Reply Brief — Taylor v. Lobato

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No. 03-364 | ee ae

IN THE

Supreme Court of the United States

ZACHARY TAYLOR, AS EXECUTOR OF THE ESTATE OF JACK T.

TAYLOR, JR., AND THE TAYLOR FAMILY PARTNERSHIP,

Petitioners,

EUGENE LOBATO, EMILIO LOBATO JR., MICHAEL J. VIGIL,

NORMAN MAESTAS, EUGENE MARTINEZ, CORPUS GALLEGOS

BY AND THROUGH HIS CONSERVATOR Y VETTE GALLEGOS, AND

ZACK BERNAL,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Colorado

REPLY BRIEF

ALBERT B. WOLF CARTER G. PHILLIPS*

RAYMOND P. MICKLEWRIGHT STEPHEN B. KINNAIRD

WOLF & SLATKIN, P.C. SIDLEY AUSTIN BROWN

44 Cook Street, Suite 1000 & WOOD LLP

Denver, Colorado 80206 1501 K Street, N.W.

(303) 355-2999 Washington, D.C. 20005

(202) 736-8000

KEITH D. TOOLEY

KATHRYN HAIGHT

WELBORN SULLIVAN MECK &

TOOLEY, P.C.

821 17th Street, Suite 500

Denver, Colorado 80202

(303) 830-2500

Counsel for Petitioners

November 18, 2003 * Counsel of Record

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

BPRS OIE FF EE eis Bs ihe nitive

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I THIS COURT HAS JURISDICTION TO

REVIEW THE DUE PROCESS ISSUES

EO PRPREE BENT oases vet lvercpnscaveneviscenneconesiedes

I. RESPONDENTS’ OBJECTIONS TO REVIEW

OF THE FEDERAL PROPERTY LAW

QUESTIONS LACK FORCE...

NPI os ue ria cae ee

TABLE OF AUTHORITIES

CASES

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975)...

Davis v. O'Hara, 266 U.S. 314 (1924)...

Dewey v. Des Moines, 173 U.S. 193 (1899)

Hathorn vy. Lovorn, 457 U.S. 255 (1982)

Heath v. Alabama, 474 U.S. 82 (1985) ..0.000000000....

Hewitt v. Glaser Land & Livestock Co., 626 P.2d

268 (Nev. 1981) ose eee

Illinois v. Gates, 462 U.S. 213 (1983)...

Kemmerer Coal Co. v. Brigham Young Univ. , 723

F 2d 54(10e Ce. 1965)...

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. SOB CP a eee

Orr v. Grr, 440US. MRO)... oe

Radio Station WOW, Inc. v. Johnson, 326 U:S.

N24 POG S. nce eee eee

Raley v. Ohio, 360 U.S. 423 (1959) 0000.

Shelledy v. Lore, 836 P.2d 786 (Utah 1992)..........

Tameling v. United States Freehold & Emigration

Co., 93 US. 644 (IGS)... eee

Taylor v. Jaquez, Civ. No. 96-Z-776 (D. Colo.

Aug. 22, 1996), aff'd, 126 F.3d 1294 (10th Cir.

1997), cert. denied, 523 U.S. 1005 (1998).........

United States v. Haddon, 550 F.2d 677 (1st Cir.

STATUTE

USC £1097...

RULE

wee. GR: ROSS... ec eee

OV 0

TABLE OF AUTHORITIES — continued

SCHOLARLY AUTHORITY Page

Robert L. Stern et al., Supreme Court Practice

I eee ee cs isu bos asieds 3,4, 6

REPLY BRIEF

Petitioners have demonstrated that the decisions below of

the Colorado Supreme Court create multiple conflicts with the

decisions of this Court, other state supreme courts, and the

federal courts of appeals on important issues of due process,

federal territorial law, and the effects of congressional

confirmations of title on land rights in the West. Pet. 17-30.

Respondents cannot, and barely attempt to, deny the conflicts

of authority identified in the petition. Instead, they claim that

for a host of reasons this Court lacks jurisdiction to review the

concededly final judgment below. Their arguments are

unsound, and indeed are based on patent misconceptions of

the law governing this Court’s jurisdiction and

mischaracterizations of the proceedings and decisions below.

I. THIS COURT HAS JURISDICTION TO REVIEW

THE DUE PROCESS ISSUES DECIDED BELOW.

Respondents claim that this Court lacks jurisdiction over

the federal due process questions presented because (1) the

Colorado Supreme Court allegedly based its notice ruling on

the Colorado Torrens Act; (2) the due process issues were not

pressed or passed on below, and (3) petitioners did not seek

review in this Court of the original due process ruling in Rael

v. Taylor in 1994. None of these arguments provides a basis

for denying certiorari.

1. Respondents assert that petitioners have “failed to

identify any federal questions.” Opp. 3. They contend that

the Colorado Supreme Court based its notice ruling on the

state statute and not the Due Process Clause of the Fourteenth

Amendment, noting that the Colorado Supreme Court implied

a requirement of “reasonable diligence” in the Torrens Act,

Pet. App. 153a. Opp. 22-23. This is a_ startling

mischaracterization of the ruling below, which expressly

decided the notice issue on federal constitutional grounds

precisely because respondents would have had no recourse

under the state statute to attack petitioners’ title for deficient

notice. In the section of the opinion below, tellingly entitled

“Notice Required By Due Process,” Pet. App. 12a, the

Colorado Supreme Court stated that, under the Torrens Act,

a challenge must be initiated within 90 days of

registration and successful claimants may recover only

damages, not property rights § 38-36-131, 10 CRS.

(2002). Laudable as these goals are, however, the act

must yield to the United States Constitution.

To have a preclusive effect on the landowners’ current

claims, Taylor’s Torrens judgment must satisfy the

minimum procedural requirements of the Due Process

Clause of the Fourteenth Amendment. Kremer v.

Chemical Constr. Corp., 456 US. 461, 481, 102 S Ct.

1883, 72 L Ed 2d 262 (1982) Although section 118-10-

31,5 C.RS. (1953), of the 1960s Torrens Act forecloses

any challenges to a court’s decree in a Torrens action

and although the essential purpose of the Torrens Act is

to eliminate attack on decrees of confirmation, the

Torrens bar on future challenges cannot be sustained

where constitutional deficiencies of notice are present

Rael v. Taylor, 876 P.2d at 1224

Id. at 13a (citations omitted). The court went on to state that,

in Rael, “[w]le held that to evaluate the sufficiency of

publication notice, due process requires a court to determine

‘whether under all the circumstances the means selected was

reasonably calculated to reach interested parties and whether

the party giving notice had exercised due diligence to

ascertain the identities of interested parties”” /d at 1Sa

(emphasis added). Applying the second prong of its federal

constitutional test, the state court held that “Taylor’s actions

were not sufficiently diligent to comply with due process.”

Id. at 2Sa (emphasis added)

This federal constitutional holding then became the basis

for the state court’s ruling that the 1960’s Torrens action was

not res judicata as to certain respondents. Pet App. at 29a.

ports

As the state court summed up its holding: “Applying the due

process analysis of Rae/ to the facts developed on remand, we

hold that those 1960s landowners not personally named and

served in the 1960s Torrens action, or their successors, are not

barred from bringing their present claims.” /d. The €olorado

Supreme Court thus could not have been clearer that it

rendered its holding on federal constitutional grounds, and

this Court clearly has jurisdiction to review this holding. '

2. This Court will decline review of federal questions that

were “not pressed or passed upon in the state court.” Heath v.

Alabama, 474 U.S. 82, 87 (1985); cf. //linois v. Gates, 462

U.S. 213, 218-19 (1983) (leaving open the question whether

this rule is jurisdictional or prudential). Respondents claim

that this Court cannot review the due process questions

presented in the petition because (allegedly) petitioners did

not adequately argue these points below. Opp. 20-21.

But respondents ignore that the Colorado Supreme Court

did in fact pass on the questions below, and that is all that

matters. Respondents fail to heed the disjunctive nature of

the “pressed or passed upon” test, and disregard the

“elementary rule that it is irrelevant to inquire .. when a

Federal question was raised in a court below when it appears

that such question was actually considered and decided.”

Orr v. Orr, 440 U.S. 268, 274-75 (1979) (omission in

original), Raley v. Ohio, 360 U.S. 423, 436 (1959) (“There

can be no question as to the proper presentation of a federal

claim when the highest state court passes on it.”); Robert L.

Stern et al., Supreme Court Practice § 3.19, at 185 (8th ed

' Indeed, the Torrens Act could not have been the basis of the decision

below, not only because (as the state court recognized) statutory attacks on

title are barred 90 days after the decree, Pet. App. 13a, but also because

the issue of compliance with the Torrens Act notice requirements had

been finally decided in the 1960's federal court action and was itself res

judicata. See Pet. 10 (quoting federal court holding ‘‘[t}hat the statutory

requirements of service, publication, and notice have been met and

fulfilled’” (alteration in original)).

2002) (“Once it is clear that the highest state court has

actualiy passed upon on the federal question, .... [a]n

irrebuttable presumption is created that the federal question

was timely and properly raised.”’).

There is no question that the Colorado Supreme Court

passed upon the due process questions presented — these are

the very holdings of the case. Indeed, as noted above, the

Colorado Supreme Court expressly declared that it “held” that

the Due Process Clause imposes a dual standard, requiring not

only that the statutory notice requirements be reasonably

calculated to inform claimants of the action, but also that the

private litigant be reasonably diligent in ascertaining, parties

to serve. Pet. App. 15a. It then held that Taylor failed to

comply with due process, id. at 25a, and proceeded to “hold

that those 1960s landowners not personally named and served

in the 1960s Torrens action, or their successors, are not

barred from bringing their present claims” J’ at 29a

(emphasis added). The questions raised in this setition are

thus cleanly presented for this Court’s review.’

* Although irrelevant, there is no basis for respondents’ contention,

unsupported by citation to the record, that the due process issues were not

properly pressed below, see Opp. 20-21. In their bnefs in the Colorado

Supreme Court in Rae! defending the judgment on res judicata, petitioners

did in fact argue (as they had in the lower courts) that the Torrens Act

notice requirements were constitutional, and that nothing in the Due

Process Clause required Taylor to go beyond the statutory requirements to

serve all county landowners. See, e.g, Reply App. A at 2a-7a. The due

process issue was thus not only passed upon below, but extensively argued

by both parties Respondents appear to contend that every specific

argument in the petition must have been made below, but that has never

been the rule; parties “are not confined here to the same arguments which

were advanced in the courts below upon a Federal question there

discussed.” Dewey v. Des Moines, 173 U.S. 193, 198 (1899), Stern,

supra, § 3.20, at 191. Moreover, once Rael was decided, and the

Colorado Supreme Court-had adopted its “dual standard” due process test

and remanded the case for application of that standard, there was no scope

thereafter for petitioners to challenge the “due diligence” prong of that

standard, cf Opp. 17. On the second due process issue, this Court's

3. Respondents’ final argument against jurisdiction is that

petitioners did not petition for certiorari on the due process

questions after the Colorado Supreme Court issued its

decision in Rael in 1994. That argument is wrong and

irrelevant for multiple reasons.

First, Rael was not itself a final judgment on the due

process question, as is required under 28 USC. § 1257.

Respondents rely on the fourth category of judgments

identified in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), as final in a pragmatic sense:

those situations where the federal issue has been finally

decided in the state courts with further proceedings

pending in which ihe party seeking review here might

prevail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal issue by this

Court, and where reversal of the state court on the

federal issue would be preclusive of any further

litigation on the relevant cause of action.

Id. at 482-83. The obvious flaw in respondents’ argument is

that the due process issue had not “been finally decided in the

state courts” by the Rael decision, as Cox requires. Rael

announced its novel “dual standard” for assessing the

constitutionality of notice under the Due Process Clause, Pet

App. 149a, but it expressly declined to decide finaliy the due

process issue. Rather, it held that “[t}he limited record before

us discloses numeriaus issues of disputed fact material to the

jurisdiction does not tum on what cases petitioners cited regarding the

ability of successors to real property to invoke the due process rights of

prior landowners (see id. at 21). Respondents pressed the ciaim that they

were entitled to rely on the demial of the due process rights of their

predecessors-in-interest, Pet. App. 135a; the Colorado Supreme Court

held in Rae/ that respondents’ claims were not barred by res judicata if

their predecessors’ due process rights to notice were violated, id , and then

it held in Lobato // that the predecessors’ due process rights were violated

and could be asserted by their successors, id at 29a. Thus, this second

issue was pressed as well as passed upon below, and there is not even a

colorable argument that jurisdiction is lacking in this Court.

resolution of the [respondents’] due process claim,” and thus

remanded the case for trial of the due process issue. /d. at

156a; see also Pet. App. 16a. The cases are legion in which

this Court has held that a decision on federal law is not final

when there has been a remand for trial of the federal issue.

