Ada County Highway Dist. v. Tsi

• Decision Date: 19 February 2008
• Docket Number: No. 32726.,32726.
• Citation: 145 Idaho 360,179 P.3d 323
• Court: Idaho Supreme Court
• Parties: ADA COUNTY HIGHWAY DISTRICT, a body politic corporate of the State of Idaho, Plaintiff-Respondent, v. TOTAL SUCCESS INVESTMENTS, LLC, an Idaho limited liability company and B & C Family Trust, Defendants-Appellants, and Home Federal Savings and Loan Association, a federally funded thrift; Idaho Independent Bank, an Idaho banking association; Boise City Msa Limited Partnership, d/b/a Verizon Wireless, a Delaware corporation; and/or John Does 1-10 as Tenants, Defendants. Home Federal Savings and Loan Association, a federally funded thrift, Cross-Claimant, v. Total Success Investments, LLC, an Idaho limited liability company, Cross-Defendant.

179 P.3d 323

145 Idaho 360

ADA COUNTY HIGHWAY DISTRICT, a body politic corporate of the State of Idaho, Plaintiff-Respondent, v. TOTAL SUCCESS INVESTMENTS, LLC, an Idaho limited liability company and B & C Family Trust, Defendants-Appellants, and Home Federal Savings and Loan Association, a federally funded thrift; Idaho Independent Bank, an Idaho banking association; Boise City Msa Limited Partnership, d/b/a Verizon Wireless, a Delaware corporation; and/or John Does 1-10 as Tenants, Defendants.

Home Federal Savings and Loan Association, a federally funded thrift, Cross-Claimant, v. Total Success Investments, LLC, an Idaho limited liability company, Cross-Defendant.

No. 32726.

Supreme Court of Idaho, Boise, January 2008.

February 19, 2008.

Neal & Uhl, PLLC., Boise, for appellants. Gary L. Neal argued.

Trout, Jones, Gledhill & Fuhrman, P.A. Boise, for respondents. Kimbell David Gourley argued.

BURDICK, Justice.

This case asks the Court to consider whether a highway district acquired a highway pursuant to I.C. § 40-202(3) and presents other issues including whether the highway district's quiet title action is barred by I.C. § 5-202, whether the acquisition is an unconstitutional taking, and whether the respondent was entitled to a jury trial on the ejectment claim. The district court held the highway district acquired the highway pursuant to I.C. § 40-202(3). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The dispute involves an alley located between 35th and 36th Streets, which connects State Street and Dewey Street, in Boise, Idaho. In 1906, a platted, twelve-foot wide alley was dedicated to the public. In 1957 power poles were placed along the alley which may have forced the misalignment of the alley; they were not placed on the outer edge of the boundary line and, thus, may have caused traffic to travel west of their location.

Appellant Total Success Investments, LLC (TSI) acquired a parcel of land on State Street in 2001. A portion of this land is leased and is used to operate a cell tower facility. The cell tower facility was constructed in 1997 and is surrounded by a fence. Originally, the fence was not placed on the property line; however the fence was relocated six feet to the east after TSI bought the property, conducted a survey of the property, and discovered the fence was not on its property line. It now sits on the property line. The movement of the fence prevented all but small motor vehicles from using the alley.

Respondent Ada County Highway District (ACHD) filed an action to quiet title asserting it had acquired a highway over a portion of TSI's property between the prior location of the fence and the current location of the fence pursuant to I.C. § 40-202 and an action for ejectment of the relocated fence. After a three day court trial, the district court determined ACHD had met the statutory requirements for the acquisition and had the authority to remove the encroaching fence. TSI appeals.

II. STANDARD OF REVIEW

When review of a trial court's decision involves entwined questions of law and fact, we exercise free review over questions of law, and uphold factual findings supported by substantial and competent evidence. Marshall v. Blair, 130 Idaho 675, 679, 946 P.2d 975, 979 (1997).

III. ANALYSIS

TSI argues that ACHD did not meet the elements of I.C. § 40-202, ACHD's quiet title action is barred by I.C. § 5-202, there was a spoliation of evidence, I.C. § 40-202 is unconstitutional because it allows an uncompensated taking, it was entitled to a jury trial on the ejectment claim, ejectment is barred by waiver and unclean hands, it was denied due process of law, and that ACHD failed to join indispensable parties.¹ We will address each issue in turn.

A. Acquisition of the Highway

This Court exercises free review over questions of law and does not set aside factual findings that are supported by substantial and competent evidence. Marshall, 130 Idaho at 679, 946 P.2d at 979. This Court freely reviews "whether the facts found are sufficient to satisfy the legal requirements for a public highway through public use and maintenance under I.C. § 40-202." Burrup v. Stanger, 114 Idaho 50, 52, 753 P.2d 261, 263 (Ct.App.1998), aff'd, 115 Idaho 114, 765 P.2d 139 (1988). "Legally sufficient facts are those which establish, by a prima facie showing, each requirement of the statute." Id.

