Rich v. Burdick

• Decision Date: 22 June 1961
• Docket Number: No. 8948,8948
• Citation: 83 Idaho 335,362 P.2d 1088
• Parties: Roscoe C. RICH, Leonard K. Floan and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiff-Respondent, v. L. L. BURDICK and Veda Mae Burdick, his wife, Defendants-Appellants, and The Texas Company, a corporation, Defendant.
• Court: Idaho Supreme Court

Page 1088

362 P.2d 1088

83 Idaho 335

Roscoe C. RICH, Leonard K. Floan and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiff-Respondent, v. L. L. BURDICK and Veda Mae Burdick, his wife, Defendants-Appellants, and The Texas Company, a corporation, Defendant.

No. 8948.

Supreme Court of Idaho.

June 22, 1961.

Baum & Peterson, Pocatello, for appellants.

Wm. R. Padgett, Legal Counsel for State Highway Department, Boise, for respondent.

TAYLOR, Chief Justice.

Plaintiff (respondent) Idaho Board of Highway Directors, brought this action for a judgment requiring the defendants (appellants) to remove certain obstructions, erected and maintained by them, from U.S. Highway 30, in the village of Bennington, in Bear Lake county. The obstructions consist of two gasoline pumps, a concrete island, with canopy and signs. From a judgment requiring such removal, the defendants, Burdick and wife, brought this appeal.

This controversy arose when the state highway department, in preparation for improving the highway through Bennington, determined that the gas pumps, concrete island, canopy and signs in front of defendants' service station, cafe, and store building, had been erected and were maintained in and upon the highway right of way. The department contends that the highway as laid out and established, was 99 feet wide and that the planned improvements require the use of the entire width. The defendants allege that the highway as originally laid out did not exceed 60 feet in width; that their property abuts upon the easterly side of the highway; that the boundary line between their property and the highway runs parallel to the front of their service station twelve and a fraction feet westerly of the alleged obstructions; and that the pumps, concrete island, canopy and signs stand upon defendants' property, not upon the highway right of way. Defendants further allege that they have occupied and used the land upon which the alleged obstructions stand for more than 30 years, and that they and their predecessors have maintained exclusive possession thereof more than 50 years.

The applicable statutes are as follows:

I.C. § 40-101. 'Highways are roads, streets or alleys, and bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public.' R.S. § 850; reen. R.C. & C.L. § 874; C.S. § 1302; I.C.A. § 39-101; repealed by S.L.1950 (1st E.S.), ch. 87, § 24, p. 117.

I.C. § 40-103. 'Roads laid out and recorded as highways, by order of the board of commissioners, and all roads used as such for a period of five years, provided the latter shall have been worked and kept up at the expense of the public, or located and recorded by order of the board of commissioners, are highways. * * *' R.S. § 851; am. 1893, p. 12, § 1; reen. 1899, p. 168, § 2; reen. R.C. & C.L. § 875; C.S. § 1304; I.C.A. § 39-103.

I.C. § 40-402. 'Highways are hereby defined as roads, streets, alleys and bridges laid out or established for the public or dedicated or abandoned to the public, and shall be deemed to include necessary culverts, sluices, drains, ditches, waterways, embankments, retaining walls, bridges, tunnels, grade separation structures and roadside improvements, appurtenant to such highways.' Enacted 1939 S.L., ch. 16, § 2, p. 33; repealed S.L.1951, ch. 93, § 36; reen. S.L.1951, ch. 93, p. 165, § 2, essentially the same as:

I.C. § 40-107. 'Highways are hereby defined as roads, streets, alleys and bridges laid out or established for the public or dedicated or abandoned to the public. Such highways shall include necessary culverts, sluices, drains, ditches, waterways, embankments, retaining walls, bridges, tunnels, grade separation structures, roadside improvements pedestrian facilities, and any other structures, works or fixtures incidental to the preservation or improvement of such highways.' Enacted S.L.1951, ch. 93, p. 165, § 2.

I.C. § 40-2201. 'All highways which have been designated by the department of public works as state highways and taken over, improved, constructed, reconstructed, repaired, or maintained by the department of public works, at any place within the state of Idaho with funds derived from any source, including highways designated and taken over, improved, constructed, reconstructed, repaired, or maintained within the limits of incorporated cities and villages are state highways and shall be deemed to include necessary culverts, sluices, drains, ditches, waterways, embankments, retaining walls, bridges, grade separation structures or roadside improvements, appurtenant to such highways.' Enacted S.L.1913, ch. 179, § 9, p. 564; reen. C.L. 63:9; C.S. § 1580; I.C.A. § 39-2101; am. 1935 (2nd E.S.) ch. 4, § 1, p. 9; repealed S.L.1950 (1st E.S.) ch. 87, § 24, p. 117.

