Lobato v. Taylor: How the villages of the Rio Culebra, the Colorado Supreme Court, and the restatement of servitudes bailed out the treaty of Guadalupe Hidalgo

Natural Resources Journal

Volumn 45, Issue 2, 2005, Pages 457-494

  Golten, Ryan ^a,b  

^a UNIVERSITY OF NEW MEXICO   (United States)

^b UNIVERSITY OF MICHIGAN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

LEGAL RIGHTS; LEGISLATION; SETTLEMENT HISTORY;

COLORADO; NORTH AMERICA; UNITED STATES;

JATROPHA CARDIOPHYLLA;

EID: 28144460980     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (349)

1. See, e.g., María E. Montoya, Translating Property: The Maxwell Land Grant and the Conflict Over Land in the American West 1840-1900, at 173-82, 214-16 (2002).
2. Taylor v. Lobato, 540 U.S. 1073 (2003) (denying certiorari).
3. Lobato v. Taylor, 71 P.3d 938, 956 (Colo. 2002).
4. Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Feb. 2, 1848, U.S.-Mex., 9 Stat. 922 [hereinafter Treaty of Guadalupe Hidalgo].
5. See Lobato, 71 P.3d at 946. The words "inviolably respected" replaced language from a draft article 10, which guaranteed that all land grants would be presumed valid under American law to the same extent as they had been under Mexican law. The deletion of article 10 resulted in an ambiguous standard that was inconsistently interpreted by American courts, generally to the detriment of the land grantees and their heirs.
6. Malcom Ebright, Land Grants and Lawsuits in Northern New Mexico 28-29 (1994).
7. For a more, thorough discussion of the Treaty history and language,see id. at 28-37 (arguing that, in Malcom Ebright, Land Grants and Lawsuits in Northern New Mexico 28-29 (1994). negotiating the Treaty, the goal of the United States was to gain additional territory without being beholden to Mexican property claims, and that, rather than being fairly "negotiated," the Treaty and related provisions were imposed on Mexico by the United States).
8. See Montoya, supra note 1, at 175-82.
9. See, e.g., Martinez v. Rivera, 196 F.2d 192 (10th Cir. 1952);
10. Flores v. Bruesselbach, 149 F.2d 616 (10th Cir. 1945);
11. Payne Land & Livestock Co. v. Archuleta, 180 F. Supp. 651 (D.N.M. 1960);
12. Martinez v. W.H. Mundy, 295 P.2d 209 (N.M. 1956);
13. H.N.D. Land Co. v. Suazo, 105 P.2d 744 (N.M. 1940).
14. Eric L. Peters & Marianne L. Stoller, The Tameling Decision 3-4 (1981) (unpublished manuscript, on file with author). The original Grant comprised all of the land in present-day Costilla County.
15. See Lobato v. Taylor, 70 P.3d 1152, 1159 (Colo. 2003).
16. Lobato, 71 P.3d at 943. Governor Manuel Armijo originally granted the Sangre de Cristo to Narciso Beaubien, Charles' 13-year-old son, and Stephen Luis Lee, an American - not a Mexican citizen - as part of the Mexican government's effort to fortify its northern frontier against the encroaching United States.
17. See Montoya, supra note 1, at 211-12. Charles Beaubien gained ownership of the Grant after his son and Lee were killed in the infamous Taos Uprising of 1847, at which point Beaubien inherited his son's portion and purchased Lee's interest.
18. See id. Beaubien and Lee's petition, filed two days after Christmas 1843, had emphasized that the land was ideal for farming and ranching, and illustrates that the purpose of the Grant was to settle the land with a permanent agricultural community: Louis Lee, a naturalized citizen and resident of the first demarcation of Taos, and Narciso Beaubien, a citizen, and also a resident of the above-named place, appear before your Excellency in the manner and form best provided by law and most convenient to us, and state that, desiring to encourage the agriculture of the country, and place it in a flourishing condition, and being restricted with lands wherewith to accomplish said purpose, we have seen and examined with great care that embraced within the Costilla, Culebra, and Trincheras Rivers, including the Rito of the Indians and the Sangre de Cristo to its junction with the Del Norte River, and finding in it the qualities of fruitfulness, fertile lands for cultivation, and abundance of pasture and water, and all that is required for its settlement, and the raising of horned and woollen cattle, and being satisfied with it, and knowing that it is public land, we have not hesitated to apply to your Excellency, praying you, as an act of justice, to grant to us the possession of a tract of land to each one within the afore-mentioned boundaries, promising to commence the settlement of the same within the time prescribed by law, until the colony shall be established and permanently fixed, provided your Excellency be pleased to grant it to us. Such is the offer we make, and swear it is not done in malice.
19. See Tameling v. U.S. Freehold & Emigration Co., 93 U.S. 644,647 (1876) (emphasis added).
20. For a detailed account of the petition and the issuance and confirmation of the Grant, see J.J. Bowden, Private Land Claims in the Southwest (1969) (unpublished partial J.D. thesis, Southern Methodist University) (on file with author). The Ute Indians inhabiting the San Luis Valley at the time drove back initial efforts by the Mexican settlers to colonize the Grant.
21. See id. at 886. However, by 1870, there were almost 3000 former Mexican citizens living on the southern part of the Sangre de Cristo grant.
22. Peters & Stoller, supra note 8, at 5. Upon relocating to the Sangre de Cristo grant, the settlers received narrow strips of land along a stream, or vara strips, for individual farming and were allowed access to the mountain tract for grazing and additional resources. For an in-depth discussion of the process for issuing land grants under Mexican and Spanish law and custom,
23. see Ebright, supra note 5, at 21-28.
24. For a discussion of the meaning of vara strips, see Marianne L. Stoller, Report on the History and Claims for Usufruct Rights by the Residents of the Culebra River Villages on Portions of the Sangre de Cristo Land Grant 14-15 (1997) (submitted to the district court and on file with Dr. Stoller);
25. Lobato, 71 P.3d at 943.
26. Stoller, supra note 9, at 5, 9-11.
27. See also Rael v. Taylor, 876 P.2d 1210, 1213 (Colo. 1994) (citing Charles Beaubien's 1863 document).
28. Lobato, 71 P.3d at 955 (citing Dr. Marianne Stoller's report offered at trial).
29. Id. at 943.
30. One of the many translations of the document is reproduced in Rael, 876 P.2d at 1213: Town of San Luis of the Culebra, May 11, 1863 Book 1, Page 256 It has been decided that the Rito Seco lands shall remain uncultivated for the use of the residents of San Luis, San Pablo and the Vallejos, and other inhabitants of said towns, for pastures and community grounds, etc. And that the Rito Seco waters are hereby distributed among the said inhabitants of the town of San Luis, and those on the other side of the Vega, whose lands lie in the vicinity and cannot be irrigated by the water of the Rio Culebra. After measuring off three acres in front of the Church, which are hereby donated to it, the Vega shall be for the use of the inhabitants of this town and of the others up [unintelligible] the Vallejos Creek and also for the benefit of those who may in the future, settle on the Gregorio Martin Creek (San Francisco) from the road down to the narrows. It is understood that the lots shall run East and West, 50 varas, and never North and South and no one shall have a right as they might have thought, to place any obstacles or hindrances to interfere with the rights of others. The regulations as to roads shall be also observed so as to allow every one to have access to his farm lands. Also, in using the water, care shall be taken not to cause damage to any one. All the inhabitants shall have the use of pasture, wood, water, and timber and the mills that have been erected shall remain where they are, not interfering with the rights of others. No stock shall be allowed in said lands, except for household purposes. All those who come as settlers shall agree to abide by the rules and regulations and shall help, as good citizens and be provided with the necessary weapons for the defense of the settlement. TWO WITNESSES (Signed) Carlos Beaubien
31. Stollee, supra note 9, at 15-16.
32. Lobato, 71 P.3d at 946-48.
33. See Stoller, supra note 9, at 17-18.
34. Rael, 875 P.2d at 1213-14. The conveyance also required Gilpin to convey the vara deeds to the remaining settlers.
35. Lobato, 71 P.3d at 943. Beaubien apparently chose to sell the Grant to Gilpin due to his onerous back taxes, as he also owned a half interest in the neighboring Maxwell Land Grant.
