Coeur D'Alene Garbage Service v. City of Coeur D'Alene
759 P.2d 879
Idaho
1988
Check Treatment

*1 bidding contract amount byor such amount amount other than that which was at the sale when under terms of due owing entry and at the date of contract at the summary judgment time of judgment. Beyond go, that I cannot be- purchaser delinquent only I prior cause do judicial not believe that extent of payments. two installment purchaser sale any obligation had tender any other amount than what We reverse and remand to the district adjudged been owing by due and dis- proceedings. court further The district trict judgment. court’s all, Above I do is instructed to determine the agree giving with specific di- due, owing unpaid, amounts then and and govern pro- rections to the district court to summary enter judgment in that amount. remand, ceedings although I do to, The district court further instructed given doubt they with a benevolent by order, permit Energy Systems a reason- intent; days larger be a time than time, days, able not to exceed 120 to reme- contractually the seller is required ex- dy its default and such tender amount into tend. court. In the payment absence fashion, timely made in the district Purely by way comment, court is it is because issue, not an again imposition directed to I order of a the advisability of lien on the property, and the foreclosure of district resolution court’s of this contro- by judicial that lien In the versy sale. absence of on a for summary judgment. motion compliance by Systems Energy The suggestion strongly appears district that such court is procedure directed to consider whether this resulted in the district court appeal proceedings and the upon further the cause under advisement without remand have pursued Energy Sys- bringing either party to its attention in good tems purpose faith or for the absence of an acceleration clause in delay contract, and In the accordingly harassment. event the and brought into district court appeal judgment concludes that this error in entering which encom- any subsequent proceedings upon passed payments unpaid plus remand due and — brought pursued were not good pur- unmatured balance of the contract faith the court is price. authorized to award Rick- chase attorney els upon appeal, fees

upon the proceedings. remand

Under exceptional circumstances no appeal

costs on are awarded to Energy

Systems.

HUNTLEY, J.; concurs. COEUR D’ALENE GARBAGE SER- VICE, proprietorship, a sole BAKES, J., concurs result. Plaintiff-Respondent, DONALDSON, sat, J., but did not participate in voting to his due D’ALENE, CITY OF COEUR untimely death. municipal corporation, BISTLINE, Justice, specially Defendant-Appellant, concurring. agreement judgment am in with the Inc., City Disposal, Lake an Idaho reversing judgment this Court corporation, Defendant. agreement lower court. I am also the view of the Chief that the ab- No. 16712. precluded sence an acceleration clause Supreme Court of Idaho. entry judgment for an amount over May beyond payments obligations were in default.

Accordingly I in the holding concur entering judgment

the trial court erred in

Hull, Branstetter, K. & Michael Hull Branstetter, Wallace, defend- (argued), ant-appellant. Reed, d’Alene, plain- W. Coeur
Scott tiff-respondent.

JOHNSON, Justice. case.

This is an inverse condemnation presented primary issue is whether the (the d’Alene actions of of Coeur takings of Co- City) constituted Garbage (Garbage Ser- eur d’Alene Service vice) pursuant requiring just compensation 14 of Idaho Constitution to art. States fifth amendment of the United affirm the decision of We Constitution. takings trial court there were compensation by the trial the award court, prejudgment interest together with dates of from the I. Garbage areas in which operated. Service Garbage Service preliminary in- THE FACTS junction prevent Disposal years prior For several to 1982 servicing Garbage Service’s custom- provided garbage collection service *3 ers in the areas annexed in 1983. The trial corporate to suburban areas outside the court denied the preliminary injunction. City. City limits of the In 1981 the con- Garbage then supplemental Service filed a City Disposal, (Dis- tracted with Lake Inc. complaint seeking the same relief as posal) provide garbage every service for complaint regard with to the City structure in the occupied. that was encompassed areas in the 1983 annexation. By City prohibited ordinance the collection granted partial The trial court summary garbage City within the limits of the judgment Garbage Service, determining except by Disposal, and made it a crime for takings Garbage that there had been anyone attempt provide garbage else to property by Service’s the elimination of its City. service within the The contract be- right to serve its customers in the areas City Disposal tween the was for a Following annexed. a trial the trial court five-year two-year option fixed term with a $262,574 Garbage awarded just Service required The renew. contract also Dis- compensation, together with interest from posal garbage to extend its collection ser- the dates of City vice to area annexed within City appealed The the trial court’s ninety days after annexation. ruling takings. City that there were Garbage Service was licensed as a hauler has also raised as issues whether the trial garbage by or collector of Panhandle improperly received evidence concern- Health District No. 1. This license re- ing damages that based on fair quired compliance regulations with all state value, market whether trial court for sanitary procedures hauling improper just awarded an amount of com- handling garbage, provide but did not Gar- pensation, prejudment and whether bage Service with a franchise to serve a properly awarded. particular territory. Garbage Service en- joyed a monopoly de in the areas it facto City. served outside the limits of the II. City began process In 1982 the THE ACTIONS OF THE CITY CONSTI-