Upon trial plaintiff produced evidence of the establishment of the highway as follows:

Order of the board of commissioners of Bear Lake county, April 6, 1875:

'Ordered, that the present traveled road commencing at the North West Corner of Lot 7, Block 4, St. Charles Five Acre Survey, running thence Easterly over the Outlet bridge and across the Highway at the North end of Bear Lake, thence following the Present road Northerly by Merckley's & Grimmett Ranches, crossing Bear River at the old Peg Leg Ford, to and through Preston, Montpelier, Bennington, Georgetown to the northern boundary of the County, be and is hereby declared a County Road.'

Order of the board of commissioners of Bear Lake county, June 3, 1891:

'Ordered that all County Roads in Bear Lake County shall be six rods wide and that the County Surveyer is ordered to survey and plat them as instructed by Board of Co. Com.'

Plaintiff's exhibit 'I' is a map of the highway from Preston extending in a north-northwest direction through Montpelier and Bennington to Georgetown. This map indicates the width of the highway as 2 1/2 chains. The map was prepared by county surveyor E. N. Austin from surveys made by him April 30, 1879, and September 15, 1883, and was recorded November 25, 1883.

Exhibit 'C', an excerpt from a report of the state highway commission for the period ending December 31, 1914, recites that the commission selected the highway involved as a part of route no. 1 of the state highway system.

Plaintiff's exhibit 'G' is a map of the Burdick property showing its location with reference to the highway. This exhibit was prepared by a licensed civil engineer, Howard L. E. Johnson, maintenance engineer for district no. 1 of the state highway system. Johnson testified that he prepared the map from a survey made by him in May, 1960. He procured the description of the Burdick property from the records of Bear Lake county, as it appears in the deed by which Burdick acquired the property in 1935. The starting point in this description is the south quarter corner of Section 9, Township 12 South, Range 44 East of Boise Meridian. Johnson testified that he commenced at the fence line on the highway and measured east along the fence line on the section line between sections 9 and 16; and that he found a stone of the approximate dimensions given in the field notes of the original survey. This stone was marked '1/4', also as recited in the original field notes. Pictures of this monument were identified by the witness and admitted in evidence as plaintiff's exhibit 'H'. These pictures show the stone under an old barbwire fence. He continued east along the section line but did not find the corner common to sections 9, 10, 15 and 16; he continued on east on the line between sections 10 and 15 and found the quarter corner common to those two sections, a stone of a type 'that weathers quite badly,' and which had weathered somewhat. This stone was also marked '1/4' as stated in the original field notes, but did not 'quite fit the dimensions quoted in the original notes.' From this point the witness chained east and did not find the corner common to sections 10, 11, 14 and 15. He continued on east and found the quarter corner common to sections 11 and 14. This was a stone, also marked '1/4', as described in the original field notes. After checking the location of the south quarter corner of section 9 against the other quarter corners found, and finding the distances between the three quarter corners to correspond with those given in the notes of the original survey, the witness surveyed the Burdick property, using the courses and distances given in the description in the Burdick deed, and starting with the south quarter corner of section 9, as found by him. This survey and the map prepared therefrom show the frontage line of the Burdick property to be approximately 21 feet east of the east line of the highway. This 21-foot strip is not claimed by the plaintiff and upon it rests a portion of the buildings owned by the defendants. The east line of the highway, shown by Exhibit 'G' and as claimed by plaintiff, runs immediately back of the concrete island and pumps in front of defendants' service station, and parallel to and about a foot or a foot and a half westerly from an old fence running along the east side of the highway.

One, Ralph H. Benson, a licensed land surveyor, testified in behalf of the defendants. This witness made two surveys of the Burdick property, also using the description taken from the deed to Burdicks of 1935. He testified he was unable to locate the south quarter corner of section 9; that he found the quarter corner between sections 10 and 15; the quarter corner between sections 11 and 14; the corner common to sections 11, 12, 13 and 14; the corner common to sections 2, 3, 10 and 11; the corner common to sections 21, 22, 27 and 28; the corner common to sections 20, 21, 28 and 29; and that he checked his survey against information contained in a railroad map, and in a highway plat of 1924. From the corners found by him he relocated the south quarter corner of section 9, and from that corner as thus relocated he surveyed the Burdick...