IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49773-2022
MILES H. MILLARD and LEANNE M. )
MILLARD, husband and wife, )
) Boise, November 2023 Term
Plaintiffs-Respondents, )
) Opinion filed: February 27, 2024
v. )
) Melanie Gagnepain, Clerk
ROBERT D. TALBURT and DEBRA A. )
TALBURT, husband and wife, )
)
Defendants-Appellants. )
)
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Boise County. Samuel A. Hoagland, District Judge.
The decision of the district court is affirmed.
Partridge Law, PLLC, Boise, for Appellants. William L. Partridge argued.
Johnson May Law, Boise, for Respondents. J. Justin May argued.
ZAHN, Justice.
This appeal arises from a property dispute between Robert and Debra Talburt and their
neighbors, Miles and Leanne Millard. The Millards filed a lawsuit seeking to quiet title to a
disputed tract of land, seeking declaratory judgments concerning a roadway easement and a well
easement, and seeking breach of contract damages for maintenance of a shared well. After the
Millards filed their lawsuit, the Talburts constructed a fence within the roadway easement, sent a
letter to the Millards stating that they were relocating the roadway easement, and locked the pump
house for the shared well.
After a two-day bench trial, the district court concluded that the Millards had abandoned
their breach of contract claim and had failed to establish a right to the disputed property. The
district court, however, ruled in favor of the Millards on the remaining claims. The district court
also ordered the Talburts to remove the fence and found the Talburts’ attempt to relocate the
roadway easement to be unlawful, invalid, and void. Later, the district court awarded the Millards
a portion of their attorney fees and costs pursuant to Idaho Code section 12-121.
The Talburts timely appealed. For the reasons discussed below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondents Miles and Leanne Millard purchased 5.34 acres of real property in Boise
County in 1994. The next year, the Millards had a well dug on the property. In May 1996, the
Millards subdivided the property into two lots via a Segregation Plat, sold one of the resulting lots
(“Lot 1”) to the Legaults, and retained the second lot (“Lot 2”). The Segregation Plat depicts two
easements that burden Lot 1 and are the subject of this litigation: (1) a roadway easement described
as “C/L 20’ Right-of-Way for Ingress and Egress” (“the Roadway Easement”) and (2) a well
easement described as “an easement in favor of Lot 2 for access and usage of existing well” (“the
Well Easement”).
In 1996, the Millards and Legaults built a retaining wall between the two properties.
Unbeknownst to either party, the actual property line was not where they built the retaining wall,
but instead was slightly closer to the Millards’ house. Therefore, a small sliver of the Legaults’
property was on the Millards’ side of the retaining wall. The parties refer to this sliver as the “Upper
Wedge.” Since 1996, the Millards have treated the Upper Wedge as a continuous part of their
driveway and graveled the area and parked vehicles on the Upper Wedge.
In 2001, the Millards executed a “Shared Well Agreement” with the Legaults that equally
apportioned costs and responsibilities associated with the shared well. The shared well includes a
shared pump house and equipment, and well water is separately piped to both homes.
Following their execution of the Shared Well Agreement, the Legaults sold Lot 1. Lot 1
was later sold again in 2011, this time to Appellants Debra and Robert Talburt. Prior to the
Talburts’ purchase, Lot 1 was surveyed and it was discovered that the Upper Wedge was not part
of the Millards’ property but instead was part of Lot 1. The Millards and the Talburts’ predecessorin-interest executed and recorded a “Lot Line Adjustment” that identified the Upper Wedge as part
of Lot 1. The Millards signed the Lot Line Adjustment and certified that the property line
adjustment depicted therein was acceptable. The Millards, however, continued to use the Upper
Wedge as part of their driveway.
The Roadway Easement is a twenty-foot graveled roadway through Lot 1 that splits into
two driveways; one goes to the Talburts’ home on Lot 1 and the other goes to the Millards’ home
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response, the Talburts prevented the Millards’ guests from using the Roadway Easement to access
the Millards’ house or the Lower Meadow, plowed snow in a way that blocked the Millards’
snowplow, and placed a small trailer on the Upper Wedge to prevent the Millards from using it.
As a result of the disputes, the Millards commenced this lawsuit.
The Millards pleaded three claims against the Talburts: (1) a quiet title claim concerning
the Upper Wedge based on a boundary by agreement, or in the alternative, claiming a prescriptive
easement to use the Upper Wedge; (2) a declaratory judgment claim regarding the Millards’ rights
to use and maintain the Roadway Easement and Well Easement and restricting the Talburts from
building a fence in the Roadway Easement; and (3) a breach of contract claim for failure to pay
expenses under the Shared Well Agreement. The Millards moved for summary judgment. The
district court granted a partial summary judgment and concluded that the Segregation Plat created
the Roadway Easement across the Talburts’ property for the benefit of the Millards. The district
court denied summary judgment on all other issues after concluding that there were genuine issues
of material fact that needed to be resolved at trial.
During the litigation, the Talburts put a lock on the shared pump house, and sent a letter
through their attorney stating they were relocating the Roadway Easement pursuant to Idaho Code
section 55-313. The Talburts then built a fence within the original boundaries of the Roadway
Easement that blocked the Millards’ access to the Access Road and the Lower Meadow. The
Talburts took these actions despite the fact that the Millards had a pending claim for declaratory
judgment, which sought a declaration that the Talburts “may not build a fence or other obstruction
along the boundary of the easement and the Millard property” and also sought a declaration
concerning their right to access the pump house. Because the district court had not yet ruled on
these claims when the Talburts built the fence and locked the pump house, the Millards devoted
additional time and expense to arguing that these activities were unlawful.
