IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37728
THOMAS CRELLIN MANNING and )
JULIE ANN MANNING, husband and wife, ) Boise, January 2012 Term
)
Plaintiffs-Appellants, ) 2012 Opinion No. 21
)
v. ) Filed: January 25, 2012
)
WILLIAM J. CAMPBELL, an unmarried ) Stephen W. Kenyon, Clerk
individual, and NAOMI LOUISE )
CAMPBELL, an unmarried individual, )
)
Defendants-Respondents. )
)
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, in and for Ada County. The Hon. Ronald J. Wilper, District Judge.
The judgment of the district court is affirmed.
Thomas A. Banducci, Banducci Woodward Schwartzman PLLC, Boise, argued
for appellants.
Joseph L. Ellsworth, Ellsworth Kallas Talboy & DeFranco PLLC, Boise, argued
for respondents.
EISMANN, Justice.
This is an appeal from a judgment holding that property owners could not relocate or
change the dimensions of an easement for a driveway crossing their property to adjoining
property where relocating the easement as proposed would cause injury to the adjoining property
and where there is no evidence that the existing location and dimensions of the driveway differ
from those established by the prior owners of both properties when the driveway was
constructed. We affirm the judgment of the district court.
I.
Factual Background
In 1952, Paul and Mary Boyd owned a parcel of residential property located at the
terminus of 21st Street, a north-south public street that ended at the southern boundary of their
property. The Boyds had constructed a paved driveway that connected to the end of the street at
about its middle and extended north to a carport on their property. Adjoining the Boyd property
to the west was a residential parcel owned by Frank and Ida Mattison. In order to access the
street from their property, the Mattisons purchased an easement across the Boyds’ property. The
written easement agreement provided as follows:
That Paul S. Boyd and Mary M. Boyd in consideration of $112.50, lawful
money of the United States, to them in hand paid by Frank N. Mattison and Ida
Grace Mattison, do hereby grant unto Frank N. Mattison and Ida Grace Mattison,
for all ordinary purposes a right to use the driveway jointly with Paul S. Boyd and
Mary M. Boyd, the same including all rights of ingress and egress over the same,
the said driveway running and leading from the end of North 21st street of the city
of Boise, Idaho, in a northerly and southerly direction, far enough to allow the
said second parties herein to enter upon their premises, which adjoin the premises
of the first parties on the East side of said premises.
The parties shall be entitled to use the driveway in common, and the
expense of constructing and maintenance of said driveway shall always be equally
borne by both the parties hereto. Should the land subject to this right of way ever
cease to be used as a driveway, then in such a case, the full right and title shall
revert to the present owners or their successors in title.
In 1993, William Campbell and his then wife acquired the Mattison property to which the
easement was appurtenant. Such property is now owned by Mr. Campbell and his mother,
Naomi Campbell. When Mr. Campbell acquired the property, one portion of the driveway on the
Boyd property went straight north from the end of the street into a carport attached to the east
side of the house on the Boyd property. Another portion curved to the right (east) generally in a
northeast direction and connected to the driveway on the Campbell property, which led to the
garage on the north side of the house. On the north side of that part of the driveway on the
Campbell property was a graveled area that the Campbells used for additional parking and for
turning vehicles around. The width of the Boyd driveway where it connected to the end of the
street was essentially the same width as the paved portion of the street, as was the width of the
driveway leading to the Campbell property.
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In 2006, Benjamin and Emily Schwartz acquired the Boyd property. They tore down the
carport and added onto the house. They built a detached, two-car garage south of the house and
west of the driveway, and they changed the west side of the driveway so that after driving onto
the property from the street, one could turn left (west) about ninety degrees and drive to the new
garage.
In October 2008, Thomas and Julie Manning purchased the property from the
Schwartzes. They wanted to change or eliminate the driveway that leads to the Campbell
property, and, when the Campbells would not agree, the Mannings filed this lawsuit on April 17,
2009. The Mannings sought a declaratory judgment holding that the written agreement between
the Boyds and the Mattisons only granted a revocable license. If that failed, they asked for a
declaratory judgment that they were entitled to relocate the easement pursuant to Idaho Code
section 55-313. Prior to trial, the district court ruled that the agreement granted an easement, not
a revocable license. The parties then tried the right of the Mannings to relocate the easement
under section 55-313 and, if they could not relocate it, the right to reduce its width from 12.3 feet
to 9 feet.
At the point where the existing driveway enters the Campbell property, the northern edge
of the driveway is about 55 feet north of the southeast corner of the Manning property and the
southern edge is about 33 feet north of the corner. 1 The Mannings submitted two proposed
relocations of the easement, both of which would change where it connected to the Campbell
property.
Under one proposal, the Campbells’ driveway would begin at the street south of the
Manning property and would go in a northeasterly direction across the unpaved part of the street
right of way to the southern boundaries of the Manning and Campbell properties. The easement
would be a portion of the southeast corner of the Manning property that was triangular in shape,
having an east-west leg that was about 9 feet in length and the north-south leg that was about 8½
feet in length. Under this proposal, the easement would only intrude about 8½ feet onto the
Manning property.
