Owen v. Boydstun

• Decision Date: 03 March 1981
• Docket Number: No. 13101,13101
• Citation: 624 P.2d 413,102 Idaho 31
• Parties: Richard L. OWEN and Mary Louise Owen, Plaintiffs-Appellants, v. Neal BOYDSTUN, and Pearl N. Boydstun, husband and wife, Willard R. Boydstun and Irene Boydstun, husband and wife, and P. T. Hayes, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 413

624 P.2d 413

102 Idaho 31

Richard L. OWEN and Mary Louise Owen, Plaintiffs-Appellants, v. Neal BOYDSTUN, and Pearl N. Boydstun, husband and wife, Willard R. Boydstun and Irene Boydstun, husband and wife, and P. T. Hayes, Defendants-Respondents.

No. 13101.

Supreme Court of Idaho.

March 3, 1981.

James L. Schoenhut of Schoenhut & Nicholas, P. A., McCall, Charles F. McDevitt of Givens, McDevitt, Pursley & Webb, Boise, for plaintiffs-appellants.

Paris Martin, Boise, for defendants-respondents.

DONALDSON, Justice.

Plaintiffs-appellants seek to quiet title to a strip of recreational property fronting on Payette Lake in Valley County, McCall, Idaho. The disputed property abuts appellants' deeded property and lies between appellants' deeded property and the high water line of Payette Lake. Appellants claim title to the disputed property by adverse possession. Defendants-respondents are the record title holders of the disputed property.

Appellants used their deeded property for summer vacations and week-end trips. In conjunction with such use, appellants used the disputed property to gain access to the lake and the beach and to a dock which they had constructed in the lake. This dock was found by the trial court, after a view of the premises at the conclusion of the trial, to be situated outside the disputed area and not a factor in the adverse possession. The appellants cleared brush from the disputed area. They removed rocks from and hauled sand onto the beach area. They also constructed a rail fence in the vicinity of the south boundary of their deeded property which extended into the disputed property to within 12 feet of the high water line of the lake. Appellants also built a simple firepit on the disputed property by surrounding a small area with loose rocks. Except for the aforementioned, the disputed property remained essentially in its wild state.

The central issue before the district court, as set out in its memorandum opinion, was whether the appellants' use of the disputed property constituted compliance with the statutory requirements of I.C. §§ 5-209 and 5-210 to support a claim of adverse possession. These sections provide:

"5-209. Possession under oral claim of title. Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely.

"5-210. Oral claim Possession defined Payment of taxes. For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only:

1. Where it has been protected by a substantial inclosure.

2. Where it has been usually cultivated or improved.

Provided, however, that in no case shall adverse possession be considered established under the provisions of any sections of this code unless it shall be shown that the land has been occupied and claimed for the period of five (5) years continuously, and the party or persons their predecessors and grantors, have paid all the taxes, state, county or municipal, which have been levied and assessed upon such land according to law."

Following the trial without a jury, the court in a memorandum opinion held that the disputed property had been used by the appellants beyond the statutorily required five-year period and such use was adverse. The court also held that no issue existed as to payment of taxes as no taxes had ever been levied or assessed against the disputed property and, therefore, no payment of taxes had to be shown.

The court noted, however, that there was dispute over whether there had been "improvements" or "inclosure" sufficient to meet the remaining pertinent statutory requirements. In resolving this dispute, the court, after a survey of Idaho case law, concluded that I.C. § 5-210 was written in the disjunctive, and it would be "sufficient to show either a substantial inclosure, improvement or cultivation." Applying that conclusion, the court then found that the appellants had failed to meet their burden of proving that the disputed property was protected by a substantial inclosure within the intent and meaning of the statutory requirement. The court was of the opinion that to the south, the rail fence, failing to reach the lake, was insufficient; to the north, the natural growth of trees and bushes was likewise lacking; and generally, nowhere was there "construction" sufficient to meet the inclosure requirement.

The court found also that as for the requirement of improvements, none except for the rail fence, served in any sense to delineate the extent and boundaries of the claimed adverse occupancy. The rail fence by itself being insufficient, the court concluded the appellants had failed to meet their burden of proving that the disputed property had been "usually improved."