36. See Peters & Stoller, supra note 8. at 4;
37. Montoya, supra note 1, at 212.
38. Lobato, 71 P.3d at 953.
39. Id. at 943. Like each one preceding it, Taylor's deed included the clause that his ownership was subject to the "claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land."
40. Id. In 1973 Taylor purchased another 2500 acres adjoining his property, known as the "Salazar estate," where previous owners had filed a successful Torrens action to register the property in fee simple.
41. Id. at 944. Together, Taylor's property comprises what is known as the "Taylor Ranch," or La Sierra, and is jointly the subject of the Lobato litigation.
42. Id.
43. Calvin Trillin, U.S. Journal: Costilla County, Colorado; A Little Cloud on the Title, 52 New Yorker 122 (1976).
44. Taylor bought the land for what seemed like a bargain price of five hundred thousand dollars. Id.
45. See Jeffrey A. Goldstein, Panel Presentation: Lobato v. Taylor, 5 Scholar 183, 186-87 (2002-2003). In addition to 14,000 foot Culebra Peak, the property included flowing streams and lush riparian areas, forested mountain slopes, and an array of wildlife including deer, elk, bear, and a population of endangered Rocky Mountain Cut Throat Trout.
46. See id. at 186;
47. Stoller, supra note 9, at 21-24.
48. By this time, the community had already organized the Asociación de Derechos Cívicos to protest the sale and Taylor's exclusive use of the land. See Trillin, supra note 19, at 122. Violence broke out repeatedly when Taylor used force to keep local residents off the property.
49. See id. at 125-28. Once the title to his property was cleared, Taylor began to clearcut La Sierra, inspiring widespread resistance and outrage that continue to this day.
50. See Olivia Martinez & Rachel Gonzales, From Taylor to Pai: The Historical Struggle for La Sierra, in The Struggle for La Sierra: A Beyond Chicanismo Experience 10, 12 (2003) [hereinafter Beyond Chicanismo].
51. Rael v. Taylor, 832 P.2d 1011 (Colo. App. 1991). A "usufructuary" right is the right to use and enjoy another's property without damaging or diminishing the property. Black's Law Dictionary 651 (West 1996).
52. Rael v. Taylor, 832 P.2d at 1013.
53. See Rael v. Taylor, 832 P.2d at 1014;
54. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo. 1994);
55. Lobato v. Taylor, 13 P.3d 821 (Colo. App. 2000).
56. Lobato, 71 P.3d at 945.
57. A "servitude" is a burden on one person's land that gives certain rights to another. Black's Law Dictionary 573 (West 1996). An "express easement" is a type of servitude that a landowner voluntarily places on his/her property that is intended to bind future owners of that property. Id. at 215.
58. Lobato, 71 P.3d at 947.
59. For a detailed explanation of the dismantling of land grants under U.S. law, see generally Ebright, supra note 5, at 45-54.
60. Among the legal obstacles facing land grant advocates and heirs, the most common have been (1) the Tameling decision, see discussion infta notes 51-54 and accompanying text (precluding claimants from looking behind a congressional confirmation of a land grant to rights that may have preexisted it under Mexican and Spanish law);
61. See Ebright, supra note 5, at 45-54. Later, under the much less lenient Court of Private Land Claims, the burden of proof was squarely placed on land grant claimants to defend their asserted rights against skilled and highly resourced government lawyers in adversarial proceedings. Not surprisingly, many land grant heirs lost their land rights through this process.
62. See also N.M. Land Grant F. & Mexicano Land Educ. & Conservation Tr., The General Accounting Office Report Preliminary Comments, at http://www.southwestbooks.org/gaolgfresponse.htm (last visited June 22, 2005) (discussing the ways in which New Mexico land grants were incorrectly confirmed, and ultimately partitioned and sold in many cases, in ways that the 2004 Report by the General Accounting Office failed to recognize).
63. See Gov't Accounting Off. (GAO), Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico, available at www.gao.gov/new.items/d0459.pdf (last visited Aug. 16, 2005), for the entire 2004 report by the GAO discussing the federal government's role in confirming New Mexico's community land grants following government's role in confirming New Mexico's community land grants following the Treaty of Guadalupe Hidalgo.
64. This decision defies the claims of some scholars, who conclude that the complex and interwoven property concepts of Mexico and Spain are simply irreconcilable with the common law. Compare Montoya, supra note 1,
65. with Ebright, supra note 5, at 266-67 (explaining that the common law was in fact familiar with such patterns, as land tenure in medieval England frequently involved common and overlapping land holdings).
66. See also Richard D. Garcia & Todd Howland, Determining the Legitimacy of Spanish Land Grants in Colorado: Conflicting Values, Legal Pluralism, and Demystification of the Sangre de Cristo/Rael Case, 16 Chicano-Latino L. Rev. 39, 61-63 (1995).
67. Immediately upon his acquisition of the Grant, Gilpin began to parcel up the land in order to sell to British, Dutch, and American investors for speculation and development. See Peters & Stoller, supra note 8, at 4.
68. See also Montoya, supra note 1, at 9, 114-20 (describing the similar process of land speculation in the neighboring Maxwell Grant). In the late 1870s, the Trinchera Estates Company purchased the northern portion of the Grant; the southern half became the Costilla Estates.
69. See Peters & Stoller, supra note 8, at 4. The southern half was later sold to the United States Freehold Land and Emigration Company and ultimately became the Taylor Ranch.
70. Id. at 6.
71. Lobato, 71 P.3d at 943, 954-56. In addition to barricading the roads and fencing the land with barbed wire, Taylor treated the local community with blatant racism and frequent violence.
72. See, e.g., Trillin, supra note 19, at 128 ("That's what the anti-Anglo thing is, it's an inferiority complex. They know they're not equal, mentally or physically, to a white man and that's why they stick together so."). Taylor was notorious for his brutal treatment of those he found on the property.
73. See Martínez & Gonzales, supra note 21, at 1213.
74. Lobato, 71 P.3d at 943 (citing Taylor v. Jaquez, No. 6904 (D. Colo. Oct. 5, 1965). The Torrens title registration system, begun in Australia in the mid-nineteenth century, was designed to clear out overlapping claims to paper titles by settling all adverse claims in one proceeding.
75. See Montoya, supra note 1, at 213;
76. Rael v. Taylor, 876 P.2d 1210, 1219 (Colo. 1994). By invoking diversity jurisdiction as an out-of-state citizen, Taylor was able to litigate his Torrens, claim in Denver, 240 miles from his opponents.
