Evans v. Jensen

• Decision Date: 08 December 1982
• Docket Number: No. 13850,13850
• Citation: 655 P.2d 454,103 Idaho 937
• Parties: Rex T. EVANS, Plaintiff-Respondent, and Gerald D. Scott, Additional Necessary Plaintiff-Respondent, and Mildred Evans and Donna Scott, Additional Plaintiffs-Respondents, v. Duane JENSEN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 454

655 P.2d 454

103 Idaho 937

Rex T. EVANS, Plaintiff-Respondent and Gerald D. Scott, Additional Necessary Plaintiff-Respondent and Mildred Evans and Donna Scott, Additional Plaintiffs-Respondents, v. Duane JENSEN, Defendant-Appellant.

No. 13850.

Court of Appeals of Idaho.

Dec. 8, 1982.

J.W. Crowther, Malad City, and Clark Gasser and Steven Richert, of Green, Service, Gasser & Kerl, Pocatello, for defendant-appellant.

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

SWANSTROM, Judge.

Rex Evans sued R. Duane Jensen, seeking an injunction to restrain him from obstructing a roadway and underpass leading through Jensen's land to Evans' property. Evans also sought damages caused by Jensen's obstruction of the road and by his removal of a cattle guard installed by Evans. Evans claimed a right to use the road as a public thoroughfare. Jensen counterclaimed seeking a declaration of his exclusive right to use the road and underpass and damages for Evans' alleged harassment of Jensen and his family. Several years after the suit was filed, Evans sold his property to Gerald Scott, whom Jensen brought into the suit as an additional plaintiff. As an alternative basis for relief Scott contended that the plaintiffs had established a right to use the road as a prescriptive easement. Both Evans' and Scott's wives later were joined as parties to the suit.

Without specifying the reasons for its conclusions, the district court held that the plaintiffs had a right to use the road and granted the injunction. The court also awarded Evans damages for removal of the cattle guard. The court dismissed Jensen's counterclaim.

On appeal, Jensen raises several issues. He asserts the judgment should be reversed because the district judge erred: (1) in denying his motion for summary judgment; (2) in not requiring Evans and Scott to elect between their inconsistent theories of (a) the right to use the road as a public roadway or (b) acquisition of a prescriptive right to use the roadway; (3) in allowing evidence which allegedly contradicted the terms of a federal condemnation judgment; (4) by finding that Evans and Scott had the right to use the underpass; (5) in restraining Jensen from using the area around the underpass as a cattle feeding ground; and (6) by requiring Jensen to pay damages for removing the cattle guard.

The facts framing these issues date back to 1961, when the United States condemned parcels of land belonging to Evans and Royal B. Jensen, for construction of Interstate Highway 15. Royal B. Jensen is appellant's father and predecessor in interest. Before the interstate highway was built, Evans had access to his land from U.S. Highway 191 by means of a prescriptive easement running across Jensen's land. The new highway, running parallel to U.S. 191 a few hundred feet to the west, would bisect both properties, cutting off access from the old highway to the portions of the properties lying west of the interstate.

In order to ensure continued access to their properties, both Evans and Royal Jensen hired Glen Fuller, an attorney experienced in condemnation proceedings, to represent them in negotiations with the government. What both landowners wanted from the government was the construction of an underpass, below the new highway, high enough and wide enough to accommodate the passage of livestock and farm machinery. On August 9, 1962, Fuller sent a letter to the U.S. Attorney, stating that a single underpass fourteen feet high and eighteen feet wide would be acceptable to both his clients. Both Evans and Royal Jensen signed the letter stating their acceptance.

In the negotiations Evans and the government agreed upon the price that was to be paid for the land taken from Evans. A judgment was entered as to this parcel, awarding Evans the agreed sum. Jensen and the government could not agree upon the price Jensen was to be paid for his land, so a jury trial was held solely to determine the amount of just compensation. After this trial, a judgment was entered as to this parcel, awarding Jensen the sum awarded by the jury.

