Opinion by JUDGE WELLING
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY Real Property — Easements Appurtenant; Public Lands — Mexican Land Grants
Fifteen years after the supreme court remanded this case to the district court with instructions to "identify all landowners who have access rights to the Taylor Ranch," a division of the court of appeals reviews whether the district court's proceedings on remand discharged the mandate.
The supreme court's decisions in Lobato v. Taylor, 71 P.3d 938 (Colo. 2002), and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003), constitute the mandate in this case. In the Lobato decisions, the supreme court held that present-day San Luis Valley landowners have the right to access the Taylor Ranch — now the Cielo Vista Ranch — upon showing their land was settled by 1869. Around that time, Charles Beaubien persuaded frontier families from New Mexico to settle in the valley by granting these settlers the right to graze their animals and gather wood and timber from the forested, mountainous areas nearby. Today, these areas comprise the Cielo Vista Ranch.
In 2004, the district court began identifying and decreeing access rights for landowners in the San Luis Valley whose land was settled by 1869. From 2004 until 2010, the district court relied on the best available evidence to decree access rights for individual landowners without requiring any landowner to come forward to assert a claim. In 2010, this changed. After 2010, the district court decreed access rights for only those landowners who came forward to assert claims.
In this opinion, the division concludes that the proceedings on remand were largely consistent with the mandate, but that the district court did not completely discharge its mandate because the identification process used after 2010 could have been, but was not, comprehensive. The division concludes that the undisputed evidence would enable the district court to "identify all landowners who have access rights," and, therefore, remands for the district court to completely discharge its mandate by identifying all current ¶ 13 During this second phase of the proceedings on remand, the trial court could have identified all remaining Costilla County landowners with access rights by using a combination of the same general opt-out process used from 2004 through 2010, in addition to a modified opt-in process. Although Map A and Book E had been exhausted as a reference for identifying benefited lands, landowners presented undisputed evidence showing that other lands — lands outside of Map A — were timely settled. Because the trial court never attempted to identify all present-day owners of these undisputedly timely settled lands, instead adjudicating the rights of only those landowners who came forward to assert claims, we conclude that it failed to discharge its mandate. We, therefore, reverse the trial court's October 2016 order to the extent it requires any remaining landowners entitled to access the Ranch to come forward, and remand the case to the trial court with instructions to identify all remaining owners of benefited lands in Costilla County and adjudicate their rights. In all other respects, we affirm the trial court's orders that are challenged on appeal.
This is also referred to as the time of Gilpin because at that time William Gilpin owned the Ranch. In October 2007, the trial court determined that the time of Gilpin ended on January 27, 1869. This determination is not being contested on appeal.
A "vara" refers to a stretch of approximately 33 inches along the bank of a river or creek. A "vara strip" is an area of land one vara long with its width running to the boundary of the adjacent watershed.
Ultimately, in January 2015, Ranch Owner stipulated that all Map A lands were timely settled.
Ranch Owner asserted res judicata against certain landowners by presenting evidence that the landowner or the landowner's predecessor in interest was personally served with adequate notice of the 1960 Torrens actions brought in federal court, described in Part I, infra. We use the term "res judicata" throughout this opinion instead of the preferred term "claim preclusion" in order to be consistent with the prior opinions in this case. See Lobato II, 70 P.3d at 1156 n.2 (explaining use of the term res judicata instead of claim preclusion).
I. Background
¶ 14 A detailed recitation of the historical events underlying this case was provided by the supreme court in Lobato I, see 71 P.3d at 942-45, and Lobato II, see 70 P.3d at 1155-57. We will not repeat it here. Instead, we limit our background section to the facts necessary to understand the issues presented by this appeal. ¶ 15 The relevant case history begins in 1960, when Jack Taylor purchased the vast majority of the land that now constitutes the Ranch. Taylor purchased the land with notice of landowners' existing use of the Ranch; his deed provided that he took the land subject to "claims of the local people by prescription or otherwise to right to pasture, wood, and lumber . . . upon said land." Nevertheless, he soon fenced the property and barred landowners' entry. In 1960, Taylor also filed a Torrens action in federal district court in Denver. In his Torrens action, Taylor sought to perfect his title and extinguish the landowners' access claims. But Taylor P.2d 1011, 1014 (Colo. App. 1991). The supreme court then granted certiorari and reversed in part and remanded, questioning the constitutional adequacy of the publication notice in the 1960 Torrens actions. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo. 1994). The supreme court directed the trial court to determine which landowner plaintiffs had received adequate notice in the 1960 Torrens actions, and to hold a trial on the merits. ¶ 18 The trial court, on remand, dismissed all but ten landowner plaintiffs as barred by res judicata and denied class certification. It then held a trial on the merits and determined that the remaining landowners had not proved prescriptive rights to the Ranch because their use was not adverse. The trial court also denied landowners' claims based on the Beaubien Document and implied rights doctrines. A division of this court affirmed. Lobato v. Taylor, 13 P.3d 821 (Colo. App. 2000). Landowners appealed, and the supreme court granted certiorari in Lobato I.
The Colorado Torrens Title Registration Act allowed land owners to file an action that would essentially quiet title to their land. §§ 118-10-1 to -102, C.R.S. 1960 (now codified at §§ 38-36-101 to -199, C.R.S. 2018). Because Taylor was a North Carolina resident, he invoked the federal court's diversity jurisdiction. See Lobato I, 71 P.3d at 943, n.1.
