Cordwell v. Smith

• Decision Date: 07 June 1983
• Docket Number: No. 13970,13970
• Citation: 105 Idaho 71,665 P.2d 1081
• Parties: Robert W. CORDWELL and Dorothy W. Cordwell, husband and wife, Plaintiffs-Respondents, v. James SMITH and Teresa Smith, husband and wife, et al., Defendants-Appellants.
• Court: Idaho Court of Appeals

Page 1081

665 P.2d 1081

105 Idaho 71

Robert W. CORDWELL and Dorothy W. Cordwell, husband and wife, Plaintiffs-Respondents, v. James SMITH and Teresa Smith, husband and wife, et al., Defendants-Appellants.

No. 13970.

Court of Appeals of Idaho.

June 7, 1983.

Richard Wallace, Coeur d'Alene, for appellants.

Samuel Eismann, Coeur d'Alene, for respondents.

ON DENIAL OF PETITION FOR REHEARING

SWANSTROM, Judge.

The Cordwells brought this quiet title action to extinguish the claims of defendants who were asserting a right to use certain roadways crossing the Cordwells' property. The defendants contended that the roads provided the only reasonable access to their nearby properties. The trial court found that only one defendant had acquired a right to cross the Cordwells' property, and entered a judgment quieting title in the Cordwells against the claims of the other defendants. Not all of the defendants chose to appeal from the judgment. Only those who did are listed in the caption of this opinion.

The issues raised by appellants are: (1) Was the trial judge correct in concluding that there was no public roadway across the Cordwells' property as the result of prior use and expenditure of public funds for maintenance? (2) Did the court err in concluding appellants had not acquired easements by implication either from (a) apparent continuous use or (b) as a way of necessity? (3) Did the judge err in refusing post-trial requests of appellants that he (a) view the alternate access route and (b) permit appellants to reopen the trial so they could put in proof concerning estimated costs of improving and maintaining the alternate access road for year-round travel? Because we find no reversible error in the trial court, the judgment quieting title in favor of the Cordwells is affirmed.

The record shows the following background facts. The Cordwells own about three hundred twenty acres at the bottom of Little Baldy Creek Canyon in Kootenai County, Idaho. The property is located a few miles south of Interstate Highway 90 near the towns of Cataldo and Kingston. There is a public road leading from the Interstate at Cataldo southwesterly to Latour Creek where it crosses a northern corner of the Cordwell property. The Cordwells use this Latour Creek public road to reach their lands.

There is another, more circuitous way to Little Baldy Creek Canyon, over a system of roads beginning at Kingston. A public road from Kingston goes up French Gulch in a southerly direction, thence westerly to the vicinity of Frost Peak. Frost Peak lies a few miles to the south of the Cordwell property, above the head of Little Baldy Creek canyon. An old logging road--called the Nordstrom road--leaves the public road in the vicinity of Frost Peak and descends northward through the steep forested canyon, onto the Cordwell lands, where it joins the Latour Creek road on the northern corner of the property. We will call this way the French Gulch route.

The Nordstrom road and two other old logging roads come together on the Cordwell property near the Latour Creek county road. One, the Mack road, runs easterly from the fork. The other two, the Ladd road and the Nordstrom road generally parallel Little Baldy Creek. These three roadways are the focus of this lawsuit. They were built and extended at several times, starting about 1930, as haul roads for the timber that was logged from the canyon.

Appellants own various small parcels of land to the south and east of the Cordwell property. They assert a right to use the Ladd, Mack and Nordstrom roads across the Cordwell property in order to gain access to their properties from the Latour Creek county road. On the other hand, the Cordwells claim ownership of the roads, contending that the roads are private, and that appellants have no right to use them. All three of the roads were, and still are, narrow, one-lane, primitive mountain roads. They were built by loggers and were named after the persons who helped in their construction. There was testimony that the Mack road was built in 1930 by Mack so he could log timber along the road. There was other testimony that the Ladd and Nordstrom roads were started in 1934 by Ladd and finished later by Nordstrom in the 1940's.

