This lawsuit stems from a property dispute between two brothers, Leslie Kent Bumgarner (“Kent”) and Gary Bumgarner (“Gary”). Gary appeals from the judgment, entered against him, quieting title to real property and awarding compensatory, statutory and punitive damages for trespass. He also appeals from the district court’s award of attorney fees. For the reasons explained below, we affirm.
Facts
The circumstances giving rise to this case involve the division and conveyance of approximately three and one-half acres of real property fronting on Lake Coeur d’Al-ene, in Kootenai County, Idaho. The property, known as the “Cottonwood Bay Property,” originally was part of a larger parcel owned by P.P. and Lucile Johnson, who, in 1926, deeded it to A.M. Pratt using the following description:
The north three and one-half aсres of the east half of Lot (4) four, Section (4) four, Township Forty-seven (47) North, Range (4) West of the Boise Meridian, less a strip of land twenty-five feet wide on south side of said described land which is reserved for the purpose of giving passage or right of way for a roadway. (Emphasis added.)
By subsequent deeds of conveyance, each containing the identical reservation language, Leslie C. Bumgarner and his wife, Laura Bumgarner, acquired the Cottonwood Bay Property in 1947. Mr. Bum-garner died in 1963, leaving his interest in the property to Laura. In 1970, Laura decided to divide the property equally among her three children, Gary, Kent, and Jean. Laura had deeds prepared conveying the north one-third of the Cottonwood Bay lot to Jean, the south one-third to Gary, and the middle one-third to Kent. Each of the deeds used identical language to describe the lot being dividеd. Executing these deeds, Laura thus conveyed to Jean:
The North one-third of the following described property as measured along the west line:
The North three and one-half acres of the East half of Lot (4) four, Section (4) four, Township (47) Forty-seven North, Range (4) West of the Boise Meridian, less a strip of land twenty-five feet wide on the south side of said described land which is reserved for the purpose of giving passage or right of way for a roadway.
She conveyed to Gary:
The South one-third of the following described property as measured along the West line:
The North three and one-half acres of the East half of Lot (4) four, Section (4) four, Township (47) Forty-seven North, Range (4) West of the Boise Meridian, less a strip of land twenty-five feet wide on the south side of said described land which is reserved for the purpose of giving passage or right of way for a roadwаy.
And she conveyed to Kent:
[The] South half of the North two-thirds of the following described property as measured along the West line:
The North three and one-half acres of the East half of Lot (4) four, Section (4) four, Township (47) Forty-seven North, Range (4) West of the Boise Meridian,less a strip of land twenty-five feet wide on the south side of said described land which is reserved for the purpose of giving passage or right of way for a roadway.
In 1973, a neighbor questioned the boundaries of the Cottonwood Bay Property and intimated that he might claim a right to use the twenty-five foot strip for lake ' access.' Troubled by this prospect, Jean located P.P. Johnson, the original grantor of the Cottonwood Bay Property. Through Jean’s efforts, Johnson, in 1975, gratuitously quitclaimed his interest in the twenty-five foot strip to Jean, Kent and Gary. In 1981, Jean and Kent quitclaimed their interest in the strip to Gary, who held title to the south one-third of the Cottonwood Bay Property.
Laura died in 1981. In that same year, Gary constructed a house on his lot. In the process, he enlarged the already existing turn-around roadway in the middle of Kent’s lot. When Kent, who was residing outside the state at the time, noticed the change a year later, he confronted Gary and accused him of “raping” his property. However, reasoning that the damage had already been done, Kent permitted Gary to use the turn-around, but told him not to do anything more to his lot. In June of 1986, Kent wrote to Gary and Jean specifically telling them “not to change my lot in any way; no roads, no tree or firewood removed, no beach cleaning, in short, no activity of any kind.” That September, Gary sought permission from Kent to build a new road across Kent’s property in order to access the bеach. Kent denied permission and again told Gary that he wanted his lot left alone.
In 1987, notwithstanding Kent’s requests to leave his lot alone, Gary constructed a roadway across the west end of Kent’s lot (“the West Road”). In the process, he destroyed approximately thirty-seven fir trees and several “birch clumps.” Gary also constructed a new road to the beach, (“the Beach Access Road”), running in an east-west direction, and in doing so removed two or three pine trees. He also erected a hitching post on Kent’s lot, near the shore. The Beach Access Road and the hitching post are located on the south portion of Kent’s lot, which, throughout this litigation, both parties have claimed to own.
