dissenting.
Although I have great sympathy for the historic and present plight of the landowners in this action, I cannot support the majority opinion for two reasons. First, it is my view that in 1863 Charles Beaubien attempted to make a community grant for the benefit of the inhabitants of the plazas of San Luis, San Pablo, and Los Ballejos. The law in effect at the time did not recognize such a grant and instead required individual identification of grantees. Hence, the Beaubien Document had no legal effect.
*963Second, I find no ambiguity either in the legal description in the Document or in the absence of grantee specificity. The legal description referred to the lands of the Rito Seco. The trial court found that the lands of the Rito Seco do not overlap with the current Taylor Ranch. There is no ambiguity; rather, the Document simply does not apply to Taylor Ranch. Additionally, the omission of grantee names was.not an ambiguity: it was a clear attempt to create a communal grant, which was not legally recognized.
Because the Document is not ambiguous in any pertinent part, it cannot support an implication of rights not expressly set forth. Prescriptive easements, easements by estop-pel, and easements from prior use do not apply to these facts.
Accordingly, I respectfully dissent from the majority opinion and would instead affirm the court of appeals’ opinion upholding the trial court;
I. Community Land Grants
The historical records indicate that someone seeking a land grant would address a petition to the governor of the region describing the land and the individual’s qualifications for ownership. Malcolm Ebright, Land Grants & Lawsuits in Northern New Mexico 23 (1994). If the petition was approved by the governor, and the alcalde (the mayor), then the governor would issue the grant. Id. There were two types of grants of land from the government: private grants to individuals who would own the land and who could sell it after they met a requirement of establishing possession of the land; and community grants.1 Id. at 24.
Large private grants were made in an effort to settle new areas. The individual would not gain full title to the property until he had encouraged a sufficient number of people to move into the area, settle it, and establish communities.
In a community grant, each settler would receive an allotment of land for a house, an irrigable plot, and the right to “use the remaining unallotted land on the grant in common with the other settlers for pastures, watering places, firewood, and logs for building. ... [T]he common lands were owned by the community and could not be sold.” Malcolm Ebright, Land Grants & Lawsuits in Northern New Mexico 25 (1994).
Charles Beaubien received a private grant from the government conditioned upon settlement requirements. Beaubien, in turn, created what I construe to be a community grant to the prospective inhabitants of three plazas. In the Document, he stated that:
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_Accord-ing 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.
The Document is clear on its face that it pertains to the Rito Seco and intends to convey certain rights to the inhabitants of the three plazas. Beaubien enjoyed private land: he granted communal rights on that land, pursuant to Spanish custom and tradition. Under the Beaubien Document, the settlers received a communal right to use certain lands for their personal needs. Now, the landowners assert rights that their predecessors historically exercised in common with a number of other inhabitants of the area. Those rights are not recognized either by statute or ease law.
II. Communal Grants Are Not Recognized In Our Law
A. Territorial Laws
In 1863, the year Charles Beaubien executed the Beaubien Document, under Colorado Territorial law, a document conveying any interest in real estate had to meet several *964formal requirements, including the requirements that it incorporate an accurate description of the property and the names of the grantees:
the Christian and surnames of the ... grantees ... and ... an accurate description of the premises, or the interest in the premises intended to be conveyed, and shall be subscribed by the party or parties making the same, and be duly proved or acknowledged, before some officer authorized to take the proof or acknowledgment of deeds, or by his, her or their attorney in fact.
Territorial Laws of Colo., 1st Sess., An Act Concerning Conveyances of Real Estate, 64, 64, § 2 (1861). The requirement that the document identify grantees by name is indicative of the territorial legislature’s overt decision not to honor community grants that failed to mention specific grantees.
The Beaubien Document flatly fails to meet that requirement.2 The Beaubien Document does not give the Christian and surnames of the grantees, instead only referring generally to the “community members” and “inhabitants” of specified villages. That omission is a legal deficiency that makes the document invalid as a conveyance under the operative law.
Compliance with real property law is a matter of substantial importance. See IV American Law of Property § 18.27 (A. James Casner ed., 1952) [hereinafter Casner]. In the early years of our history, the questions of who owned what and who could sell what were legitimate and pervasive concerns. As a citizenry, we clearly believed in the sanctity of private property and the ownership rights associated with it. However, we struggled with how to clarify those rights as against those who would dispute them, and how to secure title to property such that it would become marketable to a subsequent purchaser. In fact, in Colorado’s early history, one of the issues to which the territorial government fell heir was the question of how to adjudicate land claims and how to establish a common repository for preserving written claims to specific lands. See II Colorado and Its People: A Narrative and Topical History of the Centennial State 372-73 (Leroy R. Hafen ed., 1948).
