Neeser v. Inland Empire Paper Company ( 2022 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48567
GERALD NEESER, trustee of the Gerald E. )
Neeser Revocable Living Trust, )
)
Plaintiff-Respondent, ) Boise, May 2022 Term
)
v. ) Opinion Filed: August 23, 2022
)
INLAND EMPIRE PAPER COMPANY, a ) Melanie Gagnepain, Clerk
Washington corporation, )
)
Defendant-Appellant. )
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai
County. Lansing L. Haynes, District Judge.
The decision of the district court is vacated, and the case is remanded.
James, Vernon & Weeks, P.A., Coeur d’Alene, for appellant, Inland Empire Paper
Company. Susan P. Weeks argued.
Randall | Danskin, P.S., Spokane, WA, for respondent, Gerald Neeser. Michael L.
Wolfe argued.
___________________
STEGNER, Justice.
Gerald Neeser, in his capacity as trustee of the Gerald E. Neeser Revocable Living Trust
(Neeser), owns two adjacent parcels of land, Lots 3 and 4, on the south shore of Spirit Lake in
Kootenai County, Idaho. Inland Empire Paper Company (IEP) owns several hundred acres of land
adjacent to Neeser’s, which it uses to grow and harvest timber. Neeser filed a complaint alleging
that he had a prescriptive easement over IEP’s land, specifically a road known as the “M1 Road,”
for ingress and egress to his property. Both parties moved for summary judgment. The district
court granted Neeser’s motion for summary judgment after concluding that Neeser had established
a prescriptive easement over IEP’s land benefiting Lots 3 and 4 and that there were no genuine
issues of material fact regarding that issue. Several months later, IEP moved the district court to
reconsider its order on summary judgment, which the district court denied. IEP timely appealed.
For the reasons discussed below, we reverse the decision of the district court.
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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Neeser purchased Lots 3 and 4 of the Amadahi Park subdivision on the southern shore of
Spirit Lake on August 3, 1999. Neeser subsequently purchased Lot 2 on September 11, 2002.
Neeser sold Lot 2 to his sister but reacquired it from her in 2015. One lot (it is unclear which one)
has a residence with a garage and driveway, while the other two each have small cabins. Neeser
stated in his declaration that each lot was accessible by what is colloquially called the M1 Road,
which runs over land owned by IEP. In his complaint, Neeser claimed that he began using the M1
Road to access his property when he first purchased Lots 3 and 4 in 1999. Neeser further claimed
that his personal guests and various hired tradesmen have also used the M1 Road to access his
parcels since 1999. Finally, Neeser claimed that the M1 Road is the “only reasonable means of
accessing [his] property by automobile.”
Neeser alleged that IEP installed a locked gate on the M1 Road in 2016 and that IEP sought
a periodic fee of $500 in exchange for granting Neeser a revocable permit in exchange for keys to
the gate. Neeser declined to sign the agreement because it “could have unreasonably restricted
Neeser’s ability to access his property, as it was terminable, leaving his only access to his property
by boat.”
IEP owns approximately 600 acres of land near the shoreline of Spirit Lake adjacent to
Neeser’s parcels. IEP claims that its property has multiple roads that cross over it, roads which IEP
has maintained. IEP acknowledges that it has historically allowed the public to use its roads;
however, in July of 2016, IEP installed a locked gate on the M1 Road to “control timber theft and
potential damage to its properties due to high fire danger conditions.” IEP stated that its property
is not cultivated for crops and has no improvements on it; however, IEP later acknowledged that
its forest lands “are allowed to grow and are occasionally harvested . . . as the forest reaches
maturity.”
In 2001, IEP began selling permits to the public for access to its property. IEP also hired a
security service to enforce the permit requirement and patrol its lands. Paul Buckland, the Forest
Resource Manager for IEP, testified during his deposition that from 2001–2006 IEP operated an
educational campaign, informing anyone on the property of the need for a permit. Buckland
testified that during this time, no one was required to leave the property if they did not have a
permit. Rather, IEP only started enforcing its permit requirement in 2006.
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In 2016, IEP installed a locked gate preventing access to the M1 Road. As mentioned
above, IEP offered Neeser a revocable permit at the cost of $500 in exchange for keys to the gate.
Neeser declined to accept the permit because it was revocable.
