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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33587/33694
DENNIS LYLE AKERS and SHERRIE L.             )
AKERS, husband and wife,                     )
)
Plaintiffs-Respondents,                      )
)
v.                                           )
)
VERNON J. MORTENSEN and MARTI E.             )
MORTENSEN, husband and wife,                 )
                                             )   Lewiston, March 2008 Term
Defendants-Appellants,                       )
                                             )   2008 Opinion No.   68
and                                          )
                                             )   Filed:  June 4, 2008
D.L. WHITE CONSTRUCTION, INC.,               )
DAVID L. WHITE and MICHELLE V.               )   Stephen Kenyon, Clerk
WHITE, husband and wife,                     )
)
Defendants.                                  )
DENNIS  LYLE  AKERS  and  SHERRIE  L.        )
                                             )
AKERS, husband and wife,
                                             )
)
Plaintiffs-Respondents,
                                             )
v.                                           )
)
)
D.L. WHITE CONSTRUCTION, INC.,
)
DAVID L. WHITE and MICHELLE V.
WHITE, husband and wife,                     )
)
)
Defendants-Appellants,
)
)
and
                                             )
VERNON J. MORTENSEN and MARTI E.             )
                                             )
MORTENSEN, husband and wife,
                                             )
)
Defendants.
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Appeal from the District Court of the First Judicial District of the State of Idaho,
Kootenai County.  Honorable John T. Mitchell, District Judge.
The findings of fact and conclusions of law of the district court are vacated, and
the case is remanded.
Givens Pursley, LLP, Boise, for appellants Mortensen.  Terri Yost argued.
Robert Covington, Hayden, for appellants White.
James Vernon & Weeks, P.A., Coeur d’Alene, for respondents.   Susan Weeks
argued.
HORTON, Justice
This appeal arises from a bench trial concerning an easement and trespass dispute.
Vernon and Marti Mortensen, David and Michelle White, and D.L. White Construction, Inc.
(hereinafter  collectively  referred  to  as                                                          “Appellants”)    appeal  the  district  court’s  judgment
regarding the existence, scope, and location of Appellants’ easement across Respondents Dennis
and  Sherrie  Akers’  property  and  the  district  court’s  award  of  compensatory  and  punitive
damages  for  trespass  and  emotional  distress.    This  Court  previously  decided  an  appeal
concerning this case in Akers v. D.L. White Constr., Inc., 142 Idaho 293, 127 P.3d 196 (2005)
(Akers I).   We vacate the judgment and remand the case for further proceedings consistent with
this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are set out in detail in Akers I.   There are four parcels of property
involved in this case: “Government Lot 2,” “Parcel A,” “Parcel B” and the “Reynolds Property.”
The four parcels are rectangular and meet together at a four-way corner.   Government Lot 2 is
located to the northeast, and Parcel B is to the northwest.   The Akers own the southwestern
corner of Government Lot 2 and the southeastern corner of Parcel B.   Parcel A is located to the
southwest and much of Parcel A, including that adjoining Parcel B, is owned by the Whites.  The
Mortensens own a portion of Parcel A located to the south of that owned by the Whites.   The
Reynolds Property is located to the southeast and is not owned by any of the parties to this
litigation.   Together, the Whites and Mortensens plan to subdivide and develop their respective
properties.
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Government Lot 2 is bisected roughly north to south by a county road, Millsap Loop
Road.   Appellants hold an easement for ingress and egress to Millsap Loop Road across portions
of the Akers’ property.    Because the properties meet at a four-way corner, Parcel A and
Government Lot 2 do not actually share a border.   It is therefore physically impossible to access
Parcel A from Millsap Loop Road in Government Lot 2 without also passing through some other
property.
