Opinion
Docket No. 25328.
Filed March 6, 2001.
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Roger S. Burdick, District Judge.
Summary judgment in favor of defendants, affirmed in part and reversed in part, and case remanded.
James Annest, Burley, for appellant.
Blaine County Prosecutor's Office, Hailey, for respondent Blaine County.
Douglas A. Werth argued.
Hogue Dunlap, L.L.P., Hailey, for respondent A. W. (William) and Maxine Molyneux and The Molyneux Brothers Partnership. Terry G. Hogue argued.
Rolig Peterson, Twin Falls, for respondent Ruth Schoessler. Steven D.
Peterson argued.
May, Sudweeks, Kershaw Browning, Twin Falls, for respondent Lakeside Industries. J. Dee May argued.
This is an action by which the plaintiff joint venture, The John W. Brown Properties (Brown), sought a declaration that a road leading from Brown's agricultural property to a county highway is a public roadway. The district court granted summary judgment in favor of the defendants, and Brown appeals.
FACTS AND PROCEDURAL HISTORY
We described the circumstances giving rise to this litigation in our opinion on a prior appeal in the same case, The John W. Brown Properties v. Blaine County, 129 Idaho 740, 932 P.2d 368 (Ct.App. 1997) (Brown I):
Viewing the evidence in the light most favorable to the plaintiff-appellant, the facts underlying the litigation are as follows. The plaintiff in this action, John W. Brown Properties (Brown), is a joint venture. It owns Grove Ranch, a tract of land that lies south of Baseline Road, a main highway in Blaine County.
The ranch is accessible by means of an unpaved stretch of gravel road, called Grove Road, which runs southward from the highway and along the east boundary of a parcel owned by the Molyneux Family Partnership and individual members of the Molyneux family (referred to collectively as Molyneux).
Molyneux blocked Brown's access to Grove Ranch in the spring of 1990, after discovering that Brown was planning to sell two parcels of the ranch to a developer. According to the complaint, Molyneux constructed and locked a steel gate at the entrance to Grove Road where it intersects with the highway.
Molyneux also posted at the gate signs which said "no trespassing," and "private property." Brown asked Blaine County to intervene and re-open Grove Road, which Brown asserts is a county road. The county, however, declined to take any action. Brown then initiated this action against Molyneux, Blaine County and the Blaine County Commissioners seeking a judicial declaration that Grove Road is a public roadway, an order enjoining obstruction of the road by Molyneux, and a judgment against Molyneux for damages caused by placement of the gate on the road. Id. at 741-42, 932 P.2d at 369-70.
Pertinent to this appeal, we add to the foregoing facts the observation that Grove Road has two segments. The northernmost segment runs .63 miles from Baseline Road along the east side of a parcel that was previously owned by individuals named Clark and purchased by Molyneux in 1984. The other segment continues southward about .25 miles along the edge of a parcel previously owned by individuals named Byington and purchased by Molyneux in 1973. The road ends as it enters the Brown property, which lies immediately south of the old Byington parcel now owned by Molyneux.
This southern segment of the road is sometimes referred to in the evidence and briefing as having a length of .4 miles rather than .25 miles. For purposes of this opinion, our reference to the "southern segment" or the "southern .25-mile segment" of Grove Road means the portion running from the boundary between the old Clark and Byington parcels southward to the Brown property, whatever the true length of that segment may be.
In the prior appeal, we affirmed a summary judgment in favor of the defendants on Brown's claim that Grove Road had been established as a county roadway through any of the methods specified in Idaho Code § 40-202 (Supp. 1992), which required recordation of the documents by the Board of County Commissioners; but we held that Brown had also pleaded a claim that Grove Road was established as a public roadway prescriptively under I.C. § 40-202(3) by means of public use and maintenance at public expense for a period of five years. With respect to this latter theory, we concluded the defendants had not demonstrated entitlement to summary judgment. Therefore, we remanded the case for further proceedings.
On remand, there was a joinder of additional defendants, Ruth Schoessler and Lakeside Industries, who own the parcels lying between the Brown property and Baseline Road on the east side of Grove Road. Thereafter, the defendants again filed motions for summary judgment.
They contended that, even if Grove Road had once been constituted a public roadway by reason of public use and public maintenance, it had been abandoned through lack of such use and maintenance for a period of at least five years and therefore was no longer a county roadway.
