                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                         Docket No. 39217

DIANNE RUDDY-LAMARCA,                               )
                                                    )          Moscow, September 2012 Term
     Plaintiff-Respondent,                          )
                                                    )          2012 Opinion No. 150
v.                                                  )
                                                    )          Filed: December 20, 2012
DALTON GARDENS IRRIGATION                           )
DISTRICT,                                           )          Stephen Kenyon, Clerk
                                                    )
     Defendant-Appellant.                           )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       The decision of the district court is affirmed.

       Malcolm Dymkoski, Coeur d’Alene, for appellant. Malcolm Dymkoski argued.

       James, Vernon & Weeks, P.A., Coeur d’Alene, for respondent. Susan Weeks
       argued.
            _______________________________________________

HORTON, Justice.
       This is an appeal from a district court’s order defining the width of an easement for an
irrigation pipeline. Dalton Gardens Irrigation District (the District) owns the pipeline and intends
to replace the existing four-inch pipe with a ten-inch pipe. A portion of the pipeline crosses
Diane Ruddy-Lamarca’s property. The parties agree that an easement of some kind exists in
favor of the District. However, they disagree regarding the nature and width of that easement.
The district court held that the District had an express easement and an easement by prescription
that are identical in location and sixteen feet wide. The District appeals, claiming that the district
court erred by restricting its easement to sixteen feet in width and requiring it to make every
effort to preserve trees and a drain field on Ruddy-Lamarca’s property. We affirm.
                    I.     FACTUAL AND PROCEDURAL BACKGROUND
       Ruddy-Lamarca has owned a five-acre tract of land in Kootenai County since 1990. The
District owns and operates an irrigation pipeline that crosses Ruddy-Lamarca’s property. The
pipeline was originally installed in 1954 and consisted of a four-inch buried pipe. Eight years


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later, a new four-inch pipeline was installed on the property in the same location. The district
court found that the machinery, supplies for the pipeline, and the space required for the
excavated soil required thirty to forty feet in width in 1962.
        The District intends to replace the existing pipe with a ten-inch pipe. Rather than remove
the old pipe, the District plans to lay the new pipe alongside the old one. To accomplish this, the
District intends to use a tracked excavator and two rubber-tired backhoes. These machines would
be used to dig the trench, place the pipe, and backfill the trench. The District’s proposed method
will require between thirty and forty feet of total width.
        There are two maple trees that are between forty and fifty years old on Ruddy-Lamarca’s
property located within the area that the District asserts is necessary for it to dig the trench and
lay the new pipe. Ruddy-Lamarca installed a new drain field for her septic system in 1996. The
drain field also lies within the area the District contends is needed to replace the pipeline. The
District’s proposed manner of constructing the new pipeline may kill the two maple trees and
cause Ruddy-Lamarca’s septic system to fail.
        Ruddy-Lamarca presented testimony from an expert as to an alternative method of
installing the new pipeline. This method would use one tracked excavator, a small Bobcat
tractor, and a hand compactor. It would require only sixteen feet of total width and would
preserve the trees and the drain field. Although Ruddy-Lamarca’s proposed method of installing
the pipeline would be slower, 1 there was no evidence presented as to the relative cost of the two
proposals.
        The District has an express easement across Ruddy-Lamarca’s property. It gives the
District a “right-of-way for the construction, enlargement and maintenance of all canals, flumes
and water tanks of the vendor, heretofore constructed or hereafter to be constructed, over and
across said lands for the irrigation of other lands.” The document granting the easement was
executed in 1911 and is silent as to the easement’s width and location.




1
  “Slower” is a relative term. The District’s proposal would have required two days to complete the work across
Ruddy-Lamarca’s property. Ruddy-Lamarca’s proposal would have required twice as long to accomplish. There is
no small measure of irony that more than two and one-half years have passed between the time Ruddy-Lamarca
filed her lawsuit and the resolution of this appeal.