B. Procedural History
On May 31, 2018, Neeser, in his capacity as Trustee of the Gerald E. Neeser Revocable
Living Trust, filed a complaint against IEP alleging that the trust had an easement by prescription
“over and across IEP Property’s private roads.” Neeser also alleged that IEP committed intentional
interference with his property rights by installing the locked gate. Neeser’s complaint also asserted
claims for nuisance, quiet title, a declaratory judgment, and injunctive relief. On July 26, 2018,
IEP filed an answer to the complaint, asserting two affirmative defenses: failure to state a claim
upon which relief may be granted and the statute of frauds.
In May of 2019, IEP moved for summary judgment. IEP argued that Neeser could not
establish a prescriptive easement because the M1 Road was used “in common with the owner and
the general public,” thereby negating the “open and notorious” and “adverse and under a claim of
right” elements necessary to establish a prescriptive easement. In support of its summary judgment
motion, IEP also filed a declaration by Paul Buckland, photos of the M1 Road, and a copy of its
warranty deed for the 600 acres.
Neeser opposed IEP’s motion for summary judgment and simultaneously filed his own
motion for summary judgment. Neeser first disputed that he used the M1 Road in the same manner
as the general public because his property has three residences, and he regularly invites guests to
visit and tradesmen to complete construction work on his property. Neeser then argued that there
was no dispute of material fact regarding each element to establish a prescriptive easement. In
support of his motion for summary judgment, Neeser’s counsel filed a declaration with several
exhibits attached. The exhibits included the warranty deeds for each parcel, maps of the property,
the transcript of Buckland’s deposition, and road maintenance logs for work IEP had done to
maintain the M1 Road. Neeser filed his own declaration as well, describing how he and others
have used his property and the M1 Road historically. Attached to Neeser’s declaration were
photographs of Neeser’s main residence.
IEP responded to Neeser’s motion for summary judgment, specifically arguing, inter alia,
that summary judgment should be granted regarding Lot 2 of Neeser’s property. IEP argued that
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Neeser failed to meet the statutory period regarding Lot 2 because he purchased Lot 2 in 2002, and
the new, 20-year statutory period had not run. 1
Next, IEP filed a motion to strike portions of the declarations of Neeser and Neeser’s
counsel. IEP argued that portions of Neeser’s testimony were inadmissible because they were not
based on personal knowledge or lacked adequate foundation to be considered on summary
judgment. Neeser opposed the motion to strike.
There is nothing in the record indicating that the district court held a hearing on the parties’
cross motions for summary judgment, aside from a notice of hearing filed by IEP, but the district
court orally pronounced its ruling at a hearing on September 17, 2019. The district court first ruled
on IEP’s motion to strike. The district court struck portions of Neeser’s declaration testimony,
including Neeser’s statement about when he believed his residence and the other two cabins had
been built and Neeser’s statement about the use of the M1 Road by his property’s predecessors in
interest. The district court concluded that the remaining portions of Neeser’s declaration were
admissible evidence. Finally, the district court declined to strike Exhibit A, a warranty deed,
finding that it was a true and correct copy of what it purported to be. The district court also declined
to strike Exhibit I, a satellite map image of the M1 Road, finding that the writing on the map was
“labeled automatically by the satellite image in Google Maps,” and was, therefore, not hearsay.
Regarding the cross-motions for summary judgment, the district court first concluded that
the M1 Road was not open to the public as of 2001 because IEP required the public to purchase
permits to use the road. Next, the district court concluded that Neeser had demonstrated a “unique
use” of the road “beyond what members of the general public have used it for” because he had
guests and tradesmen travel on the road to reach his residence. The district court concluded that
Neeser had met each element required to prove a prescriptive easement and granted Neeser’s
motion for summary judgment for Lots 3 and 4. The district court denied Neeser’s motion for
summary judgment with respect to Lot 2 because Neeser had not satisfied the 20-year statutory
period regarding that parcel since he repurchased it in 2002. Finally, the district court denied IEP’s
motion for summary judgment regarding Lots 3 and 4. The district court entered an order to this
1
Idaho Code section 5-203 sets forth the statutory period required to establish a prescriptive easement. I.C. § 5-203.
Prior to 2006, the statutory period was five years. In 2006, section 5-203 was amended, increasing the statutory period
from five years to twenty years. See S.B. No. 1311, 59th Leg., 2d Reg. Sess. (Idaho 2006).