The district court concluded that, assuming Grove Road was once a county roadway, the defendants had shown that the road had not been used or maintained by the public from at least 1973 until 1986 and had thereby lost its public character through abandonment. The district court therefore granted the defendants' summary judgment motion. Brown again appeals.
ANALYSIS A. Abandonment
The legal standards governing our review of a summary judgment remain the same as expressed in Brown I:
Summary judgment is proper if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."
I.R.C.P. 56(c); Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991).
When a court assesses a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. G M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Tusch Enterprises v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987). Likewise, all reasonable inferences which can be drawn from the record must be drawn in the nonmovant's favor. G M Farms, 119 Idaho at 517, 808 P.2d at 854; Clarke v. Prenger, 114 Idaho 766, 760 P.2d 1182 (1988); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 876 P.2d 154 (Ct.App. 1994). The burden of proving the absence of an issue of material fact rests at all times upon the moving party. McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991); G M Farms, supra.
Nevertheless, when a motion for summary judgment has been properly supported with evidence indicating the absence of material factual issues, the opposing party's case must not rest on mere speculation, and a mere scintilla of evidence is not enough to create a genuine issue of fact. McCoy, 120 Idaho at 769, 820 P.2d at 364; G M Farms, 119 Idaho at 517, 808 P.2d at 854. On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct.App. 1986). Brown I, 129 Idaho at 742, 932 P.2d at 370.
In the summary judgment proceedings below, the parties presented evidence about the use and maintenance of Grove Road for a period of several decades. The district court based its decision on evidence of nonuse and nonmaintenance from 1973 until 1986. Therefore, to review the propriety of the district court's decision, we examine and apply the statutes governing the abandonment of public roadways that were in effect from 1973 to 1986. See Galvin v. Canyon Highway Dist. No. 4, ___ Idaho ___, 6 P.3d 826 (2000) (applying the former I.C. § 40-104 to determine whether a residential road had been abandoned during a period commencing in 1968).
The pertinent statute in effect in 1973 was I.C. § 40-104, which provided in part: "A road established by prescription not worked or used for the period of five (5) years ceases to be a highway for any purpose whatsoever." In 1985, the statute was renumbered I.C § 40-203 and amended slightly, but the operative language quoted above was unchanged. Thus, during the time span pertinent to this appeal, the only statutory criteria to determine whether Grove Road had been abandoned was the provision of I.C. § 40-104 (1973) and § 40-203 (1985) that "a road established by prescription not worked or used for a period of five (5) years ceases to be a highway for any purpose whatsoever." Under these statutes, a public roadway could be abandoned only if there was neither public maintenance nor public use for the requisite five years. That is, the continuation of either public maintenance or public use would preclude an abandonment. Galvin, 134 Idaho at 579, 6 P.3d at 829; Taggart v. Highway Bd. for N. Latah County Highway Dist., 115 Idaho 816, 817, 771 P.2d 37, 38 (1988). Thus, summary judgment in favor of the defendants is appropriate only if uncontroverted evidence demonstrates that Grove Road received neither public maintenance nor public use for a period of at least five years.
Section 40-203 was substantially revised in 1986, but the 1986 amendment is irrelevant to our analysis.
We consider first the public maintenance component. We have found no reported decisions from this state addressing the extent or quality of the public maintenance that is required in order to prevent the abandonment of a public roadway. However, with respect to the type of maintenance that is necessary for the establishment of a public road by prescription, it has been said:
It must be shown that the public agency's maintenance of the road was performed at necessary times and places. It is not required that the road be worked on for five consecutive years, nor does the statute require work to be done throughout the road's entire length. State v. Nesbitt, [ 79 Idaho 1, 310 P.2d 787 (1957]. Thus, the facts should show that . . . public funds were used to maintain the road for a five-year period; the maintenance being more than occasional or sporadic, but as was necessary. . . . The facts must demonstrate that minor maintenance work or snow removal, done by the public road crews, was not a mere gratuitous aid to the local landowners or citizens.
Burrup v. Stanger, 114 Idaho 50, 53, 753 P.2d 261, 264 (Ct.App. 1988), aff'd, 115 Idaho 114, 765 P.2d 139 (1988). We will utilize this same standard for purposes of determining the sufficiency of public maintenance to avoid an abandonment.
