Kaupp v. City of Hailey

• Decision Date: 03 March 1986
• Docket Number: No. 16068,16068
• Citation: 110 Idaho 337,715 P.2d 1007
• Parties: Richard KAUPP and Barbara Kaupp, Plaintiffs-Appellants, v. CITY OF HAILEY, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 1007

715 P.2d 1007

110 Idaho 337

Richard KAUPP and Barbara Kaupp, Plaintiffs-Appellants, v. CITY OF HAILEY, Defendant-Respondent.

No. 16068.

Court of Appeals of Idaho.

March 3, 1986.

Monte R. Whittier, Pocatello, for plaintiffs-appellants.

Michael F. Donovan, Ketchum, for defendant-respondent.

WALTERS, Chief Judge.

Richard and Barbara Kaupp brought suit against the City of Hailey, seeking damages and injunctive relief on allegations of trespass and inverse condemnation, when they learned that sewer and water pipe lines ran beneath their property. In response, the City claimed it had acquired a prescriptive easement for the lines. Both the Kaupps and the City moved for summary judgment under their respective theories of the case. The district court entered summary judgment in favor of the City. On appeal, the Kaupps contend that the district court erred in finding that the presence of a manhole adjacent to the Kaupps' property provided sufficient notice of the City's adverse use of the underground lines. We vacate the judgment and remand for further proceedings.

While performing leveling work on his property in the summer of 1984, Richard Kaupp was informed by a City official that sewer and water lines running beneath his property would be damaged unless the grading work was stopped. The Kaupps were unaware that the lines had been placed upon the property. According to an affidavit filed by the City, the water and sewer lines were buried in the summer or early fall of 1978. The lines were constructed by the previous owners of the property, Brooks Tessier and Don Valentine. The property was conveyed to the Kaupps in February 1983. The affidavit of Richard Kaupp indicated that prior to the purchase of the property, the Kaupps obtained a title report. This report did not disclose the existence of any recorded easement or restriction concerning the service lines and the City has not disputed this fact. Kaupp further stated that there are no markers or other monuments which indicate the existence of the lines beneath the surface of the property.

After hearing, the district court granted summary judgment to the City, finding that the City had acquired a prescriptive easement for the lines. Stating that this was a question of first impression, the court declared the sole issue to be determined was whether a concealed "pipeline placed under a landowner's property constitutes an open, notorious use." The court acknowledged that other jurisdictions had divided opinions when confronted with the question of whether a buried pipeline constituted an open and notorious use. See generally 25 AM.JUR.2d Easements and Licenses §§ 60, 61 (1966); Annot., 55 A.L.R.2d 1144, at § 9 (1957). The court found that a manhole situated four feet from the Kaupps' property line, and located in the street, constituted sufficient notice concerning "the existence of an underground common sewer." The court also noted that City employees had used this manhole for servicing the sewer line since 1978. While observing that the element of knowledge is a question of fact, the court held, as a matter of law, that the manhole and its use by city workers "should give notice to the reasonably prudent purchaser [of] the potential for underground sewer lines or put him on inquiry regarding it." Finally, the court determined that the former owners, Tessier and Valentine, possessed actual knowledge of the buried lines.

The Kaupps assert on appeal that the existence of the manhole does not constitute sufficient notice of the City's "open and notorious" use to provide them with knowledge of the City's adverse use. They insist that the questions of (1) open and notorious use and (2) whether they possessed the requisite knowledge of the adverse use, present genuine issues of material fact inappropriate for summary judgment. The City contends that it has met all the elements necessary to establish a prescriptive easement and the Kaupps' suit should now be barred because the action was commenced after the running of the five-year statutory period. ¹

Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c). A motion for summary judgment is granted when, on the basis of evidence before the court, a directed verdict would be warranted or when reasonable persons could not disagree as to the facts. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969); Riggs v. Colis, 107 Idaho 1028, 695 P.2d 413 (Ct.App.1985). That both parties here moved for summary judgment does not in itself establish there is no genuine issue of material fact. Kromrei v. AID Insurance Co. (Mutual), 110 Idaho 549, 716 P.2d 132 (1986); Moss v. Mid-American Fire and Marine Insurance Co., 103 Idaho 298, 647 P.2d 754 (1982); Casey v. Highlands Insurance Co., 100 Idaho 505, 600 P.2d 1387 (1979). A party moving for summary judgment concedes that no genuine issue of material fact exists under its theory of the case, but does not necessarily concede that no controverted facts "remain in the event his adversary seeks summary judgment upon different issues or theories." Riverside Development Co. v. Ritchie, 103 Idaho 515, 518 n. 1, 650 P.2d 657, 660 n. 1 (1982). "The materiality of a fact is determined by its relationship to legal theories presented by the parties." Blackmon v. Zufelt, 108 Idaho 469, 470, 700 P.2d 91, 92 (Ct.App.1985).

To establish a prescriptive easement, the claimant must "submit 'reasonably clear and convincing' proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the subservient tenement," for the prescriptive period of five years. Lorang v. Hunt, 107 Idaho 802, 803, 693 P.2d 448, 449 (1984), quoting West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973) (footnotes omitted); Merrill v. Penrod, 109 Idaho 46, 704 P.2d 950 (Ct.App.1985) Hall v. Strawn, 108 Idaho 111, 697 P.2d 451 (Ct.App.1985); I.C. § 5-203. The owner of the servient tenement must have actual or imputed knowledge of the adverse use. Webster v. Magleby, 98 Idaho 326, 563 P.2d 50 (1977); Smith v. Breen, 26 Wash.App 802, 614 P.2d 671 (1980). Specific facts must be presented to prove the elements necessary to establish the prescriptive easement. See Stecklein v. Montgomery, 98 Idaho 671, 570 P.2d 1359 (1977). Whether these elements have been established is normally a question of fact. Smith v. Breen, 614 P.2d at 673.

The purpose of the requirement that prescriptive use be open and notorious is to give the owner of the servient tenement knowledge and opportunity to assert his rights. The open and notorious use must rise to the level reasonably expected to provide notice of the adverse use to a servient landowner maintaining a reasonable degree of supervision over his premises. See, e.g., City of Montgomery v. Couturier, 373 So.2d 625 (Ala.1979); Jones v. Harmon, 175 Cal.App.2d 869, 1 Cal.Rptr. 192 (1959); Thompson v. Schuh, 286 Or. 201, 593 P.2d 1138 (1979); City of Corpus Christi v. Krause, 584 S.W.2d 325 (Tex.Civ.App.1979). In respect to underground service lines and facilities, it has been noted:

Where pipes or other conduits as to which easements are claimed are buried underground and their presence is not physically apparent throughout the prescriptive period, the courts generally conclude that there is insufficient notoriety of the user to permit prescription to run against the servient estate. This result is often reached where there is an absence of substantial evidence that the servient owner had any notice or information of the existence of the facility and its user. However, circumstances sometimes arise such as to give even buried conduits notoriety adequate to base a prescriptive easement. This usually occurs where, even though the pipes themselves are not apparent, there are accessory installations on the surface which are plainly apparent. [Footnotes omitted.]

25 AM.JUR.2d Easements and Licenses § 60, at 469 (1966).

Here, the City does not dispute the Kaupps' assertion that they did not have actual knowledge of the sewer and water lines. Instead, the City attempts to demonstrate that the Kaupps possessed...