The district court in light of the foregoing, held that appellants had failed to prove the necessary elements of adverse possession and directed that judgment be entered against them. This appeal followed.

The first issue we deal with is whether the district court properly interpreted and applied I.C. § 5-210. We agree with the court's conclusion that requirements of inclosure and improvement as found in this section are written in the disjunctive. This Court has recently held just this, overruling past authority to the contrary. Nesbitt v. Wolfkiel, 100 Idaho 396, 399 n. 2, 598, P.2d 1046, 1049 n. 2 (1979) (overruling Hyde v. Lawson, 94 Idaho 886, 499 P.2d 1242 (1972) to the extent it is inconsistent).

Applying § 5-210, the district court determined that neither the improvements made nor the artificial or natural boundaries surrounding the disputed property, served to sufficiently delineate the area adversely occupied to meet the statutory requirements. This Court, recognizes that the exact character of the improvement or the inclosure may vary from case to case, Smylie v. Pearsall, 93 Idaho 188, 193, 457 P.2d 427, 432 (1969); Trask v. Success Mining Co., 28 Idaho 483, 490-91, 155 P. 288, 290 (1916). However, in the instant case, we cannot conclude otherwise than that given the particular facts presented to it, the district court properly found that appellants failed to satisfy the requirement of either improvement or inclosure. The court had the special opportunity to view the disputed property. Substantial and competent evidence appears in the record supporting the finding. The finding does not appear to be clearly erroneous. Accordingly, such finding will not be disturbed by this Court on appeal. I.R.C.P. 52(a). We affirm the district court's conclusion that appellants failed to meet their burden of proving by clear and satisfactory evidence that the disputed property was protected by substantial inclosure or that there was usual improvement sufficient for adverse possession under § 5-210. See Loomis v. Union Pacific Railroad Co., 97 Idaho 341, 544 P.2d 299 (1975).

The next issue is whether respondent Neal Boydstun's actions regarding the property in question while he was tax assessor for Valley County bars him from claiming the property. Initially, as was concluded by the district court, we find that the matter of taxes generally is not an issue in this case. The record establishes that no taxes had been levied or assessed against the property. Thus, payment of taxes as one of the prerequisites to adverse possession under I.C. § 5-210 need not be shown and is not an issue. See Stickel v. Carter, 63 Idaho 78, 117 P.2d 477 (1941). Moreover, any allegation of improper action on the part of the respondents as regards the property and its taxes is irrelevant to this quiet title action. It is well settled under Idaho case law that the party seeking to quiet title against another must succeed on the strength of his own title, and not on the weakness of that of his adversary. Pincock v. Pocatello Gold & Copper Mining Co., 100 Idaho 325, 331, 597 P.2d 211, 217 (1979); Nelson v. Enders, 82 Idaho 285, 353 P.2d 401 (1960); Stickel v. Carter, supra.

The appellants also raise, in their reply brief, the issue of whether the trial court's view of the disputed property was so prejudicial as to be disregarded on this appeal. The record discloses that counsel accompanied the trial judge upon the view and no objection was raised at that time. We find that appellants, by failing to timely object at the time of the view, in fact raising no objection prior to filing of the appellate reply brief, may not call the view into question on appeal. A timely objection would have given the trial court the opportunity to correct error, if any, in the viewing. Bradford v. Simpson, 97 Idaho 188, 541 P.2d 612 (1975).

Finally, appellants allege that the trial court erred in failing to consider and make findings upon the issue of whether there was adverse possession of the disputed property pursuant to I.C. §§ 5-207 and 5-208 which provide for a claim founded upon a written claim of title. ¹ In looking to the court's memorandum decision, which served as findings of fact and conclusions of law, we find that the issue in the case was expressly limited to adverse possession under I.C. §§ 5-209 and 5-210, or a claim not founded upon a written instrument. The court made no findings as regards the application of §§ 5-207 and 5-208.

The record reflects that the issue of adverse possession via a claim under a written instrument was before the trial court. In fact, respondents made a motion, which motion was subsequently denied by the court, for nonsuit at the close of appellants' presentation of evidence, I.R.C.P. 41(b), expressly contending that the requirements of § 5-207 had not been met. Record, vol. 1, p. 86. The court failed, however, following the completed trial, to make specific findings as...