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effect on October 1, 2019. Neeser moved to voluntarily dismiss any remaining claims not resolved
by the summary judgment ruling, which the district court granted.
IEP filed a motion for reconsideration in June of the following year. First, IEP moved the
district court to reconsider its evidentiary rulings regarding the motion to strike. IEP argued that
Exhibit A to Neeser’s motion for summary judgment was not a true and correct copy of the
warranty deed because it was missing two pages. IEP next challenged the district court’s
determination that Neeser, his guests, and the tradesmen he hired frequently used the M1 Road.
Finally, IEP urged the district court to reconsider its determination that the presumption of adverse
use applied because Neeser testified that he began using the M1 Road when he purchased Lots 3
and 4 in 1999. IEP attached the declaration of Todd Tondee, a Kootenai County Commissioner, to
its motion to reconsider. Tondee stated that the “neighborhood code” for Neeser’s parcels provided
for “1420 Boat Access Only Frontage.” Neeser opposed IEP’s motion to reconsider.
The district court denied IEP’s motion for reconsideration. The district court reaffirmed its
conclusions that Neeser’s declaration testimony was based on personal knowledge and that
Neeser’s use of the Road constituted “frequent use.” The district court entered a declaratory
judgment establishing Neeser’s prescriptive easement over the M1 Road. The district court defined
the scope of the easement “for residential and recreational use, by any means of transportation
consistent with those uses, for access to the benefited parcel.” IEP timely appealed.
II. STANDARD OF REVIEW
“When reviewing an order for summary judgment, the standard of review
for this Court is the same standard used by the district court in ruling on the
motion.” Mendenhall v. Aldous, 146 Idaho 434, 436, 196 P.3d 352, 354 (2008).
“The court must grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” I.R.C.P. 56(a). “The burden of establishing the absence of a genuine
issue of material fact rests at all times with the party moving for summary
judgment.” Van v. Portneuf Med. Ctr., 147 Idaho 552, 556, 212 P.3d 982, 986
(2009). “On review, this Court liberally construes the record in the light most
favorable to the party opposing the motion, drawing all reasonable inferences and
conclusions in that party’s favor.” CNW, LLC v. New Sweden Irr. Dist., 161 Idaho
89, 91, 383 P.3d 1259, 1261 (2016) (quoting Avila v. Wahlquist, 126 Idaho 745,
747, 890 P.2d 331, 333 (1995)). “If there is no genuine issue of material fact, ‘only
a question of law remains, over which this Court exercises free review.’ ”
Mendenhall, 146 Idaho at 436, 196 P.3d at 354 (quoting Watson v. Weick, 141 Idaho
500, 504, 112 P.3d 788, 792 (2005)).
Davison v. Debest Plumbing, Inc., 163 Idaho 571, 574–75, 416 P.3d 943, 946–47 (2018).
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The admissibility of evidence contained in affidavits and depositions in
support of or in opposition to a motion for summary judgment is a threshold matter
to be addressed before applying the liberal construction and reasonable inferences
rule to determine whether the evidence creates a genuine issue of material fact for
trial. Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 13, 175 P.3d 172, 175 (2007)
(citing Carnell v. Barker Mgmt., Inc., 137 Idaho 322, 327, 48 P.3d 651, 656 (2002)).
“This Court applies an abuse of discretion standard when reviewing a trial court’s
determination of the admissibility of testimony offered in connection with a motion
for summary judgment.” Id. at 15, 175 P.3d at 177 (citing McDaniel v. Inland
Northwest Renal Care Group–Idaho, LLC, 144 Idaho 219, 221, 159 P.3d 856, 858
(2007)).
Fragnella v. Petrovich, 153 Idaho 266, 271, 281 P.3d 103, 108 (2012).
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether 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) (italics in original).
Furthermore, this Court exercises free review over questions of law, “including the question ‘of
whether the facts found, or stipulated to, are sufficient to satisfy the legal requirements for the
existence of an implied easement or a prescriptive easement.’ ” Latvala v. Green Enterprises, Inc.,
168 Idaho 686, 695, 485 P.3d 1129, 1138 (2021) (quoting Backman v. Lawrence, 147 Idaho 390,
394, 210 P.3d 75, 79 (2009)).