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         At trial, the court found that the District had both an express and a prescriptive easement
that were “identical in location and width.” 2 The trial court determined the easement to be
sixteen feet in width, with its centerline at the location of the present pipeline. The trial court also
found that the District had acquiesced in the location of the trees and drain field and ordered the
District to “make every effort” to preserve them when repairing, maintaining or replacing the
pipeline. The District timely appealed.
                                       II. STANDARD OF REVIEW
         We recently described our standard of review in Harris, Inc. v. Foxhollow Const. and
Trucking:
         We review a district court’s bench trial decisions to determine whether the
         evidence supports the findings of fact, and whether the findings of fact support the
         conclusions of law. This Court will set aside findings of fact only when clearly
         erroneous. We will not disturb findings supported by substantial and competent
         evidence even if the evidence is conflicting. It is the province of the district court
         to weigh conflicting evidence and testimony and to judge the credibility of the
         witnesses. We, therefore, liberally construe a trial court’s findings in favor of the
         judgment entered. When it comes to matters of law, however, we are not bound
         by the trial court’s conclusions; this Court is free to draw its own conclusions
         from the facts presented.

151 Idaho 761, 768, 264 P.3d 400, 407 (2011) (citations omitted).
                                                 III. ANALYSIS
         The District asserts that the district court erred when it determined that the width of its
easement was sixteen feet and by directing that the District make every effort to preserve the
trees and drain field. The District also takes exception to a statement in the district court’s
memorandum decision and asks that this Court order that a different judge be assigned upon
remand. We address these issues in turn.
    A. The district court did not err in determining that the width of the secondary
       easement is sixteen feet.
         The parties do not dispute that an easement exists. The dispute surrounds the scope of
that easement. Whether express or obtained by prescription, the result is the same in this case.
An indefinite express easement is defined by the intent of the parties as demonstrated by the
easement’s initial use. Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 629, 277 P.

2
 Although we recognize the inconsistency of the existence of identical express and prescriptive easements, because
neither party objected to the characterization of the easement and the fact that it does not affect the outcome of this
appeal, we will not address it in this opinion.


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542, 545 (1929); see also Reynolds Irr. Dist. v. Sproat, 69 Idaho 315, 334, 206 P.2d 774, 786
(1948). An easement by prescription is defined by the easement’s “continuous and
uninterrupted” use for the prescriptive period. Beckstead v. Price, 146 Idaho 57, 62, 190 P.3d
876, 881 (2008). Either way, the District’s primary easement is limited to the physical
dimensions of the pipeline itself. The first use of this easement was in 1954 as a buried irrigation
pipeline. Likewise, the only continuous and uninterrupted use of the easement for the full
statutory period was as a buried irrigation pipeline.
       The District argues that for purposes of its express easement, “initial use” should include
the method of construction, so that if forty feet of width was needed to originally construct the
pipeline, then the easement is forty feet wide. However, this is not what “initial use” means. The
Coulsen case relied on several out-of-state cases to establish the initial-use rule. None of those
cases considered the method of construction. Rather, they limited the easement to the physical
dimensions of the ditch, canal, or pipeline. See White Bros. & Crum Co. v. Watson, 117 P. 497,
499 (Wash. 1911); Felsenthal v. Warring, 180 P. 67, 69-70 (Cal. Dist. Ct. App. 1919).
       The District erroneously cites Coulsen in support of its contention that the method of
construction fixes the scope of the easement. To the contrary, Coulsen stands for the proposition
that the easement is defined by that which is constructed. The Coulsen opinion cited Winslow v.
City of Vallejo, 84 P. 191 (Cal. 1906), which held that an easement is limited to the course or
manner in which it has been used. Id. at 192. The easement in that case granted a right to enter
onto the land to install a water pipe. It was indefinite as to location and scope. The act of
installing a ten-inch pipeline fixed the scope of the easement to the physical dimensions and
location of the pipeline. Id. at 193. The California Supreme Court held that the addition of a
fourteen-inch pipeline parallel to the existing pipeline would exceed the scope of the easement.
Id. In reaching this conclusion, the Winslow court relied upon an earlier New York decision that
held that replacing a two-inch pipeline with a four-inch pipeline impermissibly expanded the
easement. Id. at 192. In short, the Winslow court only looked to what was on the land, not how it
was put there, to determine the scope of the easement.
       In Coulsen, this Court stated that constructing the ditch limited the easement just as an
express easement would have for a ditch of “the size and location and with the precise means of
conducting water as that actually constructed.” Coulsen, 47 Idaho at 629, 277 P. at 545. In other
words, the scope of the easement is defined by that which was constructed, rather than the means