Procedural Background
In May, 1988, Kent filed this action against Gary, seeking quiet title to a seventy-two foot lot which he maintains he received as a result of Laura’s division and conveyance of all of the Cottonwood Bay Property, including the twenty-five foot strip, among her three children. He also alleged that Gary’s construction of the two roadways across his lot constituted trespasses for which he was entitled to compensatory, statutory and punitive damages. Additionally, he sought to recover damages for the negligent infliction of emotional distress.
Gary denied all of Kent’s claims and filed a counterclaim seeking to quiet title in himself to an
eighty-nine
foot wide parcel in the Cottonwood Bay Property. He alleged that under the deeds of conveyance, Laura had divided the Cottonwood Bay Property,
excluding
the twenty-five foot strip, into three
sixty-four
foot wide lots. He asserted that he later acquired title to the twenty-five foot strip through the quitclaim deeds of P.P. Johnson, Jean and Kent, given to him in conjunction with a proposed, but unconsummated, plan among his siblings to redivide the entire Cottonwood Bay Property. Based upon this factual scenario, he claimed that the Beach Access Road' was located on the northern portion of his own lot, and thus he was not liable to Kent
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Both parties moved for partial summary judgment on the quiet title issue. Gary asserted that Laura never meant tо include the strip in the conveyances to her children, and that she intended to divide the property into three sixty-four foot wide lots. To support his assertion, he argued that the grantor of the original deed in 1926 had retained a fee interest in the twenty-five foot strip, not merely an easement. Therefore, he argued, Laura had no interest in it to convey. Kent’s position, on the other hand, was that the reservation language was intended to reserve an easement or a right-of-way over the twenty-five foot strip, and that in dividing and conveying the Cottonwood Bay property to her children, Laura had included her fee interest in the strip. 1
However, Gary had made no claim of ownership to the west end of Kent’s lot over which he had constructed the West Road. Based upon Gary’s trespass to that portion of Kent’s lot, the court awarded Kent $816.50 to repair and restore the damage caused by the West Road, and $6,190.44 for the value of trees Gary had removed in the process. Pursuant to I.C. § 6-202, the court trebled the damages for the trees to $18,571.37. Additionally, the court awarded $15,000 in punitive damages for the construction of the road, conduct which the district court found to be “malicious, outrageous and unreasonable.” The court denied Kent’s claim for negligent infliction of emotional distress. The court also denied all of Gary’s disputed claims, except that it granted him a prescriptive right оf easement for the use and maintenance of the septic tank effluent line installed across Kent’s lot.
Finally, the court determined that Kent was the prevailing party in the lawsuit and awarded him $5,701.47 in costs. The court also found that because Kent had prevailed on part of his statutory claim for treble damages, he was entitled to attorney fees under I.C. § 6-202. The court awarded $18,532.75 to him in attorney fees — the amount it determined to be attributable to the trespass claim upon which Kent had prevailed. The court entered a final judgment in favor of Kent in the amount of $36,689.87.
Gary appeals, challenging the court’s decision to quiet title to the disputed property in Kent; the court’s awards of compensatory, statutory and punitive damages; and the court’s award of attorney fees.
Issues on Appeal
1. Did the district court erroneously conclude thаt the deeds by which Laura divided and conveyed the Cottonwood Bay Property to her three children include the twenty-five foot strip?
2. Did the court erroneously award Kent damages for losses based on negligence, a theory of recovery which was never asserted in the pleadings?
3. Did the court err by awarding damages for temporary injury to property measured as the costs of repairing and restoring the land?
4. Does the record lack sufficient evidence to support the court’s award of damages for the removal of the trees from the west end of Kent’s property?
5. Did the court err in its award of punitive damages? Specifically:
(a) Does the record lack substantial evidence to support the award?
(b) Did the court base its award on causes of action barred by the statute of limitation? and
(c) Was the award duplicative of the award of treble damages?
6. Did the court err by admitting hearsay testimony?
7. Did the court err denying Gary’s claim to a right by prescriptive easement?.
8. Did the trial court erroneously award Kent $18,582.75 in attorney fees?
Standards of Review
In an appeal such as this, we are presented with mixed questions of law and fact. We will defer to factual findings made by the district court, if they are not clearly erroneous. I.R.C.P. 52(a). We do not weigh the evidence, nor do we substitute our view of the facts for that of the trial judge.
Alumet v. Bear Lake Grazing Co.,
1. The Trial Court Did Not Erroneously Construe the Deeds.
We turn first to the district court’s conclusion that Laura conveyed to each of her children a seventy-two foot wide lot, and not a sixty-four foot wide lot as urged by Gary. This conclusion is based on the court’s construction of the phrase “less a strip of land twenty-five feet wide on south side of said described land which is reserved for the purpose of giving passage or right of way for a roadway.” (Emphasis added.)