III. ANALYSIS
A. The district court abused its discretion in declining to strike portions of Neeser’s
declaration.
Neeser submitted a declaration and several exhibits in support of his motion for summary
judgment. Neeser’s declaration described the three parcels he owns and how he has used them
since his first purchase in 1999. The exhibits included a photo of Neeser’s residence, a warranty
deed conveying “Lot 2 of Amadahi Park, Spirit Lake, Kootenai County, Idaho, to Mr. Neeser dated
September 4, 2002,” and a “printout from Google Maps of a satellite image of the area of the south
shore of Spirit Lake, Mr. Neeser’s residence, and a portion of what is believed to be the M1 Road
identified on the map as ‘Quisentree Way.’ ” IEP moved to strike portions of Neeser’s declaration
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as well as the three exhibits, 2 arguing that Neeser’s statements lacked personal knowledge,
foundation, or were irrelevant.
Curiously, IEP’s motion to strike and the cross-motions for summary judgment did not
include oral arguments. Rather, the district court merely scheduled a time for counsel for the parties
to attend an oral ruling on the parties’ cross-motions for summary judgment. In announcing its oral
ruling, the district court struck some, but not all, of the portions of Neeser’s declaration which IEP
had moved to strike and declined to strike any of the exhibits. The district court struck Neeser’s
statements about when he believed the residences on his property had been built. The district court
also struck Neeser speculating about how his predecessors in interest had used the property.
However, the district court considered the remainder of Neeser’s declaration in ruling on the cross-
motions for summary judgment, which included his description of how tradesmen and his guests
had accessed Neeser’s property.
On appeal, IEP first argues that the district court abused its discretion when it declined to
wholly grant IEP’s motion to strike the portions of Neeser’s declaration to which it had objected.
Specifically, IEP argues that the district court abused its discretion in admitting Neeser’s testimony
that tradesmen and guests used the M1 Road to access Lots 3 and 4. IEP alleges that these
statements were conclusory because Neeser did not testify about providing a route or map for the
tradesmen and guests to use; therefore, he could not prove that they had used the M1 Road. As a
result, IEP contends that allowing this testimony to be considered on summary judgment affected
its substantial rights because it was later relied upon by the district court to support its findings on
several of the prescriptive easement elements.
“ ‘The admissibility of evidence under I.R.C.P. 56(e) is a threshold question’ that should
be analyzed prior to applying the rules governing summary judgment.” Teurlings v. Larson, 156
Idaho 65, 75, 320 P.3d 1224, 1234 (2014) (quoting Herrera v. Estay, 146 Idaho 674, 680, 201 P.3d
647, 653 (2009)).
The “trial court has the discretion to decide whether an affidavit offered in support
of or opposition to a motion for summary judgment is admissible under Rule
56[(c)(4)].” Est. of Ekic v. Geico Indem. Co., 163 Idaho 895, 898, 422 P.3d 1101,
1104 (2018). Thus, “[t]his Court reviews challenges to a trial court’s evidentiary
rulings under the abuse of discretion standard.” Perry v. Magic Valley Reg’l Med.
Ctr., 134 Idaho 46, 50, 995 P.2d 816, 820 (2000). When this Court reviews an
alleged abuse of discretion, it asks whether the trial court “(1) correctly perceived
2
IEP does not challenge the consideration of these exhibits on appeal.
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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).
Dep’t of Fin., Sec. Bureau v. Zarinegar, 167 Idaho 611, 625, 474 P.3d 683, 697 (2020) (alterations
in original).
Furthermore, Idaho Rule of Civil Procedure 56, which governs summary judgment, affords
the trial court discretion to determine whether affidavits offer admissible evidence:
An affidavit used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated. Sworn or certified
copies of all papers or parts of papers referred to in an affidavit must be attached to
or served with the affidavit. The court may permit affidavits to be supplemented or
opposed by depositions, answers to interrogatories, or further affidavits.
I.R.C.P. 56(c)(4). “The requirements set forth in I.R.C.P. 56(c)(4) ‘are not satisfied by an affidavit
that is conclusory, based on hearsay, and not supported by personal knowledge.’ ” Zarinegar, 167
Idaho at 626, 474 P.3d at 698 (quoting Portfolio Recovery Assocs., LLC v. MacDonald, 162 Idaho
228, 231, 395 P.3d 1261, 1264 (2017)).
