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parties must intend that covenant to run with the land; and (3)
any successor against whom enforcement is sought must have
actual, constructive, or inquiry notice of that covenant. Lex
Pro Corp. v. Snyder Enters., Inc., 671 P.2d 637, 639 (N.M. 1983);
Pollock v. Ramirez, supra at 153.
In Lex Pro Corp. v. Snyder Enters., Inc., 100 N.M. at 391,
the New Mexico Supreme Court observed that a covenant touches and
concerns the land if either (1) the burden of that covenant
renders the covenantor’s interest in land less valuable or (2)
the benefit of that covenant renders the covenantee’s interest in
land more valuable. The New Mexico courts have also held that a
covenant meets the “touch and concern” requirement if it calls
for either doing physical things to the land such as building a
wall, or refraining from doing physical things to the land.
Cypress Gardens, Ltd. v. Platt, 952 P.2d 467, 470 (N.M. Ct. App.
1997). The TEPCO and WEF supply contract obligations of Santa Fe
and its successors to mine and supply coal from the Lee Ranch
mine property do touch and concern that land.6
As to the second requirement that the original covenanting
parties intend that the covenant run with the land, the WEF
supply contract specifically expresses an intent to effect a
6Although 1 Restatement, supra sec. 3.2, now requires
neither the benefit nor the burden of a covenant to touch and
concern land in order for the covenant to be valid as a
servitude, we need not here decide whether this requirement has
been superseded under New Mexico law.
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