We must determine whether the district court's findings are supported by substantial and competent evidence and then whether those findings support a legal conclusion that ACHD has acquired a highway pursuant to I.C. § 40-202(3). First, however, we will discuss the general requirements to acquire a highway pursuant to I.C. § 40-202(3).

The requirements for determining whether a public highway exists are set forth in I.C. § 40-202. According to the statute, a public road may be acquired: (1) if the public uses the road for a period of five years, and (2) the road is worked and kept up at the expense of the public. I.C. § 40-202(3); Floyd v. Bd. of Comm'rs, 137 Idaho 718, 724, 52 P.3d 863, 869 (2002). The highway district has the burden of proving by a preponderance of the evidence that public rights were established. See Floyd, 137 Idaho at 724, 52 P.3d at 869.

Public status of the roadway can be established by proof of regular maintenance and extensive public use. Id. There is no intent requirement to create a public road pursuant to I.C. § 40-202(3). Id. at 727, 52 P.3d at 872. "[T]he primary factual questions are the frequency, nature and quality of the public's use and maintenance." Id. The public must use the road regularly, and the use must be more than only casual or desultory. Burrup, 114 Idaho at 53, 753 P.2d at 264.

Maintenance need only be work and repairs that are reasonably necessary; it is not necessary maintenance be performed in each of the five consecutive years or through the entire length of the road. Floyd, 137 Idaho at 724, 52 P.3d at 869 (citing Roberts v. Swim, 117 Idaho 9, 16, 784 P.2d 339, 346 (Ct.App.1989); State v. Nesbitt, 79 Idaho 1, 6, 310 P.2d 787, 790 (1957), overruled on other grounds by French v. Sorensen, 113 Idaho 950, 751 P.2d 98 (1988)).

The district court found:

Beginning no later than 1978, ACHD continuously maintained the alley (including the strip) as was necessary and at public expense. From 1978 through 1986, the alley received maintenance twice per year. After 1986, maintenance was conducted on an annual basis. . . .

The maintenance performed by ACHD included cleaning up trash and debris. More significantly, both in terms of cost and this Court's finding of public use of the alley, regular vehicular traffic in the alley created potholes. The deterioration of the alley caused by this traffic required ACHD crews to annually grade the alley and add gravel to bring the roadway surface up to the level of manhole covers. . . . Although adjacent property owners occasionally trimmed weeds or filled potholes, ACHD performed the vast majority of maintenance in the alley.

* * *

[M]aintenance of the paved portion consisted of removing weeds and garbage and trimming tree branches. This maintenance was conducted every six to eight months by a "weed crew."

Public funds are expended for the weed crew's maintenance services. ACHD employees supervised Ada County Jail inmates who comprised part of the weed crew. ACHD bears the cost of necessary tools, equipment, and waste disposal. The weed crew maintained the strip until relocation of the fence in 2003. In addition to the weed crew's efforts, ACHD's road sweeper was periodically used to clean the alley.

ACHD's maintenance of the alley was reasonable and necessary to permit public use of the alley. The alley was, in fact, extensively used by members of the public. The testimony from both plaintiff's and defendants' witnesses as to the existence of potholes in the alley was compelling circumstantial evidence of frequent use of the alley by motor vehicles.

Much of the traffic was the result of customers, suppliers, and service providers using the alley to access businesses adjacent to the alley for purposes directly related to those businesses. The greatest volume of testimony related to vehicle access, by way of the alley, to State Street Auto Body. For example, Bob Rice Auto Parts driver Lloyd Hill regularly drove down the alley to deliver parts to State Street Auto Body. In addition, garbage trucks used the alley regularly in order to provide waste disposal service to adjacent businesses and UPS drivers used the alley to make deliveries.

The evidence also showed that members of the public used the alley to access the businesses in order to advance their own business purposes. For example, Gary Stone of Mac Tools ("Stone") used the alley when soliciting business from State Street Auto Body from May 1995, until relocation of the fence prevented such use. He initially used the gravel section of the alley that was later enclosed by the cell tower fence in its original position. After the fence was erected, Stone drove his large delivery van down the paved portion of the alley, including the strip.

The evidence also showed that other members of the public regularly used the alley for purposes apparently unrelated to the adjacent property owners' businesses. For example, the evidence established that sewer system employees regularly used the alley to access manhole covers.

Based on these factual findings, the district court concluded ACHD met the requirements of I.C. § 40-202.

First, this Court must determine if the factual findings are supported by substantial and competent evidence, then we must decide whether the factual findings are sufficient to support a legal conclusion that ACHD has met the requirements of I.C. § 40-202. See Marshall, 130 Idaho at 679, 946 P.2d at 979; Burrup, 114 Idaho at 52, 753 P.2d at 263.

1. There is substantial and competent evidence supporting the district court's findings.

The record...