Hood V. Poorman ( 2022 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48636
KEITH HOOD and KAREN HOOD, husband )
and wife, )
)
Plaintiffs-Appellants, )
) Boise, May 2022 Term
v. )
) Opinion filed: October 27, 2022
PAUL POORMAN and GAYLE POORMAN, )
husband and wife; and RUSTY ANDERSON, ) Melanie Gagnepain, Clerk
an individual, )
)
Defendants-Respondents. )
)
Appeal from the District Court of the Third Judicial District of the State of
Idaho, Washington County. Susan E. Wiebe, District Judge.
The district court’s decision is affirmed in part, reversed in part and remanded.
Parson Behle & Latimer, Boise, for Appellants. Norman M. Semanko argued.
Givens Pursley, LLP, Boise, and Bokides Law Office, Weiser, for Respondents. Michael
P. Lawrence argued.
ZAHN, Justice.
This case concerns a district court’s decision defining the scope of a ditch right-of-way
under Idaho Code section 42-1102 and enjoining the ditch users from certain activities within the
right-of-way. For the reasons stated below, we affirm in part, reverse in part, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. Background of the properties.
In 2012, Karen and Keith Hood purchased real property in Washington County, near
Cambridge, Idaho. The Hoods’ property is near Gayle and Paul Poormans’ property, which the
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Poormans purchased in 2006 and 2008. Rusty Anderson owns a smaller property that borders the
Poormans’ property to the South. He has lived on the property since 2003 and owned it since 2006.
The Hoods’ property has three decreed appurtenant water rights. One water right is a
groundwater right for domestic and stock use unrelated to this appeal. The other two water rights
concern surface waters designated for irrigation and stock use. The Hoods’ surface water rights
total 2.93 cubic feet per second. Water from these rights is diverted from Rush Creek and conveyed
to the Hoods’ property through an irrigation ditch (“the Hood ditch”). The crux of this case
involves that portion of the Hood ditch which runs through the Poormans’ property and Anderson’s
property. The Hood ditch is approximately four miles long and generally runs in a southwesterly
direction from its point of diversion to the Hoods’ property. The channel of the ditch is
approximately two feet wide, and the ditch is roughly two feet deep and up to six feet across from
bank to bank. Slightly more than a mile of the Hood ditch runs through the Poormans’ property.
The Hoods’ point of diversion from Rush Creek is also on the Poormans’ property. Approximately
500 feet of the Hood ditch crosses Anderson’s property. The Hood ditch traverses varied
topography, with much of its course on the Poormans’ property cut into the side of a hill and the
portion on Anderson’s property crossing relatively flat land. In addition, two natural drainages
intersect the Hood ditch on the Poormans’ property. A narrow access road parallels the Hood ditch
through the Poormans’ property. The Hoods’ predecessor in interest had historically used the
access road when maintaining the ditch. The Poormans and Anderson provided the following map
on appeal as an illustrative exhibit depicting the parties’ properties and course of the Hood ditch:
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Figure 1, Illustrative Map of the Hood Ditch and Affected Properties.
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2. Conflicts between the Hoods and Poormans/Anderson.
In 2014, the Hoods removed a small bridge that Anderson had installed over the ditch.
Anderson had constructed the bridge in 2010 to access five acres of his property with vehicles and
other equipment.
In March 2016, the Hoods removed two culverts (the “north culvert” and the “south
culvert”) from the ditch on the Poormans’ property. Because the Hood ditch splits the Poorman
property in two, the Poormans used those culverts for vehicular access to roughly 200 acres of
their property on the west side of the Hood ditch. The north culvert had been in place since at least
2006 and the south culvert had been in place since around 2003.
In 2017, the tensions between the Hoods and the Poormans/Anderson escalated. The Hoods
and Poormans had several verbal altercations where the Hoods expressed their view that the ditch
right-of-way granted them exclusive ownership and absolute control of the area surrounding the
ditch. At times the Hoods expressed their view that their right-of-way was 200 feet wide, and they
could do “whatever [they] wanted” in that area. The Hoods also objected to Paul Poorman walking
in the ditch and spraying noxious weeds near it. As the animosity between the parties increased,
the Hoods took hundreds of photos and videos of the Poorman and Anderson properties. The
photos and videos showed the Hoods accessing portions of the Poorman property hundreds of feet
away from the Hood ditch, sometimes without maintenance tools or any apparent ditch-related
purpose. The Poormans encountered the Hoods on the access road on several occasions. Further,
the Hoods cut trees and dug trenches along the access road.
Following an altercation with Paul Poorman in July 2017, the Hoods began clearing trees
and other vegetation on the Poormans’ property, claiming the practice was necessary to maintain
the ditch. All told, the Hoods removed approximately 100 trees, many of which had been planted
by the Poormans. The trees ranged in distance from the Hood ditch, with some as close as eighteen
feet and others nearly 165 feet away from the ditch. The Hoods planted several of the removed
trees in pots on their own property. In addition to removing trees, the Hoods also used a bulldozer
to scrape approximately two acres of the Poormans’ property down to bare earth in the area
between the access road and the Hood ditch.
Finally, in the autumn of 2019, Paul Poorman filled in a portion of the Hood ditch with
dirt, near where the south culvert had been removed, so that he could access his property on the
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opposite side of the Hood ditch with a vehicle. In addition, Anderson temporarily reinstalled a
bridge over the Hood ditch in the spring of 2020 to access his property and make fence repairs.
B. Procedural History
The Hoods filed a complaint on November 6, 2019, seeking to have the district court: (1)
enjoin the Poormans and Anderson from interfering with their maintenance of the Hood ditch
right-of-way; (2) declare the Hoods’ rights with respect to the right-of-way; and (3) award damages
against the Poormans and Anderson for damage done to the Hood ditch right-of way. The
Poormans and Anderson filed answers and counterclaims on December 9, 2019. Anderson’s
counterclaim asserted three causes of action: (1) interference with property rights; (2) declaratory
relief; and (3) injunctive relief. The Poormans’ counterclaim raised five causes of action: (1) civil
trespass; (2) declaratory relief; (3) injunctive relief; (4) statutory liability under Idaho Code
sections 42-1102 and 42-1204; and (5) negligent, willful, or intentional interference with property
rights.
Pertinent to this appeal, both the Poormans’ and Anderson’s prayers for declaratory relief
requested the district court define the Hoods’ rights to access and maintain the Hood ditch.
Anderson sought to have the Hoods reinstall the bridge over the ditch on Anderson’s property. The
Poormans asked the district court to require the Hoods to replace the removed culverts on the
Poormans’ property, and refrain from removing trees and other vegetation outside the scope of the
Hood ditch right-of-way. The Poormans also requested monetary compensation for damage to
their property as a result of the Hoods’ ditch maintenance, including the removal of trees and
vegetation.
The Hoods moved for partial summary judgment, asking for the district court to conclude
that (1) the Hoods owned three water rights, (2) the Hoods owned the Hood ditch, (3) the Hoods
possessed a right-of-way for the Hood ditch, (4) the Hoods held statutory rights in the right-of-way
under Idaho Code section 42-1102, and (5) that the Poormans and Anderson could not interfere
with those statutory rights without prior written permission. The Poormans and Anderson did not
contest that the Hoods were entitled to partial summary judgment on the above issues but requested
that the district court add qualifications to its judgment on certain issues. They did not contest the
Hoods’ claims that they owned three water rights and they enjoyed statutory rights under section
42-1102. However, on the other issues, they requested the district court to enter summary judgment
as follows:
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• “Hood owns the Hood ditch, which is a non-exclusive ditch easement across
the Defendants property for diversion and conveyance of the water under the
Hood Water Rights”;
• “Hood has a right-of-way across Defendants’ Properties, along with the
obligations of a ditch holder, in accordance with applicable statute and
applicable case law”; and
• “Defendants shall not place encroachments in the right of way that materially
or unreasonably interfere with the right of way without Hood’s written
permission.”
