This ease arose after New Sweden Irrigation District (“New Sweden”) mowed the canal banks on Bradley Morgan’s property. Morgan claimed New Sweden negligently damaged his property. New Sweden counterclaimed for a declaratory judgment as to its easement’s existence and scope, and then moved for summary judgment. The Bonneville County district court granted partial summary judgment, holding that New Sweden’s easement was sixteen feet wide and New Sweden was not liable for damaged items within its easement. The district court denied summary judgment as to Morgan’s claim for damaged items outside the easement. At trial, the court held that Morgan failed to establish that New Sweden caused damage outside its easement. Morgan appeals the district court’s grant of partial summary judgment and the court’s trial judgment in favor of New Sweden. We remand to the district court for the court to enter a judgment that describes the precise location where the easement’s sixteen-foot width measurement begins. We otherwise affirm the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 25, 2009, New Sweden mowed the canal banks along Morgan’s property in Bonneville County. New Sweden is an irrigation district in Bonneville County that supplies irrigation water through canals. Because New Sweden owns the canal, it also holds an easement along the canal’s banks. New Sweden owns two commercial mowers that it has used since 1995 to maintain its 125 miles of canals. These mowers each use a tractor with a hydraulic arm mower that is raised and lowered electronically.
Morgan’s property has several structures within sixteen feet of the canal bank. Morgan also has a tree that has grown eight feet from the canal for over thirty-five years. Several Russian Olive trees and wild roses grew along the canal banks. Before June 25, 2009, New Sweden had never asked Morgan to remove the structures or the plants. However, New Sweden and Morgan did once jointly remove Russian Olive trees. Morgan also has a well and a barn about twenty feet from the canal. Morgan installed these items without New Sweden’s permission.
On June 25, 2009, Morgan left his property to go to work. That same morning Kail Sheppard, New Sweden’s manager, told his employee, Kent Ockerman, to mow Morgan’s property. Ockerman had mowed for New Sweden for about ten years and was trained on the mowers. Sheppard instructed his employees to remain within the easement when possible and to be “way more careful” when traveling outside the easement. Ockerman entered Morgan’s property along the south side of Morgan’s barn due to obstructions near the canal. Once on the property, Ockerman drove to the canal’s edge and backed up behind Morgan’s barn. While turning around, he saw a pile of pipes under the barn’s stairway and intentionally avoided the pipes and stairway. Ockerman then left the easement to get around a tree, which he accomplished by turning off the mower blades and raising the mower. Ockerman stated that he knew he did not hit or damage any structure because the mower makes a noise and vibrates when it strikes a solid object.
While at work, Morgan was informed that New Sweden had mowed his property. Morgan met Ockerman and Sheppard on his property to discuss his concerns. That discussion became heated, and Sheppard called the Bonneville County Sherriffs Office. Morgan testified at trial that the next day he found damage to the stairway and discovered the well had lost water pressure. Morgan met with New Sweden’s Board of Directors a month later, but never mentioned damage to the well or stairway. Morgan also submitted a Claim for Damage form to New Sweden
Morgan filed a complaint on October 20, 2010, alleging New Sweden was negligent when it mowed his property. He sought to recover damages to plants, sprinklers, outbuildings, and a well. He never mentioned a stairway. New Sweden timely filed its answer. On July 12, 2011, New Sweden filed a counterclaim for (1) declaratory judgment that it held an easement; (2) declaratory judgment regarding the easement’s scope; (3) removal of all physical encroachments on the easement; and (4) an injunction preventing Morgan from restricting New Sweden’s access to the easement.
New Sweden then filed a summary judgment motion with supporting affidavits from Oekerman and Sheppard. New Sweden asked the district court to dismiss Morgan’s complaint and grant New Sweden’s counterclaim. Morgan opposed summary judgment with his affidavit and a neighbor’s affidavit. These affidavits stated that New Sweden had never used its mower on Morgan’s property before, Morgan had always maintained his property himself, and his neighbor had also maintained the canal banks. Morgan’s photos also showed that while his lawn was neatly maintained, other property owners in the area did not maintain their canal banks. The district court partially granted New Sweden’s summary judgment motion. Specifically, the court: (1) granted New Sweden’s counterclaim for declaratory relief; (2) dismissed Morgan’s claim for damage to items within the sixteen-foot easement; (3) denied dismissal of Morgan’s claim for damage to items outside the easement; and (4) denied Morgan’s motion to add a claim for declaratory relief. The district court also held that New Sweden’s easement was sixteen feet wide, vegetation removal within the easement was reasonable, Morgan must remove structures that unreasonably encroached on the easement, and New Sweden was not liable for damaged items within the easement.
