*1 561 P.2d 1018 388 speak instruments written rule that implied themselves, because Plaintiff-Appellant, HADFIELD, Lynn derogation of such are in easements rule, courts. they not are favored C. relation of Wallace on of Idaho STATE that the burden of rule is Gaffney Doyle The BURNS, and R. F. Ernest Directors, Highway Symms, Board of asserting proof person rests dants-Respondents. Defen the existence of facts it to show No. 9297. necessary by implication an to create appurtenant easement to his estate. Supreme Idaho. Court of Hi [*] [*] ” Nov. 19, 1963. of ad question Relative to Rehearing Fob. Denied disputed parcel possession of the
verse land, the old the evidence shows originally and main constructed fence was only purpose serving for the
tained sheep for the which were a corral respondents’ land. A
kept fence is on boundary merely into a converted be
not statutory period exists for the
cause it Lindsay, longer. Larson v. Idaho Furthermore, (1958). P.2d 775
242, 327 appellants found that court trial actual, exclusive, open no
were hostile, posses
torious, visible and adverse dispute. property in This
sion substantial, compe
finding supported on not be disturbed
tent evidence will
appeal. af- judgment of the trial
The
firmed. respondents.
Costs to McFADDEN,
KNUDSON, J., and C. SMITH, JJ.,
TAYLOR and concur. *2 Pocatello, appellant. Racine, Jr.,
F.L. Tway, Legal F. Chief Counsel and Faber Hohler, Department Highways, Anton Boise, respondents. *3 Street for the purpose
Gould of making it a highway; 4-lane divided that during the course of construction of such highway said street was excavated 3 feet below its former and the level level property; thereby destroying egress and ingress to appellant’s property; that such condition ex- July 10, isted and continued until Appellant further that said con- reduced the struction accessible frontage on property to strips, his two 40-foot thereby substantially and materially impairing and thereto; obstructing respondent access built and maintained in the barrier raised destroyed highway, center of the egress ingress appellant’s property, public up- for him traveling and the direction; highway easterly on said in an appellant temporary de- total suffered struction of a means of property period con- during his struction, and that reason thereof property depreciat- market value of his ed and rendered useless valueless. KNUDSON, Appellant Chief follows: alleges further Justice. plaintiff, Appellant, as commenced this “That as alteration of a result permanent action to recover frontage to said and the Gould Street damages his real which abuts plaintiff’s property by real the construc- frontage approximately has a divided, high- tion of said four-lane *4 on, Street, Pocatello, in 150 feet Gould way, plaintiff’s Ida- ingress egress to the and ho, upon property operates which he a and property serv- real obstructed was and is impaired, ice station. It is in substantially materially com- and May 10, 1962, plaint, thereof, by plaintiff’s that on real defendant-re- and reason spondent value, property and commenced reconstruction of has been reduced enti- Three, plaintiff is not that the damages, in the plaintiff has suffered con- the damages because of tled $100,000.00.” sum of by me- of a raised struction defendants alleges an “alternative Appellant also of bound motorists depriving east dium unreasonably respondent has claim” that plaintiff’s premises.” access to ap- refused the of arbitrarily and demands was there no The court that egress means concluded pellant, a reasonable of for As con- ground to the property, and merit first raised. ingress his for himself and easterly court found ground, cerns the second the public traveling in an the liability alleged against re- direction, although that no was respondent has allowed spondent for obstruction of through median a convenient access said during egress ingress course of along high- the other said barrier to businesses construction, appellant allege since did way. period that the of time unreasonable was Respondent moved to dismiss the com- or that the obstruction or construction itself ground that “it fails plaint on to state arbitrary. unreasonable or In consid- was action which cause