71 P.3d 938 (2002)

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.

June 24, 2002.

*942 Eley, Goldstein and Dodge, LLC, Jeffrey A. Goldstein, Otten, Johnson, Robinson, Neff & Ragonetti, PC, 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 Arenales, Denver, CO, Attorneys for Petitioners.

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

Richard Garcia, Denver, CO, Peter Reich, Costa Mesa, CA, Attorneys for Amici 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, CO, Attorneys for Amicus Curiae Colorado Hispanic Bar Association.

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

Chief Justice MULLARKEY delivered the Opinion of the Court.

The history of this property rights controversy began before Colorado's statehood, at a time when southern Colorado was part of Mexico; at a time when all of the parties' lands were part of the one million acre Sangre de Cristo grant, an 1844 Mexican land grant. Here, we determine access rights of the owners of farmlands in Costilla County to a mountainous parcel of land now known as the Taylor Ranch. As successors in title to the original settlers in the region, the landowners exercised rights to enter and use the Taylor Ranch property for over one hundred years until Jack Taylor fenced the land in 1960 and forcibly excluded them. These rights, they assert, derive from Mexican law, prescription, and an express or implied grant, and were impermissibly denied when the mountain land was fenced.

We are reviewing this case for the second time in this protracted twenty-one year litigation. In the first phase of this litigation, the trial court dismissed the plaintiffs' claims, holding that a federal decision in the 1960s on the same issue barred their suit. We reversed and remanded, holding that the notice given in the federal case did not comport with due process. The subject matter of the current appeal is the landowners' substantive claims of rights. The trial court and the court of appeals held that the landowners failed to prove rights on any of their three theories.

We find that evidence of traditional settlement practices, repeated references to settlement rights in documents associated with the Sangre de Cristo grant, the one hundred year history of the landowners' use of the Taylor Ranch, and other evidence of necessity, reliance, and intention support a finding of implied rights in this case. While we reject the landowners' claims for hunting, *943 fishing, and recreation rights, we find that the landowners have rights of access for grazing, firewood, and timber through a prescriptive easement, an easement by estoppel, and an easement from prior use. Furthermore, we retain jurisdiction in order to examine the trial court's due process determination.

I. Facts and Prior Proceedings

In 1844, the governor of New Mexico granted two Mexican nationals a one million-acre land grant, located mainly in present-day southern Colorado (Sangre de Cristo grant), for the purpose of settlement. The original grantees died during the war between the United States and Mexico. The land was not settled in earnest until after the cessation of the war, and Charles (Carlos) Beaubien then owned the grant.

In 1848, the United States and Mexico entered into the Treaty of Guadalupe Hidalgo, ending the war between the two countries. Treaty of Peace, Friendship, Limits, and Settlement (Treaty of Guadalupe Hidalgo), February 2, 1848, U.S.-Mex., 9 Stat. 922. Pursuant to the treaty, Mexico ceded land to the United States, including all of California, Nevada, and Utah; most of New Mexico and Arizona; and a portion of Colorado. The United States agreed to honor the existing property rights in the ceded territory. Relevant to the Sangre de Cristo grant, Congress asked the Surveyor General of the Territory of New Mexico to determine what property rights existed at the time of the treaty. On the Surveyor General's recommendation, Congress confirmed Carlos Beaubien's claim to the Sangre de Cristo grant in the 1860 Act of Confirmation. 12 Stat. 71 (1860).

In the early 1850s, Beaubien successfully recruited farm families to settle the Colorado portion of the Sangre de Cristo grant. He leased a portion of his land to the United States government to be used to establish Fort Massachusetts and recruited farmers to settle other areas. The settlement system he employed was common to Spain and Mexico: strips of arable land called vara strips were allotted to families for farming, and areas not open for cultivation were available for common use. These common areas were used for grazing and recreation and as a source for timber, firewood, fish, and game.

In 1863, Beaubien gave established settlers deeds to their vara strips. That same year, Beaubien executed and recorded a Spanish language document that purports to grant rights of access to common lands to settlers on the Sangre de Cristo grant (Beaubien Document). In relevant part, this document guarantees that "all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another."

