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Akers v. Mortensen

Supreme Court of Idaho

February 7, 2014

DENNIS LYLE AKERS and SHERRIE L. AKERS, husband and wife, Plaintiffs-Respondents,
MARTI MORTENSEN, Defendant-Appellant, and VERNON J. MORTENSEN; D.L. WHITE CONSTRUCTION, INC.; DAVID L. WHITE and MICHELLE V. WHITE, husband and wife, Defendants

As Amended May 5, 2014.

Page 419

2014 Opinion No. 4

Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

The district court's judgment locating Appellants' prescriptive easement and its award of punitive damages against the Mortensens is affirmed. The district court's award of attorney fees to the Akers under I.C. § 6-202 is vacated and the case is remanded for apportionment of fees.

Deissner Law Office, Spokane, Washington, for appellant. Dustin D. Deissner argued.

James, Vernon & Weeks, P.A., Coeur d'Alene, for respondents. Susan P. Weeks argued.

HORTON, Justice. Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, CONCUR.


Page 420

[156 Idaho 29] HORTON, Justice.

This appeal arises from a bench trial concerning an easement and trespass dispute. Marti Mortensen appeals from the district court's judgment regarding the scope and location of the Mortensen's easement across Dennis and Sherrie Akers' property. Ms. Mortensen also appeals from the district court's award of punitive damages and argues that she should not be liable for the punitive damages assessed against her former husband, Vernon Mortensen. Ms. Mortensen also appeals from the district court's award of attorney fees, arguing that the court erred by failing to apportion attorney fees awarded under I.C. § 6-202.


This appeal is a companion case to another appeal before this Court this term, Akers v. White, docket No. 39493; as such, the facts and procedure overlap substantially. This is the third time this case has appeared before this Court. Following a bench trial, this Court heard the first appeal in 2005 and issued Akers v. D.L. White Const., Inc., 142 Idaho 293, 127 P.3d 196 (2005) ( Akers I ). After remanding the case to the district court in Akers I, it again appeared before this Court in 2008 and in Akers v. Mortensen, 147 Idaho 39, 205 P.3d 1175 (2009) ( Akers II ), we remanded the matter for additional fact finding.

In Akers I and II, defendants David and Michelle White, D.L. White Construction, Inc., and Vernon and Marti Mortensen all joined together in their appeals from the district court. However, in this appeal, Ms. Mortensen separately appeals from the district court's judgment following proceedings on the second remand. Nonetheless, this opinion refers to the Whites, D.L. White Construction, Inc., and the Mortensens collectively as " Appellants."

The facts of this case are set out in detail in Akers I and supplemented by Akers II. However, the essential facts necessary to resolve the issues before the Court in this third appeal are as follows. There are three parcels of real property involved in this case: (1) Government Lot 2; (2) Parcel A; and, (3) Parcel B, which all come together at a four-way corner, the section 19/24 corner.

Government Lot 2 is located to the northeast, and Parcel B is to the northwest. The Akers own the southwestern corner of Government Lot 2 and the southeastern corner of Parcel B. Parcel A is located to the southwest and much of Parcel A, including that adjoining Parcel B, is owned by the Whites. The Mortensens own a portion of Parcel A located to the south of that owned by the Whites. The Reynolds Property[1] is located to the southeast ... Government Lot 2 is bisected roughly north to south by a county road, Millsap Loop Road. [The Mortensens] hold an easement for ingress and egress to Millsap Loop Road across portions of the Akers' property. Because the properties meet at a four-way corner, Parcel A and Government Lot 2 do not actually share a border. It is therefore physically impossible to access Parcel A from Millsap Loop Road in Government Lot 2 without also passing through some other property.

Akers II, 147 Idaho at 42, 205 P.3d at 1178. The " other property" is the southwest corner of Parcel B, owned by the Akers. It is the route of passage through Parcel B where the Mortensens have a prescriptive easement that is the subject of this third appeal.

At one time, all of the real property at issue in this case was owned by W.L. Millsap. Around 1966, and possibly much earlier, an access road matching the general contours of the easement at issue in this case ran from Millsap Loop Road, westward across the southern part of Government Lot 2. The road then went beyond the western boundary of Government Lot 2 into Parcel B, and then turned south into Parcel A. The Millsaps sold Parcel A to the Peplinskis in 1967. The deed expressly conveyed with Parcel A an easement

Page 421

[156 Idaho 30] across Government Lot 2. During the Peplinskis' ownership of Parcel A, they used the access road in the same manner as the Millsaps had used it.

The Akers purchased their property in 1980 and their deed provides that they took the land subject to " easements of record or in view." Akers I, 142 Idaho at 297, 127 P.3d at 200.

After the Akers moved onto their property, they altered the route of the access road at its eastern end where it connects to Millsap Loop Road. Rather than meeting Millsap Loop Road after a sharp turn to the north as before, (the original approach) the altered approach (the curved approach) starts to turn earlier and curves more gently to the north before meeting the county road. Both the original and curved approaches to the access road are on a triangle of land (the triangle) the ownership of which has been disputed ....[T]he Peplinskis[2] sold their property, Parcel A, to the Mortensens. The Mortensens later sold much of Parcel A, including the portion adjacent to Parcel B, to the Whites.
According to later findings by the district court, the Whites and the Mortensens entered into a business relationship in which they planned to split their land in Parcel A into smaller lots to create a housing development. The court found that in order to accommodate their projected housing development, the Appellants also planned to widen the access road that crossed the Akers' property and connected the Appellants' land to Millsap Loop Road.
In January 2002 or before, the Akers blocked the Appellants' use of the curved approach to the access road and also forbid the Appellants to travel on the western end of the access road, where it passes through Parcel B before connecting to the Appellants' property in Parcel A. The Appellants then brought in heavy equipment, including a bulldozer, to carve a route around the Akers' gate and to otherwise alter the access road. This led to a series of confrontations between the Akers and the Appellants, as well as alleged damage to the Akers' property and alleged malicious behavior by the Appellants. In response, the Akers filed [suit] for trespass, quiet title, and negligence.

Akers I, 142 Idaho at 297-98, 127 P.3d at 200-01.

Following a bench trial, the district court quieted title in favor of the Akers to the triangle area and granted Appellants an easement 12.2 feet in width through Government Lot 2. This included an easement across the disputed triangle through the original approach rather than the curved approach to Millsap Loop Road. However, the district court determined the easement ended at the western boundary of Government Lot 2 and did not cross the section line into Parcel B. As a result, the easement was ruled to ...

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