relief can of third ering ground, the court concluded appeal is from the trial granted.” This appellant right had no that vested granting motion. order said court’s flow continuation or maintenance argued orally was involved The motion past rerouting traffic his and that the trial and also submitted before power police and diversion of traffic are The “Memorandum Decision” of briefs. regulations. trial court filed constitutes a us, record before part of the the follow- This accept court has endorsed the quoted paragraph thereof ing discloses ed rule that not be should dis claim, were considered for failure to state a grounds missed unless it plaintiff clearly appears prove court: can support of facts in no set claim which his argument on the mo- “The briefs entitle him to would relief. Wackerli v. principal urge to dismiss three tion Martindale, 400, 782; 82 Idaho 353 P.2d being: These grounds dismissal. Conley Gibson, 99, 355 U.S. 78 S.Ct. One, to file claim plaintiff’s failure L.Ed.2d pri- with the State Board of Examiners Two, presentation filing action; During this case this oral its court, liability tempo- appellant stated in have no counsel for defendants to this rary appellant longer damag- no seeks obstruction effect and, construction; during allegedly resulting installation course of es from the *5 566 the appellants’ maintenance of raised barrier “We
and
in
therefore hold that
al-
highway
legedly destroyed
of the
to
right
the middle
referred
in
ac-
of business
appellant’s complaint,
IX of
paragraph
property,
and
to their
if such
cess
business
consequently
proven,
we will
further
be
taking
a
their
consider
constituted
of
damages.
claim
any
property,
accompanied
such
or not
whether
property,
by
taking
physical
a
of
and
quoted
have hereinbefore
paragraph
We
damage,
of
constituted an element
appellant’s complaint,
XI of
wherein it is
alleged taking
any
does also
element of
alleged in substance that as
result of
a
the
physical property, which must
of their
performed by
alteration and construction
be
in accord-
ascertained and assessed
appel-
respondent,
the
and
to
of
legislative
ance
the
mandate
with
is,
property was,
and
and
obstructed
lant’s
I.C. sec. 7-711.”
materially
substantially
impaired.
and
Falls,
Farris
su
City
v.
Twin
of
In
Pro
Rules
Civil
Under Idaho
pra,
a
this court had under consideration
cedure,
complaint
dismiss the
motion to
question
presented,
like
as is
held
here
claim
of a
to
because
failure
state
that
admits the
granted,
can
relief
“Appellants having alleged,
oth-
among
court,
complaint,
alleged in
facts
respondent
things,
city
er
caused
complaint,
in ruling
sufficiency
of the
to be constructed
obstruction to
an
light
in
most
must construe
the same
property
their
entrance to
and that
pleader.
v. Wil
favorable to the
Williams
reason thereof
market
the reasonable
liams,
451,
Idaho
82
567- authorities, and to work the street rule pensable.” We feel necessary repair and mainte- for its in- applicable or temporary construction nance, of other the construction clearly stated terference with access * ** incon- The public utilities. 596, 304, as follows: § Am.Jur. damage which a venience and temporarily obstruct right “The ob- *6 these owner suffers from by highways ne- is reasonable limited city and to life are incident structions therefore, obstruction, cessity. The him gives law must be endured. The or, time, temporary point must be in of relief, he right recognizing no words, only for other must continue recoups which damage in the benefit his necessary reasonably such a time is as public in the he shares the with accomplish purpose brings the being improvement ultimate which is existence, necessity about the for its law, however, afford made. The does character, it be reason- and as to must relief, city him a a if the or contractor The a able and lawful. existence of highway interferes the with without necessity obstruction reasonable for the authority; or, pro- acting legally, if and the reasonableness of the duration longs unnecessarily the work or unrea- depend upon the thereof circumstances sonably. The obstruction of streets case, respect of each and issues with highways, and or carried on the work present ques- usually to such matters