On the eve of trial, the Talburts filed a motion for reconsideration arguing that the Roadway
Easement and Well Easement were invalid because they failed to comply with Idaho Code section
55-601, which requires conveyances to include a grantee’s name and mailing address. The district
court denied the motion, holding that subdividing a property via a Segregation Plat does not
constitute a conveyance.
The district court then held a two-day bench trial, after which it made the following findings
and conclusions:
4
(1) The boundary line between Lots 1 and 2 is as reflected in the 2011 Lot Line
Adjustment and the Upper Wedge belongs to the Talburts.
(2) The plain language of the Segregation Plat gives the Millards the right to access,
use, monitor, and maintain the shared well. The district court ordered the Talburts to cease
any efforts to block access to, or lock, the shared well.
(3) Both the Millards and the Talburts have a right to access the well at any time to
monitor, maintain, repair, or replace any aspect of the well. The Well Easement includes
the right to access the pump house and the path to the well. Both the Millards and the
Talburts have equal rights and responsibilities regarding the shared well, including an
obligation to equally share the costs and responsibilities for maintaining the shared well.
(4) The Millards have a valid Roadway Easement, and they have the right to access
their property from any point on the Roadway Easement.
(5) The Talburts do not have the unilateral right under Idaho Code section 55-313 to
relocate the Roadway Easement to the injury of the Millards and such attempt was
unlawful, invalid, and void.
(6) The fence built by the Talburts in the Roadway Easement is a spite fence that must
be removed.
(7) The Millards have the duty to reasonably maintain the Roadway Easement.
(8) The Millards abandoned their breach of contract claim for well maintenance costs.
The Talburts moved to amend the district court’s order, arguing that the district court
incorrectly imposed an additional burden on the servient estate by imposing shared costs and
responsibilities for maintenance of the shared well. The district court denied the Talburts’ motion
to amend, holding that the scope of the Well Easement included the requirement that the parties
equally share the costs and responsibilities for maintenance of the well.
After the district court issued its findings of fact and conclusions of law, the Millards
moved for attorney fees and costs pursuant to Idaho Code section 12-121. The district court found
that the Talburts’ actions necessitated the lawsuit, their defense was frivolous, and they wrongly
engaged in self-help measures after the litigation had commenced, and therefore determined the
Millards were entitled to an award of attorney fees. The district court considered the amount of
attorney fees requested and determined that 75% of the requested fees pertained to claims on which
5
the Millards prevailed. The district court therefore awarded the Millards 75% of the requested
attorney fees under Idaho Code section 12-121.
The Talburts timely appealed.
II. ISSUES ON APPEAL
1. Whether the district court erred in concluding that the Segregation Plat was not a
conveyance for purposes of Idaho Code section 55-601.
2. Whether the district court erred in its declaratory judgments concerning the Roadway
Easement and the Well Easement.
3. Whether the district court erred in awarding attorney fees to the Millards pursuant to Idaho
Code section 12-121.
4. Whether the Millards are entitled to attorney fees on appeal pursuant to Idaho Code section
12-121.
III. STANDARDS OF REVIEW
This appeal first requires us to review the district court’s partial grant of summary judgment
and its subsequent denial of the Talburts’ motion to reconsider its decision.
When reviewing a summary judgment ruling or a ruling on a motion to
reconsider a summary judgment order, this Court applies the same standard utilized
by the district court in deciding the motion. With respect to that standard, this Court
exercises free review to determine if summary judgment is proper. Summary
judgment is appropriate if “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
When considering a motion for summary judgment, this Court construes disputed
facts in favor of the nonmoving party and draws all reasonable inferences in the
nonmoving party’s favor.
Christiansen v. Potlatch #1 Fin. Credit Union, 169 Idaho 533, 540,
498 P.3d 713, 720 (2021)
(internal citations omitted).
Next, we review the Talburts’ challenge to the district court’s findings of fact and
conclusions of law following the bench trial.
[T]his Court’s review of the district court’s decision is limited to determining
whether the evidence supports the findings of fact and whether the findings of fact
support the conclusions of law. Factual findings will not be set aside unless they
are clearly erroneous. A factual finding is clearly erroneous if it is not supported by
substantial and competent evidence. Although there may be conflicting evidence,
[s]ubstantial and competent evidence exists [i]f there is evidence in the record that
a reasonable trier of fact could accept and rely upon in making the factual finding
challenged on appeal.
6
This Court is not bound by the legal conclusions of the trial court and
exercises free review to draw its own conclusions from the facts presented.
However, this Court liberally construes a trial court's factual findings in favor of
the judgment entered.
Hood v. Poorman, 171 Idaho 176, 186–87,
519 P.3d 769, 779–80 (2022) (all but first alteration in
original) (internal citations and quotation marks omitted).
IV. ANALYSIS
The Talburts appeal several decisions of the district court. We will address each in turn.
A. The Segregation Plat does not convey an estate in real property for purposes of Idaho
Code section 55-601.
The Talburts first argue that the district court erred when it granted partial summary
judgment after concluding that the Segregation Plat created a valid roadway easement in favor of
the Millards across Lot 1. The Talburts contend that the Roadway Easement was a conveyance
under Idaho Code section 55-601 and that the Segregation Plat could not create a valid easement
because it lacked the name and address of the grantee. Idaho Code section 55-601 contains
requirements for a valid conveyance of an estate in real property:
A conveyance of an estate in real property may be made by an instrument in
writing, subscribed by the party disposing of the same, or by his agent thereunto
authorized by writing. The name of the grantee and his complete mailing address
must appear on such instrument.
