specially concurring.
Having joined in the Court’s original opinion, I now also join in today’s opinion and in the order denying the petition for rehearing. In response to that petition, I have reexamined the record. I fail to discern substantial evidence upon which the trial court could have found that the county performed more than occasional or sporadic maintenance work on the road between the Stangers’ second gate and the United States Forest Service property.
There is, of course, substantial (albeit controverted) evidence of such work by the county up to the second gate; and it is undisputed that the Forest Service, worked on the road beyond the second gate. However, as noted in our original opinion, the Forest Service’s work was performed within the scope of permission granted by the Stangers. Moreover, as noted in today’s opinion, the Supreme Court has held that public work cognizable under I.C. § 40-202 must be performed by the State of Idaho or one of its political subdivisions, not by a federal agency. French v. Sorensen, 113 Idaho 950, 751 P.2d 98 (1988).
Cases of this nature often generate intense local feeling because they pit the rights of a private landowner against the interest of the general public in gaining convenient access to public lands. But the public is never a helpless hostage of the private landowner. The public may condemn a road across the private land and compensate the owner for his loss. Here, the Court simply holds that the statutory requirements for recognition of an existing public road have not been satisfied.