Elder v. Northwest Timber Co. , 101 Idaho 356 ( 1980 )

SHEPARD, Justice.

This is an appeal from a judgment wherein plaintiffs-respondents were awarded damages, both actual and punitive, as the result of defendants-appellants constructing a roadway across the property of plaintiff-respondents. The court further enjoined defendants from any future use of the road and further required defendants-appellants to pay the costs of a court-ordered survey. We affirm.

We note initially that appellants’ contentions on appeal are limited to the trial court’s findings and interpretation of the facts as they are reflected by its decision that no right-of-way, public or private, existed over plaintiffs-respondents’ land allowing for the constructing and use of the road. Assuming that the trial court was correct in that portion of its decision, there is no contention on appeal that the trial court erred in its allowance of damages, either actual or punitive, that the trial court erred in its issuance of an injunction against the defendants-appellants, or that it erred in requiring defendants-appellants to pay the costs of the court-ordered survey.

Defendant-appellant Northwest Timber Company and plaintiffs-respondents Elders own adjoining tracts of land in a remote area of Kootenai County, Idaho. In 1909, the predecessors in interest of both the Elders and Northwest Timber dedicated portions of their land to be used for a road. Sometime shortly thereafter a road of some type was büilt pursuant to a Kootenai County Board of Commissioners’ survey which traversed the Elders’ property. That road was used infrequently until 1927, when it was used by one-ton trucks to haul logs out of the lands of the predecessor in interest of Northwest Timber. That use stopped in 1929. Sometime between 1928 and 1943, the road was at least partially washed out at its point of entrance to the Elder property and that damage was never repaired. There is no evidence that public funds were ever expended for either construction or maintenance of the road.

In 1972, there was no usable road over the Elders’ property; rather, there were only some barely discernable tracks which disappeared into dense shrub and timber. Apparently, those tracks were remnants of the road built in approximately 1909. Northwest Timber purchased its property in December, 1972, and the Elders purchased their property in January, 1973. The above recital is reflected in the trial court’s findings of fact and is based upon essentially uncontroverted testimony.

During an inspection of his property in May, 1973, Elder found deep ruts across it which he believed had been caused by Northwest Timber’s logging trucks. He contacted an employee of Northwest Timber and learned that Northwest claimed a right-of-way across the Elder property. Elder denied such right and thereafter the parties negotiated as to various alternative routes which Northwest might use across plaintiffs’ property. In all of such discussions, Elder was assured that a written agreement would be prepared and sent for his approval. However, plaintiffs never received such an agreement and heard nothing more from Northwest. When Elder returned again to his property in March, 1974, he found that Northwest Timber had, in December, 1973, constructed a road across the Elder property along a route which Northwest believed to be the old 1909 survey route. The immediately above stated chronology is also reflective of the trial court’s findings of fact, which are based upon substantial, if somewhat conflicting, evidence, and therefore will not be disturbed.

The construction of the road by Northwest Timber across the Elder property and other actions of the defendant caused substantial damage to plaintiffs’ property, which the trial court assessed at $15,439.00. As aforesaid, the existence of or the extent of those damages is not raised on appeal. The trial court also concluded:

“In view of the cavalier manner in which defendant tore up plaintiffs’ land when it knew the existence of either private or public right-of-way was disputed and after leading plaintiff, JOHN ELDER, to believe a written agreement would be submitted for his approval and thus lulling plaintiffs into a false sense of security, the Court is of the opinion punitive damages should be assessed.”

As aforesaid, Northwest Timber does not on appeal contest the award of punitive damages.

We reiterate that the only issue on appeal is whether or not a right-of-way existed over the land of the Elders which allowed the construction and use of the road by Northwest Timber. Northwest contends that their construction and use of the logging road was permissible, as the use of either a public highway or a private easement.