We conclude that the district court abused its discretion by admitting the portions of
Neeser’s declaration that lacked foundation and were hearsay. Specifically, Neeser declared, in
part, that:
• “Tradesmen and machinery used for work on my property came over the M1 Road.
Tradesmen generally come over the M1 Road to access my property for repairs or
improvements almost every summer season.”
• “I have ten brothers and sisters who have each accessed my property via the M1 Road from
time to time. Every Fourth of July for the last two decades I have had a big party at my
Spirit Lake residence, with scores of attendees each year. These people also typically
access my property via the M1 Road.”
• “The M1 Road is clearly the only reasonable means of accessing my property by
automobile. Though the M1 Road appears to have some off-shoots and ‘bunny trails,’ none
of them provides access to my property as can be gained via the M1 Road. There is simply
no other reasonable means to access my property.”
These three statements are problematic because they lacked foundation. Neeser produced no
evidence from the purported tradesmen and guests stating that they had personally traveled the M1
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Road. Neeser did not have personal knowledge of the route that each of his purported tradesmen
and guests traveled to reach his property. In addition, to the extent Neeser is relying on what the
tradesmen and guests told him, the declaration does not rely on Neeser’s personal knowledge and
is hearsay. Clearly, his declaration does not suggest that is his basis of knowledge. He did not offer
evidence of a route he informed the tradesmen and guests to use. Neeser also failed to identify
specific business entities he hired or guests that he contends traveled over the M1 Road. In fact,
Neeser himself acknowledged that “off-shoots” and “bunny trails” run in the vicinity of M1 Road
on IEP’s property. The portions of Neeser’s declaration quoted above were not based on his
personal knowledge and encompassed hearsay by stating that his tradesmen and guests accessed
his property via the M1 Road. As such, the district court abused its discretion in admitting the
evidence because it failed to act consistently with this Court’s applicable legal standards for
admission of evidence. Lunneborg, 163 Idaho at 863, 421 P.3d at 194. Consequently, we conclude
that the district court erred in denying IEP’s motion to strike the bulk of Neeser’s declaration
testimony.
B. The district court erred in granting Neeser’s motion for summary judgment.
Given our previous conclusion that the district court erred in not striking all of Neeser’s
declaration that was outside his personal knowledge, we will now address whether summary
judgment was proper based on the remainder of the admissible evidence before the district court.
In Idaho, prescriptive easements are disfavored and are to be “closely scrutinized.” Latvala,
168 Idaho at 700, 485 P.3d at 1143. There are five elements necessary to prove the existence of a
prescriptive easement: the plaintiff must show that the use of the disputed property was “(1) open
and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with
the actual or imputed knowledge of the owner of the servient tenement (5) for the statutory period
of five[ 3] years.” Id. at 696, 485 P.3d at 1139 (quoting Backman, 147 Idaho at 394, 210 P.3d at
81). The trial court must make findings for each required element to be sustained on appeal. Id.
Several of the elements incorporate rebuttable presumptions; however, we have repeatedly
“cautioned against becoming overly focused on discussions of shifting presumptions in
3
See I.C. § 5-203 (2020). As noted, prior to 2006, the statutory period was five years. In 2006, section 5-203 was
amended, changing the statutory period from five years to twenty years. See S.B. No. 1311, 59th Leg., 2d Reg. Sess.
(Idaho 2006). Because Neeser purchased Lots 3 and 4 in 1999, the applicable statutory period was five years. Id. IEP
does not submit argument that the five-year statutory period applies. Consequently, it has forfeited that argument on
appeal.
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prescriptive easement cases. ‘To disentangle Idaho prescriptive easement law, we emphasize the
need for courts to streamline their analysis by focusing simply on whether the five prescriptive
easement elements have been satisfied based on the facts before them.’ ” Cook v. Van Orden, 170
Idaho 46, 54, 507 P.3d 119, 127 (2022) (quoting Hughes v. Fisher, 142 Idaho 474, 481, 139 P.3d
1223, 1230 (2005)).