A. Lobato I
¶ 19 In Lobato I, the supreme court reversed the court of appeals and held that the original settlers of Beaubien's grant and their successors in title had implied rights of access to the Taylor Ranch for reasonable grazing, firewood, and timber. 71 P.3d at 957. The supreme court excluded hunting, fishing, and recreation from the scope of the landowners' rights. Id. It defined the Taylor Ranch as including two parcels of land: the 77,000-acre mountain tract and the 2500-acre Salazar estate. Id. at 943-44. ¶ 20 After deciding Lobato I, the supreme court retained jurisdiction and directed the parties to brief due process and res judicata issues left unresolved by the supreme court's Lobato I opinion. Id.
B. Lobato II
¶ 21 The supreme court decided the remaining issues in Lobato II, where it held that landowners who were successors to the original settlers of the land grant had reasonable access rights to the Taylor Ranch. 70 P.3d at 1167. The supreme court also held that Taylor had not satisfied due process when he served landowners with notice by publication in his 1960 Torrens action, but that res judicata barred claims by landowners and their successors who were "personally named and served" in the Torrens action. Id. at 1166-67. ¶ 22 With those remaining issues resolved, the supreme court remanded the case for the trial court to "identify all landowners who have access rights to the Taylor Ranch and to enter all necessary and appropriate orders to safeguard these rights." Id. at 1167-68.
C. Remand Process Following Lobato II
¶ 23 Early in the remand proceedings, the trial court articulated its understanding of the supreme court's mandate. It explained that, pursuant to Lobato II, it was "responsible for identifying the current landowners who have access rights to the former Taylor Ranch." The trial court described this process as an "administrative task" that should be completed "as quickly as possible." It acknowledged that "other contested issues" would arise during the identification process but advised the parties that any such issues "should be litigated after the major portion of the identification process is completed." ¶ 24 Before the identification process began, the trial court granted access rights to the nine landowners who the supreme court held had proved their claims by tracing their titles to the time of Gilpin. See Lobato II, 70 P.3d at 1159 n.5. The trial court ordered that these landowners were not restricted as to whom they were allowed ¶ 29 Second, once the identification process based on Map A and Book E was completed "to the Court's satisfaction," the trial court advised that it would "adopt other procedures to notify, locate, and adjudicate the rights of other present landowners who claim access" to the Ranch. This became the opt-in process. ¶ 30 Both the opt-out and opt-in processes included a res judicata component. Where Ranch Owner presented evidence sufficient to show that any individual landowner or a predecessor in interest was personally served in Taylor's 1960 Torrens action or the 1960 Salazar Torrens action, the trial court barred his or her access claim pursuant to res judicata. Depending on whether the evidence showed that the landowner was personally served in Taylor's 1960 Torrens action, the 1960 Salazar Torrens action, or both, the trial court barred that landowner's claim to the mountain tract, the Salazar estate portion of the Ranch, or both.
The nine landowners include the seven plaintiffs in Lobato II as well as two landowner intervenors.
The trial court designated as class representatives the seven landowner plaintiffs and two intervenors who the supreme court held were entitled to access the Ranch.
With respect to its decision to appoint Mr. Duncan in this capacity, the trial court observed that "the San Luis Valley Title Company has the plat of real estate records and transactions in Costilla County that is superior to that in the office of the county clerk and recorder."
1. The Opt-Out Process: 2004-2010
¶ 31 The title company submitted its initial report to the trial court in September 2004 (the 2004 Duncan Report). The report identified sixteen separate tracts of land from Map A. For each tract, the report cited to the page number within Book E where the tract was located and identified to whom Charles Beaubien made the original conveyance, the 1960 owner, and the present-day owner. ¶ 32 In March 2005, the trial court decreed access rights for the owners of the tracts identified in the 2004 Duncan Report. In the order granting access rights, the trial court found that the information contained in the 2004 Duncan Report, considered along with the statements of the title company owner describing "the use of Map A and Book E together with the book and page number of each transaction," established by a preponderance of the evidence that "the information contained therein is true." The trial ¶ 39 The opt-out process reached substantial completion by 2010. With the opt-out process nearing completion and upon finding no just reason to further delay entry of a final judgment, the trial court certified its orders on remand as final under C.R.C.P. 54(b). Ranch Owner appealed the judgment. Landowners cross-appealed. But a division of this court dismissed the appeal without prejudice as premature, concluding that the trial court had not, in fact, entered a final appealable judgment. See Lobato v. CVR Props., Ltd., (Colo. App. No. 09CA1822, Feb. 4, 2010) (unpublished order).
The trial court directed the title company to identify the 1960 owner of each tract to enable Ranch Owner to assert res judicata as a defense by presenting evidence to show that the 1960 owner was personally named and served in connection with the 1960 Torrens actions.
Additionally, the trial court found that the Colorado Rules of Civil Procedure in effect when the Torrens actions were filed in 1960 required that, to be effective, personal service must be made either to the named individual personally or to an adult family member at the individual's residence. See C.R.C.P. 4(e)(1) (1960); see also § 118-10-21, C.R.S. 1960 (requiring that service in a Torrens action must comply with the Colorado Rules of Civil Procedure). It also found that the summons must be served with the application for personal service to be adequate. See § 118-10-15, C.R.S. 1960.
During the opt-out process, the trial court also presumed timely settlement and decreed access rights for landowners in the towns of San Luis, San Pablo, and Los Vallejo, on the grounds that each town was mentioned in Beaubien's granting document. The trial court adjudicated access rights for these landowners through the same process used for Map A and Book E landowners.