A year later, Beaubien died. Pursuant to a prior oral agreement, his heirs sold his interest in the Sangre de Cristo grant to William Gilpin, who was Colorado's first territorial governor. The sales agreement (Gilpin agreement) stated that Gilpin agreed to provide vara strip deeds to settlers who had not yet received them. The agreement further stated that Gilpin took the land on condition that certain "settlement rights before then conceded ... to the residents of the settlements ... shall be confirmed by said William Gilpin as made by him."

In 1960, Jack Taylor, a North Carolina lumberman, purchased roughly 77,000 acres of the Sangre de Cristo grant (mountain tract) from a successor in interest to William Gilpin. Taylor's deed indicated that he took the land subject to "claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land."

Despite the language in Taylor's deed, he denied the local landowners access to his land and began to fence the property. Taylor then filed a Torrens title action in the United States District Court for the District of Colorado to perfect his title (Torrens action).^[1]Taylor v. Jaquez, No. 6904 (D.Colo. *944 Oct. 5, 1965). The district court found that the local landowners did not have any rights to the mountain tract; the Tenth Circuit Court of Appeals affirmed. Sanchez v. Taylor, 377 F.2d 733 (10th Cir.1967).

In 1973, Taylor purchased an adjoining, roughly 2,500 acre parcel that was also part of the Sangre de Cristo grant (Salazar estate). Taylor's predecessor in title to the Salazar estate had also filed a Torrens title action in 1960 which determined that local landowners had no rights in the estate. Together, the mountain tract and the Salazar estate are known as the Taylor Ranch.

The current case began in 1981. In that year a number of local landowners filed suit in Costilla County District Court. The landowners asserted that they had settlement rights to the Taylor Ranch and that Taylor had impermissibly denied those rights.^[2] The court held that the doctrine of res judicata barred the suit because the Salazar Torrens action and the Sanchez decision regarding Taylor's Torrens action were binding upon the plaintiffs. Rael v. Taylor, No. 81CV5 (Costilla Co. Dist. Ct. Sept. 22, 1986) (Judgment for Defendant on Motion for Judgment on the Pleadings or for Summary Judgment).

The court of appeals affirmed. Rael v. Taylor, 832 P.2d 1011, 1014 (Colo.App.1991). This court granted certiorari and reversed and remanded, questioning the constitutional adequacy of the publication notice in the Torrens action. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo.1994). We directed the trial court to determine which of the plaintiffs received adequate notice in the Torrens action and to hold a trial on the merits for those who did not have proper notice. Id.

On remand, the trial court granted Taylor's motion for summary judgment on the Mexican law claim. The court then bifurcated the proceedings: it determined the due process and class action certification issues before holding a trial on the merits. During the due process phase, the court dismissed most of the plaintiffs. The court determined that seven of the plaintiffs could pursue their claims regarding the mountain tract and that three of the plaintiffs could proceed with their claims regarding the Salazar estate.^[3] Without further hearing, the court denied class certification. The court then held a trial on the merits.

After the trial, the court made a finding of fact that the landowners or their predecessors in title had "grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960." The trial court further found that the community referred to Taylor Ranch as "open range," and that prior to 1960, the landowners "were never denied access to the land." The court also stated that it did "not dispute" that the settlers could not have survived without use of the mountain area of the grant.

Despite theses findings, the court determined that the landowners had not proved prescriptive rights because their use was not adverse. The court further held that the Beaubien Document was not an effective express grant of rights because it did not identify the parties to the rights or the locations where the rights should be exercised. Regarding an implied grant by Beaubien, the court concluded that Colorado law did not recognize the implied rights the landowners claimed. The landowners appealed both the due process determination and the rulings on their claim of rights.

The court of appeals affirmed. Lobato v. Taylor, 13 P.3d 821 (Colo.App.2000). The court agreed with the trial court's conclusions *945 regarding all three of the landowners' theories. Regarding an express grant of rights, the court of appeals engaged in a technical application of the 1863 property laws of the Colorado Territory. Id. at 831. The court concluded that the document included neither the "christian and surnames" of the grantees nor an accurate description of the property to be burdened. Id. Furthermore, the court of appeals noted that that because the document does not use the words, "and heirs and assigns" it does not indicate that Beaubien intended any rights to run with the land. Id. Because the court rejected all of the landowners' substantive claims, the court did not reach the question of whether the trial court erred in its due process decision.

