Marshall v. Blair

• Decision Date: 28 August 1996
• Docket Number: No. 21669,21669
• Citation: 946 P.2d 984,130 Idaho 684
• Parties: Dennis MARSHALL and Paula Marshall, husband and wife, Plaintiffs-Respondents, v. Joseph A. BLAIR and Jeanne E. Blair, husband and wife, Defendants-Appellants.
• Court: Idaho Court of Appeals

Page 984

946 P.2d 984

130 Idaho 684

Dennis MARSHALL and Paula Marshall, husband and wife, Plaintiffs-Respondents, v. Joseph A. BLAIR and Jeanne E. Blair, husband and wife, Defendants-Appellants.

No. 21669.

Court of Appeals of Idaho.

Aug. 28, 1996.

J. Michael Wheiler, argued, Thomsen & Stephens, P.A., Idaho Falls, for Defendants-Appellants.

Thomas E. Moss, argued, Moss & Esplin, Blackfoot, for Plaintiffs-Respondents.

WALTERS, Chief Judge.

This case involves a dispute over a road easement in Bingham County. Dennis and Paula Marshall filed suit against Joseph and Jeanne Blair, seeking a determination of the Marshalls' right to access their property using a lane which extends from a public road, past the Blairs' home, past a neighbor's property, to the Marshalls' residence. The district court held that: (1) the Marshalls have a prescriptive easement as well as an implied easement allowing them use of the lane; (2) there was no basis to uphold any boundary by agreement or acquiescence; and (3) the Blairs had not proven their claim of adverse possession. The court also denied a claim by the Blairs that they should be permitted to maintain a gate across the easement. The Blairs have appealed from the judgment entered in favor of the Marshalls. For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Joseph and Jeanne Blair own a twenty-acre parcel of property on which they reside. Dennis and Paula Marshall also own a twenty-acre parcel of property, located southwest of the Blair property, upon which they have constructed a home. Both the Blairs and the Marshalls access their properties by exiting from Thomas Road, a public road running east-west and which is located north of both properties, onto Kirwan Lane, the road at issue. Kirwan Lane is a graveled, single lane road which extends south from Thomas Road for one-fourth of a mile. From Thomas Road, the lane exits onto the Blairs' property, extends past property owned by Dorthella Kirwan, and ends at the Marshall property. Shortly after the Marshalls purchased their property, the Blairs erected a gate across Kirwan Lane. The gate was located so that all of Blairs' neighbors who regularly used the lane, except the Marshalls, could continue to do so. The gate only prevented use of the lane to reach the Marshall property.

The Marshalls filed an action claiming that they had both a prescriptive easement and a boundary by acquiescence to use Kirwan Lane as ingress and egress to and from their residence. They asked the court to enjoin the Blairs from obstructing the lane. The Blairs responded, alleging that Kirwan Lane lay on property that they had acquired by deed and, if not, then they had adversely possessed it and, as a consequence, had rightfully erected the gate. They also asserted that the Marshalls already had a fifty-foot easement, extending west from their property, which provided them access to Thomas Road by way of Taylor Road and, thus, it was not necessary that the Marshalls use Kirwan Lane. Taylor Road is a public highway, located approximately one-half mile west of the Marshalls' property. It runs north into Thomas Road and is parallel to Kirwan Lane. The district court found that the easement, extending from the Marshall property to Taylor Road, is a field road which traverses farming land. After physically viewing the location of the alleged fifty-foot easement, the district court concluded that substantial improvements would need to be made to the field road in order for the easement to provide access to the Marshall property comparable to that provided by Kirwan Lane.

After a court trial, the district court held that Marshalls had established a right to an easement over Kirwan Lane. The Blairs appeal from the judgment.

II. ISSUES

The Blairs claim that the district court erred in holding that the Marshalls have a prescriptive easement and an easement by implication allowing them use of Kirwan Lane. They argue that they rightfully installed a gate on Kirwan Lane to prevent further loss by prescription. The Blairs also contend that since they were the prevailing party on the issue of boundary by acquiescence, they are entitled to be reimbursed for costs incurred in defending that claim.

III. STANDARD OF REVIEW

Whether a private prescriptive easement has been proved presents entwined questions of law and fact. Chen v. Conway, 121 Idaho 1006, 1008, 829 P.2d 1355, 1357 (Ct.App.1991). On appeal from a mixed question of law and fact, this Court will defer to findings of fact based upon substantial evidence, but we exercise free review over questions of law. Staggie v. Idaho Falls Consol. Hospitals, Inc., 110 Idaho 349, 351, 715 P.2d 1019, 1021 (Ct.App.1986). In reviewing findings of fact, we do not weigh the evidence, nor do we substitute our view of the facts for that of the trial judge. Blaser v. Cameron, 121 Idaho 1012, 1015, 829 P.2d 1361, 1364 (Ct.App.1991); Ortiz v. Dept. of Health & Welfare, 113 Idaho 682, 683, 747 P.2d 91, 92 (Ct.App.1987). Findings of fact cannot be deemed clearly erroneous if they are supported by substantial, albeit conflicting, evidence in the record. Ortiz, 113 Idaho at 683-84, 747 P.2d at 92-3.