annexing Garbage some areas in which REQUIRING TUTED TAKINGS JUST operating. Service was Before the annexa- COMPENSATION completed Garbage tion was Service ob- Both the Idaho Constitution and the tained written contracts with its customers provide United Constitution if States proposed the areas for annexation. private use, is taken for period These contracts were for a of three just compensation. there must be Id. months with automatic renewal addi- Const., Const., art. U.S. Amend. 5. periods tional of three months unless can- protection We conclude that the of the party by giving celled either notice ten compensation clause of our state constitu days prior expiration of each three- provides tion a sufficient basis for our deci month term. premis sion this case. We refrain from Following completion of the annexa- ing just compensation our on the Disposal began providing garbage tion col- clause of the fifth amendment. lection service within the annexed areas Garbage question the Service does not previously that had been served Gar- City to annex the areas bage Garbage Service. Service filed suit Garbage operated its against within which Service injunctions City Dispos- al, Garbage contends that it just compensation for the tak- business. Service obtain the effect of the exclusive service con- and for for inter- was City Disposal ference with contracts. While the suit was tract between pending, brought takings in 1983 the annexed other about the to its entitling provided Garbage it to com- collection service Service pensation. Garbage acknowledges accomplishes residents is uniform permitted maintaining to continue to purpose that if it been the health those areas, serve in the annexed frequent City. its customers who reside takings. there have would We accomplish police power of the agree. broad, but not unlimited. objectives these power by police When the exercise holding is that essence of our here in conflict the interest comes by excluding Garbage too far went preserving inter- of an owner continuing Service from to service cus- est, balancing must of these there in the annexed areas. Ser- tomers showing here is no interests. There vice’s license from Panhandle Health Dis- *4 excluding City in the actions of the Gar- granted authority trict No. 1 it lawful to bage areas fur- from the annexed Service in provide garbage collection the service in preservation of health those thers the prior areas annexed to annexation. The showing, of In the absence such Garbage areas. trial court found that Service was protection threatening any public tips the in favor of the endangering balance If Garbage property health or welfare in the annexed areas. of Service’s interest. Cf merely regulated opera- City Corp., the the P.2d 769 City Parker v. Provo 543 Garbage (Utah 1975) (Ordinance private tion of Service in the annexed prohibiting by requiring comply areas it to with rea- removing or waste material collector from by City, sonable standards established the disposing garbage city in the declared Instead, have no there would showing there was that the void where Garbage City chose take from to Ser- hauling material collected or method any opportunity vice to continue to service health). the public it detrimental to in its the annexed It was customers areas. previously said cases This Court has Garbage this exclusion that entitles involving the conflict between the exercise just compensation. protection city's police powers of a and the The City disputed has whether private that a harmful effect property Service’s business the annexed area con upon property alone is insufficient owner property subject is to the stituted that damages. justify an action John- 1, compensation clause of art. This § 52, 44, 87 Idaho 390 City, ston v. Boise private property Court has stated that “of (1964). 291, P.2d 295 Johnston public all classifications” be taken for being on there “a reasonable Court focused just compensation use clause. under health, public safety, relationship to the 286, 293, Hughes v. 328 general in order val- moral or welfare” 397, (1958). 400 It is established also police power. idate of the Id. the exercise “right to conduct a is business stated: Court property.” v. H. R.E. Local Robison & authority If under the exercise of 132, #782, 35 Idaho 207 P. 134 enactment is reasonable and not such an (1922). also, City Mos See O’Connor v. thereby arbitrary, injury occasioned 42-43, 401, cow, 37, Idaho 202 P.2d 404 69 inherent be considered servitude must (1949); Weippe, Village and Winther v. system government, our under 430 P.2d damages injury must be con- interest in Garbage Service had absque injuria. as sidered damnum it conducted in the areas an business In the instances omitted.] [Citations City. City chose take nexed where the exercise Disposal order to allow of reasonable- transgresses the bounds to the provide garbage exclusive service result, ness, arbitrary point isor annexed areas. private actual where there is an use, (Idaho Const., public recognize compet that there are We 14) point there or to where at here. The Art. interests issue § property without due insuring garbage deprivation (Idaho Const., process law Burley Art. nexed insofar as service 13),an damages by action would lie for § members at the time of annexation is con- way of inverse condemnation or of in- cerned, legislature early as as junctive relief. recognized delivery electricity throughout the state was essential.” Id. at Id. 502-03, 445 P.2d at 723-24. We note a adopted following Court then for- recognition similar importance Supreme mulation of the Kansas disposal legisla- solid waste declared Commission, Highway Smith v. State ture in I.C. 31-4401. § (1959): Kan. 346 P.2d In Unity, this Court held that the Determination of whether Burley sup- had the to condemn the compensable under eminent domain or plier’s property noncompensable within annexed area. police power under the Here, depends importance Id. at 445 P.2d at 724. the relative had the interests affected. The court must of eminent domain under I.C. 50-1030(c) weigh public purpose preserving for the relative interests of the § individual, provided and that of the health for in so to arrive I.C. govern- Although at a balance in order that 50-304. did not exer- *5 unduly case, ment not be in will restricted cise its of condemnation in this proper Garbage exercise of its functions it by did take Service’s public good, giv- excluding Garbage while at the same time servicing Service from policy due effect to the of the emi- existing its customers in the annexed ar- insuring nent domain clause of the indi- eas. against

