dissenting.
I respectfully dissent. In holding that the trial court’s finding of a prescriptive easement is supported by the evidence, the majority does not acknowledge or address the central argument presented by the Blairs in this appeal.
The Blairs rely upon a doctrine expressed as follows by the Idaho Supreme Court in Simmons v. Perkins, 63 Idaho 136, 144, 118 P.2d 740, 744 (1941):
The use of a driveway in common with the owner and the general public, in the absence of some decisive act on the user’s part indicating a separate and exclusive use on his part negatives any presumption of individual right therein in his favor.
An individual using land as a road in common with the public cannot acquire a prescriptive right of way against the owner. (Citations omitted.)
Since the Simmons decision, Idaho courts have consistently ruled that where the same degree of use upon which an adverse claim is predicated has been exercised by the general public, a prescriptive easement cannot be established in the absence of a showing that the claimant has performed some act giving notice of the adverse claim to the owner of the servient estate. See Cusic v. Givens, 70 Idaho 229, 231, 215 P.2d 297, 298 (1950); Hall v. Strawn, 108 Idaho 111, 112-13, 697 P.2d 451, 452-53 (Ct.App.1985).
This doctrine, and its historical development, were discussed by the Idaho Supreme Court in some detail in Cardenas v. Kurpjuweit, 116 Idaho 739, 779 P.2d 414 (1989).1 The Court there disapproved language in earlier cases indicating that if the claimant believed that the road was a public road, the claimant’s use could not be proprietary in nature and therefore could not give rise to a prescriptive easement. The Court therefore overruled Cusic, Hall and French v. Sorensen, 113 Idaho 950, 751 P.2d 98, (1988), “in so far as they stand for the erroneous proposition that the claimant’s state of mind is relevant in determining whether a private prescriptive easement has been established....” Cardenas, 116 Idaho at 742, 779 P.2d at 417. So far as I can discern, however, the Cardenas opinion did not overrule, disapprove or limit the broader holdings in Simmons, Cu-sic and Hall that use of a road in common with the public, and without any decisive act indicating that the claimant’s use is proprietary or exclusive, will not give rise to a prescriptive easement.
In the present case, the evidence indicates that the Marshalls and their predecessors used Kirwan Lane in common with the general public. Other landowners with property abutting Kirwan Lane used the road to access their homes. Outdoorsmen used it to access a nearby river, and the general public used it to reach an upholstery business and a plumbing business located on property that lay between the Marshall property and Thomas Road. The Marshalls did not present evidence of any “decisive act” taken by them or their predecessors indicating that their use was proprietary and adverse to the Blairs. The acquisition of a prescriptive easement must be proved by “reasonably clear and convincing proof.” Burns v. Aiderman, 122 Idaho 749, 754, 838 P.2d 878, 883 (1992); West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973); Roberts v. Swim, 117 Idaho 9, 12, 784 P.2d 339, 342 (Ct.App.1989). *692That burden was not met by the Marshalls in this case.
In addition to finding a prescriptive easement, the district court also found that the Marshalls possessed an implied easement. An implied easement from prior use may be established by demonstrating three elements: (1) unity of title or ownership and subsequent separation of title; (2) apparent continuous use long enough before separation of title to show that the use was intended to be permanent; and (3) the easement must be reasonably necessary to the proper enjoyment of the dominant estate. Bear Island Water Association, Inc., v. Brown, 125 Idaho 717, 725, 874 P.2d 528, 586 (1994); Close v. Rensink, 95 Idaho 72, 76, 501 P.2d 1383, 1387 (1972). The district court found that these elements were satisfied by the evidence presented at trial. Regrettably, however, a claim for an implied easement was never asserted by the Marshalls. Their complaint does not allege an implied easement, and no argument regarding an implied easement was presented in their post-trial brief. So far as the record on appeal discloses, the implied easement theory did not surface until the district court issued its findings and conclusions, which found that an implied easement had been proved.
A trial court may not determine a case upon unpleaded theories unless the unplead-ed theory was tried by the express or implied consent of the parties. Ross v. Coleman Co., Inc., 114 Idaho 817, 827-28, 761 P.2d 1169, 1179-80 (1988); M.K. Transport v. Grover, 101 Idaho 345, 349, 612 P.2d 1192, 1196 (1980). The mere fact that evidence relevant to an unpleaded issue was introduced at trial does not indicate that the issue was tried by consent, if the admitted evidence was also relevant to a pleaded issue. Strate v. Cambridge Telephone Co., Inc., 118 Idaho 157, 162, 795 P.2d 319, 324 (Ct.App.1990). This is so because it would be unfair to the opposing party to deem an issue to have been tried with implied consent if the parties do not squarely recognize it as an issue in the trial. Ross, 114 Idaho at 826, 761 P.2d at 1178. “[CJonsent implies, and minimal due process requires, notice to a litigant of the issues being raised. When issues are not raised by the pleadings, the evidence raising the legal issue must be clear enough so that both parties know of the issue and consent to the issue being tried.” Id. at 827, 761 P.2d at 1179 (emphasis in original).
In this case the record contains much trial evidence that was relevant to determination of the existence of an implied easement. However, this evidence was also relevant to the pleaded causes of action and defenses thereto. Further, the Marshalls’ present assertion that a claim of easement by implication was tried by consent is belied by the fact that no such theory was addressed in their post-trial brief. The district court’s desire to afford relief which was apparently warranted by the evidence is understandable, but on this record, it cannot be said that the Blairs were on notice that an implied easement claim was being tried or that they had a fair opportunity to present a defense to that cause of action. Therefore, I conclude that the district court erred in addressing and granting relief on the implied easement theory-
Because the claim of a prescriptive easement is not supported by the record, and because the claim of an implied easement, though perhaps proved, was not pleaded or tried by consent, the judgment of the district court should be reversed.
. The Supreme Court’s opinion adopts and quotes at length the concurring opinion of Judge Burnett in the Court of Appeals' disposition of the same case, Cardenas v. Kurpjuweit, 114 Idaho 79, 753 P.2d 290 (Ct.App.1988).