Following oral argument, the district court issued a written decision granting the Hoods’ motion
for partial summary judgment that incorporated the limitations proposed by the Poormans and
Anderson.
The district court held a four-day bench trial on the remaining issues in June 2020. On
September 21, 2020, the district court issued its written decision, which we summarize below.
1. The Hoods’ access to the right-of-way.
The district court found that the Hoods had unreasonably exercised their right to use the
right-of-way and that the access road on the Poormans’ property did not provide direct access to
the right-of-way. The district court then found that the Hoods could reasonably access the right-
of-way by only traveling along the ditch banks. The district court identified a reasonable point of
access to the right-of-way from the south, which relied primarily on use of the ditch banks and
permitted use of the access road when obstacles interfered with access to the ditch banks. The
district court found that the Hoods could reasonably access their weir 1 from the ditch bank, and
that from the weir they could reasonably access their point of diversion by using the Poormans’
access road. Alternatively, the district court found that the Hoods could reasonably access the
right-of-way from the north by using a road through an adjacent property owned by a nonparty.
The district court also found that if the Hoods established a ditch bank from their weir to their
point of diversion, they could use that bank for reasonable access. Finally, the district court
enjoined the Hoods from accessing the right-of-way from any point other than the access points
described in its order.
1
The Hood ditch uses a Cipolletti weir, which is a device installed in a ditch to calculate the rate at which water flows
through the ditch.
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2. The frequency, timing and notice governing the Hoods accessing the right-of-way.
The district court found that the Hoods accessed their right-of-way more than the typical
practice for ditch users in the surrounding area. The district court again applied Idaho Code section
42-1102 and reasoned that the statute did not allow the Hoods to access their right-of-way at any
time to clean, maintain, or repair the ditch. Rather, the district court ruled that the Hoods’ access
and maintenance rights were limited by the “rule of reasonableness.” Applying that standard to the
above facts, the district court concluded that the Hoods’ prior use of the right-of-way had been
unreasonable and that “the excessive access may [have been] intended, in part, to harass.” Given
what the district court found to be excessive and unreasonable use of the right-of-way, the district
court concluded that irreparable harm to the Poormans’ and Anderson’s properties would occur
unless the Hoods’ use of the right-of-way was restricted. Accordingly, the district court limited
how often and when the Hoods could access the right-of-way.
3. The Hoods’ removal of culverts in the right-of-way.
The district court found that the Hood ditch ran through three culverts on the Poormans’
property—the north culvert, the south culvert, and a culvert beneath the Poormans’ driveway. The
district court found that, after using the culverts for four years, the Hoods removed both the north
and south culverts in March 2016 without prior notice to the Poormans. The district court also
found that the Hoods intended to remove the culvert beneath the Poormans’ driveway in the future,
despite never having observed that culvert interfering with the ditch’s flow. Without the north and
south culverts, the district court found that more than 200 acres of the Poormans’ property was
accessible only by foot.
The district court found that neither of the culverts had restricted the flow of water in the
Hood ditch. The district court concluded that the Hoods’ actions in removing both culverts
unreasonably increased the burden on the servient estate by cutting off access to 200 acres of the
Poormans’ property and causing the Hoods to build new roads on the Poormans’ property to access
the ditch. Accordingly, the district court concluded that the Poormans were entitled to damages for
the cost of reinstalling the culverts. Further, the district court enjoined the Hoods from removing
the culvert beneath the Poormans’ driveway, reasoning that the Hoods had not carried their burden
to demonstrate that the culvert unreasonably or materially interfered with their right-of-way.
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4. Findings of fact and conclusions of law regarding damages.
The district court found in favor of the Poormans on their negligence counterclaim, which
alleged that the Hoods breached their duties under Idaho Code sections 42-1102 and 42-1204 to
properly clean, maintain, and repair the ditch. The district court reiterated its findings that the
Hoods had acted outside the scope of their statutory right-of-way and negligently maintained the
ditch, causing an increase in rodent activity, noxious weed growth, increased leakage from the
ditch, flooding from the Hood ditch, difficulty accessing portions of the Poorman property, the
creation of additional roads outside the right of way, and damage to the natural habitat.
Consequently, the district court awarded the Poormans monetary damages including $1800 for
replacing the north and south culvert, $250 for the removal of a mature apple tree, and $300 for
additional weed spraying measures. 2
The district court subsequently entered a judgment consistent with its written decision. The
Poormans and Anderson filed a motion to alter or amend the judgment, requesting that the district
court attach the deeds to the dominant and servient estates and add language stating that the terms
of the judgment shall run with the parties’ lands. Subsequently, on December 29, 2020, the district
court entered an amended judgment. The amended judgment attached the deeds to the dominant
and servient estates, removed subheadings in the judgment related to declaratory relief, injunctive
relief, and damages and stated that the determination of the parties’ rights and obligations related
to the use of the right-of-way “shall run with the parties’ lands and shall be binding upon their
respective successors in interest.” The Hoods timely appealed.
II. ISSUES ON APPEAL
1. Did the district court err in defining and limiting the scope of the Hoods’ rights to access
and maintain their ditch right-of-way?
2. Did the district court err in determining the Hoods had improperly removed the north and
south culverts?
3. Did the district court err in its damage award to the Poormans?
III. STANDARD OF REVIEW
The Hoods have not raised any issues on appeal concerning the grant of partial summary
judgment below. Instead, their appeal focuses on the district court’s judgment following the bench
2
The district court also awarded the Poormans $11,960 in damages to restore the natural habitat on their property and
$275 in damages for wire baskets and wood stakes taken by the Hoods. However, the Hoods have not challenged these
damages on appeal.
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trial. As such, this Court’s review of the district court’s decision “is limited to determining whether
the evidence supports the findings of fact and whether the findings of fact support the conclusions
of law.” Burns Concrete, Inc. v. Teton Cnty., 168 Idaho 442, 456, 483 P.3d 985, 999 (2020).
Factual findings will not be set aside unless they are clearly erroneous. Caldwell Land & Cattle
LLC v. Johnson Thermal Sys., Inc., 165 Idaho 787, 795, 452 P.3d 809, 817 (2019). A factual
finding is clearly erroneous if it is not supported by substantial and competent evidence. Id.Although there may be conflicting evidence, “[s]ubstantial and competent evidence exists ‘[i]f
there is evidence in the record that a reasonable trier of fact could accept and rely upon in making
the factual finding challenged on appeal.’” Id. (second alteration in original).
This Court “is not bound by the legal conclusions of the trial court” and exercises free
review to “draw its own conclusions from the facts presented.” Morgan v. New Sweden Irr. Dist.,
160 Idaho 47, 51, 368 P.3d 990, 994 (2016) (citing U.S. Bank Nat’l Ass’n N.D. v. CitiMortgage,
Inc., 157 Idaho 446, 451, 337 P.3d 605, 610 (2014)) (internal quotation marks omitted). However,
this Court liberally construes a trial court’s factual findings in favor of the judgment entered.
Caldwell Land & Cattle, 165 Idaho at 795, 452 P.3d at 817. This Court also exercises free review
over questions of statutory interpretation. D.A.F. v. Lieteau, 166 Idaho 124, 126–27, 456 P.3d 193,
195–96 (2019).