We recognize that the Idaho Supreme Court in Galvin, limited the applicability of Burrup, holding, "Burrup only applies to the creation of prescriptive public rights-of-way, not their abandonment." Galvin, ___ Idaho at ___, 6 P.3d at 829. However, we read the Galvin opinion to hold that the distinction between the creation and abandonment of a prescriptive public right-of-way is that in the creation, as in Burrup, there must be two factors present: both public use and maintenance for a period of five years. In contrast, abandonment will be prevented by either public use or public maintenance of the right-of-way.
The defendants' summary judgment motion was supported by affidavits of personnel of the Blaine County Road and Bridge Department, which is responsible for maintenance of all Blaine County roads. They also submitted affidavits of defendant A. W. Molyneux and William Yager, the ranch manager for defendant Lakeside Industries. Collectively, these affidavits present evidence that from as far back as 1973, the southernmost .25-mile segment of Grove Road (running southward from the boundary between the old Byington and Clark parcels) had not been subject to the county's maintenance system. Molyneux averred in his affidavit that he had observed no actual maintenance or evidence of maintenance of that segment since purchasing one of the adjoining parcels in 1973. An affiant who had been employed by the county road and bridge department since 1978 attested that during the entire period of his employment, Grove Road had not been regularly maintained by the county and had never been on the county's regular snowplowing route. He also averred that until the late 1980s, it was not uncommon for the Blaine County Road and Bridge Department to perform occasional work on private roads, particularly farm lanes, as a favor to landowners. The affidavits of county employees acknowledged that there had been, since the early or mid-1980s, three instances of limited work on Grove Road, including snow plowing, done by the county as a favor to an adjoining landowner and not as part of any routine maintenance by the county. It is not clear whether any of this work was done on the southern section of the road.
In opposition to the summary judgment motion, Brown presented deposition testimony of the road foreman for Blaine County, who had been employed by the county since 1978. He testified that in 1986, as a result of a request from a property owner or a county commissioner, county personnel graded some portion of Grove Road and "brought it up to a classification of graded and drained." He also testified, based on county records, that the road was graded on two days in April 1990. This grading did not extend all the way to the Brown property, but went to a trailer house that was then located on Grove Road.
Bearing in mind that occasional maintenance work done as "a mere gratuitous aid to the local landowners" does not qualify as public maintenance, Burrup, supra, the foregoing evidence shows an absence of public maintenance on the southern .25-mile segment of Grove Road, at least during the period from 1973 to 1986. There is no evidence of any maintenance work, even as a favor to landowners, from 1973 until the early 1980s. Thus, the evidence shows without controversion a period of more than five years forward from 1973 in which there was no public maintenance of the southern section of Grove Road.
The defendants' demonstration of an absence of public maintenance for the requisite five-year period will not result in an abandonment unless there was also an absence of public use during the same period. Although public use that is "more than only casual and desultory," is necessary for the creation of a public road by prescription, Kirk v. Schultz, 63 Idaho 278, 284, 119 P.2d 266, 269 (1941); Burrup, supra, the same may not be said of the public use that will be sufficient to avoid abandonment. For the latter purpose, even minimal public use will suffice. "[A]ny continuous use no matter how slight, by the public, is sufficient to prevent a finding of abandonment." Galvin, 134 Idaho at 580, 6 P.3d at 830 (quoting Taggart, 115 Idaho at 818, 771 P.2d at 39).
All of the property now abutting Grove Road is agricultural land without residences. To prove the absence of public use of the southern portion of Grove Road, the defendants offered the affidavits of A. W. Molyneux and William Yager. These affidavits attest to an absence of public use on the southernmost .25-mile segment since as far back as 1973 when Molyneux purchased the old Byington parcel. Specifically, each affiant states: "I have never seen any person upon the area over which runs the alleged public highway south of the old boundary between the Clark and Byington parcels for any purpose, nor have I ever seen any evidence persons were using such alleged public highway." Thus, to avoid summary judgment, it was necessary for Brown to present evidence of public use sufficient to raise a genuine factual issue. In opposition to the motion, Brown submitted evidence from numerous witnesses regarding public use of Grove Road, but each of these affidavits either specifically refers to periods of public use before 1973 or does not specify the time period. Brown presented no evidence that any portion of the road had been subject to public use after 1973. Hence, as to the southern .25-mile segment, there is no material issue of fact. The uncontroverted evidence shows that there has been no public use of this segment since 1973 and no public maintenance from 1973 to 1986. The defendants have demonstrated that the southern .25-mile segment was abandoned pursuant to I.C. § 40-104 by sometime in 1978, after five years of continuous nonuse and nonmaintenance.
