Roberts v. Swim
| Decision Date | 02 November 1989 |
| Docket Number | No. 16960,16960 |
| Citation | 784 P.2d 339,117 Idaho 9 |
| Parties | Joseph P. ROBERTS and Wanda L. Roberts, husband and wife, Plaintiffs-Respondents-Cross Appellants, v. Sherman SWIM and Rhea Swim, husband and wife, Defendants-Appellants-Cross Respondents. |
| Court | Idaho Court of Appeals |
The Court's prior opinion, dated April 28, 1989, is hereby withdrawn.
Joseph and Wanda Roberts brought an action claiming that either a public roadway or a private easement existed on two routes across the property of Sherman and Rhea Swim. The district court held that an easement existed on one of the two routes by prescriptive use. The Swims have appealed, contending that the evidence was insufficient to establish the prescriptive easement. A cross-appeal raises additional issues which we summarize as follows: (1) whether the court erred in failing to find the existence of a prescriptive easement or easement by necessity on both routes, or that some part of the routes are public roads; and (2) whether the court erred in failing to award damages and attorney fees.
Because most of our discussion concerns the actions of Mr. Roberts and Mr. Swim, we will refer to Roberts and Swim as though they were singular parties to this appeal. Roberts and Swim own ranches in Power County, adjacent to the easterly boundary of the Fort Hall Indian Reservation of the Shoshone-Bannock Tribes. A public road within the reservation, Rattlesnake Road, provides access to the ranches from the west. The road reaches Roberts' "home place" to the north. Further south it leads to a driveway from the reservation boundary up to a ranch house owned by Swim near the northerly side of Midnight Creek. Roberts owns two parcels of land a quarter of a mile apart, separated by a canyon through which Midnight Creek flows. Roberts' "home place," or Parcel B, lies northerly of Midnight Creek. Parcel A, the southeast quarter of section 18, lies southerly of Midnight Creek. Parcel A is mostly on an isolated hilly plateau lying between the confluence of Midnight Creek and Little Midnight Creek. It is surrounded on three sides by BLM land and on the fourth side by Swim's property. An illustrative sketch is appended to this opinion.
Roberts claims the right to use roads on Swim's property which generally follow the two creeks from their confluence up the canyons to his two parcels. Although Rattlesnake Road provides Roberts with a public roadway to his home place, he claims the right to use the two creek roads through Swim's property to reach Parcel A with vehicles and farm equipment and to give him an alternate route to his home place. Swim owns the property where the creeks and the roads converge. Above his house, a jeep trail or road continues parallel to Midnight Creek. This road exits Swim's property, crossing the neighboring BLM property, and enters the northwest corner of Roberts' Parcel A. The road then turns north, crossing additional BLM property and eventually heads back west to enter the southeast corner of Roberts' Parcel B.
The second road also originates in the area of Swim's driveway. This road heads southeast, crossing Midnight Creek and follows a separate waterway known as Little Midnight Creek. After this road exits Swim's property, it crosses the southern portion of the adjoining BLM property and enters the southwest corner of Roberts' Parcel A.
At one time, Swim was willing to grant Roberts permission to use the roads but he resisted Roberts' claim of a right to such use. This lawsuit resulted from Swim's efforts to block the use. Following trial to the court, the judge issued a memorandum decision. After finding that the roads were not public roads, that no public easements existed across Swim's property to either Parcel A or Parcel B, and that Roberts had proved no private prescriptive easement to Parcel B, the court stated:
There is evidence, though conflicting, of an easement to Parcel A by prescription. The Court recognizes that there was evidence also of the limited farming of Parcel A by plaintiffs Roberts and consequently limited use of the access. However, the Court is satisfied that the use under Idaho law does establish a prescriptive easement. That easement across the Swim property, however, is useful only if plaintiffs also have a right to cross BLM ground. Nothing in this decision is meant to suggest [sic] or affect plaintiffs' rights across BLM ground. It is also clear from the evidence that the easement use was for the purpose of farming and not for other purposes.
