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Charles E. Bratton and Marjorie I. Bratton, Husband and Wife v. John R. Scott and Jackie G. Scott

March 17, 2011


Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Honorable Renae J. Hoff, District Judge.

The opinion of the court was delivered by: J. Jones, Justice.

2011 Opinion No. 27

Stephen W. Kenyon, Clerk

Order granting judgment notwithstanding the verdict is affirmed, order denying motion for new trial is reversed, and the case is remanded.

This is an appeal from an order granting judgment notwithstanding the verdict (JNOV) in favor of John and Jackie Scott (the Scotts), vacating the damage verdicts awarded to Charles and Marjorie Bratton (the Brattons). The Brattons also appeal the district court's denial of their motion for a new trial. We affirm the order granting JNOV, reverse the order denying the motion for new trial, and remand the case for further proceedings consistent with this opinion.

I. Factual and Procedural History

Harold and Janet Ford (the Fords) were the record owners of a large piece of property on Freezeout Road in Canyon County, Idaho. The Fords subdivided the property, conveyed Lot 32 to the Brattons by warranty deed on April 19, 1973, and retained the adjoining parcel, Lot 40.

The Brattons' deed provided for a three-foot easement, approximately 200 feet long, along the boundary line between Lot 40 and an adjoining lot "for the construction and maintenance of an irrigation ditch and for ingress and egress along said ditch boundary line" for the benefit of Lot 32. After conveying the property, and when the weather permitted, Harold Ford constructed an irrigation ditch across Lot 40 with a tractor and three-point ditcher. Due to the size of the ditcher, and the space used for maintenance of the ditch, both Harold Ford and Charles Bratton testified that the width of the easement was verbally expanded from three feet to twelve feet. However, the warranty deed only reflects the original three-foot easement.

After its creation, the Brattons used the ditch consistently for irrigating their property, and accessed the full twelve feet to do routine maintenance. Routine maintenance included burning and spraying weeds, as well as using a tractor or shovel to clear and re-fortify the ditch. Mr. Bratton also added nine to ten concrete pipes to prevent erosion of the ditch.

Harold Ford subsequently conveyed Lot 40 to Lois Rawlson by quitclaim deed on January 2, 1996. Ms. Rawlson then conveyed the property to the Scotts on September 13, 2005. The Scotts' deed reflects that the conveyance was "subject to any encumbrances or easements as appear of record or by use upon such property."

Approximately two years later, tension arose between the Brattons and the Scotts regarding access to, and maintenance of, the irrigation ditch. The parties disagree about the specific events leading up to this lawsuit. However, it was uncontested that Mr. Scott plowed over a portion of the irrigation ditch in the summer of 2006, although he claimed it was accidental. It was also uncontested that Mr. Bratton was on the Scotts' property in the spring of 2007 burning weeds when a conversation between the two men transpired. Mr. Bratton testified that Mr. Scott came running at him, demanding that he stop burning. However, Mr. Scott testified that he had a conversation with Mr. Bratton, during which he stomped out some of the flames extending beyond the ditch and agreed to fix the portion of the ditch he had harmed the previous season. Shortly thereafter, Mr. Scott used a small tractor to re-dig the section of the ditch he plowed over and also removed the concrete piping and placed it on the Brattons' property. Mr. Scott stated that removal of the concrete piping was necessary in order to repair the damage done to the ditch and access it with his tractor. However, the Brattons argue that such removal was not necessary and that the new ditch is smaller and closer to the fence line than its previous location.

After the pipes were removed, a deputy sheriff arrived at the Scotts' residence, informed them the Brattons had complained about the concrete piping left on their property, and suggested the Scotts remove them. Mr. Scott thereafter retrieved the concrete pipes and continues to store them on the upper part of his property. Mr. Scott also marked off the boundary of the three-foot easement with rope, and placed a no-trespassing sign on his property near the border with the Brattons' property.

The Brattons subsequently filed this suit on June 28, 2007, requesting injunctive and declaratory relief, as well as damages, requesting trial by jury. The Brattons sought declaratory relief recognizing their express three-foot easement and an additional nine-foot implied easement for access and maintenance purposes. They sought injunctive relief, prohibiting the Scotts from interfering with their access to the easement, as well as prohibiting the Scotts from coming within 600 feet of them. They also requested an underground piping system, paid for by the Scotts, to prevent further interference with the easement right, or, in the alternative, replacement of the ditch to its original condition. The Brattons also asserted a claim of negligence and tortious interference with their right to privacy or tortious stalking.*fn1 The Brattons filed a motion for partial summary judgment on their express three-foot easement, as well their implied easement. The court granted their motion with respect to the express easement but denied it as to the implied easement.*fn2

The district court separated the trial into three phases. The first phase was an advisory determination on the implied easement theory, the second phase addressed the negligence and tortious interference claims, and the third phase addressed damages. During the first phase of the trial, the jury determined there was no implied 12-foot easement. In the second phase, the jury determined that the Scotts negligently interfered with the Brattons' easement, and that the Scotts' negligence was the proximate cause of the Brattons' harm. The jury also found that the Scotts had changed the irrigation ditch without written permission. However, the jury determined that these changes did not result in reduced water flow through the ditch. The jury found no basis for the Brattons' claims of interference with the easement by threats of harm, or interference with their right to privacy. Thus, only the claims of negligence and failure to obtain written permission before altering the ditch went to the jury on the issue of damages. The jury awarded the Brattons $4,250 for changing the irrigation ditch without written permission and $2,250 to restore the ditch to its original state. The trial court subsequently granted the Scotts' JNOV motion on the damages, and denied the Brattons' motion for a new trial. The court found the Scotts to be the overall prevailing party and awarded them $44,576.15 in attorney fees and $9,753.41 in costs.

The Brattons appeal the court's grant of the JNOV motion on the issue of damages, the denial of their motion for a new trial, and the award of costs and attorney fees. The Scotts argue, without having filed a cross-appeal, that the district court erred in: (1) instructing on I.C. §§ 42- 1204 and 1207, and (2) admitting evidence contradicting the express easement in the Brattons' warranty deed.

II. Issues on Appeal

I. Whether the district court erred in granting the JNOV, striking the damage awards?

II. Whether the district court's denial of the Brattons' motion for a new trial was in error?

III. Whether the district court erred in applying the law of I.C. §§ 42-1204 and 42- 1207, and in allowing evidence on an implied easement theory?

IV. Whether the court erred in awarding the Scotts their attorney fees and costs?

V. Whether the Scotts are entitled to attorney fees on appeal?

III. Analysis

A. Standard of ...

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