Cook v. Van Orden

• Decision Date: 24 March 2022
• Docket Number: Docket No. 48687
• Citation: 170 Idaho 46,507 P.3d 119
• Parties: Roger COOK and Shelley Cook, husband and wife, Plaintiffs-Appellants, v. Jay VAN ORDEN and Shelli Van Orden, husband and wife; Dexter Van Orden, an individual; Lavar Grover and Jeanette Grover, husband and wife; Defendants-Respondents, and Merrill Hanny and Bethea Hanny, husband and wife; Donald G. Allen and Kathy Allen, husband and wife; Barry Cox and Linda Cox, husband and wife, and Does I-V, Defendants. Lavar Grover and Jeanette Grover, husband and wife, Counterclaimants-Cross Claimants-Respondents, v. Roger Cook and Shelley Cook, husband and wife, Counterdefendants-Appellants, and Jay Van Orden and Shelli Van Orden, husband and wife; Dexter Van Orden, an individual, Cross Defendants-Respondents, and Merrill Hanny and Bethea Hanny, husband and wife; Donald G. Allen and Kathy Allen, husband and wife; Barry Cox and Linda Cox, husband and wife, Cross Defendants.
• Court: Idaho Supreme Court

170 Idaho 46

507 P.3d 119

Roger COOK and Shelley Cook, husband and wife, Plaintiffs-Appellants,

v.Jay VAN ORDEN and Shelli Van Orden, husband and wife; Dexter Van Orden, an individual; Lavar Grover and Jeanette Grover, husband and wife; Defendants-Respondents,andMerrill Hanny and Bethea Hanny, husband and wife; Donald G. Allen and Kathy Allen, husband and wife; Barry Cox and Linda Cox, husband and wife, and Does I-V, Defendants.

Lavar Grover and Jeanette Grover, husband and wife, Counterclaimants-Cross Claimants-Respondents,

v.Roger Cook and Shelley Cook, husband and wife, Counterdefendants-Appellants,andJay Van Orden and Shelli Van Orden, husband and wife; Dexter Van Orden, an individual, Cross Defendants-Respondents,

and

Merrill Hanny and Bethea Hanny, husband and wife; Donald G. Allen and Kathy Allen, husband and wife; Barry Cox and Linda Cox, husband and wife, Cross Defendants.

Docket No. 48687

Supreme Court of Idaho, Boise, January 2022 Term.

Opinion filed: March 24, 2022

Parsons Behle & Latimer, Idaho Falls for Appellants Roger and Shelley Cook. Jon Stenquist argued.

Cooper & Larsen, Pocatello, for Respondents Dexter C. Van Orden, Jay C. Van Orden and Shelli Van Orden. J.D. Oborn argued.

MOELLER, Justice.

This appeal concerns whether a prescriptive easement exists on a road accessing property owned by Shelley and Roger Cook near the Bingham and Bonneville County line. The Cooks’ property was originally owned by Shelley's grandfather, John Harker, and has stayed in the Harker family ever since. The Harker family (including the Cooks) claims to have used what the parties call "Tower Road" to access their property for as long as the family can remember. Tower Road connects the Cook Property to a county road and runs through property owned by Jay and Shelli Van Orden.

The Cooks filed suit against the Van Ordens claiming a prescriptive easement across the Van Ordens’ property via Tower Road. The district court ruled in the Van Ordens’ favor, holding that because the Cooks’ longstanding use of the land was not adverse, it need not address the remaining elements of a prescriptive easement. The Cooks appeal to this Court, contending that the district court erred in finding their family's use of Tower Road was with implied permission and in not addressing the remaining elements. For the following reasons, we reverse and remand.

I. FACTS AND BACKGROUND

A. The Lay of the Land

Shelley and Roger Cook (collectively, the "Cooks") sought to establish easement rights for ingress and egress to their property (the "Cook Property") across the land owned by Dexter Van Orden and Jay and Shelli Van Orden (the "Van Orden Property"), via Tower Road. Tower Road connects the Cook Property to a county road at 1129 South 10th East in Bonneville County. Tower Road also runs through the property of Merrill and Bethea Hanny, follows the border between the property of the Hannys and the property of Donald and Kathy Allen, runs through the Van Orden Property, and then passes through a corner of the property of Lavar and Jeanette Grover.¹ The Hannys, the Allens, the Coxes, the Van Ordens, and the Grovers are all owners of servient estates to the alleged easement over Tower Road. A side road, which cuts away to the east from Tower Road and then rejoins Tower Road north of the Grover property is referred to as the "Cut Out Road." See Figure 1, infra .

Figure 1. Map of Tower Road and Adjacent Properties

B. The Dominant Estate

In 1907, John Ray Harker ("John Harker Sr."), Shelley Cook's grandfather, homesteaded 160 acres in Bingham County. John Harker Sr.’s widow, Sarah M. Clark, was granted title to the Cook Property pursuant to the Homestead Act by U.S. President Warren G. Harding on June 23, 1922. John Harker Jr., Shelley Cook's father, dry-farmed the Cook Property until 1962. Over the years since, it has been conveyed to various family members before Shelley and Roger Cook obtained ownership in 2017. Shelley Cook was formerly Shelley Harker.