The Akers acquired their real property in  1980.    At the time of acquisition, a road
provided access to Parcel A, running through the southern portion of Government Lot 2 and the
southeastern corner of Parcel B.   The access road was connected to Millsap Loop Road by an
approach (the original approach) that turned sharply north from the access road, which runs east
to west.   The original approach was located on a blind curve in Millsap Loop Road.   In order to
obtain a building permit, the Akers were required to alter the entrance point of the access road
where it connects to Millsap Loop Road, so that the entrance had a 30-foot line of sight in each
direction of Millsap Loop Road.   The Akers constructed a new approach (the curved approach),
which starts to turn earlier and curves more gently to the north before meeting Millsap Loop
Road.   The Akers eventually quarreled with the Whites’ predecessors in interest, the Peplinskis,
over the Peplinskis’ use of the access road, leading to the Peplinskis filing a lawsuit.   The
Peplinski/Akers suit ended in 1994 when the Peplinskis sold their property, including Parcel A,
to the Mortensens.  The Mortensens later sold much of Parcel A, including that portion adjoining
Parcel B, to the Whites.
In January 2002, the Akers blocked Appellants’ use of the curved approach to the access
road and forbade Appellants from traveling on the western end of the access road where it passes
through Parcel B before connecting to Appellants’ property in Parcel A.  Appellants then brought
in heavy equipment, including a bulldozer, to carve a route around the Akers’ gate and to
otherwise alter the access road.   This led to a series of confrontations between the Akers and
Appellants, as well as alleged damage to the Akers’ property and alleged malicious behavior by
Appellants.
In response, the Akers filed the instant action for trespass, quiet title, and negligence.
During the trial, the district court personally viewed the access road and property in question.
The district court confirmed to Appellants an express easement 12.2 feet in width across the
Akers’  property  in  Government  Lot  2,  through  the  original  approach,  but  not  the  curved
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approach, to Millsap Loop Road.   Although the district court confirmed Appellants’ easement
across part of the Akers’ land, the court found that the easement ended at the western boundary
of Government Lot 2 and did not cross into the Akers’ property in Parcel B.
The  district  court  also  awarded  the  Akers  compensatory  damages  arising  from
Appellants’ trespass in the amount of $17,002.85, which was trebled pursuant to  I.C. § 6-202 for
a total of $51,008.55, to be paid by Appellants jointly and severally.  Sherrie Akers was awarded
$10,000 in compensatory damages for emotional distress, also to be paid jointly and severally by
Appellants.  Additionally, the district court entered punitive damage awards in favor of the Akers
against the Mortensens in the amount of $150,000 and against the Whites in the amount of
$30,000.   Finally, the district court granted an award of costs and attorney fees to the Akers, to
be paid jointly and severally by the Mortensens and Whites, in the amount of $105,534.06.
Appellants appealed from that judgment and the dispute came before this Court in Akers
I.                                                                                                    This  Court  remanded  the  case  to  the  district  court  for  additional  fact  finding  and  a
determination regarding whether Appellants were entitled to a prescriptive easement or an
easement implied from prior use.   Additionally, we vacated the award of damages, costs, and
attorney fees for further consideration in light of the district court’s conclusions on remand
regarding the scope of Appellants’ easement rights.
On remand, the district court concluded that Appellants were not entitled to an implied
easement from prior use because the access road was not reasonably necessary for the enjoyment
of the dominant estate, Parcel A.   The district court based this conclusion of law on its finding
that, at the time of the severance of the dominant estate from the servient estate, there was a
second road that provided access to Parcel A.   The district court concluded that Appellants were
entitled to a prescriptive easement across Government Lot 2, 12.2 feet in width, which was
coextensive with the scope and location of the express easement.   The district court also found
the prescriptive easement passed from Government Lot 2 into Parcel B and immediately turned
ninety degrees to the south to provide access to Parcel A.   Based on these findings of fact and
conclusions of law, the district court reinstated the award of damages, costs, and attorney fees
from Akers I, and awarded the Akers their costs and attorney fees on remand.   Appellants timely
appealed from the district court’s order on remand.