I.C. § 55-601 (emphasis added). The Talburts argue that easements are interests in real property
and should therefore be considered “conveyances” for purposes of Idaho Code section 55-601. In
support of their argument, the Talburts point to Idaho Code section 55-813, which defines a
“conveyance” to include “every instrument in writing by which any estate or interest in real
property is created . . . .” I.C. § 55-813.
We are not persuaded by the Talburts’ argument. Easements do not convey an estate in real
property for purposes of section 55-601. We have held that an easement is not an “estate” in real
property, but rather an “interest” in real property. Kirk v. Wescott, 160 Idaho 893, 900–01,
382
P.3d 342, 349–50 (2016). To the extent that the Talburts argue that the definition of conveyance
contained in section 55-813 establishes that an easement is an estate in real property, the express
language of section 55-813 limits its application to that chapter and title. See I.C. § 55-813 (“The
term ‘conveyance’ as used in this chapter . . . .” (emphasis added)). Thus, the definition of
conveyance in section 55-813 is not applicable to section 55-601.
7
The Talburts cite Adams v. Anderson, 142 Idaho 208,
127 P.3d 111 (2005), for the
proposition that this Court has relied on sections 55-813 and 55-601 together to define a
conveyance. In Adams, the plaintiffs sought a declaratory judgment that they owned a disputed
piece of property pursuant to a recorded survey.
Id. at 209,
127 P.3d at 112. The facts of Adams,
however, are distinguishable from the facts of this case. First, the record of survey in Adams
constituted a conveyance because, unlike the situation here, fee title to the property was actually
transferred between parties. See
id. Next, the issue in Adams was whether the Record of Survey
was properly recorded and provided constructive notice of the conveyance to defendants under
section 55-811.
Id. at 209, 211,
127 P.3d at 112, 114. Proper recording and constructive notice are
not issues in this case. For these reasons, Adams is distinguishable and not applicable to the
Segregation Plat in this case.
We hold that the Segregation Plat’s creation of the Roadway Easement was not a
conveyance of an estate in real property and therefore was not subject to the requirements of
section 55-601. We affirm the district court’s decision granting partial summary judgment on the
Millards’ claim of a valid easement for ingress and egress across Lot 1.
B. The district court did not err in its declaratory judgments concerning the Roadway
Easement and the Well Easement.
The Talburts challenge the district court’s conclusions that (1) the scope of the Roadway
Easement did not limit the Millards’ use of the roadway to ingress and egress to their driveway;
(2) the Talburts had no right to relocate the Roadway Easement under Idaho Code section 55-313;
(3) the Millards are entitled to equal access and use of the shared well; and (4) the Talburts are
required to equally share in the expenses and maintenance of the shared well. We address each
argument in turn.
1. The scope of the Roadway Easement includes the right of ingress and egress to the entirety
of the Millards’ property.
The district court held that the scope of the Roadway Easement includes ingress and egress
to all of the Millards’ property abutting the road, including the right to access the Lower Meadow
and Access Road. The Talburts argue that the language of the Roadway Easement only allows the
Millards to use the road to access their driveway at the end of the easement.
“An instrument granting an easement is to be construed in connection with the intention of
the parties and circumstances in existence at the time the easement was given and carried out.”
Argosy Tr. ex rel. Andrews v. Wininger, 141 Idaho 570, 572,
114 P.3d 128, 130 (2005) (quoting
8
Quinn v. Stone, 75 Idaho 243, 250,
270 P.2d 825, 830 (1954)). “That intent is a question of fact,
and the trial court’s findings on the issue will not be disturbed on appeal if supported by substantial
and competent evidence.”
Id. (citation omitted). “Substantial and competent evidence exists [i]f
there is evidence in the record that a reasonable trier of fact could accept and rely upon in making
the factual finding challenged on appeal . . . .” Easterling v. HAL Pac. Props., L.P.,
171 Idaho 500,
509,
522 P.3d 1258, 1267 (2023) (alterations in original) (quoting Caldwell Land & Cattle, LLC
v. Johnson Thermal Sys., Inc.,
165 Idaho 787, 795,
452 P.3d 809, 817 (2019)).
The district court’s findings concerning the scope of the easement were supported by
substantial and competent evidence. The Roadway Easement is visually depicted in the
Subdivision Plat and accompanied by the language “C/L 20’ Right-of-Way for Ingress and
Egress.” The easement language does not contain any limitations and thus is a general grant of
easement. McFadden v. Sein, 139 Idaho 921, 924,
88 P.3d 740, 743 (2004). General grants of
easement include “those uses which are incidental or necessary to the reasonable and proper
enjoyment of the easement” and are “limited to those that burden the servient estate as little as
possible.”
Id. (quoting Abbott v. Nampa Sch. Dist. No. 131,
119 Idaho 544, 548,
808 P.2d 1289,
1293 (1991)). The use may increase in volume and kind during the course of the easement as
consistent with the normal development of their lands.
Id.
The district court determined the scope of the Roadway Easement by examining the
Millards’ historical use of the Roadway Easement. See Lorenzen v. Pearson, 167 Idaho 385, 393–
95,
470 P.3d 1194, 1202–04 (2020). The Millards presented evidence that they have historically
used the Roadway Easement to access the Lower Meadow and Access Road since the creation of
the Roadway Easement in 1996. The Millards did not own the entire Lower Meadow when the
Roadway Easement was created, but they historically accessed and used the entire Lower Meadow
with permission from the Legaults until they purchased a tract of land abutting the Roadway
Easement from the Legaults in 1998. The Millards continued to use and access the Lower Meadow
via the Roadway Easement until the Talburts built a fence blocking access in 2020. This constituted
substantial and competent evidence supporting the district court’s findings as to the scope of the
Roadway Easement.
