Marshall v. Blair

• Decision Date: 14 August 1997
• Docket Number: No. 23439,23439
• Citation: 946 P.2d 975,130 Idaho 675
• Parties: Dennis MARSHALL and Paula Marshall, husband and wife, Plaintiffs-Respondents, v. Joseph A. BLAIR and Jeanne E. Blair, husband and wife, Defendants-Appellants. Twin Falls, March 1997 Term
• Court: Idaho Supreme Court

Page 975

946 P.2d 975

130 Idaho 675

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

No. 23439.

Supreme Court of Idaho,

Twin Falls, March 1997 Term.

Aug. 14, 1997.

Rehearing Denied Nov. 24, 1997.

Thomsen & Stephens, P.A., Idaho Falls, for defendants-appellants. J. Michael Wheiler argued.

Moss & Esplin, Blackfoot, for plaintiffs-respondents. Thomas E. Moss argued.

TROUT, Chief Justice.

I. BACKGROUND AND PRIOR PROCEEDINGS

This petition for review arises from the Court of Appeals' decision to affirm the district court's determination that Dennis and Paula Marshall (the Marshalls) established a prescriptive right to use a gravel roadway known as Kirwan Lane. The two parcels of real property that are involved in this suit have been owned by numerous people but, at one time, were owned entirely by the same person. Each parcel currently is served by Kirwan Lane, which provides several of the parcels that abut the roadway with the only access to a county road. See Map at Appendix A. Throughout the time that the two parcels in question have changed hands, all owners apparently agreed that Kirwan Lane existed and was available for use by all adjoining landowners. In 1993, however, Joseph and Jeanne Blair (the Blairs), who own the piece of property located where Kirwan Lane intersects with the county road, advised the Marshalls that they were no longer permitted to use Kirwan Lane.

No one knows how Kirwan Lane came into existence, however, at trial, the parties traced the use of the roadway as far back as 1944. E.E. Kirwan purchased the property now owned by the Blairs in 1927 and purchased the property now owned by the Marshalls in 1944. ¹ Apparently, he used Kirwan Lane to access the property now owned by the Marshalls throughout the time that he owned it. In 1963, E.E. Kirwan sold the property now owned by the Blairs to Douglas Wray (Wray). Wray's contract later was assigned to other parties, and, in 1974, the Blairs obtained the interest. As for the property now owned by the Marshalls, E.E. Kirwan gifted it to his son, Jack Kirwan (Jack), in 1970. Three years later, Jack sold the property to B.R. Goodwin (Goodwin). In 1983, Goodwin sold the property to John Thueson (Thueson), who sold the property to the Marshalls in 1992.

Until 1983, Kirwan Lane provided the only access from the Marshalls' property to a public road. Thueson purchased a fifty-foot easement across the property lying to the west of the Marshalls' property in 1983 because Thueson planned to build a home and was required to obtain a fifty-foot easement to a public road in order to secure the building permit. Thueson, however, never intended to use the easement as access to a county road and likely would not have been able to use the easement for year-round access without first making considerable improvements The deed the Marshalls received from Thueson indicated on its face that it included an easement for access over Kirwan Lane. However, the deed from Goodwin to Thueson contained the first mention of such a right. Jack, nonetheless, testified at trial that, when he sold the property to Goodwin, he believed Goodwin's purchase included the right to use Kirwan Lane, despite the fact that the deed did not contain any language indicating that such a right was transferred.

because the easement is merely a field road across the bottom of farm ground. In fact, at the time of this appeal, the field in which the easement is located is planted in potatoes, and, thus, Kirwan Lane currently provides the only improved access from the Marshalls' property to a county road.

When the Marshalls purchased the property in 1992, they immediately began construction of a house on the property. The Marshalls used Kirwan Lane to access their property and routed delivery of all construction materials for their home via Kirwan Lane. In March 1993, however, the Blairs had a survey prepared which revealed that the western boundary of the Blairs' property actually was the western side of Kirwan Lane, not the eastern side, as the Blairs previously had believed. ² As a result of this new information, the Blairs placed a gate across Kirwan Lane that prevented the Marshalls from accessing their property. The Blairs informed the Marshalls that the Blairs owned the stretch of Kirwan Lane abutting the Blairs' property and advised the Marshalls that they did not have the Blairs' permission to use Kirwan Lane any longer. The Blairs further told the Marshalls that, because the Marshalls had access to another county road by virtue of the fifty-foot easement running across the property lying to the west of the Marshalls' property, it was not necessary for the Marshalls to use Kirwan Lane.

