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Donald Kayser and Mary Kay Kayser v. Pam Jane Mcclary

January 15, 2011

DONALD KAYSER AND MARY KAY KAYSER, PLAINTIFFS,
v.
PAM JANE MCCLARY, DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER

RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

(Docket No. 14)

Currently pending before the Court is Plaintiff's Motion for Partial Summary Judgment (Docket No. 14). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. BACKGROUND

Defendant Pam McClary's father, James McClary, owned four lots on Roberts Road in Boise, Idaho - Lots A, B, C, and D. See Def.'s Resp. to Pls.' Mot. for Summ. J., p. 2 (Docket No. 26) (citing Ex. A to 7/2/10 McClary Aff. at ¶ 4 (Docket No. 29)). In 1979, Mr. McClary entered into an option contract to sell Lot D to Paul and Iretta Larsen. See Def.'s Resp. to Pls.' Mot. for Summ. J., p. 2 (Docket No. 26). On February 12, 1980, Mr. McClary conveyed Lot D to the Larsens who, later, constructed a home on Lot D. See id. Significant to this action, at some unknown point in time, it is believed that Mr. McClary verbally agreed with the Mr. Larsen not to build on Lot B - the adjacent property to the north of Lot D. See id. at pp. 2 & 8.*fn1

On December 24, 1999, Plaintiffs Donald and Mary Kay Kayser made an offer to the Larsens to purchase Lot D. See Pls.' Stmt. of Undisp. Facts, p. 1 (Docket No. 15). The Kaysers' offer included the following handwritten condition:

Seller providing Buyer satisfactory documentation showing the McClary lot behind subject property cannot be used as a building site for a new home.

See id. at p. 2 (citing Ex. A to 4/20/10 Kayser Aff. at ¶ 2 (Docket No. 14, Att. 2)). At that time, the Larsens' son, Rex Larsen, was the listing agent for Lot D, acting as the dual agent for both his parents and the Kaysers. See Def.'s Resp. to Pls.' Mot. for Summ. J., p. 3 (Docket No. 26).

According to Defendant, Rex Larsen then (1) "instructed his father's attorney to prepare an easement over Mr. McClary's Lot B"; (2) "dictated the terms to be included in the easement"; and (3) "delivered the written easement to Mr. McClary to sign." See id. at p. 3. This "Grant of Easement," contained the following provisions:

* WHEREAS, Grantor [Mr. McClary] did make a verbal agreement with Grantees [the Larsens] at the time that Grantees purchased said Lot D from Grantor that, as a material consideration for the purchase of said Lot D, Grantor would not build a structure on said Lot B.

* In consideration of the verbal agreement referred to above and other good and valuable consideration, Grantor does hereby grant to Grantees an easement for an unobstructed view over said Lot B for the benefit of said Lot D.

* The easement granted in this instrument shall run with the land and shall be appurtenant thereto and shall inure to the benefit of the parties hereto, their heirs, personal representatives, successors, and assigns.

* The owner of said Lot B, without the prior written consent of the owner of said Lot D, shall not construct anything on said Lot B, including fences, trees, shrubs, swimming pool, garage, home, or personal property including recreational vehicles ...


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