By David E. Wynkoop, Attorney at Law
David E. Wynkoop has actively practiced as an Idaho attorney for 35 years. He represents numerous Idaho local highway agencies as well as the Local Highway Technical Assistance Council. Mr. Wynkoop previously served as General Counsel and Commissioner for the Ada County Highway District. He is past Chairman of the Government Attorneys Section of the Idaho State Bar. Mr. Wynkoop is a partner in the firm of SHERER & WYNKOOP, LLP, 730 N. Main St., Meridian, Idaho 83642, phone 208-887-4800.
The Idaho Supreme Court recently clarified and reaffirmed Idaho law relating to the creation of public highways by road petition. In Trunnell v. Fergel, Idaho’s highest court held that an unopened, unmaintained public right-of-way created in 1908 remains a dedicated public right-of-way, even though a buyer purchased the land with no knowledge of the right-of-way.
Creation of public highways by the road petition process was common in Idaho in the late 1800’s and early 1900’s. If property owners wanted a new road, they petitioned the county or highway district commissioners. The commissioners appointed viewers to research the proposed right-of-way and investigate the need for the road. The commissioners received the viewers’ report, and if they agreed with the findings, declared the proposed right-of-way to be a public highway. The right-of-way was then recorded in a county road book kept in the county recorder’s office.
There is usually no issue if the road was opened and maintained. However, if the road was never opened or maintained there had been some question whether the right-of-way retained its status as an unopened public right-of-way; particularly as against a buyer who purchased land with no knowledge of the road petition.
In the Trunnell case, County Road 32 was declared to be a public road in 1908 by the Bonner County Board of Commissioners. The declaration was based upon a road petition presented to the County. The road petition was entered into Bonner County’s Road Book. County Road 32 was never opened or maintained at public expense.
In 1991, Fergel bought ten acres of land to build a home. Fergel had no knowledge of County Road 32. When she bought her property she observed “two wheel tracks” which ran north-south along the eastern edge of
her property eventually reaching Trunnell’s property. Trunnell purchased his property in 2001 and got into a dispute with Fergel whether he could use the two wheel track on Fergel’s property. Litigation ensued.
The trial court held in favor of Fergel. The lower court ruled that because Fergel bought her land with no knowledge of County Road 32, she purchased her land free and clear of the County Road 32 right-of-way. The Idaho Supreme Court reversed, holding that County Road 32 remained a public right-of-way since it was validly created by the road petition statutes and had not been formally vacated by the County pursuant to Idaho Code Section 40-203(1). There can be no informal abandonment of a public road based upon the lack of opening or maintenance of the road.
The courts had to decide between the two competing legal principles. Generally, a buyer of land purchases the land free of any encumbrances if the buyer has no actual or constructive knowledge of the encumbrance. Constructive knowledge is imputed to the buyer if documentation of the encumbrance is recorded in the records of the county recorder.
The problem is that county and title company employees are not always aware of the road petitions or the county road books. It is not uncommon for a property buyer to purchase a title report which fails to reference the public right-of-way created by a road petition. Fergel argued that because she was not actually aware of the road petition when she purchased her land, she took her land free from the public right-of-way. The more difficult issue is whether Fergel had constructive knowledge of County Road 32 based upon the road petition and/or the county road book. Fergel produced testimony from a title company manager that a prudent person would not know to search for the road petition or the county road book. Apparently, Fergel purchased a title report which did not disclose the County Road 32 right-of-way.
The Supreme Court rejected Fergel’s arguments, holding that since County Road 32 was properly created and was not formally vacated, it remained a public right-of-way.
Lessons Learned
1. Highway agencies should locate the applicable road petitions and road books and make copies. These documents should be located in the county recorder’s or assessor’s records but may have been placed in cold storage. County employees may not be aware of the significance of the documents. There is a risk that they could be disposed of.
2. Identify the road petition rights-of-way on your official map. If a right-of-way has never been opened or maintained, identify it on the map as an unopened public right-of-way.
3. Consider re-recording the road petitions in the county recorder’s records to improve the odds that county and title company employees are made aware of the road petitions.
4. If a road is to be widened or relocated, check to see whether the new location is the subject of a road petition.
The importance of road petitions can be demonstrated with an example. An Idaho local highway agency decided to re-locate and widen a collector road. The agency purchased title reports and appraisals and began right-of-way acquisition negotiations with the appropriate land owners. Several of the land owners hired an attorney and demanded payments far in excess of the appraised valuation. Further research found a road petition from 1907 not disclosed by the title report which overlapped with the location of the new road.
After a copy of the road petition and the Trunnell case was supplied to the property owners’ attorney, his clients became much more reasonable and quickly settled. As of this writing, the new road is under construction. The taxpayers were saved many tens of thousands of dollars because the road petition was located.
Idaho courts have treated road petition rights-of-way as dedicated public rights-of-way. This puts roads created by petition in the same category as roads created by subdivision plat. Such roads cannot be adversely possessed. Even if the road was never opened or maintained by a public agency, it remains a public right-of-way unless and until the statutory vacation procedures are followed.