Under the common law, the grantor merely warranted that he was seised of, or possessed of, the title that he purported to convey. The obvious deficiencies of such a system led to the eventual enactment of recording acts and other statutory conveyancing requirements in every state. 2 Cathy Stricklin Krendl, Colorado Methods of Practice § 62.1 (4th ed.1998).
The regulation of property transfer is strictly a matter of state law. Casner, supra, § 18.27. As the Supreme Court has noted, “[a]s it is indisputable that the general welfare of society is involved in the security of the titles to real estate and in the public registry of such titles, it is obvious that the power to legislate as to such subjects inheres in the very nature of government.” Am. Land Co. v. Zeiss, 219 U.S. 47, 60, 31 S.Ct. 200, 55 L.Ed. 82 (1911); see also BFP v. Resolution Trust Corp., 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (“It is beyond question that an essential state interest is at issue here: We have said that ‘the general welfare of society is involved in the security of the titles to real estate’ and the power to ensure that security ‘inheres in the very nature of [state] government.’ ”) (alteration in original).
Private property ownership is nothing without a “ ‘bright line rule’ to determine the validity of a title and of its potential encumbrances with predictability and without the need for litigation.” Michael H. Rubin & E. Keith Carter, Notice of Seizure in Mortgage Foreclosures and Tax Sale Proceedings: The Ramifications of Mennonite, 48 La. L.Rev. 535, 592 (1988).
Our legislature adopted a thorough statutory regime intended to ensure titles to real property are secure and marketable. See *965§§ 38-34-101 to 38-35-204, 10 C.R.S. (2001). This court, over the decades, has consistently required conveyances to comply with such laws at the time of the document’s creation to give full effect to the goal of security and marketability of real property titles. See, e.g., City of Lakewood v. Mavromatis, 817 P.2d 90, 96, 101 (Colo.1991) (concluding that, although a city filed and recorded a right-of-way in the road book, because the recordation did not comply with the specific provisions of the 1888 recording statute, the statute in effect at the time of the road petition, it did not give constructive notice to subsequent purchasers; therefore, because the road petition was a transfer of an interest in real property, it had to comply with all the specifications of the applicable recording act); Hallett v. Alexander, 50 Colo. 37, 46, 114 P. 490, 494 (1911) (“The evident purpose of the recording statute is, to provide an effectual remedy against the loss accruing to subsequent purchasers of real estate arising from the existence of secret or concealed conveyances thereof unknown to the subsequent purchaser. The remedy is made effectual by requiring every deed to be recorded before it can be of any effect as against such purchasers.”).
That a purchaser would know what he is buying by examining the record title to a parcel of real property, and that an owner could be assured that such record title properly evidences every legitimate right that impinges on his fee simple ownership, are matters of no small import. City of Lakewood, 817 P.2d at 94 (noting that recording acts serve the important purpose of permitting a purchaser to rely on the condition of title as it appears of record and creating an accessible history of title).
Therefore, very simply, the Beaubien Document, like every other real property transfer, must be held to the standards of the law in effect at the time it was executed in order to protect the certainty and marketability of property interests. The Document does not comport with those laws, and it, therefore, has no validity as to the landowners here.3
The Document intended to create a grant to the members of a community: such a grant was in contravention of the applicable statutes and was, therefore, invalid.
B. Case Law
Just as our statutes do not recognize communal grants, so too, case law reaches the same result. New Mexico has been the location of most of the litigation concerning communal grants in the United States. Over the course of that litigation, those courts have declined to recognize communal grants, and have further determined that they must look to the record title to the property, and not inquire behind it into the traditions or history that might ' support converting those grants into individual grants:
[T]he courts established as a basic principle one of not looking behind the title, thus precluding any examination of laws and customs prevailing at the time of annexation by the United States. If title papers were available to prove the right of use, the tribunals treated the land as belonging to the community in fee simple. They also recognized the right of partition of the common lands' among the heirs of the original grantees ... in total disregard of any right of usufruct in descendants of families which had enjoyed the use of the common lands for generations.
Ira G. Clark, Water in New Mexico: A History of Its Management and Use 36-37 (1987). Another commentator observed that:
Because it was considered a real property question, it was left to the New Mexico courts to translate the right of usufruct into common law terms, that is, to define the interest the residents of land grants have in their common lands as opposed to the interest of the patentees. In general, the New Mexico Supreme Court has decided on very narrow legal grounds that the *966patentees have complete title to the common lands. As a result, the rights of community land grant residents have been damaged and, in some cases, extinguished.
