John W. Brown Properties v. Blaine County

• Decision Date: 05 February 1997
• Docket Number: No. 21461,21461
• Citation: John W. Brown Properties v. Blaine County, 932 P.2d 368, 129 Idaho 740 (Idaho App. 1997)
• Parties: The JOHN W. BROWN PROPERTIES a joint venture, composed of John W. Sweet, as the Managing Agent, Dorothea S. Dowd, Gary G. Hill, Elizabeth Luthy, John R. Sweet, Roy B. Dowd, Nancy Dowd Shortridge, William Dowd, Myron B. Dowd, Jr., and Sally D. Contero, Plaintiffs-Appellants, v. BLAINE COUNTY, State of Idaho, and the Board of County Commissioners of said County, said board Consisting of: Tom Blanchard, Rupert House, Leonard Harlig, and A.W. (William) Molyneux and Maxine Molyneux, husband and wife, and the Molyneux Family Partnership, composed of A.W. (William) Molyneux, and Maxine Molyneux, husband and wife, Clyde Leslie Molyneux and Connie D. Molyneux, husband and wife, and John Ivan Molyneux and Kristy Molyneux, husband and wife, and C.E. Molyneux and Ingaborg Molyneux, husband and wife, and X and Y Corporation, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 368

932 P.2d 368

129 Idaho 740

The JOHN W. BROWN PROPERTIES a joint venture, composed of John W. Sweet, as the Managing Agent, Dorothea S. Dowd, Gary G. Hill, Elizabeth Luthy, John R. Sweet, Roy B. Dowd, Nancy Dowd Shortridge, William Dowd, Myron B. Dowd, Jr., and Sally D. Contero, Plaintiffs-Appellants, v. BLAINE COUNTY, State of Idaho, and the Board of County Commissioners of said County, said board Consisting of: Tom Blanchard, Rupert House, Leonard Harlig, and A.W. (William) Molyneux and Maxine Molyneux, husband and wife, and the Molyneux Family Partnership, composed of A.W. (William) Molyneux, and Maxine Molyneux, husband and wife, Clyde Leslie Molyneux and Connie D. Molyneux, husband and wife, and John Ivan Molyneux and Kristy Molyneux, husband and wife, and C.E. Molyneux and Ingaborg Molyneux, husband and wife, and X and Y Corporation, Defendants-Respondents.

No. 21461.

Court of Appeals of Idaho.

Feb. 5, 1997.

James Annest, Burley, for plaintiffs-appellants.

Douglas A. Werth, Blaine County Prosecutor, Hailey, for defendant-respondent Blaine County.

Hogue, Speck & Aanestad, P.A., Ketchum, for defendants-respondents Clyde Leslie and Connie D. Molyneux. Terry G. Hogue argued.

LANSING, Judge.

In this action the plaintiff sought a declaration that a road connecting its property to a highway is a public roadway. The district court granted the defendants' motion for summary judgment. This appeal requires that we decide whether the district court incorrectly refused to consider a legal theory which the plaintiff contends was raised in its complaint but which the court determined was not pleaded. We conclude that the complaint was sufficient to raise the theory urged by the plaintiff in opposition to the defendants' summary judgment motion and that genuine issues of fact relating to that theory preclude summary judgment. Therefore, we reverse and remand.

I. FACTS AND PROCEDURAL BACKGROUND

Viewing the evidence in the light most favorable to the plaintiff-appellant, the facts underlying the litigation are as follows. The plaintiff in this action, John W. Brown Properties (Brown), is a joint venture. It owns Grove Ranch, a tract of land that lies south of Baseline Road, a main highway in Blaine County. The ranch is accessible by means of an unpaved stretch of gravel road, called Grove Road, which runs southward from the highway and along the east boundary of a parcel owned by the Molyneux Family Partnership and individual members of the Molyneux family (referred to collectively as Molyneux). Molyneux blocked Brown's access to Grove Ranch in the spring of 1990, after discovering that Brown was planning to sell two parcels of the ranch to a developer. According to the complaint, Molyneux constructed and locked a steel gate at the entrance to Grove Road where it intersects with the highway. Molyneux also posted at the gate signs which said "no trespassing," and "private property." Brown asked Blaine County to intervene and re-open Grove Road, which Brown asserts is a county road. The county, however, declined to take any action. Brown then initiated this action against Molyneux, Blaine County and the Blaine County Commissioners seeking a judicial declaration that Grove Road is a public roadway, an order enjoining obstruction of the road by Molyneux, and a judgment against Molyneux for damages caused by placement of the gate on the road.