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of construction. We conclude that “initial use” for purposes of an undefined express easement
does not include all area occupied during the construction of the easement. For this reason, the
District’s primary easement is limited to the physical dimensions of the current pipeline. 3
         The real issue presented by this appeal is not the primary easement. Rather, it is scope of
the secondary easement. “The term ‘secondary easement’ refers to the right to enter and repair
and do those things necessary to the full enjoyment of the easement . . . .” Conley v. Whittlesey,
133 Idaho 265, 271 n.1, 985 P.2d 1127, 1133 n.1 (1999) (citing White Bros. & Crum Co., 117 P.
at 499); Caldwell v. Cometto, 151 Idaho 34, 38, 253 P.3d 708, 712 (2011). Use of the secondary
easement must always be reasonable. Cometto, 151 Idaho at 38, 253 P.3d at 712.
         More recently, in two cases involving secondary easements for snow removal, we have
suggested that a secondary easement may have fixed dimensions. In Machado v. Ryan, 153
Idaho 212, 280 P.3d 715 (2012), we addressed a secondary easement for snow removal and
storage. The owner of the servient estate argued that the road was rarely used in the winter, so
snow removal and storage was not contemplated when the easement was created. Id. at ___, 280
P.3d at 724. We held that the width of the secondary easement is to be determined by the
“circumstances in existence at the time the easement was given,” and that although “snow
removal may be a part of reasonable maintenance on a residential access road, the district court
must determine the width based upon the circumstances at the time the easement was created.”
Id. at ___, 280 P.3d at 724-25. In Cometto, this Court upheld the district court’s finding that
there was a three-foot secondary easement for snow removal. Cometto, 151 Idaho at 38, 253 P.3d
at 712. There, we affirmed the district court’s decision to preserve the trees within that three-foot
easement, as the district court found that the trees within the secondary easement had not been
shown to unreasonably interfere with the use of the secondary easement. Id.
         Although it is necessary for courts to define the scope of easements, both primary and
secondary, in the process of resolving conflicts between parties, 4 this case presents the question

3
  We note that Ruddy-Lamarca has not cross-appealed the district court’s determination that installation of the larger
pipeline was a permissible use of the District’s easement.
4
  We have considered an approach adopted by sister states. The Montana Supreme Court has held that a secondary
easement for an irrigation ditch is “indefinite and uncertain.” Laden v. Atkeson, 116 P.2d 881, 885 (Mont. 1941). It
went on to state that the scope of a secondary easement “cannot be predetermined with certainty” because some
areas of a ditch “may never need attention other than casual inspection” while others “may need constant attention
and repair.” Id. As a result, some areas may need very little in terms of the secondary easement, while others may
require much more. Id. That Court went on to state that “in each instance the amount used would constitute a
question of fact, determination of which would disclose whether the privilege of reasonable usage had been abused.”
Id. at 885-886. Thus, when using the secondary easement, the holder of that easement is under a duty to impose


