Burrup v. Stanger

WALTERS, Chief Judge,

specially concurring.

When we released our initial opinion in this case, I dissented without stating any reasons for my disagreement with the opinion. Having now determined that I will concur in the opinion as written by Judge Swanstrom, I feel it is appropriate to explain my change of position, for the benefit of the parties.

The district judge held that the road in question was a public highway. His conclusion was in part based upon evidence of maintenance of a portion of the road, and improvements made upon the road, by the United States Forest Service. His conclusion was supported by State v. Nesbitt, 79 Idaho 1, 310 P.2d 787 (1957). Although I was uneasy with the Supreme Court’s majority ruling in Nesbitt, I accepted it at face value as controlling authority. This led me to believe the judgment of the district court below should be affirmed on both the facts and the law.

While the petition for rehearing in the instant case was pending, our Supreme Court issued its opinion in French v. Sorensen, 113 Idaho 950, 751 P.2d 98 (1988). French overruled the conclusion in Nesbitt that road maintenance activity by the Forest Service should be considered as a material factor in determining whether a prescriptive easement may arise in favor of the public, in an otherwise private roadway. In light of French, I now conclude the court below erred in taking into account the Forest Service activities when deciding that a public easement had been created. Thus, I concur in the decision to reverse the judgment of the district court in the present case.