nature, public in them rea- must be of of fact. It has been said tions public sonable necessary and for the rule safe reasonable to declare and improvement being which is made.” long so as the obstruction temporary is a If the obstruction temporary in its charac- and reasonable unreasonable, unnecessary, result of arbi ter, public safe- and intended for the trary or capricious acts or conduct convenience, ty it no and constitutes one in con charge improvement or complaint.” cause of struction, abutting has a landowner Rose, 73, N.Y. 170 In Farrell v. 253 right from damages resulting of action for 1505, 498, New 68 York N.E. A.L.R. prop such interference to his with access Appeals stated: Court 30 erty. City Angeles, Heimann v. of Los 746, 597; People rel. owner, Cal.2d 185 P.2d ex adjoining an “As Dept. Ayon, of Public Works v. 54 Cal.2d plaintiff right had to use the street 151, 519; 217, P.2d Okla premises, Cal.Rptr. his 352 highway front of 5 and Co., 183 City at all to the reasonable homa v. Collins-Dietz-Morris subject times 791; 264, No City Yale v. municipal 79 P.2d regulation and Okl. control 568 463; 106, Bailey
ble, stated, Bos 239 P. v. For the reasons 113 Okl. the order of dis- 537, Corp., R. 182 Mass. missal is ton and Providence reversed and the cause remanded Holbrook, 203; 171 N.Y. appellant’s 66 N.E. Bates v. for com- proceedings; further 460, 181; Thompson City plaint of Mo ap- 64 v. N.E. is ordered reinstated and should bile, 523, 862; pellant 240 Hart Bros. complaint Ala. 199 So. desire to amend his County, Tex.Com.App., v. Dallas trial grant 279 S.W. time may reasonable 1111; American appellant. Construction Co. v. Cas therefor. Costs to well, Tex.Civ.App., 1013; 141 S.W. North McFADDEN, McQUADE, Transportation TAYLOR City
ern Chicago, Co. SMITH, JJ., 336; concur. L.Ed. 2 99 U.S. See Nich also Domain, 395; ols, Eminent 25 Am.Jur. ON DENIAL PETITION FOR OF 154, 304, 311; Highways, and anno §§ REHEARING in 68 A.L.R. tations KNUDSON, Chief Justice. disagreement not in with areWe statement, presented quoted petition rehearing last above The foregoing deci- respondent his that he clear from seeks asserts it is uncertainty to whether total destruction of damages sion “creates may regulate traf- property. respondent How not the State to his *7 high- ever, period entering leaving fic the state’s allege he does not that the opin- ways.” find in are unable to con We time involved or or that the obstruction any justification for such conclusion. created, unnecessary, unrea ion struction was sonable, arbitrary, or that reason and for upon ap presented this The issue appellant upon allege claim has failed peal the district court erred is whether may granted relief be for defendant’s-respondent’s granting motion obstruction his access. or interference with complaint. It al is dismiss repeat to here proper it We deem “as result of leged in the * * * dismiss, presented under that a motion to alterations viewed 12(b) generally plaintiff’s been real (6), IRCP has * * * evidence, probable waste with ”. No disfavor because of obstructed is otherwise, or was submitted to or or a dismissal affidavit of time in of a reversal case primary ob -by passing district court in of the action and because- considered jective a determina to dismiss. The existence upon of the law is to obtain the motion alleged obstruction, tion v. of the the claim. Wackerli extent of if merits Martindale, supra. any, must be established before it can be
5(J9 not, is, appellant or determined cited in any cases relief. The
entitled to rehearing not
respondent’s petition do plead dismiss on the motion to
involve a jury to trial before a
ings, each case went stipulated court. upon facts to the does it does not hold nor
This decision any that each of the al-
justify inference complaint involv-
legations in the contained may
ed claim which relief states a However, say
granted. we that it does do beyond plaintiff appear doubt any support prove
cannot set facts re- which would him to
his claim entitle rehearing Respondent’s petition
lief.
denied.
McOUADE, McFADDEN, TAYLOR SMITH, JJ., concur.
Donald COMPANY, &
BEKINS MOVING STORAGE Defendant-Appellant.
No. 9292.
Supreme Court Idaho.
Nov.
Rehearing Denied Feb.