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whether the width of a secondary easement is immutable or whether it may change over time. In
resolving this question, we will apply long-standing principles.
         The law is well settled with respect to the correlative rights of dominant and
         servient owners of easements. The owner of the servient estate is entitled to use
         the estate in any manner not inconsistent with, or which does not materially
         interfere with, the use of the easement by the owner of the dominant estate. In
         other words, the 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. Dist. v. Washington Fed. Sav., 135 Idaho 518, 522, 20 P.3d 702, 706
(2001) (citations omitted). The dominant estate owner owes a corresponding duty to minimize
the impact of its enjoyment of the easement upon the servient estate. Thus, when considering a
case involving the cleaning and maintenance of canals, this Court held that the owner of the
easement is entitled to occupy no “greater width of land along the banks of the canal than is
absolutely necessary.” Gorrie v. Weiser Irr. Dist., 28 Idaho 248, 253, 153 P. 561, 562 (1915).
         We hold that the rights of the owner of the dominant estate are limited by this rule of
reasonableness. As applied to this case, we observe that methods of pipeline installation that may
have been reasonable fifty or sixty years ago are not necessarily reasonable today. The parties
presented two alternative methods of installing the new pipeline to the district court. One uses
three pieces of heavy machinery and requires up to forty feet of width. The other method uses
one piece of heavy machinery and requires only sixteen feet of width. Given the absence of
evidence of the respective costs of these methods of installation, the district court correctly
determined that the less intrusive method of pipeline installation defined the permissible scope of
the District’s actions on Ruddy-Lamarca’s property. We affirm the district court’s determination
that the District’s easement entitles it to use up to a sixteen-foot wide strip on Ruddy-Lamarca’s
property to install the replacement pipeline.



upon the servient estate only to the extent as is reasonably necessary. The Colorado Supreme Court came to the
same conclusion. It held that defining an absolute width for a secondary easement to an irrigation canal was
inappropriate. Knudson v. Frost, 139 P. 533, 535 (Colo. 1914). Rather, “for the purpose of repair [the easement
holders] may require only the use of defendant’s lands for the necessary distance on either side of plaintiffs’ ditch in
certain places and at certain times.” Id.
  The requirement that the owner of the dominant estate minimize its intrusion onto the servient estate is consistent
with our holding today. Although the Colorado and Montana approaches appear reasonable and are consonant with
the principles governing easements, we do not deem it wise to invite litigants to continue their battles in subsequent
litigation as to “whether the privilege of reasonable usage had been abused.” Thus, we expect trial courts to define
the scope of primary and secondary easements.


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   B. The district court did not err in directing the District to make every effort to
      preserve the trees and drain field.
       As discussed, the District’s easement carries with it a secondary easement to do that
which is “necessary to the reasonable and proper use and enjoyment of the easement” so long as
it burdens the servient estate “as little as possible.” Cometto, 151 Idaho at 38, 253 P.3d at 712.
The district court’s order that the District “make every effort” to preserve the trees and drain
field is consistent with this principle, although it is subject to the underlying principle of
reasonableness. As we interpret the district court’s order as requiring the District to “make every
reasonable effort” to protect the trees and drain field, we affirm the judgment.
   C. We will not address the District’s request for assignment of a new judge on remand.
       The District complains of the following statement in the district court’s memorandum
decision:
               The Court can appreciate that given the fact that the parties are more than
       20 feet apart as to their position on the width of this easement, this case might not
       resolve short of trial. However, given the fact that a construction method was
       available to the District (which apparently would cost no more than the District’s
       preferred method), which would have fit into the width proposed by Ruddy-
       Lamarca, it is perplexing that this case was not capable of resolution prior to trial.
       The costs of preparing and taking this matter to trial would certainly offset any
       possible difference in cost between the two proposed methods (again, no
       difference in cost was shown).
We share the district court’s perplexity, given the costs to the parties of this litigation and the
resulting delay in the installation of the new pipeline. However, because we affirm the judgment
of the district court, we do not address whether the District would be entitled to a new judge on
remand.
                                       IV. CONCLUSION
       We affirm the judgment of the district court. Costs to Ruddy-Lamarca.

       Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.




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