77. Sanchez v. Taylor, 377 F.2d 733, 736 (10th Cir. 1967).
78. Sanchez, 377 F.2d at 734-35.
79. Id.
80. Id.
81. Taylor v. Jaquez, No. 6904 (D. Colo. Oct. 5,1965), aff'd, Sanchez, 377 F.2d at 734-35.
82. Sanchez, 377 F.2d at 737 (citing Tameling v. U.S. Freehold & Emigration Co., 93 U.S. 644 (1876)). The Act was pursuant to the system for confirming Spanish and Mexican land claims in the newly acquired territory. In 1855, Beaubien had petitioned Surveyor General William Pelham to confirm the Sangre de Cristo Grant at 1,038,195.55 acres, and after Pelham's favorable recommendation, Congress confirmed Beaubien's ownership of the entire Grant as recommended by Pelham.
83. See Bowden, supra note 9, at 887.
84. For a discussion of the confirmation process for land grants in Colorado and New Mexico, see Stoller, supra note 10, at 6-8;
85. Malcolm Ebright, The Tierra Amarilla Grant: A History of Chicanery 1-4 (Center for Land Grant Studies Press, 1993) (criticizing the easily manipulated confirmation process and distinguishing the implications for large, "speculative" grants such as the Sangre de Cristo and Maxwell grants from "settlement" grants such as the Tierra Amarilla grant).
86. See, e.g., United States v. Maxwell Land-Grant Co., 121 U.S. 325 (1887);
87. Flores v. Brusselbach, 149 F.2d 616, 616-17 (10th Cir. 1945);
88. H.N.D. v. Suazo, 105 P.2d 744 (N.M. 1940);
89. Martinez v. Mundy, 295 P.2d 209, 214 (N.M. 1956). This is discussed at greater length infra notes 51-52 and accompanying text.
90. See Sanchez, 377 F.2d at 737, noting: We find no error in the trial court's conclusion that appellants, as a matter of law, have no rights in Taylor's land under Mexican law or the original grant. Any conflicting rights prior to the confirmatory Act of 1860 which might have arisen or existed by reason of the original grant from Mexico, considered in the light of Mexican law and the Treaty of Guadalupe Hidalgo, were thereby extinguished. The Lobato plaintiffs later argued that this conclusion ignored the fact that, in recommending confirmation, Surveyor General Pelham had relied on Beaubien's initial petition, which, rather than attempting to extinguish the local settlement claims to the Grant, relied on these claims to prove the Grant's validity, stating: Claimant is prepared futher to prove, if deemed necessary, that since the siad grant came into his possession he has had made extensive settlements on the same, and that it is becoming under his ownership rapidly populated. The claimant therefore respectfully asks a speedy acknowledgement of this claim.
91. Petitioner's Openong Brief on Due Process/Res Judicata 18, available at WL 32350466 (July 15, 2002) [hereinafter Appellants' Opening Brief];
92. Tameling, 93 U.S. at 659.
93. Sanchez, 377 F.2d at 737-38.
94. Id. at 738.
95. Id;
96. see, e.g., Martinez, 295 P.2d at 214 (rejecting a similar prescriptive claim after finding that the local residents used the land sporadically, rather than continuously, and with the implied permission of the landowner, because they entered the property at places where fences were down or in disrepair).
97. See Sanchez, 377 F.2d at 738.
98. Id. at 733, 735.
99. This effort took immense amounts of organizing, education, research, fundraising, and outreach. The community, largely through the efforts of the Land Rights Council (LRC), an organization with inspiration and roots in the Chicano Movement, and its legendary founding elders, Apolinar Rael and Juan LaCombe, organized a campaign of research, fundraising activism, and legal strategizing. LRC's efforts ranged from extensive legal and historical research, including compiling local histories, collecting documents, and going door-to-door to talk with community members, to finding pro bono lawyers and framing legal strategy, educating the community, and using the media to organize and generate interest in the Taylor Ranch issue on a local, statewide, and national level. Daniel Salcido, Historical Discontinuity and a Struggle in Transition, in Beyond Chicanismo, supra note 21, at 26, 27-31 (2003);
100. Martínez & Gonzáles, supra note 21, at 13-14. It also included endless meetings, lost time with family, constant trips to Denver, and perpetual emotional strain, as LRC activists who lived in the skirts and shadows of La Sierra experienced the conflict on a daily level.
101. See Interview with María Mondragon-Valdéz, author of Translating Property: The Maxwell land Grant and the Conflict Over land in the American West 1840-1900, Oct. 30, 2003 (interview conducted through a series of email messages).
102. Rael v. Taylor, 876 P.2d 1210, 1212 (Colo. 1994). Plaintiffs further sought to void a decree that had quieted title to the Salazar tract and, alternatively, sought damages.
103. Id. at 1217.
104. Rael, 876 P.2d at 1217-19. Although the title examiner listed all Costilla County property owners as potential defendants in the Torrens action, Taylor's application only listed roughly 300 individuals while giving general publication notice to "[a]ll others similarly situated who claim certain settlement rights..."
105. Id. at 1214.
106. The Lobato plaintiffs were not the first in land grant cases to allege such due process violations. For a discussion of similar problems facing the heirs to the common lands of the Tierra Amarilla land grant, see Ebright, supra note 5, at xviii.
107. Lobatov. Taylor, 13P.3d 821, 828, 831 (Colo. App. 2000).
108. Plaintiffs also claimed damages based on the procedural failures in the Torrens action. See Rael, 876 P.2d at 1217.
109. Appellants' Opening Brief, supra note 37, at 53-56.
110. See discussion of Tameling, infra notes 51-54. Similarly criticized but even more devastating for community land grants was the Supreme Court's decision 20 years later in United States v. Sandoval, 167 U.S. 278 (1897), holding that the government held title to communal lands under Mexican and Spanish law, which then passed to the U.S. government upon the signing of the Treaty of Guadalupe Hidalgo as public lands. The Sandoval decision has been heavily criticized and has caused many land grant heirs and communities to lose significant amounts of their land to the United States.
111. See, e.g., Plácido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25 Nat. Resources J. 1039 (1985);
112. Ebright, supra note 5, at 48.
113. For an example of the impact of the Sandoval decision on New Mexico land grants, see Emlen Hall, San Miguel del Bado and the Loss of the Common Lands of New Mexico Community Land Grants, 66 N.M. Hist. Rev. 413 (1991).
114. Nonetheless, the documentation in Lobato was fairly significant compared with other land grant claims, particularly in light of the fact that each subsequent deed to La Sierra referred to claims by the local community.
115. See, e.g., United States v. Maxwell Land-Grant Co., 121 U.S. 325 (1887);
116. Flores v. Brusselbach, 149 F.2d 616, 616-17 (10th Cir. 1945);
117. H.N.D. v. Suazo, 105 P.2d 744 (N.M. 1940);
118. Martinez v. Mundy, 295 P.2d 209, 214 (N.M. 1956).
119. Tameling, 93 U.S. 644, 662-63 (1876) (citing Act of June 21, 1860, ch. 167,12 Stat. 71 (1860)).
120. According to the 1860 Act, its terms "shall only be construed as quitclaims or relinquishments, on the part of the United States and shall not affect the adverse rights of any person or persons whosoever." Sanchez v. Taylor, 377 F.2d 733, 737 (10th Cir. 1967). Despite this language, courts have consistently held that they are precluded from determining adverse claims because the issue is a political, not a judicial, consideration.