The defendants each filed a motion for summary judgment against Brown. The district court granted the motions. The court concluded that the allegation of Brown's complaint that Grove Road had been "established and dedicated" as a public roadway before 1900 had been disproven by the defendants and that the evidence presented by Brown related to a new theory, not raised in its complaint, that the road was made public through long-term public use and public maintenance. The court held that because Brown's theory based on public use and maintenance, proffered in response to the summary judgment motions, had not been pleaded in the complaint, this theory could not be considered on summary judgment. Rather than moving in the district court for leave to amend its complaint, Brown filed this appeal.

Brown argues on appeal that its theory that the road became a county road through use by the general public and maintenance by the county, which was disregarded by the district court, was raised in the complaint and that evidence presented on the motion for summary judgment regarding this theory framed genuine issues of material fact.

II. ANALYSIS

Summary judgment is proper if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c); Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). When a court assesses a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Tusch Enterprises v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987). Likewise, all reasonable inferences which can be drawn from the record must be drawn in the nonmovant's favor. G & M Farms, 119 Idaho at 517, 808 P.2d at 854; Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 876 P.2d 154 (Ct.App.1994). The burden of proving the absence of an issue of material fact rests at all times upon the moving party. McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991); G & M Farms, supra. Nevertheless, when a motion for summary judgment has been properly supported with evidence indicating the absence of material factual issues, the opposing party's case must not rest on mere speculation, and a mere scintilla of evidence is not enough to create a genuine issue of fact. McCoy, 120 Idaho at 769, 820 P.2d at 364; G & M Farms, 119 Idaho at 517, 808 P.2d at 854. On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct.App.1986).

A disputed fact will not be deemed "material" for summary judgment purposes unless it relates to an issue disclosed by the pleadings. Argyle v. Slemaker, 107 Idaho 668, 669-70, 691 P.2d 1283, 1284-85 (Ct.App.1984); Bennett v. Bliss, 103 Idaho 358, 360, 647 P.2d 814, 816 (Ct.App.1982). It was in reliance upon this rule that the district court granted summary judgment to the defendants. Therefore, on review we must first determine whether Brown's complaint was sufficient to raise the theory of creation of a public roadway that Brown advanced in the summary judgment proceedings and, if so, whether Brown demonstrated the existence of genuine issues of fact relating to that theory.

Brown contends that Grove Road was rendered a public roadway through public use and maintenance by terms of I.C. § 40-202. That statute, as it existed at the time Brown filed its complaint in 1993, provided in pertinent part:

I.C. § 40-202--Designation of highways.

....

(2) If a county or highway district acquires an interest in real property for highway purposes, the respective commissioners shall:

(a) Cause any order or resolution enacted, and deed or other document establishing an interest in the property for their highway system purposes to be recorded in the county records; or

(b) Cause the official map of the county or highway district system to be amended as affected by the acceptance of the highway.

....

(3) Highways laid out, recorded and opened as described in subsection (2) of this section, by order of a board of commissioners, and all highways used 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.

I.C. § 40-202 (supp.1992). ¹ Under these provisions, public highways may be created by three means: (1) A public road is created if it is laid out, recorded and opened as a highway in the manner described in I.C. § 40-202(2), which includes either recordation of any order, resolution or other documents establishing the county's interest in the property for a highway system or inclusion of the road on the official map of the county or highway district system; (2) A road may become a public road if it is publicly used and maintained at public expense for a period of five years; (3) A road will be deemed public if it is used by the public for a period of five years and is located and recorded by order of the county commissioners. ² See Burrup v. Stanger, 114 Idaho 50, 52, 753 P.2d 261, 263 (Ct.App.1988), modified, 115 Idaho 114, 765 P.2d 139 (1988).

In this case, the district court concluded that the Brown complaint alleged the establishment of Grove Road as a county road based only on the methods which require recordation by the board of commissioners and that the complaint did not plead a theory based on the second statutory method, public use and county maintenance. The defendants established, through affidavits, that there was no recorded document indicating the acceptance or creation of a public right of way over Grove Road by the commissioners of Blaine County or its predecessor, Alturas County. When Brown failed to refute this evidence of lack of recordation, the district court granted summary judgment. In so doing, the district declined to consider evidence offered by Brown that Grove Road had been used by the public and maintained by the county for several decades, and had thereby become a county road under the second method described in I.C. § 40-202. The court deemed such evidence to be immaterial because it related to a theory of public road creation that was not pleaded in the complaint.

In the court below and on appeal Brown has argued that the allegation in its complaint that Grove Road was "established and...