Michael J. Rock, The Change in Tenure New Mexico Supreme Court Decisions Have Effected Upon the Common Lands of Community Land Grants in New Mexico, 13 Soc. Sci. J. 55, 56 (1976).
For example, the Tierra Amarilla Grant was a community grant that was patented to an individual, Francisco Martinez. The New Mexico Supreme Court ultimately denied the right of usufruct upon the common lands portion of the grant, holding that, if the land grant were a “private grant, the [Congressional] act of confirmation merely carried out the treaty obligation; if it were a community grant, the common lands were merely government domain and the confirmation constituted a grant de novo to the grantee, Francisco Martinez. Under either view the absolute title was vested, by the act of confirmation in the said grantee.” H.N.D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744, 749 (1940).
In a successor case in New Mexico concerning the same land grant, the plaintiffs asked the court to legitimize rights based upon language that conveyed “the right to pasture and water livestock, to cut wood and to use the roads upon all the lands, suitable for such purposes, of the entire Tierra Amar-illa Land Grant.” Martinez v. Mundy, 61 N.M. 87, 295 P.2d 209, 214 (1956), overruled on other grounds by Evans Fin. Corp. v. Strasser, 99 N.M. 788, 664 P.2d 986, 989 (1983). The court declined, citing H.N.D. Land Co. for the proposition that the original grant conveyed all rights to Martinez and none to the settlers of the region. The court went on to examine the question of whether the plaintiffs had acquired rights by adverse possession and concluded that they had not because “a prescriptive right cannot grow out of a strictly permissive use, no matter how long the use”; and because
[t]he claim by the appellants that they have acquired by grant or prescription, the right to cut wood, water livestock, pasturage and the use of roads was not shown to have been exclusive to the appellants but on the contrary was claimed by many others. The claim being in common with and similar to that of the general public in this area, the appellants certainly could not acquire a private easement unto themselves.
Martinez, 295 P.2d at 214.
Similarly, in Sanchez v. Taylor, 377 F.2d 733 (10th Cir.1967), the Tenth Circuit declined to give legal significance to community rights even in the context of adverse possession. Id. at 738-39. That court addressed the acquisition of the same prescriptive profits on the Taylor Ranch that the landowners here claim. In concluding that usage in common by the inhabitants of the area had not vested them with prescriptive profits, the court first noted that “the public cannot acquire by custom or common prescription profits á prendre in another’s land.” Id. at 738; see also 3 Herbert Thorndike Tiffany, Real Property § 842 (3d ed. 1939 & Supp. 2001) (noting that “there can be no prescriptive right of profit in the public”); id. § 935 (“[A] right [by the public] to take profits from the land, as distinct from the mere right to use the land, cannot be established by custom, since the effect of such a custom would be to exhaust the profits.”).
Finally, the court observed that in dealing with similar claims for profits on land originating from a Mexican land grant, the New Mexico Supreme Court held:
“The claim by the appellants that they have acquired by grant or prescription, the right to cut wood, water livestock, pasturage and the use of roads was not shown to have been exclusive to the appellants but on the contrary was claimed by many others. The claim being in common with and similar to that of the general public in this area, the appellants certainly could not acquire a private easement unto themselves. All circumstances must be considered in determining the acts that would lead to a prescriptive right and we do not find such acts present in such force as to refer to a prescription.”
Sanchez, 377 F.2d at 739 (quoting Martinez, 295 P.2d at 214). Again applying Colorado law, the Tenth Circuit held that the use of land for pasturage, natural products, and *967timber does not ordinarily constitute adverse possession. Id. (citing Smith v. Town of Fowler, 138 Colo. 359, 367, 333 P.2d 1034, 1038 (1959) (“The pasturage of cattle on unfenced land cannot be regarded as hostile and adverse to the owner of such land.”)).
The Tenth Circuit concluded that the landowners’ claims were tantamount to an assertion of unlimited equitable ownership and thus inconsistent with Taylor’s fee-simple title. Sanchez, 377 F.2d at 739.
In short, American legal tradition has chosen to honor private property rights, sometimes to the detriment of communal rights. I have found no court that would recognize the easements that the landowners here urge. Because real property rights depend upon predictability and clarity of law, by attempting to do justice here in contravention of our precedent, we risk injustice elsewhere.
III. The Beaubien Document Cannot Support Implied Rights
A. Ambiguity
The majority does not dispute that the court of appeals correctly applied the applicable laws to the Beaubien Document and agrees that the document cannot act as an express grant of rights. However, it concludes that the Document, coupled with extrinsic evidence, supports an implied conveyance of profits. Maj. op. at 946. I disagree.
