Ransom v. Topaz Marketing, L.P.

• Decision Date: 22 December 2006
• Docket Number: No. 32146.,32146.
• Parties: Vilarr RANSOM, as Trustee of the Vilarr B. Ransom Revocable Trust, Plaintiff-Respondent, v. TOPAZ MARKETING, L.P., and Dennis Lower, Defendants-Appellants. Farr West Investments, Plaintiff-Respondent, v. Topaz Marketing, L.P., and Mr. and Mrs. Dennis Lower, Defendants-Appellants.
• Court: Idaho Supreme Court

152 P.3d 2

143 Idaho 641

Vilarr RANSOM, as Trustee of the Vilarr B. Ransom Revocable Trust, Plaintiff-Respondent, v. TOPAZ MARKETING, L.P., and Dennis Lower, Defendants-Appellants.

Farr West Investments, Plaintiff-Respondent, v. Topaz Marketing, L.P., and Mr. and Mrs. Dennis Lower, Defendants-Appellants.

No. 32146.

Supreme Court of Idaho, Pocatello, October 2006 Term.

December 22, 2006.

Rehearing Denied February 26, 2007.

Kenneth E. Lyon Jr., Pocatello, for appellants.

F. Randall Kline, Chtd., Pocatello, for respondent. F. Randall Kline argued.

TROUT, Justice.

Topaz Marketing, L.P. and its owner/officer/agent, Dennis Lower (collectively Lower), appeal from a district court's decision finding it guilty of trespass and in breach of a duty as the non-exclusive owner of an easement.

I. FACTUAL AND PROCEDURAL BACKGROUND

Two lawsuits against Topaz Marketing and Dennis Lower were combined for purposes of the district court trial: Vilarr Ransom, as Trustee of the Vilarr B. Ransom Revocable Trust (Ransom) v. Topaz and Dennis Lower (Ransom suit) and Farr West v. Topaz and Dennis Lower. The Ransom suit was resolved through mediation; consequently, the only remaining case on appeal is Farr West v. Topaz and Lower.

Lower originally bought 120 acres of property lying east of property owned by Ransom and Farr West, and then later bought an additional 80 acres in 2000. Lower's land is accessed by a road easement crossing Farr West's property. Farr West's predecessors in interest, Ransom, granted the right-of-way easement to several grantees in 1977, including Mahlon Rupp. The easement consisted of a "dug way" or seasonal dirt road utilized for non-commercial use for nearly 24 years. In 2000, Rupp conveyed his interest in the easement to Lower, which subsequently attempted to purchase additional land from Farr West. When Farr West rejected the offer, Lower had the property surveyed and concluded that the right-of-way easement did not match the legal description in the document from Rupp. In 2001, over Farr West's objections, Lower began to change the easement and cut a new road, which everyone agrees, does conform to the legal description contained in the 1977 easement agreement.¹

While it's not clear from the parties' briefing on appeal or the record, it appears that problems arose when, in creating the road, Lower pushed dirt onto other property owned by Farr West and made cuts onto Farr West's property, which had nothing to do with the creation or maintenance of the road itself. Additionally, during construction, Lower blocked off areas where water had traditionally crossed Farr West's property, altering the natural flow of the water runoff causing sink holes and sloughs. At some point, Lower also took out a fence bordering the property between Ransom and Farr West. These parties then filed lawsuits against Lower for trespass and damages. Specifically, in Farr West's complaint, it requested that title to the property be quieted in Farr West and that damages for trespass be awarded; there was no allegation about Lower's right to an easement. After making several trips to view the premises and listening to several days of testimony, the district court concluded there was a trespass, including continuing trespass, onto Farr West's property and that Farr West was entitled to a $42,685 judgment for the cost to repair the damage done in constructing the easement and the attendant trespass. The district judge also awarded nominal damages in the amount of $25 per day based upon what the judge called a "continuing tort," which amounted to $35,350. Additionally, the judge awarded attorney's fees to Farr West pursuant to Idaho Code section 6-202. Finally, the court ordered that a fence be erected on the boundary line between the Ransom and Farr West property and defined the proper use of the easement. Lower now appeals from that decision.

II. STANDARD OF REVIEW

A district court's findings of fact will not be set aside on appeal unless they are clearly erroneous. Camp v. East Fork Ditch Company, Ltd., 137 Idaho 850, 55 P.3d 304 (2002); Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001); Idaho Rules of Civil Procedure 52(a). When deciding whether findings of fact are clearly erroneous, this Court does not substitute its view of the facts for that of the trial court. Bramwell, supra. It is the province of the trial court to weigh conflicting evidence and to judge the credibility of witnesses. Rowley v. Fuhrman, 133 Idaho 105, 982 P.2d 940 (1999). On appeal, this Court examines the record to see if challenged findings of fact are supported by substantial and competent evidence. Id. Evidence is regarded as substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven. Bramwell, supra.

