concurring in part and dissenting in part:
I concur in the majority opinion except the majority’s overruling of the trial court’s decision denying attorney fees. Not only does the majority opinion erroneously apply the private attorney general doctrine to this case, but it also erroneously applies the appellate court standard of review of trial court decisions awarding attorney fees.
Although the majority properly recites the elements of the private attorney general doctrine, as stated in Hellar v. Cenarrusa, 106 Idaho 571, 682 P.2d 524 (1984), and Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303 (1977) (en banc), it improperly applies the facts of the instant case to elements one and three. Here, neither the societal importance in the public policy issue involved, nor the number of people standing to benefit from the decision, brings this case to a level sufficient to substantiate an award of attorney fees. The two cases cited in the majority opinion show clearly how this case does not qualify. In Hellar, the constitutionality of the Idaho legislative reapportionment scheme was involved, affecting virtually every Idaho citizen. Likewise, in Serrano every taxpayer and every person with an interest in the public school system was affected by the constitutional equal protection question presented there.
Conversely, the facts of the instant case do not remotely rise to the threshold levels established in either Hellar or Serrano. The preservation of the public status of this seldom-used road does not involve such a substantial societal interest that the litigation regarding this particular road approaches constitutional proportions. Neither is the number of people standing to benefit from the decision great; only one man, Mr. Taggart, will substantially benefit from the instant litigation. The societal importance of, and the number of people interested in, Road 460 is best demonstrated by its condition. Appendix A is a picture of the road taken a few weeks before trial. The district judge before whom the case was tried realized this when he ruled on Taggart’s request for attorney fees. Judge Schilling stated:
“These factors are not sufficiently established in this case to justify awarding attorney’s fees under the private attorney general doctrine. While the plaintiff did take on a large burden in establishing Road 460 as a public road that had not been abandoned, this case involved no paramount societal interest and benefit-ted no great number of people.”
Taggart’s request for attorney fees was denied by the trial court. The determination to award attorney fees is committed to the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion. Soria v. Sierra Pacific Airlines, 111 Idaho 594, 726 P.2d 706 (1986); Hellar v. Cenarrusa, supra. As has been shown above, two elements of the private attorney general doctrine are not met by the facts of the instant case. The trial judge clearly did not abuse his discretion, and we should affirm his decision. The majority opinion trivializes the private attorney general doctrine and ignores our proper standard of appellate review.
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ON REHEARING
A petition for rehearing was filed and granted by this Court solely as to the issue of attorney fees, and after review thereof a majority of the Court continues to adhere to the original majority opinion.