Because the pace of the title company's work slowed toward the end of the process due to the ailing health of the principals, it did not issue its final report until May 2012.
2. The Opt-In Process: 2010-2016
¶ 40 In 2010, having exhausted the identification based on Map A and Book E, the trial court initiated a new identification process, the opt-in process. ¶ 41 The trial court initiated the opt-in process by sending notices by mail to all landowners in the southern portion of Costilla "pragmatic finality" was achievable for purposes of Rule 54(b) without service by publication and certified its orders as final for appeal. The trial court reiterated that landowners whose rights had not been adjudicated were not foreclosed from asserting a claim in the future. ¶ 44 This appeal and cross-appeal followed.
In February 2010, the presiding trial court judge, Judge Gaspar Perricone, retired and was replaced by Judge Kenneth Plotz.
In the time of Gilpin, the Sangre de Cristo land grant was divided into two parcels: a southern portion (Costilla Estate) and a northern portion (Trinchera Estate). Finding no evidence that Gilpin transferred any lands in the northern portion to settlers, the trial court concluded that notice need only be mailed to landowners in the southern half of Costilla County. The parties thereafter stipulated to a line dividing the northern and southern halves of Costilla County.
Nor did Ranch Owner request to personally serve all landowners whose access rights had not been adjudicated one way or the other.
II. Analysis
¶ 45 Ranch Owner presents six claims on appeal, contending that (1) the trial court's opt-out identification process on remand violated the supreme court's mandate; (2) the trial court improperly decreed access rights to the Salazar estate portion of the Ranch through the same process used for the mountain tract portion of the Ranch; (3) the trial court erred in limiting the res judicata bar to landowners "personally named and served" in the 1960 Torrens actions, ignoring well-settled Colorado law concerning co-owners and successors; (4) the trial court improperly deprived Ranch Owner of the finality required in a quiet title action pursuant to C.R.C.P. 105 by denying Ranch Owner's request for service by publication at the conclusion of the opt-in process; (5) the trial court improperly refused to apportion landowners' access rights in proportion to their parcel sizes or implement rules and regulations governing their use to avoid harm to the Ranch; and (6) the trial court improperly refused to bar landowners from exercising access rights on portions of the present-day Ranch that were once part of the dominant estate and, therefore, not subject to the access rights. ¶ 46 Landowners cross-appeal, contending that the trial court's opt-in identification process implemented in 2010 violated the supreme court's mandate. ¶ 47 Before we discuss each issue raised by the parties, we first address whether the trial court properly certified its orders as a final judgment for appeal pursuant to Rule 54(b), as a jurisdictional requirement.
A. Finality of the Trial Court's Judgment for Appeal
¶ 48 Ranch Owner and landowners contend that the trial court's final judgment is sufficiently final pursuant to Rule 54(b) to confer jurisdiction over the appeal and cross-appeal. For the reasons set forth below, we agree.
1. Additional Background
¶ 49 In October 2016, as described in Part I.C, supra, the trial court issued a final order that certified all prior orders adjudicating access rights for landowners as final and appealable pursuant to Rule 54(b). The trial court acknowledged that "there may be additional landowners whose property has access rights that have not yet been adjudicated," but concluded that it had carried out its mandate "as completely as is reasonably possible" and "reached pragmatic finality." The trial court also noted that "the identification process has taken over a decade," and that no new landowner claimants had come forward in the past eight months. It reasoned that the remand proceedings "at some point must be considered final" for appeal, even though any remaining landowner claimants were not foreclosed from coming forward in the future. ¶ 50 In June 2017, this court ordered the parties to show cause as to why Ranch Owner's appeal and landowners' cross-appeal should not be dismissed for lack of jurisdiction. In the show cause order, we noted that the trial court's October 2016 order "does not contain an express determination that there is no just reason for delay and . . . express direction for the entry of judgment," as Rule 54(b) requires for an order to be certified as final and appealable.
2. Rule 54(b)
¶ 51 When an action involves multiple parties or multiple claims for relief, Rule 54(b) permits a court to direct entry of a final judgment as to fewer than all claims or parties. Rule 54(b) creates an exception to the general rule that an entire case must be resolved by a final judgment before an appeal is brought. Grear v. Mulvihill, 207 P.3d 918, 921 (Colo. App. 2009). Rule 54(b) provides that the court may direct the entry of a final judgment as to fewer than all claims or parties "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." ¶ 52 Where multiple parties are involved, a certification under Rule 54(b) is proper when (1) the decision certified is final in the sense of being an ultimate disposition of an individual claim and (2) the trial court determines that there is no just reason for delay in entry of a final judgment on the claim. See Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 (Colo. 1982) (describing a three-step process to determine whether Rule 54(b) certification is proper); see also Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986) ("[T]he first prong of the Harding Glass requirements does not apply to a certified decision involving multiple parties."). ¶ 53 Our jurisdiction to entertain an appeal of a decision certified under Rule 54(b) depends upon the correctness of the certification. Carothers v. Archuleta Cty. Sheriff, 159 P.3d 647, 651 (Colo. App. 2006). We review de novo the legal sufficiency of the trial court's certification. Id.