From 1962 until the late 1980s, John Harker Jr. leased the Cook Property to Allen Thompson, son of George Thompson. Allen Thompson and his son, Ted Thompson, dry-farmed the Cook Property. In the late 1980s, the Cook Property was leased to the U.S. Government through the Conservation Reserve Program (the "CRP Program"). Ted Thompson put the Cook Property into the CRP Program, reseeded the property following CRP requirements, and continued to lease the Cook Property through 2018. The Cooks visited the Cook Property approximately 10 times per year when it was in the CRP Program to ensure it complied with the necessary requirements.

C. The Servient Estate

In 1910, George Thompson purchased the land that is now the Van Orden Property, the Grover Property, and additional land south of the Cook Property. In 1968, George Thompson died. Gwen Thompson Wilts, one of George Thompson's daughters, inherited what is now the Van Orden Property. Another daughter, Afton Thompson Squires, inherited what is now the Grover property. She sold it to the Grovers in 1998. Gwen Thompson Wilts appointed her brother Allen Thompson, and later his son Ted Thompson, to act as agents for her property. Allen and Ted Thompson dry-farmed Wilts’ property from early 1962 until 1993. In 1993, Ted Thompson placed Wilts’ property into the CRP Program, where it remained until 2014. During this time, the Thompsons continued to manage the property on Wilts’ behalf. In approximately 2015, the Longhursts purchased Wilts’ property. In 2016 or 2017, the Van Ordens purchased the property from the Longhursts.

D. Tower Road and the Van Orden Property

Tower Road takes its name from radio towers, which were built on land that was once part of the Van Orden Property. The district court made the following findings of fact regarding the use of Tower Road and the Van Orden Property.

From 1962 until the late 1980s, the Thompson family dry-farmed what is now the Cook Property, the Van Orden Property, and the Grover Property. In the spring they ran sheep over the three properties. The portions of those properties "that were not farmable were populated by wild sage brush [sic], quaking aspen, juniper trees, and rocks." Tower Road was the fastest and safest route from Ted Thompson's house to the three properties and the Thompsons’ primary access to what is now the Cook Property. Ted Thompson removed the sagebrush from the flatter areas of what is now the Van Orden Property to dry-farm the land.

At least by the 1960s, a wire gate existed near the base of Tower Road (referred to as the "farmer's gate"). The farmer's gate was not locked and could be opened by anyone. From the 1960s until the late 1980s, John Harker Jr. and his family used the farmer's gate to enter Tower Road. Ted Thompson and his son, Matthew, would occasionally stop strangers on what is now the Van Orden Property and either give them permission to use the property or turn them away. However, the Thompsons did not stop the Harkers because they believed the Harkers had a right to use Tower Road to access their property. "Shirley Thompson, who married Ted Thompson in 1972, knew the Harkers as ‘good people’ who were allowed to use Tower Road because they owned property in the area." When the Grovers used Tower Road, "it was by permission from the Thompson family." In the mid-1980s, Ted Thompson cut a shallow road, the Cut Out Road, and the Thompsons drove tractors, pickups, and horse trailers over the Cut Out Road.

Around the late 1980s, Ted Thompson erected a heavy metal gate at the base of Tower Road after the Bonneville Power Administration requested that he replace the farmer's gate with a sturdier gate to help keep out trespassers. The Bonneville Power Administration paid for the materials used to erect the gate. This new gate was locked, but the Thompsons gave gate keys to the Bonneville Power Administration, the radio tower owners, and the Harkers. Later, each put their own lock in a series of locks on the chain. If the Harkers forgot their key when using Tower Road, they would drive around the gate or access Tower Road via the Idaho Falls Country Club.

What is now the Cook Property was originally leased to the U.S. Government through the CRP program in the late 1980s, and the Thompsons continued to lease the property through 2018. During that time, the Cooks visited their property on average 10 times per year "to ensure it complied with the necessary requirements."

After the Longhursts purchased what is now the Van Orden Property in 2015, Roger Cook called Mr. Longhurst in the fall of 2016 to request a lock on the gate near the base of Tower Road to access the Cook Property. Longhurst was busy and could not discuss the matter. Months later, in the spring of 2017, Roger Cook reached out again, and Longhurst explained he had sold the property to the Van Ordens. The Cooks did not use Tower Road during the brief time the Longhursts owned the property.

At the time the Van Ordens purchased their property, it was only partially enclosed by a fence. The Van Ordens completely enclosed their property with a fence in the summer of 2017 and placed a new lock on the gate at the base of Tower Road. They also installed a gate at the border between the Van Orden property and the Grover property. The Van Ordens maintain they are willing to grant the Cooks permission to use Tower Road so long as the Cooks request permission in advance. The Cooks, however, desire free access and assert they have acquired a prescriptive right to use Tower Road.

E. Procedural History

On July 17, 2017, Helen Thompson, as trustee of the Harker Family Trust, filed a complaint against Jay and Shelli Van Orden (husband and wife) and Dexter Van Orden (Jay's son) to quiet title to Tower Road. Shelli, Jay, and Dexter Van Orden answered the complaint and counterclaimed seeking to quiet title to their own property. After Helen Thompson answered the counterclaim, Shelley and Roger Cook substituted in as the plaintiffs. While the record does not state why the...