Easley v. Lee

• Decision Date: 30 June 1986
• Docket Number: No. 15525,15525
• Citation: Easley v. Lee, 721 P.2d 215, 111 Idaho 115 (Idaho 1986)
• Parties: Donald EASLEY and David Easley, Plaintiffs-Appellants, v. R.W. LEE and Irene Lee, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 215

721 P.2d 215

111 Idaho 115

Donald EASLEY and David Easley, Plaintiffs-Appellants, v. R.W. LEE and Irene Lee, husband and wife, Defendants-Respondents.

No. 15525.

Supreme Court of Idaho.

June 30, 1986.

Fred R. Palmer, Sandpoint, for plaintiffs-appellants.

Charlton Mills, Sandpoint, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a summary judgment granted defendants-respondents Lee in an action brought for an injunction and damages for trespass by Lees' cattle on the property of plaintiffs-appellants Easley. We affirm.

The Easleys own approximately 300 acres of land in the west half of a section in Bonner County, and the Lees own approximately 300 acres in the east half of that section of land. The north-south center line of the section constitutes their common boundary line. In 1964 Brennen, Easleys' predecessor in interest, and the Lees built a fence along their common boundary line. The southern half of that fence was maintained by the Lees and the northern half maintained by Brennen. The Easleys purchased the Brennen property in 1972.

From 1964 to the present time the Lees have continued to maintain the southern half of the fence. In 1973 a fire burned a portion of the Easleys' land destroying the northern half of the common boundary fence and much of the fence along the northern boundary of the Easley land. The Easleys changed the use of the northern portion of their property from pasture land to a tree farm, and consequently the Easleys did not restore the destroyed fences. Following the destruction of the northern portion of the common boundary fence, the Lees' cattle began entering into the Easleys' property during periods of 1973 and 1984. There appears no question but what both the Easley and the Lee land constituted open range, and in 1975 the Easleys initiated steps to create a herd district which would include the Easleys' land but not the land of the Lees.

A hearing was held on a petition to create a herd district at which time the Lees objected to the creation of a herd district on the basis that the Easleys had not restored the fire-destroyed fence and hence the Easley land was not inclosed by a legal fence. The petition for the formation of the herd district stated: "Provided, the said district shall not apply to livestock, except swine, which shall roam, drift or stray from open range into the district, unless the district shall be inclosed by a lawful fence and cattle guards on roads penetrating said district." At the hearing the Easleys objected to the inclusion of the above-quoted language in the herd district petition, and thereafter the county commissioners, in an order creating the Freeman Lake Herd District, deleted the above-quoted language from the order creating the herd district.

The order creating the herd district did not include the land of the Lees, but did include the land of the Easleys. Hence, a portion of the outer boundary of the created herd district constituted the common boundary line of the Lee/Easley lands, running along the center line of the section. Hence, the Lees' land remained open range abutting directly against the Easleys' land which lay within a herd district.

The Lees' cattle continued to enter upon Easleys' land, and the Easleys filed this action seeking declaratory relief, injunctive relief, and damages. A hearing was held upon an order to show cause why a preliminary injunction should not issue restraining the Lees from allowing their cattle to enter upon the Easleys' land, and why the Lees should not be required to fence in their cattle. At the hearing on the order to show cause the facts were not in dispute and were stipulated to by the parties.

Following the hearing and based on the stipulated facts, the court held that the Lees' property was open range, that the order creating the herd district but omitting the requirement of a legal fence around the herd district was in conflict with statutory law, and hence the Lees could not be required to fence their cattle in but rather if a fence to keep the Lees' cattle off the Easleys' property was constructed it was the responsibility of the Easleys.

Thereafter the Lees moved for dismissal of the action, which motion was converted to one for summary judgment, which was granted in favor of the Lees on the basis of the above holdings of the district court. Although other peripheral issues remained, the district court certified the partial summary judgment for an appeal.

As above-noted, the facts herein are not in dispute, and through this summary judgment we deal with a question of law of first impression, i.e., when open range land and herd district land meet at a common border between two landowners, which owner, if either, is required to construct a legal fence.

The stipulated facts presented by the parties do not indicate that the Lees' land is, or ever had been, inclosed, the court noting, "only a fence of sorts along the common boundary line of the properties," existed. The facts indicated that Lees' land is not within a city or village. The record indicates that livestock has been grazed or permitted to roam on Lees' land "by custom, license or otherwise since at least 1964."

I.C. § 25-2402(3) provides: "Open range means all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam." Although the statute was amended in 1985, the above definition of open range was not altered. Hence, we hold the district court was correct in its...