concurring specially and concurring in the result.
I concur specially in the portion of the Court’s opinion reversing the summary judgment on the ground that ELBWC failed in its burden to establish adverse possession. As to this portion of the opinion, I write only to point out that, in my view, the trial court could have excluded the portion of Howell’s affidavit that raises a genuine issue of material fact concerning the permissiveness of ELBWC’s possession. As I see it, the trial court could have ruled that these portions of Howell’s affidavit were not “admissible in evidence” as required by I.R.C.P. 56(e). Since the trial court did not exclude this portion of Howell’s affidavit, I find it necessary to concur with the Court’s disposition of the summary judgment. In the face of a proper objection or motion to strike by ELBWC, or exclusion by the trial court, the reference by Howell to an agreement by which lot owners would operate the wells should not have been considered.
I concur in the result of the portion of the Court’s opinion rejecting ELBWC’s assertion that representations were made to prospective purchasers of lots within the subdivision that the well lots were to be transferred to a nonprofit corporation, thus invoking the rule of Middlekauff v. Lake Cascade, Inc., 110 Idaho 909, 719 P.2d 1169 (1986). As I read the record, ELBWC did not raise this issue before the trial court. While the trial court referred to Middlekauff in its decision, the reference was in relation to summary judgment on Howell’s counterclaim, not on any claim by ELBWC.