3. The Trial Court Properly Certified Its Orders as Final
Judgments for Appeal
¶ 54 We conclude that, under these unusual circumstances, the trial court properly certified its judgment as final pursuant to Rule 54(b). Directed by the supreme court in Lobato II to "identify all landowners who have access rights," 70 P.3d at 1167 (emphasis added), the trial court spent more than a decade identifying and adjudicating access rights for thousands of landowners in Costilla County. These landowners' claims were definitively resolved by the trial court. See Harding Glass Co., 640 P.2d at 1125 (Rule 54(b) certification requires ultimate disposition of an individual claim). Thus, the first of the two relevant Harding Glass requirements is satisfied here. additional identification procedures are required. If we instead concluded that a comprehensive and complete result was a prerequisite for Rule 54(b) certification, we would be required to remand for the trial court to produce a result that it already concluded was not reasonably possible, without reviewing the propriety of its conclusion in this regard. This would be untenable. ¶ 58 For these reasons, we conclude that the trial court's Rule 54(b) certification was proper and we, therefore, have jurisdiction over this appeal.
B. Adherence to the Mandate During the Opt-Out Process
¶ 59 As discussed above, the proceedings on remand from 2004 through 2010 comprise the opt-out process. Ranch Owner contends that the trial court contravened the supreme court's mandate on remand during the opt-out process by granting access rights without requiring each claimant to first be notified and then appear to assert a claim or present evidence at a hearing. Ranch Owner argues that the trial court's process on remand violated the mandate by eliminating the landowners' burden to present evidence sufficient to meet their burden of proof, while at the same time denying Ranch Owner the opportunity to test the evidence of timely settlement or present rebuttal evidence. ¶ 60 We are not persuaded that the trial court's opt-out process was inconsistent with the supreme court's mandate in Lobato II.
1. The Supreme Court's Mandate and Instructions for Remand
¶ 61 In Lobato II, the supreme court provided specific directions to guide the remand proceedings. It held that, "[b]ecause the plaintiff landowners have prevailed on their claims, [Ranch Owner] now must pay the costs associated with identifying and notifying all persons who have access rights to the Taylor Ranch." 70 P.3d at 1167. The supreme court then "direct[ed] the trial court to identify all landowners who have access rights to the Taylor Ranch and to enter all necessary and appropriate orders to safeguard these rights." Id. at 1167-68. ¶ 62 The supreme court's opinion further instructed the trial court how to perform the identification on remand. It held that, "in order to have actual access rights to the Taylor Ranch, landowners must be able to show that their lands were settled at the time of the creation of the Beaubien document in 1863." Id. at 1157. The supreme court also prescribed the actual mechanics for how landowners were expected to prove their claims on remand. See id. ("For practical purposes, this requirement [to show that one's lands were timely settled] can be established by tracing settlement of one's property to the time of Gilpin's ownership of the Taylor Ranch."). ¶ 63 The supreme court also specified the standard of proof and identified the evidence that would presumptively meet the standard. It held that, "[u]sing the best available evidence, landowners must prove by a preponderance of the evidence that their property is included within the boundaries of property owned or occupied by settlers during the time of Gilpin's ownership of the lands of the Sangre de Cristo grant." Id. at 1159. ¶ 64 When the supreme court modified its Lobato II opinion in response to the parties' petitions for rehearing, it included a footnote at the end of the sentence quoted above. That footnote provided as follows:
We emphasize that the landowners need not prove a marketable chain of title for their property. As stated in the text, the landowners must use the best available evidence to prove their lands are benefited by the easements Beaubien granted. From the record before us, it appears that the best evidence of benefited
properties conveyed by Beaubien is the official 1894 Costilla County survey and inventory of lands held by individuals along the Culebra, Vallejos, and San Francisco Creeks. Of course, we do not foreclose the landowners from presenting other evidence to prove their settlement claims.
Id. at 1159 n.6.
As mentioned above, the 1894 Costilla County survey is referred to as "Map A and Book E" based on its location in the Costilla County real property records.
2. Standard of Review
¶ 65 A trial court's implementation of an appellate mandate is reviewed de novo. Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72, 77 (Colo. 1995); Hardesty v. Pino, 222 P.3d 336, 340 (Colo. App. 2009). Where compliance with the appellate mandate requires evidentiary or other post-remand factual determinations by the trial court, we review for an abuse of discretion. Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16.
3. The Trial Court's Remand Process During the Opt-Out Process
Comported with the Supreme Court's Mandate
¶ 66 Ranch Owner contends that the trial court's opt-out process violated the supreme court's mandate. Ranch Owner argues that the trial court should have implemented a process akin to the opt- in process from the outset, and that the opt-out process was improper for three reasons. Ranch Owner argues that the trial court (1) relied on a conclusive presumption that relieved landowners of their burden of proof; (2) denied Ranch Owner the opportunity to examine the title company or inspect its work; and (3) improperly denied Ranch Owner the opportunity to present rebuttal evidence. ¶ 67 We are not persuaded that the trial court's opt-out process was inconsistent with the mandate. We discuss each specific issue raised by Ranch Owner in turn.
a. The Trial Court's Reliance on Map A and Book E During the
Opt-Out Process Did Not Violate the Mandate
¶ 68 First, Ranch Owner contends that the trial court's reliance on Map A and Book E evidence established a conclusive presumption that improperly relieved landowners of their burden of proof. We disagree. Instead, we conclude that the trial court's reliance on Map A and Book E was consistent with the supreme court's mandate in Lobato II. ¶ 69 In footnote six, which was added to Lobato II when it was modified after the parties' petitions for rehearing, the supreme court also because we conclude, as discussed below, that Ranch Owner was not denied the opportunity to challenge the Map A and Book E evidence before the trial court decreed access rights — we are not persuaded by Ranch Owner's contention that the trial court improperly relied on a conclusive presumption that current owners of any property within the Map A and Book E record had access rights.