Finally, “[t]he granting or refusal of an injunction is a matter resting largely in the trial
court’s discretion.” Munden v. Bannock Cnty., __ Idaho __, 504 P.3d 354, 363 (2022) (citing
Conley v. Whittlesey, 133 Idaho 265, 273, 985, P.2d 1127, 1135 (1999)). Accordingly, this Court
applies an abuse of discretion standard to a decision to grant injunctive relief, asking “[w]hether
the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.” Lunneborg
v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
IV. ANALYSIS
A. The district court’s decision limiting the Hoods’ exercise of their secondary easement
rights is affirmed in part and reversed in part.
This case requires us to address the scope of a ditch user’s rights under Idaho Code section
42-1102 and what relief is available when a ditch user acts unreasonably in the exercise of those
statutory rights. Thus, we must interpret the statute to determine whether the district court erred in
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concluding that the Hoods acted outside their statutory rights and whether the district court
properly granted injunctive relief to the Poormans and Anderson.
The goal of statutory interpretation is to give effect to “the intent of the legislative body
that adopted the act.” Melton v. Alt, 163 Idaho 158, 162, 408 P.3d 913, 917 (2018). To that end,
our analysis begins with the statute’s literal language. Id. We read the statute as a whole, giving
words their plain, usual, and ordinary meanings. Id. “[W]here a statute is unambiguous, its plain
language controls and this Court will not engage in statutory construction.” Ravenscroft v. Boise
Cnty., 154 Idaho 613, 615–16, 301 P.3d 271, 273–74 (2013).
All parties to this action agree that section 42-1102 creates an easement—referred to as a
right-of-way—for a ditch user. Generally stated, an easement is “[a]n interest in land owned by
another person, consisting in the right to use or control the land, or an area above or below it, for
a specific limited purpose.” Easement, BLACK’S LAW DICTIONARY (11th ed. 2019). A right-of-way
is a specific type of easement, which gives “[t]he right to pass through property owned by another.”
Right-of-way, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, the plain language of section 42-
1102 creates a right-of-way for a landowner to convey water over the land of another for irrigation
purposes, through use of a ditch, canal, or conduit.
In our decisions addressing section 42-1102, we have consistently used the term
“easement” to generally describe the right-of-way conferred by the statute, and have applied
longstanding principles of easement law to that statutory right-of-way. See Morgan v. New Sweden
Irr. Dist., 156 Idaho 247, 253, 322 P.3d 980, 986 (2014); Nampa & Meridian Irr. Dist. v. Wash.
Fed. Sav., 135 Idaho 518, 522, 20 P.3d 702, 706 (2001). “[T]his Court assumes the Legislature has
full knowledge of . . . existing judicial interpretation when it amends a statute.” Robison v.
Bateman-Hall, Inc., 139 Idaho 207, 212, 76 P.3d 951, 956 (2003). Accordingly, where “terms and
phrases have developed a specific meaning or subtext resulting from years of consistent judicial
interpretation” this Court presumes that the Legislature does not intend to overturn those
established interpretations absent a clear intention to the contrary. Id. Despite multiple
amendments to section 42-1102, including as recently as 2021, the Legislature has not overturned
this Court’s application of longstanding easement principles to the statutory right-of-way provided
in section 42-1102. As such, we continue to interpret and apply the statute in accordance with
those principles.
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An easement consists of two parts: the primary easement and the secondary easement. See
Machado v. Ryan, 153 Idaho 212, 221, 280 P.3d 715, 724 (2012). A primary easement
encompasses the general definition of an easement—that is, the right to use another’s land for
some specific purpose. Armand v. Opportunity Mgmt. Co., 155 Idaho 592, 600, 315 P.3d 245, 253
(2013). A secondary easement, in contrast, “refers to the right to enter and repair and do those
things necessary to the full enjoyment of the [primary] easement.” Ruddy-Lamarca v. Dalton
Gardens Irr. Dist., 153 Idaho 754, 757, 291 P.3d 437, 440 (2012). The exercise of secondary
easement rights must always be reasonable. Id.The plain language of section 42-1102 addresses both a ditch user’s primary and secondary
easements. Subsection (1) describes the right to use the land of another for a specified purpose—
to convey water to its place of irrigation using a ditch, canal, or conduit. I.C. § 42-1102(1).
Subsection (2), in turn, describes the secondary easement rights a ditch user has to maintain the
right-of-way. I.C. § 42-1102(2). This distinction is more than a semantic one, as the character of
an easement as primary or secondary informs how courts define the scope of the easement.
We have long required courts to define the scope of both primary and secondary easements
when called upon to resolve conflicts between a servient estate holder and a dominant estate holder.
Ruddy-Lamarca, 153 Idaho at 757, 291 P.3d at 440. With respect to a primary easement, any
judgment determining the existence of an easement must specify the character, location, width,
and length of the easement. Argosy Trust ex rel. Andrews v. Wininger, 141 Idaho 570, 572–73, 114
P.3d 128, 130–31 (2005); see also Hall v. Taylor, 57 Idaho 662, 668–69, 67 P.3d 901, 903 (1937).
These dimensions, once ascertained, must be “definitely and certainly fixed and described in the
decree” to allow parties with an interest in the dominant and servient estates to (1) know how the
title to their real property has been affected and (2) avoid conflict. Id. Put simply, a judgment
defining the scope of a primary easement must indicate the character, location, width, and length
of the easement with sufficient detail so that it may be recorded against the servient estate.
In contrast, the scope of a secondary easement may vary based on the present circumstances
affecting maintenance of the easement. Ruddy-Lamarca, 153 Idaho at 757–58, 291 P.3d at 440–
41. A secondary easement is defined by what is reasonable to maintain the primary easement, and
maintenance needs may change over time, so the scope of a secondary easement need not be fixed
like a primary easement. See id. While some of our caselaw has suggested that the dimensions of
a secondary easement may be fixed, we have not required such a result and have instead focused
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on whether the exercise of a secondary easement right is reasonable under the circumstances.
Caldwell v. Cometto, 151 Idaho 34, 38, 253 P.3d 708, 712 (2011) (affirming a three-foot secondary
easement for snow removal from a right-of-way); Ruddy-Lamarca, 153 Idaho at 758, 291 P.3d at
441 (approving a sixteen-foot secondary easement for heavy equipment to replace irrigation
conduit as opposed to an alternative method of replacement that would require forty-feet because
“methods of pipeline installation that may have been reasonable fifty or sixty years ago are not
necessarily reasonable today”). Secondary easements principally concern what maintenance
activities an easement holder may conduct, and to the extent a secondary easement has a defined
physical dimension, it is tethered to the amount of space reasonably necessary to accomplish a
particular maintenance activity at that time. See Ruddy-Lamarca, 153 Idaho 758, 291 P.3d at 441.
With this framework in mind, we turn to the Hoods’ contentions on appeal that the district
court’s decision conflicted with section 42-1102. The Hoods argue that the district court
improperly restricted their secondary easement rights under section 42-1102 because: (1) the
district court improperly denied them “the historic, reasonable access to the Hood ditch” and (2)
the district court’s decision improperly restricted the times when the Hoods can maintain the ditch
and improperly imposed a notice required prior to such maintenance.
1. The district court’s decision regarding the Hoods’ unreasonable exercise of their right to
access the ditch is supported by substantial and competent evidence, but the matter is
remanded for the district court to apply the permanent injunction standard.
The Hoods argue that the limitation on access imposed by the district court is inconsistent
with the “historic, reasonable access” to the ditch right-of-way for the last thirty years. Further, the
Hoods argue that the access provided by the district court is inherently unreasonable because it is
contingent on a variety of uncertain factors such as (1) the Poormans’ northern neighbor allowing
the Hoods access through their property, (2) reinstallation of the north culvert; and (3) the Hoods’
construction of a ditch bank from their weir to their diversion.
