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East Side Highway District v. Delavan

Supreme Court of Idaho

December 11, 2019

EAST SIDE HIGHWAY DISTRICT, a political subdivision of the State of Idaho, Plaintiff/Cross-Defendant/ Appellant,
GREGORY K. DELAVAN and ELLEN J.O. DELAVAN, husband and wife, Defendants/Cross-Claimants/ Respondents.

          Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Lansing L. Haynes, District Judge.

         The decisions of the trial court are affirmed in part, reversed in part, and vacated in part.

          James, Vernon & Weeks, P.A., Coeur d'Alene, for appellant East Side Highway District. Susan P. Weeks argued.

          John F. Magnuson, Coeur d'Alene, for respondents Gregory and Ellen Delavan. John F. Magnuson argued.


         This case involves competing claims to real property asserted by adjacent property owners: The East Side Highway District (the District) and Gregory and Ellen Delavan (the Delavans). The parties dispute the location of their common boundary relating to a portion of a road, Boothe Park Road, which includes a boat ramp located on the shore of Lake Coeur d'Alene.

         The District asserts a claim to the disputed property under two theories: First, the District claims there was a boundary by agreement that was established by the location of a fence that was erected by the Delavans' predecessor in interest. Second, the District claims that Boothe Park Road and the boat ramp at its termination is a public highway pursuant to Idaho Code section 40-202(3). In response, the Delavans claim that the boat ramp is on their property, and its use by the public has always been, and remains, permissive. Further, the Delavans assert that the fence which was erected by their predecessor in interest was intended to act as a barrier, not a boundary.

         After two bench trials, the trial court ruled in favor of the Delavans, finding that the public's use of the boat ramp had been permissive. As a result, the trial court ruled that the District did not have a right to a public easement based on Idaho Code section 40-202(3). Further, the trial court found that the fence had been erected as a barrier, not a boundary. Instead, the trial court found that the intention of the parties at the time the disputed property was conveyed to the Delavans demonstrated that the Delavans owned the property in dispute. The District timely appealed.

         For the reasons set forth in this opinion, we hold that there is substantial and competent evidence to support the trial court's findings that there was no boundary by agreement and that the Delavans own the property in dispute. However, we vacate the trial court's order granting summary judgment in favor of the Delavans because there is no hostility requirement in Idaho Code section 40-202(3). Accordingly, the case is being remanded to determine whether the District has a public easement under Idaho Code section 40-202(3).

         I. Factual and Procedural Background

         A. The real property in dispute.

         1. Plat of the Lakeside Addition to Sunnyside Subdivision.

         In 1910, John Boothe (Boothe) and others prepared and recorded the Plat of Lakeshore Addition to Sunnyside (the Plat). The Plat includes the lake front property in dispute. The Plat created thirty-seven lake front lots on Lake Coeur d'Alene, numbered 2 through 38. There is also an unnumbered lot between Lot 18 and Lot 19.

         The Plat has had several notable problems. From the outset, the lots were incorrectly numbered. This is first evidenced in a 1940 deed from Boothe, which conveyed: "All that portion of Lots Thirty-two (32) and Thirty-three (33) of Lakeshore Addition to Sunnyside . . . according to the recorded plat thereof, . . . being designated upon the official map of said highway as Lots Thirty-three (33) and Thirty-four (34) and lying North and East of Lot Thirty-four (34) (highway map Lot 35) of said addition[.]" (Italics added.) This inaccuracy in the lot numbers was also noted in a 2001 survey conducted by Scott Rasor.

"Mr. John Booth [sic], one of the original plattor's [sic], stated that an error of 100 feet had been made in locating one of the lots and that this accounts for the difference in lot numbers."
The effect of the differences in lot numbering is to shift the numbers 100 feet north, for example, the originally platted lot 28 becomes lot 29.

         Throughout the years, surveyors have noted the incorrect lot numbers. However, the original Plat itself has never been amended or corrected.

         The incorrectly numbered lots caused an additional problem. It appears that each lake front lot was intended to be 100 feet wide as testified to by Geremy Russell (Russell), the District's expert witness and surveyor. Further, Rasor's 2001 survey noted, "the lots for Lakeshore Addition to Sunnyside were laid out from prior surveys and the original Plat at 100 feet wide and with parallel lines." During trial, the parties argued regarding at what point on the plat the 100 feet was measured. The Delavans argued that it was 100 feet of frontage along Lake Coeur d'Alene. The District contended that the lots were intended to be measured from the north and south parallel boundaries, not the meander lines of Lake Coeur d'Alene.