The part of the Cordwell property through which the three roads run was once owned by Ole Ladd and his wife. Ladd, a logger, at one time lived on Little Baldy Creek. Ladd constructed some of the roads; and he permitted other loggers to use them and to build additions to them. Nordstrom was one such logger. Over the years as the logging progressed, he pushed the Nordstrom road higher up the canyon until it eventually met the public road near Frost Peak. In 1946 Ladd charged Nordstrom ten cents per thousand board feet for the privilege of logging over the Nordstrom road. As a result of this logging activity there are many old spur logging roads branching off the Nordstrom road above the Cordwell property.

By 1950 Ladd had acquired other lands in Little Baldy Creek Canyon to the south and east of what is now the Cordwell property. In 1951 Ladd sold the 320 acres on the east to Russell & Pugh Lumber Company. In March, 1954, Ladd sold 280 acres on the south to the same purchaser. Finally in July, 1954, he sold all of his remaining property to buyers named Turcottes. This latter piece, some 240 acres, went through a series of subsequent transfers, until it was purchased by the Cordwells in November, 1968. No mention was made of access roads in any of the original conveyances by Ladd.

The first two parcels sold by Ladd in 1951 and 1954 to Russell-Pugh went through several later transfers. The subsequent owners divided these tracts and some adjacent property into pieces and advertized them for sale in a national sporting magazine. Some pieces were as small as ten and twenty acres. The appellants were among those persons who responded to this advertising and who purchased small tracts to the south and east of the Cordwell property in 1969 or the early 1970's. The trial judge found that all of the appellants, except one, acquired their properties "sight unseen." Most of the appellants testified to a belief that the Nordstrom road was a public road, but none of them had inquired about the validity of the access to their property over the roadways in question.

The Cordwells, on the other hand, who bought their property in two separate purchases in 1968 and 1969, have always insisted that the so-called Mack, Ladd, and Nordstrom roads on their property were private. The Cordwells did not live on the property. They attempted to control the use of the roads by others by installing a locked gate on their property near the Latour Creek road but these efforts were ineffective. They had a caretaker for a time in an attempt to curtail trespassing and vandalism.

When the appellants and others continued to assert a right to use the roads, the Cordwells brought this action to quiet title. The defendants filed counterclaims setting forth several theories to support their claims of right to use one or more of the three roads. As noted above, when the trial court ruled against all defendants but one, this appeal followed.

I

Appellants assert that the trial court erred in failing to hold that the Nordstrom road had become a public road, due to its use by the general public for a period longer than five years, coupled with the expenditure of public funds for its maintenance. ¹ Idaho Code § 40-103 provides in part as follows Roads laid out and recorded as highways, by order of the board of commissioners, and all roads used as such for a period of five (5) years, provided the latter shall have been worked and kept up at the expense of the public, or located and recorded by order of the board of commissioners, are highways.

Appellants do not contend any of the three roads were ever "laid out and recorded as highways." However, that is not necessary before they can become public roads. All that is necessary is that a road be used by the public for five years or longer and that they be "worked and kept up at public expense." State v. Nesbitt, 79 Idaho 1, 6, 310 P.2d 787, 790 (1957).

It is not disputed that the Idaho Department of Public Lands has conducted timber sales, forest management practices, and fire suppression activities in the area of Little Baldy Creek drainage. Appellants established that during the ten years preceding the trial (1970-80), the department expended public funds, estimated at $100 per year in the value of labor and equipment, to maintain the Nordstrom road. This maintenance consisted of opening culverts, clearing brush and fallen trees, and occasionally grading the road surface.

It was also undisputed that for many years members of the general public have traveled on the Nordstrom road from the Latour Creek road and have crossed what is now the Cordwell property for the purpose of hunting, recreation, and woodcutting. The evidence shows that the owners of the Cordwell property gave permission to some people for such uses. Other users testified at trial they believed the road to be public and obtained permission from no one. Some users testified to encountering a gate or cable across the lower road but they went through anyway.

Appellants contend that their proof of the use of the Nordstrom road by the public for over five years and the expenditure of public funds in its maintenance is sufficient, under the ruling in State v. Nesbitt, supra, to establish that the road is public. The trial court disagreed, and so do we.

The trial court found that the state's use of labor and equipment on the Nordstrom road was done largely to provide the state with access into the area in the event of forest fires. It also gave the state more convenient access to its own timber lands in the area. The state, however, did not assert any public ownership or control over the road through the Cordwell property. Neither the county nor any other public agency...