Respondents argue that the district court’s findings as to reasonable access are supported
by substantial and competent evidence and are consistent with Idaho Code section 42-1102.
Further, they contend that the district court’s order did not leave the Hoods with only contingent
access to the ditch.
Idaho Code section 42-1102 provides that the right-of-way for a ditch includes the
“reasonable exercise of . . . [t]he right to enter the land across which the right-of-way extends for
the purposes of accessing, inspecting, operating, cleaning, maintaining, and repairing the ditch[.]”
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I.C. § 42-1102(2)(a). 3 We have construed the phrase “reasonable exercise” in section 42-1102 to
mean that a ditch user’s secondary easement rights are limited by the “rule of reasonableness.”
Ruddy-Lamarca, 153 Idaho at 757, 291 P.3d at 440.
Under the rule of reasonableness, “the servient estate owner is entitled to make uses of the
property that do not unreasonably interfere with the dominant estate owner’s enjoyment of the
easement.” Id. at 758, 291 P.3d at 441 (citing Nampa & Meridian Irr. Dist. v. Wash. Fed. Sav.,
135 Idaho 518, 522, 20 P.3d 702, 706 (2001)). Correspondingly, the dominant estate owner owes
a “duty to minimize the impact of its enjoyment of the easement upon the servient estate.” Id. As
such, while a dominant estate owner “has the right to enter the servient estate in order to maintain,
repair, or protect the easement . . . [he] may do so, however, only when necessary and in a
reasonable manner as not to increase needlessly the burden on the servient estate.” Bedke v. Pickett
Ranch & Sheep Co., 143 Idaho 36, 41, 137 P.3d 423, 428 (2006). “The question of reasonableness
is ordinarily a question of fact to be resolved by the trier of fact after both parties have had an
opportunity to try this issue.” Thiel v. Stradley, 118 Idaho 86, 88, 794 P.2d 1142, 1144 (1990).
Here, the district court made a variety of factual findings concerning the Hoods’
unreasonable exercise of their right to access the ditch. Although the Hoods preferred to use the
access road to approach the ditch, the district court found that the ditch could not be maintained
from the access road because it was too far away from the Hood ditch. Further, the district court
made findings indicating that the Hoods repeatedly accessed the Poormans’ property in an
unreasonable manner, including accessing the Poormans’ and Anderson’s property far more often
than other ditch users in the area, attempting to access the ditch through Anderson’s personal
driveway, accessing the ditch at night, and leaving equipment on the Poormans’ property for
months at a time. Additionally, the district court found that the Hoods had strayed up to 357 feet
from the Hood ditch on the Poormans’ property while taking pictures of the Poormans’ and
Anderson’s properties, including their personal residences. The district court further found that the
Hoods’ “excessive access may be intended, in part, to harass the Poormans and Anderson.”
The district court also made findings regarding a route that would provide reasonable
access to the ditch on the Poormans’ property. The district court found that the Hoods had used
3
The language concerning a right to enter land for the purpose of accessing a ditch was added by a recent amendment
to section 42-1102. 2021 IDAHO SESS. LAWS 778. The district court issued its decision prior to that amendment.
However, neither party disputes that the current language in section 42-1102 controls this matter.
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the ditch’s banks to travel and conduct maintenance activities, and that the banks of the ditch
allowed sufficient space for the Hoods to perform maintenance tasks with their preferred
equipment like a bulldozer, ATV, or backhoe. Accordingly, the district court found that the Hoods’
reasonable access was limited to traveling along the ditch and ditch banks, except on those portions
of the Poormans’ property where the ditch or banks were inaccessible due to topography or
obstacles. In those areas, the district court found that the Hoods could reasonably use portions of
the access road to navigate around the obstacles and regain access to the ditch or its banks.
As for the Hoods’ diversion and weir at the north end of the Poormans’ property, the district
court found three alternative points of access. First, the district court found reasonable access along
the access road between the north culvert and the Hood ditch diversion. Second, the district court
found that the Hoods could also reasonably access their diversion from their weir if they
constructed a ditch bank along that portion of the ditch. Third, the district court found that the
Hoods could reasonably access their diversion directly from the north to the extent that the
Poormans’ northern neighbors continued to allow the Hoods to travel on their access road.
Neither party disputes that the language of section 42-1102 limits the Hoods to the
reasonable exercise of their right to enter the Poormans’ land; instead, they merely disagree as to
whether the district court properly found the access points to be reasonable. Thus, the question is
whether the district court’s findings on this issue are supported by substantial and competent
evidence, and whether those findings are consistent with section 42-1102.
To begin, we conclude that the district court’s findings are supported by substantial and
competent evidence. The district court relied on testimony from Keith Hood, Paul Poorman, the
Poormans’ expert witness, and Charles Edwards, the user of the Hood ditch for the twenty-five
years preceding the Hoods, in finding that the Hoods had exercised their right to enter the
Poormans’ property unreasonably. Both Edwards and the Poormans’ expert witness, Karson Craig,
had extensive experience maintaining ditches in the local area, including performing maintenance
work on the Hood ditch. The district court also relied on a video, shot by the Hoods, showing them
traversing the ditch right-of-way on their ATV using the route the district court found to be
reasonable. The video does not depict the Hoods traveling from their weir to the diversion.
However, Keith Hood testified that the diversion and weir were accessible along the access road
at the north of the Poormans’ property. Further, Keith testified that he navigated that route using
his dozer to clean vegetation from the ditch. Keith did not testify that the proposed route would be
14
impossible but stated that traveling the ditch from the south to maintain the weir or diversion would
be extremely inconvenient. We therefore conclude that the district court’s factual findings that: (1)
the Hoods acted unreasonably in accessing the ditch; and (2) that there were alternative routes that
provided reasonable access to the ditch are supported by substantial and competent evidence.
The district court erred, however, when it enjoined the Hoods from traveling outside what
it found to be the reasonable access routes to the Hood ditch because it failed to apply the
applicable injunction standard. A permanent injunction requires a showing of threatened or actual
irreparable injury. O’Boskey v. First Fed. Sav. & Loan Ass’n of Boise, 112 Idaho 1002, 1007, 739
P.2d 301, 306 (1987). The district court’s written order does not discuss or apply this standard
prior to enjoining the Hoods from traveling outside the reasonable path of access that it identified.
We therefore reverse that portion of the district court’s order enjoining the Hoods from using
access other than that declared by the district court, vacate its judgment regarding the same and
remand the matter for the district court to apply the permanent injunction standard.
The Hoods make additional arguments on appeal related to that portion of the district
court’s order identifying alternative routes to access the ditch, which we will address for purposes
of providing guidance for this issue on remand. “Where an appellate court reverses or vacates a
judgment upon an issue properly raised, and remands for further proceedings, it may give guidance
for other issues on remand.” North Idaho Building Contractors Assoc. v. City of Hayden, 164 Idaho
530, 540, 432 P.3d 976, 986 (2018) (quoting Urrutia v. Blaine Cnty., 134 Idaho 353, 359, 2 P.3d
738, 744 (2000). “In offering guidance, however, we are aware that such guidance should only be
given on issues that are absolutely necessary, and regarding issues that have a practical effect on
this appeal; otherwise, we would be offering an impermissible advisory opinion cloaked as
‘guidance.’” Id. (citing State v. Manzanares, 152 Idaho 410, 419, 272 P.3d 382, 391 (2012)).