See Urie v. Thompson, 337 U.S. 163, 171-72 & n.10 (1949)

(citing cases). The due process issue was not finally decided

in state court until Lobato IJ, Pet. App. 29a, from which this

petition was timely filed.’

Second, it 1s well settled that this Court “‘ha[s] jurisdiction

to consider all of the substantial federal questions determined

in the earlier stages of state proceedings,” regardless of

whether the earlier decision on the federal matter would be

considered law of the case in state court. Hathorn v. Lovorn,

457 US. 255, 261 (1982) (bracket omitted) (quoting Reece v.

Georgia, 350 U.S. 85, 87 (1955)), Davis v. O’Hara, 266 U.S.

314, 321 (1924), Stern, supra, § 3.7, at 155. Respondents

acknowledge this rule, but cryptically claim that this line of

cases “is distinguishable,” Opp. 18 n.17, without explaining

how. The short answer ts that it cannot be distinguished, and

this Court has jurisdiction to review a ruling on a federal

question whether made in the first or second appeal.

Third, the discussion of the finality of Rae/ is a red herring.

Respondents do not contest the finality of Lobato IJ. See Pet.

16-17. Lobato IJ clearly decided the federal due process

questions presented here (even if the standards it applied were

first announced in Rae/), and thus this Court’s jurisdiction

cannot be controverted. In summary, there is absolutely no

> Respondents claim that petitioners made a “tactical decision” to forgo

review of the assertedly “final” judgment in Rae/, Opp. 1, and to instead

pursue its unsuccessful collateral action to enjoin the state court litigation

in Taylor v. Jaquez, Civ. No. 96-Z-776 (D. Colo. Aug. 22, 1996)

(abstaining under Younger v. Harris, 401 U.S. 37 (1971)), aff'd, 126 F.3d

1294 (10th Cir. 1997), cert. denied, 523 US. 1005 (1998). To the

contrary, petitioners pursued that course because Rae/ was not a final

judgment subject to this Court’s review.

jurisdictional impediment to this Court’s consideration of the

due process questions presented .*

4. On the substantive question of whether review should be

granted, respondents’ arguments are meager. They

summarily claim that the decision below is consistent with

this Court’s due process precedents, Opp. 23-24, but fail to

address the critical point that all of those precedents address

the constitutionality of state statutory notice requirements (or

other state action). Pet. 18-22 & n4. Here, the Colorado

Supreme Court acknowledged that the Torrens Act notice

requirements were themselves constitutional, Pet. App. 153a;

under Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950), and the other precedents of this Court, that

should have been the end of the inquiry. Pet. 18-22. But the

Colorado Supreme Court has engrafted upon the Mullane test

a second requirement that the Due Process Clause imposes

tort-like duties upon private litigants to conform to a

“reasonably prudent applicant” standard, Pet. App 15a,

resulting in the unprecedented holding that the Due Process

Clause requires a quiet-title plaintiff to serve all county

landowners if a third party suggests that they may have

“potential claims” to the property, id. at 19a. Not only is the

rule below inconsistent with this Court’s precedents, and with

state-action doctrine generally, but it means that quiet-title

decrees will always be subject to collateral attack based on

“Respondents claim a vague right to raise future jurisdictional

objections regarding parties not named respondents, Opp. i, even though

every party below is a respondent in this Court whether named or not.

Sup. Ct. R. 12.6. Petitioners only named in the petition those respondents

expressly granted rights by the Colorado Supreme Court, Pet. 16; there

was no need to seek relief against respondents whose claims were

extinguished by the Colorado Supreme Court. See Pet. App. 25a-29a. But

even if arguendo any unnamed respondent were planning to submit the

requisite proof to the trial court of an implied easement under state law,

see id. at 30a, any such factual determinations would not affect the finality

of the judgment on the federal issues under Cox. Pet. 17, Radio Station

WOW, Inc. v. Johnson, 326 U.S. 120, 127 (1945).

claims of inadequate conduct by.a private actor. This Court

should not leave in place an aberrant decision that renders

title to real property insecure

Respondents fare no better in seeking to distinguish the

cases on the other side of the deep split (Pet. 24-25) on

whether a landowner can assert the constitutional rights of his

predecessor-in-interest. Respondents assert that in Kemmerer

Coal Co. v. Brigham Young University, 723 ¥ 2d 54 (10th

Cir 1983) and Shelledy v. Lore, 836 P.2d 786 (Utah 1992),

the successor’s claims were barred by the statute of

limitations, whereas here they were not. Opp. 22 n18 But

the reason that the statute of limitations was applied in those

cases, and not here, was that the successor in those cases was

not allowed to invoke the personal constitutional rights of the

prior landowner. The conflict with those courts — including

the federal court of appeals with jurisdiction in Colorado — 1s

square. Respondents point to factual distinctions between this

case and Hewitt v. Glaser Land & Livestock Co., 626 P.2d

268, 269 (Nev. 1981), but cannot show why the rule in //ewitt

(that successors to land rights lack standing to assert the

personal constitutional rights of their predecessors) turns on

such facts. The Court in United States v. Haddon, 550 F.2d

677, 681 (Ist Cir. 1977), disclaimed the broad rule adopted

here. The ruling below that due process rights run with the

land conflicts with other court decisions, allows for long-

delayed collateral attacks on title, and is foreign to basic

constitutional principles. It merits this Court’s review.

Il. RESPONDENTS’ OBJECTIONS TO REVIEW OF

THE FEDERAL PROPERTY LAW QUESTIONS

LACK FORCE.

Respondents’ claim that the second and third questions

presented are not “federal questions,” Opp. 24, 1s clearly

wrong. The question of what law governs private property

rights in a federal territory is a question of federal law. So too

is the question of the effect of a congressional confirmation of

title in fee simple absolute on property claims of third parties.

Respondents do not defend the Colorado Supreme Court’s

rulings on the merits, or deny that they are in stark conflict

with this Court’s precedents, Pet. 26-27. Rather, they claim

that “the Colorado Supreme Court ruled in favor of Taylor on

those issues,” and simply ruled in favor of respondents on

their “state law claims.” Opp. 2, 7-8, 24. That is another

breathtaking mischaracterization. First, respondents claimed

property rights granted to the original settlers in the 1850’s

under Mexican law, acknowledging that Mexican law

governed in the Colorado territory until abrogated. Reply

App. B at 33a-36a & n.78. Their putative “state law claims”

had nothing to do with the implied easements that the

Colorado Supreme Court found to have been acquired by the

original settlers in the 1850’s under “United States law,” Pet.

App. 58a-59a; see Pet. 26-27 & nn.6, 7. Rather, respondents

claimed below only that the 1863 Beaubien Document was an

express grant of servitudes on the ranch property, Reply App.

B at 9a-32a, and alternatively, under adverse possession, that

“as of at least 1883 (20 years after the 1863 Document was

signed), and continuously since that time, Plaintiffs’

predecessors have held these rights by prescription, if not

under the Document,” Reply App. D at 49a (emphasis

added).” The Colorado Supreme Court’s choice of governing

> Respondents’ claim (again made without citing the record) that

petitioners have engaged in a “stunning reversal of position” on the

applicability of Mexican law, and that the court below adopted their prior

position, Opp. 9 & n.11, likewise mischaracterizes the record. Petitioners

never once claimed that U.S. law (and not Mexican law) governed private

property rights after the 1848 Treaty and prior to the adoption of the

common law in 1861. Petitioners have denied that the original settlers had

any property rights under Mexican law because the Mexican grant created

rights only in Charles Beaubien’s predecessors, as the surveyor-general

found in recognizing that Beaubien had absolute title to the Sangre de

Cnisto grant “under the laws, usages, and customs of Spain and Mexico,”

Pet. App. 249a. Pet. 6-7. Moreover, petitioners have argued, as

respondents recognize, Opp. 10-11, that any rights such settlers may have

had under Mexican law were in any event extinguished by the

congressional confirmation of title in Beaubien. Reply App. C at 38a-47a.

law conflicted with the rule of this Court, and then it applied

that law to recognize private property rights in conflict with

other lower courts that have held such rights to be

extinguished by congressional confirmations of title. Pet. 28-

30. It defies belief for respondents to question the conflict

here with the Tenth Circuit, which denied respondents’ claims

to the very same access rights on the very same property.

Respondents’ call for an end to this litigation is rich with

irony._ This property dispute should have ended 125 years ago

with 7Zameling v. United States Freehold & Emigration Co.,

93 U.S. 644 (1876), or at least 40 years ago when title was

quieted in petitioners. The Colorado Supreme Court has

reached an unjust result by distorting important principles of

federal constitutional and property law and announcing rules

that render title to real property insecure. Contrary to

respondents’ claims, the decisions below are not limited to the

factual context of this case. The state court’s novel

“reasonably prudent applicant” prong of the federal due

process standard will govern every judicial proceeding that

affects property rights, and its holding that successors may

assert the constitutional rights of previous landowners opens

any quiet-title decree to long-delayed collateral attacks.

Furthermore, its purported invocation of “United States law”

to recognize common-law rights in federal territories in

circumvention of congressional confirmations of title affects

vast amounts of property where title derives from Mexican

land grants. These distortions should be corrected, and then

this case will be completed on the basis of a clear ruling by

the Court that petitioners no longer face challenges to the full

enjoyment of their property.

CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

ALBERT B. WOLF CARTER G. PHILLIPS*

RAYMOND P. MICKLEWRIGHT STEPHEN B. KINNAIRD

WOLF & SLATKIN, P.C. _ SIDLEY AUSTIN BROWN

44 Cook Street, Suite 1000 & WOOD LLP

Denver, Colorado 80206 1501 K Street, N.W.

(303) 355-2999 Washington, D.C. 20005

(202) 736-8000

KEITH D. TOOLEY

KATHRYN HAIGHT

WELBORN SULLIVAN MECK &

TOOLEY, P.C.

821 17th Street, Suite 500

Denver, Colorado 80202

(303) 830-2500

Counsel for Petitioners

November 18, 2003 * Counsel of Record

APPENDICES

APPENDIX A

SUPREME COURT, STATE OF COLORADO

Case No. 92-SC-74

COMBINED ANSWER AND OPENING BRIEF OF

RESPONDENT/CROSS-PETITIONER ZACHARY

‘TAYLOR, AS EXECUTOR OF THE ESTATE OF

JACK T. TAYLOR, JR., DECEASED

APOLINAR RAEL, et al.,

Petitioners,

VS.

ZACHARY TAYLOR, as Executor of the Estate of

Jack T. Taylor, Jr., Deceased,

Respondent and Cross-Petitioner.

Colorado Court of Appeals

Case No. 87 CA 0658

Opinion by JUDGE PLANK

JONES and NEY, J.J. Concurring

Appeal from the District Court of Costilla County

Max C. Wilson, District Judge

Trial Court Case No. 81 CV 5

WOLF & SLATKIN

Professional Corporation

ALBERT B. WOLF, #545

745 Ptarmigan Place

3773 Cherry Creek North Drive

Denver, CO 80209

(303) 355-2999

Attorneys for Respondent and

Cross Petitioner, Zachary

Taylor as Executor of the Estate

of Jack T. Taylor, Jr., Deceased

* * * *

[7] ARGUMENTS

I. THE NOTICE GIVEN IN THE TAYLOR

TORRENS ACTION SATISFIED ALL DUE

PROCESS REQUIREMENTS.

The record establishes that constitutionally sufficient notice

was given in Taylor’s Torrens Action. Before examining the

process used to identify the individually named defendants in

the Torrens Action, it is important to observe that Heirs have

not challenged, and are too late to challenge the

constitutionality of the Torrens Act provisions. Additionally,

they make no claim that there was any lack. of compliance

with [8] Torrens Act notice provisions in the Torrens Action

and that compliance, as well as jurisdiction over the parties

and subject matter, must be presumed because the record

affirmatively does not show otherwise. See Begg v. Pile, 153

Colo. 350, 386 P.2d 347 (1963); Kavanagh v. Hamilton, 53

Colo. 157, 125 P. 512 (1912); Hughes v. Webster, 52 Colo.

475, 122 P. 789 (1912).

The statutory method of ascertaining the parties to be

named and personally served and the method provided for

service upon unknown persons not only satisfies the

Constitutional requisites of the Mullane* line of authorities

but appears to have succeeded in notifying the Heirs of the

pendency of the Torrens Action in that they have not made

any effort, anywhere, to claim otherwise. Indeed, the

Colorado Torrens Act establishes a constitutionally sound

method of ascertaining the parties who are and who are not to

be served by publication.

A careful comparison of the facts in Mullane and its

progeny with the process followed in the Torrens Action

illustrates the important differences between the process

condemned in those cases and the due diligence mandated by

the Torrens Act and followed in the Torrens Action.

Mullane, Tulsa Professional Collection — Services,

Mennonite, Schroeder, Walker and this Court’s recent

Omnibank’ case all have elements in common that are in

sharp contrast with the procedures followed in the Torrens

Action that were designed to give notice to interested parties.

