Peabody Natural Resources Company, f.k.a. Hanson Natural Resources Company, Cavenham Forest Industries, Inc., A Partner Other Than The Tax Matters Partner - Page 14

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          Property 3d (Servitudes), sec. 1.3(1) & (2), cmt. d, illus. 1 &             
          2.4                                                                         
               New Mexico law recognizes both “real covenants” and                    
          “equitable servitudes”.5  E.g., Pollock v. Ramirez, 870 P.2d 149,           
          153 (N.M. Ct. App. 1994).  In Pollock, a restrictive covenant was           
          not enforceable because the instrument creating it did not meet             
          the requirements for recordation in real property records.  The             
          court in Pollock, however, noted that the restriction could still           
          be enforced as an equitable servitude assuming the requirements             
          for establishing and enforcing such an equitable servitude were             
          met.  See id. at 153.                                                       
               Under New Mexico law, there are three requirements for a               
          covenant to be an equitable servitude:  (1) The covenant must               
          touch and concern the land; (2) the original “covenanting”                  


               4Vol. 1 Restatement, Property 3d (Servitudes), sec. 1.1                
          (2000) defines a “servitude” as a legal device that creates a               
          right or an obligation that runs with land or an interest in                
          land.  “Running with land” means that the right or obligation               
          passes automatically to successive owners or occupiers of the               
          land or the interest in land with which the right or obligation             
          runs.  Id. sec. 1.1(1)(a).  Servitudes covered by the Restatement           
          include easements, profits, and covenants.  Id. sec. 1.1(2).  As            
          defined by the Restatement, an “easement” creates a nonpossessory           
          right to enter and use land in the possession of another and                
          obligates the possessor not to interfere with the uses authorized           
          by the easement, whereas a “profit” is an easement that confers             
          the right to enter and remove timber, minerals, oil, gas, game,             
          or other substances from land in possession of another.  Id. sec.           
          1.2(1) & (2).                                                               
               5Vol. 1 Restatement, supra sec. 1.4 has dropped the terms              
          “real covenant” and “equitable servitude” to describe servitudes            
          encompassed within covenants that run with the land.                        




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