In construing a deed of conveyance, the trial court’s primary function is to seek and give effect to the real intention of the parties.
Gardner v. Fliegel,
In the instant case, the district court concluded that the phrase, “less a strip of land twenty-five feet wide on south side of said described land which is reserved for the purpose of giving passage or right of way for a roadway,” as contained in the deeds from Laura, was ambiguous: the phrase could mean either that the grantor intended to retain a fee interest in the strip, or that she intended merely to reserve a right of easement. In view of our Supreme Court’s decision in
Gardner,
We hold that the district court’s finding that the descriptive phrase was intended to reserve an easement, only, is amply supported by the record. Although the reservation clause in the deeds was subject to possibly conflicting interpretations, the language nonetheless serves as strong evidence that the original grantors, the Johnsons, intended to reserve an easement; there was no need to describe the strip as being “reserved” for “a right of way” if they had intended to retain fee title.
Accord Cusic v. Givens,
In light of the construction placed on the language in the original deed of conveyance, the later deeds, which used identical language to divide the property among Laura’s children, should likewise be construed to include the twenty-five foot strip.
See Gardner,
Gary further complains that by its finding that Laura intended to include the twenty-five foot strip in her conveyances, the district court improperly rejected the testimony offered by other witnesses. This argument is misplaced. As noted
2. The Court Did Not Grant Recovery Under a Negligence Theory.
Gary also assigns error to the district court’s findings that he had “negligently” dаmaged Kent’s lot by constructing the Beach Access Road and the hitching post, and by removing two trees, all which occurred on the portion of the property which both parties claimed to own. Gary maintains that these findings, and the damages awarded on the basis of such findings, must be overturned because the theory of “negligent damage to property” was never pled or tried in this case. As explained below, this argument mischaracterizes the district judge’s findings and conclusions.
Although not stated in the statute, I.C. § 6-202 applies only where the alleged trespass is shown to have been wilful and intentional.
Earl v. Fordice,
It is clear from the district court’s memorandum opinion that the court’s findings of negligence were directed, in part, to its denial of Kent’s claim for treble damages for trespasses occurring on the disputed southeast portion of Kent’s lot. With respect to those trespasses, the court concluded that, because Gary had believed he owned the portion of land in question, his invasion of Kent’s property rights was not wilful and intentional, but merely negligent. Consequently, the court declined to award treble damages for the value of the pine trees removed. Similarly, the court refrained from granting punitive damages for Gary’s conduct, concluding that “Such negligence does not rise to a level which would justify the awarding of punitive damages,” and thus awarded Kent only the costs of repairing and restoring the southеast portion of his land. A reading of the memorandum opinion further reveals that the court’s additional reference to Gary’s negligence was in its decision to deny Kent’s claim for negligent infliction of emotional distress. Consequently, we reject Gary’s assertion that the court’s finding of negligence served as the basis of an award against him.
3. The Court Employed the Correct Measure of Damages for Injury to Property.
Gary next asserts that the trial court employed an improper measure in assessing damages resulting from the trespasses to Kent’s land. Where, as here, the injury to the land is temporary and not permanent, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury.
Smith v. Big Lost River Irr. Dist.,
As owner of the property at issue, Kent was competent to testify to its value.
Smith,
4. Sufficient Evidence Supported the Damages Awarded for Removal of the Trees.
Gary also asserts that the trial court’s award of damages for the trees taken from the west end of Kent’s lot was not adequately supported by the evidence, and therefore should be vacated. In an action for timber trespass, the measure of actual damages is based upon the amount of the trees taken and the market value of the trees in that area at the time of the taking. I.C. § 6-202;
Mercer v. Shearer,
Gary complains that the testimony as to the number of trees removed was sometimes so general, and sometimes so conflicting, that it was insufficient to adequately establish the amount of Kent’s damages. We disagree. To establish his damages, Kent was required to show, with reasonable certainty, the number of the trees taken. “Reasonable certainty” does not require mathematical exactitude, but only that the damages be taken out of the realm of speculation.
Haener v. Ada County Highway Dist.,
The testimony in the record shows that Gary caused thirty to fifty evergreen trees to be removed from Kent’s lot; that
Gary also takes issue with the court’s valuation of the trees. Specifically, he argues that the court erred in valuing the trees based upon evidence of the cost of repurchasing them on the open market. He suggests that the court instead should have calculated the value of the trees based upon the price Kent would have received had he sold them “on site.” It is well established, however, that the cost of replacement is evidence of an item’s “market value.”