The trial court held that no public highway had ever been created and that even if such highway did at one time exist, it had since been abandoned. We agree. Prior to its amendment in 1963, I.C. § 40-104 provided, “A road not worked or used for the period of five years ceases to be a highway for any purpose whatever.” [This statute was amended in 1963 to provide in pertinent part, “A road established by prescription not worked or used for the period of five (5) years ceases to be a highway for any purpose whatever * * *.”] The trial court found that no public funds were expended for maintenance at any time on the alleged highway over the land of the Elders. It was further found that a washout occurred between 1928 and 1943, and that such damage was never repaired. While some conflict exists in the evidence, we hold that there is substantial and competent evidence to support the trial court’s finding of non-use and non-work prior to 1963 for the required five year period. We, therefore, uphold the trial court’s determination of abandonment. E. g., Bradford v. Simpson, 98 Idaho 830, 573 P.2d 149 (1978); I.R.C.P. 52(a).

Northwest Timber next contends that a private easement existed over the Elder property allowing for the construction of the logging road. There is, however, substantial and competent evidence to support the trial court’s finding that no private easement was ever created and that even if a private easement did exist, the construction and use of the logging road constituted an impermissibly expanded use of the easement. E. g., Palmer v. Fitzpatrick, 97 Idaho 925, 557 P.2d 203 (1976); I.R.C.P. 52(a).

A private easement may be created by express agreement, by implication, or by prescription. E. g., Shultz v. Atkins, 97 Idaho 770, 554 P.2d 948 (1976). The record provides no indication of any express agreement establishing an easement. Easements by implication require an original unity of ownership of the parcels which later become dominant and servient estates. 3 Powell on Real Property § 411 (1979). The record is devoid of any evidence of an original unity of ownership.

The creation of a private easement by prescription is not favored at law. E. g., Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977). The elements of a prescriptive easement are described in West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973):

“A claimant *• * * must submit ‘reasonably clear and convincing’ proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period.”

Id. at 557.

That prescriptive period in Idaho is five years. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972); I.C. § 5-203.

Northwest Timber contends that the use of a road over the Elders’ land by Northwest Timber’s predecessors in interest established a prescriptive easement allowing for the construction of a logging road in 1974. While there was some evidence of the use of a road over the Elders’ land in approximately 1912 and again from 1927 to 1929, the record is devoid of any evidence that the predecessors in interest of Northwest Timber used the Elders’ land for the required five year period. Northwest Timber next contends that a prescriptive easement ensued from some travel by automobile over the Elders’ land a few times a year from 1924 to the present. The trial court found that although such an easement might have been created, the construction of the logging road constituted an impermissibly expanded use of the easement. We agree.

As a general rule, an easement acquired by prescription is confined to the right as exercised during the prescriptive period. E. g., Aztec Limited, Inc. v. Creekside Investment Co., 100 Idaho 566, 602 P.2d 64 (1979); Restatement of Property § 477 (1944). While some change of usage is permissible, “any changes in the use of a prescriptive easement cannot result in an unreasonably increased burden on the servient estate * * *." Gibbens v. Weisshaupt, supra, 98 Idaho at 639, 570 P.2d 870.

While general principles of permissible increased easement use can be gleaned from Gibbens v. Weisshaupt, supra, and Aztec Limited, Inc. v. Creekside Investment Co., supra, questions regarding the scope of easements are “so largely a function of the circumstances and of the time that opposite conclusions on variant sets of facts are to be expected.” 3 Powell on Real Property § 415 at n. 32. Both Gibbens and Aztec involved fact situations of increased traffic and physical expansion, which the court stated constituted impermissible burdens on the servient estate. The easement in the present case, assuming one did exist, is contended by appellants to have been created by infrequent automobile use. We hold on the record before us that the much greater and intensive use of the claimed easement, together with the obvious physical expansion, resulted in a substantially greater impact on the servient estate. Clearly, the construction of the logging road imposed a burden on the Elders’ land as great or greater than the burdens found to be impermissible in Aztec and Gibbens. The undisputed findings of the trial court indicate that well over one million board feet of timber were transported across plaintiffs’ property, and that it would cost approximately $10,439.99 to repair the physical changes that Northwest Timber had made on the Elders’ property. We hold that Northwest Timber’s construction and usage of the logging road across the Elder property constituted an unreasonably increased burden on the Elder land and is thus impermissible. See Restatement of Property §§ 478, comment d, 480 illustration 4 (1944).

The judgment of the trial court is affirmed.

DONALDSON, C. J., and McFADDEN, J., concur.