"The case centers upon a .8-mile stretch of road extending across land of Sorensen (Robinson Bar Ranch). The stretch was part of a segment of a historic road which segment was on the south side of the Salmon River. The segment is known as Robinson Bar Road. The historic road was from Clayton to Stanley. Its inception in the segment was upon federal lands and predated the patent of Robinson Bar Ranch to Chase A. Clark. The .8-mile stretch of road was not excepted from the patent. (An unusual intrusion on ordinary symmetry appears in the patent as a rectangular strip of federal land about 33 feet wide protruding from the federal government's warm springs area to the south into the Robinson Bar Ranch to an end line proximate to the stretch of road within the ranch; hereinafter instrusion.) Over the years, the historic road became known as State Highway 75. In early 1939, the segment was replaced by construction of a new segment on the north side of the Salmon River in connection with modernization of the entire highway between Stanley and Challis. Custer County, on May 16, 1939, ordered abandonment of most of the replaced segment and published the record of its action in the May 24, 1939, issue of the Challis Messenger, a weekly newspaper published in Challis. The replaced segment commenced upstream at a bridge near Mulley Creek; proceeded 2 miles to the ranch; . 8 miles through the ranch; and 7.6 miles downstream to Slate Creek. Warm Springs Creek is just within the upstream boundary of the ranch. The abandoned portion was from Warm Springs downstream to Slate Creek.
"Since the order of abandonment, Custer County has accomplished no work on the segment known as Robinson Bar Road. The county determined to abandon the portion of the segment in May, 1939, and has since (up to September 1981, when it declared the road to be a public road) acted accordingly. There was an abandonment in fact, and substantial compliance with the provisions of then I.C. 40-501.
"Under the law, the abandonment caused extinguishment of the public nature of the road. Title to the land involved in the abandoned road became fee simple in the owners of the land abutting the roadway. The only road rights which could exist would be private, not public.
"The issues of the case commence with the abandonment of the portion from Warm Springs to Slate Creek.
"The action stems from the county's September 16, 1981, declaration that the road is a public road and a quiet title action against the world (except the United States of America) based on said declaration to establish the road as public. The county's declaration was premised upon:
"1. The maintenance of the road since June, 1939 was by the Forest Service and its subunit, Sawtooth National Recreation Area; hence, a road worked and kept up at the expense of the public;
"2. The public has used the road as a highway since its abandonment in June, 1939.
"3. I.C. 40-202 (formerly I.C. 40-103) which read:
" 'Recorded and worked highways.--Roads laid out and recorded as highways, by order of a board of commissioners, and all roads used as highways for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public, or located and recorded by order of a board of commissioners, are highways. Whenever any corporation owning a road or bridge is dissolved, or discontinues the road or bridge, the bridge or road becomes a highway.' (Emphasis added).
"The individual plaintiffs are aligned with the county. In their separate actions they claim alternatively:
"1. The stretch of road is public:
"a. perforce I.C. 40-202;
"b. perforce 43 U.S.C. 932.
"2. Plaintiffs each have private easements.
"The private plaintiffs do not have their claims to private easements consolidated in this cause. 1
"The United States of America (Forest Service) has not submitted to jurisdiction of this court for adjudication of any of its rights. Thus the court will be viewing relevant Forest Service rights, conduct, and intentions in connection with the use and maintenance of the abandoned road; but not adjudicating such rights. At some point in time, the road acquired a Forest Service road designation of 70454. The 2-mile stretch from the upstream bridge, Mulley Creek, to the ranch was 70454(1); the .8-mile ranch stretch was 70454(2); the 7.6 mile stretch downstream to Slate Creek was 70454(3).
"Since the Forest Service was the owner of the land on which two stretches existed, separated by the ranch-owned stretch, we will be viewing the stretches as units. Also, since the 'public easement' statute, I.C. 40-202, (formerly I.C. 40-103) and the 'abandonment by non-use' statute, I.C. 40-203 (in part formerly I.C. 40-104) deal in ... 'a period of five (5) years ..'; issues will also involve time periods.
"The ultimate facts will be whether or not for any five year period the road across the ranch was used as a highway and was worked and kept up at the expense of the public; and if so, whether thereafter the road was not worked or used for a five year period.
"There is more to the law than meets the eye by a reading of I.C. 40-202. Justice Bakes' opinion in Tomchak v. Jefferson County , 700 P.2d 68 (1985) averted to the extensive variations of circumstances that can be encountered in a dispute concerning application of the public easement aspect of I.C. 40-202. It appears from a reading of other cases, commencing with the old and proceeding to the more recent of the Idaho Supreme Court and Idaho Court of Appeals concerning public acquisition of road easements, that there has been a change of thinking; from, simply, public funds expended for maintenance, plus public use, equals public prescription--to more complex inquiries, including:
" '... frequency, nature and quality of the public's use and maintenance of the road and the intentions of the landowners and county relevant to the use and maintenance.' Tomchak, supra, [700 P.2d] at 70.
"In a case such as the one at bar, wherein property is sought to be taken or confirmed as taken, consideration of the intentions of the public agency expending funds and of the landowner relevant to the use and maintenance is necessarily the minimum
substantive due process of law requires. To elucidate: were the Federal Government to assert it had adversely acquired rights to the road across the ranch, it would be required to pay just compensation. See: United States v. Wood, 466 F.2d 1385 (9th Cir.1972). It is thought an underlying basis for a 'taking' by a state entity under I.C. 40-202 is that the expenditure of public funds on such road is compensation. The Idaho Court of Appeals stated in Cordwell v. Smith, 105 Idaho 71 (App.1983) at 76 :
" 'By the expenditure of public funds the state never intended to create any greater public right to the road than was granted by the Cordwells. It is presumed that the state received the benefits for which it contracted. Under these circumstances, we do not believe that I.C. 40-103--as construed in [State v.] Nesbitt [79 Idaho 1, 310 P.2d 787 (1957) ], supra--would apply.
" 'We hold that where the public agency expending funds on a roadway expressly recognizes the private character of the road, and does not intend to create or to assert any greater rights than those allowed by the owner of the roadway, I.C. 40-103 does not operate to make the road public ...' 2
"In late May or early June of 1939 (approximately the time of every year receding snows permitted travel on the road, Beulah Reeves (who managed the ranch for the owners, Chase A. Clark and Jean Clark, his wife) arrived at the ranch. Beulah was a half sister to Jean Clark. In later years, Beulah acquired an interest in the ranch; one third in 1945 or 1946, increased to one-half in 1950. She retained an interest until 1970. The ranch became a guest ranch in 1920 and continued to be until purchased by Sorensen in 1981. Except for a few winters, the operation was basically Memorial Day through Labor Day.
"Beulah and the then-owners, subsequent interest-holders with Beulah, and other successors-in-interest until Bruce LeFavour acquired the ranch in 1975, did not know of the County's abandonment of the road. Beulah's recollections upon seeing the Forest Service initially appear at the ranch with a road grader were: she never gave it a thought in a public road context; believed the Forest Service had an easement for a fireguard, for planting fish in Warm Springs Creek which flowed to and through westerly portions of the ranch, and for a forest trail. Beulah's conceptual easement commenced from the road on the ranch at a driveway leading into the swimming pool and lodge area and proceeded southerly through the ranch into the Forest Service's warm springs drainage. The easement basically would be over the intrusion, a narrow strip of federal land hereinbefore mentioned. Beulah was aware of the Forest Service keeping a tool shed alongside the...