Initially, I dispute the conclusion that the court should look to extrinsic evidence at all.4 However, even considering that extrinsic evidence, I find complete support in the record for the trial court’s conclusions that the Document is unambiguous. First, the Beaubien Document is not ambiguous in its legal description as it pertains to the Taylor Ranch.In fact, the Document describes the property as “the lands of the Rito Seco.” The lands of the Rito Seco do not include Taylor Ranch. Although the majority asserts that the Document lists uses, specifically, summer grazing, wood, and timber, that are only available in the Taylor Ranch area of the grant, see maj. op. at 948, the trial court made a different factual finding to the effect that the vegetation pattern of the current Taylor Ranch land is identical to that on the land north and adjacent thereto. Further, a witness for the landowners, an architect, land planner, and expert in map generating whose testimony on vegetation the trial court credited, stated that these resources were available throughout the mountainous areas of the Sangre de Cristo grant, not solely on the Taylor Ranch, which occupies only a small portion the grant.5 The trial court considered evidence bearing on the location of the landowners’ use of timber, firewood, and grazing and concluded that: “The evidence clearly established that none of these locations [lands of the Rito Seco] are situate on the land owned by the defendant.” See also Sanchez, 377 *968F.2d at 737 (stating that the Beaubien Document made no mention of land located on the Taylor Ranch);6 Lobato, 13 P.3d at 831 (concluding that “it is undisputed that the specific locations referenced in the document are not on defendants’ property.”). The majority acknowledges the trial court’s finding that the only locations specified in the Beaubien Document are not located on the Taylor Ranch. Maj. op. at 947. Hence, the Document is not ambiguous in its legal description.
Similarly, there is no ambiguity in the failure of Beaubien to mention individual grantees’ names. As I discuss above, he intended to create a communal grant for the benefit of the inhabitants of the three plazas.
Accordingly, I find no basis for viewing the Document as an incomplete or flawed conveyance that can give rise to implied rights.
IV. Easements
In any event, the three legal theories advanced by the majority for the creation of an easement are not supported by the facts.
A. Easements Versus Profits Á Prendre
I begin with the proposition that I view the distinction between profits á prendre and easements as material. Although in preparing the Restatement of Property, the American Law Institute (ALI) initially referred to both easements and profits as “easements,” in 1998 the ALI reversed its position, once again finding the distinction between easements and profits significant. See 4 Richard R. Powell, Powell on Real Property 34.01[2] (2002). As the majority noted, the Restatement (Third) of Property: Servitudes § 1.2(2) (2000) [hereinafter Restatement] defines a profit á prendre as “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. It is referred to as a ‘profit’ in this Restatement.” The Restatement distinguishes between easements and profits stating “[p]rofits á prendre are like affirmative easements in that they create rights to enter and use land in possession of another. However, they also create the right to remove something from the land.” Restatement, supra, § 1.2(2) cmt. (a). It further clarifies, “Profits are easements plus. Profits are easements (rights to enter and use land in the possession of another) plus the right to remove something from the land.” Restatement, supra, § 1.2(2) cmt. (e) (emphasis in original).
Thus, the Restatement acknowledges that profits á prendre provide a greater property interest to the profit holder and, conversely stated, a greater detriment to the servient estate. See 8 David A. Thompson, Thompson on Real Property § 65.03(a) (1994) (noting, “Despite the fact that profits are now considered by most writers to be governed by the same set of rules as easements, ... [i]t is also clear that functionally the two areas deal with distinctly different kinds of transactions.” Thompson also observes that, in the Restatement (Third) of Property introduction (Tentative Draft No. 1, 1989), the ALI highlighted that “[t]he term profit has been resurrected from the oblivion into which it was consigned by the 1944 Restatement *969because it describes a device that is used for a purpose quite different from the other servitude devices, and occasionally calls for somewhat different considerations, if not different rules.”).
Similarly, we have held that profits á pren-dre involve a greater interest than easements and must therefore be expressly granted. Alexander Dawson, Inc. v. Fling, 155 Colo. 599, 603-04, 396 P.2d 599, 601 (1964) (holding that a profit á prendre must be expressly granted and cannot be implied from an easement). Hence, under Colorado law, because profits á prendre are more onerous to the burdened estate than an easement,7 the importation of laws governing easements is inappropriate.
B. Easements by Prescription
Under Colorado law, an easement by prescription requires a showing of hostile use, without permission of the owner. The Restatement suggests that easements by prescription can also arise out of a permissive, imperfectly created servitude. This court has never previously adopted that section of the Restatement and these facts do not warrant such a step.
The Restatement, swpra, § 2.16 allows a prescriptive easement to arise out of a use that began as permissive, under the terms of an imperfect conveyance. The section specifies:
A prescriptive use of land that meets the requirements set forth in 2.17 creates a servitude. A prescriptive use is either
(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or
(2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.