         2. The 1949 deed from John and Gertrude Boothe to Oliver and Edna Delavan.

         Three generations of the Delavan family have owned the real property in dispute. Oliver and Edna Delavan are the first generation of property owners and are the parents of Jack and Frank Delavan. Gregory Delavan is Jack's son and Oliver's grandson. For the sake of clarity, first names will be used when referring to the Delavans as individuals.

         In 1945, Louis Wasmer executed a warranty deed conveying to Oliver and Edna Lots 19 through 22 according to the Plat. Oliver subsequently sold Lot 22, retaining Lots 19 through 21. According to Jack's testimony, Oliver began building a house on the Delavan property in late 1946.

         On August 17, 1949, John and Gertrude Boothe (collectively the Boothes) conveyed to Oliver and Edna a portion of the unnumbered lot located between Lots 18 and 19. The Boothes deeded the following described property to Oliver and Edna:

Commencing at the Northwest corner of Lot 19, as originally platted, Lakeshore addition to Sunnyside, section, 33, Twp 50 North, Range 3 W B M thence North 79° 58' East to the West boundary of the existing county road; thence along the existing right of way line of said county road to its intersection with the meander line of Lake Coeur d'Alene; thence Southerly along the meander line of said Lake Coeur d'Alene, to the point of beginning, said land being in the county of Kootenai, State of Idaho.

         The District's expert, Russell, stated that the deed was likely a corrective measure because Lot 19, as noted on the Plat, was not 100 feet wide.

         This appeal largely turns on the italicized language above in the 1949 deed: "thence along the existing right of way line of said county road to its intersection with the meander line of Lake Coeur d'Alene[.]" The current existing road is known as Boothe Park Road. Although he did not know where the county road existed in 1949, Russell testified the best indication of its location was the Plat, which he stated is harmonious with how the road exists today. Further, Russell testified that there was no evidence that the road existed in a different location today than in 1949. The Delavans' surveyor and expert witness, Ernest Warner, also testified he did not know where the existing county road was located in 1949. Warner testified the existing public road today is similar to the road depicted in the Plat.

         During trial, Marilyn Moore, Boothe's granddaughter who was born in 1936, testified that Boothe Park Road went to the boat ramp, just as it did in 1949. (Moore had visited the area in 2015.) However, Jack (Oliver's son) testified[1] that the road did not continue to the boat ramp in 1949 because the boat ramp was not built until 1955. Further, Jack stated that "Boothe Park [Road] never . . . went past the corner of [the Delavans'] property[.]"

         The trial court also admitted in evidence Ray Kindler's 1956 unrecorded survey, which showed the roadway as terminating at "Boothe Park," at a concrete monument near the northeast corner of the Delavan property. According to both Jack and Kindler, the road did not extend beyond that point.

         3. The creation of Boothe Park.

         On January 21, 1955, the Boothes executed a quitclaim deed, by which they conveyed a portion of the unnumbered lot between Lots 18 and 19, to the Coeur d'Alene Highway District, the predecessor in interest to the East Side Highway District. The deed described the property as a parcel of land 120 feet wide and 150 feet deep measuring from the meander line of Lake Coeur d'Alene. However, this deed was not without its own problems. For example, by all accounts the property was not 120 feet wide. In the survey performed by Kindler in 1956, he noted the width of the property to be only 102.5 feet.[2]

         4. Construction of the boat ramp.

         In late January 1955, the Coeur d'Alene Highway District constructed a sixty-by-twelve-foot concrete boat ramp on the property in dispute. According to Jack, Oliver reached an agreement with Bill Stark, the secretary of the Coeur d'Alene Highway District, to allow the construction of the boat ramp on Oliver's property.

         Further, Patrick Seale (Seale), who purchased Lots 17 and 18 in 1982 and 1983, testified that he personally observed Oliver performing physical work on the boat ramp. Seale testified over objection that Oliver said that the boat ramp was located on his property, but he allowed the public to use the ramp. Jack testified that he continued this practice.

         5. The Delavans' fence.

         Shortly after the boat ramp was constructed, Oliver built a fence along the south side of the boat ramp.[3] Jack testified that Oliver built the fence to act as a barrier to keep the public who were using the boat ramp from venturing onto the private section of his property. Jack testified that some old posts and remnants of a fence existed when Oliver bought the property. The District argued that the previous posts likely outlined the boundary of Oliver's property.

         At a commissioner's meeting in 1956, given the issues with the boundaries as noted above, the Coeur d'Alene Highway District decided to "straighten out all the property lines of Boothe Park." The Coeur d'Alene Highway District hired surveyor Ray Kindler for that purpose. Kindler's survey depicted a line between "Boothe Park" and the Delavan property that is consistent with the fence line.

