Burrup v. Stanger
| Decision Date | 29 November 1988 |
| Docket Number | No. 17522,17522 |
| Citation | 115 Idaho 114,765 P.2d 139 |
| Parties | Vance BURRUP, Larry R. Christensen, A. Lin Whitworth, M.J. Kent, and Brent Whitworth, Plaintiffs-Respondents, v. Elmer H. STANGER and Fran Stanger, husband and wife, Defendants-Appellants, and David Stanger; John Doe, John Smith, Mary Doe and Jane Smith, fictitious persons; A.B.C. Financing and Mortgage Corporation, a fictitious corporation; D.E.F. Banking Association, a fictitious corporation, Defendants. |
| Court | Idaho Supreme Court |
Racine, Olson, Nye, Cooper & Budge, of Pocatello, for defendants-appellants. Louis F. Racine, Jr., argued.
Whittier & Souza, of Pocatello, for plaintiffs-respondents. R.M. Whittier, argued.
Before SHEPARD, C.J., BISTLINE and JOHNSON, JJ., and McQUADE and BOYLE, JJ. Pro Tem.
This case was appealed from the trial court's judgment declaring a road across land owned by the Stangers to be public. The judgment also ordered the Stangers not to obstruct the use of the road by the public and ordered the county to continue to maintain the road.
We assigned the case to the Court of Appeals, which issued an opinion reversing the judgment of the trial court. Burrup v. Stanger, 114 Idaho 50, 753 P.2d 261 (1988). The Court of Appeals held that the trial court "erred in determining that the facts demonstrated sufficient public maintenance for a public highway under I.C. § 40-202." Id. at 52, 753 P.2d at 263.
Respondents requested review of the decision of the Court of Appeals by this Court, and we granted review.
We have reviewed and considered the briefs, the record, the transcript, the exhibits, and the opinion of the Court of Appeals. We have also listened to and considered the oral arguments of the parties that were presented to us. Based on this review and consideration, we concur with the decision of the Court of Appeals except in one minor respect.
The opinion of the Court of Appeals states:
The record contains a 1981 letter opinion from the County Attorney to the County Commissioners. The attorney opined that the county had no authority over the road across the Stanger property.
The letter to which the Court of Appeals referred was submitted as an attachment to an affidavit filed in support of a motion for summary judgment by the Stangers. The letter was not offered in evidence at the trial and did not become part of the record of evidence considered by the trial court. It was included in the clerk's record as part of the papers...
To continue reading
Request your trial
-
Ada County Highway Dist. v. Tsi
...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 dete......
-
John W. Brown Properties v. Blaine County
...by order of the county commissioners. 2 See Burrup v. Stanger, 114 Idaho 50, 52, 753 P.2d 261, 263 (Ct.App.1988), modified, 115 Idaho 114, 765 P.2d 139 (1988). In this case, the district court concluded that the Brown complaint alleged the establishment of Grove Road as a county road based ......
-
Roberts v. Swim
...for the existence of a prescriptive easement. See Burrup v. Stanger, 114 Idaho 50, 753 P.2d 261 (Ct.App.1988), aff'd, 115 Idaho 114, 765 P.2d 139 (1988). The Supreme Court and this Court have repeatedly warned that findings ought not be prepared by counsel and adopted verbatim by the trial ......
-
State v. Barrett
...before this Court, the opinion of the Court of Appeals is appropriate to state our views, in whole or in part. E.g. , Burrup v. Stanger , 115 Idaho 114, 765 P.2d 139 (1988). In many cases, however, we find it more appropriate to write our own opinion. Sato v. Schossberger , 117 Idaho 771, 7......