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In re Encroachments Located In the Dedicated Alley In Block 23 of Cruzen Addition

March 4, 2010

IN THE MATTER OF THE ENCROACHMENTS LOCATED IN THE DEDICATED ALLEY IN BLOCK 23 OF CRUZEN ADDITION:
TOTAL SUCCESS INVESTMENTS, LLC, AN IDAHO LIMITED LIABILITY COMPANY, PETITIONER/APPELLANT/CROSS- RESPONDENT,
v.
ADA COUNTY HIGHWAY DISTRICT, RESPONDENT/CROSS-APPELLANT, AND WASHINGTON MUTUAL BANK; AND IDAHO POWER COMPANY, RESPONDENTS.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge.

The opinion of the court was delivered by: Perry, Judge Pro Tem

2010 Opinion No. 15

Order dismissing writ of mandate, granting attorney fees to one party, and denying attorney and expert witness fees to another party, affirmed.

Total Success Investments, LLC (TSI) appeals from the district court‟s denial of its application for a writ of mandate requiring Ada County Highway District (ACHD), Washington Mutual Bank (WaMu), and Idaho Power Company to remove encroachments from an alley. TSI also appeals the district court‟s award of attorney fees to WaMu. ACHD cross-appeals the district court‟s denial of its attorney and expert witness fees. We affirm.

I. FACTS AND PROCEDURE

Total Success Investments (TSI) owns property in Boise between Dewey and State Streets with alley access. In 2003, after completing a survey, TSI discovered that the alley was misaligned and encroached on its property. A fence was built to the edge of TSI‟s legally-described property, which extended into the alley. ACHD brought suit to have the fence removed. The district court held that ACHD had a prescriptive easement over TSI‟s property and granted relief to ACHD. The Supreme Court affirmed. See Ada County Highway District v. Total Success Investments, LLC, 145 Idaho 360, 364-65, 179 P.3d 323, 327-28 (2008).

In 2008, TSI applied for a writ of mandate to require ACHD, WaMu, and Idaho Power Company to remove power poles and landscaping that encroach on this same alley. The encroachments located on the opposite side of the alley from TSI‟s property, existed during the prior litigation, and were one of the causes of the general misalignment of the alley. TSI sought to have the encroachments removed from the alley‟s legally-described boundaries.

TSI presented evidence that there are encroachments into the alley making it difficult, but not impossible, for TSI‟s owner, Mr. LaVoie, and other tenants to enter and leave a parking lot along the alley. The district court found that TSI had failed to prove a sufficient encroachment to require ACHD to act, and the writ of mandate was denied. WaMu was awarded attorney fees, but ACHD was denied attorney fees and expert witness fees.

TSI appeals the denial of the writ of mandate and the granting of attorney fees to WaMu. ACHD cross-appeals the denial of its attorney and expert witness fees.*fn1

II. ANALYSIS

A. TSI's Appeal

TSI‟s application for a writ of mandate sought an order "requiring ACHD, Washington Mutual Bank, and Idaho Power Company to immediately remove or cause the removal of the encroachments in the alley."*fn2

Idaho Code § 7-302 authorizes courts to issue writs of mandate against those that have a duty resulting from an office, trust, or station. A party seeking a writ of mandate must establish "a clear legal right to the relief sought." Brady v. City of Homedale,130 Idaho 569, 571, 944 P.2d 704, 706 (1997). Writs of mandate will not be issued to "compel the performance of a discretionary act." Id. (quoting McCuskey v. Canyon County, 123 Idaho 657, 663, 851 P.2d 953, 959 (1993)). Writs of mandate are not tools to control matters of discretion. Bopp v. City of Sandpoint, 110 Idaho 488, 490, 716 P.2d 1260, 1262 (1986). "A writ of mandamus will lie if the officer against whom the writ is brought has a clear legal duty to perform and if the desired act sought to be compelled is ministerial or executive in nature, and does not require the exercise of discretion." Cowles Publishing Co. v. The Magistrate Court of the First Judicial District of the State of Idaho, County of Kootenai, 118 Idaho 753, 760, 800 P.2d 640, 647 (1990).

TSI claims that I.C. § 40-2319(1) imposes a duty on ACHD such that a writ of mandate is appropriate. Idaho Code § 40-2319(1) states:

If any highway or public right-of-way under the jurisdiction of a county or highway district is encroached upon by gates, fences, buildings, or otherwise, the appropriate county or highway district may require the encroachment to be removed. If the encroachment is of a nature as to effectually obstruct and prevent the use of the highway or public right-of-way for vehicles, the county or highway district shall immediately cause the encroachment to be removed.

This statute provides that a party act in two circumstances. The sentence using "may," the discretionary sentence, allows highway districts to seek removal of any encroachment. The sentence using "shall," the mandatory sentence, imposes a duty upon the highway district to remove encroachments that "effectually obstruct and prevent use of the highway."

1. Applicability of I.C. § 40-2319's Discretionary Sentence

TSI argues that ACHD abused its discretion under the discretionary sentence of I.C. § 40-2319 and "[t]he court did not discuss whether ACHD acted arbitrarily and unjustly and in abuse of its discretion." Therefore, TSI asserts the district court erred in not granting the writ pursuant to the first sentence of I.C. § 40-2319. In the interest of ...


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