See Spanbauer v. J.R. Simplot Co.,
5. Punitive Damages.
Gary also challenges the court’s award of punitive damages. Specifically, he argues that (a) the trial court based the award on conduct for which recovery was time-barred; (b) the evidence was insufficient to support the award; and (c) the recovery of punitive damages duplicates the award of treble damages.
a. The award was not based upon time-barred claims.
In its memorandum opinion, the district court found that in 1981, Gary had enlarged the turn-around road on the west end of Kent’s lot and had also installed a septic tank effluent line across Kent’s property. The court further found that when Kent observed the changes to his lot, he accused Gary of raping his land, and later specifically instructed Gary not to build any roads or to change his property in any way. In 1986, when Gary sought permission to build the road across the west end of Kent’s property, Kent refused and again told Gary that he wanted his lot left alone. Based upon these findings, the district court concluded:
The construction of the road on the west end of Kent’s lot was intentional, reckless and in knowing disregard of Kent’s property rights. For Gary, an individual knowledgeable about tree farming and who had previously been accused by Kent of raping Kent’s lot and told in no uncertain terms by Kent “tо please not change my lot in any way; no roads, no tree or firewood removal, no beach cleaning, in short, no activity of any kind” to have constructed the west end road was the height of arrogance. Such conduct was malicious, outrageous and unreasonable. Kent is entitled to an award of punitive damages against Gary in the sum of $15,000.00. Such sum is necessary to both punish Gary for his past conduct and to deter such future conduct.
Gary notes that any claims for damages arising out his conduct in 1981, i.e., the enlargement of the turn-around road and the installation of the effluent line across Kent’s lot, are barred by the statute of limitation, see I.C. § 5-218(2), and were appropriately dismissed by the court prior to trial. Gary maintains, however, that because the statute of limitation precluded recovery for any damages incurred in 1981, the statute likewise precluded the court from considering the parties’- conduct at that time when it evaluated Kent’s damages claims arising in 1987.
It is clear that the court’s reference to the 1981 incident goes to the fact that Gary was, from that point forward, put on notice that any further damage to Kent’s lot would not be tolerated. Thus, regardless whether Kent could recover for the damages he sustained in 1981, the parties’ conduct at that time was evidence bearing on Kent’s claims for the trespass arising in 1987. In particular, the evidence was relevant to determining Gary’s state of mind when he decided to bulldoze a road across
b. Substantial evidence supports the award.
Gary also contests the punitive damages award on the ground that such an award was not sufficiently supported by the facts. Our Supreme Court has stated:
An award of punitive damages will be sustained on appeal only when it is shown that the defendant acted in a manner that was “an extreme deviation from reasonable standards of conduct, and that the act was performed by the defendant with an understanding of or disregard for its likely consequences.” The justification for punitive damages must be that the defendant acted with an extremely harmful state of mind, whether that state be termed “malice, oppression, fraud or gross negligence”; malice, oppression, wantonness”; or simply “deliberate or willful.” (Citations omitted).
Manning v. Twin Falls Clinic & Hosp.,
Gary complains that the court’s finding that Gary’s conduct was “malicious, outrageous and unreasonable” was erroneous in light of his testimony that his only motive for bulldozing Kent’s property was “to further a family convenience for both Kent and Jean” and that he had misinterpreted Kent’s previous admonitions to leave the property alone. The trial court weighed Gary’s testimony against the body of evidenсe showing that Gary’s actions were done in wilful disregard of Kent’s property rights. The evidence, although conflicting, was sufficient to support the trial court’s findings that Gary’s actions were “intentional, reckless and in knowing disregard of Kent’s property rights” and that his conduct was “malicious, outrageous and unreasonable.”
Compare R.T. Nahas Co.,
c. The award did not duplicate the award of statutory damages.
Finally, we consider whether the court erred in granting both punitive damages and treble damages under the statute. These allegedly duplicitous awards were granted as exemplary damages, the purpose of which is to deter the defendant’s misconduct, not to compensate the plaintiff for his losses.
