Pocatello, May, 2013 Term.
James C. KVAMME and Debra Kvamme, Defendants-Respondents-Cross Appellants. V. Leo CAMPBELL and Kathleen Campbell, Plaintiffs-Appellants-Cross Respondents,
Pocatello, May, 2013 Term.
Manwaring Law Office, PA, Idaho Falls, attorney for Appellants. Kipp Manwaring argued.
Justin R. Seamons, Idaho Falls, attorney for Respondents. Justin R. Seamons argued.
W. JONES, Justice.
I. NATURE OF THE CASE
Leo and Kathleen Campbell (the Campbells), appeal the district court's denial of their motion for reconsideration of the district
court's grant of summary judgment to James and Debra Kvamme (the Kvammes). The Campbells and the Kvammes own adjoining land and dispute whether a fence between their respective properties constitutes the true boundary of their land. The district court found that a land survey submitted by the Campbells lacked adequate foundation to be admissible and thus awarded the Kvammes summary judgment. The Campbells filed a motion for reconsideration accompanied with the affidavit of their land surveyor. The district court denied their motion for reconsideration. The Campbells appeal, the sole issue being whether the district court abused its discretion when it disregarded the affidavit of their land surveyor in their motion for reconsideration. The Kvammes cross-appeal and argue the district court's grant of summary judgment can be sustained on the alternate theories of adverse possession and boundary by agreement or acquiescence.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, the Campbells, and defendants, the Kvammes, own parcels of real property located in Section 17, Township 3 North, Range 38 East of the Boise Meridian, Bonneville County, Idaho. The north boundary of the Campbells' parcel is contiguous with the south boundary of the Kvammes' parcel. Between the parties' respective parcels of land is a fence. The Campbells allege that the fence does not sit on the actual boundary line of the property, but instead they allege that the actual boundary line is about fifteen feet north of the fence. Meanwhile, the Kvammes maintain that the fence is the actual boundary line between the parties' respective parcels of land. Neither party knows when the fence at issue was erected. But the fence has been in its present location since at least 1950. Leo Campbell testified that he believes the fence has been in place since before 1919.
The Campbells filed a complaint on June 30, 2010, to quiet title to the fifteen feet of property north of the fence. On July 27, 2010, the Kvammes filed an answer and counterclaim in which the Kvammes maintained that the fence was positioned at a point equidistant of a nominal quarter section, which manifested the creation of a partition fence. Or in the alternative, the Kvammes argue that the fence was the agreed upon boundary of the property.
On May 17, 2011, the Campbells filed a motion for partial summary judgment. In support of the Campbells' assertion that the boundary of their property is fifteen feet north of the fence, the Campbells submitted an affidavit of their attorney with a copy of a survey performed by Kevin Thompson of Thompson Engineering. The Campbells rely on that survey to demonstrate that the fence lies within their property and not on the actual boundary. On July 7, 2011, the Kvammes
filed a motion for summary judgment. The district court heard the motions for summary judgment on September 12, 2011. In support of the Kvammes' assertion that the fence is the actual or agreed upon boundary of the properties, the Kvammes supported their argument with the affidavit of Kim H. Leavitt. Leavitt is a professional land surveyor in Idaho. Leavitt determined that based on the original survey of Section 17 in 1877, the fence, which is exactly 3,960 feet from the ...