70 P.3d 1152 (Colo. 2003), 00SC527, Lobato v. Taylor

Docket Nº:00SC527.
Citation:70 P.3d 1152
Opinion Judge:MULLARKEY Chief Justice.
Party Name:Eugene LOBATO; Zack Bernal; Gabrielita Adeline Espinosa; Edward Espinosa; Pete E. Espinosa, Jr.; Corpus Gallegos, by and through his conservator Yvette Gallegos; Gloria Gallegos; Rupert Gallegos; Raymond Garcia; Charlie Jacquez, Jr.; Adolph J. Lobato; Bonifacio "Bonnie" Lobato, by and through his conservator Teresa Lobato; Carlos Lobato; Emilio Lob
Attorney:Brauer, Buescher, Goldhammer & Kelman, P.C., Jeffrey A. Goldstein, Littler Mendelson, P.C., William F. Schoeberlein, Robert Maes, David Martinez, Walters & Joyce, PC, Julia T. Waggener, Kelly, Haglund, Garnsey & Kahn, LLC, Norman D. Haglund, Don Hiller, & Galleher, PC, Watson Galleher, Elisabeth ...
Judge Panel:Justice KOURLIS dissenting:
Case Date:April 28, 2003
Court:Supreme Court of Colorado
 
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70 P.3d 1152 (Colo. 2003)

Eugene LOBATO; Zack Bernal; Gabrielita Adeline Espinosa; Edward Espinosa; Pete E. Espinosa, Jr.; Corpus Gallegos, by and through his conservator Yvette Gallegos; Gloria Gallegos; Rupert Gallegos; Raymond Garcia; Charlie Jacquez, Jr.; Adolph J. Lobato; Bonifacio "Bonnie" Lobato, by and through his conservator Teresa Lobato; Carlos Lobato; Emilio Lobato, Jr.; Jose F. Lobato; Presesentacion J. Lobato; Gloria Maestas; Norman Maestas; Robert "Bobby" Maestas; Raymond J. Maestas; Eugene Martinez; Mark Martinez; Agatha Medina; Gilbert "Andres" Montoya; Shirley Romero Otero; Eppie Quintana; Lucille Samelko; Arnold Valdez; Ervin L. Vigil; Larry J. Vigil; Michael J. Vigil; Billy Alire; Robert Atencio; Frances D. Berggran-Buhrles; Jose Fred Carson; Elmer Manuel Espinosa; Margurito Espinosa; Moises Gallegos; Ruben Gallegos; Richard J. Garcia; Manuel Gardunio; Ruben Herrara; Jeffrey Jacquez; Adelmo Kaber; Crucito Maes; Daniel Martinez; David Martinez; Jesse Martinez; Leonardo Martinez; Rosendo Martinez; Solestiano Martinez; Alfonso Medina; Gilbert Medina; Leandardo Medina; Loyola Medina; Marvin Medina; Orry Medina; Raymond N. Medina; Rudy Montoya; Gurtrude C. Olivas; Eppy Wayne Quintana; Robert Romero; Shirley Romero; Anthony Sanchez; Bonnie Sanchez; Eugene Sanchez; Evan Sanchez; James Sanchez; Jose G. Sanchez; Rufino Sanchez; S.R. Sanchez; Vernon Sanchez; Ronald A. Sandoval; Elesam Santistevan; Daniel Segura; Floyd R. Solan; Carolyn Taylor; Sam Valdez; Martha Vialpondo; Joe P. Vigil; and Walter Vigil, Petitioners,

v.

Zachary TAYLOR, as executor of the Estate of Jack T. Taylor, Jr., deceased; The Taylor Family Partnership; J. Hoy Anderson; Marvin Lavern Stohs; Edythe Kelly Stohs; Charles W. Gelderman; William F. Phinney; Harlan A. Brown; Dena F. Fuhrmann; Jimmy C. Crook; Freeland D. Crumley; Joseph P. Campisi; Hugh R. Denton; Robert Paul Resteli; Eugene J. Kafka; Avis M. Anderson; Clifford R. Jenson; Don W. Jacobs; Raymond E. Gauthier; Francis P. Heston; and Howard G. Frailey, Respondents.

No. 00SC527.

Supreme Court of Colorado, En Banc

April 28, 2003.

As Modified on Denial of Rehearing June 16, 2003.[*]

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[Copyrighted Material Omitted]

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Brauer, Buescher, Goldhammer & Kelman, P.C., Jeffrey A. Goldstein, Littler Mendelson, P.C., William F. Schoeberlein, Robert Maes, David Martinez, Walters & Joyce, PC, Julia T. Waggener, Kelly, Haglund, Garnsey & Kahn, LLC, Norman D. Haglund, Don Hiller

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& Galleher, PC, Watson Galleher, Elisabeth Arenales, Denver, Colorado, Attorneys for Petitioners.

Wolf & Slatkin, PC, Albert B. Wolf, Raymond P. Micklewright, Jonathan L. Madison, Denver, Colorado, Attorneys for Respondent.

Richard Garcia, Denver, Colorado, Peter L. Reich, Costa Mesa, California, Attorneys for Amicus Curiae Bi-National Human Rights Commission, International Indian Treaty Council, National Chicano Human Rights Council, Comision De Derechos Humanos De Seminario Permanente De Estudios Chicanos Y De Fronteras.

