A judge turned an injunction hearing into the whole trial. The Court of Appeals reversed.
A judge turned an injunction hearing into the whole trial. The Court of Appeals reversed.
2026-09-15 · New Mexico · Courts
Gate and access fights are a standing feature of New Mexico's rural and semi-rural communities. This one shows how fast injunctive relief can evaporate on appeal when the procedure was short-circuited.1
What happened
Percha Creek Association v. Bennett, No. A-1-CA-42704, filed November 12, 2025 in the New Mexico Court of Appeals, on appeal from the District Court of Sierra County. Memorandum opinion, not precedent.
An association and a wildlife federation sued landowners who had installed a locked gate across a road crossing the landowners' property, claiming a public easement by prescription and a public nuisance.
After a December 2023 hearing on a preliminary injunction, the district court found the easement permissive and revocable, and denied the injunction.
Nine months later, ruling on the plaintiffs' summary-judgment motion, the court declined to grant summary judgment, then — in the Court of Appeals' description — “sua sponte reverse[d] itself” on the existing record, found a prescriptive easement, and entered a permanent injunction. Without a trial, and without telling the defendants it was consolidating the preliminary hearing with the merits.
The rule
“due process requires that parties be given notice that consolidation will occur. … '[W]e now hold that it is incumbent upon the court to notify the parties involved, either before or at time of consolidation, verbally or in writing, that consolidation is to take place.' … When the district court fails to notify the parties that it will consolidate the hearing on the application for preliminary injunction with the merits of the application for permanent injunction, it commits reversible error.”
And: “due process requires not only notice, but also the opportunity to be heard. … Therefore a post hoc notification that consolidation will retroactively occur is insufficient to comport with due process.”
Why a preliminary injunction cannot decide the case
“'The object of the preliminary injunction is to preserve the status quo pending the litigation of the merits. This is quite different from finally determining the cause itself. A preliminary injunction does not determine the merits of the case, nor does it determine controverted facts.'”
The court also rejected any requirement that the losing party show it would have won with more evidence: “'It is clear to us that the prejudice inherent in the lack of notice of consolidation by itself is sufficient to require reversal.'”
That is an unusually clean rule. The defect is structural, so a party does not have to prove what difference the missing trial would have made.
What the case did not decide
Whether the prescriptive public easement actually exists. That question went back to the district court. An association or an owner reading this as a ruling about the road is reading it wrong.
For an association that seeks fast relief
Preliminary injunctions are attractive to boards — a locked gate, an unauthorised structure, a nuisance use — because they promise a result in weeks rather than years. The lesson here is that relief obtained on a preliminary record is exactly as durable as the procedure that produced it.
An association that wins a permanent injunction out of a hearing that was noticed as preliminary has won something the other side can take apart on appeal without arguing the merits at all. Where a board wants a final outcome, the safer route is to ask expressly for consolidation, on the record, so the notice requirement is satisfied and the opponent's opportunity to be heard is documented.
For an owner facing one
The defendants here did the thing that preserved the issue, and the opinion turns on their having done it: they objected on the record, said more evidence and discovery were needed, and stated plainly that consolidating the hearing with the merits without prior notice was improper.
That is the whole playbook. An objection made at the hearing preserves the point; a complaint made afterwards generally does not.
The New Mexico context
Access disputes of this shape recur across the state — forest roads, historic routes across private land, gates installed by new owners, and associations asserting rights on behalf of their members. They turn on prescriptive easement doctrine, which is fact-heavy, which is precisely why they are poorly suited to being decided on a preliminary record.
It is worth noting what New Mexico's appellate courts have not given boards in this period: no precedential guidance on covenant interpretation, selective enforcement, assessment liens or architectural control. The decisions that exist are about procedure, chain of title and jurisdiction. An association planning litigation in New Mexico should expect the procedural rules to do more work than the covenant doctrine.
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