E. Side Highway Dist. v. Delavan

• Decision Date: 11 December 2019
• Docket Number: Docket No. 45553
• Court: Idaho Supreme Court
• Parties: EAST SIDE HIGHWAY DISTRICT, a political subdivision of the State of Idaho, Plaintiff/Cross-Defendant/Appellant, v. Gregory K. DELAVAN and Ellen J.O. Delavan, husband and wife, Defendants/Cross-Claimants/Respondents.

167 Idaho 325

470 P.3d 1134

EAST SIDE HIGHWAY DISTRICT, a political subdivision of the State of Idaho, Plaintiff/Cross-Defendant/Appellant,

v.Gregory K. DELAVAN and Ellen J.O. Delavan, husband and wife, Defendants/Cross-Claimants/Respondents.

Docket No. 45553

Supreme Court of Idaho, Boise, September 2019 Term.

Opinion Filed: December 11, 2019

Rehearing Denied July 1, 2020

James, Vernon & Weeks, P.A., Coeur d'Alene, for appellant East Side Highway District. Susan P. Weeks argued.

John F. Magnuson, Coeur d'Alene, for respondents Gregory and Ellen Delavan. John F. Magnuson argued.

STEGNER, Justice.

This case involves competing claims to real property asserted by adjacent property owners: The East Side Highway District (the District) and Gregory and Ellen Delavan (the Delavans). The parties dispute the location of their common boundary relating to a portion of a road, Boothe Park Road, which includes a boat ramp located on the shore of Lake Coeur d'Alene.

The District asserts a claim to the disputed property under two theories: First, the District claims there was a boundary by agreement that was established by the location of a fence that was erected by the Delavans' predecessor in interest. Second, the District claims that Boothe Park Road and the boat ramp at its termination is a public highway pursuant to Idaho Code section 40-202(3). In response, the Delavans claim that the boat ramp is on their property, and its use by the public has always been, and remains, permissive. Further, the Delavans assert that the fence which was erected by their predecessor in interest was intended to act as a barrier, not a boundary.

After two bench trials, the trial court ruled in favor of the Delavans, finding that the public's use of the boat ramp had been permissive. As a result, the trial court ruled that the District did not have a right to a public easement based on Idaho Code section 40-202(3). Further, the trial court found that the fence had been erected as a barrier, not a boundary. Instead, the trial court found that the intention of the parties at the time the disputed property was conveyed to the Delavans demonstrated that the Delavans owned the property in dispute. The District timely appealed.

For the reasons set forth in this opinion, we hold that there is substantial and competent evidence to support the trial court's findings that there was no boundary by agreement and that the Delavans own the property in dispute. However, we vacate the trial court's order granting summary judgment in favor of the Delavans because there is no hostility requirement in Idaho Code section 40-202(3). Accordingly, the case is being remanded to determine whether the District has a public easement under Idaho Code section 40-202(3).

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The real property in dispute.

1. Plat of the Lakeside Addition to Sunnyside Subdivision.

In 1910, John Boothe (Boothe) and others prepared and recorded the Plat of Lakeshore Addition to Sunnyside (the Plat). The Plat includes the lake front property in dispute. The Plat created thirty-seven lake front lots on Lake Coeur d'Alene, numbered 2 through 38. There is also an unnumbered lot between Lot 18 and Lot 19.

The Plat has had several notable problems. From the outset, the lots were incorrectly numbered. This is first evidenced in a 1940 deed from Boothe, which conveyed: "All that portion of Lots Thirty-two (32) and Thirty-three (33) of Lakeshore Addition to Sunnyside ... according to the recorded plat thereof, ... being designated upon the official map of said highway as Lots Thirty-three (33) and Thirty-four (34) and lying North and East of Lot Thirty-four (34) (highway map Lot 35) of said addition[.]" (Italics added.) This inaccuracy in the lot numbers was also noted in a 2001 survey conducted by Scott Rasor.

"Mr. John Booth [sic], one of the original plattor's [sic], stated that an error of 100 feet had been made in locating one of the lots and that this accounts for the difference in lot numbers."

The effect of the differences in lot numbering is to shift the numbers 100 feet north, for example, the originally platted lot 28 becomes lot 29.

Throughout the years, surveyors have noted the incorrect lot numbers. However, the original Plat itself has never been amended or corrected.

The incorrectly numbered lots caused an additional problem. It appears that each lake front lot was intended to be 100 feet wide as testified to by Geremy Russell (Russell), the District's expert witness and surveyor. Further, Rasor's 2001 survey noted, "the lots for Lakeshore Addition to Sunnyside were laid out from prior surveys and the original Plat at 100 feet wide and with parallel lines." During trial, the parties argued regarding at what point on the plat the 100 feet was measured. The Delavans argued that it was 100 feet of frontage along Lake Coeur d'Alene. The District contended that the lots were intended to be measured from the north and south parallel boundaries, not the meander lines of Lake Coeur d'Alene.