The evidence presented at trial established that the Millards’ use of the easement to access
their property that abutted the roadway was incidental or necessary to their proper enjoyment of
the easement. When the Millards purchased additional land in the Lower Meadow, their use of the
9
Roadway Easement remained consistent with the development of their lands. We therefore affirm
the district court’s decision that the scope of the Roadway Easement permits the Millards ingress
and egress to their property at any point along the Roadway Easement.
2. The district court did not err in concluding that Idaho Code section 55-313 prevented the
Talburts from unilaterally relocating the Roadway Easement.
After litigation commenced, the Talburts sent a letter through their attorney stating they
were relocating the Roadway Easement pursuant to Idaho Code section 55-313 so they could build
a fence between the Roadway Easement and the Lower Meadow. The Talburts then proceeded to
build the fence within the boundaries of the Roadway Easement and blocked the Millards’ access
to the Lower Meadow and the Access Road without modifying the existing road to provide a road
of equal width that enabled the Millards to access the Lower Meadow and the Access Road.
Idaho Code section 55-313 describes when a servient estate may relocate an access
easement:
Where, for motor vehicle travel, any access which is less than a public dedication,
has heretofore been or may hereafter be, constructed across private lands, the
person or persons owning or controlling the private lands shall have the right at
their own expense to change such access to any other part of the private lands, but
such change must be made in such a manner as not to obstruct motor vehicle travel,
or to otherwise injure any person or persons using or interested in such access.
I.C. § 55-313 (emphasis added). The district court concluded that section 55-313 prohibited the
Talburts from unilaterally relocating the Roadway Easement to the injury of the Millards. The
district court concluded that the relocation injured the Millards by removing their historic access
to the Lower Meadow and Access Road. The Talburts argue that moving the Roadway Easement
would not injure the Millards because the scope of the Roadway Easement does not permit access
to the Lower Meadow and the Access Road.
The Talburts’ argument on this point fails for the same reason their argument concerning
the scope of the Roadway Easement fails. As previously discussed, the scope of the Roadway
Easement includes the right of ingress and egress to the Lower Meadow and Access Road. The
Talburts’ proposed relocation would prevent the Millards from accessing those areas. This
interference is exactly the type of injury that section 55-313 prohibits. See Manning v. Campbell,
152 Idaho 232, 234–35,
268 P.3d 1184, 1186–87 (2012); see also Belstler v. Sheler,
151 Idaho
819, 826,
264 P.3d 926, 933 (2011). We therefore affirm the district court’s decision concluding
10
that the Talburts’ attempted relocation was unlawful, invalid, and void and preventing the Talburts
from unilaterally relocating the Roadway Easement.
3. The Talburts must remove the spite fence because it interferes with the Millards’ full
enjoyment of their easement rights.
After providing written notice that they were relocating the Roadway Easement, the
Talburts built a fence inside the boundaries of the original Roadway Easement, which blocked the
Millards’ access to the Lower Meadow and the Access Road. The district court concluded the
fence was a “spite fence” and ordered that it be removed. A “spite fence” is an otherwise useless
structure constructed by a property owner for the sole purpose of injuring his neighbor. See
Sundowner, Inc. v. King, 95 Idaho 367, 369,
509 P.2d 785, 787 (1973). The Talburts’ only
argument challenging the district court’s conclusion that they built a spite fence is that the
Roadway Easement does not include the right to access the Lower Meadow, so the fence did not
injure the Millards. As discussed above, the scope of the Roadway Easement included the right of
ingress and egress to the Lower Meadow and Access Road. The Talburts’ construction of a fence
in the boundaries of the easement injured the Millards because it interfered with their historical
use of the easement, including their access to the Lower Meadow and Access Road. Therefore, we
affirm the district court’s order requiring the Talburts to remove the fence.
4. The scope of the Well Easement grants the Millards the right to access, use, monitor, and
maintain the shared well.
The district court held that the Millards have the right to access, use, monitor, and maintain
the shared well. The Talburts argue that the Well Easement was not a proper mechanism for
creating a shared well. The Talburts further argue that the Well Easement deprives the Talburts of
their ability to relocate or change the pump house and well equipment, and thus violates this
Court’s holding in Johnson v. Highway 101 Investments, LLC, that an “easement is the right to use
the land of another for a specific purpose that is not inconsistent with the general use of the property
by the owner.” 156 Idaho 1, 3,
319 P.3d 485, 487 (2014) (quoting Capstar Radio Operating Co.
v. Lawrence,
153 Idaho 411, 420,
283 P.3d 728, 737 (2012)). Finally, the Talburts argue that the
pump house and well equipment should not be burdened by the Well Easement because “the
erection of a permanent structure within an easement of definite location and dimension is per se
unreasonable.” Id. at 5,
319 P.3d at 489.
Resolving these arguments requires us to first determine whether the district court erred in
determining that the scope of the Well Easement included the right for both lots to access, use,
11
monitor, and maintain the well. The Segregation Plat visually depicts a well, which is accompanied
by the language “[a]n easement in favor of Lot 2 for access and usage of existing well.” (Emphasis
added.) When interpreting this general easement language, we look to the intention of the parties
at the time the easement was created to determine the scope of the easement. Argosy Tr., 141 Idaho
at 572,
114 P.3d at 130. The plain language of the Well Easement demonstrates an intent for both
parties to access and use the well. Included in the access and use of the well is a secondary
easement granting the right to repair and maintain the well. See Caldwell v. Cometto,
151 Idaho
34, 38–39,
253 P.3d 708, 712–13 (2011) (“Idaho recognizes the existence of secondary easements,
which convey the right to repair and maintain the primary easement so long as such activity is
reasonable.”).
