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The Virtues of Validation

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The Virtues of Validation, Article written by  David E. Wynkoop

Validation proceedings have long been a valuable tool for Idaho local highway jurisdictions (LHJ)[1].    A validation may be initiated by a resident, property owner, or the LHJ where there may be doubt or a dispute regarding the existence, location, or dimensions of a public right-of-way (ROW).  Validation is an administrative proceeding conducted by an LHJ, and may be preferable to a quiet title lawsuit conducted by a court.  The importance of the tool was recently reinforced by the Idaho Supreme Court in the case of Richel Family Trust v. Worley Highway District, decided July 22, 2020.

[1] I use the term Local Highway Jurisdictions to include highway districts, county road departments, and perhaps even city street departments. See Idaho Code Section 40-1323.

Idaho Code Section 40-203A sets forth the procedures for validation of ROWs as summarized in Richel:

Idaho Code section 40-203A gives a highway district authority to validate a public right-of-way in circumstances in which, “through omission or defect, doubt exists as to the legal establishment or evidence of establishment of a highway or public right-of-way[.]” Id.   Further, the validation statute recognizes that a validation proceeding may be appropriate when “the location of the highway or public right-of-way cannot be accurately determined due to . . .  loss or destruction of the original survey of the highways or public rights-of-way[.]” Id.  (italics added).  Finally, Idaho Code section 40-203A provides that during validation proceedings, “the commissioners shall consider all information relating to the proceedings and shall accept testimony from persons having an interest in the proposed validation.”  I.C.  § 40-203A(2)(e) (italics added).   …[T]he legislature created “a distinct mechanism . . . wherein a highway district may evaluate whether a highway or public right-of-way was previously established and may remove any remaining doubt surrounding its establishment.”  This mechanism allows a highway district to “consider all information[,]” including extrinsic evidence, to determine the establishment of a public right-of-way.  I.C. § 40-203A(2)(e). Richel, p. 17

Validation procedures are similar to the procedures for vacation of ROWs and, in the proper circumstances, validation and vacation proceedings may be considered simultaneously.  After a validation petition is received, the LHJ should research the facts, set a hearing date, and provide notice of the hearing.  After the hearing, the commissioners shall determine whether validation is in the public interest.  Findings of Fact, Conclusions of Law and an Order should then be adopted by resolution.  The LHJ order may be appealed to district court pursuant to Idaho Code Section 40-208.  The court may reverse or modify the LHJ validation order only if “substantial rights of the appellant have been prejudiced…”.  In other words, the LHJ validation order is entitled to a presumption of correctness, especially with respect to findings of fact.
 
Compare a validation proceeding with a quiet title lawsuit.  The LHJ or any other party may initiate a quiet title lawsuit in district court and the court will conduct judicial proceedings to gather evidence about the history of the ROW.  The court will then make its own decision without the benefit of the LHJ having first made a decision regarding the ROW.  This is a crucial difference.  In a validation, the LHJ first gathers and determines the facts and the court, in its appellate capacity, decides whether the LHJ erred in its decision.  In a quiet title action, the LHJ likely will have the burden to prove to the court what the facts are and the LHJ is not entitled to a presumption of correctness.

– RICHEL CASE –

Now to the really good stuff!  In the Richel case, the district court affirmed an LHJs validation of a ROW.  Richel then appealed to the Idaho Supreme Court, which upheld the LHJ validation order.  The Supreme Court stated that “this Court defers to the factual findings made below by either the highway district or district court unless they are unsupported by substantial and competent evidence.  Richel, p. 7. 

In Richel, there had been a 1913 survey and a viewer’s report for Road No. 20.  This was followed by a deed which referenced the survey and stated it was intended “to pass as the same was actually marked upon the ground, and according to the field notes of the survey of the public road thereof, as made on the 11th to 14th days of October A.D. 1913.”  Richel, p. 7.  The problem is that the field notes and the survey were not recorded, and no one has been able to find a copy of the viewer’s report or survey, and so the deed did not have a legal description associated with it as is usually required for a deed to be valid.  The Court recognized the statutory language of Idaho Code Section 40-203A and stated that the legislature created “a distinct mechanism . . . wherein a highway district may evaluate whether a highway or public right-of-way was previously established and may remove any remaining doubt surrounding its establishment.”  Richel, p. 15.
 
