July 18, 2023

NM Supreme Court: Solar developer can cross rancher’s land to access leased parcels

For decades, vehicles crossed the McFarland Land & Cattle Company’s private property in Quay County to access public lands or lands owned by other ranchers.

This crossing is known as Quay Road AI.

But, when a solar company leased land accessible only by Quay Road AI, McFarland Land & Cattle Company attempted to block that access.

Last week, the New Mexico Supreme Court ruled that the decades of uninterrupted travel along the stretch of Quay Road AI created what is known as a prescriptive easement. That means the road can be used to access the land leased for solar development.

The use began in 1954 when a flood washed out a bridge over an arroyo near the southeast corner of the McFarland property. That flood led to Quay Road AI being moved 100 feet to the west, rerouting it across the McFarland property.

The rerouted road, known as the low-water crossing, is the only route to travel along the southern three miles of Quay Road AI and access both state land and portions of other ranches. This includes the parcels leased by solar developers for a solar array and electrical substation.

Caprock Solar entered into a lease in 2015 to develop an array on nearby property owned by Robert and Billie Abercrombie.

McFarland Land & Cattle Company sought to charge Caprock money to cross the ranch land to the leased parcels. Up until then, the McFarland Land & Cattle Company had never attempted to restrict access or placed any conditions on use of the road.

Caprock attempted to negotiate a deal with the McFarland Land & Cattle Company, but this ultimately failed, resulting in McFarland Land & Cattle Company filing an injunction against the solar developers to stop them from using the section of Quay Road AI crossing the McFarland property.

The opinion issued on July 13 clarifies what is needed to prove a claim that an area is a public prescriptive easement.

The state Supreme Court’s order reverses a previous court of appeals ruling that found insufficient evidence of the general public using the road and determined that travel by neighboring ranchers and others with permission to cross it did not constitute use by the general public.

The high court’s decision upholds a district court’s original judgment in the case.

Justice David K. Thomson wrote the opinion for the New Mexico Supreme Court.

“The law of public prescriptive easements in New Mexico does not require a showing of a minimum amount of use or number of users, as it is the public character of the road that guides a fact finder’s determination of a public prescriptive easement,” Thomson concluded. “Here, there is substantial evidence to support the district court’s conclusion that the public used the low water crossing and that a public prescriptive easement exists over this portion of QR AI.”