specially concurring.
Although I join in today’s opinion, I acknowledge that it contains some language arguably contrary to a statement found in French v. Sorensen, 113 Idaho 950, 751 P.2d 98 (1988). In that ease the Supreme Court quoted and adopted the following excerpt from a district judge’s memorandum decision:
[Plaintiffs assert] a rather straightforward claim of prescriptive right of way across defendants’ property. However, here plaintiffs’ use of the road upon the defendants’ ranch was based upon their conception that the road was a public road. If they thought it a public road, their use could not be proprietary in nature.
113 Idaho at 958, 751 P.2d at 106 (emphasis added). In contrast, today’s opinion contains the following language: “The subjective belief of the claimant is not controlling; rather, the focus is upon the nature of the use exercised by the claimant.” Ante, 114 Idaho at 82, 753 P.2d at 293.
With due respect to our Supreme Court, I submit that today’s language better states the law. The excerpt quoted by the Supreme Court in French was followed by a citation to three earlier decisions: Hall v. *84Strawn, 108 Idaho 111, 697 P.2d 451 (Ct.App.1985); Cusic v. Givens, 70 Idaho 229, 215 P.2d 297 (1950); and Simmons v. Perkins, 63 Idaho 136, 118 P.2d 740 (1941). I will discuss these decisions in chronological order.
Simmons involved a fact pattern similar to the instant case. The plaintiffs asserted a prescriptive easement coinciding with what appeared to be an alley across the defendants’ property. This “alley” had been used regularly by the defendants and by members of the general public, including the plaintiffs. The Supreme Court noted that absent an express grant of permission, the regular crossing of another’s property is generally presumed to be an adverse use.1 However, as an exception to this general rule, the Simmons court held that where the owner “constructs a way over [the land] for his own use and convenience, the mere use thereof by others which in no way interferes with his use will be presumed to be by way of license or permission.” 63 Idaho at 144, 118 P.2d at 744. The Court further said that a claimant who uses a road in common with the public, and who does not undertake any “decisive act ... indicating a separate and exclusive use on his part,” falls within this presumption of permission. Id. Accordingly, his use is not adverse to the landowner and cannot ripen into a prescriptive easement.2
In Cusic v. Givens, supra, the Supreme Court applied the Simmons principle in a rural setting. The plaintiffs asserted a prescriptive easement across the defendants’ farm, following the route of what appeared to be a public road. The road had been used not only by the defendants and their predecessor but also by the plaintiffs, their predecessor, and other members of the public. The Supreme Court noted that this use had been “entirely permissive.” 70 Idaho at 231, 215 P.2d at 298. The Court went on to observe that the record contained no other indication of adverse use and that the plaintiffs had used the road simply because they thought it was public. The Court concluded that “[a] prescriptive right cannot be acquired by such use.” Id. The Court cited Simmons as well as a host of other authorities discussing actual or presumptive permission.
In retrospect, it is unfortunate that Cu-sic juxtaposed a reference to the plaintiffs’ belief in a public road with the ambiguously worded conclusion that a prescriptive right cannot be acquired by “such use.” In full context, it is apparent that “such use” was intended to mean the “entirely permissive” use previously mentioned by the Court. This intended meaning is reinforced by the Court’s citation of Simmons and other authorities dealing with permissive uses.
Nevertheless, as a result of such juxtaposed and ambiguous language, Cusic came to be regarded as the source of a new doctrine — that the adversity of a claimant’s use may be defeated by his own belief that a road is public. In Hall v. Strawn, supra, a special panel of the Court of Appeals quoted at length from Cusic, giving emphasis to the juxtaposed and ambiguous language. Although much of Hall’s analysis was consistent with Simmons, Hall did not specifically mention the presumption of permissiveness arising from common usage of an existing roadway. Rather, Hall focused upon the plaintiff’s belief that he had been using a public road. On this basis the Court concluded that the plaintiff had not acquired a prescriptive easement along the road. Hall set the stage for the declaration in French v. Sorensen, supra, that no prescriptive easement can arise from a use based upon the conception that a road is public.
*85As this chronology shows, a misunderstanding caused by unfortunate language in Cusic has produced the curious doctrine that a claimant’s subjective state of mind may determine whether he is entitled to a prescriptive easement. This state of mind doctrine is illogical. The “adversity” of á claimant’s use lies in its derogation from the exclusive rights of the landowner; it does not lie in the claimant’s state of mind. Regardless of the motive with which a prospective claimant crosses a landowner’s property, his use derogates from the landowner’s rights unless the crossing is by permission, express or legally presumed. Moreover, the state of mind doctrine creates a perverse incentive to offer contrived but virtually unrebuttable testimony. A sophisticated claimant, aware of the Hall and French decisions, would never admit having thought a road was public; he would simply testify that he used the road because he found it convenient.
Accordingly, I agree with today’s opinion that the adversity of a claimant’s use is determined not by his subjective belief but by the nature of the use itself. As the Washington Supreme Court has noted:
[Tjhere is little persuasive precedent for applying a subjective standard of adverse use in prescriptive easement cases. The gravamen of adversity in such cases is whether the user has occupied the property in a manner which is adverse to the true owner. Although subjective intent may have some relevance in an adverse possession case where the user claims title, the claim in a prescriptive easement case is merely to [a] use which could have been prevented by the rightful owner. We therefore hold that adversity is to be measured by an objective standard; that is, by the objectively observable acts of the user and the rightful owner.
Dunbar v. Heinrich, 95 Wash.2d 20, 622 P.2d 812, 815-16 (1980) (citations and footnote omitted).
. This general presumption has been reaffirmed in West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973). The West opinion also recognizes two exceptions. One of the exceptions, relating to wild and unenclosed lands, is not applicable to the instant case. The other exception, relating to common usage of an existing roadway, is based upon the Simmons case discussed here.
. Conversely, a claimant who alters or enlarges an existing roadway is entitled to the general presumption that his use is adverse. Melendez v. Hintz, 111 Idaho 401, 724 P.2d 137 (Ct.App. 1986).