Conley v. Whittlesey, 24105.

• Decision Date: 12 August 1999
• Docket Number: No. 24105.,24105.
• Citation: 133 Idaho 265,985 P.2d 1127
• Parties: Dennis K. CONLEY, Plaintiff-Counterdefendant-Appellant, v. Craig D. WHITTLESEY, a single person; Gary Bishop and Norma Bishop, husband and wife, Defendants-Counterclaimants-Respondents, and Richard Ward and Kelly Ward, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

985 P.2d 1127

133 Idaho 265

Dennis K. CONLEY, Plaintiff-Counterdefendant-Appellant, v. Craig D. WHITTLESEY, a single person; Gary Bishop and Norma Bishop, husband and wife, Defendants-Counterclaimants-Respondents, and Richard Ward and Kelly Ward, husband and wife, Defendants-Respondents.

No. 24105.

Supreme Court of Idaho, Lewiston, April 1999 Term.

August 12, 1999.

Dennis K. Conley, Moscow, pro se appellant.

Landeck, Westberg, Judge & Graham, Moscow, for respondents. Ronald J. Landeck argued.

WALTERS, Justice.

This is an appeal following a remand and subsequent trial of Dennis Conley's claims to define the parameters of an easement conveyed to him in October 1980 by the grantors of his real property located on Moscow Mountain in Latah County, Idaho. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The real property purchased by Conley was originally part of seventy-eight acres on the south side of Moscow Mountain owned by Lowell C. and Melissa A. Brown. By warranty deed dated October 24, 1980, the Browns conveyed twenty-five acres to Conley, including the grant of a right of way easement "for ingress and egress together with the right to construct, reconstruct, repair and maintain an existing road," which had been used for logging in the summers in the 1960's and 1970's. In October 1980, the road was primarily a grassy surface with two visible vehicle tracks of approximately twelve feet in width through its entire length except for two areas adjacent to the road where landings had been made to deck logs.

Conley admitted widening the road to some extent between 1980 and 1988. He acknowledged in-sloping the road and widening the entrance to the easement right of way from the county road with a forty-foot culvert. Conley graded the road on numerous occasions with a bulldozer, by cutting and filling, and at least once used a motor-grader, knocking trees over with his equipment. During the winter, Conley plowed snow from the road with his heavy equipment. Conley moved onto his property in November of 1986 and began using the existing road on a year-round basis to get to and from his residence. In 1987, Gary and Norma Bishop moved into their home on the property located near the entrance of the existing road from the county road.

Conley sought a declaration of his rights regarding the easement and filed a complaint for an injunction and for damages on November 3, 1988. The respondents answered and filed a counterclaim, after which a hearing was held which, pursuant to a stipulation by the parties, resulted in the entry of an Order and Injunction Pendente Lite. In another hearing held July 10, 1988, the parties entered into "a settlement in principle" on the court record, which was to govern the parties' actions with respect to Conley's right of way easement over the servient estates. The agreement was never fully executed, and the district court's efforts to compel execution of the agreement was the subject of an appeal wherein the Court of Appeals reversed the district court ordered settlement and remanded the matter for trial. Conley v. Whittlesey, 126 Idaho 630, 888 P.2d 804 (Ct. App.1995).

On October 16, 1995, that portion of the trial devoted to resolving the parameters of the easement began. Evidence regarding the intent of the parties at the time of the creation of the easement in 1980 was presented to the district court sitting as the trier of fact. Because neither party argued that the language of the easement was ambiguous, the district court determined that it would not consider the evidence of intent to explain the unambiguous easement. The district court thereafter entered an order limiting the easement's physical parameters as set forth in the joint engineering report (Defendants' Exhibit 27) and held that Conley had the right to use, repair and maintain, construct and reconstruct the easement within and not outside of the parameters therein set forth. The district court also permanently enjoined Conley from in any way using the easement by exceeding the physical parameters and from deviating from the road construction specifications set forth in the report. Further, the district court ordered Conley to surface the driving portion of the easement according to the specifications not later than November 15, 1996, or be enjoined from using the easement for vehicular ingress or egress until completion of such surfacing. Following a separate trial on the question of damages, the district court issued its memorandum decision and judgment denying Conley's request for damages and awarding damages to Craig Whittlesey and the Bishops, the owners of the servient land, for trespass and unauthorized tree cutting and for Conley's failure to repair and maintain the easement.

