Quay Road AI runs south along tracts owned by the Ambercrombies and plaintiffs. In 1954, a flood washed out a bridge along Quay Road and the rerouted crossing occurred 100 feet west, onto plaintiffs’ land. In 2005, the Ambercrombies leased their property for a solar farm, and access to the leased lands required use of the crossing. When construction began, plaintiffs demanded payment from the solar lease company to use the crossing. Negotiations between the solar company and plaintiffs failed, and plaintiffs sued for an injunction to prevent the solar company from using the crossing. The county intervened claiming the crossing was within a public prescriptive easement.    

A public prescriptive easement requires the claiming party to establish that the public used the property, open or notorious adverse use of land, and the use continued without interruption for the prescriptive period. Trial court found that there were maps showing the crossing as a public road, neighbors never asked permission for use, and the local title company identified the road as public. The trial court found that crossing was a public prescriptive easement. On appeal, the court of appeals overturned the trial court and held that establishing a public prescriptive easement requires evidence showing the public’s frequency of use or number of users.

The supreme court found that crux of the issue lies with proving the public nature of the road, not the number of individuals who used. Ultimately, the court held that to establish a prescriptive easement “frequency of use or number of users is unimportant, it being enough if use of the road in question was free and common to all who had occasion to use it as a public highway[.]” It held the crossing on plaintiffs’ land was subject to a public prescriptive easement.

McFarland Land and Cattle, Inc. v. Caprock Solar 1, LLC, No. S-1-SC-38934 (N.M. July 13, 2023).