121. Id.
122. In Tameling, the U.S. Freehold Land & Emigration Company, then owners of the southern part of the Sangre de Cristo Grant, had filed an ejectment suit against John Tameling, who had purchased 160 acres allegedly located on the same land. Tameling v. U.S. Freehold Land and Emigration Co., 2 Colo. 411, 415 (1874). In his defense, Tameling argued that when it issued the Grant, the Mexican government was limited by the 1824 Mexican Colonization Law to granting each grantee 11 square leagues, and therefore the two grantees could only have owned 22 square leagues, or 96,000 acres, rather than the roughly one million acres shown on the patent.
123. Id. Similarly, he argued that Congress could not legally have confirmed the Grant for more than what was created under Mexican law, which the United States was obligated to recognize under the Treaty of Guadalupe Hidalgo.
124. Id. The Supreme Court disagreed. It held that, even if Congress had confirmed more land than the Sangre de Cristo grantees were allowed to receive under Mexican law, this patent should be construed as a de novo grant issued by the United States and thus inherently valid.
125. Tameling, 93 U.S. 644, 663 (1876).
126. For a detailed description of the case, see Peters & Stoller, supra note 8, at 2, 13-14 (discussing, inter alia, the possibility of collusion between John Tameling and the U.S. Freehold & Emigration Company in bringing the suit in the first place). For a discussion of arguments that Congress's confirmation should nonetheless not preclude other adverse or concurrent claims to the confirmed land, based on the standard language of congressional patents,
127. see Sanchez, 377 F.2d at 737;
128. HND v. Suazo, 105 P.2d at 745.
129. Tameling, 93 U.S. at 663.
130. Id. Tameling was particularly significant as the first case to determine the legal effect of the 1860 Act of Congress.
131. See Peter & Stoller, supra note 8, at 11-12 (explaining, inter alia, that, although the short, three-page opinion was based solely on one statute and a case out of Missouri, it nonetheless became controlling for all subsequent litigation concerning land grants confirmed by the 1860 Act of Congress);
132. Ebright, supra note 5, at 21-22 (describing the effect of the erroneous Tameling decision on the Tierra Amarilla Grant, which had been misconstrued by Congress by the 1860 Act as "a case of the blind leading the blind");
133. Montoya, supra note 1, at 171-87 (criticizing the opinion and describing its effects on the adjudication of the Maxwell Land Grant);
134. see also Flores, 149 F.2d at 617 (using the rationale of Tameling as its reason for refusing to consider plaintiffs' claims that the Tierra Amarilla Grant was created as a community grant under Mexican law and custom). Congress thereby conclusively confirmed the title to the grant as a private land grant and its action is final and not subject to judicial review.... [A]ppellants assert a claim of title predicated on the theory that the Grant was a community grant and that they are the successors to the original Mexican Community. That contention was foreclosed by the conclusive effect of the Act of Congress in confirming the Grant as a private land grant in Francisco Martinez.
135. Id.
136. See, e.g., Lobato v. Taylor, 13 P.3d 821, 828 (Colo. App. 2000) (affirming the lower court's finding that, "by virtue of the Act, confirmation was 'absolute and unconditional' in Charles Beaubien" under Tameling, and "any purported rights that might [have] existed...were extinguished by the 1860 Confirmatory Act...and if the confirmation of title was contrary to the treaty provisions, the question was political, not judicial").
137. See, e.g., Reilly v. Shipman, 266 F. 852 (8th Cir. 1920);
138. Yeast v. Pru, 292 F. 598 (D.N.M. 1923);
139. Catron v. Laughlin, 11 N.M. 604 (1903) (all three cases holding that courts are precluded from looking behind Congress's confirmation of land grants to ascertain the correct identity of the original grantees).
140. For a recent discussion and critique of the ways in which the federal government incorrectly New Mexico land grants following the Treaty of Guadalupe Hidalgo, see The New Mexico Land Grant Forum and the Mexicano Land Education and Conservation Trust, supra note 27 (criticizing the government's failure to recognize and take responsibility for the loss of lands in the confirmation process). For the official GAO Report on the federal government's role in confirming community land grants in New Mexico,
141. see GOV'T ACCOUNTING OFF., supra note 27
142. These five cases - two in the New Mexico Supreme Court and three in the federal courts - are Flores v. Brusselbach, 149 F.2d 616 (10th Cir. 1945);
143. Martinez v. Rivera, 196 F.2d 192 (10th Cir. 1952);
144. Payne Land & Livestock Co. v. Archuleta, 180 F. Supp. 651 (D.N.M. 1960);
145. H.N.D. v. Suazo, 105 P.2d 744 (N.M. 1940);
146. Martinez v. Mundy, 295 P.2d 209 (N.M. 1956).
147. For a thorough explanation of the history of the Tierra Amarilla grant and the problem presented by Congress's mistaken confirmation of the Grant as a private grant, see generally Ebright, supra note 36.
148. The court explained that, even if Congress had mischaracterized the nature of the Grant, under United States v. Sandoval, the title to any preexisting common lands remained in the Mexican government and passed to the United States in 1848 as public lands. H.N.D., 105 P.2d at 745-47 (citing United States v. Sandoval, 167 U.S. 278 (1876)).
149. See discussion supra note 41. Like the Sangre de Cristo grant, the Tierra Amarilla grant was a large grant made in 1832 by Governor Armijo during hostilities with the United States.
150. See H.N.D., 105 P.2d at 744-45. Like the Sangre de Cristo and other grants made during the so-called "Mexican period," the Tierra Amarilla grant was confirmed by the 1860 Act of Congress after a recommendation by the Surveyor General, and a patent was issued to one individual, Francisco Martinez.
151. Id. at 745. Land grant heirs argued that, under Mexican law and custom, the grant was made as a community grant.
152. Id. at 746-47. Accordingly, the Mexican government retained legal title over such lands with the trust duty to preserve them for the community, all of which-including the same trust duties-passed to the United States as specified in the Treaty of Guadalupe Hidalgo.
153. Id. at 747.
154. See, e.g., Sanchez v. Taylor, 377 F.2d 733, 736-37 (10th Cir. 1967) (explaining that, starting with Tameling, "the Supreme Court has consistently held that the confirmatory Act of Congress is final and conclusive as to the nature and validity of such a grant and is therefore not subject to judicial review").
155. See Ebright, supra note 5, n.70 and accompanying text (describing the problem of American courts objecting to Spanish documents as lacking sufficient words to describe common lands or to convey interests in land, and explaining how these interpretations were often due to a misunderstanding of the custom and language of the time).
156. Under the laws and practices of Spain, an hijuela was technically a document given to a party entitled to a share of a deceased person's estate that contained the details of that person's share. See Martinez, 295 P.2d at 217;
157. Payne Land & Livestock Co., 180 F. Supp. at 654.
158. See also Ebright, supra note 5, at 22 n.62 (explaining that, in the case of the Tierra Amarilla Grant, the term is used "in the sense of a deed for a share in a land grant, including a tract of land which was private and conveyance of rights to use the unaflotted land which was owned communally").
159. H.N.D., 105 P.2d at 745, 748. Martinez executed over 100 of these documents to the original settlers of the Tierra Amarilla Grant, conveying land that was said to "remain with the right of pastures, woods, water, lumbers, watering places, and roads, common and free."
160. Id. at 745.
161. Id. Further, the plaintiffs argued, even if the 1860 Act of Congress converted the grant into a private grant that was unreviewable based on Tameling, the hijuelas essentially converted the land back into a community grant.
162. Ebright, supra note 5, at 25.
163. Martinez, 295 P.2d at 209.
164. See Ebright, supra note 5. at 27 n.70 (1993) (describing the court's failure to consider language typical of deeds under Spanish and Mexican law and custom).