The procedures mandated by the Colorado Torrens Act to [9]

ascertain and give notice to parties in interest were far more

exhaustive and extensive than the procedures in the Mullane

case and its progeny. The Colorado Torrens Act process

imposed requirements to identify and notify parties who had

interests in the subject property by not only the applicant for

registration (Torrens Act 104) but also the Torrens court

(Torrens Act 108, 122), a sworn court-appointed attorney title

examiner (Torrens Act 113, 118), and a guardian ad litem

(Torrens Act 124).

8 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).

* Mullane v. Central Hanover Bank & Trust Co., supra, Tulsa

Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988),

Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983); Schroeder

v. City of New York, 371 U.S. 208 (1962), Walker v. City of Hutchinson,

352 U.S. 112 (1956); and Omnibank Iliff N.A. v. Tipton, __ P.2d__, 16

BTR. 984 (Colo. App. 1992) (application for cert. pending).

Following the report of the title examiner a summons Is to

be prepared (Torrens Act 119) in which the parties are to be

designated pursuant to the following provision:

38-36-120. Parties plaintiff and defendant -unknown

claimants. The applicant shall be known in the summons

as the plaintiff. All persons named in the application or

found by the report of the examiner as being in

possession of the premises or as having of record any

lien, encumbrance, right, title, or interest in the land, and

all other persons designated as follows: ‘All other

persons or parties unknown claiming any right title,

estate, lien, or interest in, to, or upon the real estate

described in the application herein’, shall be defendants.

Service of the summons is required to be in the manner

provided for service of summons in civil actions in the district

courts “. except as otherwise provided in...” the Torrens Act.

The Act provides that service on non-resident defendants and

unknown persons or parties “shall” be made

by publishing said summons in a newspaper of general

circulation printed and published in the county where the

application is filed, once each week for three

consecutive weeks...

Torrens Act 121.'°

[10] Accordingly, the Torrens Action court tried the

identical substantive factual and legal issues raised by Heirs

in the instant action by summary judgment (Exhibit D-35)

and trial proceedings, trial having lasted some eight days

(Exhibit D-1). The final decree of confirmation of title and

'© Judge Arraj actually ordered publication for six consecutive weeks

(Exhibit D-9). That extended notice appears to have been given under the

provisions of Title Act 122 allowing that “[{o]ther or further notice of the

application for registration may be given in such manner and to such

persons as the court or any judge thereof may direct.”

registration was signed on October 5, 1965 (D-1). The affect

of the final decree, pursuant to Torrens Act 130 was that:

Every decree of registration shall bind the land and quiet

the title thereto, except as otherwise provided in this

article, and shall be forever binding and conclusive upon

all persons, whether mentioned by name in_ the

application or included in all ‘other persons or parties

unknown claiming any right, title, estate, lien, or interest

in, to, or upon the real estate described in the application

herein’, and such decree shall not be opened by reason

of the absence, infancy, or other disability of any person

affected thereby, nor by any proceeding at law or in

equity for reversing judgments or decrees, except as

especially provided in Section 38-36-131.

While rights to appeal were preserved (Torrens Act 130) in

the Torrens Action, those rights were unsuccessfully

exercised. Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967).

Post decree relief is afforded by Torrens Act 131 allowing

any person “.. having an interest in or lien upon the land who

has not been actually served with process or notified of the

filing of the application or the pendency thereof” to appear

within 90 days after entry of the decree and file a sworn

answer to the application if they had no actual notice or

information of the filing of the application or the pendency of

the proceedings. That section also allows tort actions against

applicants for fraud in procuring decrees as well as indemnity

actions. Torrens Act 131(2).

No comparable provisions for identification of parties in

interest, service of process or remedies are provided in the

statutes condemned in the United States Supreme Court eased

relied upon by Heirs and their amici. Mullane, Walker and

Tulsa [11] Professional Services involved publication only of

notices, Mennonite and Omnibank did not require written

notice to mortgagees whose interests were of record, and

Schroeder required only publication and random posting of

notices, not necessarily on the specific properties affected by

the subject condemnation proceedings. None of the statutes or

proceedings in the cited cases involved a court-appointed

examiner of titles charged with examining title and reporting

not only its status but also identifying persons who have

record interests in or are in possession of the subject property,

the filing of papers having the effect of lis pendens on the

property; judicial involvement in the notice-giving and party

identification process; a guardian ad litem'', or a post-decree

procedure allowing interested parties not served or notified to

challenge the decree.

From the record it is clear that the efforts to provide notice

to all persons with interests in the Mountain Tract, including

the Heirs, were successful. Heirs filed 14 affidavits (Exhibits

I-1, I-2, I-3, I-4 and J) in opposition to Taylor’s summary

judgment or judgment on the pleadings motion. Not one

affiant stated that he or she was unaware of either the filing or

the pendency of the Taylor Torrens Action!

Several of the Heir affiants swore that they had used the

Mountain Tract for years prior to the time of Taylor’s

ownership and fencing in the 1960s. Several of the affidavits

also stressed the purportedly adverse affect of Taylor’s

purchase of the Mountain Tract upon many of the people in

the area. Those statements, coupled with the exhaustive

arguments in the briefs of Heirs and their amici, is persuasive,

if not conclusive evidence that every person interested in the

Mountain Tract had notice and actual knowledge of the

Torrens Action.

[12] In this connection, the relevant language of Mullane

itself is instructive:

It is true that publication traditionally has been

acceptable as notification supplemental to other action

'' Except Mullane in which the guardian ad litem himself raised the due

process issues.

which in itself may reasonably be expected to convey a

warning. The ways of an owner with tangible property

are such that he usually arranges means to learn of any

direct attack upon his possessory or proprietary rights.

Hence, libel of a ship, attachment of a chattel or entry

upon real estate in the name of law may reasonably be

expected to come promptly to the owner’s attention.

When the state within which the owner has located such

property seizes it for some reason, publication or posting

affords an additional measure of notification.

Taylor’s unchallenged affidavit establishes that from the time

of his purchase and thereafter he openly and notoriously took

possession of the Mountain Tract to the total exclusion of all

others except his invitees or grantees (I, pp. 265-333).

Mullane, its progeny and this Court hold that the only

notice required to be given is that which is reasonably

calculated to provide actual notice to parties in interest. Au/t

v. Department of Revenue, 697 P.2d 24, 27-28 (Colo. 1985).

More than sufficient notice was given in the instant case.

The Colorado Torrens Act provided a_ legislatively

established method of reasonably ascertaining the parties to

_be named defendants and personally served. The process

looked to recorded interests, actual possession and imposed

ascertainment responsibilities to ascertain parties to be

individually named as defendants not only upon the applicant

but also upon the court and two sworn, court-appointed

officials: a title examiner and a guardian ad litem. That

procedure satisfies every standard of diligent inquiry.

* * *k &

APPENDIX B

SUPREME COURT, STATE OF COLORADO

2 E. 14th Avenue, 4th FI.

Denver, Colorado 80203

Case No. 00 SC 527

CERTIORARI TO THE

COLORADO COURT OF APPEALS, 98CA1442

DISTRICT COURT, COSTILLA COUNTY, 81CVS5

EUGENE LOBATO, et al.

Petitioners:

ZACHARY TAYLOR, as executor

of the estate of Jack T. Taylor, Jr., deceased, et al.

Respondents:

Jeffrey A. Goldstein

Goldstein & Dodge

1763 Franklin St.

Denver, CO 80218

Phone: 861-8580

Fax: 861-1203

Att Reg. 4735

OPENING BRIEF

* * *

[18] IV. ARGUMENT

A. A PROPER APPLICATION OF COLORADO

LAW TO ESTABLISHED FACTS COMPELS

THE CONCLUSION THAT THE — 1863

BEAUBIEN DOCUMENT CREATED AND

CONFIRMED RIGHTS TO USE LA SIERRA.

The court of appeals acknowledged that the Beaubien

Document set forth “certain rights and privileges to be had by

settlers residing in towns located within the boundaries of the

Sangre de Cristo grant.” Lobato, 13 P.3d at 829. However,

the court resorted to a piecemeal application of repealed

nineteenth century laws to wipe away more than a century of

conduct in reliance on that Document.’? This was a patent

misapplication of Colorado law. Additionally, when the law

of servitudes is properly applied in this case, it is clear that

the 1863 Beaubien Document created and confirmed rights to

use La Sierra.'°

'> Significantly, in the June Order, the trial court ignored Taylor’s

statutory argument, which had not been raised as a defense until the eve of

trial. See June Order at V. 16, f. 5593.

includes the nghts of pastures, firewood and timber but does not mention

hunting, fishing and recreation. The latter three nights are not included in

the Beaubien Document claim but are included in both the prescription

and Mexican law claims. In this brief, the full group of nghts is referred

to as “settlement rights,” while the narrower subset of nghts expressly

included in the Beaubien Document is referred to as “use rights.”

10a

1. The Court of Appeals Misapplied Repealed

Nineteenth Century Laws and Rules of

Construction to Extinguish Rights Exercised

under the Beaubien Document for More than

a Century.

The court of appeals selected, in isolation, three technical

provisions (two from an 1861 law,'’ and one from the

common law, all expressly repealed in 1868), to invalidate the

rights under the Beaubien Document. Based on_ these

provisions, the court concluded that the Document was [19]

invalid altogether as a “conveyance,” Lobato, 13 P.3d at 831,

because: (a) under the christian and surname law, the

Document (i) did not give “christian and surnames” of the

grantees; and (11) did not specify the location of the servient

estate;'* and (b) [to the extent the rights...are profits...in

gross” ],'” under the common law purportedly then requiring

words of inheritance, the Documeni failed to pass the rights to

'” 1861 General Laws of Territory of Colo., Act Concerning

Conveyances of Real Estate, Section 2 (hereinafter “christian and sumame

law’), App. 2A at 64.

'® A close reading of this statute is warranted. The court invalidated the

rights based on the first part of the referenced sentence in the statute

requiring [for conveyances to bodies politic or corporate] “an accurate

description of the premises”, and ignored the language immediately

following: “or the interest in the premises intended to be conveyed.”

Even assuming this requirement was applicable at all, since this was not a

conveyance to a body politic or corporate [or if it was, then the “christian

and surname” requirement did not apply], the requirement was satisfied in

this case because the Beaubien Document expressly sets forth the

“interests to be conveyed” (“pastures,...firewood and timber’).

'? See discussion infra at IV,A(2)(d) at 28-32. This proposition is not

even applicable since servitudes are presumed to be appurtenant, not in

gross. Passaic Valley Council, B.S.A. v. Hartwood, 348 N.Y.S.2d 883,

885 (N.Y.Sup.Ct. 1973), modified on other grounds, 361 N.Y.S. 2d 945

(N.Y.App. 1974).

lla

the successors in interest of the original grantees.”” Jd. 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 entife 1863 statutory

scheme, was erroneous.

a. Technically “imperfect” documents are not

void unless a statute expressly says so.

[20] The christian and surname law (App. 2A) does not

state that the failure to include the items listed renders

documents ipso facto invalid. Absent an express provision in

the statute, invalidity of a document may not be “derived

-from negative implication.” As this Court has previously

held:

An act which provides that all deeds shall be good and

valid where witnessed by two or more persons and

recorded will not by implication be construed as

declaring that all deeds not so witnessed and recorded

shall be void.

White Cap Mining Co. v. Resurrection Mining Co., 174 P.2d

727, 730 (Colo. 1946) (citation omitted) (statute providing

that assignment of certificate of purchase “shall vest” in

assignee upon recording did not say that “title shall not vest

until the certificate is recorded.”) Accord, Mulford v.

Rowland, 100 P. 603 (Colo. 1909) (statute requiring that

° This requirement of express words of inheritance (i.e., “heirs and

assigns”) was cited by the court from /n re Newby’s Estate, 361 P.2d 622

(Colo. 1961), as being the common law. That case, however, also says

that it is the common law related to devises, and suggests that lack of such

words of inheritance can be overlooked if a contrary intent appeared in the

will (/d. at 623-24) clearly mandating intervention of equity to achieve

fairness. See also, Trinidad v. Simpson, 5 Colo. 65, 67-68 (Colo. 1879)

(judicial notice taken that inhabitants in southern counties of Colorado

were largely, if not exclusively, Spanish speaking around the time this

Document was signed).

12a

power of attorney “be recorded” in same office where

conveyance in which power is exercised is recorded does not

invalidate title under a deed where the power was not

recorded, especially in light of “companion statutes” bearing

thereon, which existed and had to be construed together with

the statute in question. )”!

[21]b. The 1861 exceptions to the Statutes of

Fraud compel enforcement of the Beaubien

Document.

The court of appeals failed to consider these strict 1861

conveyancing laws in pari materia’’ (see e.g., Rickstrew v.

