Jordan v. Ingram

Decision Date15 March 1973
Docket NumberNo. 10494,10494
Citation509 P.2d 324,95 Idaho 339
PartiesJ. Argyle JORDAN, Plaintiff-Appellant, v. L. P. INGRAM and Ruth Ingram, Defendants-Respondents.
CourtIdaho Supreme Court

Wayne L. Loveless, Pocatello, for plaintiff-appellant.

R. Don Bistline, Pocatello, for defendants-respondents.

SHEPARD, Justice.

This action arose from alleged trespass by defendants-respondents herein on property of plaintiff, the appellant here. At the conclusion of plaintiff's case the court granted defendants' motion for non-suit. The District Court stated:

'The Court finds that the facts presented by the plaintiff do not show an injury to and right of relief in the plaintiff as against these defendants or either of them.'

We agree with the finding of the trial court and therefore affirm its action.

Plaintiff and defendants own contiguous real property within the City of Pocatello Idaho. A rough sketch of the relevant properties is included herein to facilitate understanding of the facts which otherwise are difficult to describe.

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

Defendants have owned the property enclosed by the lines connecting A, B, C, D, since approximately 1937. The property shown as C, E, F, G, is 20 ft. x 30 ft. and has also been owned by the defendants for an undetermined period of time. The property C, E, F, G is subject to a public easement as a continuation of the alley running west from North Buchanan Street. The defendants have used that alley as access to their property for many years. Prior to the time that West Clark Street was extended to the southern border of defendants' property the alley was the only access to defendants' property. In order to reach their property defendants utilized the alley, including that portion C, E, F, G and then crossed a small wedge shaped portion of plaintiff's property bounded by the dotted line G, H. It is uncontested that an easement exists across that wedge shaped portion of plaintiff's property. Plaintiff's own testimony indicates that such usage has been carried on for a number of years.

Appellant, in her action claims damage by trespass. In 1967 in order to protect their ability to use the easement across plaintiff's property from falling rocks and erosion the defendants constructed a short ornamental stone wall along the line F, G, H. They also erected a fence around the perimeter of their remaining property. Plaintiff's complaint appears based on her contention that she has been denied ingress and egress to her property by the erection of the stone wall. She further contends that there was a continuation of the alley across a portion of the defendants' property which connected with West Clark Street which as been closed by the fencing of the defendants' property. Plaintiff further alleged that the defendants removed soil from her property and that the ornamental stone wall is located entirely on her property.

It is virtually uncontested that the property of the plaintiff rises very steeply from the area in question herein to the extent that access from the south is virtually impossible.

The evidence is clear that the stone wall erected by defendants has protected and maintained their easement across the wedge shaped piece of plaintiff's property. There is no showing that the erection of the wall has in any way damaged the servient estate of the plaintiff. She in effect admits that ingress and egress from the line F, G, H, would be highly impracticable due to the steepness of the terrain. The owner of an easement has the right to maintain and protect that easement. Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266 (1941); City of Bellevue v. Daly, 14 Idaho 545, 94 P. 1036 (1908). Plaintiff herein has not shown that the erection of the stone wall was for other than maintaining and protecting the easement, nor has she shown that the erection of the wall was not necessary for the maintenace and protection of the easement.

There was no showing that the wall built along the line G, F, was actually located on property of the plaintiff not subject to the easement. The only socalled evidence to that effect was the statement of the plaintiff hereself made without any basis other than her personal belief. Plaintiff did not carry her burden of proof in that regard and hence did not make a prima facie case indicating the existence of trespass by the construction of the wall.

Plaintiff likewise failed to make out a prima facie case on her claim that the defendants obstructed a public roadway which existed over their property. Plaintiff also failed to make a prima facie case that the defendants had removed soil from her property. Plaintiff admitted that she had only a suspicion of such an event and had no evidence to support that suspicion. Such bare allegations are not sufficient to prove a prima facie case.

While plaintiff need only make a prima facie case and need not have a preponderance of the evidence, Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139 (1933), there must be sufficient evidence which will support a jury verdict as being reasonable. Schofield v. Idaho Falls Latter Day Saints Hospital, 90 Idaho 186, 409 P.2d 107 (1965); Callahan v. Wolfe, 88 Idaho 444, 400 P.2d 938 (1965); I.R.C.P. 41(b).

