Dissenting.
I respectfully dissent from the Court’s opinion. In my view, in an effort to avoid rejecting the new law announced by the trial court, the Court misapplies the existing law in this state concerning prescriptive easements.
In analyzing whether the Walkers and the Martin Group used the road across the Hollingers’ property (the road) under a claim of right, the Court implied that it was the burden of the Hollingers to show that the use was permissive. This approach is erroneous because we know how the use began. Wilderness Ranch Ltd. invited those who purchased lots in Wilderness Ranch Subdivisions to use Daggett Creek Road “as a secondary or emergency means of access.” Therefore, no presumption arose that the use was adverse and under a claim of right. This left the burden with the Walkers and the Martin Group to prove their use of the road under a claim of right.
In the Walker case, the trial court found that the Walkers “proved by reasonably clear and convincing evidence that they and their predecessors in interest have made open, notorious, continuous, and uninterrupted use of the road over the Hollinger property for more than the five-year statutory period ... under a claim of right____” In the Martin Group case, the trial court concluded that the Martin Group had “produced undisputed evidence that they and their predecessors in interest have made open, notorious, continuous, and uninterrupted use of the road over the Hollinger property for more than the five-year statutory period under a claim of right____” In each case the trial court followed these statements with the following: “The claim of right is based on the easement or the servitude imperfectly created by Wilderness Ranch Limited Partnership.” This makes it clear that in both cases the trial court relied on the theory advanced in the tentative draft of the Restatement (Third) of Property as its rationale for finding a claim of right. I am unable to accept this theory. It does not state current Idaho law, and I am not prepared to embrace it as appropriate law in our state. Our existing law concerning prescriptive easements is sufficient to resolve disputes correctly.
As the Court has recently reaffirmed, “Under claim of right means that the claimant has used the way without recognition of the rights of the owner of the servient tenement.” Marshall v. Blair, 130 Idaho 675, 680, 946 P.2d 975, 980 (1997). The evidence in the eases involved in this appeal indicates that during the time the Walkers and the Martin Group used the road when the servient estate was owned by Wilderness Ranch Ltd., they did not use it without recognition of the rights of Wilderness Ranch Ltd. In my view, the evidence is subject to only one interpretation. Wilderness Ranch Ltd. permitted the Walkers and the Martin Group to use the road. Whether Wilderness Ranch Ltd. intended to create an easement is irrelevant in addressing the question of whether the Walkers and the Martin Group had a claim of right when they used the road.
Checketts v. Thompson, 65 Idaho 715, 152 P.2d 585 (1944), cited by the Court in its opinion, is not on point. In Checketts, there was “a verbal agreement whereby [the parties claiming the easement] were given permission to construct the waterhole in question, and to use the same together with the right-of-way for the travel of their cattle to and from the waterhole, for a consideration of $100, which the testimony shows was paid.” Id. at 719, 152 P.2d at 586. The Court concluded:
[The claimants] entered upon this land and the use and enjoyment of these claimed rights by express agreement for their purchase and use. This was a use based upon a claim of right and, as the evidence showed such use to have been *180open, continuous, and unmolested for a period of twenty-one years, the burden was upon [the owners of the servient estate] to show that the use was permissive.
Id. at 720-21, 152 P.2d at 587 (citations omitted). In the present case, there was no verbal agreement and no consideration to establish a claim of right. Therefore, the burden never shifted to the Hollingers to show that the use was permissive.
In Checketts, the Court also ruled:
Furthermore, it is clearly apparent that [the claimants] after obtaining the grant, expended money, or its equivalent in labor, in use of these rights so granted, by constructing the waterhole and fences adjoining the right-of-way, and by maintaining the same, and under these and other circumstances in this case, these rights thus became irrevocable.
Id. at 721, 152 P.2d at 587. The maintenance of the road by the subdivision association to which the Walkers and the Martin Group contributed is not the same as the expenditures in Checketts because in the present case there was no grant of the right to use the road accomplished by an express agreement with consideration.
The Court’s reliance on the testimony of the Walkers and the Martin Group that they had a permanent right to use the road is misplaced. In Cardenas v. Kurpjuweit, 116 Idaho 739, 742, 779 P.2d 414, 417 (1989), the Court ruled that the claimant’s state of mind is not relevant in determining whether a prescriptive easement has been established.
Chief Justice TROUT concurs in dissent.