We granted certiorari.

II. Analysis

The landowners claim rights to graze livestock, gather firewood and timber, hunt, fish, and recreate. Before discussing the sources of the settlement rights, we characterize the claimed rights in order to determine the rules of law that govern them.

A. The Rights at Issue

The parties, at various points in the voluminous briefing of this twenty-one year-old litigation, agree that the rights at issue are most appropriately characterized as profits à prendre. A profit à prendre—in modern parlance, a profit—"is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another." Restatement (Third) of Property: Servitudes § 1.2(2)(1998) [hereinafter Restatement]. Thus, a profit is a type of easement.

This court has described an easement as "a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter." Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998)(quotation marks omitted).

An easement can be in gross or appurtenant. An easement in gross does not belong to an individual by virtue of her ownership of land, but rather is a personal right to use another's property. Lewitz v. Porath Family Trust, 36 P.3d 120, 122 (Colo.App. 2001). An easement appurtenant, on the other hand, runs with the land. It is meant to benefit the property, or an owner by virtue of her property ownership. See Lazy Dog, 965 P.2d at 1234. An easement is presumed to be appurtenant, rather than in gross. Lewitz, 36 P.3d at 122; Restatement, supra, § 4.5(2).

In this case, the landowners allege that the settlement rights were to be used in connection with their land. They argue that the firewood was used to heat their homes, the timber to frame their adobe houses, and the grazing necessary to the viability of their farms. The landowners also assert that the settlement rights were granted to their predecessors in title by virtue of their interest in their vara strips and were in fact a necessary incentive for settlement in the area.

We conclude that the rights the landowners are claiming are best characterized as easements appurtenant to the land. We reach this conclusion from the evidence that under Mexican custom access to common land was given to surrounding landowners, the evidence that this access was used to benefit the use of the land, and the presumption in favor of appurtenant easements.

Having established the nature of the rights at issue, we now turn to the sources of these rights.

B. Sources of the Rights

The landowners argue that their settlement rights stem from three sources: Mexican law, prescription, and an express or implied grant from Beaubien.

Regarding the Mexican law claim, the landowners claim that community rights to common lands not only are recognized by Mexican law, but also are integral to the settlement of an area. The landowners further point out that in the Treaty of Guadalupe Hidalgo, the United States government agreed that the land rights of the residents *946 of the ceded territories would be "inviolably respected." Under the landowners' theory, the treaty dictates that the court apply Mexican law to the Taylor Ranch and accordingly recognize the settlement rights.

The landowners further argue that use rights can be found via prescription. For this claim, they point to their regular use of the Taylor Ranch land for over one hundred years until the area was fenced in 1960.

Lastly, the landowners assert that their use rights were obtained by either an express or implied grant from Carlos Beaubien. For this claim, the landowners rely primarily on the Beaubien Document.

The trial court dismissed the Mexican law claim on motion for summary judgment, and after a trial on the merits, rejected the two remaining claims. The court of appeals affirmed. The court of appeals held that the Mexican law claim failed because whatever rights may have existed at the time of the Treaty of Guadalupe Hidalgo were subsequently extinguished by Congress's 1860 Act of Confirmation. Lobato, 13 P.3d at 829. The court further held that the landowners could not claim prescriptive rights because their use of the Taylor Ranch was not adverse. Id. at 834-35. Lastly, the court held that the Beaubien Document fails as an express grant of rights and that Colorado does not recognize implied easements in the form of profits. Id. at 832-33.

We agree that the landowners cannot claim rights under Mexican law. Their predecessors in title did not settle on the Sangre de Cristo grant until after the land was ceded to the United States^[4] and thus their use rights developed under United States law. Mexican land use and property law are highly relevant in this case in ascertaining the intentions of the parties involved, see infra. However, because the settlement of the grant occurred after the land was ceded to the United States, we conclude that Mexican law cannot be a source of the landowners' claims.