The Marshalls filed suit later that year, seeking a prescriptive easement over Kirwan Lane and an injunction to prevent the Blairs from continuing to interfere with the Marshalls' easement. The Marshalls later amended their complaint, additionally alleging that a boundary had been established by acquiescence. The Blairs filed a counterclaim, contending that they had acquired title to Kirwan Lane by adverse possession.

At trial, the parties disputed the nature of the use of Kirwan Lane. According to Dorthella, an occasional hunter or fisherman would seek permission to use the lane, but parties who owned property along Kirwan Lane, their employees, and various delivery persons historically had used Kirwan Lane without seeking permission. The Blairs, however, contested the testimony and alleged that Thueson sought permission from them to use Kirwan Lane. Thueson refuted the Blairs' contention, ³ although he testified that, after he bought property along Kirwan Lane, he asked Dorthella for a key to the locked cattle gate that she and her late husband had maintained across the lane abutting their property. The Blairs additionally asserted at trial that Goodwin asked for Jack's permission to use Kirwan Lane. Jack, however, testified that Goodwin never asked permission but simply told Jack that Goodwin intended to use Kirwan Lane to access his property and that Jack believed that Goodwin had a right to use the lane without seeking permission.

The testimony at trial also indicated that the Blairs' predecessors never believed that their ownership included any part of Kirwan Lane. Although Thueson and the Marshalls testified that they believed that the stretch of After trial and after viewing the property, the district court concluded that: (1) the Marshalls have a prescriptive easement, as well as an implied easement, allowing them use of Kirwan Lane; (2) there was no basis to uphold any boundary by agreement or acquiescence; and (3) the Blairs had not proved their claim of adverse possession. Furthermore, the district court refused to award attorney's fees to either party, reasoning that the suit was neither frivolous nor without foundation. The court, however, awarded costs to the Marshalls as the prevailing party.

Kirwan Lane abutting Dorthella's property was a private driveway that she owned, Thueson and the Marshalls never had any indication that the northern stretch was owned by the Blairs. The testimony at trial further demonstrated that, throughout the years, the parties who have owned property abutting Kirwan Lane have maintained and cared for the sections of the lane abutting their respective properties.

The Blairs subsequently filed a motion to be permitted to block off the road to prevent further use of the lane by unauthorized users. The district court denied the motion. The court reasoned that the Blairs' no trespassing signs and their right to prosecute violators afforded sufficient protection and that a gate, therefore, was unnecessary.

The Blairs appealed the district court's decision, arguing that the district court erred because it applied a presumption of adverse, rather than permissive, use. According to the Blairs, the Marshalls used Kirwan Lane in common with the general public and Idaho case law negates a presumption of adverse use when the claimant's use of a way is in common with the owner and others. The Blairs additionally argued that the district court erred when it refused to award costs to the Blairs, because the Blairs prevailed on the Marshalls' boundary by acquiescence claim.

A majority of the Court of Appeals affirmed the district court's decision finding a prescriptive easement and denying costs. See Marshall v. Blair, 130 Idaho 684, 946 P.2d 984 (App.1996). The Blairs now ask this Court to review the Court of Appeals' decision. Although we agree with the lower courts' conclusion that the Marshalls have established a prescriptive right to use Kirwan Lane, we reach that conclusion through a different analysis.

II. TRIAL ISSUES

A. Standard Of Review

In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals. Schiewe v. Farwell, 125 Idaho 46, 49, 867 P.2d 920, 923 (1993). However, this Court directly reviews the decision of the district court. Id. at 49, 867 P.2d at 923. A district court's decision that a claimant has established a private prescriptive easement presents entwined questions of law and fact. Chen v. Conway, 121 Idaho 1000, 1004-05, 829 P.2d 1349, 1353-54 (1992).

On appeal, this Court will not set aside findings of fact, unless they are clearly erroneous. I.R.C.P. 52(a). Thus, if a district court's findings of fact are supported by substantial and competent, although conflicting, evidence, this Court will not disturb those findings. Thompson v. Fairchild, 93 Idaho 584, 587, 468 P.2d 316, 319 (1970). Furthermore, this Court gives due regard to the district court's special opportunity to judge the credibility of the witnesses who personally appeared before the court. I.R.C.P. 52(a). Additionally, we will not substitute our view...