         On October 5, 1956, Kindler sent J. Ward Arney[4] an unsigned cover letter associated with his survey, noting that "[i]n order not to cause any trouble with the adjacent property owners, Walker, Delavan and Wiks, we followed [multiple] old fence lines as closely as possible." However, there is no evidence that Oliver ever saw the Kindler survey (as it was never recorded) or that Kindler had ever contacted Oliver while Kindler was surveying the property. Rather than straightening out all the property lines, as originally intended, Kindler's survey had little effect on the uncertain boundaries.

         6. Dissolution of the Coeur d'Alene Highway District.

         The Coeur d'Alene Highway District was dissolved and reorganized in 1971 by order of the Kootenai County Board of Commissioners. East Side Highway District is the successor in interest of the Coeur d'Alene Highway District.

         7. The 1977 Department of Lands encroachment permit to Kootenai County.

         In 1977, Kootenai County submitted an application to the Idaho Department of Lands ("IDL") to extend the concrete boat ramp. The attachments to Kootenai County's application appear to show that the boat ramp was on the Delavan property. During the first trial regarding the disputed property, Jim Brady, a specialist employed by IDL, was asked about-and handwrote on-the application to show that the boundary on the document submitted by Kootenai County indicated that the Delavans owned the property on which the boat ramp had been built.

         8. The Delavan property is conveyed to Gregory and Ellen.

         Oliver and Edna passed away in the early 1990s.[5] In October of 1991, Jack and Frank, acting as co-personal representatives of the estates of their parents, Oliver and Edna, executed two deeds of distribution. First, they transferred the property to Edna's estate and then, from Edna's estate to Jack.

         On January 10, 1995, Jack and Beverly (Jack's wife) conveyed by warranty deed certain property to Gregory and Ellen Delavan, their son and daughter-in-law. The deed described the property conveyed in 1949 by quitclaim deed from the Boothes to Oliver and Edna. Another warranty deed from Jack and Beverly to Gregory and Ellen was executed December 30, 1997. This second deed conveyed the same property that the previous 1995 deed conveyed. It is unclear why the same property was conveyed more than once.

         9. Proceedings before the Kootenai County Board of Equalization.

         In 1992, after the property had been conveyed to Jack, he appealed his property tax assessment for Lots 19 through 21. Jack informed Kootenai County that he was being assessed for 300 frontage feet (consistent with three one-hundred-foot-wide lots). However, Jack argued he should only be assessed for 266 feet because of his limited use of the boat ramp. In response, the county assessor recommended a valuation that would place a portion of Jack's property into the "right of way" category. The Board of Equalization accepted the assessor's recommendation.

         A similar issue arose in 1995, after Gregory had acquired the property. Gregory filed an appeal from the valuation of Lots 19 and 20 because the boat ramp was located on Lot 19. The Kootenai County Board of Commissioners, sitting as the Board of Equalization, entered an order with the following findings of fact:

[Gregory] stated the subject property is located adjacent to Boothe Park which [has] public access to Lake Coeur d'Alene. Thirty-four feet of lake frontage is occupied by the boat ramp which belongs to [Gregory].

         10. The disagreement between the District and Gregory and Ellen.

         On December 16, 2003, the District held a meeting with Gregory in an effort to resolve the issues regarding ownership of the land on which the boat ramp had been built. Gregory stated that the boat ramp was on his property and that the District only had the right to use that property due to a verbal agreement between Oliver and the Coeur d'Alene Highway District. During the meeting, Bruce Anderson, the county surveyor, said he thought that the Kindler survey done in 1956 controlled who owned what property because the deeds were unclear. The District told Gregory that it would be his "responsibility to prove to the District that the actual boat launch area belonged to him."

         On July 13, 2009, the District posted an encroachment notice on a wall constructed by the Delavans near the boat ramp. On July 22, 2009, the Delavans disputed the encroachment notice, arguing that the wall and fence were entirely on their property. A lawsuit followed, which is the basis of this appeal.

         B. Course of proceedings.

         On April 24, 2012, the District filed its complaint to quiet title and for declaratory judgment against the Delavans. The District asserted two causes of action. First, the District sought a declaratory judgment determining that Boothe Park Road, including the boat ramp, was a public road pursuant to Idaho Code section 40-202(3). Second, the District asserted that it was entitled to ownership of the roadway, including the boat ramp, due to a "boundary by agreement," alleging that Oliver and representatives of the District's predecessors in interest had agreed that the fence was the common boundary of the property. On July 13, 2012, the Delavans filed their Answer, Affirmative Defenses, and Counterclaim. The Delavans asserted counterclaims for trespass, quiet title, and declaratory relief, arguing that they owned the disputed property.

         On July 11, 2013, Jack was deposed on video. At the time of his deposition, Jack was eighty-four years old. The parties stipulated to the introduction of Jack's video deposition at trial. Jack passed ...

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