We disagree, however, with the court of appeals' resolution of the landowners' other claims. While the Beaubien Document cannot support an express grant of rights, when coupled with the Gilpin agreement and other evidence, it supports a finding of a prescriptive easement, an easement by estoppel, and an easement from prior use.

1. The Beaubien Document

As evidence of a grant of rights from Carlos Beaubien, the landowners rely primarily on the Beaubien Document. The document was written by Beaubien in 1863, one year before his death.

One English translation of the document reads, in part:

Plaza of San Luis de la Culebra, May 11, 1863.

It has been decided that the lands of the Rito Seco remain uncultivated for the benefit of the community members (gente) of the plazas of San Luis, San Pablo and Los Ballejos and for the other inhabitants of these plazas for pasturing cattle by the payment of a fee per head, etc. and that the water of the said Rito remains partitioned among the inhabitants of the same plaza of San Luis and those from the other side of the vega who hold lands almost adjacent to it as their own lands, that are not irrigated with the waters of the Rio Culebra. The vega, after the measurement of three acres from it in front of the chapel, to which they have been donated, will remain for the benefit of the inhabitants of this plaza and those of the Culebra as far as above the plaza of Los Ballejos.... Those below the road as far as the narrows will have the right to enjoy the same benefit.... [No one may] place any obstacle or obstruction to anyone in the *947 enjoyment of his legitimate rights .... Likewise, each one should take scrupulous care in the use of water without causing damage with it to his neighbors nor to anyone. According to the corresponding rule, all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.

(Emphases added.)

The landowners assert that this document evidences an express grant of settlement rights on the Taylor Ranch land. The trial court concluded that the Beaubien Document did not vest any rights in the Taylor Ranch. The court noted that although the document lists rights of pasture, water, firewood, and timber, the only locations specified for access are the Rito Seco and the vega, two areas that the parties agree are not part of the Taylor Ranch. The trial court did admit extrinsic evidence to determine whether there was a "latent ambiguity" in the document. However, because the court ultimately found that the document was unambiguous, it ruled that extrinsic evidence could not be considered in interpreting the document.

The court of appeals affirmed. Lobato, 13 P.3d 821. The appeals court agreed that the Beaubien Document was ultimately unambiguous and that the trial court properly treated the extrinsic evidence of Beaubien's intent. Id. at 832. The court then applied 1863 Colorado property law and concluded that the Beaubien Document did not meet the formal requirements for conveying rights to the landowners' predecessors in title. Lobato, 13 P.3d at 831. Moreover, the court held that profits must be expressly granted and thus rejected any claim of implied rights. Id. at 832-33.

We agree that the Beaubien Document does not meet the formal requirements for an express grant of rights. However, we find that the document, when taken together with the other unique facts of this case, establishes a prescriptive easement, an easement by estoppel, and an easement from prior use.

Extrinsic evidence is relevant in interpreting the Beaubien Document. In Lazy Dog, we articulated when a court could examine extrinsic evidence in order to ascertain the nature of an easement. In that case, we expressly followed the Restatement and concluded that "[o]ur paramount concern in construing a deed is to ascertain the intentions of the parties." Lazy Dog, 965 at 1235. We also recognized that "circumstances surrounding the grant may be relevant to interpreting the language of the grant." Id. at 1236; see also Restatement, supra, § 4.1(1)(noting that an easement "should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created"). Moreover, the question of whether or not the document is ambiguous "may be answered by reference to extrinsic evidence." Lazy Dog, 965 P.2d at 1235.

Here, we look to extrinsic evidence to construe the Beaubien Document for two reasons. First, as Lazy Dog tells us, extrinsic evidence may reveal ambiguities. Second, the document is ambiguous on its face with respect to where the landowners could exercise their rights.