Federico Cheever, Gorsuch Kirgis, LLP, Loretta P. Martinez, Denver, Colorado, Attorneys for Amicus Curiae Colorado Hispanic Bar Association.

David J. Stephenson, Jr., Denver, Colorado, Attorney for Amicus Curiae Rocky Mountain Human Rights Law Group.

David H. Miller, Denver, Colorado, Attorney for Amicus Curiae American Civil Liberties Union Foundation of Colorado.

Henry J. Feldman, Denver, Colorado, Attorney for Amicus Curiae National Lawyers Guild, Colorado Chapter.

OPINION

MULLARKEY Chief Justice.

Today's opinion is the third in a trilogy of decisions that we have issued construing some of the oldest property rights in the state. Involved are access rights to a large, mountainous tract of land in southern Costilla County, Colorado known as the Taylor Ranch.1 These property rights trace their origins to the time Before Colorado's statehood when southern Colorado was still a part of Mexico.

The Costilla County landowners, whose property rights are at issue, are the present-day descendants of 1850s frontier farming families who were recruited by Carlos Beaubien to move north from the Taos area in New Mexico and settle in what is now southern Colorado.

Beaubien acted from self interest: without settlers, he could not perfect his rights to the one million-acre Sangre de Cristo land grant because the Mexican government made settlement an express condition of the grant to Beaubien. To convince these families to move north, Beaubien granted the settlers access to the wooded, mountainous area to graze their animals, gather firewood, and harvest timber to build their homes and outbuildings. Without these property rights, subsistence farming on the valley floor would have been impossible.

At trial, many current residents of Costilla County testified that, for over one hundred years, the use of these rights was widespread by the families residing in the region. These residents testified that it was general knowledge in their communities that the Taylor Ranch could be used to graze their animals, gather firewood, and collect timber. According to trial testimony, the mountainous tract purchased by Taylor had been known simply as "la merced," roughly translated from Spanish to mean the gift or grant.

Our prior decisions have recited the history of the landowners' property rights up to the present day in detail. To summarize the roots of today's conflict, Jack Taylor purchased the Taylor Ranch in 1960. After purchase, he fenced off the property, patrolled the area with armed guards, and instituted a Torrens Title action in federal court in order to extinguish the landowners' property rights. His lawsuit gave personal notice to a small fraction of the predominantly Spanish-speaking, Costilla County landowners. The great majority of the landowners received notice only by publication. Taylor subsequently was successful in extinguishing the landowners' property rights.

In our first decision, Rael v. Taylor, 876 P.2d 1210 (Colo.1994), we determined that due process required that Taylor exercise reasonable diligence in the Torrens action to identify and personally serve all reasonably ascertainable persons with an interest in his property. We remanded the case for development

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of the facts, concluding that the appellate record was inadequate to permit us to determine whether Taylor had met the due process standard. Id. at 1228.

After the trial court developed the record on remand, the case was appealed for the second time. In our second decision, we held that the landowners have the same property rights as the original settlers to reasonably access the Taylor property for grazing animals, gathering firewood, and harvesting timber. Lobato v. Taylor, 2002 WL 1360432 *1, 71 P.3d 938, 942-943 (Colo. June 24, 2002) (" Lobato I "). As we explained in Lobato I, the rights Beaubien granted to the settlers were profits à prendre or, in more modern parlance, easements appurtenant to the land owned or occupied by the original settlers. See Restatement (Third) of Prop.: Servitudes § 5.2 (2000).

In this third opinion we resolve several remaining issues: (1) which present-day landowners may claim access rights to the Taylor Ranch; (2) whether Taylor met the due process requirements outlined in our first opinion when he gave notice to the landowners of his Torrens action; and (3) whether res judicata2 bars the claims of the landowners who were personally named and served in the Torrens action.

Our decision can be summarized as follows. First, we conclude that reasonable access rights to the Taylor Ranch are available to Costilla County landowners who are successors in title to the original settlers of Beaubien's grant. For practical purposes, landowners who are able to trace the settlement of their property to at least the time of William Gilpin's ownership of the Taylor Ranch shall be deemed successors in title to the original settlers of Beaubien's grant.

Second, we hold that the publication notice given by Taylor when he initiated his Torrens action violated due process. The facts developed at trial show that Taylor knew Costilla County landowners claimed rights to use the ranch and that reasonable diligence would have identified the names and addresses of the landowners.

Third, we hold that res judicata applies and precludes the claims of those Costilla County landowners and their successors who were personally named and served in the 1960s Torrens action.

Thus, we reverse the trial court's due process/res judicata decision and return the case to the court of appeals for remand to the trial court. We direct 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 those rights.

I. Facts and Procedural History

In order to fully understand the due process and res judicata issues Before this court today, it is important to review the circuitous procedural history that has led to today's decision. Because the facts of this case have been fully detailed in our prior decision, Lobato I, 2002 WL 1360432 at *1-4, 71 P.3d at 942-946, we now discuss only those facts that are relevant to the due process/res judicata inquiry presented in this case.

The petitioners, landowners in the Culebra River Drainage3 region of Costilla County, claim access rights to the Taylor Ranch.

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These access rights had been granted to the original settlers in Costilla County and had been utilized for over one hundred years. In 1960, Jack Taylor purchased the Taylor Ranch and forcibly excluded landowners by fencing the land. Soon after, Taylor sought to quiet title in the land via a Torrens Action4 that he filed as a diversity action in the federal...

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