Burrup v. Stanger, 16594

• Decision Date: 24 March 1988
• Docket Number: No. 16594,16594
• Citation: 753 P.2d 261,114 Idaho 50
• Parties: Vance BURRUP, Larry R. Christensen, A. Lin Whitworth, M.J. Kent and David Whitworth, Plaintiffs-Respondents, v. Elmer H. STANGER and Fran Stanger, husband and wife, Defendants-Appellants.
• Court: Idaho Court of Appeals

Page 261

753 P.2d 261

114 Idaho 50

Vance BURRUP, Larry R. Christensen, A. Lin Whitworth, M.J. Kent and David Whitworth, Plaintiffs-Respondents, v. Elmer H. STANGER and Fran Stanger, husband and wife, Defendants-Appellants.

No. 16594.

Court of Appeals of Idaho.

March 24, 1988.

Review Granted May 24, 1988.

[114 Idaho 51] Louis F. Racine, Jr., of Racine, Olson, Nye, Cooper & Budge, Pocatello, for defendants-appellants.

R.M. Whittier of Whittier & Souza, Pocatello, for plaintiffs-respondents.

SUBSTITUTE OPINION

The Court's prior opinion, dated October 15, 1987, is hereby withdrawn.

SWANSTROM, Judge.

Elmer and Fran Stanger appeal the district court's judgment decreeing that a portion of Indian Creek Road located upon their land in Bannock County is a public highway. Although other issues are raised on appeal, the decisive issue is whether the district court erred in determining that the road across the Stanger property is a public highway under I.C. § 40-202. We reverse.

In 1910 a roadway along Indian Creek, built in part at least by early settlers, was declared to be a public highway by the Bannock County Commissioners. The road, coursing westward up the creek from the Portneuf River, approached but did not enter what is now the Stanger property. Before it reached the Stanger property the original roadway turned southward in what is now Vance Burrup's property, to join the Walker Creek Road. At some early time, not shown by the record, the original road evolved in a westward direction. No evidence reveals who extended the road or why or how it was done. No evidence shows that the extension was accomplished by expenditure of any public money or work. The record only shows that over the years local residents, including the plaintiffs, used Indian Creek Road for access to forest lands by traversing what now is the Stanger property. As a result, a noticeable passage was created across the property and some two miles beyond the present Forest Service boundary. It is admitted by all parties that Indian Creek Road today is a county highway up to the Stangers' east boundary.

In 1954 Elmer Stanger's father purchased and later deeded over to Elmer the one-half mile wide parcel of ground underlying the evolved road. This land abuts Forest Service land on the west and Burrup's land on the east. The Stangers use the land for grazing cattle; their personal residence is approximately five miles away. In an attempt to restrict traffic, the Stangers placed barbed wire gates across the road at both boundaries and posted "No Trespassing" or "Private Property" signs at the gates. The Stangers regularly found the gates opened or destroyed, and the signs removed.

From 1973 to 1984, the Stangers maintained a mobile home on the land for their son and his family. The home was located 900 feet west of the Stangers' east boundary, and was positioned directly across the road. A short distance from the home, the Stangers constructed a bypass road for access to their own land; it could also be used for access to the Forest Service land. A metal gate was erected across this road in 1980 which effectively barred all vehicular traffic. At one time, the Stangers obstructed the road by the placement of an earthen berm.

Most of the plaintiffs in this action are persons who have lived along Indian Creek for several years. Vance Burrup operates a ranch adjoining the Stanger property. He and other plaintiffs complained to the Bannock County Sheriff about the Stangers' actions. Nothing happened as a result of that complaint. The plaintiffs then petitioned the Bannock County Commissioners to declare the road across the Stangers' property to be a public highway. The commissioners refused. This litigation followed. In their complaint, the plaintiffs alleged that they have acquired private easements by prescriptive use; that a public roadway exists under I.C. § 40-202 through public use and maintenance; and that the Stangers should be permanently enjoined from interfering with the public's use of the road. The Stangers counterclaimed, alleging trespass and requesting injunctive relief. The Stangers moved for summary judgment.