Restatement, supra, § 2.16 cmt. (a) announces that prescription operates in two separate factual situations. The first situation is a matter of settled law and occurs when the use of the land is without the consent of the owner. See also id. § 2.17 cmt. (c) (“In the most common situation, the prescriptive use is made without the consent of the servient owner.”). Restatement, supra, § 2.16 cmt. (f) further states that to be adverse a use must create a cause of action for interference with an interest in property like trespass, nuisance, or interference with a servitude benefit. To fulfill the definition, the use must be made without authority and without permission of the property owner. Id.; see also Smith v. Town of Fowler, 138 Colo. 359, 367, 333 P.2d 1034, 1038 (1959) (“ ‘An adverse claim must be hostile at its inception, because, if the original entry is not openly hostile or adverse, it does not become so, and the statute does not begin to run as against a -rightful owner until the adverse claimant disavows the idea of holding for, or in subservience to another, it actually sets up an exclusive right in himself by some clear, positive and unequivocal act.’ ”). Uses made pursuant to licenses are not adverse. Restatement, supra, § 2.16 cmt. (f). Similarly, uses made pursuant to servitudes created expressly, by implication, or by necessity, are not adverse.8
*970As to the second factual scenario, the Restatement of Property: Servitudes (1944) did not contain the possibility of creating a prescriptive right through an intended but imperfectly created servitude. The earlier Restatement provided: An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted. Restatement of Property: Servitudes § 457 (1944). It further specified: A use of land is adverse to the owner of an interest in land which is or may become possessory when it is (a) not made in subordination to him, and (b) wrongful, or may be made by him wrongful, as to him, and (c) open and notorious. Id. § 458.
The ALI did not return to the subject of servitudes until the creation of the Restatement Third. Restatement, supra, fvyd. The Restatement (Third) of Property introduction (Tentative Draft No. 3, 1993) explains that the creation of the second portion of the Restatement was precipitated by a desire to provide a more satisfactory theory to resolve cases involving common drives and party walls than adverse possession, because under adverse possession, the time for asserting legal claims to recover the possession of land would be limited.
The Restatement proposes that uses involving common driveways, boundary fences, dams, and party walls are ineptly suited to the requirement of adversity because, in these situations, the initial use is permissive and equity demands the continued right to use the common facility; therefore, the Restatement proposes to dispense with the requirement of adversity but otherwise adopt adverse possession law for those circumstances. See Restatement, swpra, § 2.16 cmt. (a). The Comment suggests that it makes sense to assume that when the parties begin a joint-use arrangement, they intend to create mutual servitudes rather than licenses. Id. § 2.16 cmt. (i).
In addressing whether a use that is made pursuant to the terms of an intended but imperfectly created servitude results in a prescriptive easement, only the Michigan Court of Appeals has adopted the second scenario set forth by the Restatement. Plymouth Canton Cmty. Crier, Inc. v. Prose, 242 Mich.App. 676, 619 N.W.2d 725, 730 (2000) (finding that where the parties executed an express easement that did not fully articulate the parties’ intent to permit loading activities, and those activities occurred under the mistaken belief that the express easement permitted them, the use created a prescriptive easement).
Hence, the Restatement section would allow for claims of prescriptive use to be made in circumstances in which a document conveyed certain rights, but did so imperfectly, and the possessor wishes to validate those rights even through periods when he was making use with permission. The Restatement would itself limit application of the section primarily to common wall or driveway cases.9
The section is not consistent with Colorado law. First, it is not consistent with the statutes, which provide that adverse possession occurs only if the use claimed is truly adverse.10
Second, it is not consistent with our case law. This court has consistently held that the same requirement of adversity applies to acquiring easement and profit rights by prescription as to the acquisition of title by *971adverse possession. See, e.g., Town of Silver Plume v. Hudson, 151 Colo. 394, 398, 380 P.2d 59, 61 (1963) (holding that to establish a prescriptive easement the “ ‘possession must be hostile, not only against the true oumer, but against the world as well. An adverse claim must be hostile at its inception, because, if the original entry is not openly hostile or adverse, it does not become so, and the statute does not begin to run as against a rightful oumer until the adverse claimant disavows ... a holding by permission.’ ”) (emphasis in Silver Plume); Rivera v. Queree, 145 Colo. 146, 149, 358 P.2d 40, 42 (1960); (holding that the prerequisites to acquiring a prescriptive easement are the continuous, open, and adverse use of the right of way for the statutory period); Krendl, supra, § 65.5(3.1) (“In Colorado, the law of prescription has become an extension of the doctrine of adverse possession, requiring all the elements thereof.”). Thus, the adoption of the second prong of the Restatement test, which can create a prescriptive right in' the context of permissive, consensual use is contrary to our law, and I would decline to engraft it.