Notwithstanding the usually fatal deed description defect, both courts supported the LHJ findings and held that the evidence was strong enough to support the creation and location of the ROW.  That evidence included: 

  • Road No. 20 was included in the Kootenai County Road Book which depicted “accepted public roads.”  Richel, p. 8.  The road book showed a curved line, labeled as a road, which alignment was consistent with other evidence;
  • There was evidence from a minutes’ book of some public maintenance of Road No. 20 dated back to 1914; 
  • A 1914 survey of proposed roads showed Road No. 20 in a location consistent with other depictions of Road No. 20;
  • In 1915 the Department of Interior approved Road No. 20 as a public road within the Coeur d’Alene Indian Reservation.  This approval was supported by two maps showing a road in the location of Road No. 20;
  • A 1930’s aerial map shows a “light marking that could indicate a path or trail” in the approximate location of Road No. 20.”  Richel, p. 10.  The court ruled that a second map was too blurry to draw any conclusions.
  • Two Metsker maps from 1939 and 1959 depict lines (for roads) in a similar location to Road No. 20 as shown on other maps;
  • No road surface exists today in the location of Road No. 20;
  • Road No. 20 was never abandoned through statutory vacation proceedings.  As an aside, the Court reaffirmed earlier case law that a dedicated ROW can only be vacated through statutory procedures and cannot be informally abandoned by lack of use and maintenance;
  • Road No. 20 provides the only public access to a parcel of private property;
  • A separate deed conveying a ROW to Kootenai County did not support the validation decision because there was no evidence in the record that the LHJ was the successor-in-interest to Kootenai County.  The Court emphasized that “the commissioners of a highway district have exclusive jurisdiction over all highways and public right-of-way within their highway system”, citing Idaho Code Section 40-1310.  Had there been evidence in the record that the LHJ was the successor-in-interest to Kootenai County, the Court may have held the County deed to be relevant supporting evidence.

The Court went on to affirm the LHJ conclusion that validation of Road No. 20 was in the public interest.  The Court then analyzed at length that Idaho Code Section 40-203A provides authority to Idaho LHJ’s to validate a public road, despite the fact that there was no legal description attached to the deed.  The Court noted that the conveyance of the ROW deed was governed by the laws in effect on the date of the conveyance (1914), not at the time of the lawsuit.
 
Finally, Mr. Richel argued that an unconstitutional taking of private property occurred.  The Court dismissed this argument by holding that the validation decision only reaffirmed what had occurred early in the 1900’s.  The statute of limitations on a taking claim had long since passed.  The Court noted that a validation proceeding cannot create a new ROW where one did not previously exist.

– LESSONS LEARNED –

If an LHJ and/or other parties are in a dispute about the existence, location, or width of a ROW, validation may be the preferred tool to resolve the dispute for the following reasons:

  1. The LHJ has more control over validation procedures than over quiet title litigation;
  2. Validation is likely to cost all parties less than quiet title litigation, especially if the validation decision is not appealed;
  3. The LHJ makes the initial Findings of Fact and Conclusions of Law, instead of the courts;
  4. The LHJ findings of fact are presumed to be correct if supported by substantial and competent evidence;
  5. Richel lays out a “road map”.  It shows the kinds of evidence that courts will find persuasive in the event of a court appeal;
  6. It is possible the validation process may lead to a settlement agreement without having to resort to the courts;
  7. You must enjoy being a history detective, or at least be willing to hire someone to research all available records.  The exact facts are essential to the outcome with respect to both validation proceedings and quiet title litigation;
  8. It is possible that validation proceedings will cause everyone involved to carefully research historical records and additional relevant facts may be presented at the hearing which were not previously known to the LHJ; 
  9. One case I handled involved a Hatfield/McCoy feud over a ROW.  Both sides passionately believed they were absolutely correct.  The validation process, and particularly the public hearing resulted in both sides hearing the facts and opinions of the other side and coming to a collective understanding that the issues were not as one-sided as each side previously believed.  While they were all not quite to the point of singing “kumbaya”, the LHJ commissioners came to a decision whereby the Hatfields and McCoys stopped “shooting” at each other.  That said, the process may result in passions rising to the surface, before hopefully subsiding.
  10. More often than not, ROW disputes occur when there have been ownership changes to the adjoining properties.  A newcomer buys a ranch or recreational property.  The newcomer does not want “riff-raff” driving through his property and chasing his livestock or otherwise interfering with the quiet enjoyment of his property.  However, the new fence and gate may prevent others from enjoying historic access to public lands, or even access to other private property.  Inaction is likely not a viable option.
  11. Validation cannot be used to create a new ROW where none previously existed.  To do so could result in a taking requiring compensation to the adjoining property owner(s).             
  12. While the validation statute applies to highway districts and county road departments, there is an argument it may also apply to city streets in some circumstances.  The statute does not apply to platted streets, but some city streets were located outside the city when the ROW was first created.  Unplatted ROWs now within a city, but created prior to annexation, may be the subject of validation proceedings.  A city street department is a highway district for purposes of Idaho Code Section 40-1323.  CYA – Consult your attorney.

CONCLUSION

Richel articulates the value of validations.  Validation proceedings may provide the best tool for resolving ROW disputes as quickly and inexpensively as possible.
 
*Mr. Wynkoop has actively practiced as an Idaho attorney for 41 years.  He represents numerous Idaho local highway agencies.  Mr. Wynkoop previously served as General Counsel and Commissioner for the Ada County Highway District and is past Chairman of the Government Attorneys Section of the Idaho State Bar.