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.
from the District Court of the First Judicial District of the
State of Idaho, Kootenai County. Lansing L. Haynes, District
decisions of the trial court are affirmed in part,
reversed in part, and vacated in part.
Vernon & Weeks, P.A., Coeur d'Alene, for appellant
East Side Highway District. Susan P. Weeks argued.
F. Magnuson, Coeur d'Alene, for respondents Gregory and
Ellen Delavan. John F. Magnuson argued.
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
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.
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.
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
Factual and Procedural Background
The real property in dispute.
Plat of the Lakeside Addition to Sunnyside
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.
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.
the years, surveyors have noted the incorrect lot numbers.
However, the original Plat itself has never been amended or
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.
The 1949 deed from John and Gertrude Boothe to Oliver and
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.
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.
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.
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.
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.
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 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']
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.
The creation of Boothe Park.
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.
Construction of the boat ramp.
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.
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.
The Delavans' fence.
after the boat ramp was constructed, Oliver built a fence
along the south side of the boat ramp. 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.
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.
October 5, 1956, Kindler sent J. Ward Arney 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
Dissolution of the Coeur d'Alene Highway
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.
The 1977 Department of Lands encroachment permit to
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.
The Delavan property is conveyed to Gregory and
and Edna passed away in the early 1990s. 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.
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.
Proceedings before the Kootenai County Board of
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.
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
[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].
The disagreement between the District and Gregory and
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."
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
Course of proceedings.
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.
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 ...