165. See H.N.D., 105 P.2d at 746, 748;
166. see also Sanchez v. Taylor, 377 F.2d 733, 737 n.3 (10th Cir. 1967).
167. See, e.g., Martínez, 295 P.2d 209;
168. H.N.D., 105 P.2d 744.
169. See discussion infra notes 102-150 and accompanying text.
170. See, e.g., Martínez, 295 P.2d at 216-17. The strict requirements of these doctrines had in many cases become quite arbitrary. For instance, while historically a prescriptive easement required the element of adversity, lawyers were able to circumvent claims of adverse use by arguing that in fact, the owner had provided permission to use the property, thus rendering the rule meaningless as a legal principle.
171. See Sanchez, 377 F.2d at 737-38.
172. Although they focused on the equitable doctrines of prescription and adverse possession in the Torrens action, the Lobato plaintiffs also successfully based their claims on the implied doctrines of easements by estoppel and prior use. See discussion supra notes 49-52.
173. For the remainder of this article, where relevant, "Torrens action" refers to the Torrens action brought in the Salazar estate as well.
174. Rael v. Taylor, No. 81CV5 (Costilla County Dist. Ct. Sept. 22, 1986)
175. (Judgment for Defendant on Motion for Judgment on the Pleadings or for Summary Judgment), aff'd, Rael v. Taylor, 832 P.2d 1011, 1013 (Colo. App. 1991).
176. In affirming, the court of appeals rejected the plaintiffs' argument that they were neither named nor in privity with those named in the Torrens action, since the fact that they were successors in interest to the property should have put them on notice as to the earlier actions. Id. at 1014.
177. Rael v. Taylor, 876 P.2d 1210, 1229 (Colo. 1994).
178. As to the effect of the Torrens decree, the court explained that res judicata would only bar the claims of those persons not personally named and served in the Torrens action if Taylor had made a diligent inquiry into the identity of all reasonably ascertainable claimants. Id. at 1226-27.
179. Id. at 1228-29.
180. Specifically, the Court ordered the trial court to determine whether Taylor used reasonable diligence in notifying those parties with an ascertainable interest in La Sierra. Lobato v. Taylor, 13 P.3d 821, 826 (Colo. App. 2000).
181. The court found that these plaintiffs had an identifiable interest in the property and could reasonably have been identified and served in the Torrens action. Lobato, 13 P.3d at 826.
182. Id. at 944;
183. Appellants' Opening Brief, supra note 37, at 12.
184. Lobato, 13 P.3d at 826, 830-31;
185. Lobato v. Taylor, 71 P.3d 938, 944 (Colo. 2002).
186. Before the merits phase, the trial court dismissed the plaintiffs' Mexican law claim, based on Tameling, and denied class certification. Lobato, 13 P.3d at 826.
187. Lobato, 13 P.3d at 830.
188. Id.
189. Id.
190. Specifically, the findings included the following: (1) plaintiffs' predecessors in title grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted, and recreated on defendants' land from the 1800s; (2) none of the land was fenced prior to 1960, and plaintiffs were never denied access to the land for the uses enumerated above; and (3) the chain of title of all land now owned by plaintiffs and defendants extended from Charles Beaubien in 1860.Id.
191. See also Goldstein, supra note 20, at 189.
192. Because the appeals court affirmed the dismissal of Plaintiffs' claims on the merits, it found it unnecessary to review the due process ruling. Lobato, 13 P.3d at 826.
193. Id. at 829-32.
194. Id. 830-32. Specifically, the court wrote: [U]nder the law in effect in Colorado territory in 1863, a document conveying any interest in real property had to meet certain formal requirements, including the requirement that it contain "the christian and surnames of the... grantees ... and ... an accurate description of the premises, or the interest in the premises intended to be conveyed."
195. Id. at 831 (citing General Laws of the Territory of Colorado, Act Concerning Conveyances of Real Estate § 2 (1861)). Plaintiffs first argued on appeal that the lower court's rejection of the document as a valid conveyance was based on its misinterpretation of nineteenth century property laws and canons for construing documents.
196. See Appellants' Opening Brief, supra note 37, at 25-27 ("While these complex legal provisions provided a convenient path for the court of appeals to escape the maze of substantive issues presented for review, application of these technical laws, without reference to, and analysis of, the entire 1863 statutory scheme, was erroneous."). The Lobato court ultimately avoided this entire discussion by accepting the plaintiffs' theory that their use rights were valid under the law of servitudes.
197. Lobato, 13 P.3d at 831.
198. Id.
199. ("[T]o the extent the rights purportedly granted in the Beaubien document are profits à prendre in gross - that is, personal rights held distinct from any ownership of land - the document did not contain [the words of limitation "and heirs and assigns"] required under then-existing Colorado law to pass such rights on to the original inhabitants' successors, including plaintiffs."). A "profit à prendre, or or "profit," is "an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another." Lobato v. Taylor, 71 P.3d 938, 945 (Colo. 2002) (citing Restatement (Third) of Property: Servitudes § 1.2(2)).
200. Lobato, 13 P.3d at 832.
201. In distinguishing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229 (Colo. 1998), the case relied upon by the plaintiffs, the court characterized Lazy Dog as having dealt with easements, rather than profits, and disagreed with the plaintiffs' interpretation that Lazy Dog allowed extrinsic evidence whenever a document is ambiguous.
202. Lobato, 13 P.3d at 832.
203. Lobato, 13 P.3d at 832.
204. Further, the appeals court elaborated that, even if extrinsic evidence were permissible in this instance, such evidence was presented at trial but was insufficient to establish that the document conveyed enforceable rights. Id.
205. Id. at 829, 833.
206. Id.
207. Id. at 821.
208. Id. at 832-33.
209. An "appurtenant" right is "[s]omething that belongs or is attached to something else," while rights "in gross" are personal rights unconnected to the dominant estate. See Blacks Law Dictionary 98, 786 (7th ed. 1999);
210. Lobato, 71 P.3d at 945.
211. Lobato, 71 P.3d at 952 (Colo.1964)).
212. (citing Alexander Dawson, Inc. v. Fling, 396 P.2d 599 (Colo.1964)).
213. Lobato, 13 P.3d at 832-33
214. (citing Proper v. Greager, 827 P.2d 591 (Colo. App. 1992)).
215. Id. at 831-32.
216. Id. at 834-35.
217. The appeals court also rejected plaintiffs' arguments that their continuous use of La Sierra should have put Taylor on notice in order to establish or presume prescription, particularly given the presence of ranch managers who supervised the Taylor Ranch. Id.
218. See id. at 834.
219. The historical requirement of exclusivity defeated similar prescriptive claims in the Tierra Amarilla litigation. See Martinez v. Mundy, 295 P.2d 209 (N.M. 1956) ("The claim being in common with and similar to that of the general public in this area, the [successors of the hijuela grantees] certainly could not acquire a private easement unto themselves.").
220. Lobato, 13 P.3d at 834-35.
221. See discussion supra Part II.B (explaining that Tameling precluded courts from reviewing the contours of the land grant after Congress's de novo confirmation in 1860).
222. Lobato, 71 P.3d 938, 945-46.
223. Id.
224. Id.
225. The court's exclusive focus on those rights created under American law obviated the need to legally define the Sangre de Cristo Grant as a private, community, or empresario grant under Mexican law, again avoiding the problem of dealing with rights and obligations created by Mexican law. The court merely explained that the Grant was made to two men "for the purpose of settlement" and focused the rest of its attention on the legal function and intent of the Beaubien document in common law terms. Id. at 943.