vidual an unreasonable loss oc- in Renninger The decision of this Court by governmental casioned the exercise of power. (Emphasis original.) in disposes City’s contention that it is Garbage Here we conclude that Service liability Garbage immune from Service suffered an unreasonable loss occasioned 6-904(4). by City The char- virtue of I.C. § by governmental power by the exercise of suit one for tortious con- acterizes this excluding Garbage in from Service In this City. Renninger duct of the Court continuing its business in the annexed ar- 1, 14 held that art. of the Idaho Constitu- § eas. immunity of the state an tion waives condemnation case. Id. at inverse In a similar case this has held that Court correctly charac- P.2d at 916. This ease supplier lawfully once a enters of service terized as one for inverse condemnation service, provide into an area to annex- and not as one for tortious interference by city ation of the area does not “in the The cannot avoid liabil- with contract. authorize an absence of condemnation” attempting recast it has ity by what supplier ouster of the from that area. done. Unity Light & Power Bur- Co. ley, 499, 502, Idaho 445 P.2d (1968). Implicit Unity the decision III. acknowledgment supplier an that the TO SUPPORT THERE IS EVIDENCE annexed area had a of the service DE- THE JUST COMPENSATION servicing property interest its customers THE TRIAL TERMINATION OF In the trial court awarded Unity there. COURT damages taking by supplier $500 challenged the trial Burley property rights, enjoined has determination of the amount of Burley interfering supplier’s from with the court’s Garbage existing compensation 445 P.2d at awarded to Service customers. Id. at trial court took grounds stat- on the that the 725. This Court affirmed. The Court not on the fair “[ajmong the which into account evidence based ed that considerations supplier] value of the taken the conclusion that market led to [the elements of territory premised an- evidence on some could not be ousted from the used, there is damages. have been evidence noncompensable The essence should the use of position support did the record both City’s is that trial court period projecting revenue ten-year correctly market val- determine fair ten-percent employed rate discount garbage of Gar- ue of the collection routes Although much court. there was the trial bage taken because Service were conflicting the value evidence about Garbage earnings trial court used Service, un- taken from what in the annexed areas to determine Service Eagle forth in der the standard set Sewer Findings the amount to be awarded. its Dist., uphold the trial we the valuation of Conclusions, premised the trial court court. compensation on the award of “present Gar- portion market value” IV. bage Service’s that was taken business City. INTEREST FROM ALLOWANCE OF sitting with a THE DATE

