Bentel v. Bannock County

Decision Date14 January 1983
Docket NumberNo. 13562,13562
Citation104 Idaho 130,656 P.2d 1383
PartiesJohn BENTEL and Charlene Bentel, Husband and Wife, et al., Plaintiffs-Appellants, v. The COUNTY OF BANNOCK, State of Idaho, a political subdivision, et al., Defendants-Respondents.
CourtIdaho Supreme Court

R.M. Whittier, Pocatello, for plaintiffs-appellants.

Garth Pincock, Gerald W. Olson, and Wesley F. Merrill, Pocatello, for defendants-respondents.

BISTLINE, Justice.


Plaintiffs-appellants own property along two county roads, Tyhee Road and Rio Vista Road, in Bannock County. In the fall of 1977 the City of Pocatello applied to the Board of Commissioners of Bannock County for permission to place an underground wastewater transmission pipeline within the right-of ways of Tyhee and Rio Vista roads. The Board granted permission on December 12, 1977. On December 19, 1977, J.R. Simplot Co. and the City of Pocatello entered into an agreement under which J.R. Simplot agreed to finance the building of the underground pipeline and a wastewater impoundment reservoir to which the pipeline will lead. Under the agreement two separate pipelines would be built to carry effluent (hereinafter used synonomously with "wastewater") to the pipeline contemplated by the contract. One would carry effluent from the wastewater treatment plant of the City of Pocatello, the other would carry effluent from Simplot's fertilizer plant in Power County. The main pipeline, which would run beneath the road right-of-ways, would carry the effluent to the impoundment reservoir. From there, the effluent would be sold to irrigators during the irrigation season. The City of Pocatello would only use the pipeline during the irrigation season. The rest of the year it would continue to discharge its (treated) wastewater into the Portneuf River.

Under the agreement, Simplot will pay all costs for construction of, and will own, the pipeline. The City of Pocatello will provide engineering expertise in the construction of the pipeline, will operate the system, and will hold Simplot harmless for liability arising out of any negligence of the City of Pocatello. Simplot's primary reason for entering into the agreement is its need for a method of meeting the effluent discharge limitations for discharges into the Portneuf River as set forth in its federal water pollution discharge (NPDES) permit. By impounding and thereafter selling its wastewater to irrigators, Simplot anticipates it will be able to meet present and future discharge standards applicable to the Portneuf River.

The City of Pocatello has a right to use the pipeline for twenty years, with options to renew the right at the end of the twenty years. Simplot may use the system to transmit 4.25 million gallons of effluent per day (MGD) and the City reserves to itself the right to use the remaining capacity of the system. The agreement recites an estimate that the capacity of the system not reserved to Simplot and therefore available to the City will be 12 MGD. Rio Vista and Tyhee roads have never been officially dedicated to public use.

Plaintiffs brought suit to enjoin defendants from constructing the proposed pipeline on their lands located on Tyhee and Rio Vista Roads. Plaintiffs additionally requested the district court to declare plaintiffs' interest in the subsurface rights of the roads to be absolute and to permanently enjoin defendants from taking or using plaintiffs' land for any other purposes. In their complaint plaintiffs concede that the state and county have obtained prescriptive rights to surface use of the roads, but assert that they hold the subsurface rights in fee simple. There are currently subsurface gas lines within parts of the right-of-ways of Tyhee and Rio Vista Roads, and underground telephone cables along the entire right-of-ways of both roads. There is presently a wastewater transmission line under a portion of Rio Vista Road, running from Chubbuck to Pocatello's wastewater treatment plant. It was installed by the City of Chubbock and apparently not objected to by plaintiffs.

Upon completion of the pleading stage, the defendants' motion for summary judgment was granted, the court holding that (1) while the plaintiffs as abutting property owners own the subsurface property to the center of the road in fee simple, the County's prescriptive ownership of the road surface carries with it the right to allow installation of utilities above and below the surface; (2) plaintiffs have no standing to challenge as ultra vires the contract between J.R. Simplot Co. and the City of Pocatello; and (3) a wastewater transmission line owned by a private entity with reserved rights in the City may be placed within county roadway easements without compensation to the owners of servient estates. From this judgment plaintiffs perfected this appeal.