Plaintiff additionally has made numerous allegations of some type of conspiracy but argues on that point from outside the record. The record as presented is the determinative factor on appeal and that record fails to support any of such allegations of the plaintiff.

The record contains no evidence upon which a jury verdict for plaintiff could be sustained as being reasonable and the dismissal by the district court was therefore correct. Beckman v. Beckman, 88 Idaho 522, 401 P.2d 810 (1965); Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952).

A large portion of plaintiff's brief and argument is devoted to a discussion of adverse possession. As this court has recently noted, a distinction must be made between prescriptive easements and adverse possession. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972). Herein only an easement was at issue and no claim of adverse possession appears in the record.

In conclusion we note that the complaint in this case is founded in tort seeking damages for trespass. Plaintiff sought $18,000 in actual damages and $50,000 in punitive damages. Plaintiff demanded and received a jury trial. During the presentation of plaintiff's case no damages of any kind, type or amount were shown, alluded to or proved by plaintiff. Hence, the order entered by the district court dismissing the action was correct.

Upon appeal, plaintiff fails to comply with the rules of this court (Supreme Court Rule 41(2)) and does not set out with distinctness, clarity and specificity what action of the trial court is asserted as error. Rather, plaintiff sets out 'questions presented';

'1. Whether the roadways, now closed by respondents and respondents' associates are dedicated properties according to law;

'2. Whether, as a matter of law, respondents own any private easement on, around, or upon appellant's tract;

'3. Whether by enclosure, obstruction ('boxing'), cultivation or either verbal or physical exercise of dominion, respondents may acquire any right to any portion of appellant's tract through claim of adverse possession.

'4. Whether the admitted trespasses of the respondents, with admitted trespasses of others, sustain appellant's prayer for remanding for further trial with respondents' associates sharing the burden of defense as co-defendants.'

It might be sufficient to state that appellant's 'questions presented' do not constitute any assignment of error as is required by the rules of this court. Secondly, it might be sufficient to state that the content of none of the 'questions presented' bear any relationship whatsoever to the trial of the action which, as aforesaid, was one seeking damages for trespass. Nevertheless, we point out where such 'questions presented' are deficient. At trial no competent evidence was presented in plaintiff's case that any 'roadways' were dedicated.

There is no question but that as adduced in plaintiff's case respondents do own an easement on a certain portion of appellant's tract. As hereinabove pointed out, no question was presented in the trial court of any claim of adverse possession. Of appellant's fourth 'question presented' we can only state such is incomprehensible to this court. Plaintiff's complaint designated only the Ingrams as defendants.

Appellant seeks to convince this court that a tort action for damages grounded in trespass and tried to a jury should somehow be converted to an equitable action involving ingress and egress to appellant's property. At trial Defendant L. P. Ingram was called as an adverse witness by plaintiff and during the course of his interrogation stated that he had offered access to the plaintiff, that such offer was refused and that he stood ready to make access available if so needed in the future. Plaintiff in her testimony specifically confirmed Ingram's offer of access. The issue of access was not before the lower court, is not before this court and will not be treated herein.

The decision of the district court is affirmed. Costs to respondents.

DONALDSON, C. J., McQUADE, J., and BEEBE, District Judge, concur.

BAKES, Justice (dissenting):

Plaintiff-appellant's complaint generally alleges that the defendants-respondents have committed five actionable wrongs against the plaintiff: (1) That the defendants have denied plaintiff ingress and egress to her property from the alley by the erection of the stone wall along line FGH; (2) That the defendants have committed trespass against the plaintiff by the erection of the wall and the planting of flowers to the north of line FGH upon the property of the plaintiff; (3) That the plaintiff has a right of way across the northerlymost portion of the defendants'...

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  • Blackburn v. Boise School Bus Co., 10909
    • United States
    • United States State Supreme Court of Idaho
    • April 4, 1973
    ...41(b) is made in a jury case, it must be treated as a motion for a directed verdict under I.R.C.P. 50(a). Jordan v. Ingram, 95 Idaho --, 509 P.2d 324 (1973) (dissenting opinion); Bauscher Grain v. National Surety Corp., 92 Idaho 229, 440 P.2d 349 The appellant's sole contention is that the ......

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