Burley Brick and Sand Co. v. Cofer

• Court: Idaho Supreme Court
• Writing for the Court: DONALDSON; BAKES
• Citation: Burley Brick and Sand Co. v. Cofer, 102 Idaho 333, 629 P.2d 1166 (Idaho 1981)
• Decision Date: 04 June 1981
• Docket Number: No. 13639,13639
• Parties: BURLEY BRICK AND SAND COMPANY, an Idaho Corporation, Plaintiff-Appellant, v. Vera A. COFER, Individually, and as heir at law of Paul E. Cofer, Deceased, Defendant-Respondent.

Page 1166

629 P.2d 1166

102 Idaho 333

BURLEY BRICK AND SAND COMPANY, an Idaho Corporation, Plaintiff-Appellant, v. Vera A. COFER, Individually, and as heir at law of Paul E. Cofer, Deceased, Defendant-Respondent.

No. 13639.

Supreme Court of Idaho.

June 4, 1981.

Herman E. Bedke, Burley, for plaintiff-appellant.

William T. Goodman, of Goodman, Duff & Chisholm, Rupert, for defendant-respondent.

DONALDSON, Justice.

This is an appeal from a district court's denial of an action by plaintiff-appellant Burley Brick and Sand Co., (hereinafter Burley Brick) to establish either an easement by necessity or an easement by implication.

In December 1959, Mr. and Mrs. Cofer conveyed ten acres out of their ranch in Minidoka County to Burley Brick for $3,000. Although the deed is silent in regards to the granting of an easement from the Cofers to Burley Brick, it recognizes that the ten acres are subject to an easement granted by the Cofers to the state of Idaho.

The ten acres acquired by appellant did not abut any public roadway, and the adjacent lands were owned by strangers to Cofers' title. Prior to the sale to Burley Brick, the Cofers used a farm road to get to the back acreage, which includes the ten acres sold. This road, which cuts from a country highway through the middle of the Cofers' ranch, is about nine feet wide, graveled, and passes through a cattle gate near the Cofers' house.

The ten acres acquired by Burley Brick were used from 1959 through the early 1970s for the excavation of clay which was used in its brick making operation. During this time, Burley Brick used the farm road to haul out the clay. When the clay deposits on the ten acres were depleted, Burley Brick leased the land to a third party who intended to farm it. However, Mrs. Cofer denied the lessee access to the land on the contention that the deed to Burley Brick only conveyed a license to excavate clay and that upon depletion of the clay the land reverted to the Cofers. Action was brought by Burley Brick to quiet title to the ten-acre parcel. The district court entered two judgments. In one judgment, the district court ruled that the Cofers had a right to farm the ten acres and to receive all crops therefrom. In the other, the district court ruled that Burley Brick was the owner in fee simple and entitled to possession of the ten acres but not entitled to an implied easement. Burley Brick appealed.

In Burley Brick & Sand Co. v. Cofer, 99 Idaho 616, 586 P.2d 1060 (1978), this Court reversed a judgment that denied Burley Brick an implied easement and remanded "for reconsideration of whether appellant acquired an easement by necessity or by implication when it obtained fee simple title from respondent (Cofer)." In the course of the appeal, respondent Cofer conceded that the ten acres had been deeded in fee simple to Burley Brick. This Court further pointed out that:

"(T)he record indicates that respondent has conveyed to the state of Idaho a right of way fifty feet wide along the east edge of her property which also crosses the land purchased by appellant. The same right of way could provide access to appellant's land and might not be inconsistent with the grant of right of way to the state. We suggest on remand that the trial court determined the suitability of granting appellant an easement over this same fifty foot right of way...." Id. at 617-18 n. 1, 586 P.2d at 1061-62 n. 1.

Besides the state's easement, the farm road easement in question is the sole access to the ten acres. On remand, the district court found that Burley Brick had no easements. The district court also stated that since the state was not a party to the action and no agreement had been made with the state regarding joint use of the easement, it would be an infringement of the state's easement to grant Burley Brick joint easement rights. From the district court decision, Burley Brick appeals.

This Court in Close v. Rensink, 95 Idaho 72, 77, 501 P.2d 1383, 1388, cited Martino v. Fleenor, 365 P.2d 247 (Colo.1961) and 25 Am.Jur.2d Easements, § 35, p. 448 for the theory of easement by necessity. Martino, supra at 249, quoted the following from 17A Am.Jur. 668-669, Easements, § 58:

"Although a way of necessity is sometimes confused...