IEP challenges the district court’s findings on several grounds. However, the bulk of the
disputed evidence lies within the “adverse and under a claim of right” element. Regarding adverse
use, the district court concluded as follows:
The [c]ourt is aware that proof of open, notorious, continuous, and uninterrupted
use of the road under a claim of right for a prescriptive period without evidence of
how the use began, raises a presumption that the use was adverse and under a claim
of right if the use was in a manner that was also open to the public, the plaintiff
must perform some unique act to signify to the owner of the servient estate the
adverse claim of the plaintiff.
The [c]ourt finds under the evidence here that the roadway was not open to
the public as of 2001 given that the owner of the servient estate began to inform the
public of the need for permits and, in fact, tried to inform the public of the need for
permits.
The [c]ourt finds that Plaintiff has showed that Plaintiff was engaged in a
unique use of that road beyond what general members of the public have used it for
by the fact that the road was used for guests to come to Plaintiff’s residence from
time to time, that tradesmen traveled that road for the purpose of the plaintiff’s
needs for construction work, and that materials were brought to Plaintiff’s property
over that road for the purpose of Plaintiff’s construction use, that that use of the
road by Plaintiff differentiates Plaintiff’s claim over the road – or use of the road
from that of the general public.
(Italics added.)
This Court has recognized that
[a] party’s use is adverse where “it runs contrary to the servient owner’s claims to
the property.” [Hodgins v. Sales, 139 Idaho 225, 231, 76 P.3d 969, 975 (2003)].
“The state of mind of the users of the alleged easement is not controlling; instead,
the focus is on the nature of their use.” Backman, 147 Idaho at 397–98, 210 P.3d at
82–83. When a “claimant presents proof of open, notorious, continuous,
uninterrupted use of the claimed right for the prescriptive period, even without
evidence of how the use began, he raises the presumption that the use was adverse
and under a claim of right.” Akers v. D.L. White Const., Inc., 142 Idaho 293, 303,
127 P.3d 196, 206 (2005). Then the burden of proof “shifts to the owner of the
servient tenement to show that the claimant’s use was permissive, or by virtue of a
license, contract, or agreement.” Id.Latvala, 168 Idaho at 697–98, 485 P.3d at 1140–41.
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The presumption of adverse use may be rebutted by evidence that the plaintiff used the
disputed property in common with the owner or the general public. Cook, 170 Idaho at 54, 507
P.3d at 127. However, “some decisive act on the user’s part indicating a separate and exclusive
use” is evidence that can be used to support the presumption that the use was adverse. Id. Here,
the district court concluded that Neeser’s use of the M1 road was “unique” and different from that
of the general public because his personal guests and tradesmen used the road to access his
residence. The district court relied almost exclusively on Neeser’s declaration testimony regarding
his tradesmen and guests to conclude that Neeser used the M1 Road in a manner different from
the general public. However, we concluded above that the district court erred in admitting this
evidence; therefore, it also erred in rely on this evidence to reach its conclusion. Accordingly, we
cannot now conclude that no genuine dispute of material fact existed regarding whether Neeser’s
use was “in common with the general public.” Neeser simply has not provided admissible evidence
to support that proposition.
Further, Buckland testified that the public was allowed to use the M1 Road (without
permits) prior to 2001, and then from 2001-2006 while IEP implemented its permit program and
educated the public on the need for permits during that time. Neeser did not offer admissible
evidence that he used the M1 Road in any manner different from the general public. When viewing
the evidence in the light most favorable to IEP, it is apparent that the district court erred in granting
summary judgment.
Because we conclude that Neeser failed to demonstrate the absence of an issue of material
fact, we need not reach the remaining issues raised by IEP. Neeser did not offer admissible
evidence eliminating the issues of material fact regarding the elements of a prescriptive easement.
Consequently, the district court erred in granting Neeser’s motion for summary judgment.
C. Neeser is not entitled to attorney fees on appeal.
Neeser seeks attorney fees on appeal pursuant to Idaho Code section 12-121. Idaho Code
section 12-121 provides, in relevant part, that “[i]n any civil action, the judge may award
reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was
brought, pursued or defended frivolously, unreasonably or without foundation.” I.C. § 12-121.
Because Neeser has not prevailed on appeal, he is not entitled to attorney fees.
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IV. CONCLUSION
The district court’s decision granting summary judgment is vacated, and the case remanded
for further proceedings. Costs are awarded to IEP as a matter of right as provided by I.A.R. 40.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.
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