The Talburts’ argument that our decision in Johnson mandates a different result is
misplaced. In Johnson, the servient estate erected a sign within an existing roadway easement,
reducing the size of the easement and interfering with the dominant estate’s use of the easement.
Johnson, 156 Idaho at 2,
319 P.3d at 486. Here, the shared well had been drilled and was in
existence before the Talburts purchased Lot 1. Before the Talburts purchased the property, the
Millards created an express easement, via the Segregation Plat, to preserve their access to a well
they had already drilled themselves. The Millards did not erect an additional permanent structure
after the Talburts purchased their property that interfered with the Talburts’ use of an existing
easement. Further, the Millards’ access and usage of the shared well is not inconsistent with the
general use of the Talburts’ property. If anything, the Millards’ access and use of the well benefits
the Talburts because it allows them to share in the costs and responsibilities of maintaining the
well equipment owned by the Talburts. Johnson is distinguishable from the facts of this case.
Therefore, we affirm the district court’s conclusion that the scope of the Well Easement grants the
Millards the ability to access, use, monitor, and maintain the shared well.
5. The Millards and Talburts are equally responsible for maintenance of the shared well.
The district court concluded that the Millards and Talburts must share equally in the
responsibilities and costs of maintaining the well. The district court found that this was the intent
of the original parties to the Well Easement.
First, the Talburts argue the district court impermissibly acted sua sponte to amend the
Millards’ pleadings to include a prayer for relief that the Talburts be ordered to contribute to
maintaining the well. This argument is belied by the pleadings. A review of the Millards’ complaint
12
reveals that they sought a “declaratory judgment establishing the right of the Roadway and Well
easements over the Talburt Property for the use and enjoyment of Millard[s] . . . and to include
Millards’ right to maintain the Roadway and Well easements respectively.” The sharing of
responsibilities and costs of maintenance of the Well Easement was pleaded as part of the Millards’
declaratory judgment claim.
The Talburts next argue that, as the servient estate, they have no duty to maintain the well.
The Millards counter that the Well Agreement evidences an intent by the original parties to share
equally in the costs and responsibilities of maintaining the well. “An instrument granting an
easement is to be construed in connection with the intention of the parties and circumstances in
existence at the time the easement was given and carried out.” Argosy Tr., 141 Idaho at 572,
114
P.3d at 130 (quoting Quinn v. Stone,
75 Idaho 243, 250,
270 P.2d 825, 830 (1954)). “That intent
is a question of fact, and the trial court’s findings on the issue will not be disturbed on appeal if
supported by substantial and competent evidence.”
Id. “Substantial and competent evidence exists
[i]f there is evidence in the record that a reasonable trier of fact could accept and rely upon in
making the factual finding challenged on appeal . . . .” Easterling v. HAL Pac. Props., L.P.,
171
Idaho 500, 509,
522 P.3d 1258, 1267 (2023) (alterations in original) (quoting Caldwell Land &
Cattle, LLC v. Johnson Thermal Sys., Inc.,
165 Idaho 787, 795,
452 P.3d 809, 817 (2019)).
The district court relied on substantial and competent evidence in determining that the
intent of the parties was to equally share in the costs and responsibilities of the well. Both the
language of the Segregation Plat and the Shared Well Agreement between the Millards and the
Legaults demonstrated a clear intent to share in the costs and responsibilities of maintaining the
shared well.
Finally, the Talburts argue that the district court’s order is in error because the servient
estate generally has no duty to maintain an easement, even when the servient estate uses the
easement. See Walker v. Boozer, 140 Idaho 451, 455–56,
95 P.3d 69, 73–74 (2004). While this is
generally true, the facts of Walker are distinguishable and, as a result, the rule from that case does
not apply here.
In Walker, as an accommodation to residents of the Quaker Haven Subdivision, the
Wiemers, who owned a lot in the Ruud Subdivision, “cut approximately three feet into the sloping
bank on their property right before the turnoff . . . thereby allowing people to access Quaker Haven
Road from the uphill direction on Ruud Road.” Id. at 453,
95 P.3d at 71. The Wiemers sold their
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property to the Boozers. Id. The Boozers initially placed rocks, and later concrete barriers, along
Ruud Road near its intersection with Quaker Haven Road, which reduced the usable width of Ruud
Road from approximately twenty-two feet to approximately eleven to twelve feet.
Id. at 453–54,
95 P.3d at 71–72. Residents of the Quaker Haven Estates Subdivision, including the Walkers, sued
the Boozers to define and fix the width of the road easement granted by the Wiemers.
Id. at 454,
95 P.3d at 72. The Boozers counterclaimed, which included a claim for contribution against the
Quaker Haven owners for costs associated with maintaining the road easement.
Id.
After determining that the district court did not err in fixing the width of the roadway
easement at twenty-two feet plus two feet of embankment, this Court turned to the Boozers’ claim
for contribution. Id. at 455–56, 95 P.3d at 73–74. We first concluded that, absent a showing by the
Boozers that the Quaker Haven owners’ maintenance of the easement created an additional burden
on their property, the Boozers could not perform work to maintain the easement to their personal
standards and then seek reimbursement from the Quaker Haven owners for the expense.
