Mosman v. Mathison
| Decision Date | 24 November 1965 |
| Docket Number | No. 9485,9485 |
| Citation | 408 P.2d 450,90 Idaho 76 |
| Parties | Roy E. MOSMAN, Prosecuting Attorney In and for the County of Nez Perce, Idaho, Plaintiff-Respondent, v. Wendell MATHISON, Roberta Mathison, his wife, Nelson Howard, Madeline Walter and the Cramont Scenic Highway District, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Blake, Givens & Feeney, Lewiston, for appellants.
Roy E. Mosman, Pros. Atty., Nez Perce County, pro se, and Donald K. Worden, Jr., Deputy Pros. Atty., Lewiston, for respondent.
Plaintiff Roy E. Mosman, as the prosecuting attorney of Nez Perce county, instituted this action against the defendants seeking a declaration that the road known as Wapsheli road is a public road and also to enjoin defendant Mathison and his agents from obstructing the use of the roadway by the public.
The defendants, (other than the Cramont Scenic Highway District) are the owners or lessees of property through which the Wapsheli traverses, and the Cramont Scenic Highway District is a highway district situate in Nez Perce County, and within which this road is situated.
The trial court, sitting without a jury, heard the cause and entered findings of fact, conclusions of law and decree. The findings of fact are in substance as follows:
That plaintiff Mosman was the prosecuting attorney of Nez Perce County and instituted the action on behalf of the people of the county and the state; that Wapsheli Road, as described in the findings, is situated in the county. The road was described by its course through various sections and townships, but without any description as to its boundaries or widths; that the description adequately apprised the defendants of the subject of the action; that a dispute arose whether it was a public road; that the road was built with public funds in 1948 and for at least six years following was maintained with public funds; that the road was used by the public as a public road for a period of thirteen years; that the road lies within the boundaries of the district, and that defendant Mathison or his agents have obstructed the road and have prevented free access and have claimed it to be a private road; that Mathison is a director of the district and is the owner and lessee of lands bordering the road, and the other individuals named as defendants are owners of or claim an interest in the lands bordering the road.
Further the court found:
The court also found that certain gates erected across the road were maintained as a matter of convenience to the land owners to serve as cattle guards and were not maintained with the thought in mind that the road could thus be made a private road.
Based on the findings of fact the court concluded:
'1. That the road as described supra in the Findings of Fact is a public road.
2. That the attempted abandonment failed.
3. That a permanent injunction should issue, restraining Wendell Mathison, and/or his agents, servants, and employees from interfering with the free access of the public to the road.
4. That plaintiff is entitled to be reimbursed for costs necessarily incurred herein.'
The judgment then described the road, declared it to be a public road, restrained defendant Mathison or his agents from interference with the public's right of free access to the road, and awarded plaintiff the costs incurred in the action.
Prior to answering the complaint, the defendants filed their motion to dismiss, which the court denied.
The defendants have appealed from the judgment of the court and by their specifications of error assert the trial court erred in failing to grant their motion to dismiss; that the trial court erred in each of its findings of fact (except as to the one that Mathison was a commissioner of the district and the individual defendants owned or leased lands bordering the road); that the court erred in each of its conclusions of law and also erred in entering the decree.
The one issue that is determinative of this appeal is whether the commissioners of the Cramont Scenic Highway District did in fact and in law abandon the Wapsheli road. The record reflects that in January, 1961, there were three commissioners of this district, i. e., defendant Mathison, John Luy and John Taylor. On January 12, 1961, a meeting was held in the office of the attorney for the district at Lewiston, the county seat of Nez Perce County. As to what transpired at the meeting the three commissioners testified as follows:
Mr. Luy, called as a witness by the plaintiff, testified on direct examination that he was a commissioner of the district, and that the abandoning of the Wapsheli road was discussed. He stated:
'Q. Who brought it up?
A. Well, I think Jim [Mr. Givens, attorney for the defendant] and Wendell [Defendant Mathison] brought it up and it was brought to a vote.