Morgan filed a motion to reconsider and a supporting affidavit. The district court denied this motion, holding that Morgan had not presented the court with any new law or argument. The court held that outbuildings, sprinklers, and a garden unreasonably interfered with New Sweden’s ability to occupy the canal banks with its equipment.
Morgan’s remaining claim on whether New Sweden negligently damaged his property outside the easement went to trial. Morgan claimed New Sweden damaged the barn’s stairway, which he knew because the day before New Sweden mowed the stairway was undamaged, but the day after it was damaged. Morgan also claimed New Sweden damaged the well because it operated properly before New Sweden mowed and did not after the mowing. He testified that a well drilling service inspected the well and found a broken joint twenty-five feet below the surface. However, no witness testified that Oekerman hit the stairway or well, and no photo at trial showed damage to the stairway or well. The only evidence Morgan provided was testimony that the broken joint lacked rust, which suggested the break was recent.
The district court held that New Sweden was not liable because New Sweden did not breach its duty of care on Morgan’s property outside of the easement, res ipsa loquitur did not apply, and if comparative negligence applied, Morgan was at least as negligent as New Sweden. The court then entered its final judgment. Morgan timely filed his amended notice of appeal.
II. ISSUES ON APPEAL
1. Whether the district court erred in granting summary judgment as to the scope of New Sweden’s easement.
2. Whether the district court erred in granting summary judgment when the court ordered Morgan to remove all encroachments within New Sweden’s easement.
3. Whether the district court abused its discretion in concluding that New Sweden did not breach a duty of reasonable care or cause damage to Morgan’s stairway and well.
4. Whether either party is entitled to attorney fees on appeal.
Morgan appeals the district court’s grant of partial summary judgment and trial judgment in favor of New Sweden. Morgan argues that the district court did not construe all disputed facts in his favor on summary judgment, improperly construed the easement’s width, and improperly ordered Morgan to remove all encroachments within the easement. Morgan further argues the district court’s trial judgment was improper. New Sweden counters that the district court properly interpreted the statutes and Morgan never rebutted that New Sweden needed sixteen feet to maintain the canal. We affirm the district court’s judgment.
A. The district court properly granted summaiy judgment as to the scope of New Sweden’s easement.
We review a district court’s grant of summary judgment using the same standard the district court used in ruling on the motion.
Buckskin Props., Inc. v. Valley Cnty.,
1. We will not consider whether other property owners should he included.
Morgan initially argues that New Sweden’s declaratory action to establish its easement’s scope should have named other property owners. However, whether other property owners should have been named is a new issue Morgan raised on appeal. We do not consider issues raised for the first time on appeal.
Crowley v. Critchfield,
2. The district court properly construed the scope of New Sweden’s easement.
The parties agree New Sweden has an easement over Morgan’s property along the canal, but dispute the easement’s scope. The district court held that there was no genuine dispute that New Sweden’s easement was sixteen feet wide because Morgan failed to offer contradictory evidence regarding the space needed to operate equipment. Morgan argues that the district court erred in applying I.C. § 42-1102 and § 42-1209 because Morgan’s affidavits show New Sweden’s use was not reasonable and necessary.
An easement is the right to use another’s land for a specific purpose.
McKay v. Boise Project Bd. of Control,
An easement’s width is generally a factual question, but when only one party presents evidence of width, there is no genuine issue of material fact and summary judgment is proper.
See Turner v. Cold Springs Canyon Ltd. P’ship,
Here, Sheppard stated that New Sweden needed sixteen feet to properly maintain the canals. He also stated that the equipment commonly used to maintain New Sweden’s 125 miles of canals was a large mower with side and trailing mowers, and that other irrigation districts also used this same type of mower to maintain canals. These facts establish a sixteen-foot easement unless Morgan provides contradictory facts.
When all material facts are construed in Morgan’s favor, it still is undisputed that sixteen feet was “necessary to properly do the work” with “commonly used” equipment. Morgan’s affidavits do not rebut these facts. Instead, those affidavits only show that other property owners had encroachments and Morgan had always mowed the canal himself. New Sweden provided competent evidence from those experienced in the field that it used a mower that needed sixteen feet of flat surface to properly maintain the canal and that other irrigation districts commonly used the same type of mower. Morgan provided only his opinion that he could mow the canal himself. Thus, the district court correctly held that Morgan “failed to offer contradictory evidence regarding the space needed to operate equipment commonly used to clean and maintain the canal” and properly granted summary judgment as to a sixteen-foot easement.
Morgan contends that
Nampa & Meridian Irr. Dist. v. Washington Fed. Sav.,
Also, Morgan argues that the district court erred by not explaining where the easement’s width starts and ends, and where New Sweden may access its easement. Morgan is mostly concerned about the easement’s width: whether it starts in the middle of the canal, the top of the canal’s banks, or the high water mark. A judgment that determines an easement’s existence on another’s land “must set forth the location, width, and length of the easement in order that conflicts between landowners may be avoided.”