226. Still, in describing the Grant this way, the opinion clearly treated the Sangre de Cristo Grant as a private grant - a feature that distinguishes it from the number of community grants in New Mexico. For a description of other private land grants made by Governor Armijo during the "Mexican period," see Ebright, supra note 5, at 24-27.
227. See also Ebright, supra note 36, at 4-6 (distinguishing community and private land grants).
228. See Lobato, 71 P.3d at 953 n.11 (quoting Introduction, Restatement (Third) of Property: Servitudes, at 3: "Notably, one of the goals of the Restatement is to 'present [] a comprehensive modern treatment of the law of servitudes that substantially simplifies and clarifies one of the most complex and archaic bodies of 20th century American law .... It is designed to allow both traditional and innovative land-development practices using servitudes without imposing artificial constraints as to form or arbitrary limitations as to substance.").
229. See also Restatement (First) of Property § 450 (1944).
230. See discussion supra notes 29-30.
231. Lobato, 71 P.3d at 945.
232. Id. at 952-53.
233. Id. at 945, 950. The modern Restatement erases technical distinctions between different types of servitudes by combining easements, equitable servitudes, and covenants into a single category of servitudes.
234. Id. at 945 (quoting Restatement (Third) of Property: Servitudes § 1.2).
235. An earlier version of the Restatement applied the same rules to profits à prendre and easements, since they both describe interests in the land of another. Restatement (First) of Property § 450 Special N. (1944).
236. While the Third Restatement revived the term "profit" for descriptive purposes, the same rules still govern profits and easements. Lobato, 71 P.3d at 952 n.10 (quoting Restatement (Third) of Property: Servitudes § 1.2 Reporter's N.).
237. In following the approach of the modern Restatement, the Lobato court expressly disagreed with the court of appeals, which had concluded that different rules may apply to profits and easements. Lobato v. Taylor, 13 P.3d 821, 827 (Colo. App. 2000).
238. In defining profits à prendre as a type of easement, to which the same rules applied, the court also rejected the lower courts' reliance Alexander Dawson, Inc. v. Fling, 396 P.2d 599(Colo. 1964), which had declined to uphold the plaintiffs' implied to fish in defendant's lake when the parties' contract had expressly limited plaintiffs to right to boat and swim. Unlike the lower courts, the Lobato court distinguished Fling as a case limited by an express contact, rather than as announcing a distinction between the rules for easements (e.g., boating and profits (e.g., fishing).
239. See Lobato, 71 P.3d at 952 (citing Restatement (First) of Property § 450 Special N., § 1.2 (1944)).
240. On appeal, the plaintiffs had relied on this "streamlined" interpretation of the law of servitudes to convince the high court that it was appropriate to consider extrinsic evidence in order to understand the meaning of the document. See Appellants' Opening Brief, supra note 37, at 31 ("Although the complexity of this subject of servitudes seems to have stymied the lower courts, between reference to the simplified Restatement principles and long-standing Colorado law, the analysis of this subject now is considerably easier. The law has not changed, it has just been streamlined for ease of application.").
241. Lobato, 71 P.3d at 953 n.11 (quoting Introduction, Restatement (Third) of Property: Servitudes, at 3: "This Restatement presents a comprehensive modern treatment of the law of servitudes that substantially simplifies and clarifies one of the most complex and archaic bodies of 20th century American law .... It is designed to allow both traditional and innovative land-development practices using servitudes, without imposing artificial constraints as to form or arbitrary limitations as to substance.")
242. See id. at 951 (quoting Restatement (Third) of Property: Servitudes § 2.12 cmt. a, to highlight the rationale for recognizing easements based on prior use) ("The rule stated in this section is not based solely on the presumed actual intent of the parties. It furthers the policy of protecting reasonable expectations, as well as actual intent, of parties to land transactions.").
243. Restatement (Third) of Property: Servitudes, Tentative Draft No. 1 (1989), Introduction xxiii-xxvi;
244. see id. § 2.2, cmt. d. (2000) ("Although labels are not determinative, the terms "easement," "profit," "covenant" and "servitude" normally indicate that a servitude is intended.").
245. For instance, recognizing the outdated, technical requirements for the doctrine of prescription discussed supra, the Restatement now allows a plaintiff to meet the requirements of prescription by proving either adverse use or an imperfectly conveyed title. See Lobato, 71 P.3d at 953-55.
246. The last section of the opinion then limited the scope of the plaintiffs' usufructuary rights to La Sierra to pasture, firewood, and timber. Lobato, 71 P.3d at 956.
247. Id. at 946-49.
248. See Lobato v. Taylor, 13 P.3d 821, 831-32 (Colo. App. 2000).
249. Lobato, 71 P.3d at 947-48.
250. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235-37 (Colo. 1998).
251. The Lobato court clearly disagreed with the court of appeals, which had distinguished Lazy Dog as a case about easements rather than profits, and found that Lazy Dog did not apply since it considered the Beaubien document to be "patently unambiguous" on its face. Lobato, 13 P.3d at 832;
252. Lazy Dog, 965 P.2d at 1235 (citing Restatement (Third) of Property: Servitudes, Tentative Draft No. 4, 1994). As discussed in Lazy Dog: [T]he restatement (third) of Property has eschewed a strict "four corners" rule in favor of a more context-biased inquiry. The restatement (Third) of Property first notes that" a servitude should be interpreted to give effect to and be consistent with the intention of the parties to an expressly created servitude." [The Restatement] explains further that "the intention of the parties to an expressly created servitude is ascertained from the servitude's language interpreted in light of all of the circumstances."
253. Id. (internal citations omitted. Further, Lazy Dog explained that the concept of examining deeds in light of sorrounding circumstance waas far from novel, having been recognized in the first Restatement as a necessary when the language of a document is unclear or incomplete.
254. Id. at 1236. The court stated that the "weight and momentum of authority," including other jurisdiction as well as the Restatement, favored the more flexible, contextual approach.
255. Id.
256. Lobato, 71 P.3d at 947.
257. Id. at 947-48;
258. Lazy Dog, 965 P.2d at 1235, 1237.
259. Lobato, 71 P.3d 948 (holding that the location of pasture, water, and timber in the Beaubien document was La Sierra, based on evidence of both the nature of the land itself and the historical use of the local community).
260. Id. (citing, Dr. Marianne Stoller's report and testimony at trial).
261. Id.
262. Id.
263. Id. at 938, 949-50.
264. For a definition of "gross" and "appurtenant" right, see supra note 91
265. Lobato, 71 P.3d at 949.
266. A vara was a common unit of measurement in Mexico and Spain that amounted to just under a yard. The vara strips along the Culebra valley are narrow strips of individually owned, cultivated land with frontage on a stream for inigation purposes. See Stoller, supra note 9. at 14-15.
267. For an explanation of the system of private and community land grants under Spanish and Mexican law, see EBRiGHT, supra note 5, at 23.
268. For a description of subsistence patterns under the Mexican system of land tenure, see Ira G. Clark Water in New Mexico, A History of Management and use 34 (1987).
269. The court explained that Mexican land grants of this period were designed to secure the northern frontier by establishing permanent agricultural and pastoral communities in these sparsely populated areas, and that the territorial governor conveyed large tracts of land to individuals such as Beaubien with the express condition that they would attract settlers to the grant. See Tameling v. U.S. Freehold Land & Emigration Co., 2 Colo. 411, 416 (1874), aff'd, 93 U.S. 644 (1876). It is well known as a matter of history, that from a time coeval with the establishment by Spain of colonies in this country the king and likewise his provincial governors, were in the habit of making extensive grants of land to individuals for pastoral, agricultural and colonization purposes. After Mexico had achieved her independence, the same policy was pursued by the supreme and local governments of that country.