Lazy Dog tells us that extrinsic evidence may reveal ambiguities in modern documents; that principle can be only more true with respect to the Beaubien Document. We are attempting to construe a 150 year-old document written in Spanish by a French Canadian who obtained a conditional grant to an enormous land area under Mexican law and perfected it under American law. Beaubien wrote this document when he was near the end of his adventurous life in an apparent attempt to memorialize commitments he had made to induce families to move hundreds of miles to make homes in the wilderness. It would be the height of arrogance and nothing but a legal fiction for us to claim that we can interpret this document without putting it in its historical context.

For the most part, the document is reasonably specific in identifying places where *948 rights are to be exercised.^[5] That is not true with respect to the rights asserted by the landowners. The key language reads: "According to the corresponding rule, all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another."

Thus, given the specificity of other parts of the document, the lack of specificity in this sentence creates an ambiguity. We cannot determine from the face of the document what lands were burdened by the rights Beaubien conveyed to the first settlers.

Following Lazy Dog, we look to the extrinsic evidence in this case. Amici assert that the contrast between the specificity of the majority of the Beaubien Document and the casual reference to the settlement rights at the end of the document can best be explained by the events surrounding the execution of the document. Beaubien penned the document at a time when settlement was moving to the northern area of the grant, which lies northwest of the Taylor Ranch area. At that time, he wrote the Beaubien Document to establish common rights to the area in and around San Luis and at the same time memorialize settlement rights that had already been in existence in the more southern areas of the grant, where Taylor Ranch is located.

We agree with the amici. From the trial court findings, expert testimony, the documents associated with the grant, and a review of the settlement system under which Beaubien and the settlers were operating, we draw two conclusions. First, we conclude that the location for the settlement rights referenced in the Beaubien Document is the mountainous area of the grant on which Taylor Ranch is located. Second, we conclude that Beaubien meant to grant permanent access rights that run with the land.

We first discuss the location for the rights. The evidence in this case establishes that the reference to pasture, water, firewood, and timber in the Beaubien Document refers to access on the mountain area of the grant of which Taylor Ranch is a part.

First, the trial court found that the landowners or their predecessors in title accessed the Taylor Ranch land for over one hundred years to exercise the rights outlined in the Beaubien Document. This strongly suggests that the parties understood that the Taylor Ranch land was the location of their access rights.

Second, experts testified that the resources listed in the document were only available in the Taylor Ranch area of the grant. Expert testimony established that summer grazing, wood, and timber were only available in the mountain area of the grant.^[6] This is perhaps the most significant evidence that points to the Taylor Ranch as the location of the rights.

Third, the landowners' access rights are expressly mentioned in Taylor's deed. The deed subjects his property interest not only to "rights of way of record," but also to "all rights of way heretofore located and now maintained and used on, through, over, and across the same." It further subjects the conveyance to "claims of the local people by prescription or otherwise to rights to pasturage, wood, and lumber and so-called settlement rights in, to, and upon said land." (Emphasis added.) This resolves any doubt that the access rights were meant to burden Taylor's land.

There is also ample evidence that the document was meant to create permanent *949 rights that run with the land. Both the settlement system under which Beaubien and the settlers were operating and the Gilpin agreement are strong evidence of this.

Access to common areas was an integral feature of the settlement system under which the settlers and Beaubien were operating. Under Spanish and Mexican law, the government awarded community and private grants for the purpose of settling the frontier. See Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico 23 (1994).

The Mexican grants were issued under specific procedures. The governor would refer a petition to the local alcalde (mayor) for his recommendations on whether the grant should be made. Availability of pasture, water, and firewood on common lands was among the primary considerations:

The primary considerations were whether the land was being used or claimed by others, the sufficiency of the petitioner's qualifications, and in the case of a community grant, the availability of resources like pasture, water, and firewood.

Id. (emphasis added). Large private grants were made during the Mexican period. If the recommendation from the alcalde was favorable, the governor would make the private grant to an individual. The individual's ownership, however, was conditional upon successful settlement of the grant.

Agriculture and stock raising were the primary means of subsistence for the settlers on the grants. Id. at 25. The settlers supplemented their irrigated plots by use of commonly accessible community or private grant lands for gathering firewood and grazing livestock:

The pattern of land tenure and use was the foundation for these tightly knit communities. Produce from their small irrigated plots supplemented by the use of common lands for gathering firewood and for grazing a few head of livestock furnished the bare necessities for the village families, a lifestyle to which they were accustomed.