The Hoods first contend, relying exclusively on section 42-1102, that the district court
erred in denying them the “historic, reasonable access” to the ditch along the access road. However,
section 42-1102 does not entitle a ditch user to the “historic” access to the ditch. Nor does it entitle
a ditch user to their preferred access if they utilize that access in an unreasonable manner. Here, a
reasonable factfinder could, as the district court did, conclude that the Hoods had unreasonably
exercised their right to access the ditch and that reasonable, alternative access routes exist that will
allow the Hoods to access the ditch while limiting the burden on the Poormans’ property. In the
event the district court concludes that threatened or actual irreparable harm will result if the Hoods
15
are not restricted to the reasonable alternative access routes, nothing in section 42-1102 prevents
the district court from granting the Poormans injunctive relief in that regard.
Second, the Hoods argue that the access ordered by the district court is uncertain because
it hinges on the Poormans’ northern neighbor allowing them to cross his property. Yet, the access
that the district court identified is not dependent on the Hoods being able to cross the neighboring
property. While the district court pointed out that the Hoods could access the right-of-way from
the north via the neighboring property, it also provided for access to the entire course of the ditch
from the south. As such, even if the neighbor closed his property to the Hoods, the Hoods would
still be able to access the right-of-way using the other access identified by the district court.
Third, the Hoods argue that the district court made their access to their weir and diversion
contingent on the reinstallation of the north culvert. Since they argue the district court erred in
ordering the culverts to be reinstalled, they contend it was also an error to make access contingent
on their reinstallation. This argument ignores the language of the district court’s order, which
indicated that the Hoods’ reasonable point of access to their diversion would be to use the
established access road from “the location where the northern culvert was removed[.]” (Emphasis
added). Indeed, the Hoods’ video exhibit, relied on by the district court in reaching its conclusion,
shows the Hoods traveling south from their weir along the ditch banks and crossing the ditch near
where the north culvert was removed. Thus, even if the north culvert were not reinstalled, the
access provided for by the district court’s order would still be sufficient to allow the Hoods to
reach both their weir and diversion.
Finally, the Hoods argue that the district court made access to their diversion from the weir
contingent on the Hoods clearing vegetation and building a ditch bank. However, this access is
merely an alternative to the previously discussed access from the south. Without a ditch bank from
the weir to the diversion, the district court concluded that the Hoods could use the ditch banks and
established an access road to travel to and from the weir and diversion. Even if the Hoods chose
to never clear a path between their weir and diversion, the district court’s order still provides them
with reasonable access to both of those points.
To conclude, nothing in section 42-1102 guaranteed the Hoods the “historic, reasonable
access” to the ditch. The district court’s findings that the Hoods unreasonably exercised their right
to enter the Poormans’ property to access the ditch and findings as to where and how the Hoods
may reasonably access the ditch are supported by substantial and competent evidence. We
16
therefore affirm the district court's decision on these points. We, however, reverse that portion of
the district court’s order enjoining the Hoods from using access other than described in the district
court’s order, vacate its judgment regarding the same and remand the matter for proceedings
consistent with this opinion.
2. The district court erred in imposing certain limitations on the Hoods’ maintenance
activities.
The Hoods argue that the district court’s restrictions as to when they may access their ditch
right-of-way impermissibly interfered with their rights under section 42-1102. Specifically, they
contend that the district court erred in limiting them to one week of maintenance in March and
September; requiring them to provide seventy-two hours of notice and obtain permission to
conduct additional maintenance; and restricting their ability to respond to any emergencies with
the ditch. They assert that section 42-1102 gives them the right to access the right-of-way when
they determine it is “necessary to clean, maintain, or repair the Hood ditch,” and the district court’s
restrictions prevent them from fulfilling their obligations, imposed by other Idaho statutes, to
maintain the ditch, exposing them to potential liability.
The Poormans and Anderson first contend that by failing to address the district court’s
remaining restrictions, the Hoods have waived their arguments related to (1) accessing the right-
of-way at night absent an emergency; (2) accessing the right-of-way when water is not in the ditch
between Thanksgiving and February; and (3) leaving their equipment in the right-of-way for more
than twenty-four hours. Addressing the merits of the restrictions, they argue that the district court
did not abuse its discretion in enjoining the Hoods from accessing the right-of-way during certain
times because the district court’s conclusion that irreparable injury would occur absent an
injunction is supported by substantial and competent evidence. They also assert that the restrictions
placed on the Hoods do not prevent them from exercising their statutory maintenance rights.
After considering the evidence at trial, which included the testimony of Edwards and Craig,
the district court found that the Hoods had accessed their ditch right-of-way unreasonably because
they exceeded the prevailing practice in the surrounding area and their intrusions were primarily
done to harass the Poormans and Anderson. The Hoods accessed the ditch daily or every other day
when water was in the ditch in contrast to the practice of other local farmers who, on average, only
visited their ditches once a week when water was flowing. Further, the Hoods accessed the right-
of-way at night, even when there was no emergency.
17
The district court found that Edwards did not visit the ditch between Thanksgiving and
April or May of each year, the period when water was not flowing in the ditch. In contrast, the
district court found that when there was no water flowing in the ditch the Hoods accessed
Respondents’ properties eight-to-ten times with only a camera and no maintenance tools. The
district court also found that the Hoods had taken hundreds of photos and videos of Respondents
and their properties from the right-of-way.
Regarding when maintenance work was completed, the district court found that it was
customary in the local area to clean a ditch once every three to five years. It also found that such
maintenance was usually performed in the fall with hand tools. In contrast, the Hoods used two
pieces of heavy equipment—a dozer and a backhoe—as well as various hand tools to perform
maintenance. The Hoods cleared vegetation from the ditch and banks once a year by dragging a
chain harrow 4 behind their dozer. They also left heavy equipment on the Poormans’ property for
months at a time. Finally, the district court found that Keith Hood stated, “he would do whatever
he could to run the Poormans off.”
Based on the above, the district court found the Hoods’ “frequency of travel” along the
right-of-way to be unreasonable and concluded that irreparable harm would occur in the form of
harassment and damage to the natural habitat without an injunction. Consequently, the district
court limited the Hoods use of the right of way to the following:
• The Hoods can only access the Hood ditch once per week when water is in the
ditch.
• The weekly access is for the limited purpose of cleaning, maintaining, and
repairing the ditch.
• The Hoods may not use the weekly access to “simply travel along the
Poormans’ and Anderson’s properties without completing work along the Hood
ditch.”
• The Hoods may access the ditch if notified of an emergency in writing by the
Anderson or the Poormans, or notified by a government agent.
• When there is not water in the ditch, the Hoods may not access the ditch
between Thanksgiving and February.
• The Hoods may access their ditch for one week in September and one week in
March for cleaning, maintenance, and repairs.
4
A chain harrow is “a cultivating tool set with spikes, teeth, or disks . . . used primarily for breaking up and smoothing
. . . soil.” Harrow, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/harrow (last visited April 7,
2022).
18
• The Hoods can access the ditch more frequently if they provide seventy-two
hours’ notice and the Poormans and Anderson agree in writing.
• The Hoods may not access the Hood ditch at night unless notified of an
emergency by the Poormans, Anderson, or a government agent.
• The Hoods may not leave equipment in the right-of-way for more than twenty-
four hours except during the one-week spring and fall maintenance blocks.
On appeal, the Hoods do not challenge the district court’s factual findings, but instead
assert that the district court’s injunctive relief was unreasonable and unlawful because it conflicted
with section 42-1102. A district court’s decision granting injunctive relief is reviewed for an abuse
of discretion. Gem State Roofing, Inc. v. United Components, Inc., 168 Idaho 820, 828, 488 P.3d
488, 496 (2021). The Hoods do not discuss the abuse of discretion standard in their briefing to this
Court. However, to the extent the Hoods argue that the district court’s injunctive relief was
inconsistent with applicable legal standards and unreasonable, we construe their argument as
asserting that the district court abused its discretion in violation of the third and fourth Lunneborg
factors. See Valiant Idaho, LLC v. JV L.L.C., 164 Idaho 280, 291, 429 P.3d 168, 179 (2018) (A
party claiming an abuse of discretion bears the burden to demonstrate violation of “at least one
part of the abuse of discretion test.”). Before we address the merits of the Hoods’ argument, we
first consider whether the Hoods waived their arguments regarding certain portions of the district
court’s order.
a. The Hoods have waived their arguments with respect to portions of the district court’s
injunctive relief.