b. Any Restrictions Placed By the Trial Court on Discovery of a
Court-Appointed Expert Do Not Warrant Reversal
¶ 73 Second, Ranch Owner contends that the trial court improperly denied Ranch Owner the opportunity to depose or otherwise examine any representative of the title company during the remand proceedings or inspect the title company's work product. We conclude that, even assuming the trial court erred by denying the parties access to a representative of the title company for depositions or other discovery, any error was harmless. ¶ 74 The trial court appointed the principal of the title company as "an abstractor to advise the Court by written report" of the present-day landowners whose property was settled in the time of Gilpin. Out of concern that allowing direct contact with title company inability to examine a title company representative about these reports would not have prejudiced Ranch Owner's ability to challenge the presumption that lands within Map A and Book E were timely settled. Moreover, any such issue was mooted by Ranch Owner's eventual stipulation to the timely settlement of all Map A lands.
c. The Trial Court Did Not Deny Ranch Owner the Opportunity to
Present Rebuttal Evidence to Map A and Book E
¶ 78 Next, Ranch Owner contends that the trial court denied it the opportunity to present rebuttal evidence to challenge the timely settlement of the area covered by Map A and Book E. We conclude that this contention is unsupported by the record. ¶ 79 In January 2015, Ranch Owner ultimately stipulated that all lands within Map A and Book E, as well as certain lands outside that area, were timely settled. Ranch Owner contends that the stipulation does not preclude this argument on appeal because the stipulation contained a clause reserving Ranch Owner's "right to appeal any and all rulings, orders or determinations" entered on of proof before it decided that the landowners in the 2004 Duncan Report had access rights. Ranch Owner's offer of proof included evidence of personal service in the 1960 Torrens actions on certain landowners, offered by Ranch Owner to show that their successors should be subject to the res judicata bar. The trial court advised Ranch Owner that, if it wished the trial court to reconsider its ruling (that landowners in the 2004 Duncan Report had access rights), Ranch Owner could "expand upon [its] offer of proof." But Ranch Owner did not thereafter supplement its offer of proof or request to present additional evidence. ¶ 83 For these reasons, we conclude that the trial court followed the mandate during the opt-out process. As described above, the trial court's identification of landowners based on Map A and Book E did not establish a conclusive presumption, and Ranch Owner was not precluded from presenting evidence to rebut the Map A and Book E presumption of timely settlement. And while the trial court may have erroneously restricted discovery of its court-appointed expert, any such error was harmless.
At oral argument, both sides agreed that all of the Map A and Book E land is included in the map of Stipulated Settled Lands.
C. Inclusion of the Salazar Estate in Remand Proceedings
¶ 84 Ranch Owner next contends that the trial court's reliance on the same process on remand to decree rights to both the Salazar estate and the mountain tract portions of the Ranch was improper because it failed to consider the Salazar estate's distinct factual and procedural history and was premised on findings pertaining only to the mountain tract portion. We disagree.
1. Additional Background
¶ 85 In 1960, Taylor purchased the roughly 77,000 acres comprising the mountain tract of the Ranch. In 1973, Taylor purchased an adjoining parcel of roughly 2500 acres that was also part of the Sangre de Cristo grant. These 2500 acres comprise the Salazar estate. See Lobato I, 71 P.3d at 943-44.
2. The Trial Court Properly Included the Salazar Estate in
Remand Proceedings
¶ 86 Ranch Owner's argument is foreclosed by the supreme court's mandate. In Lobato I, the supreme court specifically held that the mountain tract and the Salazar estate together comprised the Taylor Ranch. 71 P.3d at 944 ("Together, the mountain tract and the Salazar estate are known as the Taylor Ranch."). Ranch Owner argued in its Lobato II brief that the Salazar estate should not be a part of the case. But the supreme court in Lobato II reiterated that "the Taylor Ranch includes those lands known as the Salazar estate" and held that, "[a]s such, our decision in the present case also applies to the Salazar estate." 70 P.3d at 1155 n.1. Thus, we conclude that the supreme court has considered and rejected Ranch Owner's argument, and neither the trial court nor this court is free to revisit it. See People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983) ("The law of the case as established by an appellate court must be followed in subsequent proceedings before the trial court.").
D. Res Judicata
1. Ranch Owner's Contentions
¶ 87 Ranch Owner contends that the trial court erroneously limited the application of res judicata to landowners who received personal service in the 1960 Torrens actions and their successors. Ranch Owner contends that it is well settled under Colorado law that (1) a person may consent to personal jurisdiction — thereby waiving any due process notice requirements — through participation in the litigation; and (2) a res judicata bar applicable to one person also bars anyone in privity with that person. Ranch Owner argues that the trial court erroneously refused to apply res judicata to landowners under these circumstances, notwithstanding the supreme court's holding that "individuals who should have been personally named and served, and were not, are not barred from presently bringing such claims." Lobato II, 70 P.3d at 1158. We conclude that Ranch Owner's arguments are foreclosed by the supreme court's mandate and the law of the case, as established in Lobato II.