Partial summary judgment was granted in favor of the Stangers on the issue of whether, under I.C. § 40-202, the road was public. However, the district judge set aside this ruling upon plaintiffs' motion for reconsideration. Thus, the issue was reserved for trial. Following a nonjury trial, the court found in favor of the Stangers on the issue of private prescriptive easements. The plaintiffs have raised no challenge to that decision. The trial court, however, rendered judgment to the plaintiffs on the issue of whether a public road exists under I.C. § 40-202. The court enjoined the Stangers from obstructing the road. Further, the court declared the road to be fifty feet wide pursuant to I.C. § 40-2312, and ordered Bannock County, a nonparty, to maintain it. The plaintiffs were awarded attorney fees under I.R.C.P. 54(e)(1) and I.C. § 12-121.

On appeal, the Stangers assert four issues. As noted, the pivotal issue is whether the district court erred in its determination that a public highway exists. We hold the district court erred in determining that the facts demonstrated sufficient public maintenance for a public highway under I.C. § 40-202. The Stangers question the award of attorney fees to the plaintiffs. Our decision reversing the district court's decree of a public road renders this issue moot. The Stangers also contend the district court erred in failing to grant them injunctive relief against the plaintiffs. We think adequate legal remedies exist to preserve the Stangers' rights in the event of future trespass. No injunctive relief is presently required.

Whether a public highway exists across the Stangers' property turns on the provisions of former I.C. § 40-202. ¹ Three situations giving rise to public highways are recognized by this statute.

Roads laid out and recorded as highways, by order of a board of commissioners, and all roads used as highways for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public, or located and recorded by order of a board of commissioners, are highways.

The first and third clauses of that statute are inapplicable here. The portion of road traversing the Stanger property was not "laid out and recorded" by order of a board of commissioners. Nor has it been used for five years and "located and recorded" by like order. The dispositive issue is whether the road has been used as a highway for a period of five years while being maintained at the expense of the public.

We are faced with reviewing entwined questions of law and fact. As to narrative facts found by the trial court, we will defer to those that are supported by substantial, competent evidence. I.R.C.P. 52(a). However, we freely review 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. See Standards of Appellate Review in State and Federal Courts, § 3.2.2 IDAHO APPELLATE HANDBOOK (Idaho Law Foundation, Inc. 1985). Legally sufficient facts are those which establish, by a prima facie showing, each requirement of the statute.

Idaho case law, spanning over ninety years, has construed the statutory requirements for determining whether a public highway exists. Thus, some general analytical framework has been provided. In Tomchak v. Walker, 108 Idaho 446, 700 P.2d 68 (1985), our Supreme Court collated and expressed the major principles. Drawing upon that case and others we find the following standards have emerged.

Idaho Code § 40-202 may be used by counties or by private parties to obtain a declaration that a road is a public highway. It may be used either to foreclose private parties from obstructing the road, e.g., State v. Nesbitt, 79 Idaho 1, 310 P.2d 787 (1957), or to confirm the county's duty to maintain the road, e.g., Pugmire v. Johnson, 102 Idaho 882, 643 P.2d 832 (1982). The primary factual questions are the frequency, nature and quality of the public's use and maintenance. Tomchak v. Walker, supra.

A sufficient showing of public use under the statute must demonstrate the following. The public's use of the road must have been more than only casual and desultory. Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266 (1941). One or more public agencies must have regularly maintained the road and the public must have used the road for a period of five years. Pugmire v. Johnson, supra; State v. Nesbitt, supra. It must be shown that the public agency's maintenance of the road was performed at necessary times and places. It is not required that the road be worked on for five consecutive years, nor does the statute require work to be done throughout the road's entire length. State v. Nesbitt, supra. Thus, the facts should show that the public has used the road regularly, as it would any similar public highway, and that public funds were used to maintain the road for a five-year period; the maintenance being more than occasional or sporadic, but as was necessary.

The remaining factual questions relate to the intentions of the landowners and of the county relevant to use and maintenance. Tomchak v. Walker, supra. Objective manifestations of intent include designating the road as a public highway by the proper public authorities; recording the road as a public highway by order of the board of county commissioners; and the regular maintenance of the road by public expenditure. Kirk v. Schultz, supra. The facts must demonstrate that minor maintenance work or snow removal, done by the public road crews, was not a mere gratuitous aid to the local landowners or citizens. Rice v. Miniver, 112 Idaho 1069, 739 P.2d 368 (1987); Cox v. Cox, 84 Idaho 513, 373 P.2d 929 (1962). Likewise, it must be shown that the public agency has not expressly agreed to maintain the roadway while continuing to...