Even if the court adopts the doctrine, the facts of this case do not support its application here. The Beaubien Document is not an imperfectly created servitude. It is a clearly created communal grant to lands within a particular area. The majority’s application of the second prong is not merely curing a small defect in an express agreement, as contemplated by the Restatement. We are dealing with a document that was quite clear in its intent and application; however, it is not enforceable at law. In such circumstances, the second prong of the Restatement, even if applied, would not support the creation of prescriptive rights.
C. Easements by Estoppel
I would also decline to apply principles of easement by estoppel, because there is no showing here of misrepresentation or concealment of material facts by Beaubien or any of his successors in interest. Thompson defines the elements for an easement by estoppel as:
(1) conduct, acts, language or silence amounting to a representation or concealment of material facts; (2) the party to be estopped either knows the facts or the circumstances require the facts to be imputed to that party; (3) the truth about the facts must be unknown to the party claiming benefit of the estoppel at the time they were acted upon; (4) the conduct must occur with the intention or expectation that it will be acted upon, or under the circumstances that it is both natural and probable that it will be acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, the other party must be led to act upon it; and (6) the other party must in fact act upon the conduct and change position for the worse.
7 Thompson, supra, § 60.03(b)(3).
In Colorado case law, easement by estop-pel can sometimes arise out of a parol agreement that intends to convey a certain right as a mere license; however, there must be conduct on the part of the party against whom the easement is being asserted that amounts to a false representation or concealment of material facts. Pagel v. Reyman, 628 P.2d 166, 168 (Colo.App.1981) (holding that the plaintiffs failed to establish the elements for an easement by estoppel in a case involving a road easement for a trailer park) (citing Aubert v. Town of Fruita, 192 Colo. 372, 374-75, 559 P.2d 232, 234 (1977)).11
The majority relies upon two cases for the proposition that the facts before us in this case support an easement by estoppel. Both are water eases, and both deal with the acquisition of ditch rights by parol agreement. Both are inapposite, in my mind, because they are predicated on the underlying policy that is expressed as follows:
It is indeed a generally prevailing state policy in those states dependent upon irri*972gation largely for successful agriculture, both in the interest of economy and to prevent any unnecessary waste of land in the construction and use of ditches, that, where one ditch can answer the purpose of more, the right to use the same ditch is granted to others than the owners.
Hoehne Ditch Co. v. John Flood Ditch Co., 68 Colo. 531, 540-41, 191 P. 108, 112 (1920). In both cases, Hoehne and Graybill v. Corlett, 60 Colo. 551, 553, 154 P. 730, 731 (1916), the court permitted the establishment of a ditch right-of-way by estoppel without the necessary element of misrepresentation of a material fact, but only in the context of water rights. To the contrary, in Bijou Irrigation District v. Empire Club, 804 P.2d 175, 185-86 (Colo.1991), we declined to permit the petitioners from asserting that the Irrigation District was estopped from objecting to use of a reservoir for recreational purposes because, although the District had knowledge of the facts, there were no findings regarding unreasonable delay in the assertion by the District of its rights. Also on point is Holbrook Irrigation District v. Arkansas Valley Sugar Beet & Irrigated Land Co., 42 F.2d 541 (D.Colo.1929), in which the plaintiffs sought certain water rights by operation of estoppel. The court there noted that equitable estoppel requires overt acts and declarations of the party charged, designed to induce another to alter his position to his detriment all of which must be proven by clear and convincing evidence. Id. at 548.
There has been no showing in this case that Beaubien or Gilpin either misrepresented material facts or intended the landowners to rely to their detriment upon a parol agreement. Indeed, to my knowledge, the only context in which such a doctrine has been applied to the acquisition of easements has involved ditches and ditch rights, an area in which rights are so firmly entrenched as to be included within the Colorado Constitution.12
D. Easements by Prior Use
Easements by prior use, sometimes referred to as easements of necessity, can be implied when a property owner has used one part of a single piece of property for the benefit of another part of the property and then divides and conveys the property. In those circumstances, the new possessor of “the previously benefited portion of the land may also possess an easement over the previously burdened part of the property.” 7 Thompson, supra, § 60.03(b)(4).
