Mark J. Radford, an Individual, & Radford Cattle, LLC v. Van Orden
| Decision Date | 19 March 2021 |
| Docket Number | Docket No. 47364 |
| Citation | 483 P.3d 344,168 Idaho 287 |
| Court | Idaho Supreme Court |
| Parties | Mark J. RADFORD, an individual, and Radford Cattle, LLC, an Idaho limited liability company, Plaintiffs-Counterdefendants-Respondents-Cross Appellants, v. Jay VAN ORDEN, an individual, Defendant-Counterclaimant-Appellant-Cross Respondent, and Seven J Ranches, Inc., Defendant-Counterclaimant-Appellant. |
Cooper & Larsen, Chtd., Pocatello, for Appellant. J.D. Oborn argued.
Parsons Behle & Latimer, Idaho Falls, for Respondents. Jon A. Stenquist argued.
This litigation stems from the contentious relationship between adjacent landowners over subjects as old as the American West: land, cattle, and fence lines. Respondent Mark Radford sued Appellant Jay Van Orden for damages from trespass of lands and trespass of cattle, among other claims, and also sued Appellant Seven J Ranches, Inc. ("Seven J") for reimbursement for the construction of a partition fence pursuant to Idaho Code section 35-103. The two cases were later consolidated.
Upon Van Orden's motion for summary judgment, the district court determined that Radford had standing to sue Van Orden for trespass, even though Radford was not the property owner when the trespass occurred, because the previous property owner executed an assignment of claims to him. After a five-day bench trial, the district court found Van Orden was liable for trespass and awarded damages to Radford, and required Seven J to reimburse Radford for one half of a constructed partition fence. The district court also found Van Orden was not liable for trespass of cattle and ordered Radford to construct a gate at the southern edge of his property to allow Van Orden to access an easement that runs across Radford's property. The district court determined Radford to be the overall prevailing party and awarded attorney fees only against Seven J. Van Orden and Seven J appeal the district court's standing determination on summary judgment, the damages awarded against Van Orden on Radford's trespass claim, the reimbursement awarded on the partition fence claim against Seven J, and the prevailing party determination for purpose of awarding attorney fees. Radford cross-appeals the district court's denial of his claim for trespass of cattle damages and the district court's requirement that he construct a gate for Van Orden at the edge of his property.
In January of 2017, Mark Radford purchased property in Bingham County from the Thompson family. The property spans two discrete, yet contiguous tracts of land: the north parcel lies in the Homer Basin Unit and the south parcel lies in the Outlet Ridge Unit. The Homer Basin Unit is enclosed by fences, but the land inside consists of mostly open range. A fence also encloses the Outlet Ridge Unit. Seven J owns a large portion of the land within the Outlet Ridge Unit. The Outlet Ridge Unit also contains Radford's Outlet Ridge property, most of Seven J's property, and two Idaho Department of Lands (IDL) parcels. Van Orden leases land both in the Homer Basin Unit and the Outlet Ridge Unit from the IDL.
Since the 1990's and prior to Radford's purchase of the Thompson property, Van Orden had leased the property in the Outlet Ridge Unit from the Thompson family. In May of 2015, Ted Thompson passed away. Ted Thompson's son, Matthew Thompson, agreed to lease the property to Van Orden for the 2015 grazing season. This oral lease was not renewed for the 2016 season, the parties never spoke about leasing it again for the 2016 season, and Matt Thompson removed Van Orden's name as the lessee with the respective State offices. Despite these facts, and the fact that Van Orden failed to pay any rent to Matt Thompson for the 2016 grazing season, Van Orden nevertheless assumed the lease continued.
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Figure 1. Map of Homer Basin and Outlet Ridge Units.
In May of 2016, Shirlee Thompson, individually and as the personal representative of the Estate of Ted Thompson, entered into a purchase and sale agreement with Radford for the real property in the Homer Basin Unit and the Outlet Ridge Unit. The purchase was finalized in January of 2017. On December 29, 2016, before the sale of the property closed, Shirlee Thompson granted the IDL an easement over her Homer Basin Unit and Outlet Ridge Unit properties (purchased by Radford). Throughout the litigation, the parties refer to this easement as the "Orange Road." The easement is binding on Shirlee Thompson's successors and assigns. The easement reads in part:
This easement is specifically limited to ingress and egress for the control, management, administration, and use of [State] lands, or resources thereof, for the purpose of, including but not limited to, hauling logs and other forest products, hauling minerals, including sand and gravel, hauling agricultural products, moving livestock to and from [State's] lands, agriculture uses, all commercial uses and leasing including energy production and transportation, for access for recreation, and fire prevention and control.
