WILLIAM R. FISCHER and M. ANN FISCHER, Trustees of the William and Ann Fischer Revocable Trust, Plaintiffs-Respondents,
JAMES F. CROSTON and MARJORIE C. CROSTON, husband and wife, and ALL UNKNOWN OWNERS AND/OR OTHER PERSONS OR ENTITIES CLAIMING ANY INTEREST IN THE FOLLOWING DESCRIBED REAL PROPERTY, (see file for property description), Defendants-Appellants.
Opinion No. 15
from the District Court of the Seventh Judicial District,
State of Idaho, Bonneville County. Hon. Joel E Tingey,
judgment of the district court is affirmed.
Law Offices, Rigby, for appellants. Robin D. Dunn argued.
Holden, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, for
respondents. W. Forrest Fischer argued.
BURDICK, Chief Justice.
appeal involves a boundary dispute arising out of Bonneville
County. James and Marjorie Croston (Crostons) appeal the
district court's grant of summary judgment in favor of
William R. Fischer and M. Ann Fischer, trustees of the
William and Ann Fischer Revocable Trust (Fischers). The
Crostons own property adjacent to the southern side of
property owned by the Fischers. For several decades, an
existing post-and-wire fence divided the two properties. The
existing fence fell into disrepair, and in 2015, the Fischers
sought to remove the existing fence and replace it with a new
fence. The Fischers had a survey done to ensure the new fence
would be correctly placed; however, the survey revealed that
the location of the old fence line did not reflect the
platted property line. Instead, the old fence line extended
south of the platted line approximately three feet on the
eastern side and approximately nine feet on the western side.
Following the survey, the Crostons built a new fence on the
survey line, which prompted the Fischers' filing of the
present complaint. Both parties claim they are the owners of
the tract of land between the old fence line and the platted
boundary line. The district court granted the Fischers'
motion for summary judgment reasoning that the old fence
constituted a boundary by agreement, and there was no
agreement to change the boundary line. The Crostons timely
appeal that ruling, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
case involves a dispute as to the boundary line separating
the adjacent Croston and Fischer properties, and whether an
existing fence line or a new survey is determinative of the
boundary line between the properties. The Fischers acquired
their property in 1992 and transferred it into a trust in
November 2001. The Crostons own the adjacent property on the
southern side of the Fischer property, with the northern
boundary of the Crostons' property forming the southern
boundary of the Fischers' property. The Crostons acquired
their property in 1959. At the time the Crostons purchased
their property there was an existing post-and-wire fence
running along the Fischer property's southern boundary
line, dividing the Fischer property from the Croston
property. Evidence indicated the fence had been in place
since at least 1951.
2015, the existing fence was in a state of disrepair, and the
Fischers decided to replace it with a new fence in August
2015. In September 2015, during the process of replacing the
old fence, the Crostons sent the Fischers a letter stating
that the Fischers had engaged in trespass and malicious
injury to property, and that if the Fischers did not
"restore [Crostons] property to [their]
satisfaction" the Fischers would be prosecuted under
various statutes. The Fischers then had a survey conducted,
and claim the purpose of the survey was to locate the exact
line of the old fence so a new fence could be accurately
placed on the old fence line without any disputes. Both
parties believed the survey would show that the old fence
line was the same as the platted boundary line between the
to the survey being conducted, Mrs. Fischer spoke with the
Crostons' son, Jim Croston (Jim), about the Fischers'
intention to have a survey done so that there would be no
dispute about where the fence should be placed. Jim was
outside measuring and marking where the old fence line had
been, when Mrs. Fischer came out of her house and asked Jim
what he was doing, and Jim responded that he was
"determining where the fence line used to be." Mrs.
Fischer replied, "[w]e will be replacing the fence with
a much better fence. We are going to get a survey to find out
where the line is at. We are using the same surveyors as the
City uses so [there] shouldn't be any disputes." Jim
replied, "[o]kay." The Crostons claim this
conversation between their son and Mrs. Fischer constitutes a
binding agreement that the results of the survey would
control where the boundary and new fence dividing the
properties was to be placed.
survey was completed and revealed that the old fence line was
south of the platted property line. The old fence line
extended three feet south of the platted property line on the
east side of the property, and nine feet south of the platted
property line on the west side of the property. The tract of
land between the platted boundary line and the old fence line
is called Tract 1, and is the parcel of property at issue in
this case, with both parties claiming ownership of Tract 1.
The Fischers notified the Crostons of the survey results, and
asked the Crostons not to install a fence until the dispute
was resolved. The Fischers then placed "no
trespassing" signs along the old fence line. The
Crostons went past the no trespassing signs and built a new
fence on the platted boundary line based on the survey
results. The Fischers then filed a complaint seeking a
declaration that the old fence line is the true boundary line
under the doctrine of boundary line by agreement. The
Fischers also sought treble damages and attorney fees based
on the Crostons' trespass and Idaho Code section 12-121.
district court granted the Fischers' motion for summary
judgment and dismissed the Crostons' counter-claim. The
district court reasoned that there was no genuine dispute
that the old fence that divided the property line for over 60
years constituted a boundary by agreement. The district court
also found there was no agreement or contract to adopt a new
boundary line. The district court stated that such an
agreement needed to be made between the actual owners of the
adjacent properties, and there was no evidence such an
agreement was reached in this case. The district court went
on to say the comments made by Mrs. Fischer to the
Crostons' son, Jim, regarding her obtaining of a survey
to determine the property line did not give rise to an
enforceable agreement to change the property line. Finally,
the district court reasoned, there was no consideration to
support any alleged agreement because the Crostons did not
give up anything of value in exchange for the alleged
decision of the Fischers to move the fence north and give the
Crostons more property. Accordingly, the district court held
that the old fence line was determinative of the property
line and thus the Fischers were the owners of Tract 1. The
district court also concluded the Crostons trespassed when
they crossed the old fence line and installed a new fence.
Following the entry of summary judgment, the district court
declined to award attorney fees under Idaho Code section
12-121, but awarded fees to the Fischers limited to the
trespass action under Section 6-202. The Crostons timely
ISSUES ON APPEAL
1. Whether there was a valid, binding agreement to change the
boundary line based on the survey results.
2. Whether the Crostons trespassed onto the Fischers'
property when the Crostons entered Tract 1 and constructed a
3. Whether the district court properly awarded attorney fees
under Section 6-202 and whether either party is entitled to
attorney fees on appeal.
STANDARD OF REVIEW
reviewing a grant of summary judgment, this Court employs the
same standard as the district court." Idaho Youth
Ranch, Inc. v. Ada Cnty. Bd. of Equalization, 157 Idaho
180, 182, 335 P.3d 25, 27 (2014). Summary judgment is
appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." I.R.C.P.
56(a). "Disputed facts should be construed in favor of
the non-moving party, and all reasonable inferences that can
be drawn from the record are to be drawn in favor of the
non-moving party." Fuller v. Callister, 150
Idaho 848, 851, 252 P.3d 1266, 1269 (2011) (quoting
Castorena v. Gen. Elec., 149 Idaho 609, 613, 238
P.3d 209, 213 (2010)). "However, the nonmoving party
cannot rely on mere speculation, and a scintilla of evidence
is insufficient to create a genuine issue of material
fact." Intermountain Real Props., LLC v. Draw,
LLC, 155 Idaho 313, 316-17, 311 P.3d 734, 737-38 (2013)
(quoting Bollinger v. Fall River Rural Elec. Co-op.,
Inc., 152 Idaho 632, 637, 272 P.3d 1263, 1268 (2012)).