Peabody Natural Resources Company, f.k.a. Hanson Natural Resources Company, Cavenham Forest Industries, Inc., A Partner Other Than The Tax Matters Partner - Page 13

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               Even though coal supply contracts are contracts for the sale           
          of goods covered by article 2 of the Uniform Commercial Code, the           
          obligation of Santa Fe or its successors to sell unsevered coal             
          in the future may also qualify to be treated as the transfer of             
          an interest in land.  See N.M. Stat. Ann. sec. 55-2-107(1).  In             
          other words, classification of the two supply contracts as                  
          contracts for the sale of goods in the future by N.M. Stat. Ann.            
          section 55-2-107(1), does not preclude those contracts from also            
          effecting a transfer of an interest in real property under New              
          Mexico law.  See also 1 Restatement, Contracts 2d, sec. 127, cmt.           
          b & c (1981).                                                               
                    2.  Creation of Servitudes                                        
               The TEPCO and WEF coal supply contracts created servitudes             
          under New Mexico law.  The modern view is that servitudes may be            
          created by contract.  See Cafeteria Operators, L.P. v. Coronado-            
          Santa Fe Associates, L.P., 952 P.2d 435, 441 (N.M. Ct. App.                 
          1997); 1 Restatement, Property 3d (Servitudes), sec. 2.1(1)(a),             
          reporter’s note (2000).                                                     
               Although he disputes that the supply contracts created                 
          servitudes under New Mexico law, respondent acknowledges that the           
          servitudes (stemming from the seller’s obligation to mine and               
          supply coal from the Lee Ranch mine property to the                         
          buyer/utility) involve affirmative covenants.  See 1 Restatement,           







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