Q. When they brought it up, what did they do? What did they ask to be done?
A. To close it.
Q. And was there a discussion regarding that proposal?
A. Yes.
Q. Can you say what you said in regard to the proposal?
A. I said if the land owners would pay for the amount of money spent on the road I would go along with the closure.
Q. The money that was spent by whom?
A. In previous years, by the district.
Q. Did this matter ever come to a formal vote?
A. Not other than that, just a discussion there, and that was the end of it. It was talked about off and on, but that is the furtherest they ever went while I was there.
Q. Did anybody ever move that the Wapsheli grade road be abandoned from the Cottonwood Creek to the Salmon River?
A. Well, not to my knowledge.'
On cross examination, Mr. Luy testified, however, that when the matter was brought to a vote, 'I wouldn't go for the closing.'
Mr. Taylor, called as a witness for the defendants, testified on direct examination as follows:
'Q. Mr. Taylor, I would like to direct your attention to the date of January 12, 1960, and I will ask you if on or about that date you had occasion to attend a meeting of the commissioners of the Cramont Scenic Highway District at my office here in Lewiston, Idaho?
A. I recall having a meeting about that time in your office, Yes.
Q. And will you state to the Court who was present at that time, if you recall?
A. Myself, Wendell Mathison, John Luy and Jim Givens.
Q. Were the respective capacities of the people you have named yourself, Luy and Mr. Mathison the commissioners of the Cramont Scenic Highway District and was I the attorney representing the district at that time?
A. Yes, you were.
Q. And at that meeting, Mr. Taylor, can you state to the Court whether or not the commissioners had a discussion, among other things, about the ridge road and the Wapsheli road within the Cramont Scenic Highway District boundaries?
A. Yes, we had a discussion on the Wapsheli road.
Q. And as a result of that disussion was any action taken or any decision made by the commissioners with respect to the Wapsheli Creek road?
A. On this meeting, it was decided and agreed to abandon, go on record as abandoning the Wapsheli grade road.
Q. Was this action the unanimous action of the board?
A. As I recall, I did not have to use my vote to break any tie or deadlock.
* * *
* * *
A. On this particular meeting, I believe was in regards to closing this road. It was more or less a special meeting and I believe at this one that I had brought in the report for 1959 at this time and I specifically asked that there be something about the abandonment of this road. We discussed it. There was quite a lengthy meeting, as I recall, and there was a little talk at first of--well, we will say of whether it was feasible to have Howards reimburse the district for the amount of money that was spent on that. I recall that one instance, but I believe we was advised that there was no way the Howards or anybody else could but public lands that there had been work done on without advertising it like that. As I recall, there was not no disagreement on anybody's part that we should not abandon the road.
Q. Was it your recollection that all of the commissioners at that time agreed to and did abandon this road?
A. When you specifically asked each commissioner to abandon the road, to agree to abandon the road, they were all agreeable, yes.
Q. And it was their act at that meeting to abandon the road, is that correct, sir?
A. Right.
Q. Was this act of the commission unanimous? Did all of the commissioners agree to do this?
A. They all agreed to it, yes.'
On cross-examination Mr. Taylor testified:
'Q. * * * Was there ever any motion to abandon that road made at that meeting?
A. I do not recall any motion by partlimentary rules, no.
Q. Was there ever any formal vote taken either by voice or raising hands? Was there a vote taken?
A. You mean by yea or nay?
Q. Yes sir.
A. As I remember, not exactly to those words.
* * *
* * *
Q. You abandoned this road from the Cottonwood Creek fort to the Salmon River. Do you know where the abandonment starts?
A. I have an idea, yes.
Q. Where is Cottonwood Creek fort?
A. I do not know where the Cottonwood Creek fort is.
Q. You don't know where the abandonment started?
A. I know where the abandonment starts, yes.
Q. But it didn't start where you said it started in these minutes.
A. I think fort and fork could be misunderstood in reading to be misinterpreted as the same word.'
The instrument referred to is exhibit 36, an unsigned copy of 'Minutes of Commissioners Meeting, December 12, 1960, Cramont Scenie Highway District,' wherein it is recited:
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