Two Court OF TAKING members Ap- judge, acting district granted Garbage court trial recently the stan- peals, have stated that interest on the awarded appellate should dard which an takings. the dates of the This was just compensation by review award proper, since art. 14 of the Idaho Con trial court there evidence is whether provides private property stitution support the determination of the trial value just compensa “until a shall be taken court. amount awarded be set tion, pre to be ascertained manner supported by aside if it is not by law, paid scribed shall be therefor.” Eagle adopted evidence. Sewer v. Hormae- a rule in a Dist. This Court chea, 707 P.2d condemnation case should *6 (Idaho condemning from time the Ct.App.1985). awarded the possession party takes or becomes entitled reaching In just compen- its decision on possession property. Indepen to of the pointed sation this case the trial court Boise v. C.B. dent School Dist. of witnesses, expert out that the testified who Co., Const. Lauch concerning garbage the value of the routes In an con inverse by Garbage of owned Service at the time party property case whose demnation taking, range placed the the value within entitled to interest on been taken should be $39,552 $800,000. from to trial court The property from the date of the value the concluded that should be Otherwise, party the the $262,574 just for compensation awarded as property the taken have whom would by arriving the the In City. taken deprived the taken been both at this value the trial court to use the chose compensation dur the use of the and earnings “discounted future method.” the period taking the from the until Pratt, This described method was Valu- compensation amount of ing Small Businesses and Professional property taken is determined. This would (1985), accepted a treatise as au- Practices violate the intent of art. 14 of our expert thoritative and reliable one of the constitution. City. witnesses for the contends earnings that the future method discounted V. used, not have but of valuation should CONCLUSION used, if it should not were court partial summary judgment judg- projection ten-year have used of future ment of the court are affirmed. trial earnings percent ten rate. with a discount in an contends that this resulted respondent. to Costs damages. excessive calculation attorney appeal. No fees though expert Even one of witnesses BAKES, HUNTLEY, that a num- for the testified different BISTLINE JJ., years and a different rate concur. ber discount SHEPARD, Justice, therein, concurring Chief interests as contrasted with the dissenting. intangible taking such as the rights respondent contract of the in the I concur much stated in which is “taking” instant As to the case. of intan- majority opinion, only express to write gible rights through the exercise of my join majority reluctance to police powers municipalities, there is a city decision that the action authority scarcity juris- in this and other instant case “taking” respondent’s was a dictions. “property.” agree majority I with the question need be considered from dealing I would note that most eases standpoint of our state Constitution condemnation, with the of inverse recourse provisions without have done so context of the my Constitution the United States. property. real Robison v. H. & R.E. Local the majority gives view insufficient consid- #782, 207 P. 132 question, eration to the at the same while obviously dealt with different times. painting time with such a brush that broad There the stated: police powers municipalities within A conduct property. to a business is may the state severely inhibited property right Incident future. business, goodwill and the deem municipality it clear that a appeal public patronage. One police of its authorized within the limits way, may conduct his business in his own regulate prohibit certain activi- may employ upon whom he will authority when ties such exercise of bears agreed may upon, terms relationship a reasonable any employee discharge at will unless health, safety, general morals or welfare of long restrained valid contract so instances, its citizens. In some while the rights he violates law. These authority may exercise have harm- protection entitled law. citizens, effects ful on some of its if the statement, however, That was made in exercise of that is reasonable and reviewing injunction context of issued arbitrary any injury thereby occasioned prohibiting by a picketing trial must be considered a inherent servitude *7 premises. union of certain Labor business system our government,