2. The 1949 deed from John and Gertrude Boothe to Oliver and Edna Delavan.

Three generations of the Delavan family have owned the real property in dispute. Oliver and Edna Delavan are the first generation of property owners and are the parents of Jack and Frank Delavan. Gregory Delavan is Jack's son and Oliver's grandson. For the sake of clarity, first names will be used when referring to the Delavans as individuals.

In 1945, Louis Wasmer executed a warranty deed conveying to Oliver and Edna Lots 19 through 22 according to the Plat. Oliver subsequently sold Lot 22, retaining Lots 19 through 21. According to Jack's testimony, Oliver began building a house on the Delavan property in late 1946.

On August 17, 1949, John and Gertrude Boothe (collectively the Boothes) conveyed to Oliver and Edna a portion of the unnumbered lot located between Lots 18 and 19. The Boothes deeded the following described property to Oliver and Edna:

Commencing at the Northwest corner of Lot 19, as originally platted, Lakeshore addition to Sunnyside, section, 33, Twp 50 North, Range 3 W B M thence North 79° 58' East to the West boundary of the existing county road; thence along the existing right of way line of said county road to its intersection with the meander line of Lake Coeur d'Alene ; thence Southerly along the meander line of said Lake Coeur d'Alene, to the point of beginning, said land being in the county of Kootenai, State of Idaho.

The District's expert, Russell, stated that the deed was likely a corrective measure because Lot 19, as noted on the Plat, was not 100 feet wide.

This appeal largely turns on the italicized language above in the 1949 deed: "thence along the existing right of way line of said county road to its intersection with the meander line of Lake Coeur d'Alene[.]" The current existing road is known as Boothe Park Road. Although he did not know where the county road existed in 1949, Russell testified the best indication of its location was the Plat, which he stated is harmonious with how the road exists today. Further, Russell testified that there was no evidence that the road existed in a different location today than in 1949. The Delavans' surveyor and expert witness, Ernest Warner, also testified he did not know where the existing county road was located in 1949. Warner testified the existing public road today is similar to the road depicted in the Plat.

During trial, Marilyn Moore, Boothe's granddaughter who was born in 1936, testified that Boothe Park Road went to the boat ramp, just as it did in 1949. (Moore had visited the area in 2015.) However, Jack (Oliver's son) testified¹ that the road did not continue to the boat ramp in 1949 because the boat ramp was not built until 1955. Further, Jack stated that "Boothe Park [Road] never ... went past the corner of [the Delavans'] property[.]"

The trial court also admitted in evidence Ray Kindler's 1956 unrecorded survey, which showed the roadway as terminating at "Boothe Park," at a concrete monument near the northeast corner of the Delavan property. According to both Jack and Kindler, the road did not extend beyond that point.

3. The creation of Boothe Park.

On January 21, 1955, the Boothes executed a quitclaim deed, by which they conveyed a portion of the unnumbered lot between Lots 18 and 19, to the Coeur d'Alene Highway District, the predecessor in interest to the East Side Highway District. The deed described the property as a parcel of land 120 feet wide and 150 feet deep measuring from the meander line of Lake Coeur d'Alene. However, this deed was not without its own problems. For example, by all accounts the property was not 120 feet wide. In the survey performed by Kindler in 1956, he noted the width of the property to be only 102.5 feet.²

4. Construction of the boat ramp.

In late January 1955, the Coeur d'Alene Highway District constructed a sixty-by-twelve-foot concrete boat ramp on the property in dispute. According to Jack, Oliver reached an agreement with Bill Stark, the secretary of the Coeur d'Alene Highway District, to allow the construction of the boat ramp on Oliver's property.

Further, Patrick Seale (Seale), who purchased Lots 17 and 18 in 1982 and 1983, testified that he personally observed Oliver performing physical work on the boat ramp. Seale testified over objection that Oliver said that the boat ramp was located on his property, but he allowed the public to use the ramp. Jack testified that he continued this practice.

5. The Delavans' fence.

Shortly after the boat ramp was constructed, Oliver built a fence along the south side of the boat ramp.³ Jack testified that Oliver built the fence to act as a barrier to keep the public who were using the boat ramp from venturing onto the private section of his property. Jack testified that some old posts and remnants of a fence existed when Oliver bought the property. The District argued that the previous posts likely outlined the boundary of Oliver's property.

At a...