Thomas v. Campbell

• Decision Date: 18 October 1984
• Docket Number: No. 14862,14862
• Citation: 107 Idaho 398,690 P.2d 333
• Parties: Harold E. THOMAS and Phyllis S. Thomas, husband and wife, Plaintiffs- Appellants, v. James P. CAMPBELL, Don R. Holland, Paul M. Resnick and Cheri D. Resnick, husband and wife, Defendants-Respondents, and Flying Eagle Resorts, Intervenor-Respondent.
• Court: Idaho Supreme Court

Page 333

690 P.2d 333

107 Idaho 398

Harold E. THOMAS and Phyllis S. Thomas, husband and wife, Plaintiffs- Appellants, v. James P. CAMPBELL, Don R. Holland, Paul M. Resnick and Cheri D. Resnick, husband and wife, Defendants-Respondents, and Flying Eagle Resorts, Intervenor-Respondent.

No. 14862.

Supreme Court of Idaho.

Oct. 18, 1984.

Howard W. Carsman, Boise, for plaintiffs-appellants.

Gregory Fitzmaurice, Grangeville, for defendants-respondents Resnick.

Dwight F. Bickel, Boise, for Campbell, Holland and Flying Eagle Resorts.

BISTLINE, Justice.

Prior to 1979, James Campbell, defendant-respondent herein, was the owner of two parcels of real estate in the Gospel-Hump Wilderness area on the Salmon River in Idaho County. One parcel of approximately 135 acres on the north side of the Salmon River was known as the Shepp Ranch. The other parcel, known as the Polly Bemis property was situate on the south side of the river, and in view of the Shepp Ranch. Campbell operated the Shepp Ranch as a hunting and fishing resort, accommodating approximately 1,000 people per year. The only means of access to the ranch were by boat, horse, foot or small plane.

On June 8, 1979, Campbell entered into a contract of sale with defendant-respondent Paul Resnick for approximately 105 acres of Shepp Ranch, Campbell reserving from the sale approximately thirty acres of Shepp Ranch. Campbell, as owner of the adjacent thirty acres not being sold to Resnick, in the Resnick transaction created and reserved a "scenic easement" against a one-quarter mile long strip of the Resnick tract fronting on the Salmon River, which easement was to be freely assignable. Pertinent terms of the Campbell-Resnick agreement which have relevance to the Campbell-Thomas transaction were that the easement shall be in substantial conformance with the terms and provisions of Exhibit E, with no more strict Grantor restrictions being imposed, and the public or governmental use allowed being no more liberal than as set forth in said exhibit. In addition, however, said easement shall specifically provide for the construction of a duplex living unit along the bank of the Main Salmon River in the area so conveyed, if such duplex has not been completed prior to the sale of said easement, and in addition, Seller shall use his reasonable efforts to successfully negotiate permission for a living room addition to the main lodge in conjunction with the sale of said scenic easement, but shall not be liable to Purchaser if such negotiations are not successful.

....

Purchaser acknowledges that, prior to his execution of these presents, Seller has advised him that the scenic easement herein reserved to Seller is a valuable property right and does and will restrict use of the servient estate, as generally set forth in Exhibit E.

R., pp. 231-32 (emphasis added).

Exhibit E, referred to and incorporated within the Campbell-Resnick contract, was a four-page contract proposal between the United States Forest Service and unspecified "grantors" (hereafter referred to as the Forest Service easement) which restricted the use of the lands within the easement area from professional, commercial, mining or industrial activity, from subdivision, and from building additional structures with the exception of one duplex.

It is to be noted that in the Resnick contract, Campbell covenanted that on the thirty acres reserved by him there would be no commercial development or subdivision, and that the land would be restricted to residential use. R., Vol. 2, p. 229. Thus, each tract was unto the other tract both a dominant and a servient estate.

In December of 1979, Harold and Phyllis Thomas, plaintiffs-appellants herein, entered into negotiations with Campbell to purchase the thirty-acre tract still owned by Campbell. Thomas testified that, during negotiations, Campbell represented to him that the "scenic easement" which he had reserved from the Resnick deed had been sold to the Forest Service and that the easement "restricted any of the operations on the Ranch to what it currently was. [The Resnicks] could build an addition onto the lodge, and they could build one additional dwelling unit ...." Tr., p. 44. The Thomas-Campbell contract recited: "(c) It is understood and agreed that the Seller has entered into an agreement to sell to the U.S. Forest Service a scenic easement on the adjacent property known as the Shepp Ranch." R., Vol. 2, p. 15. ¹

Thomas testified that it was in reliance on these representations that the Thomases agreed to purchase the thirty-acre tract for a price of $150,000. The Thomas-Campbell contract of sale, consistent with the restrictive covenant in the Resnick contract restricting development of the thirty acres, prohibited the Thomases from commercial development and subdivision of the property and provided that the property would be used solely for residential purposes.

