                   IN THE SUPREME COURT OF THE STATE OF IDAHO
                                  Docket No. 37984
PAUL TRUNNELL, an individual,                         )
                                                      )
      Plaintiff-Appellant,                            )
                                                      )
and                                                   )        Coeur d’Alene, April Term
                                                      )
BILL LOMU,                                            )        2012 Opinion No. 83
                                                      )
      Plaintiff,                                      )        Filed: May 31, 2012
                                                      )
v.                                                    )        Stephen W. Kenyon, Clerk
                                                      )
VERNA FERGEL,                                         )
                                                      )
      Defendant-Respondent.                           )

         Appeal from the District Court of the First Judicial District, State of Idaho,
         Bonner County. Hon. Steven C. Verby, District Judge.

         District court decision on injunctive relief, reversed and remanded.

         Featherston Law Firm, Sandpoint, for appellant. Brent C. Featherston argued.

         Berg & McLaughlin, Chtd., Sandpoint, for appellant.

         Jonathan W. Cottrell, Chtd., Sandpoint, for respondent. Jonathan W. Cottrell
         argued.

                                 ___________________________

BURDICK, Chief Justice
         This case comes before this Court on an appeal from the district court’s ruling against
Paul Trunnell and Bill Lomu’s (collectively “Trunnell”) Complaint and Petition for Injunctive
Relief. The complaint alleged the existence of a public road on Verna Fergel’s (Fergel) property,
and that Fergel had denied access to the road causing damage to Trunnell. The district court held
that Fergel was a bona fide purchaser for value, and that she did not have actual or constructive
notice of the public nature of the road when she purchased the property. We reverse and remand.




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                   I. FACTUAL AND PROCEDURAL BACKGROUND
       In 1908, at the request of Trunnell and Fergel’s predecessors in interest, the Bonner
County Board of Commissioners (Commissioners) began the process of creating the road at
issue, County Road 32. The Commissioners first appointed “viewers” to issue a report of the
possible location of the road. After receiving the viewers’ report, the Commissioners approved
the road by formal action at a commissioner’s meeting. The road was subsequently recorded in
Bonner County’s “Road Book” as County Road No. 32. The whole process from the petition
until the recordation took over one year and four months.
       In 1991, Fergel and her now deceased husband bought ten acres of land in Bonner
County to build a home. According to Fergel, neither she nor her husband knew about County
Road 32 or any public right-of-way over the property at the time of their purchase. Fergel refers
to the road as “two wheel tracks . . . that are seasonally muddy and difficult to keep open.”
However, aerial photos of the area show that the road was visible from the air in 1958 and, more
recently, by satellite. The road runs north-south along the eastern edge of Fergel’s property
eventually reaching Trunnell’s property.
       Trunnell purchased his property from Kathy and Karleen Neumann in 2001. In August
2007, Trunnell filed a complaint and petition for injunctive relief pro se. The complaint alleged
that Fergel prevented Trunnell and others from accessing the road, interfering with Trunnell’s
economic interests, and causing damage to Trunnell’s property. Fergel filed an answer on
September 25, 2007. An amended complaint was filed on October 24, 2007. After retaining
counsel, Trunnell was permitted to file a second amended complaint on June 24, 2008. The
second amended complaint added Bonner County as a defendant.             The county was later
dismissed from this action without prejudice.
       On January 23, 2008, Fergel filed a motion for summary judgment. In denying the
motion, the district court held that there were genuine issues of material fact of whether County
Road 32 had been abandoned as the term is defined by statute.
       A bench trial ultimately took place April 28–30, 2009, and closing arguments were heard
on July 8, 2009. On September 4, 2009, the district court issued an oral judgment. However, on
September 11, 2009, the district court withdrew that decision and requested additional briefing
on the relevant statutes. After receipt of this additional briefing, the district court issued an
amended memorandum decision on May 26, 2010. In the amended decision, the district court