The prescriptive easement to Parcel A was described by the court as "sufficient to accommodate grain combines and be at least eighteen feet wide." In order to "accommodate" the easement, Swim was ordered to bear the expense of replacing a culvert across Midnight Creek which he had removed.
The court then directed "Plaintiffs [Roberts] to prepare proposed findings of fact and conclusions of law consistent with this decision." Roberts' counsel was reluctant because his client had hardly prevailed. He at first declined, citing Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977), but complied with the court's later request for both parties to submit proposed findings and conclusions. Both did, but the court adopted, verbatim, the findings and conclusions prepared by Swim's counsel.
In an appeal such as this we are presented with a review of mixed questions of law and fact. As to findings made by the district court, we will defer to those that are supported by substantial evidence. I.R.C.P. 52(a). We exercise free review on the question whether the facts found are sufficient to satisfy the legal requirements for the existence of a prescriptive easement. See Burrup v. Stanger, 114 Idaho 50, 753 P.2d 261 (Ct.App.1988), aff'd, 115 Idaho 114, 765 P.2d 139 (1988).
The Supreme Court and this Court have repeatedly warned that findings ought not be prepared by counsel and adopted verbatim by the trial judge unless the judge previously has given sufficiently detailed directions for their preparation. Here, the decision failed to adequately guide the preparation of critical findings. Nor is it surprising that the findings prepared by the defendant are inadequate to support plaintiff's claim of easement. The findings relating to Roberts' use of the roadways across Swim's property are essentially limited to the following:
Some clearing and farming operations were conducted on parcel A by Plaintiffs at various times after acquiring the property. The evidence is unclear whether Plaintiffs used a route from parcel B to point B on Exhibit 4, or used a route going up Little Midnight Creek. The time and duration of any clearing and planting was not sufficiently established by the evidence except for the years 1967 to 1968 and 1980-1985, when some crops were raised on parcel A.
A claimant, in order to acquire a prescriptive easement in Idaho, must present reasonably clear and convincing evidence of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge, actual or imputed, of the owner of the estate for the prescriptive period. West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973); Melendez v. Hintz, 111 Idaho 401, 724 P.2d 137 (Ct.App.1986). The use of the land must also constitute some actual invasion or infringement of the right of the landowner. Trunnell v. Ward, 86 Idaho 555, 389 P.2d 221 (1964). A prescriptive right cannot be obtained if use of the servient estate is by permission of the landowner. State ex rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979). However, proof of the claimant's "open, notorious, continuous and uninterrupted [use] for the prescriptive period, without evidence to explain how it began, raises a presumption that it was adverse and under a claim of right...." Sinnett v. Werelus, 83 Idaho 514, 522, 365 P.2d 952, 956 (1961). Two exceptions to this rule have been recognized: (1) when the servient land is wild, unenclosed or unimproved, a presumption arises that the use is permissive; (2) in the absence of evidence establishing whether use began adversely or with the permission of a servient owner, when the owner of the real property constructs a way over the property for his own use, the mere use by others which in no way interferes with his use will be presumed to be by way of license or permission. Simmons v. Perkins, 63 Idaho 136, 118 P.2d 740 (1941); Melendez v. Hintz, supra.
The prescriptive period in Idaho is five years. I.C. § 5-203. To establish a prescriptive easement, Roberts was required to prove continuous, uninterrupted use of the roads for the prescriptive period. Roberts purchased his property in 1957. He commenced this action against Swim in September 1983. Therefore, before Roberts could succeed on his claim of an easement by prescription he needed to prove that he or his predecessors had used the roadways across Swim's property for some uninterrupted five-year period of time before this suit was filed. 1
As is often the case with evidence concerning the use of roadways over a long period of years, the testimony here was uncertain and highly disputed. It was, and is, the province of the trial court to determine whether the plaintiffs presented "reasonably clear and convincing evidence" of open, notorious, continuous use of the claimed easements for some five-year period of time before the suit was filed. West v. Smith, supra. 2 If a claimant meets this standard of proof, then the trial judge should be able to make findings as to the nature and frequency of the use, the route or routes which were used, the years during which the use occurred without interruption, and whether the use was adverse to the owner of the fee or...
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