Id. at 456,
95 P.3d at 74.
Pertinent to this case, this Court rejected the Boozers’ argument that the district court erred
when it failed to apply a proposition set forth in a legal treatise: “When the dominant tenant and
the servient tenant both use an easement, the court may apportion the cost of repair between them
accordingly.” Id. (alteration omitted) (quoting 28A C.J.S. Easements § 170 (1996)). Without
analysis, this Court rejected the premise advanced by the Boozers: “Although the district court
based its denial of the Boozers’ counterclaim in part on this proposition, that proposition is not the
law in Idaho.” Id. The Talburts argue that this statement applies equally to the facts of this case
and therefore, as the owners of the dominant estate, they cannot be legally required to share in the
costs to maintain the shared well.
We affirm the district court’s decision requiring the parties to share in the expenses
associated with the shared well. The facts in Walker are distinguishable from the facts in this case.
First, the roadway easement created in Walker was created for the sole benefit of the servient
estate. That is not the case here. As discussed above, the well easement here was created for the
benefit of both lots. Second, it is unclear to what extent the Court’s statement in Walker resulted
from the fact that the Boozers were seeking reimbursement for amounts expended to maintain the
road to the Boozers’ standards. The Court found it significant that the Boozers did not demonstrate
that the easement owners’ maintenance of the road created an additional burden or interference
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with the Boozers’ property. Id. The Court concluded that, absent such a showing, the Boozers
could not dictate the standard by which the easement was maintained and then force the easement
owners to pay for it. Id.
In this case, the Well Easement was created for the benefit of both lots. As depicted on the
Segregation Plat and in the Shared Well Agreement between the Millards and Legaults, the well
was intended to benefit both properties following the subdivision of the property. As a result, our
holding in Walker concerning shared maintenance costs is inapplicable. We hold the district court
did not err in concluding that the Millards and the Talburts must equally share in the costs of
maintaining the shared well.
C. The district court did not err in awarding the Millards attorney fees pursuant to Idaho
Code section 12-121.
The Talburts next challenge the district court’s order awarding the Millards 75% of their
attorney fees pursuant to Idaho Code section 12-121. The Talburts argue (1) this Court’s precedent
establishes that the district court erred in awarding fees against the Talburts under section 12-121
because the Talburts successfully defended against some of the Millards’ claims; (2) the district
court erred in finding their legal arguments frivolous and considering out of court conduct in
awarding attorney fees; and (3) the district court erred by considering pre-trial settlement
negotiations in awarding attorney fees.
Under Idaho Code section 12-121, “the judge may award reasonable attorney’s fees to the
prevailing party or parties when the judge finds that the case was brought, pursued or defended
frivolously, unreasonably or without foundation.” I.C. § 12-121. “The awarding of attorney fees
and costs is within the discretion of the trial court and subject to review for an abuse of discretion.”
Smith v. Mitton, 140 Idaho 893, 897,
104 P.3d 367, 371 (2004).
1. The district court did not err in concluding that the Millards were entitled to fees under
section 12-121, despite the fact that the Talburts prevailed on some issues.
The Talburts contend the district court erred in awarding the Millards any fees under
section 12-121 after concluding that the Talburts successfully defended against the Millards’ claim
to quiet title to the Upper Wedge and their breach of contract claim. In support of their argument,
the Talburts rely on our decision in Nampa and Meridian Irrigation District v. Washington Federal
Savings, 135 Idaho 518, 524–25,
20 P.3d 702, 708–09 (2001), where this Court held that “if there
is a legitimate, triable issue of fact, attorney fees may not be awarded under I.C. § 12-121 even
though the losing party has asserted factual or legal claims that are frivolous, unreasonable, or
15
without foundation.” The Talburts, however, fail to address our subsequent decision in Idaho
Military Historical Society, Inc. v. Maslen, 156 Idaho 624,
329 P.3d 1072 (2014), in which we
“back[ed] away from” strict adherence to the standard articulated in Nampa and Meridian because
we were concerned that it could result in “a single, triable issue of fact” excusing a “party from
the aggregate of misconduct that necessitates or dominates the conduct of the lawsuit.”
Id. at 632,
329 P.3d at 1080. In Maslen, we held that “[a]pportionment of attorney fees is appropriate for
those elements of the case that were frivolous, unreasonable, and without foundation.”
Id.
We acknowledge that, following our decision in Maslen, we cited the rule from Nampa
and Meridian in several subsequent cases, including as recently as 2019 and 2020. See Sec. Inv.
Fund LLC v. Crumb, 165 Idaho 280, 290,
443 P.3d 1036, 1046 (2019); Galvin v. City of Middleton,
164 Idaho 642, 648,
434 P.3d 817, 823 (2019); Lola L. Cazier Rev. Tr. v. Cazier,
167 Idaho 109,
123,
468 P.3d 239, 253 (2020). Our continued citation to Nampa and Meridian leaves some
question concerning the continuing viability of the rule announced in Nampa and Meridian. We
take this opportunity to reaffirm our holding in Maslen that “[a]pportionment of attorney fees is
appropriate for those elements of the case that were frivolous, unreasonable, and without
foundation.” Maslen,
156 Idaho at 632,
329 P.3d at 1080. We overrule our decision in Nampa and
Meridian, as well as any subsequent decisions citing it, to the extent they suggest that a request for
attorney fees under section 12-121 must be denied if the opposing party has raised one legitimate
issue. As a result, this Court’s decision in Maslen permitted the district court to award the Millards
their reasonable attorney fees pursuant to section 12-121, even though the Talburts prevailed on
the Millards’ quiet title and breach of contract claims.
2. The district court did not err in determining the Talburts’ arguments were frivolous and in
considering the entire course of the litigation when determining whether to award attorney
fees.
