Pullin v. City of Kimberly, 12802

• Decision Date: 30 March 1979
• Docket Number: No. 12802,12802
• Citation: 100 Idaho 34,592 P.2d 849
• Parties: Wiley PULLIN and Shirley Pullin, husband and wife, Plaintiffs-Appellants, v. CITY OF KIMBERLY, a Municipal Corporation of the State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 849

592 P.2d 849

100 Idaho 34

Wiley PULLIN and Shirley Pullin, husband and wife, Plaintiffs-Appellants, v. CITY OF KIMBERLY, a Municipal Corporation of the State of Idaho, Defendant-Respondent.

No. 12802.

Supreme Court of Idaho.

March 30, 1979.

Susan Porter-McClard, of Webb, Burton, Carlson & Pedersen, Twin Falls, for plaintiffs-appellants.

William J. Langley, of Langley & Edwards, Twin Falls, for defendant-respondent.

DONALDSON, Justice:

The plaintiffs-appellants Wiley Pullin and Shirley Pullin, husband and wife, initiated an action on August 5, 1976 in which they sought to enjoin the defendant-respondent, City of Kimberly, from trespassing or exercising any dominion over a 25 foot strip of real property situated parallel to and immediately adjacent to the eastern boundary of the plaintiffs-appellants' premises within the municipal boundaries of the City of Kimberly. Appellants additionally sought a decree to quiet title of this strip of real property in themselves.

After answering appellants' complaint, defendants-respondents moved for summary judgment. In support of this motion respondent submitted a certified copy of a plat filed with the Twin Falls County Recorder in April, 1909 which indicates that the property in question was originally designated and dedicated as a street for public use. Respondent also submitted the affidavit of the Kimberly City Clerk stating essentially that the books and records of Kimberly contain no indication that the City of Kimberly has ever vacated the land in question. Appellants submitted affidavits in opposition to the motion for summary judgment to the effect that the City of Kimberly represented to them and the public that Kimberly had vacated the 25 foot strip of land. The trial court granted the motion and entered an order dismissing the complaint against the City of Kimberly.

At the time of the hearing on the motion for summary judgment, appellants' counsel failed to note that the certified copy of the plat in question did not meet the statutory requirements for the acceptance of dedicated property or for recordation of the subdivision plats in effect at the time the plat was recorded. Because neither party addressed this point at the summary judgment hearing, appellants timely moved pursuant to I.R.C.P. 60(b) to vacate the order of summary judgment and judgment. The district court denied appellants' motion and subsequently awarded costs and attorneys' fees to the respondent on the summary judgment. Appellants then brought this appeal.

On appeal, the Pullins present two issues. First, did the district court err in granting the city's motion for summary judgment. Secondly, if the court's order granting the city's motion was appropriate, should the court have granted the Pullins' motion to set aside the summary judgment order.

A trial judge should not grant a motion for summary judgment if the evidence, construed in the light most favorable to the party opposing the motion (here the Pullins), presents a genuine issue of material fact or shows that the respondent (the city) is not entitled to judgment as a matter of law. Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978); See I.R.C.P. 56(c). If either condition is satisfied, summary judgment was improper and must be reversed. Id.

The Pullins' complaint alleges that they are the owners of the 25 foot strip of real property in question and that the city makes claim of title to that property hostile to the Pullins. The city, by way of specific denial, put the Pullins' ownership of the disputed property in issue. In their affidavits in opposition to the city's motion for summary judgment, the Pullins based their claim of ownership upon the city's vacation of the 25 foot strip of property. However, the city's introduction of the recorded plat and its submission of the City Clerk's affidavit indicated that the city had never vacated that 25 foot strip. It was apparently upon this evidence that the city had never vacated the property that the court determined that there was no genuine issue of material fact to be submitted to the court and that as a matter of law the city was entitled to a judgment.

There is no indication in the record that the trial court at the time of the summary judgment motion considered other theories upon which the Pullins could have based their claim of ownership. While in some factual situations, a failure to consider other possible theories and attending unresolved questions of fact may compel the conclusion that the trial court erred in granting the motion for summary judgment, the facts available to the trial judge in this case do not compel such a conclusion. See Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

The only other theory available to the Pullins was that of adverse possession. ¹ However, it is well settled in Idaho that an abutting landowner's use or possession of an unused portion of a highway is not adverse to the public and cannot ripen into a right or title by lapse of time no matter how long continued. Rich v. Burdick, 83 Idaho 335, 362 P.2d 1088 (1961). Given the facts presented to the trial judge at the time of the motion for summary judgment, we cannot say either that there was a genuine issue of material fact or that the city was not entitled to a judgment as a matter of law. The trial court did not err in granting the city's motion for summary judgment.

We turn then to the Pullins' contention that in light of the newly discovered fact that the certified copy of the plat containing the disputed 25 foot strip of land did not meet the statutory requirements for the acceptance of dedicated property or for recordation of the subdivision plats in effect at the time the plat was recorded, the trial judge should have granted the Pullins' I.R.C.P. 60(b) motion to vacate the order of summary judgment and judgment.

The decision to grant or deny relief pursuant to a 60(b) motion is within the discretion of the trial court. 7 Moore's Federal Practice P 60.19; Cf. Hearst Corp. v. Keller, No. 12784 (1979) (motion to set aside default judgment). Accordingly the scope of our appellate review here focuses on whether the...