Thompson suggests that the elements of an easement implied from prior use are: “(1) common ownership followed by a conveyance separating the unified ownership; (2) before severance, the common owner used part of the property for the benefit of the other part, a use that was apparent, obvious, continuous and apparent; (3) and the claimed easement is necessary and beneficial to the enjoyment of the parcel previously benefitted.” 7 Thompson, supra, § 60.03(b)(4)(i). The underlying premise is that, because the retained property was necessary to enjoyment of the conveyed property as shown by historical use — -the grantor must have intended to convey the easement with the grant.
In Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165 (1963), the plaintiff constructed a road across the defendant’s property that followed a mule pack or wagon trial that was in existence when the property was under common ownership. Id. at 483, 379 P.2d at 167. This court recognized that an easement may be an express easement (which appears in a deed or contract for the sale of land) or an implied easement (which arises out of the existence of certain facts implied from the transaction). Id. at 484, 379 P.2d at 167. The court noted that implied easements have generally not been looked upon with favor by the courts. Id. The elements adopted by the court to prove an implied easement were:
(1) Unity and subsequent separation of title; (2) obvious benefit to the dominant and burden to the servient tenement existing at the time of the conveyance; (3) use of the premises by the common owner in their altered condition long enough before the conveyance to show that the change *973was intended to be permanent; and (4) necessity for the easement.
Id. at 484-85, 379 P.2d at 167. Noting that all four elements must be present to support the creation of an easement, the court in Wagner rejected an easement, finding that the use was “a terminated intermittent” rather than permanent use. See also Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 332, 435 P.2d 232, 236 (1967)(easement by necessity found because of adequate proof of consistent, permanent use of road prior to severance).
In Bromley v. Lambert & Son, Inc., 752 P.2d 595 (Colo.App.1988), at the time of the severance of the parcel, the plaintiffs had no access to their land except by right of way over the defendant’s property. Id. at 596. The city later constructed a public street adjoining the plaintiffs’ property. Id. The court stated:
Colorado recognizes implied easements that arise by pre-existing use. A showing of necessity is required to establish an easement by pre-existing use. Proof of necessity is required as of the time of the severance of the original property into separate estates, because it is an indication of the intent of the original grantor and grantee that a permanent servitude be imposed on the servient estate in favor of the dominant estate.
Id. (citations omitted); see also Proper v. Greager, 827 P.2d 591 (Colo.App.1992) (noting that the required necessity is the necessity for the easement at the time of severance, not at the time of the court hearing).
Accordingly, to imply an easement by prior use, the landowners here would have had to show that the mountain property was being used by Beaubien at the time of the conveyance of the vara strips as a necessary adjunct in order to support the viability of the vara strips. Only by that means could the landowners demonstrate that Beaubien necessarily intended to grant to them such rights. The evidence does not suggest that Beaubien was then making use of the property nor that Taylor Ranch was necessary to the community. Rather, the evidence demonstrates that no one lived on the property at the time of the grants, and that the grazing, timber, and firewood use occurred on property other than the Taylor Ranch. Under those circumstances, an easement by necessity cannot exist.
V. Conclusion
I do not believe that the landowners here have established their right to use the Taylor Ranch lands as they claim. They cannot, in my view, rely upon the Beaubien Document because it did not comply with the laws in effect at the time of its execution by failing to identify specific grantees. The document was not ambiguous, and therefore cannot support rights by implication. Further, none of the theories for implication of an easement apply to these facts.
Accordingly, I would affirm the court of appeals and thus respectfully dissent from the majority opinion.
I am authorized to state that Justice RICE joins in this dissent.
. As one commentator notes, the themes found in the land tenure and law in Spain and Mexico are repeated in the southwestern United States in the nineteenth century: a tension between private land and communal land, and the importance of Spanish custom. Malcolm Ebright, Land Grants & Lawsuits in Northern New Mexico 21 (1994).
. The trial court found that in 1856, before he executed the Beaubien Document, Charles Beau-bien entered into a lease with the United States government that met all statutory requirements, thereby demonstrating that Beaubien was aware of the requirements for conveying use rights and profits á prendre, and could satisfy them when he chose. Lobato v. Taylor, 13 P.3d 821, 830 (Colo.App.2000).
. Not only does the Document not identify grantees, but it also omits the words "and heirs and assigns.” As the court of appeals noted, the absence of that language in a document conveying an interest in real property meant that the conveyance passed only a life estate. Lobato, 13 P.3d at 831 (citing In re Estate of Newby, 146 Colo. 296, 299, 361 P.2d 622, 623-24 (1961) (stating that, at common law, without the use of words of limitation "and his heirs and assigns” a conveyance passed only a life estate)).
