specially concurring.
Although continuing to adhere to the assertions of Donaldson, J. and Bistline, J. in Minich v. Gem State Developers, Inc., 99 Idaho 911, 919, 591 P.2d 1078, 1086 (1979), that this Court has neither inherent nor statutory authority to award attorney fees on appeals, it is becoming quite evident that a majority of this Court will continue down that path until the legislature attempts to intervene — for which reason it seems that the better course to follow is down that same well-trodden path, but with a whole new twist. Dr. and Mrs. Hayes ask that we delete the judgment for attorney fees entered against them by the trial court on the grounds that they have not pursued this action so fallaciously as to be frivolous. Such was the holding of the extremely well-reasoned opinion of our Court of Appeals, a copy of which is appended hereto for the very reason of its quality and content. Whether one approves or disapproves of awarding attorney fees on appeal, it has become a way of litigation and likely will remain so.
On the other hand, Justice McDevitt has selected Bogner v. State Dept. of Revenue and Tax, 107 Idaho 854, 693 P.2d 1056 (1984), as the authority for cancelling the trial court’s award of substantial fees to the Lowerys. In doing that he is eminently correct in relying upon Bogner. Bogner, however, was a one-of-a-kind case, and accordingly can have little precedential effect. The stance of the case is exactly as he has portrayed it. It was an appeal to the district court and it was initiated by the filing of a complaint. Footnote 4 of Bogner, 107 Idaho at 857, 693 P.2d at 1059, sets out the provisions of I.C. § 63-3049, which as applicable are synopsized to inform that a Tax Commission final assessment (following redetermination) “may be reviewed ” in the district court of the taxpayer’s county of residence, or in Ada County “by a complaint ” which is timely filed, provided that the taxpayer shall have first paid the tax. The same statute provides that the district court decision may be *1083appealed to the Idaho Supreme Court.1 Bogner was a highly unusual procedural circumstance, and neither of the litigants in the present action cited it. The issue raised by the parties was the application of I.C. § 12-121 and I.A.R. 54(e)(1), where-under Dr. & Mrs. Hayes were assessed attorney fees.
Again, there is not one thing wrong with the rationale of the majority’s opinion. What is amiss, however, is that the district court erred in finding justification for the assessment of fees, and that is the point which was successfully relied upon for reversal in the Court of Appeals, leaving as the proposition before this court: Do we want to reverse the district Court on a premise not urged by Dr. & Mrs. Hayes? Moreover, it is to be noted that the statute involved in Bogner is not one of common knowledge or of much worth other than in tax cases. One also wonders what will happen in a tax review case where the taxpayer files a petition for review in the district court instead of a complaint. The statute requires a complaint, and one wonders, after all these years at plying the trade, is there1 a distinction with a difference? Ordinarily a party seeking review petitions that it be granted. But, as stated at the outset, Bogner is a unique scenario, which is my premise for suggesting that we would do better to simply affirm the Court of Appeals.
APPENDIX
The Court of Appeals’ opinion, with some emphasis supplied, reads as follows:
It is our task to determine whether Hayes’ defense of the Board’s decision could, in the reasonable exercise of the district court’s discretion, properly be termed frivolous or without foundation. Therefore, we focus on the merits of the defensive position asserted to the district court by Hayes — i.e., that the Board had a reasonable basis to determine that an easement of record existed from Hayes’ property to a public road, Pollard Lane.
The resolution of this question ultimately turned upon an interpretation of documents recorded prior to 1968 relating to an easement along the south edge of the Hayes and Lowery parcels. The particular question was whether a 1906 deed which conveyed a parcel to the east of the property now owned by Hayes and Lowery created an easement across the Lowery and Hayes tracts, then in one ownership, which Hayes later was entitled to use. Lowery contended, both before the Board and before the district court, that this easement benefited only the 1906 grantee’s property to the east, and not any of the parcels crossed by the easement. In contrast, Hayes asserted that the clear intent evidenced by the deed and subsequent conveyances was to create an easement for access to a public highway, in favor of several properties in the area, including the tract ultimately owned by Hayes.
The court rejected the contention that the 1906 deed or any other recorded document created an ‘easement of record’ in favor of Hayes’ property. The district court concluded:
This easement was an easement appurtenant with the Hayes and Lowery properties being part of the servient tenement. The property deeded to Mr. Thompson [the 1906 grantee] was the dominant tenemént. See Smith, C. and Boyer, R., Survey of the Law of Property, 382 (1971). In other words, the land which now belongs to the Hayes and Lowerys was burdened by an easement running to the property to the east. The 1906 deed gave nothing to the owner of the parcel containing the Hayes and Lowery properties, but in fact took an easement. [Emphasis in original.]
