Stecklein v. Montgomery , 98 Idaho 671 ( 1977 )

SHEPARD, Justice,

dissenting.

This action was brought and tried before the district court as one for injunction against trespass and for damages including an assault and battery resulting from one of the trespasses. The counterclaim alleged the existence of a public road and sought damages for interference with the use of that public road, including damages for assault and battery resulting from that inters ference.

The trial court found that no public road existed, that the defendants did trespass upon the property of the plaintiff, and that the defendant did physically assault the plaintiff. For those acts of trespass and assault, plaintiff was awarded damage by the trial court. As best I can understand the majority position, those findings and a portion of those damages are affirmed. In the next breath, however, the majority tells us that the defendant may have been rightfully and lawfully on the property since he may have possessed a prescriptive easement or an easement by necessity. Such is contrary to the clear holding of the district court.

Obviously I have not read the same record of the trial court proceedings as has the majority. I do not view the record which I perused as showing that the “roadway” was well marked and obvious to anyone in examining the premises. Montgomery indeed testified that he had used the property sought to be declared as an easement since the year 1947, however, in the next breath he also indicated he had never been denied permission to use the property until its purchase by Stecklein. The purchaser of the upland property from Montgomery stated unequivocally that Montgomery’s use of the claimed easement was with permission. A tenant of Montgomery’s stated that during a later period of time he had permission from Stecklein to use the asserted easement during his tenancy on the Montgomery property. Further testimony indicated and the trial court found that during most of the years in question the asserted easement property had been fenced and at times equipped with a locked gate. All of that testimony came from the lips of Montgomery’s witnesses. What the majority characterizes as repair and maintenance of the road by Montgomery in fact were isolated instances of heavy equipment passing over the Stecklein property to do stream channelization and other work on the Montgomery property in the bottom of the canyon. The only actual attempt to improve the “roadway” was one of the circumstances leading to the instant lawsuit.

In my judgment the “evidence” tendered by the defendant on the alleged issue of prescriptive easement did not raise to the level of an issue tried by express or implied consent of the parties in accordance with I.R.C.P. 15(b). The testimony indicated only isolated and sporadic instances of trespass. The majority faults the trial court for its failure to enter a finding of fact specifically dealing with such alleged issue. Defendant sought no finding of fact on the issues of prescriptive easement or easement by necessity. Following the court’s issuance of its findings and conclusions, no amendment was sought thereto by the defendant. Perhaps what is most mind boggling is that the appellant here tendered no assignment of error relating to the failure of the trial court to make a finding of fact on the issues of either prescriptive easement or easement by necessity.

The law in Idaho is established that unless an issue was clearly raised at trial and a fair opportunity was thus afforded the trial court to rule on such issue, it will not be reviewed on appeal. See Weatherby v. Weatherby Lumber Co., 94 Idaho 504, 492 P.2d 43 (1972); Willows v. City of Lewiston, 93 Idaho 337, 461 P.2d 120 (1969). In my judgment the instant case demonstrates the need for such a salutory rule. It is designed to prevent “sandbagging” of a trial court, a result which the majority here condones.

The trial court here held

“the plaintiffs were the owners of the real property in question free and clear of all claims of the public and the defendant of any right-of-way, public road, easement or use; that there is no public road, highway or access over or upon the plaintiffs’ land and no person has any right to any use of said property without the consent of the plaintiffs.”

In my opinion such holding by the trial court laid at rest and held adversely to any theory of the defendants relating to an easement by prescription or necessity. Even more compelling is the fact that the defendant-appellant does not complain on appeal. In the instant case I think it is a fair presumption that such findings as desired by the majority would have been adverse to the appellant.

I would affirm the judgment of the trial court.

DONALDSON, J., concurs.