2. The Trial Court Properly Denied Ranch Owner's Motion for
Broader Application of Res Judicata
¶ 88 Ranch Owner's first argument — that res judicata must apply to landowners who participated in the 1960 Torrens actions and their successors — was considered and rejected by the supreme court in Lobato II. Ranch Owner advanced this argument in its Lobato II brief, arguing then that personal jurisdiction and proper service should both be presumed for any landowner who participated in the 1960 Torrens actions, even absent personal service. Ranch Owner specifically argued that "[t]he appearances by counsel [for landowners] eliminated the necessity for personal service on all defendants individually named in the Torrens action." appeals.'" (quoting 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478.3, at 759-60 (2d ed. 2002))). ¶ 91 In summary, the supreme court made clear that the res judicata bar only extended to landowners and successors who were "personally named and served" in the 1960 Torrens actions, and the trial court was not free to disregard or modify this language. Nor are we.
E. Service by Publication
¶ 92 Ranch Owner next contends that the trial court's denial of its motion to serve any remaining unknown claimants with notice through publication was error because it prevented Ranch Owner from achieving the finality required of a quiet title action under Rule 105. We disagree.
1. Additional Background
¶ 93 As described in Part I.C, supra, the trial court denied Ranch Owner's request at the outset of the remand proceedings to personally serve all Costilla County landowners with notice of their obligation to come forward and assert a claim to access the Ranch. The trial court decided instead to proceed with an opt-out process, which it began by identifying landowners with access rights based upon the Map A and Book E record, and only notified landowners after their rights were adjudicated. At the conclusion of the opt-out process, the trial court initiated the opt-in process, during which all Costilla County landowners were mailed notices advising of the ongoing proceedings but informing each landowner that his or her right to make a future claim would not be foreclosed by a failure to respond. ¶ 94 At the conclusion of the opt-in process, Ranch Owner sought to achieve finality through service of notice by publication to all remaining, unidentified claimants. Ranch Owner did not renew its request to personally serve all Costilla County landowners — or even the subset of landowners whose claims had not been adjudicated. In fact, Ranch Owner indicated that it would "resist" any such approach. The trial court denied Ranch Owner's request for service by publication, concluding that it would violate the supreme court's mandate by extinguishing the rights of any non-responding claimants without first personally serving them. We discern no error on the part of the trial court in this regard.
2. The Trial Court Properly Denied Ranch Owner's Request to
Achieve Finality Through Service by Publication
¶ 95 Ranch Owner contends that the trial court's refusal to allow service by publication on unknown parties who may in the future claim an interest in the Ranch deprived Ranch Owner of the complete and final adjudication that Rule 105 requires in a quiet title action. Lobato II, 70 P.3d at 1165. Ranch Owner argues that the due process concerns identified by the supreme court in Rael, 876 P.2d 1210, Lobato I, and Lobato II were satisfied through the trial court's exhaustive, decade-long efforts to identify potential claimants and decree access rights and that, because the trial court had concluded that process, service by publication was an appropriate method to achieve finality. ¶ 96 Landowners respond that service by publication, because it would extinguish the rights of any landowner who did not respond, would violate the supreme court's mandate in Lobato II, which held that personal service was required before any landowner's rights to access the Ranch could be extinguished. Landowners also argue that the general requirement that a quiet title action completely case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").
F. Apportionment of Rights and Rules Governing Use
¶ 101 Ranch Owner next contends that the trial court erroneously refused to apportion each landowner's access right in proportion to the size of each subdivided parcel. Apportionment is necessary, Ranch Owner argues, to avoid imposing an unsustainable burden on the Ranch. Ranch Owner also contends that the trial court erroneously refused to further define the scope of the access rights and impose rules and regulations for their exercise. Landowners respond that Ranch Owner failed to prove actual overuse by any landowner and so was not entitled to relief for an injury that had not yet occurred nor was demonstrably imminent. We are not persuaded that the trial court abused its discretion in declining to apportion access rights or impose rules and regulations to govern landowners' exercise of their rights.
1. Additional Background
¶ 102 In Lobato I, the supreme court held that landowners had implied rights to the Ranch in three forms: "a prescriptive easement, an easement by estoppel, and an easement from prior use." 71 P.3d at 946. It held that the extent of landowners' access rights was determined by "the rights memorialized in the Beaubien Document" and, therefore, included rights to access the Ranch for pasture, firewood, and timber. Id. at 956. The supreme court further held that landowners' use of the Ranch must comport with a reasonable use standard, under which their use must be
limited to reasonable use — the grazing access is limited to a reasonable number of livestock given the size of the vara strips; the firewood limited to that needed for each residence; and the timber limited to that needed to construct and maintain residence and farm buildings located on the vara strips.
Id. ¶ 103 In 2004, at the outset of the proceedings on remand, landowners filed a motion to enforce the reasonable use standard. The trial court granted the motion in part. It found that landowners' "grazing right of access is limited to reasonable use of livestock given the size of the vara strips" under the reasonable use standard, and that the Beaubien Document authorized grazing "for the purpose of survival or for household use." In addition, the trial court found that "[h]ousehold use does not include commercial use," and that "commercial use" is a use "made and done or
Ranch Owner failed to present evidence of actual overburdening of the Ranch. In support of their position, landowners submitted an affidavit from an expert attesting that the historical grazing practices on the Ranch greatly exceeded Ranch Owner's estimate of the Ranch's total grazing capacity. Landowners further argued that a determination of grazing capacity was outside the scope of the mandate on remand and would delay the trial court's completion of the identification process. ¶ 111 The trial court denied Ranch Owner's motion without a hearing. In a written order, the trial court found that the grazing capacity of the Ranch was dependent on seasonal weather conditions and, therefore, "an order issued today may not serve the interest of justice in the ensuing years." It also found that the issue did not implicate an issue of fact common to all class members. It advised that, instead of a hearing, Ranch Owner should use the Notices of Intended Use to determine whether to pursue claims for overuse or abuse of access rights against individual landowners, such as in a trespass action. To date, no such claim has been asserted.