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held that County Road 32 was a validly created road, but that Fergel took title without actual or
constructive notice of the county road and was a bona fide purchaser for value. A final judgment
was entered on July 6, 2010. Trunnell filed a timely notice of appeal on August 13, 2010.
                                      II. ISSUES ON APPEAL
      1. Whether the trial court erred as a matter of law by applying the defense of good faith or
         bona fide purchaser for value to Fergel.
      2. Whether either party is entitled to attorney fees and costs on appeal.
                                  III. STANDARD OF REVIEW
         “Review of a trial court’s conclusions following a bench trial is limited to ascertaining
whether the evidence supports the findings of fact, and whether the findings of fact support the
conclusions of law.” Borah v. McCandless, 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009). This
Court exercises free review over questions of law. Belstler v. Sheler, 151 Idaho 819, 823, 264
P.3d 926, 930 (2011). However, “[s]ince it is the province of the trial court to weigh conflicting
evidence and testimony and to judge the credibility of witnesses, this Court will liberally
construe the trial court’s findings of fact in favor of the judgment entered.” Borah, 147 Idaho at
77, 205 P.3d at 1213. This Court will not substitute its view of the facts for that of the trial court,
and will not set aside the trial court’s findings of fact unless the findings are clearly erroneous.
Id.
                                           IV. ANALYSIS
A. The trial court erred as a matter of law by applying the defense of bona fide purchaser
   for value to Fergel.
         Trunnell argues that there are no cases in Idaho’s appellate case law where the defense of
bona fide purchaser is applied to invalidate a public right-of-way. Fergel disagrees and argues
that there is no Idaho case law that provides a distinction between public and private easements.
In support, Fergel provides case law from other states that universally hold that unrecorded
public or private easements are equally subject to the rights of a good faith purchaser.
             1. The distinction between public and private easements is not an issue brought for
                the first time on appeal.
         Fergel argues that Trunnell did not argue a distinction between public and private
easements before the district court. “Issues not raised below but raised for the first time on
appeal will not be considered or reviewed.” Mountainview Landowners Co-op. Ass’n, Inc. v.
Cool, 142 Idaho 861, 866, 136 P.3d 332, 337 (2006). In response, Trunnell points to his


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Plaintiff’s Second Post-Trial Brief. In that brief, Trunnell cited Schurger v. Moorman, 20 Idaho
97, 117 P. 122 (1911), and used it to support his argument that public easements may be treated
differently than private easements. Therefore, this issue is not being raised for the first time on
appeal.
             2. Whether the trial court erred as a matter of law by applying the defense of good
                faith or bona fide purchaser for value to Fergel.
          Though Trunnell structured his argument to focus on the differences between public and
private easements, the crux of the matter is whether the defense of bona fide purchaser for value
can be applied to Fergel. More specifically, if the bona fide purchaser defense is applicable to
the portion of County Road 32 that passes over Fergel’s property.
                     a. County Road 32 is a validly created public road.
          In its amended memorandum decision, the district court ultimately found that County
Road 32 was a validly created road:
                 The evidence presented and the actions of the Bonner County
          Commissioners create a satisfactory record showing the establishment of County
          Road No. 32 as a public road pursuant to the requirements of 1 Idaho Code Ann.
          875, which was the operative law in 1908. This court again concludes that the
          phrase ‘recorded by order of the board of commissioners’ does not mandate the
          recording of the road description or the recording of the actions of the county
          commissioners in the recorder’s office.
When County Road 32 was created in 1908, the applicable highway statute was Revised Statute
§ 875, which read:
                   Roads laid out and recorded as highways, by order of the board of
          commissioners, and all roads used as such for a period of five years, provided the
          latter shall have been worked and kept up at the expense of the public, or located
          and recorded by order of the board of commissioners, are highways.
The district court’s determination on the public nature and valid creation of County Road 32 has
not been appealed by either party.
          Idaho Code section 42-203 governs the abandonment of a public highway:
          Until abandonment is authorized by the commissioners, public use of the highway
          or public right-of-way may not be restricted or impeded by encroachment or
          installation of any obstruction restricting public use, or by the installation of signs
          or notices that might tend to restrict or prohibit public use. Any person violating
          the provisions of this subsection shall be guilty of a misdemeanor.
I.C. § 42-203(5); see also Farrell v. Bd. of Comm’rs, Lemhi Cnty., 138 Idaho 378, 387, 64 P.3d
304, 313 (2002) (where “abandonment required ‘formal action’ by the board, which includes a