Next, the Talburts argue that the district court erred in awarding attorney fees because it
based the award on their conduct leading up to and during the lawsuit, instead of on the quality of
their legal arguments. In awarding attorney fees, the district court found that the litigation was
precipitated by the Talburts’ interference with the Millards’ use and maintenance of the Well
Easement and their use of the Roadway Easement. Additionally, the district court found that the
litigation was exacerbated by the Talburts’ actions of building a spite fence and padlocking the
well pump house, which resulted in additional briefing and argument.
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We find no error in the district court’s consideration of the Talburts’ conduct when
determining whether the Millards were entitled to attorney fees under section 12-121. We have
previously held that a district court should take a holistic view of the entire litigation when
awarding attorney fees pursuant to section 12-121. See Turner v. Willis, 116 Idaho 682, 685,
778
P.2d 804, 807 (1989) (In awarding fees under section 12-121, “[t]he frivolity and unreasonableness
of a defense is not to be examined only in the context of trial proceedings. The entire course of the
litigation will be taken into account.”); Fitzpatrick v. Kent,
166 Idaho 365, 373,
458 P.3d 943, 951
(2020) (“Courts take a holistic view to determine whether the standard under Idaho Code section
12-121 has been met.”). The language of Idaho Code section 12-121 is not limited to the quality
of legal arguments, but includes the manner in which the case was “brought, pursued or
defended[.]” I.C. § 12-121. This includes actions that increase litigation costs.
At oral argument, counsel for the Talburts suggested that the Millards were not entitled to
fees under section 12-121 because they failed to seek injunctive relief concerning the construction
of the fence and locking of the pump house. The Talburts argue that pursuing injunctive relief
would have kept litigation costs at a minimum and that the Millards essentially drove up costs by
trying the issues. However, section 12-121 does not require that an opposing party seek injunctive
relief before asserting that a case was “brought, pursued or defended frivolously, unreasonably or
without foundation.”
In its decision concluding that the Talburts had frivolously defended the case, the district
court cited our decision in Maslen for the premise that an award of fees under section 12-121 is
permissible when the defendants’ actions primarily precipitate the litigation. In Maslen, the Court
upheld an award of attorney fees when the defendant necessitated a lawsuit by refusing to return
property and then defended the lawsuit with claims that the defendant knew were unsupported by
fact or law. Id., 156 Idaho at 629–30, 329 P.3d at 1077–78. Even though the defendant in Maslen
succeeded in defending against some claims, this Court upheld a partial award of attorney fees
under section 12-121. Id. at 632, 329 P.3d at 1080 (“The [d]efendants had no legitimate triable
claims of fact on the question that necessitated the initiation of this action. The district court did
not abuse its discretion in awarding the attorney fees for the claims of the [d]efendants
necessitating this lawsuit that were frivolous, unreasonable, and without adequate foundation.”).
The district court correctly concluded that similar factors were present in this case. The
Talburts necessitated the litigation due to their increasing hostility regarding the Millards’ use of
17
the Roadway Easement and Well Easement, despite the statements on the Segregation Plat and the
parties’ historical use of the easements. Following the commencement of the litigation, the
Talburts built a spite fence, purported to move the Roadway Easement, and padlocked the well
pump house. Each of these actions created additional issues that required additional attorney
resources and drove up the costs of the litigation. The Talburts’ arguments regarding the scope of
the Roadway Easement and Well Easement were in direct conflict with the plain language of the
Segregation Plat and this Court’s caselaw. The Talburts’ relocation of the Roadway Easement and
construction of a spite fence prevented the Millards from exercising their historical easement rights
and clearly violated Idaho Code section 55-313. Lastly, the district court determined there was
credible testimony that Mr. Talburt knew building a spite fence was illegal, but did so anyway.
Given this evidence, the district court did not err in concluding that the Talburts frivolously
defended the lawsuit for purposes of section 12-121.
Lastly, the Talburts argue that their legal arguments were not frivolous because the district
court denied the Millards’ motion for summary judgment except on the narrow issue of the
existence of the Roadway Easement. However, our case law clearly holds that the district court’s
denial of a motion for summary judgment does not preclude the award of attorney fees. See
Anderson v. Ethington, 103 Idaho 658, 660,
651 P.2d 923, 925 (1982) (reaffirmed in Sun Valley
Shopping Ctr., Inc. v. Idaho Power Co.,
119 Idaho 87, 91–92,
803 P.2d 993, 997–98 (1991)).
We are not persuaded by the Talburts’ arguments and therefore hold that the district court
did not err in determining that the Talburts frivolously defended the case for purposes of Idaho
Code section 12-121.
3. The district court did not err in considering pre-trial settlement negotiations for limited
purposes.
Prior to trial, the Talburts’ attorney sent an email to the Millards’ attorney urging the
Millards to settle and stating that counsel was representing the Talburts on “essentially a pro-bono
basis,” that trial “costs them nothing,” and that the litigation “is costing [the Millards] a lot.” The
email contained the terms of a settlement offer. The Millards’ attorney presented this email to the
district court as an attachment to his declaration filed in support of the Millards’ request for fees
and costs. The Millards argued the email demonstrated that the Talburts knew they had a frivolous
legal defense, but litigated anyways because the litigation would not cost them anything.
The Talburts argue that the district court erred in considering this email because it was a
confidential settlement negotiation and therefore was inadmissible under Idaho Rule of Evidence
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408. The Millards contend that the email falls within the “another purpose” exception to Idaho
Rule of Evidence 408(b) and was admissible to demonstrate that the Talburts’ counsel knew their
defense of the Millards’ lawsuit was frivolous.