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II. STANDARD OF REVIEW
Review of a trial court’s decision is limited to ascertaining whether the evidence supports
the findings of fact, and whether the findings of fact support the conclusions of law.   Benninger
v. Derifield,  142 Idaho  486,  488,  129 P.3d  1235,  1237  (2006)  (citing Alumet v. Bear Lake
Grazing Co., 119 Idaho 946, 949, 812 P.2d 253, 256 (1991)).   Since it is the province of the trial
court to weigh conflicting evidence and testimony and to judge the credibility of the witnesses,
this Court will liberally construe the trial court’s findings of fact in favor of the judgment
entered.   Rowley v. Fuhrman, 133 Idaho 105, 107, 982 P.2d 940, 942 (1999) (citing Sun Valley
Shamrock Res., Inc. v. Travelers Leasing Corp.,  118 Idaho  116,  118,  794 P.2d  1389,  1391
(1990)).   A trial court’s findings of fact will not be set aside on appeal unless the findings are
clearly erroneous.   Ransom v. Topaz Mktg., L.P., 143 Idaho 641, 643, 152 P.3d 2, 4 (2006)
(citing Camp v. East Fork Ditch Co., Ltd.,  137 Idaho  850,  856,  55 P.3d  304,  310  (2002);
Bramwell v. South Rigby Canal Co., 136 Idaho 648, 650, 39 P.3d 588, 590 (2001); I.R.C.P
52(a)).   If the findings of fact are based upon substantial evidence, even if the evidence is
conflicting, they will not be overturned on appeal.   Benninger, 142 Idaho at 489, 129 P.3d at
1238 (citing Hunter v. Shields, 131 Idaho 148, 151, 953 P.2d 588, 591 (1998)).   This Court will
not substitute its view of the facts for that of the trial court.  Ransom, 143 Idaho at 643, 152 P.3d
at 4 (citing Bramwell, 136 Idaho at 648, 39 P.3d at 588).   The findings of the trial court on the
question of damages will not be set aside when based upon substantial and competent evidence.
Trilogy Network Sys., Inc. v. Johnson, 144 Idaho 844, 846, 172 P.3d 1119, 1121 (2007) (citing
Idaho Falls Bonded Produce Supply Co. v. General Mills Rest.   Group, Inc., 105 Idaho 46, 49,
665 P.2d 1056, 1059 (1983)).
III. ANALYSIS
Both sides to this appeal ask this Court to finally resolve their dispute.   We are unable to
fulfill their requests.   We conclude that the district court’s factual findings were based, in part,
upon impermissible reliance on a viewing of the property.   Normally, we would remand the case
to the district court for additional findings of fact and conclusions of law consistent with this
opinion.  However, the parties have displayed a high degree of animosity towards each other and
the district judge.   We conclude that it is in the best interest of all parties involved, including the
district judge, to vacate the judgment and remand the case for a new trial before a different
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district judge.   Although this remedy is rarely exercised by this Court, we find it best serves the
interest of justice.
A. The district court erred when making factual findings relating to the scope and
location of Appellants’ prescriptive easement.
The district court relied upon its personal on-site view of the subject property to find
certain  facts  relating  to  the  scope  of  Appellants’  prescriptive  easement.    This  was  error.
Additionally, the district court’s finding regarding the location of the easement on Parcel B was
not supported by substantial and competent evidence.
The district court’s finding that Appellants’ prescriptive easement was 12.2 feet wide was
based substantially on its view of the property.    The district court specifically found that:
“[Appellants’] argument that the easement should be 25 feet wide is simply unsupported by the
record and a view of the premises.”  Appellants argued that the easement should be 25 feet wide,
including ditches and shoulders.   The district court, however, found that: “The view and the
exhibits show that not all of the length of the roadway has ditches on either or both sides, nor did
the view show any consistent ‘shoulders.’”   We conclude that the district court’s reliance on its
site view was error.  It is well established in Idaho that the knowledge obtained by a jury view of
a premises can only be used to determine the weight and applicability of the evidence introduced
at trial and that a view of the premises “is not of itself evidence upon which a verdict may be
based.”   Tyson Creek R.R. Co. v. Empire Mill Co., 31 Idaho 580, 590, 174 P. 1004, 1007 (1918).