270. At trial, Dr. Marianne Stoller testified that the land that the villagers historically accessed on La Sierra matched the land described in the Beaubien document.
271. See Lobato v. Taylor, 13 P.3d 821, 832 (Colo. App. 2000). Further, the court noted that the 1864 agreement between Beaubien's heirs and William Gilpin, written pursuant to an oral agreement between Beaubien and Gilpin, further confirmed that these settlement rights ran with the land.
272. Lobato, 71 P.3d at 949. The document specifically recognized the settlement rights to the land by stating that the "express condition that the settlement rights before then conceded by said Charles Beaubien to residents of Costilla, Culebra & Trinchera, within said Tract included, shall be confirmed by the said William Gilpin as confirmed by him."
273. Id.
274. Lobato, 71 P.3d at 949 n.7 (distinguishing the importance of access rights to a private grant from those to a community grant, since the fact that communal lands were held by the community in perpetuity ensured permanent access to them).
275. Id. at 949-50.
276. The court rejected the court of appeals' conclusion that the law of implied easements exclusively applied to access rights and was inapplicable to profits or use rights. See Lobato, 13 P.3d at 832-33 (relying on Alexander Dawson, Inc. v. Fling, 155 Colo. 599, 396 P.2d 599 (1964)).
277. The Lobato court explained that the appeals court had overstated Fling, which failed to find implied use rights when the terms of a deed expressly limited the plaintiffs to certain uses. Lobato, 71 P.3d at 952.
278. Thus, Fling did not apply to the Lobato claims of implied rights, where the document at issue did not express a contrary intent. Id.
279. Rather, Lobato emphasized the "modern trend" of applying the same equitable concepts equally to all servitudes, whether access easements or profits à prendre, as both types of interests involved the same policy and practical concerns of effectuating a party's intent when they fail to comply with strict common law rules of conveyance. Id.
280. (citing Restatement of Property, supra note 85, § 450 Special N. (1944)).
281. Lobato, 71 P.3d at 950 ("This well-established area of property law is concerned with honoring the intentions of the parties to land transactions and avoiding injustice.").
282. Id. at 946-50.
283. The court recognized that, in the absence of a legally sufficient conveyance, the rights must nonetheless satisfy an exception to the Statute of Frauds. Id. at 938, 950 (citing Restatement (Third) of Property: Servitudes § 2.1).
284. Such exceptions include implied servitudes created by prescription, estoppel, prior use, or "other circumstances surrounding the conveyance of other interests in land, which give rise to the inference that the parties intended to create a servitude." Id. (citing Restatement (Third) of Property: Servitude § 2.8 cmt. b).
285. Id. at 950 (citing Restatement (Third) of Property: Servitudes § 2.17)
286. Id. at 954.
287. Id.
288. Id.
289. Id.
290. Id. at 954-55 (citing Wright v. Horse Creek Ranches, 697 P.2d 384, 388 (Colo. 1985);
291. Proper v. Greager, 827 P.2d 591, 595-96 (Colo. App. 1992)).
292. Id. at 950-51.
293. Id. (citing RESTATEMENT (Third) of Property: Servitudes § 2.10). The court found useful a number of early twentieth century Colorado ditch cases that upheld ditch easements through estoppel, without a requirement of deception, thus agreeing with plaintiffs that ditch rights were analogous to the settlement rights in Lobato.
294. See id. at 951 (citing Graybill v. Corlett, 60 Colo. 551, 154 P. 730, 730-31 (Colo. 1916) (upholding a landowner's right to use and maintain a water ditch across his neighbor's land when the parties had made an oral promise upon which the ditch user relied for irrigation);
295. Hoeyne Ditch Co. v. John Flood Ditch Co., 68 Colo. 538, 191 P. 108, 111 (Colo. 1920) (upholding a ditch user's equitable right to use defendant's ditch pursuant to an oral promise, by applying the "well settled" rule that, "although an oral contract relating to realty is within the statute [of frauds], where a consideration has passed, and it has been fully performed by both parties and possession taken in pursuance thereof, the bar of the statute is removed and equity will enforce the right thus acquired")).
296. Id. at 950-51.
297. Id. at 955-56.
298. Id.
299. According to the court, "reasonable reliance" depended on the nature of the transaction and the sophistication of the parties. Id.
300. Id. (citing Restatement (Third) of Property: Servitudes § 2.10).
301. The court emphasized that Beaubien had lured the plaintiffs' predecessors to the northern frontier by promising ample resources for their subsistence needs. Further, the settlers arguably fulfilled the condition of the Sangre de Cristo Grant by settling the land with a permanent agricultural community, thereby enabling Beaubien to secure his title to the Grant. Id.
302. Id. at 951-52 (citing Restement (Third) OF Property: Seervitudes § 2.12;
303. Lee v. Sch. Dist. No. R-1 in Jefferson County, 435 P.2d 232, 235-36 (Colo. 1967);
304. Proper v. Greager, 827 P.2d 591,593 (Colo. App. 1992)).
305. Id. at 956
306. Tameling v. U.S. Freehold Land & Emigration Co, Colo. 2, 411,411 (Colo. App. 1992)
307. Id. (relying on testimony that the resources from the mountain tract were essential to survival in the San Luis Valley, indicating that the settlers must have exercised these rights before Beaubien memorialized them in 1863).
308. Id.
309. Id. Again, this finding relied heavily on the lower court's findings of the fact and mirrored the arguments in the estoppel claim.
310. Id.
311. Id.
312. Id.
313. In his dissent, Justice Martinez argued that, under the same analysis used by the majority, the plaintiffs' had proven these latter rights as wen, based on evidence of the importance of these rights at the time of settlement and the community's historic use of these rights. Id. at 958-62 (Martinez, J., dissenting).
314. Id. at 957.
315. Lobato v. Taylor, 70 P.3d 1152, 1156 (Colo. 2003), as modified on denial of rehearing (June 16,2003) [hereinafter Lobato II].
316. This included all settlement during William Gilpin's ownership of the Grant beginning in 1864, described in supra note 129.
317. Id. at 1158-59.
318. Specifically, on remand landowners must demonstrate, by a preponderance of the evidence, that their land was owned or occupied by the settlers during the time that Gilpin owned the property. Id.
319. The court also required the Defendants (formerly Taylor, then ex-Enron executive Lou Pai) to pay the costs of identifying and serving all individuals who have usufructuary rights to La Sierra, as defined in the 2002 Lobato case: In light of our holding that Taylor failed to exercise reasonable diligence in personally naming and serving all reasonably ascertainable individuals with an identifiable interest in the Taylor Ranch, the costs of remedying this failure on remand must be borne by Taylor. In Colorado, costs are awarded to the prevailing party unless mandated otherwise by statute. C.R.C.P. 54(d). Because the plaintiff landowners have prevailed on their claims, Taylor now must pay the costs associated with identifying and notifying all persons who have access rights to the Taylor Ranch. Id. at 1167;
320. Deborah Frazier, Ranch Opened After 44 Years: Families Regain Access to Land Once Used by Ancestors, Rocky Mtn. News, June 12, 2004, at 13A. Further, the court allowed the plaintiffs to raise the class certification issue again to the trial court on remand.