Conley filed a timely appeal from the district court's judgment. He filed an amended notice of appeal seeking to include review of the Order and Injunction Pendent Lite from November 1988, which were asserted by the respondents in a motion to hold Conley in contempt in 1990, for removing trees and widening the road by cutting and filling to the detriment of the servient landowners.

Within one month of the entry of the judgment, the district court entered an order partially staying execution of the judgment. The stay was lifted by an order dated October 28, 1997, the effect of which was to add the costs of restoration of the road to the judgment amount in favor of the Bishops and Whittlesey. Finally, after numerous hearings on Conley's objections, the district court entered an order awarding attorney fees and costs to Whittlesey and the Bishops on June 28, 1998.

On appeal, Conley claims as error the restrictions as to the width and the use of the easement imposed by the district court, which he asserts were not delineated when the easement was created. He also contests the district court's order imposing upon him the costs of repair and restoration of the easement and the court's assessment of attorney fees and costs against him.

ISSUES

Conley asserts the following issues on appeal:

1. Did the district court err in limiting the scope of Conley's easement to the physical parameters of the easement as set forth in the engineers' report?

2. Is the language of the easement ambiguous?

3. Did the district court err in finding that Conley, as the dominant tenement, had "a duty to maintain, repair and protect the easement" and thus was properly ordered to surface the road?

4. Did the district court err in finding that the respondents' improvements to the servient estate and the cedar tree on the Bishops' land did not constitute obstructions to the use of Conley's easement as they were not within the parameters of the easement?

5. Did the district court err in finding that Conley "may not be entitled to year-round use of the easement," where the grant places no such restrictions on the use of the easement?

6. Was it error for the district court to find that Conley had failed to maintain the road?

7. Did the closing of the easement by the district court effectuate a taking of Conley's property in violation of the constitution?

8. Was the district court's award of statutory interest on the damages from cutting the cedar tree and the other smaller seedling trees in error in that two different rates of interest were applied?

9. Was the district court's award of attorney fees based on a finding of frivolousness appropriate and within the discretion of the court?

10. Conley requests costs on appeal pursuant to I.C. § 12-107, § 12-123 and I.A.R. 40.

STANDARD OF REVIEW

Review of the lower court's decision is limited to ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law. Alumet v. Bear Lake Grazing Co., 119 Idaho 946, 812 P.2d 253 (1991). A trial court's findings of fact in a court tried case will be liberally construed on appeal in favor of the judgment entered, in view of the trial court's role as trier of fact. Lindgren v. Martin, 130 Idaho 854, 857, 949 P.2d 1061, 1064 (1997); Sun Valley Shamrock Resources, Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990). It is the province of the district judge acting as trier of fact to weigh conflicting evidence and testimony and to judge the credibility of the witnesses. Abbott v. Nampa School District No. 131, 119 Idaho 544, 808 P.2d 1289 (1991); I.R.C.P. 52(a). If the findings of fact are based on substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. Hunter v. Shields, 131 Idaho 148, 953 P.2d 588 (1998). However, we exercise free review over the lower court's conclusions of law to determine whether the court correctly stated the applicable law, and whether the legal conclusions are sustained by the facts found. Burns v. Alderman, 122 Idaho 749, 752-53, 838 P.2d 878, 881-82 (Ct. App.1992).

DISCUSSION

I.

We begin by noting that the question of ambiguity in the easement language was not asserted by either party below and was not ruled upon by the district court. Both Conley and the respondents affirmatively took the position before the district court that the easement language was not ambiguous. As a result, the question of ambiguity was not preserved for appellate review. We decline to consider for the first time on appeal whether the easement grant in this case is ambiguous. See Schiewe v. Farwell, 125 Idaho 46, 49, 867 P.2d 920, 923 (1993)

. We limit our review accordingly to the district court's decision fixing the scope of the easement and the rights and obligations of the parties with respect to the easement.

The grant of Conley's right of way easement for ingress and egress included "the right to construct, reconstruct, repair and maintain an existing road running over and across the North One-Half of the Northeast Quarter (N½ NE¼) of Section 26, Township 40 North, Range 5 West Boise Meridian, Latah County, State of Idaho." The granting...