Bedke v. Pickett Ranch & Sheep Co.,
Here, the district court noted that the “right-of-way is sixteen (16) feet wide on each side of the irrigation canal based on the type of equipment that is commonly used to clean, maintain, or repair the irrigation canal” and “runs the length of Bradley Morgan’s western boundary.” This means the easement is sixteen feet wide all along the canal that runs on the western side of Morgan’s property. However, a court’s general grant of “sixteen feet” does not necessarily ensure all parties affected readily understand and comply with the requirements. Here, the description is more than general because it notes that sixteen feet extends from “each side of the irrigation canal.” But nowhere in the judgment does the district court specifically state where “each side of the irrigation canal” begins. Sheppard stated in his affidavit that the mower needs “16 feet of flat
Morgan also contends that the district court’s judgment allows New Sweden to cross Morgan’s property at any place along the canal bank. Morgan appears to worry about this because a power transformer, a fence, and a head gate obstruct the entrance to the easement from Morgan’s property boundaries. Idaho Code section 42-1102 gives New Sweden the right to enter the non-easement property to clean and maintain the canal, and provides: “The right-of-way shall include, but is not limited to, the right to enter the land across which the right-of-way extends, for the purposes of cleaning, maintaining and repairing the ditch____” However, entry must take place in “a reasonable manner as not to increase needlessly the burden on the servient estate.”
Bedke,
B. The district court properly concluded that Morgan must remove encroachments.
Morgan’s property had several structures, a tree, and other plants (including Russian Olive trees and wild rose bushes) within sixteen feet of the canal bank. Morgan contends that New Sweden could not remove encroachments within the easement because he did not need written permission for those encroachments and New Sweden did not prove as a matter of law that his encroachments were unreasonably interfering with the easement. Morgan also contends that New Sweden is not unequivocally entitled to damage anything inside of its easement because the easement holder has the burden to show unreasonable interference.
The legislature addressed when an irrigation district could remove encroachments in I.C. § 42-1209 and § 42-1102. Idaho Code section 42-1209 provides:
Encroachments of any kind placed in such easement or right-of-way, without such express written permission shall be removed at the expense of the person or entity causing or permitting such encroachments, upon the request of the owner of the easement or right-of-way, in the event that any such encroachments unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way.
Idaho Code section 42-1102 has almost identical language.
1
Thus, a landowner must remove an encroachment that: (1) was constructed after I.C. § 42-1209’s effective date in 2004, (2) was constructed without permission, and (3) interferes unreasonably or materially with the use and enjoyment of the easement.
Pioneer Irr. Dist.,
The first issue is whether Morgan needed written permission for his encroachments. The district court noted Morgan needed written permission because I.C. § 42-1102 and § 42-1209 both provide that “no person or entity shall cause or permit any encroachments” to the right-of-way without written
New Sweden argues that whether structures pre-dated I.C. § 42-1209 and § 42-1102 is irrelevant because the legislature made I.C. § 42-1102 apply to canals already existing when those statutes became effective. To support its argument, New Sweden refers to I.C. § 42-1102’s last sentence: “This section shall apply to ditches, canals or other conduits existing on the effective date of this act, as well as to ditches, canals or other conduits constructed after such effective date.” However, this plain language specifies that I.C. § 42-1102 applies to canals, but never mentions encroachments to canals. Also, in
Pioneer
we explained that to remove an encroachment “the encroachment must have been constructed after the effective date of I.C. § 42-1209, as the statute’s provision for ‘such express written permission,’ which clearly references preceding language in the statute, was not a requirement prior to that date.”
Instead, we must use the case law that existed prior to these statutes. A servient estate owner “is entitled to make uses of the property that do not unreasonably interfere with the dominant estate owner’s enjoyment of the easement.”
Nampa & Meridian Irr.,
The district court concluded that Morgan could use his land within the easement, but not “in a manner that unreasonably burdens New Sweden’s right to occupy the area with equipment it commonly uses to clean and maintain” the canal. The court also dismissed the complaint for items damaged within the easement because of New Sweden’s statutory duty to maintain the canal and its banks. The district court’s final judgment asserted that New Sweden was entitled to clean the canal within its easement and “that any and all encroachments located within the sixteen (16) foot right-of-way ... must be removed.”
Morgan relies on
Nampa & Meridian Irrigation
to argue that a lack of prior heavy equipment maintenance means that Morgan’s encroachments did not unreasonably interfere with the easement. There, we noted that the irrigation district provided no record of canal maintenance with heavy equipment for over twenty years and this lack of prior use suggested that the district’s “activity will be so infrequent that its easement rights will not be unreasonably interfered with.”