The "scenic easement," however, had not been and was not thereafter sold to the Forest Service. That proposed transaction fell through. The "scenic easement" was, through mesne conveyances, later quitclaimed to Resnick in order to merge it with Resnick's title to his property being acquired under the Campbell agreement. Campbell and Resnick subsequently proposed to build a large-scale commercial development on Shepp Ranch, having approximately 60 condominium units, tennis courts, a swimming pool and a hydroelectric generating facility. The Thomases complained to Campbell of any such action by letters, one from Mr. Thomas, with a copy to Mr. Resnick, and a letter from his attorney to Mr. Campbell with a copy to Mr. Resnick, and, gaining no assurances, filed this action seeking an adjudication that they were entitled to the benefits of the "scenic easement," restrictive covenant or implied equitable servitude reserved or created by the Resnick transaction, and to enjoin the defendants from taking any action which would violate such "scenic easement," restrictive covenant or equitable servitude.

The Thomases moved the district court to pendente lite enjoin any commercial development on Shepp Ranch. The court received testimony on the motion, and thereafter denied the motion.

I.

I.R.C.P. 56(c) provides that a judgment may be entered on a summary judgment motion "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis added.) The facts are to be liberally construed in favor of the party opposing the motion, who is also to be given the benefit of all favorable inferences which might be reasonably drawn from the evidence. Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982).

The court denied a plaintiffs' motion for summary judgment and granted defendants' motion for summary judgment, having taken into consideration the pleadings, affidavits, depositions, and the testimony given at the earlier hearing for the injunction:

Plaintiffs' theory of recovery is premised upon the fact that Defendant Campbell told Thomas in substance that the property Thomas was purchasing would benefit from a scenic easement which attached to certain adjacent property. As set forth in this Court's Memorandum Opinion of July 9, 1982, there is a genuine issue as to a material fact left to be determined relative to Plaintiff's theory, i.e., whether or not Campbell told Thomas that the adjacent property was subject to a scenic easement. Based upon the foregoing, Plaintiffs' Motion for Summary Judgment is denied.

Defendants contend that the statements or representations made by Campbell to Thomas concerning the scenic easement during negotiations and prior to the time the sale was reduced to writing will be inadmissible at trial. Defendants contend therefore that they are entitled to Judgment as a matter of law.

Initially, it should be noted that the preliminary negotiations between Campbell and Thomas did culminate in an integrated written agreement (See Real Estate Purchase Agreement, Memorandum Opinion, Exhibit #4).

It is the opinion of this Court that the Real Estate Purchase Agreement was intended to cover, among other things, the scenic easement issue and that it would therefore be improper for the trier of fact to consider statements of Campbell relative to said easement.

Even if the trier of fact were to consider the statements which Thomas attributes to Campbell, an easement could nonetheless not be imposed to benefit the Thomas Property. The statements Campbell allegedly made to Thomas concerning a scenic easement refer to the proposed Forest Service easement which is attached to the Memorandum Opinion as Exhibit #1. A reading of the document makes it clear that the Court cannot step into the shoes of the United States Government and monitor this property over the years and make the decisions which the Government would have been responsible to make. Furthermore, it cannot be realistically contended that Plaintiff should be given the authority to make such decisions.

In the event that Thomas has suffered damages in this case as a result of wrongdoing by Campbell, his remedy is to seek monetary damages from Campbell, not to seek a declaration that a scenic easement exists which he may enforce.

Based upon the foregoing, Defendants' Motion for Summary Judgment is hereby granted and Judgment will be entered for Defendant and against Plaintiff on Plaintiff's Complaint.

Tr., pp. 36-37.

The foregoing being devoid of supporting authority, it is assumed that reliance was placed upon the authority provided in the Memorandum in Support of Defendants' Motion for Summary Judgment, (R., Vol. 3, p. 386), wherein Tapper Chevrolet Co. v. Hansen, 95 Idaho 436, 510 P.2d 1091 (1973), was relied upon. In that case the court denied the admission of the parties' oral representations prior to the execution of a written contract. Thereafter a...