Cook v. Van Orden, 537 P.3d 1230

Background

The Cook Property (160 acres) was homesteaded in 1908 by John Harker Sr.; Harker family (now Roger and Shelley Cook) used Tower Road to reach their land for decades.
The Van Orden Property (≈2,000 acres) was acquired by Thompsons in 1910 and remained largely wild, unenclosed, and unimproved until mid-20th century; various gates (farmer’s gate, heavy gate) controlled access, and keys were given to Harker/Cook family.
The Cooks sued (2017) seeking a prescriptive easement over Tower Road; the district court initially found use non-adverse and quieted title to Van Ordens.
Idaho Supreme Court in Cook I reversed and remanded to identify the applicable statutory period because there were potentially periods satisfying the five- or twenty-year prescription periods.
On remand the district court found initial use presumptively permissive but concluded use was adverse from 1962–2006 (five-year period) based on a common belief of right and granted the easement.
This Court reversed on appeal, holding the permissive presumption continued until a clear hostile act was brought home to the servient owner and the Cooks failed to show such a change; judgment to be entered for Van Ordens and no attorney fees to Cooks.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether initial use was presumptively permissive because servient land was wild/unenclosed/unimproved	Cooks: long, open use supports presumption of adverse use	Van Ordens: land was wild/unenclosed/unimproved at inception, so permissive use presumption applies	Court: Presumptively permissive use applies where servient land was wild/unenclosed/unimproved; district court correctly applied this presumption
Whether Cook I compelled finding adverse use from parties’ common belief in a right to use the road	Cooks: Cook I indicates common belief/right can establish adverse use without overt hostility	Van Ordens: Cook I did not change existing law; presumption of permissive use still requires a clear hostile act to ripen	Court: Cook I did not abrogate permissive presumption or relieve claimant of showing acts that overcome permission; district court misconstrued Cook I
Whether permissive use converted to adverse use during statutory period (1962–2006)	Cooks: conduct (e.g., driving around gate, not asking permission, common belief of right) manifested adverse use	Van Ordens: conduct was insufficient—public also used road, keys were provided, occasional circuventing not a hostile act	Court: Cooks failed to show a new, independent hostile act that would put servient owner on notice; use remained permissive and did not ripen into prescriptive easement
Entitlement to attorney fees on appeal under I.C. § 12-121	Cooks: sought fees as prevailing party	Van Ordens: opposed	Court: Cooks did not prevail on appeal; no attorney fees awarded to Cooks; costs to Van Ordens

Key Cases Cited

Cook v. Van Orden, 170 Idaho 46, 507 P.3d 119 (Idaho 2022) (remanded to determine statutory period; noted common belief of right can in some circumstances support adverse use but did not eliminate permissive-presumption rules)
H.F.L.P., LLC v. City of Twin Falls, 157 Idaho 672, 339 P.3d 557 (Idaho 2014) (presumption of permissive use applies where servient estate was wild, unenclosed, and unimproved)
Backman v. Lawrence, 147 Idaho 390, 210 P.3d 75 (Idaho 2009) (presumption analysis permitted but claimant must show hostile act brought home to servient owner to overcome permissive use)
Fuquay v. Low, 162 Idaho 373, 397 P.3d 1132 (Idaho 2017) (no prescriptive easement where permissive use continued and no adverse invasion shown)
Hughes v. Fisher, 142 Idaho 474, 129 P.3d 1223 (Idaho 2006) (focus on the five prescriptive elements rather than shifting presumptions)
Lemhi Cnty. v. Moulton, 163 Idaho 404, 414 P.3d 226 (Idaho 2018) (open, notorious, continuous use raises presumption of adverse use absent servient-land exception)
Capstar Radio Operating Co. v. Lawrence, 153 Idaho 411, 283 P.3d 728 (Idaho 2012) (defining easement and reiterating elements for prescriptive easement)