The awarding of attorney's fees and costs is within the discretion of the trial court and subject to review for an abuse of discretion. See Burns v. Baldwin, 138 Idaho 480, 486, 65 P.3d 502, 508 (2003); Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 374, 973 P.2d 142, 145 (1999); O'Boskey v. First Fed. Sav. & Loan Ass'n of Boise, 112 Idaho 1002, 1008, 739 P.2d 301, 307 (1987). However, whether a statute awarding attorney's fees applies to a given set of facts is a question of law. Kidd Island Bay Water Users Coop. Ass'n, Inc. v. Miller, 136 Idaho 571, 573, 38 P.3d 609, 611 (2001). The standard of review for questions of law is one of free review. Electrical Wholesale Supply Co., Inc. v. Nielson, 136 Idaho 814, 825, 41 P.3d 242, 253 (2001).

III. DISCUSSION

A. Measure of damages for trespass

At oral argument the parties agreed that Lower had the right to enter the property and create a graveled road over Farr West's property, conforming to the legal description of the right-of-way easement. The problems between the parties result from damage allegedly done in excess of that reasonably necessary in building the road. An affirmative easement, according to the Restatement of Property § 451, at 2912 (1944), "entitles the owner thereof to use the land subject to the easement by doing acts which, were it not for the easement, he would not be privileged to do." The comments to § 451 explain that the easement allows the owner to intrude upon land in many ways which, "were it not for the easement, would make him a trespasser upon the land." This court has also recognized that ownership of an easement is a valid defense to trespass. See Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972).

It is not clear from the district judge's decision on what he was basing the award of damages; he simply made reference to trespass in various locations and then awarded a significant amount for repair costs. While the district court acknowledged Lower's right to maintain and improve the right-of-way easement, it also stated that "[Lower] also had a duty not to do so at the Plaintiff's expense by damaging or creating an additional burden on the Plaintiff's property." It is not clear that the court differentiated between damages attributable to the lawful creation of an easement and excessive or wrongful damage to the property. There was no dispute over the validity of the 1977 deed or Lower's right to change the easement to conform to the legal description therein. Thus, Lower had the right to encroach or trespass onto Farr West's land, since an easement is, in essence, permission to encroach or trespass onto another's property. See Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972); Restatement of Property § 451, at 2912 (1944). In its findings on trespass, the district court stated:

Contrary to the Defendant's arguments he did trespass onto the Plaintiff's property and the effects of that conduct can also be classified as a continuing trespass. The facts show that the Defendant intentionally and without the Plaintiff's consent, entered onto the Plaintiff's property with heavy construction equipment, that the Defendant placed and removed soil from the Plaintiff's property, and that the Defendant altered and made several critical changes to the Plaintiff's property.

It is not a trespass for Lower to go on the Farr West property to construct a road over the easement, nor does it require Farr West's consent. When a road easement is developed, the land may be modified: trees may be cleared, gravel may be laid, and fences may be built. The question becomes, what damage was the natural effect of creating the easement and what damage was excessive, unnecessary and compensable under the law. Here, the district court did not address this distinction when awarding damages.

The district court also failed to identify and distinguish between permanent and temporary damages.² If land is permanently injured, but not totally destroyed, the owner is entitled to the difference between the fair market value before and after the injury. Nampa & Meridian Irrigation Dist. v. Mussell, 139 Idaho 28, 33, 72 P.3d 868, 873 (2003). However, if the land is only temporarily injured, the owner is entitled to recover the amount necessary to put the land in the condition it was immediately preceding the injury. Id. In regard to temporary injury to property, "if the cost of restoration exceeds the value of the premises in their original condition, or in the diminution in market value, the latter are the limits of recovery." Id. citing Alesko v. Union Pac. R. Co., 62 Idaho 235, 109 P.2d 874 (1941). However, as the Court in Mussell indicated, because the goal of compensatory damages is reimbursement of the actual loss suffered, the rule precluding recovery in excess of the diminution in value is not of "invariable application." Nampa & Meridian Irrigation Dist., 139 Idaho at 33-34, 72 P.3d at 873-74. It's apparent that in this case, there are damages that are temporary and others that appear to be continuous in nature, or "permanent." For example, the district court refers to harm...