Ira G. Clark, Water in New Mexico, A History of Its Management and Use 34 (1987) (emphasis added).

Under colonial and Mexican law, the difference between a community grant^[7] and a private grant was that the common lands of the community could not be sold; the grantee of a private grant could sell the lands. See Ebright, supra, at 25.

Expert reports submitted in this case reveal that Beaubien and the original settlers operated under this traditional system. Common areas were not only a typical feature but a necessary incentive for settlement.

As discussed above, because the Sangre de Cristo grant was part of the United States at the time permanent settlement began, this Mexican settlement tradition is not the source of the landowners' rights. However, because the settlers and Beaubien were so familiar with the settlement system, it is highly relevant in ascertaining the parties' intentions and expectations.

The express language in the Gilpin agreement, recorded one year after the Beaubien Document, further supports the conclusion that the rights referenced in the Beaubien Document were meant to burden the land. Gilpin was Beaubien's immediate successor as owner of the grant land. The Gilpin agreement contains an express condition confirming the settlers' rights:

[Gilpin agrees to the] express condition that the settlement rights before then conceded by said Charles Beaubien to residents of Costilla, Culebra & Trinchera, within said Tract included, shall be confirmed by the said William Gilpin as confirmed by him. *950 This deed also recites that the settlers paid consideration to Beaubien for those rights and that Gilpin succeeds to the settlers' obligations to Beaubien, including payments due on promissory notes held by Beaubien and his agents. The Gilpin agreement is in Taylor's chain of title and Taylor's own deed expressly refers to the landowners' settlement rights.

Thus, we conclude both that rights were granted and exercised from the time of settlement and that the Beaubien Document memorialized them. Moreover, we conclude that the location for the rights is the mountain portion of the grant of which Taylor Ranch is a part, and that the benefit and burden of these rights were meant to run with the land.

We do not take issue with the court of appeals' application of 1863 Colorado property law to the Beaubien Document. It is not surprising that Carlos Beaubien failed to comply with the nuances and technical requirements of the conveyance of real property rights. Beaubien's failure to comply with the territorial property law, however, is not the end of the inquiry. The territorial supreme court made it clear that rights to access and use the property of another landowner could be found in the law of implied easements. Yunker v. Nichols, 1 Colo. 551 (1872). The law of implied easements recognizes that rights may be implied even though they were not properly expressly conveyed. This well-established area of property law is concerned with honoring the intentions of the parties to land transactions and avoiding injustice.

2. Implied Grant of Settlement Rights

The evidence in this case overwhelmingly supports the conclusion that the landowners have implied rights in the Taylor Ranch. We first review the law of implied servitudes. Second, we discuss how traditional settlement practices, repeated references to settlement rights in documents associated with the Sangre de Cristo grant, the hundred year history of the landowners' use of the Taylor Ranch, and other evidence of necessity, reliance, and intention support a finding of implied rights in this case.

a. Implied Servitudes

An easement is created if the owner of the servient estate either enters into a contract or makes a conveyance intended to create a servitude that complies with the Statute of Frauds or an exception to the Statute of Frauds. Restatement, supra, § 2.1.

Servitudes that are not created by contract or conveyance include servitudes created by dedication, prescription, and estoppel. Those which are not created by express contract or conveyance are the implied servitudes, which may be based on prior use, map or boundary descriptions, necessity, or other circumstances surrounding the conveyance of other interests in land, which give rise to the inference that the parties intended to create a servitude.

Id. § 2.8 cmt. b; see also Wright v. Horse Creek Ranches, 697 P.2d 384, 387-88 (Colo.1985)(noting that an easement may be established by "necessity; by preexisting use; by express or implied grant; or by prescription"); Wagner v. Fairlamb, 151 Colo. 481, 484, 379 P.2d 165, 167 (1963)(noting that implied easements are "not expressed by the parties in writing, but ... arise[ ] out of the existence of certain facts implied from the transaction").