In constructing the interstate highway, the government built the requested fourteen by eighteen foot underpass on what had been Jensen's property. The government took fee simple title to the land on which the highway and underpass were built. It also secured easements several hundred feet long and fifty-five feet wide across Jensen's land on both ends of the underpass to provide permanent access. In this opinion we refer to those as the "approach easements." Shortly after completion of construction, the government transferred its interest in the approach easements and the underpass to the State of Idaho. The eastern-most easement terminated at the edge of old U.S. 191, which had become a county road, and the other one joined the old prescriptive easement leading across Jensen's land to Evans' farm. The construction of the highway had obliterated the eastern portion of the old prescriptive easement road. The following sketch for illustrative purposes, is reproduced from one of the exhibits at trial.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As soon as the highway was finished, Evans and Royal Jensen began feuding over Evans' right to use the underpass and the approach easements. Evans contended that he had a right to use the underpass and easements as a public road to gain access to the remaining portion of the old prescriptive easement leading to his land. Royal Jensen claimed that Evans had no such right, because the judgment entered as to the Jensen parcel referred only to Jensen's right to use the underpass.

After years of dispute, Evans filed a civil suit in Oneida County against Jensen claiming that Jensen had blocked his access to his land by storing machinery in the underpass and by allowing his cattle to use it as a loafing shed. The parties resolved that case by stipulation in 1966. Jensen recognized Evans' right to use the old prescriptive easement to get to his land. Moreover, both parties agreed that neither would take any action directly or indirectly to interfere with the other's use of the roadway.

The dispute erupted again in 1970. Evans and Royal Jensen came to blows when Evans removed a portion of the fence across the eastern end of the approach easement and installed a cattle guard in conjunction with the existing gate. The cattle guard was located entirely on county property just at the boundary of the approach easement. In 1972, R. Duane Jensen, became a party to the feud when he purchased his father's interest in the land. Relations between Evans and the younger Jensen rapidly became as sour as those between Evans and Royal Jensen. Evans again claimed that access to his farm was blocked by cattle wintering in the underpass.

These events prompted Evans to file the present suit against Duane Jensen in March of 1975. In May, 1975, he added another count to his complaint after Jensen ripped out the cattle guard. At trial Evans produced evidence that a bulldozer was needed to remove a morass of manure which had accumulated in the underpass during the winter, blocking his access during the spring when he needed to get to his land. Following this trial, the judge issued the restraining order against Jensen and awarded damages to Evans.

I

The first issue raised by appellant concerns the alleged error of the district court in denying his motion for summary judgment. The order of the judge recited "that there are genuine issues of material fact existing." He denied motions for summary judgment filed by both sides.

An order denying a motion for summary judgment is not a final order and a direct appeal ordinarily cannot be taken from it. I.A.R. 11(a). It is also the general rule that an order denying a motion for summary judgment is not reviewable on appeal from a final judgment. All-States Leasing Co. v. Pacific Empire Land Corp., 31 Or.App. 733, 571 P.2d 192 (1977); Fleitz v. Van Westrienen, 114 Ariz. 246, 560 P.2d 430 (Ariz.App.1977). See Annot., 14 A.L.R.3d 896 (1965). The same general rule prevails in federal courts. Boyles Galvanizing & Plating Co. v. Hartford Acc. & Ind. Co., 372 F.2d 310 (10th Cir.1967); Dutton v. Cities Service Defense Corp., 197 F.2d 458 (8th Cir.1952).

We have found just one Idaho case dealing with this issue, Vincen v. Lazarus, 93 Idaho 145, 456 P.2d 789 (1969). In that case the Idaho Supreme Court unanimously affirmed a district court judgment for the plaintiffs, which had been entered following a trial. One of the issues considered in the appeal was the denial of the defendant's motion for summary judgment. In a special concurring opinion, then Chief Justice McFadden and Justice Donaldson expressed "serious doubts" whether the court, on appeal from a final judgment, should review the denial of a summary judgment motion. They gave two reasons. The first they quoted from Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274, 278 (1963):

* * * To deny a review seems to be unjust. But to grant it * * * would be unjust to the party that was victorious at the trial, which won judgment after the evidence was more completely presented, where cross-examination played its part and where witnesses were seen and appraised.

The greater injustice would be to the party which would be deprived of the jury verdict. Otherwise, a decision based on less evidence would prevail over a verdict reached on more evidence and judgment would be taken away from the victor and given to the loser despite the victor having the greater weight of evidence. This would defeat the fundamental purpose of judicial inquiry.

We hold that if a motion for summary judgment is improperly denied the error is not reversible for the result becomes merged in the subsequent trial. 187 N.E.2d at 278.

93 Idaho at 152, 456 P.2d at 796.

For the second reason, the two Justices quoted from Bell v. Harmon, 284 S.W.2d 812, 814...