Under the other proposal, the easement would begin at the end of the street where it
currently does, but would then turn sharply to the right (east) ninety degrees and extend to the
1
The difference is more than the width of the easement because the boundary line is north-south and the driveway is
curving to the northeast.
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boundary line between the two properties. At the boundary of the Campbell property, the
northern edge of the easement would be about 16½ feet north of the southeast corner of the
Manning property and the southern edge would be about 4½ feet north of the corner.
Both proposals would require the construction of a new driveway on the Campbell
property that would go from the southern part of the property north to the portion of the existing
driveway that is located on the Campbell property. Otherwise, the Campbells could not access
that portion of their driveway, their garage, or their parking area on the north side of their
driveway.
The Mannings also submitted a third proposal which would leave the driveway in its
current location but would reduce its width from 12.3 feet to 9 feet. After a court trial, the
district court rejected all three proposals, and the Mannings timely appealed.
II.
Did the District Court Err in Holding that the Mannings Could Not Relocate the
Easement as Requested Pursuant to Idaho Code Section 55-313?
Before addressing Idaho Code section 55-313, it would be helpful to point out issues that
are not involved in this case. This case does not involve either the private condemnation of an
easement or an implied easement. Therefore, issues such as the necessity for the easement at the
time it was created; the balancing of the relative situations of the dominant and servient estates,
including respective convenience and inconvenience; and the current necessity for the easement
are not relevant.
The issue is whether Idaho Code section 55-313 gave the Mannings the right to change
the location of the driveway as they proposed. 2 The statute prohibits the relocation of an
easement if the change would “obstruct motor vehicle travel” or would “otherwise injure any
person or persons using or interested in such access.” I.C. § 55-313.
2
Idaho Code section 55-313 provides:
Where, for motor vehicle travel, any access which is less than a public dedication, has
heretofore been or may hereafter be, constructed across private lands, the person or persons
owning or controlling the private lands shall have the right at their own expense to change such
access to any other part of the private lands, but such change must be made in such a manner as
not to obstruct motor vehicle travel, or to otherwise injure any person or persons using or
interested in such access.
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Changing the easement as proposed would clearly obstruct motor vehicle travel. Under
both proposals, the easement would not connect to any existing route designed for vehicular
travel that would provide access to the driveway on the Campbell property. Both proposed
changes in the easement would also injure the Campbells.
The Mannings argue that what constitutes injury is defined by our opinion in Statewide
Construction, Inc. v. Pietri, 150 Idaho 423, 247 P.3d 650 (2011), wherein we stated that in
determining whether there is injury under the statute, “this Court should consider whether the
relocation of the Original Easement to the New Easement location has impaired the ability of the
Appellants to access their property (the purpose for which they hold their easement).” Id. at 431,
247 P.3d at 658. The Mannings point out that both of the proposed relocations would provide
access to the southern part of the Campbell property. However, as stated above it would not
provide access to any existing route designed for vehicular travel, nor would it provide access to
that portion of the driveway that is on the Campbell property, or to the garage, or to the parking
area. To access those areas of their property, the Campbells would need a new driveway
constructed on their property across their front lawn. The quoted statement in Statewide
Construction must be read in the context of the facts in that case.
In Statewide Construction, the easement at issue linked an east-west public road with an
east-west subdivision road to the south. The subdivision road provided direct access to the
dominant estates. The original easement connected to the subdivision road in a fairly straight
north-south route. The owner of the servient estate sought to change the point at which the
original easement connected to the public road by moving that point three-hundred feet to the
west. The relocated easement still connected both east-west roads, but it was longer in length
than the original easement because it went from the public road south for a distance and then
southeast to connect to the subdivision road at about the same place as the original easement had
connected to the subdivision road. The entire lengths of both the original easement and the
relocated easement were on the property of the owner of the servient estate. The change in the
easement did not alter any of the places at which the subdivision road accessed the dominant
estates, nor did it require any alteration in the dominant estates in order to maintain their access.
The owners of the dominant estates contended that they were injured because the
relocated easement was longer than the original easement, the relocated easement may impact
the snow plowing contract of one of the owners of a dominant estate, and one owner of a
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dominant estate thought the point at which the relocated easement accessed the public road was
less safe than the access point of the original easement. We held that these were not the type of
injuries covered by Idaho Code section 55-313. Because it was not an issue in the case, we did
not hold that changing the place at which an easement connects to the dominant estate was not
the type of injury covered by the statute.
The purpose for which the Campbells hold their easement is to access the driveway on
their property, so that they can use their garage and the parking area located north of their
driveway. The purpose of the easement was not to access the southern part of their property.