According to the affidavit, a single animal unit is comprised of one cow and one calf, or five sheep. One bull counts as 1.5 animal units.
These landowners' access rights were decreed in June 2004 and were limited to the Salazar estate.
At a February 2009 hearing, Ranch Owner's counsel advised the court that "[t]he Notice of Intended Use forms have been in place for two years. The ranch owner has found the returns of those forms incredibly useful, with respect to the grazing numbers especially."
2. Legal Principles
¶ 112 Access rights must be apportioned when necessary to avoid "an unreasonable increase in the burden on the servient estate." See Restatement (Third) of Property: Servitudes § 5.7(1) (Am. Law Inst. 2000) (hereinafter Restatement). Easement holders are not permitted to "cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment." Id. § 4.10. When a benefited property has been subdivided, "[e]ach separately owned parcel is entitled to make the uses privileged by an easement or profit; provided, however, that if apportionment is required to avoid an unreasonable increase in the burden on the servient estate, the use rights are appropriately apportioned among the parcels." Id. § 5.7(1). ¶ 113 A benefited property may expand its use of an easement without creating an unreasonable burden. Wright v. Horse Creek Ranches, 697 P.2d 384, 388-89 (Colo. 1985) ("[T]he beneficiary of an easement established by prescription will be permitted to vary the use of the easement to a reasonable extent."). The "manner, frequency, and intensity of the use may change over time," for example, "to accommodate normal development of the dominant estate." Restatement § 4.10; see also Westland Nursing Home, Inc. v. Benson, 33 Colo. App. 245, 252, 517 P.2d 862, 867 (1974) (same). ¶ 114 In determining whether "an additional use of the servient estate is permissible," a court should compare "the use originally acquired and the additional use," giving consideration to "their purpose, the normal evolution in the use of the dominant estate, and the relative burden to the servient estate." 4 Herbert Tiffany, Real Property § 1209, Westlaw (3d ed. database updated Sept. 2018).
3. Standard of Review
¶ 115 While a trial court's implementation of an appellate mandate is reviewed de novo, see Super Valu, 906 P.2d at 77, evidentiary or other post-remand factual determinations are reviewed for abuse of discretion, Murray, ¶ 16.
4. The Trial Court Did Not Abuse Its Discretion by Denying
Ranch Owner's Requests for Apportionment and
Establishment of Rules
¶ 116 Ranch Owner contends that the trial court improperly refused to apportion landowners' rights to access the Ranch or establish a management plan to govern consumption of its resources. Ranch an unreasonable increase in the burden on the Ranch, the question of whether apportionment is possible is not yet relevant. ¶ 126 For these reasons, we conclude that Ranch Owner did not show that the increased use of the Ranch as a result of the access rights granted on remand resulted in an unreasonable increase in the burden. Accordingly, the trial court did not abuse its discretion in denying Ranch Owner's request for apportionment or establishment of rules and regulations.
G. Rights to Access Original Vara Strips that Are Now Located
Within the Ranch
1. Additional Background
¶ 127 The title company's November 2006 report showed that certain portions of the Ranch were once vara strip parcels benefited by Beaubien's grant. Ranch Owner later hired a surveyor to confirm the title company's finding. Ranch Owner contends that the trial court erroneously refused to prohibit landowners from exercising their access rights on these portions of the Ranch. Ranch Owner argues that because it is undisputed that a landowner's access rights cannot be exercised over another vara strip parcel, any portions of the Ranch that were original vara strip parcels must be excluded from the servient estate. Landowners respond that Ranch Owner waived this argument by failing to raise it earlier in the litigation. Ranch Owner replies that it could not have raised the argument earlier because prior to Lobato II it could not have known that access rights would be tied to original vara strip parcels. We perceive no error by the trial court.
2. Ranch Owner's Requested Determination Was Outside the
Scope of the Mandate
¶ 128 As discussed above, the supreme court's mandate required the trial court on remand to determine the scope of the dominant estate. But the supreme court's opinions in Lobato I and Lobato II determined the scope of the servient estate, holding that the entire Taylor Ranch was burdened. Thus, the trial court did not have discretion to revisit the issue of what constituted the servient estate. See Roybal, 672 P.2d at 1005. Accordingly, the trial court did not err in declining to redefine the servient estate.
H. Adherence to the Mandate During the Opt-In Process
¶ 129 In their cross-appeal, landowners contend that the trial court violated the Lobato II mandate by requiring certain individual Costilla County landowners to opt into the proceedings from 2010 through 2016 as a prerequisite for having their rights adjudicated. Landowners assert that they presented undisputed — and, ultimately, stipulated — evidence showing that certain areas in the southern half of Costilla County were settled in the time of Gilpin. These were previously referred to as the Stipulated Settled Lands. Because timely settlement of these lands was undisputed, landowners argue that the Lobato II mandate required the trial court to identify all current owners of any such benefited lands and adjudicate their access rights, without requiring them to first come forward to assert a claim. We agree that the trial court's opt-in identification process was inadequate to discharge the mandate, at least with respect to the Stipulated Settled Lands.