When construing a prior Idaho statute that permitted a jury to view the premises in question, this
Court held: “‘The purpose of the statute is not to permit the taking of evidence out of court, but
simply to permit the jury to view the place where the transaction is shown to have occurred, in
order that they may the better understand the evidence which has been introduced.’”   State v.
McClurg, 50 Idaho 762, 796, 300 P. 898, 911 (1931) (quoting State v. Main, 37 Idaho 449, 459,
216 P. 731, 734 (1923)).   Although these cases involve a viewing of the property by a jury, for
purposes of appellate review, there is no analytical difference between a jury view and a court
view.   The policy underlying this rule of law is clear:   the record must reflect the evidence upon
which the finder of fact made its decision.   This Court is simply unable to evaluate the basis of
factual determinations made upon the basis of a view.
These rules remained intact when this Court adopted the Idaho Rules of Civil Procedure
in 1958.  Under I.R.C.P. 43(f), during a trial, the court may order that the court or jury may view
the property that is subject to the action.  This Court addressed the substantive weight afforded to
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a court view in Lobdell v. State ex rel. Bd. of Highway Dir., a case involving an inverse
condemnation.                                                                                              89 Idaho 559, 407 P.2d 135 (1965).   In Lobdell, after the judge had viewed the
property in question, the district court granted an offset to the plaintiff for restoration of access to
their property that had been limited by curbing constructed by the defendant.   Id. at 563, 407
P.2d at 137.  This Court held the district court erred when it entered findings based on the results
of an examination of the premises and noted that an inspection of the premises is only useful to
evaluate and apply the evidence submitted at trial.  Id. at 567-68, 407 P.2d at 139-40.
Idaho is not alone in adhering to this rule:   Bd. of Educ. of Claymont Special Sch. Dist v.
13 Acres of Land in Brandywine Hundred, 131 A.2d 180 (Del. 1957); Dade County v. Renedo,
147 So.2d  313  (Fla.  1962); Derrick v. Rabun County,  129 S.E.2d  583  (Ga.  1963); State v.
Simerlein, 325 N.E.2d 503 (Ind. App. 1975); Guinn v. Iowa & St. L. R. Co., 109 N.W. 209 (Iowa
1906);  State v. Lee, 63 P.2d 135 (Mont. 1936); State by State Highway Comm’r v. Gorga, 149
A.2d  266  (N.J.  1959); Myra Found. v. U.S.,  267 F.2d  612  (8th Cir.  1959)  (applying North
Dakota law); In re Appropriation of Worth, 183 N.E.2d 159 (Ohio 1962); Port of Newport v.
Haydon, 478 P.2d 445 (Or. App. 1970); Durika v. Sch. Dist. of Derry Township, 203 A.2d 474
(Pa. 1964); Ajootian v. Dir. of Pub. Works, 155 A.2d 244 (R.I. 1959) (stating rule in dicta only);
Townsend v. State, 43 N.W.2d 458 (Wis. 1950).
As previously noted, the district court found that the prescriptive easement turned ninety
degrees to the south from the access road immediately upon entering Parcel B.   This finding was
not supported by substantial and competent evidence.   The district court found that historically,
the prescriptive easement                                                                                  “turned south on to defendants’  land”  and                                       “‘disappeared’” after
crossing into Parcel B.   We have carefully examined the exhibits upon which both Appellants
and Respondents rely, as well as those addressed by the district court in its Order on Remand.
