Monaco v. Bennion

585 P.2d 608, 99 Idaho 529, 1978 Ida. LEXIS 447
CourtIdaho Supreme Court
DecidedOctober 12, 1978
Docket11925
StatusPublished
Cited by17 cases

This text of 585 P.2d 608 (Monaco v. Bennion) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monaco v. Bennion, 585 P.2d 608, 99 Idaho 529, 1978 Ida. LEXIS 447 (Idaho 1978).

Opinions

BISTLINE, Justice.

This controversy stems from the unusual manner in which an access road was depicted on the plat of a subdivision of lakeshore property at Windy Bay on Lake Coeur d’Alene. In 1962, defendants Bennions, the original owners of the property, caused the plat to be made, dedicated and recorded under the name “Second Addition to Ben-point.” The filed plat shows what to the casual observer would appear to be a “platted” roadway. No other roadway of any kind is indicated or depicted on the plat which sets forth the owners’ certificate, stating: “We dedicate the roads herein as private roads for the use of the lot owners.” The plaintiffs and appellants herein, Monaco and wife, Holman and wife, and Gerdo and wife, became such lot owners. Each lot deed states that the conveyance is subject to a “right of way 10 feet wide along the back northeasterly lot line to be used by the owners of the point property.”

Prior to the time of platting, there was and had been an actual existing road on the peninsula property, the approximate location of which corresponds generally with the illustrated road.1 The existing road courses generally along the back northeasterly lot lines of the lots here involved, terminating on platted lot 5. Lot 5, comprising the tip of the peninsula, resembles an inverted isosceles triangle peninsula with approximately 290 feet of beach frontage on either side. The plat shows the private road penetrating lot 5 a distance of approximately 150 feet toward the apex of the point.

The Holmans have owned lots 3 and 4 since 1963 and 1965 respectively; lot 6 is still in the hands of the Bennions; a parcel of land within lot 5 and adjacent to the Holmans’ lot 4, and across the roadway from Bennion’s own lot 6, was sold to the Gerdos in 1963 and is designated as Tax No. 5618 on the accompanying diagram, a partial reproduction of defendants’ exhibit E. The lot southeasterly of that, Tax No. 6128, was sold in 1964 to the Monacos’ predecessors-in-title. All built cabins and used the actual existing road to gain access to the lake for the purpose of launching their boats. (Other suitable access for boat launching was four miles away.) The lot-owners formed an association and spent substantial funds of their own in improving and landscaping this private existing roadway, including its traverse onto lot 5 where the boats were launched.

[531]*531All was well at the lake until Bennion claims to have become concerned over what he took to be Monaco’s encroachments upon the “reserved easement,” this being the 10-foot strip at the back of each lot. A survey (defendants’ exhibit E) made at Bennion’s direction disclosed that the actual existing road did not coincide with the road as sketched in on the plat (plaintiffs’ exhibit 3). Bennion thereupon declared that the use of lot 5, less parcels owned by the Gerdos and Monacos, was no longer permitted, because of Bennion’s plans for further subdividing it. Consequently, in the fall of 1973, he instructed his sons and workmen to destroy the actual existing road from where it extended beyond Monaco’s southeasterly lot line. The road obliteration included uprooting the Benpoint Road Association’s shrubbery and tree plantings. Bennion also let a contract for the placing of a fence along what was alleged to be the true boundary line common to Monaco and the remainder of lot 5. At Bennion’s direction, logs and boulders were placed across the access leading down to the beach and boat-launching area.

I. The Roadway Controversy.

All plaintiffs joined together in seeking to enjoin the Bennions from blockading the existing actual roadway, basing their claim for such relief on the right of use of the roadway which they contend arose from the dedication language contained in the owner’s certificate. At time of trial, plaintiffs alleged additionally that the right to use that roadway had been acquired by adverse usage. We can not see from the record that the trial court ever passed upon the first contention. As to the second, the court held that any use by Monaco of the roadway to the point was with Bennion’s permission, and that any use by the other plaintiffs was too sporadic to give rise to a prescriptive easement.

On appeal, all plaintiffs assign as error the trial court’s finding that the'use of the road was by permission, contending that such a finding is contrary to and unsupported by the evidence. We do not address this claim of adverse possession in view of our holding that the legal effect of Bennions’ act in dedicating the private road shown on the Bennions’ plat was to grant plaintiffs a legal right to use the existing road as a result of their status as lot owners.

As mentioned earlier, Mr. Bennion claimed to have discovered in 1973 that the “platted road” did not coincide with the “reserved road” along the back property line. Because of this he hired Mr. James LePard, a licensed civil engineer and surveyor, to survey the property for what counsel for Bennions stated as “the purpose of checking a road easement that appears on that plat.”

On cross-examination, Mr. LePard candidly gave this testimony as to the unsurveyed private roadway of the filed plat:

A I believe that I have reproduced the location of the platted road to the best of my ability on my map.
Q These dotted lines [on the 1962 plat], they are not aligned one with the other, they are not straight, some are rather curved or somewhat slant, wouldn’t you say that?
A In general they align with each other, but not truly aligned.
Q Would that indicate to you they have not been drawn with instruments? In other words, had they been drawn freehand?
A That’s a very distinct possibility.
Q Would it be even more than that, a probability, possibly, excuse me, that this is merely sketched in, this road?
A That is possible. I can’t testify as to how it was drawn.
Q Did you check with the records of the surveyor who prepared this sketch in order to determine in what fashion they located this road on the plat?
A No, I did not.

On this point Mr. Bennion testified that the dotted lines on the 1962 plat were generally accurate, but that “as they indicated the road it was considerably further over in [532]*532relation to the property line than should be allowed, if we were going to develop lots.”

Mr. LePard further testified that the existing roadway (which he considered as the improved surface, on in-the-field observation), as it went south from Gerdo’s property, was in the neighborhood of twelve feet in width, widening to twenty-five feet, or wider, terminating on lot 5, where it blends “with the natural topography and ground, or it may turn and go down to the lake. I don’t recall.”

Throughout his testimony, Mr. LePard referred to the road shown on the plat as a “platted road.” Nonetheless, just as all that glitters is not gold, all roadways sketched or illustrated on plats are not platted roads. The use of the word “plat” signifies a subdivision of land into lots, streets and alleys, marked upon the earth, and represented upon paper.”2 McDaniel v. Mace, 47 Iowa 509, 510 (1877). See also Black’s Law Dictionary (4th ed. 1968).

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Monaco v. Bennion
585 P.2d 608 (Idaho Supreme Court, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
585 P.2d 608, 99 Idaho 529, 1978 Ida. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monaco-v-bennion-idaho-1978.