under of and dam- upheld in The modified form the ages from such injury must considered injunction prohibit picketing. the issued absque as damnum Johnston v. injuria. Moscow, v. O’Connor 69 Idaho City, Boise 87 Idaho of 202 401 the P.2d involved validi- appears In the instant case there zoning ty municipal ordinance of a which question parties no raised the but that in collection, prohibited certain businesses a certain hauling disposal the of solid and municipality. plaintiff The area of the legitimate regulatory is within waste a Likewise, property, and owned certain conducted municipality. which would in effect be city no business thereon see raised that the acting or existence. The Court struck arbitrarily, capriciously, unrea- zoned out of event, sonably any stating: in it its action. In down the ordinance be noted that instant action should prohibits An the contin- ordinance summary before us as a of comes result existing uation of lawful businesses with- city, judgment being against issued and area is unconstitutional a a zoned any questions relating presented if were process of taking property without due matters, improperly they the above were being and an unreasonable exercise law at summary judgment. resolved power police ... The effect of state, provision of the ordinance here com- appropriate in this It is to note that of plained deprive respondents is to jurisdictions, in other dis- a substantial by preventing in- the sale tinction has been cases their drawn between volving restricting leas- “taking” their business their of real

595 purpose. for that Unity property for in con- franchise ing of the real use municipal operated a Burley also nection therewith. in- energy to furnishing electrical system zoning basically A ordinance deals Burley instituted city. habitants use, ownership, property. with the certain seeking condemn proceedings question declaring provision in a The my In Unity. facilities lines and other ownership a busi- change to be new is somewhat opinion of the Court view the arbitrary an unreasonable ness is damages to confusing $500.00 since police power and violates exercise “property a represented given by Unity protection the constitutional lines, and for rights, including power ...” process due clauses. However, as noted interference. contract declaring The of the trial court said decree court’s opinion, the trial in its the Court effect, enjoin- ordinance void and no restraining (affirmed appeal) Bur- on order it, city applying was affirmed. from interfering operation ley Village The case of Winther on partially least based Unity, was at (1967) P.2d 689 Weippe, 91 Idaho statutory “anti-pirating law.” was, Court, similar to as noted Moscow, supra, opinion, only majority O’Connor v. As I view the munici- adjudged trial court had of the in- circumstances case close pal to be unconstitutional ordinance v. Provo stant matter is Parker attempted 1975). it the num- (Utah void when to restrict There the Corp., P.2d 769 village. ber of licenses in the beer municipal to be void held a ordinance “The in the instant case Court said: facts plaintiff. The ordinance applied to the plan designed are indicative of or scheme collection, removal or made unlawful respondents’ to eliminate business under matter, disposal garbage or but waste municipal authority attempted color of held, record do “nowhere the court retroactively, be exercised not but garbage, kitchen that this waste is we find unreasonable, arbitrary and discrimina- refuse, by-product tory manner.” public health. deemed deleterious subject ordi- section of the definition Hughes cases makes definite distinction between nance (1958) and Johnston v. view, my In the brief garbage and waste.” City, Boise P.2d 291 opinion of the Utah court sheds and terse (1964) real both involve and access question here. matter in light thereto from the Court streets. As stated Johnston: “This Court has con- hand, cases from two On the other public way sistently held that to a access remarkably similar jurisdictions other one ownership of the incidents of of land Estacada v. to the instant case. *8 bounding apperten- thereon. Such Service, Sanitary Or.App. 41 American right.” ant to the land and is vested (1979), 537, Sanitary had a P.2d 1185 599 Hence, I view neither of said cases as bear- perform county from the to solid franchise question presented‘in the instant the unincorporated services waste collection case. areas, had franchise from the and Walker city with- perform in this to like collection service jurisdiction case city city’s “After the my peripherally even on the the boundaries. -view bears area, part Sanitary’s Walker Unity Co. annexed Light instant case is & Power 499, that the to serve area. City Burley, 92 Idaho 445 P.2d 720 claimed action, asking city for a decla- (1968). There, Unity provided en- initiated this electrical proper- Sanitary ergy to ration that 'has vested in an area which became annexed protected ty right legally or city Burley. Unity the continued to its to encom- areas continuance of service areas serve its members the annexed county passed in its franchise which have poles to maintain its and continued annexed____’ Sanitary counter- newly transmission lines the annexed taking by area, although city granted based on a the claimed never 596 city.”