People, 822 P.2d 505, 507 n.2 (Colo. 1991)) with the 1861

*!' In Mulford, this Court looked at the circumstances surrounding

creation of the deed, including the actual knowledge of the existence of

the power of attorney by the complaining party seeking invalidation. The

Court stated that “the plaintiffs case does not appeal strongly to the

conscience of a chancellor” because “[n]otwithstanding this knowledge,

plainuff received his deed, paid the purchase price, and thereby took his

chances of defendant’s being able to furnish, by parol evidence, proof of

the execution and existence of the power of attorney whose absence from

the record was the only flaw in this ttle... .” /d. at 184, 185. Likewise, in

this case, Taylor’s argument of statutory voidness “does not appeal to the

conscience” because he bought this ranch, fully cognizant of the Beaubien

Document and the Plaintiffs’ (and their predecessors’) claimed rights and

proven use consistent therewith for over a century. Equity should not

allow the invalidation of the 1863 Document on a technicality. Craig v.

Chandler, 6 Colo. 543 (Colo. 1883) (strict construction of 1861 law

disallowing conveyance between husband and wife was overridden by

equitable considerations: “though void at law, an absolute conveyance of

real or personal property (from husband to wife) is good in equity.”) /d. at

548.

*2 Compare christian and surname law (App. 2A, Section 2 at 65) (no

articulated consequences for failure to meet provisions) to 1861 Statutes

of Fraud (e.g., Sections 1, 3, 8, 12 and 17-19). which clearly instruct that

if the sections are violated the offending document shall be “void.” (App.

2B) Had the 1861 Territonal Legislature wanted to make documents void

for the failure to meet the provisions relied upon by the court of appeals, it

would have said so.

l3a

Statutes of Fraud, which were also in place in 1863, and

which codified application of equitable principles to save

imperfect transactions and writings.”> As this Court has noted

previously, however “laudable” were the goals of the old

Statutes of Fraud adopted by English Parliament in 1677,

“courts concerned about the inequitable results... began to

develop such doctrines as equitable estoppel and part

performance to prevent the defense from becoming itself a

means to perpetrate fraud.” Kiely v. St. Germain, 670 P.2d

764, 768 (Colo. 1983) (promissory estoppel claim upheld

without a writing). In this case, more than a century of

performance must override these archaic laws.

c. The laws were repealed and the savings

clause does not apply to save the common

law.

[22] The 1861 laws were expressly repealed in 1868.”

Reviving these laws now to extinguish rights that were

*? Section 10 of the Act Concerning Fraudulent Conveyances and

Contracts Reiative to Real and Personal Property (“1861 Statutes of

Fraud”), specifically empowered “courts of equity to compel the specific

performance of agreements, in cases of -part performance of such

agreement.” (App. 2B at 244). This Statutes of Fraud exception remains

unchanged today. C.R.S. § 38-10-110. The Statutes of Fraud should not

be allowed to operate as a cloak for, rather than a shield against, fraud.

Burnford v. Blanning, 540 P.2d 337 (Colo. 1975). Here, permitting these

1861 statutes to defeat Plaintiffs’ rights would perpetrate such an injustice

for Taylor.

4 1868 Colo. Terr.L.Cb.XVII, sec. 7 and endnote, page 115 (App. 3 at

107 and 115; App. 4 at 683). The savings clause was only and improperly

used by the court of appeals to “save” the common law rule on words of

inheritance. Lobato at 831. See e.g., Schuler v. Henry, 94 P. 360 (Colo.

1908) (denying alleged nghts under abrogated common law of coverture

since “where the reason, which is the spirit and soul of the law, fails the

[common] law fails.” /d. at 363.) The court of appeals significantly (and

appropnately) did not address or “save” the 1861 chnstian and surname

law, Section 2, from its express repeal. Lobato at 831. And a repealed

14a

unchallenged and exercised for generations after repeal 1s

contrary to any proper statutory interpretation.”” The court of

appeals turned the law on its head to “save” repealed laws for

ex post facto application to re-write more than 100 years of

Colorado history.

d. The right to invoke these newly raised

defenses has long ago been lost.

The court of appeals acknowledged that the rights under the

Beaubien Document were exercised for more than a century.

Lobato, 13 P.3d at 825. There is no evidence that during that

period Taylor’s predecessors in title, including Taylor in the

Torrens action, ever raised alleged defects under 1861 laws as

a defense to those rights. Indeed, Taylor did not raise this

defense in this litigation for more than seventeen years until

the eve of trial, and the trial court disregarded it entirely in its

ruling. The court of appeals’ decision turns on a technical

defense that was long ago lost under a litany of applicable

grounds, including statutes of limitation, laches, wa ver and

estoppel.

2. The Law of Servitudes Properly Applied to

the Facts of this Case Establishes That the

Beaubien Document Created and Confirmed

Plaintiffs’ Rights to Use La Sierra.

[23] Although the court of appeals largely skirted the merits

of the Beaubien Document claim by application of nineteenth

century law: addre: 2d above, the court further erred in

concluding that the use rights should not be treated as other

servitudes under Colorado law. This Court should properly

apply servitude law to the facts of this case — including the

uninterrupted exercise of the use rights for more than a

law is deemed as though it never existed. Hirschburg v. The People, 6

Colo. 145, 147 (Colo. 1881).

*> See e.g, Petition of S.O., 795 P.2d 254, 258 (Colo. 1990) (just and

reasonable result presumed from statute and absurd result to be avoided).

lSa

century based on the original parties’ and their successors’

interpretation and understanding of the Beaubien Document —

and conclude that the use rights on La Sierra were created and

confirmed in the Beaubien Document.

a. The use rights are “servitudes.”

The use rights are “profits a prendre.” These interests, now

known as profits, along with easements and covenants, are all

termed “servitudes.””° Contrary to the lower courts’

conclusion that profits and easements are not treated

identically for all purposes, Lobato, 13 P.3d at 827, and as

even Taylor conceded before trial (V. 13, f. 4000), profits,

including profits a prendre, are labeled and treated in the law

as ‘‘easements” since “in no case [is] there a rule applicable

to one of these interests which [is] not also applicable to the

other.” Restatement (First) of Property § 450 Special note

(1944). And “generally, the rules governing creation.

interpretation, transfe r and termination of easements and

profits are the same 7 in American law.” (Restatement § 1.2

(2000), “Although labels are not determinative, the terms “easement,”

“profit,” “covenant” and “servitude” normally indicate that a servitude is

intended.” (Hereinafter Restatement Third will be known as the

“Restatement”.) “Profits a prendre” are now known simply as “profits.”

Restatement § 1.2, comment (f) at 16.

27 See Hottell v. Farmer’s Protective Association, 53 P. 327 (Colo.

1898) (mixing the terms “covenant” and “easement” interchangeably and

describing the right to use water and machinery on another’s land as “an

easement, or something in the nature of an easement.” /d. at 330. See

also, Gerhard v. Stephens, 442 P.2d 692, 706 (Cal. 1968) (“for purposes

of the issue [of whether the interest can be abandoned,] easements and

profits a prendre are indistinguishable”), Gray v. Handy, 208 N.E.2d 829,

852 (Mass. 1965) (an appurtenant profit is “in all respects, except the

character of the user, of the same nature as an easement”), Willamette

Quarries, Inc. v. Wodtli, 761 P.2d 1356, 1360 (Ore. App.1988), aff'd, 308

Ore. 406, 781 P.2d 1196 (Ore. 1989) (“profit a prendre...similar to and

subject to the same rules as easements”).

l6a

comment (e) [24] (emphasis supplied).”*) Accord, Figluizzi v.

Carcajou Shooting Club, 516 N.W.2d 410 (Wis. 1994)

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.

Both the creation and interpretation of the servitudes in the

instant case thus must be analyzed using the law of easements

and servitudes.” And since the servitudes themselves (the

“benefits” of “pastures, firewood and timber”) were expressly

written down in this Document, the issue of their “creation”

should not be confused with the issue of their location for

exercise — La [25] Sierra. Since both lower courts concluded

that profits were not granted (or “created”) by the Document,

8 In Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229 (Colo.

1998), this Court also analyzed easements as_ servitudes, relying

extensively upon approved portions of the then-tentative draft of

Restatement (Third) of Property (Servitudes). That entire Restatement has

now been formally adopted and published. As the commentators observe:

“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 laid-development

practices using servitudes, without imposing artificial constraints as to

form or arbitrary limitations as to substance.” Restatement, Introduction,

p. 3 (emphasis supplied).

*? The distinction between “creation” and “interpretation” of servitudes

is important. See Restatement (Chapter 2 covers creation; Chapter 4 is

interpretation). Although the court of appeals recites from Tiffany and

Thompson (real property treatises) for general propositions on how the

nature of profits and easements vary slightly (Lobato at 826-27, 833),

neither of these treatises supports the proposition that the law used fo

interpret the two types of interests is different. The only case cited was

Alexander Dawson v. Fling, which both lower courts completely

misapplied. See discussion infra at IV, A, 2(e).

17a

that issue first will be addressed. Then, using servitude

principles, Plaintiffs will show that the Document should be

interpreted to confirm that La Sierra was the intended location

for the rights to be used.

b. While not perfectly stated, the servitudes

were created and enforceable.

Contrary to the conclusions of the lower courts, even

without words of “grant” or strict compliance with ancient

statutes,” the Beaubien Document created use rights

servitudes. Servitudes may be created: (a) by express

conveyance; (b) by implication (including by pre-existing use

or by demonstration of general development plan); and (c) by

prescription. Lazy Dog Ranch, 965 P.2d at 1234. Magic

words, including those of express grant,’' are not required to

create a servitude since “[t]he intent to create a servitude may

be express or implied. No particular form of expression is

required....” Restatement § 2.2. (emphasis supplied). See

also, Hamilton v. Ertl, 360 P.2d 660, 663 (Colo1961).

Pertinent to this case, the Restatement commentators

explain:

people sometimes fail to articulate their understandings

in words, and even when they use words, they may fail

to express their intentions unambiguously. 7o avoid

unfairness, American courts generally seek to ascertain

and give effect to the intentions of the parties, even

though imperfectly expressed... Zhe old insistence on

use of particular words of grant [and] words of

inheritance...have almost totally disappeared from

modern law.

*° As a non-possessory interest in land, an easement does not require

the precise description that a possessory interest [fee title] does. Hutson v.

Agricultural Ditch & Reservoir Co., 723 P.2d 736, 739 (Colo. 1986).

>" Thompson v. Finnerud, 212 N.W. 497 (S.D. 1927) (hunting rights

were servitudes for which no word of “grant” was fiecessary).

18a

[26] Jd. at Section 2.2, comments (a) and (d) at pp. 62-63

(emphasis supplied). See also, Scott v. Brown, 206 P. $72,

$73 (Colo. 1922).

Simply stated, failure to use express words of grant,

~ technical legal conveyance form or words, or even a clear

definition of the servient estate to be burdened does not void

the creation of a servitude,’ especially if it otherwise is

enforceable in equity Moreover, to void the heart of the

written, signed and recorded Document which explicitly

names these privileges allows Taylor to be unjustly enriched

by terminating these long-standing rights on a technicality.

See e.g., Ralston Oil and Gas Co. v. July Corp., 719 P2d 334,

339 (Colo. App. 1985) (constructive trust imposed to enforce

oral agreement to convey lease).

c. The servitudes were relied upon and

performed.

Part performance under the Document removes the bar of

the Statute of Frauds and compels its enforcement.’ An 1863

*? Even without express words of “grant,” the Torrens judge construed

the Beaubien Document as creating a “grant” to the vega, another piece of

land covered in the Document (V. 3, ff. 379-381). See Lazy Dog Ranch,

965 P.2d at 1234; Bromley v. Lambert and Son, Inc., 752 P.2d 595 (Colo.

App. 1988); Proper v. Greager, 827 P.2d 591 (Colo. App. 1992) (implied

by pre-existing use); Taylor v. Melton, 274 P.2d 977, 981 (Colo. 1954),

and Restatement § 2.14 (implied by general development plan). See also

Restatement § 4.2 (omitted terms of a servitude may be supplied by the

court).