IV. DISCUSSION

A. Prescriptive Easement.

In order to establish a prescriptive right of easement, a claimant must submit reasonably clear and convincing proof of open, notorious, continuous, and uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement for the prescriptive period of five years. I.C. § 5-203; Chen v. Conway, 121 Idaho 1000, 1005, 829 P.2d 1349, 1354 (1992); Bumgarner v. Bumgarner, 124 Idaho 629, 643, 862 P.2d 321, 335 (Ct.App.1993). If the roadway's use was adverse for any continuous five-year period, that use can establish a prescriptive right to the use of the road. Burns v. Alderman, 122 Idaho 749, 754, 838 P.2d 878, 883 (Ct.App.1992). However, a prescriptive right cannot be obtained if the use of the servient tenement is by permission of its owner, as such use clearly is not adverse to the rights of the owner. State ex rel. Haman v. Fox, 100 Idaho 140, 143, 594 P.2d 1093, 1096 (1979); Burns, supra.

The general rule in Idaho is that proof of these elements, without evidence as to how the use began, raises the presumption that the right was adverse and under a claim of right. West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973). Upon such a showing, the burden shifts to the owner of the servient tenement to prove that the use was permissive, or by virtue of a license, contract or agreement. Id. If the prescriptive right began under permission or license, it can be changed into one exercised as a claim of right. Webster v. Magleby, 98 Idaho 326, 327, 563 P.2d 50, 51 (1977). For a permissive use to become adverse or under claim of right, the claimant must do some unequivocal act which places the owner of the alleged servient tenement on notice that the character of the use has changed. Lorang v. Hunt, 107 Idaho 802, 804, 693 P.2d 448, 450 (1984).

We begin by reviewing several of the district court's findings. These findings provide the necessary framework in which to consider arguments presented by the Blairs.

The district court found that in 1927, E.E. Kirwan purchased what is now the Blair property. Then, in 1944, Kirwan purchased a tract of land which included what is known today as the Marshall property. In 1963, Kirwan sold the Blair property by contract to Douglas Wray, retaining title to the property as security. Kirwan continued to use Kirwan Lane to access the Marshall property. Wray's contract was later assigned to other parties, and in October of 1974, the Blairs obtained that interest.

In February of 1970, Kirwan deeded his interest in the Marshall property to his son, Jack Kirwan. At that time, Kirwan Lane was the only access to the Marshall property and Jack used the lane to access the property. In September of 1973, Jack sold the property by contract to B.R. Goodwin. It was Jack's belief that Goodwin's purchase also included the right to use Kirwan Lane. In addition to this acquisition, Goodwin owned all the real property immediately west of the Marshall property to the edge of Taylor Road. During the nine or ten years that Goodwin owned the Marshall property, he used Kirwan Lane regularly to access his property for agricultural purposes.

In December of 1983, Goodwin sold the Marshall property to John Thueson. The deed from Goodwin to Thueson provided for the right to use Kirwan Lane for access to Thomas Road. According to the record, this was the first time Kirwan Lane had been mentioned in any document of record. The deed also granted Thueson a fifty-foot easement extending west from the property to Taylor Road. Thueson planned to build a home on the property, but in order to obtain the necessary permit, he needed a fifty-foot easement from a public road into the property. The court found that Thueson never intended to use the easement to Taylor Road but obtained it to secure the building permit. Furthermore, the court found that during his ownership of the property, Thueson always used Kirwan Lane to gain access to his property.

In January of 1992, Thueson sold the property to the Marshalls. The deed between Thueson and the Marshalls contained the fifty-foot easement to Taylor Road as well as the right to use Kirwan Lane, i.e., "an existing road easement" to Thomas Road. The Marshalls began construction of their home in 1992. All construction materials were delivered to their property by way of Kirwan Lane, and the Marshalls used the lane regularly as they travelled to and from their home. During the summer of 1993, the Blairs erected a gate across Kirwan Lane, and advised the Marshalls they could no longer use the lane to access their property.

The Blairs argue that the district court erred in applying the presumption of adverse use in determining the Marshalls' claim of right under a prescriptive easement....