(Emphasis added). Radford concedes that Van Orden had a right to use the Orange Road, and as a lessee of IDL lands in the Outlet Ridge and Homer Basin Unit, Van Orden used the Orange Road. Despite the easement, Radford placed a pole fence across the Orange Road where it enters his Outlet Ridge Unit property at the southern border after his purchase. It prevented access to the Orange Road and blocked Van Orden's southern access point.
In May of 2017, Radford noticed a road had been cut into a hillside in a remote location on his recently purchased Homer Basin Unit property. Prior to this, there was only a cow trail; no road existed at that location. Van Orden admitted that he cut the road on the hillside using a bulldozer in July of 2016, again falsely believing he was still leasing the property from the Thompsons. Van Orden's cut resulted from him using his bulldozer to remove vegetation and flatten a path up the hillside in order to move his bulldozer up the hill. Radford hired Patrick Naylor with Rocky Mountain Environmental Associates, Inc., (RMEA) to determine the cost of repairing the property damage caused by Van Orden.
During spring of 2017, Radford desired to build a fence between his property in the Outlet Ridge Unit and IDL property in the Outlet Ridge Unit, which was being leased by Van Orden. The planned fence was to connect to the "Whitehead Fence" and head south, separating the two parcels. The Whitehead Fence is a fence that runs mainly east-to-west and separates the IDL property in the Outlet Ridge Unit from the Homer Basin Unit. Radford reviewed a recorded survey for his property and checked for survey markers; he found certain ones using his non-survey grade global positioning device. In May of 2017, near the inception of construction of the fence, Radford again attempted to find the survey markers between his property and the IDL land – this time he could not find them. Radford hired an individual to build the fence.
During construction of the fence, a confusing exchange occurred in which Van Orden approached Radford's fence builder, concealed his identity by introducing himself as someone else, sought information about the fence, and then told the builder he had constructed the fence on IDL property. During the exchange, Van Orden left for a brief period of time and walked around the north end of where the new fence would connect with the Whitehead Fence; coincidentally, this was also where the survey markers had disappeared. The next day, Radford's fence builder found the missing survey marker one-hundred to two-hundred feet north of the Whitehead Fence. It looked as though it had been moved or tampered with recently. Radford suspected Van Orden had moved or tampered with the survey marker, but neither he nor his fence builder saw anything to support this suspicion. A professional surveyor concluded that the survey marker was not in the correct location, which resulted in Radford's newly constructed fence sitting twenty to thirty feet east of the actual property boundary line, on IDL property.
In the summer of 2017, Radford observed Van Orden's cattle traverse from the southern end of the Homer Basin Unit onto his property in the Outlet Ridge Unit through cut fences. Van Orden admitted that he had cut fences between property owned by Radford and the surrounding properties. Van Orden also admitted he cut through a chain on one of Radford's gates and installed his own lock. Van Orden claimed he cut the wires or obstructions that blocked his use of the Orange Road.2
In June of 2017, Radford began and completed construction on one half of a partition fence between his property in the Outlet Ridge Unit and Seven J's property in the Outlet Ridge Unit. Radford paid $5,000.00 for his half of the fence. On October 17, 2017, Radford sent Seven J a notice pursuant to Idaho Code section 35-103, informing it that he intended to build the remaining half of the fence to complete the partition fence between his property and Seven J's property. Under Idaho Code section 35-103, if adjoining properties are enclosed by a single fence, one party can construct one half of the partition fence between the properties, and with proper notice, the other party must either construct the other one half of the partition fence within six months, or reimburse the first party for completing the fence. Idaho Code section 35-103 provides:
When two or more persons own land adjoining which is inclosed [sic] by one (1) fence, and it becomes necessary for the protection of the rights and interests of one (1) party that a partition fence be made between them, the other or others, when notified, must proceed to erect, or cause to be erected, one-half (1/2) of such partition fence; said fence to be erected on, or as near as practicable to, the line of said land. And if, after...
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