreement said Gilpin would affirm “settlement rights” previously conceded.
Life went on. People used the grant land without much attention to boundaries. It was, after all, “open range.” Then, in 1960, lumberman Jack Taylor of North Carolina purchased 77,000 acres of the Sangre de Cristo grant (he would buy the additional 2,500 acres in 1973). He began fencing his parcel and locking out the local people, despite language carried forward from the Gilpin deed to his deed about their traditional rights.
In 1981 a list of local landowners, or “heirs,” beginning with Eugene Lobato sued Taylor, arguing their rights were established in three ways: by Mexican law operating through the 1848 Treaty of Guadalupe Hidalgo which guaranteed property rights in the region taken from Mexico; by the document signed by Beaubien in 1863; and by “prescription,” which is to say, 100 years of regular use of the lands capped by Culebra Peak.
In the Lobato decision, Colorado’s highest court joined with the trial court and the appeals court in rejecting the first argument. “Mexican land use and property law are highly relevant in this case in ascertaining the intentions of the parties involved. However, because the settlement of the grant occurred after the land was ceded to the United States, we conclude that Mexican law cannot be a source of the landowners’ claims,” the 2002 decision said.
But the court reversed the lower courts on the other two arguments, the discussion of which takes up most of the long complex legal opinion.
As to the Beaubien Document, the court agreed that it is too ambiguous for an express grant of rights. “We are attempting to construe a 150 year-old document written in Spanish by a French Canadian who obtained a conditional grant to an enormous land area under Mexican law and perfected it under American law. Beaubien wrote this document when he was near the end of his adventurous life in an apparent attempt to memorialize commitments he had made to induce families to move hundreds of miles to make homes in the wilderness. It would be the height of arrogance and nothing but a legal fiction for us to claim that we can interpret this document without putting it in its historical context,” the court said.
Beaubien’s failure to comply with the territorial property law, however, is not the end of the inquiry, the court said, citing an 1872 opinion of the territorial supreme court on an implied grant of water rights. The old opinion said rights essential to the use and enjoyment of property come from the “pre-existing and higher authority of laws of nature, of nations, or of the community to which the parties belong.”
From testimony in the Lobato trial, the high court made an inference that in its view cures one of the shortcomings of the Beaubien document. Namely, the court reasoned that because summer grazing, wood, and timber were only available in the mountain area of the grant, and because the Taylor ranch is mountainous, the rights at issue are attached to the Taylor ranch. Further, the court noted, the Taylor deed mentions these rights and there was ample testimony that the locals assumed these rights and used the ranch for about 100 years before Taylor fenced it.
“Accordingly,” said the high court, “we hold that the landowners have implied rights in Taylor’s land for the access detailed in the Beaubien Document – pasture, firewood, and timber. These easements should be limited to reasonable use – the grazing access is limited to a reasonable number of livestock given the size of the vara strips; the firewood limited to that needed for each residence; and the timber limited to that needed to construct and maintain residence and farm buildings located on the vara strips. . . .”
The Colorado decision has no effect in New Mexico, but it might serve as a matrix for similar rulings in similar cases that might find their way to the now liberal New Mexico Supreme Court in the future. Curiously, the main New Mexico legal precedent that would have to fall in the process is discussed in a dissent in the Lobato case by Colorado Justice Kourlis, who wrote:
“Although I have great sympathy for the historic and present plight of the landowners in this action, I cannot support the majority opinion for two reasons. First, it is my view that in 1863 Charles Beaubien attempted to make a community grant for the benefit of the inhabitants of the plazas of San Luis, San Pablo, and Los Ballejos. The law in effect at the time did not recognize such a grant and instead required individual identification of grantees. Hence, the Beaubien Document had no legal effect.
“Second, I find no ambiguity either in the legal description in the Document or in the absence of grantee specificity. The legal description referred to the lands of the Rito Seco. The trial court found that the lands of the Rito Seco do not overlap with the current Taylor Ranch. There is no ambiguity; rather, the Document simply does not apply to Taylor Ranch. Additionally, the omission of grantee names was not an ambiguity: it was a clear attempt to create a communal grant, which was not legally recognized.”
“New Mexico,” Kourlis wrote, “has been the location of most of the litigation concerning communal grants in the United States. Over the course of that litigation, those courts have declined to recognize communal grants, and have further determined that they must look to the record title to the property, and not inquire behind it into the traditions or history that might support converting those grants into individual grants.”
His example is the Tierra Amarilla Grant, which he describes as “a community grant that was patented to an individual, Francisco Martinez.” The New Mexico Supreme Court ultimately denied the right of locals to use the former common lands of the grant. The New Mexico high court’s reasoning was that the title to the Tierra Amarilla grant absolutely begins with its confirmation by Congress as a private grant.
If, on the other hand, it were a communal grant, then the common lands would be public land, according to the New Mexico interpretation. The New Mexico Supreme Court wrote in the 1956 case of Martinez v. Mundy (where residents of the Tierra Amarilla, the appellants, had sued the Mundy ranch): “The claim by the appellants that they have acquired by grant or prescription, the right to cut wood, water livestock, pasturage and the use of roads was not shown to have been exclusive to the appellants but on the contrary was claimed by many others. The claim being in common with and similar to that of the general public in this area, the appellants certainly could not acquire a private easement unto themselves.”
Under the Colorado ruling, by contrast, the “general public” does not exactly have the same rights as the local land owners. The court said the locals have no implied right to hunt, fish or “recreate” at will on the Taylor ranch. That has always been true of the general public, including the aggressive and growing legions of “peak baggers,” who endeavor to climb all 54 fourteeners in the state, some seeking to do so in record time.
Most guidebooks warn the climbers of the impropriety of trespass. Some advise keeping Culebra, the southernmost fourteener in Colorado, whose summit is only about seven miles from the New Mexico line, off the list. All the books remind climbers that advance permission from and payment of a fee to the Taylor ranch are required. In the future, however, there could be other warnings, since the gate is unlocked and the ranch might appear to be open to the public.