*1084The court reviewed the evidence presented to the Board and found no indication of an easement of record benefiting the Hayes property. As we have noted, the court deemed Hayes’ argument to the contrary to be ‘frivolous and without foundation in law and fact,’ and, accordingly, awarded attorney fees to Lowery. The essence of the court’s determination was that Hayes had asserted a position on the access question which was simply wrong as a matter of law.
In the present appeal, we initially upheld the district court’s award of fees. After reargument of the merits of this case on the Hayes’ petition for rehearing, however, we are persuaded that the district court abused its discretion. We have held that an award of attorney fees will not be made under I.C. § 12-121 simply because a party loses on a point of law. See Lowery I [, 115 Idaho] at 69, 764 P.2d at 435, citing Associates Northwest, Inc. v. Beets, 112 Idaho 603, 733 P.2d 824 (Ct.App.1987). The standard for determining whether such an award should be made is not whether the position urged by the nonprevailing party is ultimately found to be wrong, but whether it is so plainly fallacious as to be frivolous. Id.; see also Gulf Chemical Employees Federal Credit Union v. Williams, 107 Idaho 890, 693 P.2d 1092 (Ct.App.1984); Wing v. Amalgamated Sugar Co., 106 Idaho 905, 684 P.2d 307 (Ct.App.1984). Here, the question is whether Hayes’ position on the access question was so plainly fallacious as to be frivolous.
The access question is best understood in historical terms. The land owned by Lowery and Hayes was originally part of a larger tract owned by an individual named Frost. In 1906, Frost conveyed property at the east end of the tract to a purchaser named Thompson, who also received an easement across the southerly end of Frost’s remaining property. By 1955, the remaining Frost property had been conveyed to a party named Brown, who sold the property (except a one-acre square parcel) to a purchaser named Polley. By 1971, the western end of the old Frost tract had been conveyed to parties named Button and Greenlee, and the middle piece had been conveyed to a party named Thompson (apparently not the same Thompson as the purchaser of the tract on the east). On September 29, 1971, Thompson then divided his middle piece into three pieces, one of which he sold to a party named Volkman. He sold another to a party named Kessler, and he kept the third parcel for himself. This transaction resulted in the current configuration of the properties. The Button/Greenlee property now belongs to Lowery and the Volkman property now belongs to Hayes.
As these parcels were split out of the old Frost tract, the deeds referred to the 1906 easement running across the southerly end. Each deed said that the conveyance was ‘subject to’ this easement. The deeds did not say that each owner of a split-out parcel had a right to use the easement. For this reason, as we have noted, the district judge held that the easement was not a benefit, but was a burden, to these split-out parcels — particularly the parcel now owned by Hayes. Accordingly, the court held that the Hayes did not have a recorded easement meeting the requirements of the zoning ordinance.
Hayes acknowledged that the deeds did not expressly provide such an access right. However, Hayes argued that the underlying intent was to provide such access; indeed, absent such access, one or more of the split-out parcels arguably would have been ‘landlocked.’ Officers from two title companies appeared in the proceedings before the County Commissioners and gave differing opinions as to whether the split-out parcels had a right of access along the 1906 easement. One title officer, who was willing to insure such access, urged a common sense construction of the deeds. He also noted that in 1976, the eventual owner of the *1085one-acre square parcel reserved by Brown executed and recorded a ‘deed of easement’ expressly granting the owners of all the split-out parcels a right to use the easement where it ran over her property. However, as the district court later determined, the Lowerys never granted such an express right with respect to the portion of the easement running across their property.
Thus, the court was faced with a choice between a strict interpretation of deeds, based on their literal language, and the so-called common sense interprer tation, based on an inference of intent. The district judge correctly came down on the side of literal interpretation. Real estate law historically has given dominant effect to the facial language of instruments of conveyance, rather than to any unstated intent. This assures stability of land titles. (Of course, there are some limited exceptions — such as the rule that an outright deed may be treated as a security instrument if such intent is established by clear and convincing evidence.)
However, the so-called common sense position urged by Hayes was not so plainly fallacious as to be frivolous. Hayes’ position was supported by testimony from a title officer and was accepted by the County Commissioners (who had their own legal advisor). Indeed, at an early stage of the proceedings before the County — when the Lowerys were represented by an attorney different from their present counsel — the Lowerys conceded that an access easement existed. This concession was later withdrawn when there was a change of counsel.
In sum, we conclude that the position asserted by Hayes before the district court was not plainly fallacious. It was fairly debatable, albeit ultimately unsuccessful. Accordingly, we set aside the award of fees to Lowery.
. Not involved in Bogner, but something to remember, is that the same statute intertwines the above procedure with an alternate remedy which is not in district court, but before the Board of Tax Appeals. See footnote 4 of Bogner.