1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 44887 WILLIAM R. FISCHER and M. ANN FISCHER, Trustees of the William and Ann Fischer Revocable Trust,

Plaintiffs

- Respondents,

v.

JAMES F. CROSTON and MARJORIE C. CROSTON, husband and wife, and ALL UNKNOWN OWNERS AND/OR OTHER PERSONS OR ENTITIES CLAIMING ANY INTEREST IN THE FOLLOWING DESCRIBED REAL PROPERTY, (see file for property description),

Defendants

- Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise, January 2018 Term

2018 Opinion No. 15

Filed: March 2, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Joel E Tingey, District Judge.
The judgment of the district court is affirmed

. Dunn Law Offices, Rigby, for appellants. Rob in D. Dunn argued.

Holde n, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, for respondents. W. Forrest Fischer argued.

_________________________________ BURDICK, Chief Justice. This appeal involves a boundary dispute arising out of Bonneville County. James and Marjorie Croston (Cr ostons) appeal the district court’s grant of summary judgment in favor of William R. Fischer and M. Ann Fischer, trustees of the William and Ann Fischer Revocable Trust (Fischers). The Crostons own property adjacent to the south ern side of property owned b y the Fischers. For several decades
, an existing post

- and

- wire fence divided the two properties. The existing fence fell into disrepair, and in 2015, the Fischers sought to remove the existing fence and replace it with a new fence . The Fischers had a surve y done to ensure the new fence2 would be correctly placed; however, the survey revealed that the location of the old fence line
did not reflect the platted property line. Instead, the old fence line extended south of the platted line approximately three feet on the eastern side and approximately nine feet on the western side. Following the survey, the Crostons built a new fence on the survey line, which prompted the Fischers’ filing of the present complaint. Both parties claim they are the owners of the t ract of land between the old fence line and the platted boundary line. The district court granted the Fischers’ motion for summary judgment reasoning that the old fence constituted a boundary by agreement, and there was no agreement to change the boundary line . The Crostons timely appeal that ruling, and we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND This case involves a dispute as to the boundary line separating the adjacent Croston and Fischer properties, and whether an existing fence line or a new surve y is determina tive of the boundary line between the properties. The Fischers acquired their property in 1992 and
transferred it in to a trust in November 2001

. The Crostons own the adjacent property on the
south ern side of the Fischer property , with the nor thern boundary of the Crostons’ property forming the southern boundary of the Fischers’ property. The Crostons acquired their property in 1959. At the time the Crostons p urchased their property there was an existing post

- and

- wire fence running along t he Fi scher property’s southern boundary line, dividing the Fischer prop erty from the Croston property. Evidence indicated the fence had bee n in place since at least 1951. In 2015, the existing fence was in a state of disrepair, and the Fischers decided to repl ace it with a new fence in August 2015. In September 2015, during the process of replacing the old fence, the Crostons sent the Fischers a letter stating that the Fischers had engaged in trespass and malicious injury to property, and that if the Fischers did not “restore [Crostons] property to [their] satisfaction” the Fischers would be prosecuted under various statutes. The Fischers then had a survey conducted, and claim the purpose of the survey was to locate the exact line of the old fence so a new fence could be accurately placed on the old fence line without any disputes

. Both parties believed the survey would show that the old fence line was the same as the platted boundary line between the properties.
Prior to th e survey being conducted , Mrs. Fischer spoke with the Crostons’ son, Jim Croston (Jim) , about the Fischers ’ intention to have a survey done so that there would be no dispute about where the fence should be place d. Jim was outside measuring and marking wher e3 the old fence line had been, when Mrs. Fischer came out of her house and asked Jim what he was doing, and Jim responded that he was “determining wh ere the fence line used to be.” Mrs. Fischer replied , “ [w] e will be replacing the fence with a much better fence. We are going to get a survey to find out where the line is at. We are using the same surveyors as the City uses so [there] shouldn’t be any disputes. ” Jim replied, “ [o] kay.” The Crostons claim this conversation
between their son and Mrs. Fischer con stitutes a binding agreement that the results of the survey would control where the boundary and new fence dividing the properties was to be placed. The survey was completed and revealed that the old fence line was south of the platted property line. The old fence line extended three feet south of the platted property line on the east side of the property, and nine feet south of the platted property line on the west side of the property. The tract of land between the platted boundary line and the old fenc e line is called Tract 1, and is the parcel of property at issue in this case, with both parties claiming ownership of
Tract 1. The Fischers notified the Crostons of th e survey results, and asked the Crostons not to install a fence until the dispute was resolved. The Fischers then placed “n o trespassing” signs along the old fence line. The Crostons went past the no trespassing signs and built a new fence on the platted boundary line based on the survey results. The F ischers then filed a complaint seeking a declaration that the old fence line is the true boundary line under the doctrine of boundary line by agreement. The Fischers also sought treble damages and attorney fees based on the Crostons’ trespass and Idaho Cod e section 12

- 121. The district court granted the Fischers ’ motion for summary judgment and dismis sed the
Crostons’ counter

- claim

. The distr ict court reasoned that there was no genuine dispute that the old fence that divided the property li ne for over 60 years cons tituted a boundary by agreement

. The district court also found there was no agreement or contract to adopt a new boundary line.
The district court stated that such an agreement needed to be made between the actual owners of the adjacent propertie s, and there was no evidence such an agreement was reached in this case. The district court went on to say the comments made by Mrs. Fischer to the Crostons’ son
, Jim
, regarding her obtaining of a survey to determine the property line did not give rise to an enforceable agreement to change the property line. Finally, the district court reasoned, there was no consideration to support any alleged agreement because the Crostons did not give up anything of value in exchange for the alleged decision of the Fisch er s to move the fence north and give the Crostons more property. Accordingly, the district co urt held that the old fence line was4 determinative of the property line and thus the Fischers were the owners of Tract 1. The district
court also concluded the Cro stons trespassed when they crossed the old fence line and installed a new fence. Following the entry of summary judgment, the district court declined to award attorney fees under Idaho Code section 12