the The trial held city, that Sani- when pursuant the to statutory tary had “a vested interest” in mandate, the begins providing gar- its own area taking annexed that had oc- bage collection service? For the reasons Sanitary curred was entitled to here, stated we answer the damages. The appeals court of reversed negative the and conclude the holding of the trial court. In opin- its Appeals erred in finding “taking” ion the court stated: requiring compensation by city Supreme The Idaho Court in Unity Winston-Salem. Light & Power Co. v. Burley, 92 essence, plaintiffs contend arrived at City’s extension of solid waste collection compromise by holding city their repre- services into areas franchise ‘pirate’ could not the state created fran- governmental taking sented a of their chisee’s customers in the annexed area plaintiffs for which are entitled utility operation, for its own but city to compensation under the fifth and could refuse to allow franchisee to fourteenth amendments to United expand its service to new customers in States Constitution and under article 1 the area. While that solution has a cer- section Carolina____ 19 of North Constitution attractiveness, tain facial it is to difficult operating discern the principal being ap- The franchisees in this case have no plied, for the result to judi- was amend rights absolute respect their fran- cially the very terms of the franchise rights by neigh- chises. All are limited being protected. rests on boring rights, rights and when the that the franchise was both a concept these franchisees are considered in the subject valuable light rights public through degree regulation by same the state Winston-Salem, city the fran- after annexation as was it before. rights subject rights chisees’ We do have before us a franchise City, exercising these others. The higher authority created than the duty, impinged upon has not or violat- city. Nor do we a situation have where ed any rights of the franchisees. city directly indirectly taking Furthermore, damage every pri- tangible assets of the franchisee for a property by government vate is sub- use____ conclude, ject compensation. then, We In those circumstances we do not be- plaintiffs compensable inju- have no city prevented lieve the ry- exercising its own without first The court further resolved United paving off county-cre- the value of the question noting States constitutional Loret- ated franchise. The trial court erred in Teleprompter Manhatten CATV holding that a city failure to honor Corp., 458 U.S. S.Ct. county franchise would be a (1982); L.Ed.2d 868 Penn Central Trans- meaning within the of article section portation City, v. New Co. York U.S. Oregon 18 of the Constitution. (1978); S.Ct. 57 L.Ed.2d City Estacada v. Sanitary American Dakota, Larsen v. South 278 U.S. Service, supra, essentially followed in (1929); S.Ct. 73 L.Ed. 441 Charles *9 Winston-Salem, 689, v. Stillings 311 N.C. Bridge Bridge, River v. Warren 36 U.S. (1984). 319 S.E.2d 233 There the court (11 420, Peters) 9 L.Ed. 773 stated: above, Hence, I on all of the would based primary presented for re- point summary judg- hold that at impression view is matter of first city’s prohibiting ment the ordinance this Court: Does an exclusive solid waste collection, hauling disposal of solid granted by county collection franchise valid, against presumed waste is subsequently remain effective areas Garbage, and by city thereby claim of Coeur d’Alene Coeur annexed and entitle the precluded compensation effectively franchisees to for a d’Alene is years, spanned 45 and involved newly annexed cases operating from within the Further, persons sitting where we five I find different municipality. of the areas only case there a now one was nothing jurisdiction law of which sit. case dis- single In the compensation dissent. O’Connor requires payment sitting in the stead and business, any judge Sutphen find trict nor do I such loss Budge, with did vote persuasive authority place other of Justice therefor in his that: majority view jurisdiction. opinion my If the brethren because might solely to the somehow be restricted operating billiard and The business case, concepts abstract of fairness parlor instant gain and a beer pool tables for However, might impel me to concur. recognized is is not where draft beer sold earlier, paints majority I business, stated believe is although it useful as a applications future one, with a broad brush and can I not think it do lawful will, I principles down here laid seriously contended that believe, upon police seriously impede not have Moscow does powers municipalities this state in places to reason- such business confine the future. limits its borders. able territorial within 45, at at 406. 69 Idaho P.2d BISTLINE, Justice, specially Hyatt, al- Justice In the O’Connor case concurring: cited the Robi- though he thereafter also Having opinion concurred in the au- case, encom- chose to borrow more son Johnson, only Justice thored write passing property: definition emphasize strength of the statement Spann Property has well defined existing that an business is property, Dallas, Tex. 235 S.W. v. Hughes citation to also to comment 514, 19 A.L.R. as follows: Idaho, appearing (p. v. at both State of thing Property in a consists p. 882). 591, 759 P.2d at ownership posses- merely in its sion, right of but in the unrestricted I. Any- use, disposal. enjoyment and any of ele- thing destroys which these Johnson has written that “the Justice de- that extent ments of property,”— to conduct a business sub- property itself. The stroys the absolutely underly- correct. The in its lies stantial value ing issue case the busi- Robison was denied, If of use be use. complaint that to his ness owner’s access is annihilated value place being impaired by of business was right. a barren ownership is rendered picketing governmen- union No workers. tal action was involved and hence there at 202 P.2d at 404. 69 Idaho Injunc- taking.1 no claim of an inverse which in It was a unanimous Court Win- sought tive relief was and obtained. (and passage quoted foregoing ther more) predicate for Similarly, as the in O’Connor v. Mos- O’Connor safely It (1949), opinion. can cow, judgment cited its 69 Idaho prop- that an established business is Johnson, stated p. also at erty. p. at relief was a invalidity of ordinance declaration arbitrary in an unreasonable ex- II. deprived the city police power

