What is the meaning of a prescriptive easement?

The saga of the loss of public access on Forest Road 40E to the Middle Percha Canyon, Gila National Forest and the Aldo Leopold Wilderness due to a locked gate continues. There was a well-attended court hearing on December 13, 2023, in Truth or Consequences. Unfortunately, the decision came back having totally ignored existing case law and true evidence. The next step is the lawyers for the plaintiffs are filing an Appeal of Ruling to take this to a higher court of law. The issue of Prescriptive Easement and public access into public lands on an existing public road is the only issue here. So let us delve into a bit of legal jargon.

What is a prescriptive easement in New Mexico law?

  1. A use of land that is adverse, meaning in opposing interest to the owner and without their consent, although permission may be implied by owner behavior.
  2. The use is also open or notorious.
  3. The use was continuous without interruption for 10 years.

The current lawsuit over the locked gate on Forest Road 40E west of Kingston, New Mexico, is about this issue of Prescriptive Easement and only this issue. For those of you sympathizing with the landowner, here are some facts for you to consider.

Let us address each of these requirements as they pertain to Forest Road 40E.

  1. A use of land that is adverse, meaning in opposing interest to the owner and without their consent, although permission may be implied by owner behavior.

There are four sections of private land over which the road crosses between the Kingston Townsite and the National Forest boundary. The public has been using this road to access the remote and rugged Middle Percha Canyon, the Gila National Forest and the Aldo Leopold Wilderness without permission or consent from any of these owners for over 100 years, up to when the current landowner bought a narrow mining claim through which the less than one half mile long section of road passes. The current landowner admitted under oath that he had used Forest Road 40E without permission before purchasing the property. We have families with ties to Kingston and the Middle Percha Canyon who have over 80 years of memories, hunting, hiking, and playing in the waters of this canyon.

  1. The use is also open or notorious.

Many people who used the road over the years to access the canyon, were not even aware that they were passing through private land, as there was no fencing, gates, or signage indicating such. Forest Road 40E has been an open road for public access to public lands for this entire 100 plus year period.

  1. The use was continuous without interruption for 10 years.

The road now known as FR40E has been used by the public since the early 1890’s when it was called a wagon road and served the mining communities that stretched along the banks of the Middle Percha Creek. It is clearly shown on maps dating from a claim map in 1892 all the way to the current Gila National Forest maps of today. So, the requirement for Prescriptive Easement of 10 years of continuous use is met with an easy 100 years of buffer.

All the other issues that have been brought into this case are irrelevant. Yes, they are important, and they may need to be addressed. However, the topic at the core of this lawsuit is: does Forest Road 40E meet the New Mexican legal requirements for Prescriptive Easement. The answer is yes it does.

I will close this article with a verbal picture of what will lie to the west of Kingston when Forest Road 40E is legally registered as holding a Prescriptive Easement. This will allow unrestricted public access to public lands that lie beyond the private properties. This means that the landowner may retain his gate, but it shall remain unlocked and signed to notify the public users to please close the gate behind them, stay on the roadway while respecting the private land and its uses on either side. This is to minimize the impact on the private land while respecting the rights of the public to access the Gila National Forest and the Aldo Leopold Wilderness. The actual Gila Forest boundary should be signed as well to notify the public users when they have passed from the private land and onto the public lands of the Gila National Forest.

Another clarification is needed here as well. This canyon is very rugged and contrary to the imaginary one-hour easy hiking access suggested alternative, the actual alternative to skirting the private property which has blocked western access to the forest lands is a route of over 1000 feet of elevation change, up, down to the creek, back up and then down to the towns edge. That is 4,000 feet of elevation change for the actual seven-hour roundtrip hike. As there is not an existing trail, two thirds of this hike consists of bushwacking through very steep and rugged terrain. This is not a route for the average hiker and certainly not one for a family outing. So, compare this actual alternative (we have hiked and timed it), to a relatively flat, 15-minute hike along Forest Road 40E from the existing locked gate location to the Forest Boundary less than one-half mile to the west. This paragraph is irrelevant to the Prescriptive Easement question but clarifies the importance of Forest Road 40E and its open access to the beautiful canyons that lay beyond. This includes the historic Ladrone Trail which once began at the end of FR40E and wound its way up the upper reaches of the Middle Percha Canyon, over into Ladrone Canyon, past Hillsboro Lake and ended at a junction with the Black Range Crest Trail, completed in 1922 and connecting six Forest Fire Lookout Towers.

This trail recently had a NEPA study conducted on it by the Gila National Forest to allow a rerouting of the historic trail after the flooding in the canyon from the 2013 Silver Fire. Work had begun on the trail restoration but stopped when the access below was denied by the locked gate in February 2023. With the reopening of the public lands beyond the locked gate, it is hoped that the Gila National Forest personal will resume their stewardship of these lands which has been on hold due to the locked gate.

This is a decision which impacts the residents and visitors of our entire region, not just one landowner. I hope this article will satisfy those who did not understand the real meaning of Prescriptive Easement, the full impact of this locked gate and the magnitude of this loss of public access to public lands. Access which has been enjoyed by many for decades.



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Steve Morgan
Steve Morgan

Steve Morgan is a retired landscape architect who spent most of his 35 year career in Arizona and New Mexico. His current career is giving Chautauquas or Living History performances, as Aldo Leopold. He happily calls Kingston, New Mexico his home now, nestled in the Black Range Mountains only 3 miles from the Aldo Leopold Wilderness. His writings are strongly shaped by Aldo Leopold’s love of the wild lands, with respect and compassion for the land – the soils, waters, plants and animals. Steve’s compassion for nature is evident by his strong, driving desire to open people’s eyes to the marvel and joy of experiencing the natural world.

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  1. Thank you, Steve for clarifying what a prescriptive easement is. I gave been following this issue closely. I moved to Hillsboro and never knew that part of the road was privately owned since no one had an issue! I was appalled at what has happened since I moved away!

  2. Thanks, Steve. You’ve done a lot of work on this subject.
    I am curious. Since the judge came down on the side of gating the road for his private property (I, myself have been walking the road many times in the 30+ years I’ve lived in the area)…what would happen if landowners just at the end of the paved road put a gate up, too? Then the people with their own gate further up the road couldn’t get to their gate? The decision just makes no sense to me.

  3. Well said! 1/2 acre private land owner prohibits access and historic use of thousands of acres of public land. For shame. I’ve been told by retired BLM officer there is an old mining era law prohibiting land owners from limiting access to public land, but it has not been used in courts. Public lands access is an issue which plagues the West now. Thank you for sharing your knowledge and for the countless hours you have spent restoring access to Ladrone TH.

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