Nampa & Meridian Irr.,
Whether a landowner’s particular use unreasonably interferes with the easement holder’s enjoyment of the easement is a question of fact.
See Nampa & Meridian Irr.,
Additionally, Morgan argues that the district court erred by denying his motion for leave to amend to add a claim for declaratory relief because the claim would have compelled the district court to address necessary issues. This Court does not consider an issue when an argument generally attacks the district court’s findings and conclusions without any specific reference to evidentiary or legal errors.
Bettwieser v. New York Irr. Dist,
We affirm the district court’s decision. Again, our holding does not mean that an irrigation district can do whatever it wants within its easement. Our holding also does not leave a landowner with no recourse for activities within an irrigation district’s easement. Our holding is narrowly limited to the facts and affidavits in this case.
C. The district court did not abuse its discretion in awarding judgment to New Sweden.
Morgan’s case went to trial only on one issue: whether New Sweden negligently caused damages outside the easement. Negligence requires (1) a legal duty that requires a defendant to conform to a certain standard of conduct; (2) breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.
Grabicki v. City of Lewiston,
On appeal, we limit our review of the district court’s decision to whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law.
Nampa & Meridian Irr.,
[i]t is the province of the district judge acting as trier of fact to weigh conflicting evidence and testimony and to judge the credibility of the -witnesses. We will not substitute our view of the facts for the view of the district court. Instead, where findings of fact are based on substantial evidence, even if the evidence is conflicting, those findings will not be overturned on appeal.
Id. (internal citations omitted).
1. Res ipsa loquitur
At trial Morgan argued that res ipsa loquitur applied to show that New Sweden breached its duty of care. Res ipsa loquitur “creates an inference of the breach of the duty imposed and replaces direct evidence with a permissive inference of negligence.”
Christensen v. Potratz,
We have stated that for res ipsa loquitur to apply it is “necessary that the cause of the injury point to the defendant’s negligence.”
S.H. Kress & Co. v. Godman,
Here, Morgan never established that the well and staircase damage would not have happened without New Sweden’s negligence. Morgan alleged that the stairway was undamaged before Ockerman mowed and damaged immediately after. However, that temporal proximity is similar to the temporal proximity between the boiler repair and explosion in Godman. In both cases, there were other probable causes. Here, the stairway was over twenty years old. The well was thirty-five years old. Morgan never presented any other evidence that New Sweden caused the damage. Thus, res ipsa loquitur does not apply.
2. Cause
Morgan argues the district court erred by not allowing him to establish causation with expert testimony. The decision to admit expert testimony “is within the sound discretion of the trial court, and will not be overturned except upon a showing of abuse of discretion.”
Kolln v. St. Luke’s Reg’l Med. Ctr.,
Substantial evidence supports the district court’s finding of no causation because it could have found New Sweden’s direct evidence outweighed Morgan’s circumstantial evidence. Ockerman’s direct testimony was that the mower never contacted the stairway or well because he did not notice the noise and vibration that the mower makes when it strikes a solid object. Morgan’s evidence was that the day before New Sweden mowed the well and stairway were undamaged, but the day after the stairway was damaged and the well had no water pressure. Morgan also provided testimony that the well drilling service found a broken joint twenty-five feet below the ground. That joint was not rusted, which Morgan suggested meant the break was recent. The district court merely had a choice of which presentation was more credible. The court decided for New Sweden. Substantial competent evidence supports that choice. Thus, we hold the district court did not abuse its discretion when it held Morgan did not establish that New Sweden caused the damage. Therefore, the district court properly found New Sweden was not negligent and entered a judgment in favor of New Sweden.
D. Neither party is entitled to attorney fees on appeal.
Morgan argues he is entitled to attorney fees on appeal pursuant to I.C. § 12-121 because New Sweden pursued its declaratory judgment frivolously. This statute awards attorney fees to the prevailing party. Because we affirm part of the district court’s judgment, Morgan is not the prevailing party-
New Sweden seeks attorney fees under I.C. § 12-117. A court awards reasonable attorney fees under I.C. § 12-117 to the prevailing party.
City of Osburn v. Randel,
IV. CONCLUSION
We remand for the district court to enter a judgment that describes the precise location where the easement’s sixteen-foot width measurement begins. We otherwise affirm the district court’s judgment. No attorney fees are awarded on appeal. Costs to New Sweden.
Notes
. Idaho Code section 42-1102 states:
Encroachments of any kind placed in such right-of-way without express written permission of the owner of the right-of-way shall be removed at the expense of the person or entity causing or permitting such encroachment, upon the request of the owner of the right-of-way, in the event that any such encroachments unreasonably or materially interfere with the use and enjoyment of the right-of-way.