CRS. § 38-10-110 (identical to the 1861 law). The rules may be

stated slightly differently for interpreting a servitude which has been

imperfectly documented (Restatement, § 2.8, comment (c) at 133), and an

oral servitude for which there is no documentation. (/d. at comment (b))

Whichever approach is used, the result is the same, since the servitude,

oral or imperfectly written, must be given effect in accordance with the

intent of the parties, and such things as maps, testimony, and subsequent

actions of the parties. (/d. comment (c)) It would be ironic and

inequitable if this court struck down these servitudes because of failure to

comply with strict formalities, when, if they had never been written at all,

19a

eyewitness gave testimony that Beaubien delivered his

Document to [27] inhabitants at the Plaza of San Luis in May

1863.°* The Document was then recorded. Immediately

following the delivery of the Document, Beaubien conveyed

to settlers their vara strips of land, consideration was paid

therefor,*° and the settlers stayed in the area and raised their

families. New settlers moved here and bought land. Then the

Plaintiffs’ predecessors and Plaintiffs themselves exercised

the use rights (which were necessary to their continued

survival), consistent with the terms of the Document and their

claims for almost 100 years thereafter. Lobato, 13 P.3d at

825. If, as here, the beneficiaries of the servitudes have

justifiably relied upon the existence of the servitudes and

changed their positions thereon, and if injustice can only be

avoided by giving effect to the parties’ intent to create

servitudes, then any failure to comply with the Statutes of

Fraud does not apply (Restatement § 2.9 at 134) and Taylor is

they could have been implied from surrounding circumstances. The

Restatement makes all of these factors important, whether written or oral,

in trying to ascertain the intent of the parties. Jd See Gyra v. Windler, 91

P. 36, 39 (Coie. 1907) (under principle of estoppel, part performance of an

oral license of right of way takes the place of a writing and takes it out of

Statutes of Fraud).

** App. 5, pl. ex.16, the “Gaspar Interrogatories.” J.L.Gaspar was one

of the two witnesses to the Beaubien Document, who later became

attorney-in-fact for Beaubien in San Luis. App. 6, see highlighted entry.

In 1916, he testified about the Document by way of interrogatories in a

lawsuit concerning settlers’ claims to title to their properties under

Beaubien deeds to them (which Gaspar had executed under power of

attorney). These interrogatories, which the lower courts apparently

ignored, provide a key first-hand account of Beaubien’s intentions in

executing this Document.

* See App. 6 (V. 52, pl. ex. 262), several pages from the Grantor-

Grantee Index [grantors with name beginning with “B”] for Books 1-4 of

the Costilla County Land Records, listing the deeds from Beaubien after

May 1863.

20a

estopped to deny the validity of the servitudes. Kiely v. St.

German, 670 P.2d at 768.°°

[28] Once creation of the servitudes is found, this Court

must then interpret the servitudes. If complete guidance is

not found in the Document itself, the law provides rules for

documentary construction. See e.g., Lazy Dog Ranch, 965

P.2d at 1235 (stressing need for context-based inquiry,

paramount concern in construing a servitude should be to

ascertain intent of parties from circumstances surrounding

transaction, even when document is silent as to a right).”’

Hottell v. Farmers Protective Association, 53 P. at 327;

Gjovig v. Spino, 701 P.2d 1267, 1268 (Colo. App. 1985)

(historical use should determine location).

*° This court has enforced (even oral) contracts to convey fee title to

real estate, with part performance. Ridgeway v. Pope, 430 P.2d 77 (Colo.

1977), see also, Restatement of Contracts (Second), § 129 at 321

(contracts exception to Statutes of Fraud) and C.R.S. § 38-10-108 (only a

note or memorandum signed by party to be bound is required for contract

to sell land.

*’ This Court also noted that servitudes are properly interpreted using

contract law. /d. at 1235. Other applicable rules of construction itclude:

(1) construction should favor the grantee (/senberg v. Woitchek, 356 P.2d

904, 907 (Colo. 1960) (concerning an easement) and Clevenger v.

Continental Oil Co., 369 P.2d 550, 552 (Colo. 1962)); (2) provisions

should be construed as operative, rather than viewing clauses in isolation

(Percifield v. Rosa, 220 P.2d 546, 551 (Colo. 1950)); (3) if a contrary

interpretation would make a provision meaningless, an instrument

involving property rights should be construed as valid (Oken v. Hammer,

791 P.2d 9, 12 (Colo. App. 1990)); (4) court should follow the

construction placed on a document, by the parties (Buckhorn Plaster v.

Consolidated Plaster Co., 108 P. 27, 33 (Colo. 1910)); (5) instrument will

not be construed as a nullity if any other reasonable construction will void

that result (Clark v. Bouler’s Estate, 163 P. 965, 966 (Colo. 1917)); and

(6) instrument presumed valid (Quimby v. Boyd, 6 P. 462 (Colo. 1885)).

2la

d. The servitudes are appurtenant and not “in

gross.”

The court of appeals concluded that “if the rights claimed

were profits “in gross,” that the interests failed for two

reasons: (a) they were incorrectly “conveyed” under the 1861

common law, Lobato, 13 P.3d at 831; and (b) as profits in

gross, they could not be implied in Colorado. /d. at 832-33.*°

This Court must address this issue of “in gross” versus

“appurtenant,” and recognize the very [29] strong

presumption’ and policy reasons for appurtenance. Clearly,

the analysis depends upon the facts. In this case, the trial

court’s findings support the conclusion of appurtenance.

Once appurtenance is determined, all of the court of appeals’

conclusions tied to this undecided premise [if the profits

were in gross”] therefore must fail.“°

As this Court said in Lazy Dog, “an easement is deemed to

be appurtenant when the benefit .... ‘runs with’ an interest in

property. Owners of the property are entitled to the benefit...

*8 Once again, this illustrates the confusion of the courts between

creation of the profits (which were named in the Document) and

interpretation of the Document itself

*? This presumption of appurtenance has long been a part of American

law. Passaic Valley Boy Scouts v. Hartwood, 348 N.Y.S. 2d at 888,

supra. Osterberg v. Goodkin, 2000 Wash. App. Lexis 72. (Wash. Ann.

2000) and Tennessee v. Yarbro, 1984 Tenn. App. Lexis 2762 (Tenn. App.

1984) (applied the presumption to grazing rights, saying that nghts (as

profits) on the small (dominant) strips of land would hardly be valuable

without the larger area on which to graze). See also Chase v. Cram, 97 A.

481, 484 (R.I.1916) which cites, at 483, many old cases recognizing the

presumption, including Bingham v. Salene, 14 P. 523, 525 (Ore. 1887)

(profit to hunt waterfowl is deemed as a easement appurtenant if enjoyed

in connection with the certain land).

“° The court of appeals never legally analyzed, or reached a conclusion

as tO, appurtenance, but its analyses throughout, and the court’s

conclusions, contrary to the presumption, were based on the premise that

the profits were “in gross.”

22a

due to their relation to the property.” 965 P.2d at 1234. As

Lazy Dog also notes, section 4.5 of the Restatement provides

extensive guidance on this issue. /d. See also, Westland

Nursing Home v. Benson, 517 P.2d 862, 865 (Colo. App.

1974) (to resolve this issue, examine document, intent of

parties and surrounding circumstances). *!

In this case, the issue is whether the benefits of the

servitudes (to Plaintiffs) are appurtenant or in_ gross.

Generally stated, “the benefit of a servitude is appurtenant to

an interest in property if [30] it serves a purpose that would be

more useful to a successor to a property interest” held by the

original beneficiary of the servitude at the time the servitude

was created than it would be to the original beneficiary after

transfer of that interest to a successor. /n cases of doubt, a

benefit should be construed to be appurtenant rather than in

gross.” Restatement § 4.5(a) at 540 (emphasis supplied).

The sound policy reason for this presumption is that holders

of appurtenant benefits then can be located through land and

tax assessment records.”’ /d., comment (d) at 542.

*" A covenant (servitude) “runs with the land” if it “closely relate[s] to

the land, its use, or its enjoyment”. Cloud v. Association of Owners,

Satellite Apt. Inc., 857 P.2d 435, 440 (Colo. App. 1992). See aise Williams

v. Stirling, 583 P.2d 290 (Colo. App. 1978) (easement appurtenant to use

ski easement implied as “equitable trust” for dominant estate not

specifically named).

“The commentators note that this means either ownership or

occupancy of land. /d., comment (d) at 541.

*? Plaintiffs made this argument in the due process phase of the case,

urging that their interests were based on their property ownership, not

their use, and that based on the assessor’s rolls, they should and could

have been “reasonably identifiable” to Taylor in his 1960 Torrens action

(in accordance with the test of this court developed in Rael v, Taylor, 876

P.2d 1210 (Colo. 1994)). The trial court instead identified only which

Plaintiffs (or predecessors) were able to prove they were openly using the

rights in 1960, and dismissed the claims of all other landowners from this

suit who could not prove that “use.” Plaintiffs submit that a conclusion of

23a

The court of appeals observed that the Document set forth

“certain rights and privileges to be had by settlers residing in

towns located within the boundaries of the [Sangre de Cristo]

grant.” Lobato, 13 P.3d at 829 (emphasis supplied). The trial

court found that: (a) the sheep ranchers could not have

survived without use of the mountains east of their home

place (June Order at 6-7; V. 16, ff.5598-89) and observed that

(b) the Plaintiffs and their predecessors in title had the rights

under the Document. /d.; V. 27, tr. 1606:6-7 and 12-13, tr.

1612:14-20. The Gaspar Interrogatories are the best evidence

of Beaubien’s intentions when he signed the Document.

Gaspar, who was there in 1863 with Beaubien, stated:

[The rights... granted [in the Document] were for “the

full protection of all of the people of those town/s/] and

settlements [mentioned in the Document]...and also to

[31] prescribe certain regulations for the people... .”*

[Beaubien] stated that it was his voluntary act for the use

and protection of those people who had settled on his

lands in the towns and settlements mentioned in the

Deed [Document], as well as for the protection of others

who might settle in such towns and settlements.”

App. 5 at 2 (emphasis supplied).

Clearly, as Beaubien recognized at the time, the “rights

therein granted” were to benefit the people who lived on the

land, whether they lived there in 1863, or came later. These

use rights were intended by Beaubien to be appurtenant to the

“towns and settlements” named in the Document, and

Beaubien even said so to Gaspar. Under the circumstances of

appurtenance by this Court will affirm this policy and make it easier (and

more certain) in the future to quiet title to (and against) servitude claims.

“* These comments are very significant for two reasons. First, these

were not just “regulations,” as the trial court found. There were also nghts

granted. And second, the “towns and settlements” mentioned in the

Document were clearly the intended “dominant estates.” This factor was

confirmed by both lower courts.

24a

this case, a construction of appurtenance is favored and would

promote sound policy.*”

Assuming the servitudes are deemed appurtenant, the

general rule is that they automatically transfer with the

benefited property, as appurtenances, without need of further

express conveyance or mention. Westland Nursing Homes,

517 P.2d at 865; Restatement §§ 1.1(1)(a) and 4.6 (1)(a).”°

Further, because the rights are appurtenant to property, and

not “attached” to the person (or “in gross” as the court of

appeals intimated but refused to decide), lack of words of

inheritance allegedly [32] required by the common law in

1863 is of no consequence to defeat attachment of the

servitudes to Plaintiffs’ lands today.*”

** The unique facts and history of this case, the circumstances

surrounding execution of the Document, and 100 years of performance

clearly support the conclusion that the land occupancy in this area and the

exercise of the rights by the occupants were inextricably intertwined, and

critical for survival, as the trial court noted. This was not like a modern

leisure hunting or fishing license, which might more typically transfer

from person to person.

“© The fact that documents in Plaintiffs’ or Taylor’s chains of title may

not make reference to the use nights claimed also is of no legal effect.

Estate of Seeger v. Puckett, 171 P.2d 415, 416 (Colo. 1946) (“immaterial

that the restrictions were not in [the] deed,” especially in light of the fact

that defendants clearly knew about the claimed rights when they took

title.) See also, Pagel v. Gisi, 286 P.2d 636, 638 (Colo. 1955).

*’ The court of appeals stated that this common law rule requiring

“words of inheritance” only applied “to the extent the rights purportedly

granted in the Beaubien Document [were] profits a prendre in gross.”

(Lobato at 831) But even if this Court were to hold that the rights were “in

gross.” Plaintiffs urge that the common law rule, which was expressly

repealed in 1868, still is not applicable. See Section IV A,1, (c), supra at

21-22.

25a

e. The servitudes burden Taylor Ranch lands

by clear implication.

The court of appeals misinterpreted Plaintiffs’ principal

argument concerning the Document, summarizing it as

follows: “ [Plaintiffs] argue ... that the rights which Beaubien

intended to convey may be inferred from evidence of the use

to which the subject property was put ... for nearly 100

years”. Lobato, 13 P.3d at 832 (emphasis supplied). Rather

than seeking inference of the rights themselves, which were

explicitly named in the Document (“pastures, firewood and

timber”), the Plaintiffs sought implication, by the 100 years of

use, of their /ocation for exercise.

The court of appeals erroneously refused to imply the

location of the servitudes by then misapplying the holding in

Alexander Dawson vy. Fling, 396 P.2d 599 (Colo. 1964). That

case does not say that the /ocation of profits may not be

implied. Rather, because in that case the profits (“boating and

swimming”) were “expressly” named in the document being

examined, the court declined to create by implication an

additional right of “fishing” (which was nowhere named). In

the Fling case, the issue was whether the existence of the right

(profit) itself could be implied when not “expressly named.”**

It was not, as Plaintiffs urge here, that such interpretive

factors as their [33] location, extent or use could be implied as

this court sanctioned in Lazy Dog. 965 P.2d at 1229 (issue of

use of easement was distinct from its existence, scope and

width). “?