The proposed changes in the location of the easement would injure the Campbells because it
would require the construction of a new driveway across their front lawn. As the district court
found: “It is undisputed that in order to connect the proposed alternatives to the existing
driveway on [the Campbells]’ property, [Campbells] would need to increase the pavement on the
property and sacrifice trees and lawn. The Court finds that the alternatives proposed by [the
Mannings] would injure [the Campbells] and [their] property.” That factual finding is not
disputed on appeal. The district court did not err in holding that Idaho Code section 55-313 does
not permit the Mannings to relocate the easement as they proposed.
III.
Did the District Court Err in Holding that the Mannings Could Not
Change the Width of the Driveway?
The Campbells’ driveway across the Manning property is 12.3 feet in width. If the
Mannings could not change the location of the easement as proposed, they wanted to decrease
the width to 9 feet. The easement agreement did not specify either the location of the easement
or its dimensions. The Mannings acknowledge that in such circumstances “Idaho courts have
long held that the initial selection of a place for an easement fixes its physical location.” As we
stated in Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 628-29, 277 P. 542, 545
(1929):
The grant under which appellant claims was indefinite as to width and
location of the canal as well as to the character of the conduit to be constructed.
The only limitation was that fixed by section 21—that no greater burden be
imposed than was necessary. In such case the practical construction placed upon
the grant by the parties to it fixes the limits of the burden imposed. The
construction of the ditch by appellant as definitely fixed its location, its width, its
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course, and the character of the means to be employed to convey the waste water
from the ditch to the bottom land as if such matters had been specifically fixed by
formal contract. The initial use measures appellant’s rights under an indefinite
grant.
However, the Mannings contend that when an easement agreement does specify the
location and dimensions of the easement, “Idaho law now requires the court to fill in the gap in
the language of a grant of a floating easement that has not yet been assigned a location.” They
assert that “[d]irect evidence of its original physical location is obviously best,” but “[i]f there is
none, the court must then inquire into the grantors’ and grantees’ intentions” as reflected in the
easement agreement. They point out that the easement agreement states that the easement would
run “from the end of North 21st street of the city of Boise, Idaho, in a northerly and southerly
direction, far enough to allow the said second parties herein to enter upon their premises,” and
they want the court to assign a location and width for the easement that would intrude only far
enough onto the Manning property to permit the Campbells to access their property. This
contention conflicts with Idaho law.
The Mannings admit that the easement agreement does not specify the location or width
of the easement. In that circumstance, the easement was assigned a location and width when the
driveway was constructed. As stated in Coulsen, “In such case the practical construction placed
upon the grant by the parties to it fixes the limits of the burden imposed.” Id. In Coulsen, the
parties’ construction of the grant of the easement was determined by the construction of the
canal, which fixed the location and width of the easement as clearly as if the dimensions had
been specified in a written contract. As the Court stated, “The construction of the ditch by
appellant as definitely fixed its location, its width, its course, and the character of the means to be
employed to convey the waste water from the ditch to the bottom land as if such matters had
been specifically fixed by formal contract.” Id. at 629, 277 P. at 545. In this case, the
construction of the driveway by the Mattisons fixed the location and width of their easement and
showed the practical construction placed upon the easement agreement by them and the Boyds.
The only issue in this case is whether the width or location of the driveway across the
Manning property has changed since the driveway was initially constructed. In the absence of
evidence that either its location or width has changed, we presume it has not. The district court
found: “There is no evidence in the record establishing the size or location of the driveway until
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1993. However, there is also no evidence in the record to suggest that the size or location of the
driveway was anything other than what they are today.” The Mannings have not pointed to any
evidence in the record indicating that either the width or the location of the easement has
changed since the driveway was initially constructed. Therefore, the district court did not err in
holding that the location and width of the easement coincide with the current location and width
of the driveway across the Manning property.
IV.
Is Either Party Entitled to an Award of Attorney Fees on Appeal?
The Mannings seek an award of attorney fees on appeal pursuant to Idaho Code section
12-121. Because the Mannings are not the prevailing parties on appeal, they cannot be awarded
attorney fees under that statute. Viking Constr., Inc. v. Hayden Lake Irrigation Dist., 149 Idaho
187, 200, 233 P.3d 118, 131 (2010).
The Campbells seek an award of attorney fees pursuant to Idaho Code sections 12-121
and 12-123. Although the Campbells have prevailed on appeal, we will award attorney fees
under section 12-121 only if the entire appeal was brought or pursued frivolously, unreasonably,
or without foundation. Rudd v. Merritt, 138 Idaho 526, 533, 66 P.3d 230, 237 (2003). Because
this appeal raised an issue not previously addressed under Idaho Code section 55-313, we do not
find that the entire appeal was frivolous, unreasonable, and without foundation. We therefore
decline to award attorney fees under that statute. Section 12-123 does not apply to appeals.
Spencer v. Jameson, 147 Idaho 497, 507, 211 P.3d 106, 116 (2009).
V.
Conclusion.
We affirm the judgment of the district court. We award the respondents costs on appeal,
but not attorney fees.
Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON CONCUR.
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