. In Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo.1998), we held that Colorado generally follows the “four corners" principle when construing deeds, but conditionally allows extrinsic evidence in some circumstances to determine whether the deed is ambiguous. Specifically, we stated, " 'In determining whether a deed is ambiguous, a trial court may conditionally admit extrinsic evidence on that issue, but if it is ultimately determined that the document is unambiguous, the conditionally admitted evidence must be stricken.’ ” Id. (quoting O’Brien v. Vill. Land Co., 794 P.2d 246, 249 n. 2 (Colo.1990)).
. Specifically, the witness testified that there are large timbered portions of the grant that are not located on the Taylor Ranch. Later in the trial, the witness, while being examined by the defense, testified regarding the area in the grant located to the north of the Taylor Ranch:
Q. [The area north of the Taylor Ranch] is vegetated in almost the same manner as you’ve depicted vegetation on the Taylor ranch, isn't it?
A. Yes, the same general patterns would tend to be contiguous.
Q. And carry on farther north; is that fair to say?
A. Yes.
Q. So, would it be fair to say that the line— that the line dividing the north side of the Taylor ranch from the lands to the north of that line are indistinguishable?
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A. Well, it would be basically a continuation of the vegetation.
Q. Okay. So, one could put to use the lands north of the north boundary of the Taylor ranch in the same fashion that you could put use to the Taylor ranch, itself; is that fair to say?
A. Yes.
. The court in Sanchez reasoned that the Beau-bien Document must be limited to the lands it specifically references, which lands do not include the Taylor Ranch property. The only other option would be to apply it to the entire grant, which would be inconsistent with Beaubien’s intent. Sanchez, 377 F.2d at 738. The court stated:
We agree with the trial court that to construe the instrument as a dedication of the lands to the extent claimed by the appellants would be inconsistent with the contemplated sale of the lands remaining unsold at the time, and to apply it only to the [Taylor Ranch] would require a rewriting of the instrument. None of the settlers, including these defendants, have ever, and do not now, assert any privileges for the use of lands after sale and occupancy by the purchasers. Apparently the conflict arose when the sale to Taylor ended the free use of the lands in the area for pasture, wood, and recreational uses. The hardship caused, however, does not establish a legal right.
By the terms of the agreement between Gil-pin and the executors of Beaubien’s estate, Gilpin undertook to carry out certain commitments which Beaubien had made to settlers during his lifetime. Essentially, this is a commitment to convey title to certain settlers upon receipt of agreed payments. There is no language in the agreement which could be construed as indicating that either Beaubien or Gilpin intended the dedication which appellants seek to establish.
Id.
. As a more minor point, I would also observe that the right to graze cattle is probably a profit á prendre coupled with an easement, for it is the right to make some particular and continuing use of property as well as to remove something from it.
. Restatement, supra, § 2.16 cmts. (f) and (g) further provide:
Uses made in subordination to the property owner are not adverse, even if the property owner has not given permission, and the use is not otherwise authorized. The reason is that the property owner is not put on notice of the need to take steps to protect against the establishment of prescriptive rights....
... Subordination requires that the user act with authorization, express or implied, from the landowner, or under a claim that is derivative from the landowner’s title....
When a property owner gives permission to use property, the law implies that a license was intended. Unless additional facts suggest otherwise, it is assumed that the parties intended that the property owner retain the right to revoke the license at any time. Permissive uses do not give rise to prescriptive rights.
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A use that is initially permissive can become adverse only by express or implied revocation or repudiation of the license.
. The comment to the Restatement assumes that in cases not involving common driveways, party walls, or other joint-use facilities, the parties will affirmatively express their respective intent to create a servitude. See Restatement, supra, § 2.16 cmts. (h) & (i). It contemplates two applicable situations in which prescription may cure a defect in title in non-common-facility contexts. The first involves uses pursuant to express servitudes that were not in full compliance with the Statute of Frauds. Id. § 2.16 cmt. (h). The comment notes that since the intent to create a servitude is clear from the writing and the beneficiary is obvious, these cases do not present factual difficulties. The second scenario contemplates cases involving a claim of prescriptive use based on oral grants or agreements to create a servitude. Id. It directs that such claims should only be accepted cautiously because "they directly thwart the purpose of the Statute of Frauds to force parties to provide written evidence of the existence and terms of the interests in lands.” Id.
. § 38-41-103, 10 C.R.S. (2001)
. Aubert is a case involving the assertion of senior water rights. The court declined to find that the defendant was estopped from claiming the rights, relying for the principles of estoppel upon a real property ownership case. Jacobs v. Perry, 135 Colo. 550, 555-56, 313 P.2d 1008, 1011-12 (1957) (defendants claimed that the titled owners to the property were estopped from contesting their rights because the owners had accepted the benefit of improvements on the property).
. Article XVI, section 7 of the Colorado Constitution establishes the right of all persons and corporations for rights of way to convey water.