“8 The court of appeals’ error in misinterpreting the Fling case formed

the sole basis for not examining Plaintiffs’ claims that the location of the

servitude burdens could be implied. “In light of Fling, the trial court

properly rejected Plaintiffs’ arguments that it should find profits a prendre

by implication.” (Lobato at 833)

*”° This Court also noted that the Restatement interpretation default rules

found in Chapter 4 can be used to supply necessary terms to an easement.

Id. at 1237. Plaintiffs urge that upon application of these default rules,

these servitudes must be upheld as created, appurtenant to the Plaintiffs’

26a

The trial court improperly concluded that because La Sierra

(Taylor Ranch) land was not specifically named in the

Document, it could not be burdened by the servitude.”

However, given the court’s findings that the Taylor Ranch

was the actual use location for the use rights for almost 100

years, the servient estate should be implied, by application of

servitude principles.”' “[E]quity looks at the substance and

reality of a transaction and not its form.” Since the court’s

findings point [34] like a beacon directly to the Taylor Ranch,

lands, and exercisable in La Sierra. Restatement § 4.2 (supplemental

terms may be supplied by the court).

*’ Ironically, the trial court found the Document was not patently

ambiguous for purposes of locating the servitudes (June Order, V. 16, f.

5596), and refused to admit or consider most extrinsic evidence on this

issue. However, on the issue of whether the Document itself created

servitudes, the court heavily relied on the extrinsic evidence of the Fort

Garland Lease, in which Beaubien “granted” the “privileges...of pastures,

firewood and timber,” to defeat the Plaintiffs’ servitudes (June Order, f.

5595). This Document and its words should be construed (among other

factors) by looking to the vernacular used at the time, and to what

meaning the landowners at the time, and the “commercial world”, attached

to it. See Farrell v. Sayre, 270 P.2d 190, 193 (Colo. 1954) (referring to

interpretation of the word “minerals” by the mining world and parties at

the time). Both lower courts in this case also failed to follow the Lazy

Dog case mandating admission and consideration of significant extrinsic

evidence to help interpret the Document. See e.g, V. 17, ff. 5617-5693

(Plaintiff's Offer of Proof).

*! “fSince] transactions are not always handled properly, and to avoid

unfairness, courts may infer the identity of the parties or properties

intended to be benefitted or burdened by a servitude.” Restatement

§ 2.11, comment (b) (emphasis supplied). See also Restatement (First) of

Property § 539 and Restatement § 2.12 (servitudes implied by pre-existing

use) and § 2.14 (implied by a general development plan), and § 4.2

(omitted terms may be supplied).

*2 Wilson v. Goldman, 699 P.2d 420, 426 (Colo. App. 1985) (fishing

rights “retained” by grantor for use of association property owners were

“granted” rights (despite no words of grant), which benefitted grantors’

members and lot owners in other subdivisions later developed by grantor.)

Id. at 423.

27a

consistent with and since execution of the Document, the

court erroneously refused to imply that the Taylor Ranch was

the intended servient estate.

f. The Document stated Beaubien’s plan for

development which mandates implication

of the servitude burden on the Taylor

Ranch.

The Document was Beaubien’s 1863 master land plan” for

the settlement of the Culebra River Drainage and surrounding

area. The Document contained the servitudes which were to

benefit “all the inhabitants” of the places named (i.e., the

dominant estates).* The Document was “created for the

>> The trial court found that Carlos Beaubien “was a developer, land

seller and profiteer who...had the nght to do with the land as he wished.”

(June Order, V. 16, f£.5599) What Beaubien “wished” was written in, and

implied from, the Document, read in the context of the times, and

confirmed by his actions of conveying properties, consistent with the

Document, immediately thereafter. (See App. 6, Ex. 262, Index to Book 1

in the Costilla County Land Records). Included in the indexed documents,

immediately before and after the Beaubien Document entry were (see

highlighting) Beaubien’s deed to the Millsite (June 1, 1863 Deed to St.

Vrain and Easterday), and deed to the townsite [People] of San Luis (entry

at Book 1, page 220) (both mentioned in the 1863 Document), and several

hundred deeds from Beaubien to the Spanish settlers for their “vara” strips

from which these owners then exercised the conveyed use rights, and lived

“by a convenient arrangement always taking care not to interfere with the

rights of others.” (App. A-1 and Ex. 259(a)) This was Colorado’s earliest

planned community (San Luis is Colorado’s oldest town), complete with

“community” requirements that were appropriate and customary at that

time, and necessary for 1860’s frontier life. Today, a homeowners

association is formed to oversee and administer the “convenient

arrangement” of a planned community (pools, courts, etc.). In 1863,

people observed Beaubien’s stated plan (and admonitions) cooperatively —

at least until 1960 when Mr. Taylor came to town and stopped observing

the covenants.

“ Lobato at 829; see also, Gaspar Interrogatories, App.5. The tnal

court agreed that the people who lived in the places named in the

Document had the nghts under the Document (“agreement”). (V. 27, tr.

28a

benefit of the people who acquired title” (V. 27, tr. 1646:12-

14) And since the burdened or [35] servient estate is not

identified in the Document, the law directs that tools for

servitude interpretation be used. These include identifying the

intentions or reasonable expectations of the parties in light of

all the circumstances:

Circumstances relevant to interpreting the language of a

servitude include the “location and character of the

properties burdened and benefitted by the servitude, the

use made of the property before and after creation of the

servitude, the character of the surrounding area,” the

existence and contours of any general plan of

development for the area and consideration paid for the

servitude.”

Lazy Dog Ranch, 965 P.2d at 1237 (emphasis supplied).

The use made after the Document was executed is strong

circumstantial evidence of what was intended and is relevant

for interpretation of the Document. /d Location of an

easement may be determined by the practical location in use

by grantee acquiesced in by grantor at the time of the grant

and for a long time thereafter. /senberg v. Woitchek, 356 P.2d

904, 907 (Colo. 1960); see also, Restatement § 4.8, comment

c at 560. Certainly 100 years of continued use on the Taylor

Ranch lands is the best evidence of such “practical location”

by the parties and their predecessors.

1606:6-7 and 12-13; tr. 1612:14-20; June Order, V. 16, f. 5598-99).

However, when the court learned that none of these locations was on the

Taylor Ranch (June Order), the court effectively refused all attempts to

show that these named locations described the dominant estate benefitted,

not the servient estate as the court apparently concluded. (V. 27, t.

1606:3-1610:16)

°° In all contracts are conditions superinduced by the “pre-existing law”

of nature, of nations, or of the community to which the parties belong.

They are always presumed...to be known and recognized by all... .” De

Graffenried v. Savage, 47 P. 902, 904 (Colo. 1897).

29a

The trial court also made findings about “the character of

the properties benefitted and burdened... [and] of the

surrounding area and the existence of any _ general

development plan of the area” (all Lazy Dog Ranch factors for

interpreting servitudes. /d. at 1237). With respect to these

factors, the trial court found: (1) the original settlers could

not survive as sheep ranchers without the use of the mountain

area east of the home place;”° (2) Beaubien executed the 1856

Ft. Garland Lease [36] (in which Beaubien created identical

use rights of “pastures ... timber and firewood”);”’ (3) the

claims of title of all Plaintiffs and Taylor ran back to

Beaubien,** and (4) Taylor’s land remained unfenced for 97

years.” ? Lobato, 13 P.3d at 830, citing to the findings.

°° See map attached as Exhibit A to Taylor’s Deed (V. 41, pl. ex. 23)

clearly showing the location of La Sierra directly east of all the towns

mentioned in the Document.

*’ Thus, such use rights were already recognized by both Beaubien and

by those occupying the area - in this case, the U.S. Army - as critical to

sustain life. The use rights were essential to successful settlement on the

Mexican frontier. Plaintiffs’ expert, Dr. Montoya, so testified. (V. 28, tr.

1842:12-20, tr. 1843:15-23) Curiously, the court found that because this

Lease (V. 52, pl. ex. 258) contained the words, “on lands owned by us,” it

demonstrated that Beaubien knew how to “convey” such rights, but did

not do it in the Beaubien Document. Clearly, Beaubien could not have

created the use nights on any properties other than lands “owned by him.”

Taken in the context of the times, consideration of this lease is helpful in

confirming Beaubien’s intent to provide these rights in the totality of the

circumstances surrounding execution of the Document.

*8 This fact supports the “general development plan” and also provides

an important element of proof for servitudes implied by pre-existing use.

There was a common grantor of the dominant and servient estates.

? Here, plaintiffs seek implication of the location of the servient estate

from the general development plan. However, it was not surprising that

the land remained unfenced and was considered “open range.” Since even

“ranch managers” on this land acknowledged the grazing and managed the

herd flow (June Order, Finding 10, V. 16, f. 5595), this finding is

consistent with evidence that Taylor’s property was used by Plaintiffs and

30a

That Beaubien had a general plan of development in 1863

is evident from reading the 1863 Document. Colorado

recognizes servitudes implied from such a general plan of

development:”°

[37] They have been imposed by a common vendor or

the original owners of a tract of land, in pursuance of a

general plan for development and improvements of the

property by laying it out in streets, avenues and lots,

adopting some uniform or settled building scheme. The

restrictions generally relate to number, location, size, or

styie of buildings to be erected, or to the uses to which

such buildings or land may be put.

Taylor v. Melton, 274 P.2d 977, 981 (Colo. 1954) (emphasis

supplied).°'

their predecessors after execution of the Document. And had the property

been fenced off, it would have been an improper interference with the

Plaintiffs’ servitude rights. After Taylor did so interfere, Plaintiffs

brought this lawsuit.

® Plaintiffs urge that these rules permitting servitudes to be created by

implication are equally (or more) applicable to assist this Court in

interpreting the created servitudes, including supplying unstated terms,

like the location for exercise. Restatement § 4.2. By the trial court’s

findings (June Order Finding 2, R. 5594), a servitude by pre-existing use

is quite similar and alternatively could be implied from the court’s

findings. (See also, Restatement § 2.12) It requires orginal unity of title

in a common grantor (and subsequent separation of title), obvious benefit

to the dominant estate (i.e., here, the settlers’ lands), and burden to the

servient estate which existed at the time of conveyance, evidence that the

common owners used the property in its altered (i.e., with use of the use

rights), condition long enough before conveyance to show that the change

was intended to be permanent, and necessity for the easement (use rights)

at the time of severance (i.e., in 1863, not necessarily today). Proper v.

Greager, 827 P.2d at 593-594. See Restatement § 2.14 (developer

imposing a servitude on land creates an implied reciprocal servitude

burdening all the developer's remaining land included in the general plan,

if injustice can be avoided only by implying the reciprocal servitude).

*! As the Taylor court further observed: “The intent of the grantor is the

determining factor.... The uniformity of the restrictions, reliance by the

3la

Not only did Plaintiffs and Taylor have a common grantor,

but the conduct of this “developer and land seller,” Beaubien,

was Clearly to provide the needed resources, rules, benefits,

and covenants for the land owners-settlers in furtherance of

dispute, once one successor to the covenants (here Taylor)

refuses to be bound by the covenants, the other successor to

the original developer (here the Plaintiffs) has a claim to

enforce the covenants in equity.®’ By the filing of this action,

that is precisely what Plaintiffs, as successors to the

covenanted property, did to enforce their use rights servitudes

on the Taylor Ranch.

Finally, knowledge of the implied burden by the owner of

the servient estate is a significant factor used in determining

whether the land was intended to be, and in equity should be,

burdened [38] by the servitude claims.” In this case, the trial

court found that from 1863 through 1960, Taylor and his

predecessors not only knew of the use and never denied it

(June Order, f. 5594), but ranch managers helped “direct

flocks of sheep to specific locations... .”® (June Order,

buyers, actual development of the tract and erection of [dwelling houses

free from business buildings] are all considered in determining the

existence of the plan. /d. (emphasis supplied).”

°? The Gaspar Interrogatories clearly establish from an eyewitness that

Beaubien intended and wanted to provide these things (App. 5); this flatly

contradicts the trial court’s suggestion that since Beaubien could “do with

the land as he wished” (V. 16, f. 5599), that he did not inicnd to create the

rights on his land.

» Taylor v. Melton, 274 P.2d at 981; Wilson v. Goldman, 699 P.2d 420,

See Restatement § 1.1(2) (covenants are servirudes).

® Hottell v. Farmer’s Protective Assn., 53 P. at 329 (def>ndants’

knowledge of Plaintiffs’ claim to rights to use millrace on defendants’

property was sufficient notice to justify imposition of the servitude.)

°° This fact strongly supports the observance (by the parties’

predecessors) of Beaubien’s admonition in his Document that

“[alccording to the corresponding rule, all the inhabitants will have the

32a

f. 5595) Further, Taylor was on notice of the claimed

servitudes in his own deed, which was executed 97 years after

the date of Beaubien Document (June Order, f. 5596).