Soria v. Sierra Pac. Airlines,
The record in this case reflects that, as required by I.C. § 6-202, the court granted damages for treble the value of the trees that Gary had intentionally and wilfully removed from Kent’s lot. However, this award of statutory damages for the
6. Admission of Hearsay Evidence Did Not Constitute Reversible Error.
Gary also takes exception to the court’s decision to allow Kent to testify to a previous conversation he had with Jean’s son, Herb. The thrust of this testimony was that Jean and Gary had contrived a factual scenario, solely for purposes of this lawsuit, to support Gary’s claim of ownership to the disputed southern portion of Kent’s lot. Gary objected to the testimony on the ground that it was hearsay. Overruling the objection, the court admitted the evidence under the “present sense impression” exception to the rule against hearsay. See I.R.E. 803(1). We note, however, that the district court expressly found that Gary in fact believed he owned the disputed portion of Kent’s lot. This finding, which is contrary to Herb’s reported story, indicates that the court was not persuaded by this hearsay testimony. Moreover, the court’s finding is consistent with its refusal to award any exemplary damages arising out of Gary’s construction of the Beach Access Road and the installation of the hitching post. Hence, we conclude that any error in allowing the hearsay testimony was harmless, as it did not affect any substantial right of the party, Gary, over whose objection the evidence was admitted. See I.R.E. 103(a); I.R.C.P. 61.
7. The Trial Court Did Not Err in Refusing to Grant a Prescriptive Right to the Turn-around Roadway.
Gary next asserts that the court erred in denying his claim of a prescriptive right of easement over the turnaround road located in the middle of Kent’s lot. In order to establish a private prescriptive right of easement, a claimant must submit reasonably clear and convincing proof of open, notorious, continuous, and uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period of five years. I.C. § 5-203;
Chen v. Conway,
In this case, the district court found that Gary’s use of the turn-around had been permissive. Gary takes issue with this finding. He contends that his continued use of the turn-around roadway between 1970 — when Kent first acquired title to the lot — and 1982, when Kent confronted Gary about having widened the roadway, raised the presumption of adverse use for the prescriptive period and shifted the burden to Kent to prove that the use was permissive. He argues that Kent failed to rebut this presumption, and that the court’s finding therefore must be reversed. We are not persuaded.
The presumption from which Gary seeks to benefit applies where the claimant has established his open, nоtorious, continuous, and uninterrupted use of
8. The Attorney Fees Award Does Not Represent an Abuse of Discretion.
We next consider the district court’s award of attorney fees. Following the district court’s issuance of findings and conclusions, Kent submitted a costs bill which included $37,065.50 in attorney fees. By its subsequent memorandum decision and order awarding attorney fees, the district court held that “a reasonable apportionment of the total fees incurred in this matter to the trespass claim, is the sum of $18,532.75,” and awarded Kent attorney fees in that amount. Gary does not dispute that Kent’s success on the statutory trespass claim entitles him to a mandatory award of attorney fees under I.C. § 6-202. However, Gary contends that the trial court abused its discretion in fixing the amount of the award, arguing that the court failed to properly consider the claims upon which he, Gary, had prevailed.
Gary is correct with respect to his assertion that where the parties have succeeded on entirely separate claims, those claims are properly distinguished and should be analyzed separately in determining whether attorney fees are appropriate.
See Ramco v. H-K Contractors, Inc.,
It is clear from the district court’s memorandum opinion and order awarding attorney fees that the court considered the fact that a substantial amount of Kent’s efforts were directed at claims upon which he did not prevail, specifically citing Kent’s claim for trespass to the beach end of his property and Kent’s claim for emotional distress. The court found, however, that some of the legal work performed on those claims overlapped with Kent’s successful
Conclusion
We affirm the distriсt court’s judgment quieting title in Kent to a lot approximately seventy-two feet wide. Additionally, we affirm the district court’s awards of compensatory, statutory and punitive damages against Gary. Finally, we uphold the district court’s award of attorney fees.
Because he has prevailed in this appeal, Kent is entitled to his costs on appeal. I.A.R. 40. We further hold that Kent is also entitled to an award of attorney fees on appeal pursuant to I.C. § 6-202.
See Bubak,
Notes
. A survey requested by Leslie C. Bumgarner in 1955 described the boundaries as inclusive of the twenty-five foot strip. In 1981, Gary, Kent and Jean jointly commissioned another survey of the boundaries, which again showed the strip to be included in the property they owned. A third survey, commissioned by Gary in December, 1981 — after the commencement of this lawsuit — еxcluded the strip from its description of the property boundaries.
. In
Gardner,
the Court held that the phrase "Less a strip of land 30 feet wide off the East side for roadway" was ambiguous: “On the one hand it expresses the intent to retain the fee to the strip in the grantor. On the other hand it expresses the intent to create an easement for
roadway over the strip in favor of the grantor. Such expressions of intent are inconsistent.”
. Of course, even if this limitation has been abandoned, recovery still would be subject to principles of economic waste and avoidable consequences.
. Thus, a party who successfully defends against a claim for treble damages is not entitled to recoup his fees under the statute. I.C. § 6-202; I.R.C.P. 54(e)(1). Compare I.C. § 12-120(3) (mandating attorney fees, in certain cases, to the “prevailing party.”)