1. Additional Background
¶ 130 As described in Part I.C, supra, from 2004 through 2010, the trial court decreed access rights for the owners of lands identified in Map A and Book E (the opt-out process). Once the trial court had identified all owners of Map A and Book E lands and adjudicated their rights, it turned to the remaining portions of Costilla County. From 2010 through 2016, after providing all landowners in the southern half of Costilla County with notice by mail, the trial court the specific lots and parcels of land within the stipulated boundary of the Garcia Settlement Map." ¶ 136 Ranch Owner opposed the requested identification process, arguing that the trial court was only required to decree rights for the nine Garcia landowners who had come forward after the 2010 advisory notices were mailed. Ranch Owner further argued that the law of the case, as articulated by Judge Perricone, required a process whereby individual landowners must come forward to assert claims. ¶ 137 The trial court denied the Garcia landowners' motion. It relied on an earlier description by Judge Perricone of how the second phase of the identification process should unfold, determining that Judge Perricone's statement constituted the law of the case. Judge Perricone, at a February 2009 hearing, had advised the parties:
We've been operating up to now on a presumption that I [Judge Perricone] have determined existed as a result of the Supreme Court decisions in reference to Map A, Book E, and the Beaubien document. I think that presumption ends and the burden now rests with those people who want access.
¶ 138 Judge Plotz concluded that Judge Perricone intended to require any future landowner claimants to come forward and assert
claims, and that Ranch Owner would not be required to bear the cost of identifying benefited landowners who had not come forward. Specifically, with respect to Judge Perricone's February 2009 statement, Judge Plotz concluded:
Put in context, by stating that the presumption ends, [this statement] means that landowners, such as those in the Garcia Township, may come to the trial court and assert those claims, but that since these landowners do not reside within the confines of Map A, Book E, the [Ranch Owner] Defendants are no longer under an order of the trial court to pay for a process which identifies all landowners in an area such as the Garcia Township.
¶ 139 The trial court concluded that "the law of this case holds that the Garcia Residents," because their land is "not identified in Map A, Book E," must "bear the burden of coming forward and proving" that their land was settled in the time of Gilpin.
Ranch Owner did not present any rebuttal evidence to dispute the timely settlement of any areas identified by landowners.
Ranch Owner also stipulated that a 19th century ditch map introduced by landowners' counsel was the best available evidence of the area that was settled.
Integrated Land Services is a surveying company that partnered with the San Luis Valley Geographic Information System (GIS) Authority to provide GIS services in San Luis Valley.
2. The Opt-In Process Was Not Required By the Law of the Case
¶ 140 We conclude that the trial court erred in determining that it was bound by the law of the case doctrine to implement an opt-in process with respect to the Stipulated Settled Lands during the final phase on remand. Pursuant to the law of the case doctrine, the trial court was bound to adhere to the Lobato II mandate but had adjudicated Stipulated Settled Lands during the last phase on remand. In our view, Judge Perricone's statements did not preclude an opt-out process for all non-Map A lands, even assuming such statements were entitled to deference. Having concluded that Judge Plotz was not required to implement an opt-in process from 2010 through 2016, we now turn to the question of whether that process was consistent with the mandate.
3. The Mandate Requires Identification of All Landowners Within
the Stipulated Settled Lands
¶ 147 As previously discussed, the supreme court's mandate required the trial court to identify "all landowners who have access rights to the Taylor Ranch." Lobato II, 70 P.3d at 1167-68 (emphasis added). Although the opt-in process implemented by the trial court from 2010 through 2016 resulted in access decrees for roughly 350 additional Costilla County landowners, the process was, almost by design, not comprehensive. ¶ 148 Ranch Owner's stipulations changed the complexion of the identification process on remand by creating a map of land that was, like Map A, accepted as being timely settled. By early 2015, Ranch Owner had stipulated to a master map of all Costilla County partially remedied the incompleteness of the trial court's opt-in process, neither landowners nor their counsel should bear the burden to identify all Costilla County landowners with access rights to the Ranch. Instead, the supreme court's Lobato II mandate specifically directed the trial court to perform that identification, with costs to be paid by the Ranch Owner. 70 P.3d at 1167 ("Because the plaintiff landowners have prevailed on their claims, Taylor now must pay the costs associated with identifying and notifying all persons who have access rights to the Taylor Ranch."). ¶ 151 For these reasons, we conclude that the opt-in process by which the trial court adjudicated landowners' access rights from 2010 through 2016 was insufficient to discharge its mandate. Because the trial court could have comprehensively identified all benefited Costilla County landowners but did not do so, we conclude that further proceedings are required.
4. Remand Instructions
¶ 152 We remand the case for the trial court to identify and decree rights for all persons who own property within the boundaries of the landowners has been attempted, Ranch Owner may then serve any unknown, unidentified persons through publication in order to bring finality to the action. If, on the other hand, Ranch Owner elects not to attempt personal service on nonadjudicated landowners, then such landowners with unadjudicated rights remain free to come forward at some later date.
These landowners will be subject to the same res judicata defense as the Map A and Book E landowners. --------
III. Conclusion
¶ 154 For the reasons set forth in this opinion, we affirm the trial court's orders decreeing access rights for Costilla County landowners. We reverse the trial court's October 2016 order to the extent it requires any remaining Costilla County landowners entitled to access the Ranch to come forward to assert individual claims, and we remand for the trial court to identify and adjudicate access rights for any yet-unidentified persons who own property within the Stipulated Settled Lands, consistent with this opinion. JUDGE WEBB and JUDGE HARRIS concur.