There was testimony in the record, offered by Richard Peplinski, that the prescriptive easement
traveled in a western direction across Parcel B for at least 125 feet before it curved onto his
property to provide access to a Quonset hut.   Although the Akers claim that the evidence on this
subject is conflicting, we are not so persuaded.  The aerial photograph upon which the Akers rely
clearly shows a roadway resembling a shepherd’s crook, extending well east into Parcel B before
curving back to the southwest toward the Quonset hut.   The exhibits offered by the Respondents
are similar.  All exhibits are consistent with Peplinski’s testimony and reveal that the access road
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traveled east into Parcel B before curving back towards the Quonset hut on Parcel A.   For these
reasons, we find this finding to be clearly erroneous.
The district court erred when it relied on its site view to find the scope of the easement
and the district court’s finding regarding the location of the easement on Parcel B is not based
upon substantial and competent evidence.   Therefore, the judgment establishing the location and
scope of Appellants’ easement must be vacated.
B.  The district court’s award of compensatory and punitive damages must be vacated.
The district court also erred when it reinstated the damage award from Akers I.   That
damage award was based, in part, upon the district court’s view of the premises.   The district
court awarded the Akers trespass damages resulting from Appellants’ efforts to improve the road
on Parcel B.   These improvements consisted of excavation and the dumping of fill to provide a
road base.   The district court found that these activities occurred to the west of where it located
Appellants’ prescriptive easement on Parcel B.   We have determined that the district court’s
factual finding as to the location of the easement on Parcel B is clearly erroneous.   The district
court specifically found that it had  “viewed the area, and f[ound] such excavation to have
occurred further to the west of where the road immediately went into what would be the exact
northeast corner of what is now [Parcel A].”  The damage award also compensated the Akers for
Appellants’ trespass outside the scope of Appellants  12.2-foot prescriptive easement across
Government Lot 2.   As indicated above, the district court’s finding that the scope of Appellants’
prescriptive easement was 12.2 feet in width was based upon the district court’s view of the
premises.  Accordingly, the entirety of the trespass damages award must be vacated.
The district court’s determination of damages for emotional distress and its award of
punitive damages related to conduct by Appellants in the course of that which the district court
determined to be trespass. As the scope of trespass, if any, will be determined in a new trial, we
vacate the entire award of compensatory and punitive damages.   For the same reason, the district
court’s award of attorney fees and costs to the Akers is vacated.
C. This matter will be reassigned to a new district judge to conduct a new trial.
Normally, we would remand the case to the district court for additional findings of fact
and conclusions of law.    However, given the animosity woven into this case, we find it
appropriate to remand the case for assignment to a new district judge.   In fairness to the district
judge, and the parties as well, we think it a difficult and uncomfortable task for the district judge
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to now revisit and re-evaluate the evidence, disregarding his own earlier observations and factual
determinations, particularly in light of allegations by Appellants that he cannot act impartially.
Although such allegations rarely warrant reassignment, appellate courts in other jurisdictions
have found it best to assign cases to a new trial judge in certain limited circumstances.   See Beck
v. Beck, 766 A.2d 482, 485 (Del. 2001); In re Guardianship of Lienemann, Not Reported in
N.W.2d, 2004 WL 420158 (Neb. App. 2004); In re Guardianship of R.G. and F., 382 A.2d 654,
658 (N.J. 1977); In re Custody of A.L.A.P.-G., Not Reported in P.3d, 2003 WL 22234910 (Wash.
App. 2003).  This case is one of the rare instances in which reassignment is appropriate.
D. Neither party will receive an award of attorney fees on appeal.
The Akers and the Mortensens have each requested an award of attorney fees on appeal.
As the Akers have not prevailed in this appeal, they are not entitled to an award of attorney fees.
We cannot conclude that the Akers have frivolously defended this appeal.  Accordingly, we deny
the Mortensens’ request for an award of attorney fees.
IV. CONCLUSION
The judgment is vacated and this case is remanded for a new trial before a different
judge.  Costs to Appellants.
Chief  Justice  EISMANN  and  Justices  BURDICK,  J.  JONES  and  Justice  Pro  Tem
TROUT, CONCUR.
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