Respondents contend that the Hoods have waived their arguments on appeal relating to:
(1) accessing the ditch right-of-way at nighttime; (2) accessing the ditch right-of-way when water
is not in the ditch between Thanksgiving and February; and (3) leaving equipment in the right of
way for more than twenty-four hours because they have not provided specific argument on these
issues. The Hoods do not counter this argument in their reply brief.
Idaho Appellate Rule 35 requires an appellant’s brief to “contain the contentions of the
appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the
authorities, statutes and parts of the transcript and record relied upon.” I.A.R. 35(a)(5). “Issues that
are not argued and supported as required by the appellate Rules are deemed to have been waived.”
Sherman Storage, LLC v. Global Signal Acquisitions II, LLC, 159 Idaho 331, 338–39, 360 P.3d
340, 347–48 (2015) (citation omitted).
19
We conclude that the Hoods have waived their challenge to these issues. While the Hoods
generally assert that section 42-1102 prevents a trial court from imposing any limits on their
secondary easement rights, they only provide specific arguments relating to the one-week
maintenance periods in March and September, their ability to maintain the ditch in event of an
emergency, and the requirement to obtain written agreement after seventy-two hours of notice to
conduct maintenance activities in excess of the district court’s schedule. Accordingly, we conclude
that the Hoods have waived any challenge to the other restrictions identified in the district court’s
order.
b. The district court abused its discretion in enjoining the Hoods from accessing the ditch
right-of-way at certain times.
Turning to the restrictions that the Hoods addressed in their briefing, the Hoods assert that
the district court erred in limiting their use of the right-of-way because its decision was (1)
inconsistent with Idaho Code section 42-1102 and (2) unreasonable. The first two Lunneborg
elements are not in dispute. As such, we address only whether the district court acted consistently
with governing legal standards and through the exercise of reason.
To begin, the Hoods do not assert that the district court failed to meet the applicable
standard for issuing a permanent injunction, but rather rest their argument on the contention that
section 42-1102 does not permit timing or notice restrictions on a ditch user’s maintenance
activities. Section 42-1102 provides:
The right-of-way for a ditch . . . shall include but is not limited to the reasonable
exercise of . . . [t]he right to occupy the right-of-way during any season of the year
to perform the work of operating, cleaning, maintaining and repairing the ditch . . .
without prior notice to the owner or occupant of the land across which the right of
way extends.
I.C. § 42-1102(2)(c) (emphasis added). Nothing in the statute permits a ditch user unfettered
exercise of the statutory rights. As discussed above, the statutory language incorporates the rule of
reasonableness. Thus, a prerequisite to limiting a ditch user’s exercise of secondary easement
rights is a finding that the ditch user has exercised such rights unreasonably and needlessly
burdened the servient estate. Bedke, 143 Idaho at 41, 137 P.3d at 428. In addition, prior to entering
injunctive relief a court must also determine that threatened or actual irreparable harm would result
if the ditch user were not enjoined from exercising their rights unreasonably. See Gem State
Roofing, Inc., 168 Idaho at 834, 488 P.3d at 502 (discussing the standard for a permanent
injunction).
20
Here, the district court rejected the Hoods’ argument that section 42-1102(2)(c) allowed
them to access the right-of-way at any time they determined it was necessary to clean, maintain,
or repair the Hood ditch, concluding that the Hoods were only entitled to the reasonable exercise
of those rights. The district court then applied the rule of reasonableness to assess whether the
Hoods had reasonably exercised their rights. It found that the Hoods had accessed the right-of-way
excessively, almost every day and sometimes at night, with the intention to harass the Respondents.
Further, the district court noted that the Hoods had not presented any evidence that such excessive
occupation of the right of way was related to a permissible purpose under section 42-1102. Rather,
the district court noted the prevailing practice in the local area was to access ditches once a week
when water is running and to clean the ditches in the fall after irrigation season has ended. The
district court also found that if it did not limit the Hoods’ access, irreparable harm would result in
the form of harassment and damage to the natural habitat of the servient estate. Accordingly, the
district court concluded that the Hoods had unreasonably exercised their rights and that irreparable
harm would occur without a ruling limiting the Hoods’ use.
We conclude that the district court acted consistently with applicable legal standards and
through the exercise of reason in determining that the Hoods needed to be enjoined from
unreasonably accessing the ditch. Contrary to the Hoods’ assertions, their secondary easement
rights under section 42-1102 are not unfettered. As previously discussed, they may be limited if
they are exercised unreasonably and a court determines that an injunction is proper to prevent
threatened or actual irreparable injury to the servient estate. The Hoods have not challenged the
district court’s factual findings that they accessed the ditch far more than the local practice, and
that they did so with the purpose of harassing the Respondents. Further, they do not challenge the
district court’s conclusion that irreparable harm would result if the Hoods were not enjoined from
excessively occupying the right-of-way. As such, the district court acted consistently with
applicable legal standards in concluding that the Hoods needed to be enjoined to prevent
irreparable injury to the servient estate. Further, given the district court’s undisputed findings that
the Hoods had acted with the intention of harassing and “running off” the Poormans and Anderson,
the district court also exercised reason in concluding an injunction would be appropriate.
Although the district court did not abuse its discretion in choosing to enjoin the Hoods from
excessively accessing the right-of-way, some of the district court’s specific limitations on when
the Hoods could access the right-of-way were an abuse of discretion because they were either
21
unsupported by evidence in the record or contradicted by the evidence presented at trial. First, the
district court failed to exercise reason in enjoining the Hoods from conducting emergency ditch
maintenance unless notified by Respondents or a government agent. There was no evidence that
the Hoods had abused their right to access the right-of-way by claiming a non-existent emergency
existed with the ditch. We note that ditch users are subject to statutory duties to maintain their
ditches and prevent harm to others. See I.C. §§ 42-1203, -1204. The district court’s limitation could
prevent the Hoods from timely responding to an emergency with the ditch, potentially exposing
them to liability. If a breach of the ditch bank or other emergency occurred while either Anderson
or the Poormans were away from their property, the Hoods would be unable to respond absent a
notification from some government agent, even though they may be aware of an emergency simply
by observing the flow of water in the ditch on their own property. Accordingly, we conclude that
the district court abused its discretion in enjoining the Hoods from conducting emergency
maintenance absent a notification from Anderson, the Poormans, or a government agent because
it did not exercise reason in imposing this limitation. If, however, the Hoods begin abusing the
right to access the right-of-way for purported emergency repairs, then the Poormans and/or
Anderson can present that evidence and the district court can determine whether further injunctive
relief is necessary.
Next, the district court abused its discretion in limiting the Hoods to conducting
maintenance to one week in March and one week in September. Other than a finding that
maintenance was preferable in the fall, the district court made no finding about spring maintenance.
