DUANE R. MUELLER, Plaintiff-Respondent,
CAROLYN HILL, an unmarried person; KEVIN M. THOMPSON and PHILOMENA KEYS, husband and wife; NORTHWEST SHELTER SYSTEMS, LLC., a Montana corporation; JEFFREY T. BUCK d/b/a BUCK'S CONSTRUCTION; and BUCK'S CONSTRUCTION, LLC, an Idaho limited liability company, Defendants-Appellants
2015 Opinion No. 20
Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Bonner County. Hon. Barbara A. Buchanan, District Judge.
The judgment of the district court is affirmed in part and reversed in part.
John A. Finney, Finney Finney & Finney PA, Sandpoint, argued for appellants.
Toby McLaughlin, Berg & McLaughlin Chtd., Sandpoint, argued for respondent.
EISMANN, Justice. Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON CONCUR.
[158 Idaho 1000] EISMANN, Justice.
This is an appeal out of Bonner County from a judgment awarding damages for common law trespass and attorney fees for statutory [158 Idaho 1001] trespass. We affirm the judgment except for $1,000 of the damages awarded and remand for the entry of an amended judgment.
Duane Mueller and his wife owned a 20-acre parcel of rural real property (Mueller Parcel) in Bonner County. They lived on another parcel located across the county road at the northern end of the Mueller Parcel. The Mueller Parcel is generally rectangular in shape, with the north-south dimension being over twice as long as the east-west dimension. In 1995, Ray and Carol Thompson purchased an L-shaped, 32-acre parcel that adjoined the entire length of the eastern boundary of the Mueller Parcel. The arm of the " L" extended to the east. Beginning at its northern end, the common boundary between the two properties runs through a relatively flat, grassy stretch, up and along the side of a hill, and then through timbered land to its southern end.
In the late 1990's, Ray Thompson constructed a fence along a portion of what he contended was the common boundary. Mr. Mueller objected that the fence encroached onto his property. He and a friend located the survey pins marking the northern and southern ends of the common boundary and then used a compass, stakes, and flags to mark what Mr. Mueller believed to be the location of the boundary line. He showed the line to Ray Thompson, and he took his fence down and installed a barbed wire fence on the line marked bye Mr. Mueller. The fence started at the northern end of the boundary line and ran about 600 feet to the south.
In approximately 2000, Ray Thompson asked Mr. Mueller for permission to bulldoze a swath about eight to ten feet wide from the southern end of the fence to the southern end of the common boundary. Mr. Mueller agreed that Mr. Thompson could do so, but he never agreed that the swath later bulldozed marked the common boundary.
On September 13, 2004, Carolyn Hill purchased the 32-acre parcel from the Thompsons, who are her parents. In 2005, she sold twenty acres, which would be the arm of the " L," to another couple, and in July 2008 that couple sold the parcel to Philomena Keys, who is married to Kevin Thompson, the son of Ray and Carol Thompson. The 12-acre parcel retained by Ms. Hill is herein called the " Hill Parcel," and the 20-acre parcel that was ultimately purchased by Philomena Keys is herein called the " Keys Parcel."
On August 25, 2008, Mr. Mueller and his wife were divorced, and she was awarded the Mueller Parcel in the divorce action. Pursuant to the divorce decree, he quitclaimed the parcel to her on September 6, 2008. She orally agreed that he could purchase the property for $120,000 within one year of the divorce and that he could remain in possession of and use the property while he was attempting to obtain financing. On July 17, 2009, he purchased the property from her by a warranty deed.
Because the Keys parcel did not front the county road that was along the northern boundary of the Hill Parcel, Ms. Hill permitted Philomena and Kevin to construct a power line and driveway across her property. Kevin Thompson constructed a portion of the driveway on the swath previously bulldozed by his father along the boundary line between the Mueller and Hill parcels. He began work on the driveway in August 2008. Mr. Mueller became concerned when he saw truckloads of rock and dirt being dumped near the common boundary, and at his request Kevin Thompson agreed to have the boundary surveyed. The survey was completed in the fall of 2008, and the surveyor placed posts along the common boundary.
Also in the fall of 2008, Kevin hired a company to blast into the uphill slope and a construction company to perform bulldozer work on the driveway. The blasting work caused dirt, rocks, and debris to be deposited onto the Mueller Parcel, and it damaged some of the trees on that property. The bulldozer work lowered the grade of the driveway by cutting into the uphill slope, filling in the downhill slope, adding a substantial amount of fill, and increasing the width of the driveway. The construction [158 Idaho 1002] caused a substantial amount of water runoff to be diverted onto the Mueller Parcel.
In the spring of 2009, Mr. Mueller had the boundary surveyed, and he and the surveyor placed posts and ran a string to mark the boundary line. Mr. Mueller also posted " No Trespassing" signs along the boundary. The survey showed that portions of the boundary were located east of the old fence erected by Ray Thompson in the swath he had bulldozed and that part of the fill added in constructing the driveway was on the Mueller Parcel.
On September 28, 2010, Mr. Mueller filed this action against Carolyn Hill, Kevin Thompson, Philomena Keys, and Northwest Shelter Systems, LLC (a company owned by Kevin Thompson and Philomena Keys with its principal place of business on the Keys Parcel), to recover damages for trespass. Mr. Mueller later amended his complaint to add as defendants the company that performed the blasting and its owner. They later settled with Mr. Mueller, and his claims against them were dismissed with prejudice.
During the summer of 2011, Kevin Thompson had caused cap rock to be installed on the portion of the driveway that was adjacent to the common boundary, replaced an existing culvert, and added a rock catch basin in order to address the problem of water runoff flowing onto the Mueller property. In an attempt to return the Mueller property to its pre-2008 condition, he also hired a company ...