ercise 286, 328 P.2d Hughes property. of their O’Connors cited in the Court’s also some, (p. p. 883), case, 759 P.2d at received City Weippe The Winther due, O’Connor, certainly not consideration along in all re- but cited *10 Idaho, mentioned, recent case of Merritt v. State spects to the latter both similar of Justice relying upon it. The three citing to and yet to be declared. condemnation The doctrine inverse today correctly Johnson cites it for the appurtenant property; est in and to real proposition “[p]rivate property right of all and since such constitutes access may public in, classifications be taken by an interest being virtue of to, use.” That statement in Hughes appurtenant larger was made parcel, easement subsequent prior paragraph court, to a in Hughes jury or referee must ascertain which read: and assess the which will ac- portion sought crue to the to be approach proposition,

We now by condemned reason of the severance of appellants’ whether allegedly destroyed portion right easement, constituting ve- —the access— condemned, to be and the construction of public hicular generally access improvement. sec. I.C. 7-711. their property purposes, for business is property capable being appellants’ “taken” and We therefore hold that al- capable of severance property legedly destroyed right from the of business ac- appertains to which it property, and of which it is a cess to their if business such part. proven, taking be constituted a of their property, accompanied by or whether 80 Idaho at (emphasis 328 P.2d at 400 taking physical property, and consti- added). And, immediately following the damage, tuted an element of as dues also single sentence which Justice Johnson uti- alleged taking element of of their lizes, this in Hughes went on to state physical property, ... holding that: 80 Idaho at 328 P.2d at 402. property Real includes “that is appurtenant to the Land.” I.C. sec. 55- Unfortunately, as considerations of law 101. It includes all easements attached concerned, unjustly as considera- to the land. I.C. sec. 55-603. It includes concerned, justice majority tions of hereditaments, corporeal whether or in- opinion in comprehend Merritt did not easements, corporeal, every such as Hughes, what had been held and stated in Property lands. 73 C.J.S. by reading up selective came with the p. 159. understanding untenable that all vehicular “destroyed,” access had to be 113 Idaho at Easements are included in the classifi- 399, notwithstanding 742 P.2d at rights cation of estates and in lands Hughes court’s stated es- public taken for use. I.C. “(a) questions presented sential were sec. 7-702. impairment whether the destruction or 80 Idaho at 328 P.2d at 400. taking access constitutes a Thereafter, order, opinion present- (b) destroyed impaired whether access authority substantiating holding ed taking physi- accompanied by must be (including years ago case decided an element of cal to constitute destruction, “Any interrup- which held that damages.” 80 Idaho at 328 P.2d at common, deprivation tion or usual (emphasis supplied). ordinary by use of is Expecting might that it be asked what prop- weight of one’s case, discussing point the Merritt erty guar- in violation of the constitutional readily made. In this case answer antee.” Knowles v. New Sweden Irr. condemnation is the now before us inverse Dist., 16 Idaho 101 P. Hughes, issue. It was also the issue in (1908)), gave expand- and then a somewhat again Hughes not even in Merritt. quoted by of the one-liner Jus- ed version Merritt, majority in understood Johnson, saying fully: more tice Bakes and Donaldson where Justices Constitution, of Idaho’s Our review majority joining formed a with Justice decisions, clearly statutes and shows that Huntley. of eminent domain extends they notwithstanding the cau- every kind taken for This did use, Shepard, where he including pub- of access to tion extended perti- streets, quoted directly from a then recent being lic an estate or inter- *11 599 in 1957 rule existed clear cut noWhile Donald- by Justice authored opinion nent constructed respondents the time at con- Bakes had son, Justice with whom premis- appellants’ adjacent highway Donaldson, by Jus- joined Justice curred. several occasions es, nevertheless Merritt had time before a short tice Bakes determined has since then this Court hold- Mabe Hughes this view of [and ] rights are that access declared ings: State, Hughes v. interest. See property property owner access of a right of 286; P.2d 397. (1958), 328 80 Idaho long abutting public street to an acquires ex- the state Clearly then when in judicial discourse subject of privately owned isting access between thorough review A Idaho. highway it public property and real courts right Idaho is a which reveals it property real possession of a into comes pro- careful particularly have been tect____ applied to has been This rule interest. access with Nor is interference impairment. See State some forms element of severance merely an (1958), Idaho Fonburg, 80 v. ex rel Rich for condem- in an action considered to be 60, v. 269; P.2d and Farris 328 nation, in but is itself 583; Falls, (1958 [1959]), 81 Idaho Twin compensated may taking of which 347 P.2d 996. condemnation, for inverse in an action 148, State, at 742 P.2d 113 Idaho by a Merritt v. accompanied or not that is ‘whether added). (emphasis (Citing at physical property.’ taking of 222, State, 83 Idaho and Mabe v. Hughes my own Following was added which 401). 799, 254, 360 P.2d 86 Idaho thought that: State, in v. Shepard Merritt the then Chief Justice could have cited That brief also 397, 146-147, 742 P.2d 401- 113 Idaho case of Mabe v. even more recent (1961), of Justice quoting dissent 83 Idaho Donaldson, by Justice Bakes State joined also discussed Hughes, and reaffirmed Bastian, High- 97 Idaho 546 P.2d of which the Fonburg, Farris and which, (1976). Following Shepard Justice had to be well aware way Department taking went on to add Merritt: in the stipulated to a when it case. Lobdell Although previous our cases are clear, of Idaho totally I believe the law 403. All of which P.2d at Id. be, is, whose or should that a landowner any reasoning mind that should establish or road street abuts decided, and is a trav- wrongly Merritt was sum- enjoys access thereto cannot be correctly cited esty. Hughes is Whenever marily deprived of that upon, today, is so it seems and relied as compensation. This I believe re- without mischief was point order in other gardless may the law of what negligently it was misread occasioned when public neces- Although the jurisdictions. author, joined by jus- two by the who may demand the sity and convenience expressed just opposite tices who done not be Publishing Company At earlier. West view compensation. award of without writing the head- charge person safety or argument regarding the No holdings in the depicting the *12 times, correctly different notes that injunctive.

the relief He cor-

rectly points to the same O'Connor. As earlier, however, governmen-

mentioned Robison, and,

tal was involved O'Connor,

as to inverse condemnation did remedy become Idaho until Ren-

ninger v.

(1950). The conclusion I am best

able to draw is that the Chief ad-

heres to the view that real subject

interests therein are to condemna- condemnation,

tion and inverse but that an That I

established business not. do not

understand. P.2d 891 Application MATTER For OF

PERMIT 47-7680 In the Name of NO. Crest, Inc.,

Royal Corp., Collins Bros.

Assignee. CORP., BROS. an Idaho cor-

COLLINS

poration, Appellant-Respondent appeal,

on DUNN, Director,

A. Kenneth Resources,

Department of Water

Respondent-Appellant appeal.

No. 16844.

Supreme Court of Idaho.

July notes justi- general public convenience Hughes that the was aware property right taking of such a fies the impairment of considering destruction compensation. absent being compensable See access at 328 P.2d Idaho at headnote Merritt, 742 P.2d at supra, 113 399. register my disappointment I dissent, similarly Regretfully spoke my In Merritt Shepard who today it is Chief by coun- quoting from a brief authored view entertain the same seemingly does not for the State case Lobdell sel convincingly Mer- so displayed he Idaho, 135 which 407 P.2d State of having dealt Robison (1965): He sees ritt.