Idaho Rule of Evidence 408(a) prohibits the admission of evidence of “conduct or a
statement made during compromise negotiations about the claim” if used “either to prove or
disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement
or a contradiction[.]” I.R.E. 408(a)(2). Rule 408(b) permits the admission of such evidence for
“another purpose” and “does not require the exclusion of any evidence otherwise discoverable
merely because it is presented in the course of compromise negotiations.” I.R.E. 408(b).
We conclude that the settlement offer email was not submitted for an improper purpose
under Rule 408(a). Instead, it was submitted for “another purpose” under Rule 408(b): to establish
that the Talburts were not litigating because they had meritorious defenses to the lawsuit, but
instead because they were trying to drive up the costs of the litigation so the Millards would give
up their legitimate claims and dismiss the case. The email was therefore admissible under the rule.
Next, the Talburts argue that the district court erred by considering the settlement email
because “district courts may not consider settlement negotiations in the attorney fees
determination.” See Jorgensen v. Coppedge, 148 Idaho 536, 542,
224 P.3d 1125, 1131 (2010).
The Talburts’ argument confuses the prevailing party analysis with the determination of whether
a party has demonstrated an entitlement to an award of attorney fees under section 12-121. While
the district court cannot consider settlement negotiations when determining whether to award
attorney fees under section 12-121, the district court can, in a limited manner, consider settlement
negotiations in determining a prevailing party. See Zenner v. Holcomb,
147 Idaho 444, 449,
210
P.3d 552, 557 (2009) (“Although offers of [settlement] may be considered, we have cautioned that
they should not be the only, or even most significant, factor in the trial court’s prevailing party
analysis.”).
Here, the district court explained that it only “marginally” considered the potential
settlement offer for purposes of its prevailing party analysis. We take this opportunity to caution
trial courts and counsel that our holding in Zenner should be construed narrowly—offers of
settlement are relevant to the prevailing party analysis only for purposes of determining the final
relief obtained in relation to the relief sought. Offers of settlement can be helpful in that regard
when there is a large discrepancy between the offer of settlement and the final judgment. In this
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case, we agree with the district court that the settlement offer email was only marginally, if at all,
helpful when conducting the prevailing party analysis. In reaching its determination that the
Millards were the prevailing parties, the district court also relied on a comparison of the claims
brought by the Millards with the results obtained, which was far more dispositive of the prevailing
party analysis. Because the district court did not rely solely on the settlement agreement, but only
marginally considered it along with other considerations, the district court did not err.
Lastly, the Talburts argue that the district court erred by considering their settlement email
in awarding attorney fees because the email may have “colored the court’s view of attorney fees.”
The Talburts’ argument on this point fails because the district court expressly stated that it did not
consider the email in determining whether to award attorney fees pursuant to section 12-121:
At the outset, the [c]ourt notes that Partridge’s statement that “trial costs his clients
nothing” does not weigh into this [c]ourt’s determination of whether fees are
warranted under [s]ection 12-121.
The district court stated it did not consider the settlement email when determining whether the
Millards were entitled to an award of fees under section 12-121. The Talburts provide no evidence
to the contrary. Therefore, we find no error in the district court’s decision awarding attorney fees
to the Millards pursuant to section 12-121.
D. The Millards are entitled to a partial award of attorney fees and costs on appeal.
The Millards seek attorney fees and costs on appeal pursuant to Idaho Code section 12-
121. “When an appellant fails to present a cogent argument as to why he should prevail, an award
to his opponent is appropriate.” Turner v. Turner, 155 Idaho 819, 827,
317 P.3d 716, 724 (2013).
“Idaho Code section 12-121 allows attorney fees in a civil action if the appeal merely invites the
Court to second-guess the findings of the lower court.” Erickson v. Erickson,
171 Idaho 352, 371,
521 P.3d 1089, 1108 (2022). “Apportionment of attorney fees is appropriate for those elements of
the case that were frivolous, unreasonable, and without foundation.” Maslen,
156 Idaho at 632,
329 P.3d at 1080.
We conclude that the Millards are entitled to a partial award of attorney fees on appeal
pursuant to Idaho Code section 12-121. The Talburts’ arguments on appeal ignored the plain
language of the Roadway Easement and the Millards’ historic use of the easement to access the
Lower Meadow and the Access Road. Additionally, the Talburts failed to offer any plausible
explanation for how relocating the Roadway Easement would not injure the Millards. Further, the
Talburts failed to establish a valid legal basis for erecting the spite fence during the litigation. The
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Talburts’ arguments on each of these issues simply invited us to second-guess the district court’s
findings and conclusions. Erickson, 171 Idaho at 371,
521 P.3d at 1108. We therefore conclude
that the Talburts’ legal defense of those claims was frivolous. We award the Millards their
reasonable attorney fees pursuant to section 12-121 for the following issues: (1) the Roadway
Easement; (2) the relocation of the Roadway Easement pursuant to Idaho Code section 55-313;
and (3) the district court’s order requiring the Talburts to remove the spite fence.
However, we do not award the Millards attorney fees for the Talburts’ remaining
arguments in this appeal. While ultimately unpersuasive, the Talburts raised legitimate legal
arguments on those issues.
V. CONCLUSION
For the foregoing reasons, the decision of the district court is affirmed. As discussed above,
we award the Millards their reasonable attorney fees on some of the claims presented on appeal,
pursuant to Idaho Code section 12-121. As the prevailing parties, the Millards are awarded their
costs on appeal pursuant to Idaho Appellate Rule 40.
Chief Justice BEVAN, Justices BRODY and MOELLER, and Pro Tem Justice WHITNEY
CONCUR.
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