321. Lobato II, 70 P.3d at n.14.
322. Lobato II, 70 P.3d at 1156.
323. Sylvia Lobato, Land Grant Heirs Win Vital Victory: Judge Rules Against Owners of Taylor Ranch, Ensures Access, Valley Courier (San Luis Valley, Colorado), June 12, 2004, at 1. Judge Perricone additionally ordered Defendants to pay an estimated $100,000 in costs for the title search, and denied Defendants' motions to restrict and further delay access to the property.
324. Frazier, supra note 155.
325. Christopher Ortiz, Court Gives Access to Ranch in San Luis, Denver Post, July 27, 2005, at B1.
326. See generally Tierra Amarilla cases cited in supra note 57 and accompanying text.
327. See Lobato v. Taylor, 71 P.3d 938, 947 (Colo. 2002) ("[W]e find that the document, when taken together with the other unique facts of this case, establishes a prescriptive easement, an easement by estoppel, and an easement from prior use.") (emphasis added).
328. Id. Also important to the Lobato court was the fact that the Beaubien document seemed to "memorialize commitments he had made to induce families to move hundreds of miles to make homes in the wilderness," circumstances that are indeed true for land grant settlers throughout present-day New Mexico.
329. Id. While private, Mexican-period land grants such as the Maxwell and Pablo Montoya grants may not share the important documentary history of La Sierra, in which each post-1863 deed to the mountain tract referred to the claims of the local community, they nonetheless share many of the persuasive factors in the Lobato case.
330. Id.
331. For an analysis of the Treaty and Mexican-law issues presented by the Taylor Ranch case, see Brief of Amici Curiae, Rael v. Taylor, 876 P.2d 1210 (Colo. 1994) (No. 92SC74).
332. See generally Placido Gómez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25 Nat. Resources J. 1039 (1985) (discussing the creation and adjudication of common lands in northern New Mexico land grants, including the Sangre de Cristo Grant).
333. For instance, while Lobato relied on Mexican law and custom to inform the intent and expectations of the parties in 1863, it failed to discuss the type of grant created under Mexican law or whether this was relevant to the reasonableness of the parties' reliance, in light of the legal customs of the time. See discussion supra, Part III. While the Lobato court treated the Sangre de Cristo Grant as essentially a private grant, there are different theories about what type of grant it actually was, with each theory bearing unique legal implications, even under U.S. law. Cf. García & Howland, supra note 28, at 45 (describing the Sangre de Cristo Grant as an empresario grant that contained both private land and communal land and arguing that the Mexican settlers should have received title to the mountain tract in common under Mexican law).
334. For instance, if the grant was an empresario or community grant in wl-dch the mountain tract was held in common, then the title to such lands would have been lost under Sandoval. See id. at 45-46.
335. See also discussion supra note 101 and accompanying text. On the other hand, if the use rights were legally created at the time of the original land grant, then the United States was arguably obligated to apply Mexican law or custom under the 1848 Treaty.
336. According to Plaintiffs, these rights were not affected by the 1860 Act of Congress, since the Surveyor General had not recommended that Congress extinguish the settlement rights of the local community and the Act only confirmed the claim "as recommended for confirmation by said surveyor-general in his reports...." Id. at 18-19 (citing Act of June 21, 1860, ch. 167, 12 Stat. 71 (1860)).
337. Further, the Act stated that "the foregoing confirmation shall only be construed as quit-claims or relinquishments, on the part of the United States, and shall not affect the adverse rights of any person or persons whomsoever." Id. at 19.
338. Likewise, by avoiding the legal status of the Grant under Mexican law, the court failed to analyze whether the Grant was complete at the time it was granted in 1844, and, if so, whether it was then subject to defeasement if the conditions of settlement were not met, or, on the other hand, if the grant was based on conditions subsequent to its conveyance to Beaubien and Lee, in which case the transfer was not actually complete until the land was settled in the 1860s, when American law applied. In the first scenario, the Grant and the settlement rights it contemplated would have been controlled by Mexican law and subject to U.S. recognition under the Treaty of Guadalupe Hidalgo, but the relevance of such law was debatable under Tameling, under which Congress's 1860 confirmation would render the Mexican legal conditions irrelevant. In the second scenario, because U.S. law clearly controlled by 1863, the recognition that the Grant was incomplete or failed to vest may have vitiated the plaintiffs' use of Mexican custom and practice to inform the intent of the parties in 1863. See Ebright, supra note 5, at 36-37.
339. Yet another argument is that the Grant never vested, since the vesting of the Sangre de Cristo Grant was arguably conditional on settlement within two years. See Stoller, supra note 9, at 3.
340. But see Garcia & Howland, supra note 28, at 42 (describing the conditions of fulfilling land grants as being less important by this period, as the Mexican government was increasingly desperate to settle northern lands in order to hold off American advancements). According to this latter view, the Sangre de Cristo Grant may have been reasonably understood as vested even without the conditions being fully satisfied, which may have justified the settlers and their successors in relying on their usufructuary rights as legally binding and enforceable.
341. See Lobato, 71 P.3d at 955 (discussing the reasonable expectations of the settlers under Mexican law and custom as applied to implied rights by estoppel).
342. Still, the decision has come at an enormous cost. After losing access to La Sierra in the 1960s, residents of San Luis and neighboring communities lost access to unique resources that had sustained the local economy and culture for over a century, and a generation has been deprived access to resources central to its economic and cultural well-being. Some estimate that 7500 residents left the community in the 1960s as a result of Taylor's restricting access to the resources on La Sierra. Frazier, supra note 155.
343. With an economy based nearly entirely on farming and ranching, nearly 50 percent of Costilla. County residents received public assistance by 1990, ranking the county in the top two statewide in terms of numbers of residents receiving public assistance. Stoller, supra note 9, at 44, 58 (suggesting that some of this assistance would be unnecessary if residents were allowed to access the mountain resources that their families traditionally used).
344. The case has generated tremendous amounts of court and attorney fees (although most of the legal support has been pro bono), and countless hours and ultimately years gathering documentation essential to the Taylor Ranch litigation. See Interview with María Mondragon-Valdéz, supra note 43.
345. The Land Rights Council received a grant of $75,000 in late 2003 to prepare a sustainable land use plan for La Sierra, which is currently being implemented by LRC planning director Arnold Valdéz. The study includes research about the numbers of sheep and cattle that were historically grazed on the mountain, as well as how much wood was traditionally harvested. See Deborah Frazier, Land War Ends but New Battle Looms: Property Owners Try to Figure How to Share Landscape, Rocky Mtn. News, Dec. 13, 2003 (on file with author) (noting statements of Maria Valdéz, who wrote the grant proposal for LRC);
346. Taylor Ranch Has New Owners, Daily Camera (Boulder, Colo.), Aug. 11, 2004 (on file with author). As the land and its watershed have been plundered by timber interests since 1960, there is certainly much to be healed.
347. See Pablo Carlos Moya, Taylor Ranch Damage Appalling, Visitors Find, Pueblo Chieftain, July 2004, at 5;
348. Karl Hess, Jr. & Tom Wolf, Treasure of La Sierra, Reason, Oct. 1999, available at http://reason.com/9910/fe.kh.treasure.html (last visited June 22, 2005).
349. Deborah Frazier, Embattled San Luis Ranch Sold to Texans, Rocky Mtn. News, Aug. 10, 1994, available at http://www.rockymountainnews.com/drmn/ state/article/0,1299,DRMN_21_3099910,00.html (last visited June 22, 2005).