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finding to the effect that the road is no longer necessary, as well as publication.”). Idaho Code
section 40-203(1) governs the specific means by which public highways may be abandoned and
vacated. 1       Through the enactment of the abandonment statutes, the legislature has elevated
public easements above private easements. In its amended decision, the district court made no
distinction between public and private easements. Additionally, the district court made no
finding that County Road 32 had ever been abandoned by the county commissioners.
                         b. Bona Fide Purchaser for Value
           Generally, “[o]ne who purchases land expressly subject to an easement, or with notice,
actual or constructive, that it is burdened with an existing easement, takes the land subject to the
easement.” Halvorson v. N. Latah Cnty. Highway Dist., 151 Idaho 196, 205, 254 P.3d 497, 506
(2011) (quoting Akers v. D.L. White Const., Inc., 142 Idaho 293, 301, 127 P.3d 196, 204 (2005)).
To be considered a bona fide purchaser, “a party ‘must show that at the time of the purchase he
paid a valuable consideration and upon the belief and the validity of the vendor’s claim of title
without notice, actual or constructive, of any outstanding adverse rights of another.’” Weitz v.
Green, 148 Idaho 851, 859, 230 P.3d 743, 751 (2010) (quoting Imig v. McDonald, 77 Idaho 314,
318, 291 P.2d 852, 855 (1955)).                   “Further, one who purchases property with sufficient
knowledge to put him, or a reasonably prudent person, on inquiry is not a bona fide purchaser.”
Imig v. McDonald, 77 Idaho at 318, 291 P.2d at 855.
           The district court determined that Fergel was a bona fide purchaser for value because she
had neither actual nor constructive notice of the public nature of County Road 32. However,
such a conclusion would allow Fergel to disregard any public interest in County Road 32. In this
context, applying the bona fide purchaser for value defense would vitiate any interest the county
had in County Road 32, a public highway. By extinguishing that interest, this would be akin to

1
    Idaho Code section 40-203 states, inter alia, that:

           (1) A board of county or highway district commissioners, whichever shall have jurisdiction of the
           highway system, shall use the following procedure to abandon and vacate any highway or public
           right-of-way in the county or highway district system including those which furnish public access
           to state and federal public lands and waters:
           (a) The commissioners may by resolution declare its intention to abandon and vacate any highway
           or public right-of-way considered no longer to be in the public interest.
           (b) Any resident, or property holder, within a county or highway district system including the state
           of Idaho, any of its subdivisions, or any agency of the federal government may petition the
           respective commissioners for abandonment and vacation of any highway or public right-of-way
           within their highway system. The petitioner shall pay a reasonable fee as determined by the
           commissioners to cover the cost of the proceedings.

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abandonment. Because I.C. § 40-203 establishes the only avenues through which a validly
created public road may be abandoned, the bona fide purchaser defense is not available to Fergel.
Therefore, we find that the district court erred in holding that Fergel took title to her property
free of the encumbrance of County Road 32.
B. Neither party is entitled to attorney fees or costs on appeal.
        Trunnell and Fergel both ask for attorney fees and costs on appeal. Trunnell’s initial
brief cites I.A.R. 40 and 41, but no specific statute as a basis for attorney fees on appeal. Fergel
argues she is entitled to attorney fees under I.C. § 12-121 and that Trunnell has pursued this
appeal frivolously. In his reply brief, Trunnell argues that the issues in this appeal are matters of
first impression in the state of Idaho.
        “A party is not entitled to attorney’s fees if the issue is one of first impression in Idaho.”
Fuchs v. State, Dept. of Idaho State Police, Bureau of Alcohol Beverage Control, 152 Idaho 626,
__, 272 P.3d 1257, 1263 (2012) (quoting Lane Ranch P’ship v. City of Sun Valley, 145 Idaho 87,
91, 175 P.3d 776, 780 (2007)). As the issue of the interests of a bona fide purchaser for value
versus a public highway abandonment is one of first impression, neither party is entitled to
attorney fees on appeal.
                                          V. CONCLUSION
        We find that the bona fide purchaser for value defense is not available to Fergel as the
defense would constitute an abandonment of County Road 32 in contravention of I.C. § 40-203.
We therefore reverse the holding of the district court and remand for proceedings consistent with
this opinion. Neither party is entitled to receive attorney fees on appeal, as this is an issue of first
impression before this Court. Costs to Trunnell.
        Justices EISMANN, J. JONES, W. JONES and HORTON, CONCUR.




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