The Hoods’ agricultural irrigation season runs from March 15 to October 31 of each year. While
it is likely that any spring maintenance would occur prior to March 15 when the Hoods can begin
diverting water, the Hoods also pointed out that there is often snow on the ground at that time of
year, which could delay diversion and maintenance activities. Thus, the district court did not
exercise reason in enjoining the Hoods’ pre-irrigation season maintenance activities to one week
in March because that restriction does not adequately account for the varying conditions that may
affect the timing of pre-season maintenance on the ditch. As for fall maintenance, the Hoods’
irrigation season does not end until October 31. The Hoods’ water rights are usually curtailed
beginning in late July or early August. As such, the Hoods’ irrigation season typically lasts three
to four months every year. Like its restriction on spring maintenance, the district court did not
exercise reason in limiting the Hoods’ post-season activities to one week in September because it
22
did not account for the range of end dates for the Hoods’ irrigation season, which could occur as
early as late July and possibly as late as the end of October.
Finally, we need not address whether the district court abused its discretion in requiring
the Hoods to provide seventy-two hours’ notice and to obtain an agreement in writing prior to
conducting non-emergency maintenance in excess of the time allowed in the district court’s order
because the subsequent amendment to section 42-1102 necessitates reconsideration of that relief.
At the time the district court issued its decision, section 42-1102 did not contain language regarding
notice. 2021 Idaho Sess. Law 778. However, the statute now provides that a ditch user has “[t]he
right to occupy the right-of-way during any season of the year to perform the work of operating,
cleaning, maintaining, and repairing the ditch . . . without prior notice to the owner or occupant of
the land across which the right-of-way extends.” I.C. § 42-1102(2)(c) (emphasis added). Given
our decision reversing and vacating other aspects of the district court’s order and judgment, we
also reverse and vacate that portion of the district court’s order and judgment requiring the Hoods
to provide notice in advance of conducting additional maintenance so it can consider this issue in
light of the new statutory language. We note, however, that the new statutory language is subject
to the same “rule of reasonableness” as the other secondary easement rights set out in section 42-
1102(2) and therefore the district court may impose injunctive relief if the district court finds that
the Hoods were unreasonable in their exercise of the right, and finds that threatened or actual
irreparable harm would result if it did not impose limitations on the Hoods’ exercise of the right.
B. The Hoods improperly removed the north and south culverts.
The Hoods argue that the district court erred in concluding that they had improperly
removed the north and south culverts because it applied the wrong statute in its analysis. They
argue that the district court incorrectly applied section 42-1102 because the governing statute is
Idaho Code section 42-1207. Under section 42-1207, they contend that a ditch user’s written
permission is a prerequisite for burying any ditch in any length of pipe.
Respondents contend that the district court applied the correct statute because section 42-
1102 governs when a ditch user may have an encroachment removed. Thus, they explain that even
if the district court should have applied section 42-1207 to determine if the culvert was lawfully
installed in the ditch, section 42-1102 would nonetheless govern the Hoods’ ability to remove the
culverts. Additionally, Respondents argue that that even if the district court erred in applying
23
section 42-1102, the clean hands doctrine should prevent the Hoods from obtaining relief because
their conduct in removing the culverts was inequitable and unfair.
The district court found that the south culvert was installed in 2002 or 2003. It could not
determine when the north culvert was installed, but found it was in place when the Poormans
purchased their property in 2006. In analyzing whether the Hoods improperly removed the
culverts, the district court applied the common law to the south culvert because its installation
predated language in section 42-1102 regulating the installation and removal of encroachments.
Prior to the addition of that language in section 42-1102, a ditch owner bore the burden of
demonstrating that an encroachment unreasonably interfered with their right-of-way before an
encroachment could be removed. Morgan, 156 Idaho at 256, 322 P.3d at 989. The district court
concluded that the Hoods had presented no evidence that the south culvert interfered with the flow
of water in the Hood ditch and that other similar-sized culverts did not cause any problems and the
Hoods did not remove them. Further, it pointed out that the Hoods had placed a culvert of the same
size in their ditch at the diversion point, which supported its conclusion that the south culvert did
not impede water flow in the ditch. Finally, the district court noted that the Hoods had used the
culverts for four years prior to removing them. Accordingly, the district court concluded that the
Hoods had not met their burden to show that removal of the south culvert was justified because it
unreasonably interfered with their right-of-way.
With respect to the north culvert, the district court applied section 42-1102 because it could
not determine if that culvert had been placed before or after the effective date of the statute and
therefore decided to apply the more restrictive provision. To remove an encroachment under that
statute, the district court determined that a ditch user must show (1) the encroachment was placed
after the effective date, (2) the encroachment was placed without permission, and (3) the
encroachment unreasonably or materially interfered with the use and enjoyment of the right-of-
way. The district court reasoned that the Hoods had not demonstrated that the north culvert was
placed without permission as it predated the Hoods’ purchase of their property and there was no
testimony as to whether the previous landowner gave consent. Further, like the south culvert, the
district court concluded that the Hoods had not presented any evidence that the north culvert
materially or unreasonably interfered with their right-of-way. Accordingly, the district court
determined that the Hoods had failed to meet their burden to justify removal of the north culvert.
24
Finally, the district court concluded that the Hoods’ actions in removing both culverts
unreasonably increased the burden on the servient estate by cutting off access to 200 acres of the
Poormans’ property and leading the Hoods to create new roads on the Poormans’ property to
access the ditch. Accordingly, the district court concluded that the Poormans were entitled to
damages for the cost to reinstall the culverts. Further, the district court enjoined the Hoods from
removing the culvert beneath the Poormans’ driveway, reasoning that the Hoods had not carried
their burden to demonstrate that the culvert unreasonably or materially interfered with their right-
of-way.
We begin with a review of the two statutes at issue. Section 42-1102(5) prohibits the
placement of any encroachment, including pipelines, in a right-of-way without the written
permission of the owner or operator of the right-of-way. It also provides for removal of
encroachments placed in violation of the statute. Id. This Court has interpreted section 42-1102 to
require a servient landowner to remove an encroachment at the request of the ditch user if it was
(1) constructed after 2004, (2) constructed without permission, and (3) “interferes unreasonably or
materially with the use and enjoyment of the easement.” Morgan v. New Sweden Irr. Dist., 156
Idaho 247, 255, 322 P.3d 980, 988 (2014).
Section 42-1207 permits a landowner to bury a ditch on his property, provided he first
obtains the written permission of the ditch owner or operator. Section 42-1207 “protects a
dominant estate owner from injuries relating to an impediment to water flow, as well as any other
injuries suffered by the dominant estate owner as a result of the servient estate owner’s interference
with the ditch.” Bratton v. Scott, 150 Idaho 530, 540, 248 P.3d 1265, 1275 (2011). To demonstrate
a violation of the statute, there must be an injury that is more than a “minor increase in the length
of a ditch or other conditions which negligibly increase its maintenance.” Id. at 540–41, 248 P.3d
at 1275–76; see also Statewide Const., Inc. v. Pietri, 150 Idaho 423, 431, 247 P.3d 650, 658 (2011)
(“A mere increase in length or maintenance for an appurtenance does not constitute an injury
under I.C. § 42–1207, but where the appurtenance holders’ ability to obtain water—or their
historical flow-rate of water—is restricted, this Court will find that an injury has occurred.”)
abrogated in part on other grounds by Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889,
265 P.3d 502 (2011). Nothing in section 42-1207 discusses removal of a pipe installed without the
written permission of the landowner.
25
There is no dispute here that a culvert is a pipe that is both placed in a ditch and buried
under ground. We must therefore reconcile the language in section 42-1102 with the language in
section 42-1207 to determine which governs here. When interpreting statutes, this Court begins
with the literal words of the enactment. City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho
579, 582, 416 P.3d 951, 954 (2018). Further, “[w]here two statutes apply to the same subject matter
they are to be construed consistent with one another where possible, otherwise the more specific
statute will govern.” Huyett v. Idaho State Univ., 140 Idaho 904, 908, 104 P.3d 946, 951 (2004).