The district court's summary judgment was overbroad, however, in that it declared the entire length of Grove Road to have been abandoned. The defendants did not prove the absence of public use of the northernmost .63-mile segment of Grove Road during any time frame.
Because a party resisting summary judgment is not required to present evidence on elements of his or her case that have not been challenged by the motion, Smith v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 714, 719, 918 P.2d 583, 588 (1996); Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272-73, 869 P.2d 1365, 1367-68 (1994), the burden did not shift to Brown to present evidence of public use of the .63-mile segment in order to avoid summary judgment with respect to that portion of Grove Road. Consequently, the district court erred in granting summary judgment as to the northern .63-mile segment, and this matter must be remanded for further proceedings with respect to this northern portion of Grove Road.
Brown has also raised several other arguments that statutory procedures and standards for abandonment of a county road were not met with respect to Grove Road, including an argument that abandonment is precluded by I.C. § 40-203(2), which prohibits an abandonment that will leave any property adjoining the abandoned highway without access to another highway. However, these arguments are all predicated upon statutory amendments made in 1986 or later, and therefore cannot affect an abandonment accomplished years earlier under the then-existing statutory scheme.
No claim of a right to an easement across the defendants' property has been pleaded or litigated in this case.
B. Equitable Estoppel
Finally, Brown asserts that even if the evidence establishes abandonment through the discontinuance of public use and public maintenance, Blaine County should be equitably estopped from asserting that Grove Road has been abandoned because on highway maps created by the county from 1968 to 1993, Grove Road is shown as a county roadway. Brown presented evidence that Blaine County received state revenue-sharing funds based upon the mileage of county roadways shown on the maps and thus derived financial benefit from claiming Grove Road as a county roadway until 1993. Brown contends that Blaine County should therefore be estopped from now taking an inconsistent position by claiming that the road was abandoned in the 1970s.
We must reject this argument because Brown has not satisfied the elements of equitable estoppel, which are: (1) a false representation or concealment of a material fact made with actual or constructive knowledge of the truth; (2) the party asserting estoppel did not know and could not have discovered the truth; (3) an intent that the misrepresentation or concealment be relied upon; and (4) the party asserting estoppel relied on the misrepresentation or concealment to his or her prejudice. Record Steel Const., Inc. v. Martel Const., Inc., 129 Idaho 288, 292, 923 P.2d 995, 999 (Ct.App. 1996). See also Twin Falls Clinic Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 22, 644 P.2d 341, 344 (1982); Young v. Idaho Dep't of Law Enforcement, 123 Idaho 870, 874-75, 853 P.2d 615, 619-20 (Ct.App. 1993). Although there is evidence from which it might be found that the first two elements of equitable estoppel are satisfied, the record contains no support for the last two elements. Brown has not alleged or presented evidence that the county included Grove Road on its highway maps with the intent that it be relied upon by Brown or any owners of the adjacent land, nor is there evidence that Brown in fact relied upon the content of the county road maps in any fashion. Indeed, there is no evidence that any participant in, or representative of, the Brown joint venture was aware of the content of the county maps prior to the commencement of this litigation. Therefore, Brown has not established that the county should be estopped from claiming abandonment of Grove Road.
We also observe that the maps show only the northern .63 miles of Grove Road to be county roadway and therefore do not represent as county roadway the southern segment of Grove Road for which the evidence establishes abandonment.
C. Attorney Fees on Appeal
The defendants request an award of attorney fees on appeal pursuant to I.C. § 12-121 and Idaho Appellate Rule 41. Attorney fees are justified under these provisions only where the appeal was brought, pursued or defended frivolously, unreasonably or without foundation. I.R.C.P. 54(e)(1). That standard is not satisfied here. Indeed, we are vacating the summary judgment in part. Therefore, we decline to grant attorney fees on appeal.
CONCLUSION
The defendants presented evidence sufficient to prove a complete absence of public use or public maintenance of the southernmost .25-mile segment of Grove Road from the years 1973 to 1986. Brown presented no controverting evidence with respect to that time period and that segment of the road. Therefore, the district court's summary judgment declaring that southern segment of Grove Road to have been abandoned is affirmed. The evidence was insufficient, however, to show a lack of public use of the northern .63 miles of Grove Road, and consequently summary judgment with respect to that segment of the roadway is reversed. The case is remanded for further proceedings. No costs or attorney fees are awarded on appeal.
Judge PERRY and Judge Pro Tem SWANSTROM CONCUR.