A proper application of the law of servitudes to the court’s

findings and facts established at trial compels the conclusion

that the Document created for Plaintiffs the use rights on

La Sierra, what is now the Taylor Ranch.®’

* * * *

rights of pastures...firewood and timber, always taking care that one does

not injure another.” See App. 1, see also, Rhue v. Cheyenne Homes, Inc.,

449 P.2d 361, 362 (Colo. 1969) (where no regulations exist as to how

covenants and mules are to be enforced the law presumes good faith

compliance by all who are governed by them).

* Taylor’s seller knew the claimed servitudes were important enough to

disclose, and to make the conveyance “subject to” them. Undoubtedly,

their existence, which have given rise to almost 40 years of litigation,

were a factor in the purchase price being a low $6.45 per acre. See V. 41,

pl. ex. 23; see also, Restatement § 2.2, comment (d) at 63: “The term

“subject to” can be used either to create a servitude or to disclose the fact

that land conveyed is already burdened by a servitude.” (emphasis

supplied)

®’ Whether this court implies the burden on the Taylor Ranch by

reference to the general development plan or by pre-existing use, or by

application of the Restatement’s rule (§ 4.2) permitting the court to supply

undefined terms, and in light of-the circumstances surrounding and

following execution of the Document, the result will be the same. The

Taylor Ranch will be properly burdened by the servitude as was intended

almost 140 years ago.

33a

[50]

2. The Treaty of Guadalupe Hidalgo and

International Law _ Principles Governing

State Succession and Protection of Human

Rights Require Recognition and Enforcement

of the Settlement Rights.

a. the Treaty of Guadalupe Hidalgo protects

the settlement rights.

In Article VIII, the Treaty of Guadalupe Hidalgo states as

follows:

In the said territories, property of every kind, now

belonging to Mexicans not established there shall be

inviolably respected. The present owners, the heirs of

these, and all Mexicans who may hereafter acquire said

property by contract, shall enjoy with respect to it

guarantees equally ample as if the same belonged to

citizens of the United States.

9 Stat. 922 (1848) (emphasis supplied)

[Si] The Treaty makes clear that a// types of property that

would have been recognized by the Mexican government

must be respected. 7ameling, 2 Colo. at 420 (“The eighth and

ninth articles of that treaty embraced provisions similar to

those contained in all treaties between civilized nations which

provide for a cession of territory from the one to the other;

stipulations intended to guard and protect in the most efficient

manner the private property of individuals.”) cf Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119

S.Ct. 1187, 143 L.2d.2d 270 (1999) (Indian treaties are to be

interpreted liberally in favor of Indians and such treaties are

interpreted to give effect to the terms as the Indians

themselves would have understood them).

With respect to Article VIII of the Treaty, in Astiazaran v.

Santa Rita Land & Mine Co., 148 U.S. 80, 81, 13 S.Ct. 457,

34a

37 L.Ed. 376 (1893), the United States Supreme Court stated

as follows:

Undoubtedly private rights of property within the

ceded territory were not affected by the change of

sovereignty and jurisdiction, and were entitled to

protection, whether the party had the full and absolute

ownership of the land, or merely an equitable interest

therein, which required some further act of the

government to vest in him a perfect title.

See also Fremont, 58 U.S. 542; Reynolds v. West, 1 Cal. 322

(1850) (the treaty protects inchoate rights); cf United

States v. Arredondo, 31 U.S. 691, 6 Pet. 691, 8 L.Ed. 547

(1832) (failure to commence settlement of Spanish grant

because of disturbed conditions in Florida until after the

Adams-Onis Treaty did not render the grant invalid for

grantee and those claiming under him).

The unrebutted reports of Dr. Meyers and Dr. Stoller

establish that the rights in the settlers were created in 1844,

when the Grant was awarded by the Mexican government.

The original Mexican settlers under the Grant established

settlements as early as 1845, but they were driven back by

Native Americans. V. 14, ff. 4457-8,4500-1. By 1860,

permanent settlements on the Grant were populated by more

than 1,700 Mexican settlers and nearly all of them were living

in the ceded New [52] Mexican territory at the time of the

Treaty. See supra at 9. These persons were precisely the

class that Article VIII was designed to protect, and the

settlement rights clearly fall within the definition of property

rights protected under the Treaty.

The validity of land rights that were not perfected prior to

the Treaty was considered in Fremont, supra. In that case a

grant was awarded in 1844 but, because of hostilities in the

territory, the grantee was unable to occupy the grant or have it

surveyed, which were requirements of the grant under

35a

Mexican law. The Supreme Court described the conditions of

that period as follows:

Now, it is well known that Mexico, and California as a

part of it, had, for some years before, been in a disturbed

and unsettled state, constantly threatened with

insurrectionary and revolutionary movements, and in

this state of things, the uncivilized Indians had become

more turbulent, and were dangerous to the frontier

settlements, which were not strong enough to resist

them. :

Fremont 58 U.S. at 562.

In that case, where the grantee did not occupy the grant at

the time of the Treaty because of these conditions, the U.S.

Supreme Court nevertheless affirmed that even an

unperfected property right was protected under the Treaty.

Likewise, in the present case the protection of the Treaty

should apply. - See, e.g, Reynolds v. West, supra, United

States v. Arredondo, supra.

b. The international law principles governing

state succession and human rights protect

the settlement rights.

The application of the Treaty of Guadalupe Hidalgo in this

case is reinforced by the international law of state succession

and human rights.’ Under the laws of nations, the property

[53] rights of Mexican citizens within the ceded territories

would have been sacrosanct independent of the Treaty of

Guadalupe Hidalgo. Cf Delassus v. United States, 34 US.

117, 133, 9 Pet. 117, 9 L-Ed. 71(1835). The sovereign who

acquires an inhabited country, acquires full dominion over it;

” A further analysis of the application of the law of state succession to

this case is set forth in the report of Dr. Meyers, at V. 14, ff. 4459-63. For

further explication of the principles of international human rights law

related to this case, see Brief of Amicus Curiae Rocky Mountain Human

Rights Law Group, filed concurrently herewith.

eee

36a

but this dominion is never supposed to divest the vested rights

of individuals to property, and an inchoate title to land is

property. /d.; United States v. Percheman, 32 U.S. 51, 7 Pet.

51, 8 LEd. 604 (1833); Soulard v. United States, 29 U.S. 511,

4 Pet. 511, 7 L.Ed. 938 (1833); Beard v. Federy, 70 U.S. 478,

491-2, 3 Wall. 478, 18 L.Ed. 88 (1865) (“[Mexicans in the

ceded territories] retained all such rights, and were entitled by

the law of nations to protection in them to the same extent as

under the law of the former government.”) see also Saroop v.

Garcia, 109 F.3d 165 (3rd Cir. 1997) (the United States is a

party to the 1978 Vienna Convention on Succession of States,

has ratified it, and is bound by its obligations.)”*

* * *k *

”® The law of state succession recognizes the reality that the legal norms

in conquered territories do not change simultaneously with the change in

sovereignty, and in such an evolving legal regime, this law affords

protection to the rights of the inhabitants. See Wilkinson, The American

Doctrine of State Succession (Greenwood Press 1975) at 39: “The

conqueror may deal with the inhabitants and give them what law he

pleases, unless restrained by the capitulation, but until alteration be made

in former laws continue.” This principle is, in particular, applicable in this

case where it is undisputed that even after the war, settlement of the San

Luis Valley by Mexicans continued in accordance with the patterns and

customs developed and followed during the periods of Spanish and then

Mexican sovereignty.

37a

APPENDIX C

SUPREME COURT, STATE OF COLORADO

2 E. 14th Avenue

Denver, Colorado 80203

Case No. 00 SC 527 :

CERTIORARI TO THE

COLORADO COURT OF APPEALS, 98CA1442

DISTRICT COURT, COSTILLA COUNTY,

CASE No. 81CV5

EUGENE LOBATO, et al.

Petitioners:

¥.

ZACHARY TAYLOR, as executor

of the Estate of Jack T. Taylor, Jr., Deceased, et al.

Respondents:

Albert B. Wolf, Reg. No. 545

Raymond P. Micklewright, Reg. No. 13009

Jonathan L. Madison, Reg. No. 8749

Wolff & Slatkin, P.C.

44 Cook Street, Suite 1000

Denver, CO 80206

Telephone: (303) 355-2999

38a

RESPONDENTS’ CONSOLIDATED ANSWERS TO

BRIEFS OF PETITIONERS AND THEIR AMICI

tk OK

[38]

Il. THE SPANISH AND MEXICAN LAW AND

CUSTOM RULINGS BELOW WERE CORRECT

AND COMPELLED BY THE FACTS AND BOTH

LEGISLATIVE AND JUDICIAL BINDING

PRECEDENT OF THE UNITED’ STATES

CONGRESS, THIS COURT AND THE SUPREME

COURT OF THE UNITED STATES OF

AMERICA.

A review of the factual, legislative and judicial history

Clearly establishes that, as a matter of law, petitioners have no

rights under the laws and customs of Spain and Mexico or by

the [39] Treaty of Guadalupe Hidalgo.

A. The Sangre de Cristo Grant Papers Do Not

Grant any Rights to Anyone Other Than the

Grantees, Narcisso Beaubien and Luis Lee.

1. The Beaubien-Lee petition papers do not

suggest that any lands be set aside for the

common use of anyone.

There is nothing in the language of the Sangre de Cristo

grant petition papers suggesting that any land, much less the

Taylor Ranch property, would be set aside for grazing or the

taking of wood or timber, fish or game or for recreation by

persons other than the petitioners-grantees.”' Instead, the

petition papers request a grant to Beaubien and Lee to include

a “...certificate of possession which will insure to us our legal

title thereto, and prevent any one from disturbing us....”

*' English translations of the grant papers may be found in the U.S.

Supreme Court decision in 7ameling v. U.S. Freehold & Emigration Co.,

93 U.S. 644 (1877).

39a

While the petition papers do mention settlement, there is

nothing to suggest that the petitioners-grantees intended or

were required to promote settlement by setting aside portions

of the grant, particularly the Taylor Ranch parcels, for the

common use of others, as petitioners speculate.

2. The grant papers do not mention or suggest that

rights are granted to anyone other than

Narcisso Beaubien and Luis Lee.

The language of the grant clearly and unequivocally grants

rights solely to Beaubien and Lee in the following precise

language:

I, the aforesaid justice, in the name of sovereignty of the

nation (may God preserve it), gave to the

aforementioned Don Louis Lee and Don N. Beaubien

the personal and perfect [40] possession which they

solicit, serving as a title for them, their children and

successors, in which I will! protect and defend them; and

I order them not to be deprived thereof without being

first heard, and sentence given against them according to

law and evidence.

The court of appeals below appropriately contrasted the

language of the Sangre de Cristo grant with those of the Baca

grant that were considered in American Water Development,

Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994). Like one

of the grants involved in Baca, the Sangre de Cristo grant was

a grant to individuals, not a community grant that expressly

provided rights and privileges for all of the settlers on the

grant. Petitioners long ago abandoned their claim, made in

their second amended complaint (Vol. 1, p. 103, para. 6.2),

that the Sangre de Cristo grant was a community land grant.”

*2 Compare the first claim for relief of peititioners’ second amended

complaint (Vol. 1, p. 103, para. 6.2) with the trial record establishing that

the only claims made were on behalf of individual plaintiffs as Costilla

County property owners.

40a

They and their amici cannot now resurrect their discarded

claims.

B. The Surveyor General Charged By Congress

With the Duty To “...Ascertain the Origin,

Nature, Character, and Extent of All Claims To

Lands Under the Laws, Usages and Customs of

Spain and = Mexico...”, Following Trial,

Determined that Charles Beaubien Had Become

the Sole Owner of the Grant.

In compliance with provisions assuring the rights of

Mexican citizens under the Treaty of Guadalupe Hidalgo, the

United States Congress established the office of Surveyor

General for New Mexico mandating that he “...ascertain the

origin, nature, character, and extent of all claims to lands

under the laws, usages and customs of [41] Spain and

Mexico....” 10 Stat. at L. 308, sec. 8 (Appendix F attached).

Following trial in 1856, the Surveyor General concluded

that:

The grant being a positive one, without any subsequent

conditions attached... it is the opinion of this office that

the grant is a good and valid one, and that a legal title

vests in Charles Beaubien to the land embraced within

the limits contained in the petition.”

The Surveyor General was obviously in a far superior

position to determine the nature, character and extent of

claims to lands under the laws, usages and customs of Spain

and Mexico than petitioners, their purported experts and their

amici almost a century and a half later. The Surveyor

General’s decision did not recognize any so-called

“settlement rights” that are claimed by petitioners.

*>The decision and recommendations of the Surveyor General are

likewise included in the U.S. Supreme Court decision in Tameling v. U.S.