After reviewing the plain language of both statutes, we hold that section 42-1207 governs
the placement of a culvert in a ditch because it is the more specific statute. While section 42-1102
specifically identifies a “pipeline” as a type of encroachment, that term also generally refers to
pipes carrying other substances that cross a ditch. In contrast, section 42-1207 deals more
specifically with the type of pipeline at issue here--burying part of a ditch by placing a culvert in
the ditch. In short, placing a pipeline in a ditch is different than burying a ditch in a pipe. Section
42-1207 more specifically addresses the situation in this case, and, as such, is the controlling statute
with respect to whether removal of the culverts was appropriate.
Notwithstanding the district court’s error, we affirm its ruling that removal of the culverts
was inappropriate because the Hoods failed to establish a violation of section 42-1207 and elected
to pursue a remedy unavailable to them under that statute. On the first point, the Hoods have not
challenged the district court’s factual findings that the culverts did not interfere with the flow of
water through the ditch, nor have they argued that the culverts’ presence increased maintenance
costs. The Hoods also did not present any evidence that the culverts were placed without the
written permission of the previous landowner. Thus, the Hoods have not made a showing that
would entitle them to any relief under section 42-1207. See Statewide Const., Inc., 150 Idaho at
431, 247 P.3d at 658. On the second point, the appropriate recourse for a violation of section 42-
1207 is to seek damages or an injunction to return the ditch to its original state. See Bratton, 150
Idaho at 539–40 (discussing damages awards under the statute); Savage Lateral Ditch Users Ass’n
v. Pulley, 125 Idaho 237, 242–44, 869 P.2d 554, 559–61 (1993) (discussing the availability of
injunctive relief). Nothing in the statute or our caselaw indicates resorting to self-help by removing
a preexisting culvert is an appropriate form of relief under section 42-1207. Accordingly, we affirm
the district court’s order permitting the Poormans to reinstall culverts. Since we affirm the
26
conclusion that the Hoods improperly removed the culverts, we do not address Respondents’
arguments about the doctrine of unclean hands.
C. The district court’s damages award is affirmed in part and reversed in part.
The Hoods argue that the district court erred when it awarded the Poormans $1800 for the
reinstallation of the north and south culverts and $250 for the removal of a mature apple tree within
the right-of-way. They argue that the damage award for reinstallation of the culverts was
inappropriate because the culverts were properly removed. As for the apple tree, they contend that
they should not be responsible for damages for its removal because it was within the right-of-way.
As discussed above, the district court did not err in concluding that the Hoods improperly
removed the culverts and ordering their reinstallation. As such, we affirm the district court’s
damage award relating to the reinstallation costs.
However, as concerns the damages awarded for the removal of the apple tree, we reverse.
Importantly, the district court found that the apple tree was within the right-of-way for the ditch, a
finding the Poormans do not challenge on appeal. The district court awarded damages for the
removed apple tree based on a negligence theory. It is unclear from the district court’s order
whether it looked to Idaho Code sections 42-1102 or 42-1204 in defining the duty the Hoods
breached by removing the tree. Section 42-1102 provides that a ditch user must keep their ditch
“in good repair and are liable to the owners or claimants of lands crossed by such work . . . for all
damages occasioned by the overflow thereof, or resulting from any neglect or accident . . . to such
ditch.” I.C. § 42-1102(3). Section 42-1204, in turn, states that ditch users must exercise ordinary
care to maintain ditches “in good repair and condition, so as not to damage or in any way injure
the property or premises of others.” I.C. § 42-1204. We need not resolve which statute would be
the correct one to apply in this instance because the district court’s conclusion with respect to
removing the apple tree improperly placed the burden of proof on the Hoods, and its findings are
insufficient to justify a damage award.
With respect to the apple tree, the district court reasoned that the “Hoods were unable to
provide any expert testimony that its roots were in fact damaging or causing the Hood ditch to leak
or seep.” The district court then concluded that the Poormans were entitled to damages for the tree
because “it was unreasonable for the Hoods to remove the apple tree.” It is axiomatic that a
claimant bears the burden of proof on the elements of their negligence claim. See, e.g., Gagnon v.
W. Bldg. Maint., Inc., 155 Idaho 112, 115, 306 P.3d 197, 200 (2013). Here, it was the Poormans
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who raised a negligence counterclaim seeking damages for the removal of the apple tree.
Therefore, the Poormans bore the burden of proof to demonstrate all the elements of their
negligence claim, and the district court erred in not analyzing whether they carried that burden.
Accordingly, we reverse that portion of the district court’s decision awarding $250 to the Poormans
for the apple tree.
D. The form of the district court’s judgment was in error.
We also provide the following guidance on remand concerning the form of the district
court’s judgment. See Software Assocs., Inc. v. State, Dep’t of Emp., 110 Idaho 315, 317, 715 P.2d
985, 987 (1986) (citing I.C. § 1-205). The district court’s amended judgment provided declaratory,
injunctive, and monetary relief and stated that all relief “shall run with the parties’ lands and shall
be binding upon their respective successors in interest in the real property, water rights, and right-
of-way.” The district court erred in this regard. While a judgment defining an easement is fixed
and is an interest in real property that runs with the land, the injunctive and declaratory relief
imposed by the district court were based on the specific conduct of the Hoods and therefore do not
run with the land or bind the Hoods’ successors-in-interest.
As previously discussed, a judgment defining a primary easement must definitely fix the
dimensions of the primary easement and describe them with certainty in the decree so that the
dominant and servient estate owners (and their successors) know how their real property is
affected. See Argosy, 141 Idaho at 572–73, 114 P.3d at 130–31. When the existence and scope of
an easement (or right-of-way) is declared, parties have the expectation that they may record that
judgment. In short, a judgment defining the scope of a primary easement necessarily runs with the
land because the dimensions of that easement are fixed in space and time.
In contrast, a secondary easement is defined in relationship to a particular easement holder
conducting maintenance activities at a given time, thus the proper form of relief is an injunction to
prevent the ditch user from engaging in maintenance activities that unreasonably burden the
servient estate. See JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS & LICENSES IN
LAND § 8:17 (2022); see Conley v. Whittlesey, 133 Idaho 265, 270–73, 985 P.2d 1127, 1132–35
(1999). Injunctive relief only binds the parties being enjoined, compelling them to take or refrain
from taking some action. Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“”[A]n
injunction is a judicial process or mandate operating in personam by which, upon certain
established principles of equity, a party is required to do or refrain from doing a particular thing.”).
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The district court’s declaratory relief, defining the points of access that the Hoods may use to
access the right-of-way, was similarly based on the Hoods’ conduct and, therefore, the relief
granted is personal to the Hoods. Therefore, neither the injunctive relief nor the declaratory relief
should run with the land.
On remand, the district court should issue two judgments. One judgment defining the
purpose, length, width, and location of the primary easement—that is, the physical dimensions of
the Hood ditch, and that the easement is for an irrigation ditch. This judgment will run with the
land and bind the parties’ successors-in-interest. The second judgment should identify the
injunctive relief limiting the Hoods’ exercise of their secondary easement rights and include the
declaratory and monetary relief awarded. The second judgment will not run with the land or bind
the Hoods’ successors-in-interest. If the Hoods’ successors-in-interest unreasonably exercise their
secondary easement rights, the servient estate holder would need to pursue a new legal action to
obtain injunctive relief based on the conduct of the successor owner(s).
V. CONCLUSION
For the above reasons we affirm in part, reverse in part, and remand this matter to the
district court. Because both parties prevailed in part, there is no overall prevailing party; thus, no
costs are awarded on appeal.
Chief Justice BEVAN and Justices BRODY, STEGNER, and MOELLER CONCUR.
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