We consider first whether the County's prescriptive easement over the road surface includes the right to allow installation of a subsurface wastewater transmission pipeline. Plaintiffs urge upon us the general rule that prescriptive easements are strictly limited to the actual use which gave rise to the easement. See Elder v. Northwest Timber Co., 101 Idaho 356, 613 P.2d 367 (1980); Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977). Although the use of a prescriptive easement may change under the proper circumstances, such change must not unreasonably increase the burden on the servient estate and must have been foreseeable at the time that the easement was established. Gibbens, supra.

The general rule, however, is concerned with prescriptive easements acquired by private parties. In this case we are concerned with a public prescriptive easement. Appellant argues that public prescriptive easements should be construed as narrowly as private prescriptive easements. We are persuaded otherwise. Although plaintiffs cite several Idaho cases in support of their contention that public prescriptive easements should be narrowly construed, only one of the cases, Meservey v. Gulliford, 14 Idaho 133, 93 P. 780 (1908), involved a public prescriptive easement. Meservey simply held that the state need not claim legal title to a highway in an action filed to protect the public interest in a prescriptive roadway easement. It did not address the scope of such easements, other than that one holding of the case is that as to width a 50 foot easement denied by the trial court, being in line with Sec. 932, Rev.Stat. (now I.C. § 40-904) will be upheld, because "common experience shows that width [is] no more than sufficient for the proper keeping up and repair of roads generally." Id. at 148, 93 P. at 785. In more contemporary decisions, other jurisdictions have held the scope of such easements comprehensive enough to include reasonably foreseeable public uses of such roadways, such as subsurface installations for sewage, runoff, communications and other services necessary to the increased quality of life which generally accompanies the growth of civilization. "[A] highway easement acquired by prescription is no less comprehensive than one acquired by grant, dedication or condemnation." Hill Farm, Inc. v. Hill County, 436 S.W.2d 320, 323-24 (Tex.1969). See Green v. Washington Suburban Sanitary Commission, 259 Md. 206, 269 A.2d 815 (1970); Elmhurst National Bank v. City of Chicago, 21 Ill.App.2d 180, 157 N.E.2d 781 (1959); Trigg v. Allemand, 95 N.M. 128, 619 P.2d 573, 578 (N.M.App.1980); Pickett v. California Pacific Utilities, 619 P.2d 325 (Utah 1980).

Non-prescriptive easements for public streets and roads include, as a general matter, the right to install pipelines beneath the surface area of the road.

"The use of a public street or alley for sewer and drainage purposes is necessarily incident to the use for which streets and alleys are opened and laid out, and this is true whether the sewer or drainage uses are public or private, as already noticed. Such use of streets is proper and lawful, is not inconsistent with the object of their establishment, and is not an additional burden on the easement entitling the abutting owners or the owners of the fee to compensation." 11 McQuillan, Municipal Corporations § 31.18 (3rd rev. ed. 1977) (footnotes omitted).

See Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d 1062 (1972); Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642 (1958).

We agree with the views of the Connecticut Supreme Court expressed in Yale University v. City of New Haven, 104 Conn. 610, 134 A. 268, 271 (1926), that "The early common law conception of the extent of this public easement has grown with the public necessity to include, not only the surface and a depth sufficient to make and keep the surface in proper condition for travel, but so much of the highway beneath the surface as is required for public purposes, such as the laying of sewers, catch basins, water, gas, electricity, and telephone and telegraph wires. ... None of these uses of the surface above or beneath the highway add a new servitude to the highway, or interfere, practically, with a fee of the abutter in the highway."

Additionally, it is clear that, in Idaho, all public roads, including those created by prescription, are subject to the right of utilities to place utility transmission facilities on or under the road area. I.C. § 62-701 provides in part: "Telegraph and telephone corporations may construct lines of telegraph or telephone along and upon any public road or highway ...." (Emphasis added.) I.C. § 62-1101 provides in part: "Any [gas company] shall have ... the right to construct, maintain, and operate [a] pipeline upon, along, and over, or under, any and all public roads, streets and highways ...." (Emphasis added.) Since all public road easements, including those acquired by prescription, are subject to the statutory right to install these utility services, the installation of a sewage disposal pipeline within an existing roadway easement does not, as a practical...

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