Freehold & Emigration Co., 93 U.S. 644 (1877).

4la

C. Following the Report and Recommendations of

the Surveyor General the United States Congress

Confined Title to the Grant in Charles Beaubien

Alone.

The June 21, 1860 Act of Confirmation by the United

States Congress confirmed the validity “of Charles

Beaubien’s title to the Sangre de Cristo grant as a private

land claim.

The importance of the 1860 Act of Confirmation was

recognized by this Court and the United States Supreme

Court and even by petitioners’ real estate counsel who

admitted to the trial court [42] below:

I was very surprised as a real estate lawyer to discover

that, for these particular kinds of interests, the rights

don’t start at the patent. They start at the act of

confirmation. That’s the time that everything sticks.

(Vol. 31, p. 2410:4-9). Petitioners co-lead counsel agreed,

declaring: “Whatever rights are involved in this situation trace

back to 1860. And the act of confirmation (Vol. 31,

p. 2446:5-7).

Importantly, the legislation that confirmed Charles

Beaubien’s rights is titled “An Act to confirm certain Private

Land Claims in the Territory of New Mexico.” Congress thus

emphasized that the Sangre de Cristo grant was not a

“community land grant” (as sometimes argued or suggested

by petitioners and their amici), but a private land grant.

**1860 Act of Confirmation, 12 Stat. at L. 71, 72 (Appendix A

attached).

42a

D. This Court and the United States Supreme Court

Have Ruled that the 1860 Act of Confirmation Is

Binding Conclusive and Not Subject to Judicial

Review.

In 1874 this Court had occasion to consider the validity of

the Sangre de Cristo grant and ruled that the 1860 Act of

Confirmation was incontestable and not subject to judicial

review. Jameling v. U.S. Freehold Land & Immigration Co.,

2 Colo. 411, 423 (1874) aff'd 93 US. 644 (1877). In

affirming that decision, the United States Supreme Court

ruled:

..the confirmation [of title in Charles Beaubien by

Congress in 1860] being absolute and unconditional,

without any limitation as to quantity, we must regard it

as effectual and operative for the entire tract.

The U.S. Supreme Court also concluded that:

...the invalidity of the grant has been earnestly and

elaborately pressed upon our [43] attention. This is a

matter for consideration of Congress; and we deem

ourselves concluded by the action of that body. The

phraseology of the confirmatory Act is, in our opinion,

explicit and unequivocal.

Tameling v. U.S. Freehold & Emigration Co, 93 U.S. 644,

663 (1877).

In De Mares v. Gilpin, 15 Colo. 76, 24 P. 568 (1890) this

Court again had occasion to consider the validity and effect of

both the U.S. Surveyor General’s decision and the 7ameling

case. That case involved a claim by grantee Luis Lee’s

daughter to half of the Sangre de Cristo grant. The Court

rejected her claims based upon the 1860 Act of Confirmation

and by her failure to take timely action to assert her claims to

the grant. This Court ruled:

...that the acts of Charles Beaubien in applying for and

securing an approval of the grant in 1856, applying f or

43a

and obtaining a confirmation of title in 1860, both in his

own name as sole owner, to the exclusion of plaintiff,

were public and notorious acts, which, from their nature,

could not be concealed if such attempt had been made,

of which plaintiff was bound to take notice.

Id. at 84-85, 24 P. at 571.

The United States patent was issued in the name of Charles

Beaubien in 1880. Def. Ex. HS, offered Vol. 31, p. 2445:17-

24, admitted Vol. 31, p. 2446:12-15. Petitioners’ argument

that the quit claim language in the patent supports their

argument was judicially refuted by the U.S. Supreme Court in

Barker v. Harvey, 181 U.S. 481 (1901). There, the Court

considered a similar argument and ruled that the quit claim

provision of the patent was nevertheless conclusive as against

all persons except those who could resist successfully any

action of the government in disposing [44] of the property.

Under the Treaty of Guadalupe Hidalgo all of the lands

situate in the present State of Colorado were ceded to the

United States. The United States Supreme Court ruled that

persons who had any claims predicated upon the laws, usages

and customs of Spain and Mexico abandoned them by not

presenting them for consideration to the Surveyor General

and therefore could not successfully resist any action of the

United States in disposing of the property. Barker, supra, at

491.

Despite the knowledge of petitioners’ predecessors that

Beaubien claimed to be the sole owner of the grant and with

actual knowledge given by public statute that the government

had confirmed the grant to him as sole and exclusive owner,

and with the strongest motives that could prompt a person to

action, they remained idle when an effort should have been

made to assert their claimed rights — if they had any. See De

Mares v. Gilpin, 15 Colo. 76, 86, 24 P. 568 (1890).

Consequently, petitioners’ predecessors abandoned any rights

they might have claimed by not presenting them to the

Surveyor General for consideration.

44a

E. Petitioners’ Mexican and Spanish Law

Arguments Were Rejected by Both the Trial and

Appellate Courts in the Taylor Torrens Action.

Appendix C attached includes all of the Taylor Torrens

action trial court rulings. In its Order Granting and Denying

Motion for Summary Judgment, the court carefully reviewed

and rejected the same Mexican law arguments made in that

case and repeated by petitioners. The court concluded: “...as a

matter of law the defendants have no rights in the plaintiff's

lands by virtue of the [45] laws of Mexico” (citing

authorities). The Tenth Circuit Court of Appeals affirmed.

Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967). That court

ruled that even if someone had acquired rights prior to the

1860 Act of Confirmation, the Act extinguished those rights.

Id. at 736-37.

Both of the lower courts in this action concurred, finding

that the conclusions of the federal courts were persuasive.

F. The Armaments of Petitioners and their Amici

Ignore the Facts the Law and Appear To be a |

Studied Attempt at Revisionist History.

To sustain the arguments advanced by petitioners in this

action this Court would be required to

e rewrite the 1843-44 Sangre de Cristo grant

papers,

e reverse the circa. 1856 findings and conclusions of

the U.S. Surveyor General,

e overrule the 1860 Act of Confirmation of the

United States Congress,

** Petitioners are not bashful about asking this Court to rewrite ancient

documents. In their arguments concerning the Beaubien paper, they ask

the Court to rewrite that paper to grant them profits from the Taylor

Ranch. Both requests must be rejected.

45a

e reverse its own 1874 decision in 7Jameling v. U.S.

Freehold Land & Emigration Co., 2 Colo. 411 (1874),

e reverse the 1877 U.S. Supreme Court decision in

Tameling v. U.S. Freehold & Emigration Co., 93 U.S. 644

(1877),

e reverse its 1890 decision in De Mares v. Gilpin, 15

Colo. 76, 24 P. 568 (1890),

e reject the 1965 Taylor Torrens action trial and

1967 [46] appeliate court rulings,

e ignore the 1901 decision in Barker v. Harvey, 481

US. 481 (1901).

Petitioners have advanced no sound argument that would or

should induce this Court to either take those actions or to

ignore the binding legislative, judicial and quasi-judicial

precedents that fully support the rulings below.

G. Petitioners Have Failed to Establish a Factual

Record to Support Their Contention That They

Were Entitled to Purported Settlement Rights on

the Taylor Ranch Pursuant to Spanish and

Mexican Law and Custom or the Treaty of

Guadalupe Hildalgo.

The unsigned and unsworn summary judgment submittals

of petitioners’ purported experts upon which petitioners and

their amici place their reliance cannot be considered for any

purpose. C.R.C.P. 56(e): Sofford v. Schindler Elevator

Corporation, 954 F.Supp. 1459, 14622-63 (D.Colo. 1997)

(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17

(1970), for the proposition that an unsworn statement

submitted in support of a motion for summary judgment did

not meet the requirements of Fed. R.Civ.P. 56(e)). See also,

Rainforest Café, Inc. v. Amazon, Inc., 86 F.Supp. 886, 903 (D.

Minn. 1999) (holding that unsworn expert reports which may

have been prepared in compliance with expert disclosure rule

will not be considered for purposes of summary judgment),

46a

see also, e.g. Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir.

1989) (unsworn expert’s report “is not competent to be

considered on a motion for summary judgment”), Wittmer v.

Peters, 87 F.3d 916 (7th Cir. 1996) (unsworn expert reports

are “not, strictly speaking, admissible to support or oppose

summary judgment”), cert. denied, 519 U.S. 1111, 117 [47]

S.Ct. 949, 136 L.Ed2d. 962, 968-969 (6th Cir. 1991)

(unsworn statements of two employees must be disregarded).

See also Monroe v. Board of Education of the Town of

Wolcott, Connecticut, 65 F R.D. 641 (D.Conn. 1975). The

federal rule is substantively identical to Colo.R.Civ.P. 56(e).

Moreover, petitioners’ reliance on writing of Michael

Meyers and Myra Ellen Jenkins cannot be considered for the

further reason that Jenkins died in 1993 and Meyers was

prohibited from testifying at trial because of petitioners’

derelictions (Vol. 13, pp. 4026-28, 4063-65). Neither Meyers

nor Jenkins was therefore competent to testify at trial.

C.R.C.P. 56(e) expressly requires affidavits of persons

competent to testify. The Owners made timely objection to

the plaintiffs’ invalid submittals. (Vol. 15, pp.4933-34 ).

H. Finally, Petitioners Wholly Miss the Significance

of the Binding Precedent Relied upon by the

Lower Courts.

Petitioners misapprehend the issue to be addressed by this

Court in reviewing the lower courts’ rulings on the Owners’

trial court motion for summary judgment. The issue is not

whether the trial court misapplied Mexican law or the Treaty

of Guadalupe Hidalgo in considering the motion for summary

judgment, but whether applicable precedent precluded the

trial court and the court of appeals from any review of the act

of the United States Congress that confirmed the grant to

Beaubien as “absolute and unconditional.”

The lower courts concluded that pursuant to the doctrine of

Stare decisis, “any purported rights that might [have]

existed... were extinguished by the 1860 confirmatory act...and

47a

if [48] the confirmation of the title was contrary to the treaty

provisions, the question was political, not judicial.” Vol. 16,

pp. 4917-18. Their conclusions were consistent with over a

century of binding precedent.

* * * *

48a

APPENDIX D

SUPREME COURT, STATE OF COLORADO

2 E. 14th Avenue, 4th FI.

Denver, Colorado 80203

Case No. 00 SC 527

CERTIORARI TO THE

COLORADO COURT OF APPEALS, 98CA1442

DISTRICT COURT, COSTILLA COUNTY, 81CV5

EUGENE LOBATO, et al.

Petitioners:

ZACHARY TAYLOR, as executor

of the estate of Jack T. Taylor, Jr., deceased, et al.

Respondents:

Jeffrey A. Goldstein

Goldstein & Dodge

1763 Franklin St.

Denver, CO 80218

: Telephone: (303) 861-8580

Fax: (303) 861-1203

Att Reg. #: 4735

49a

REPLY BRIEF

* * * *

[24]c. Plaintiffs’ prescriptive rights “vested”

automatically after 18 years, in at least the

early 1880s, and even assuming there was

“permission” given thereafter, those rights

have not been divested.

Now that the 18-year period” of prescription has been

demonstrated, the “title” to the prescriptive servitude is

deemed fully vested in the Plaintiffs automatically as of the

end of the prescriptive period, and thereafter. See Doty v.

Chalk, 632 P. 2d 644, 646 (Colo. App. 1981). See also §38-

41-101 (“conclusive evidence of absolute ownership”

assumed in adverse possession context after 18 years). This

proposition logically extends a fortiori to prescription rights,

which are only possessory, and not fee title, interests. See

Doty, supra.

As Doty explains, even a subsequent “disclaimer” of such

“title” [by the claimant] or [25] conduct which is inconsistent

with a claim of title,”° has no legal effect to defeat the ripened

right. See also Palmer Ranch v. Suwansawasdi, 920 P.2d

870, 873 (Colo. App. 1996), citing Doty with approval. Thus,

as of at least 1883 (20 years after the 1863 Document was

signed), and continuously since that time, Plaintiffs’

predecessors have held these rights by prescription, if not

under the Document. And upholding Plaintiffs’ prescription

claims gives them the rights Beaubien originally intended,

” Before 1927, the statutory period was 20 years, not 18.

mistakenly asking “permission.” Once the statutory period is up, as the

trial court in this case clearly found, even if the prescribing party

mistakenly “asks permission” or otherwise acts inconsistently with being

the true “owner” of the rights, that does not defeat the npened nght which

already exists. Doty, 632 P.2d at 646.

eS Oe EE eT en ee ee Se ee

50a

and on the land where they and their predecessors have long

exercised them. It further denies a windfall to Respondents,

who are now reneging on these recognized rights. This is

precisely what the Restatement commentators sought to avoid

by having prescription claims succeed under circumstances

like those in this case. See Restatement §2.17, comment c, at

265. Plaintiffs’ prescription claims should be upheld.

* * * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.