Easements can be implied in a number of situations. Easements created by prescription, Restatement, supra, § 2.17; easements by estoppel, id. § 2.10; and easements implied from prior use, id. § 2.12, are the most relevant to this case. We discuss each of these in turn, discussing both Colorado case law and the Restatement, which is consistent with our precedent.

An easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant. Id. § 2.17, § 2.16.

A court can imply an easement created by estoppel when 1) the owner of the servient estate "permitted another to use *951 that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked," 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude. Id. § 2.10. Whether reliance is justified depends upon the nature of the transaction, including the sophistication of the parties. Id. § 2.9 cmt. e. The Restatement does not have a requirement of deception, neither does Colorado.^[8]See Graybill v. Corlett, 60 Colo. 551, 154 P. 730 (1916); Hoehne Ditch Co. v. John Flood Ditch Co., 68 Colo. 531, 191 P. 108 (1920). An easement by estoppel is an equitable remedy. It recognizes that when a landowner induces another to change position in reliance upon his promise, he is estopped from then denying the existence of the rights simply because they did not meet the formal conveyance rules. The rule "is founded on the policy of preventing injustice." Id. § 2.10.

Colorado law has repeatedly recognized this equitable right. For example, in Graybill, we examined a landowner's right to maintain a water ditch across the land of his neighbor. The owner of the servient estate had granted the owner of the dominant estate the right to establish a ditch across his land. This was an oral promise; the parties did not comply with conveyance and recording formalities. 60 Colo. at 552, 154 P. at 730. In reliance on the parol agreement, the owner of the dominant estate used the ditch as the irrigation source for his land and cleaned, repaired, and made improvements to the ditch. Id. On these facts, we noted that, "[i]t is too well settled to require discussion that under the circumstances above stated a licensee holds under an irrevocable license, and his right is as valid as if acquired by grant." Id. at 553, 154 P. at 731; see also Hoehne Ditch Co., 68 Colo. 531, 191 P. 108 (applying the "well settled" rule that "although an oral contract relating to realty is within the statute [of frauds], where a consideration has passed, and it has been fully performed by both parties and possession taken in pursuance thereof, the bar of the statute is removed and equity will enforce the right thus acquired").

An easement implied from prior use is created when 1) the servient and dominant estates were once under common ownership, 2) the rights alleged were exercised prior to the severance of the estate, 3) the use was not merely temporary, 4) the continuation of this use was reasonably necessary to the enjoyment of the parcel, and 5) a contrary intention is neither expressed nor implied. Restatement, supra, § 2.12; see also Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 435 P.2d 232, 235-36 (1967); Proper v. Greager, 827 P.2d 591, 593 (Colo.App.1992). The rationale for this servitude is as follows:

The rule stated in this section is not based solely on the presumed actual intent of the parties. It furthers the policy of protecting reasonable expectations, as well as actual intent, of parties to land transactions.

Restatement, supra, § 2.12 cmt. a.

Colorado has long applied this implied easement. This court has found an easement from prior use in Lee. In Lee, the owner of one parcel of land claimed a right of way across his neighbor's land to access his property. The servient and dominant estates had once been under common ownership and this right of way was used before the severance of title. Seven years after the severance of title, the defendant bought the servient estate and attempted to block the right of way, claiming a lack of an enforceable agreement. This court found that an easement from prior use had been established. Lee, 164 Colo. at 333, 435 P.2d at 236.

Similarly, the court of appeals found an easement from prior use in Proper. There, the plaintiff landowner used his neighbor's land to access his property. This use had begun when the two plots were under common ownership. Although the neighbor allowed this use, there was no formal agreement. The neighbor sought to rescind his permission after twenty-five years of the *952 easement's use, and to construct a fence. Proper 827 P.2d at 592. The court found that under these facts, an easement from prior use had been established. Id. at 594.

Having outlined the law of implied easements, we now turn to the facts of this case.

b. Application to the Landowners' Claims

Despite the long history of implied easements in Colorado, the court of appeals in this case rejected the landowners' claims of an implied easement. The court did so because it believed that, although easements in the form of access rights could be implied, easements in the form of profits could not. Lobato,