- 121, but awarded fees to the Fischers limited to the trespass action under S ection 6

- 202

. The Crostons timely appeal ed

. II. ISSUES ON APPEAL
1. Whether there was a valid, binding agreement to change the boundary line based on the survey results.
2. Whether the Crostons trespass ed onto the Fischers’ property when the Crostons entered Tract 1 and constructed a fence thereon.
3. Whether the district court properly awarded attorney fees under S ection 6

- 202 and

w hether either party is enti t led to attorney fees on appeal.
III. STANDARD OF REVIEW “When reviewing a grant of summary judgment, this Cou rt employs the same standard as
the district court.” Idaho Youth Ranch, Inc. v. Ada Cnty. Bd. of Equalization , 157 Idaho 180, 182, 335 P.3d 25, 27 (2014). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). “ Disputed facts should be construed in favor of the non

- moving party, and
all reasonable inferences th at can be drawn from the record are to be drawn in favor of the non

moving party. ” Fuller v. Callister , 150 Idaho 848, 851, 252 P.3d 1266, 1269 (2011) (quoting
Castorena v. Gen. Elec. , 149 Idaho 609, 613, 238 P.3d 209, 213 (2010)). “However, the nonmoving party cannot rely on mere speculation, and a scintilla of evidence is insufficient to create a genuine issue of material fact.” Intermountain Real Prop s. , LLC v. Draw, LLC , 155 Idaho 313, 316

– 17, 311 P.3d 734, 737

– 38 (2013) (quoting Bollinger v. Fall River Rural Elec.
Co

– op., Inc. , 152 Idaho 632, 637, 272 P.3d 1263, 1268 (2012 ) ).

IV. ANALYSIS
A. There was no binding agreement or contract to change the existing boundary line

. Neither party disputes that the old fence line constituted a boundary by agreement, a nd as such was reflective of the true property line until it was torn down and a new survey conducted. The Crostons contend that upon the old fence being torn down and a survey conduct ed , an agreement was formed to place the new fence on the survey line. T he Fischers contend no such agreement existed and the new fence should be placed on the same line as the old fence. The5 district court granted summary judgment in favor of the Fischers, concluding the boundary by agreement evidenced by the old fence was de terminative of the property line, a nd no binding agreement existed to change the boundary line. For the reasons discussed below, the district court’s order granting summary judgment is affirmed. As an initial matter, b ecause both parties agree that the old fence line constituted a boundary by agreement, the issue is whether there was an enforceable agreement between the parties to change where the boundary would be located based on the survey results. It is undisputed t hat there was no written agreement or contract between the parties. Rather, the Crostons rely on a verbal exchange that took place between Mrs. Fischer and the Crostons’ son Jim to support their argument that an agreement was in place. The Crostons allege that Jim was

out m arking where the old fence line had been when Mrs. Fischer came out and asked Jim what he was doing, to which Jim responded that he was “determining where the fence line used to be.” Mrs. Fischer replied, “ [w] e will be replacing the fence with a much better fence. We are going to get a survey to find out where the line is at. We are using the same surveyors as the City uses so shouldn’t be any disputes.” Jim replied, “ [o] kay.” The Crostons contend this exchange formed a binding agreement t o place the new fence line on the survey line. For the reasons below, there was no enforceable agreement between the parties. 1 First, an oral agreement purporting to establish a new boundary line and thus transfer
land would violate the statute of frauds

. “ An agreement to convey real estate is generally invalid under the statute of frauds unless it is committed to writing. ” Goodman v. Lothrop , 143 Idaho 622, 627, 151 P.3d 818, 823 (2007) ; I.C. §§ 9

– 505(4), 55

– 601. Idaho Code section 9

- 505 provides,
In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evid ence of its contents:

. . . An agreement for

. . . the sale, of real property, or of an interest therein, and such agreement, if made by an agent of the party sought to be charged, is

1 The Crostons also argue Exhibit D of the affidavit of their daughter Linda Penning demonstrates there was an enforceable agreement between the parties. However, t he Crostons do not appeal the district court’s striking of Exhibit D, and thus cannot rely on it on appeal. See Foster v. Traul , 145 Idaho 24, 30 n. 2, 175 P.3d 186, 192 n. 2 (2007) (determining that when a party does not appeal a district court’s striking of an affidavit, those portions of the affidavit stricken at the district court remain stricken on appeal ).6 invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged.
I.C. § 9

- 505 (4). “ Failure to comply with the statute of frauds renders an oral agreement unenforceable both in an action at law for damages and in a su it in equity for specific performance. ” Hoffman v. S V Co., Inc. , 102 Idaho 187, 190, 628 P.2d 218, 221 (1981)

. There is an exception to this general rule if the agreement at issue qualifies as a boundary by agreement. Goodman , 143 Idaho at 627, 151 P.3d at 823. This exception is permitted because such an agreement does not constitute an oral conveyance of land. Id. The two requirements for a boundary by agreement are : an uncertain or disputed boundary, and an express or implied agreement as to the new bou ndary. Id. at 628, 151 P.3d at 824. This Court has stated,

“ Where the location of a true boundary line between coterminous owners is known to either of the parties, or is not uncertain, and is not in dispute , an oral agreement between them purporting to e stablish another line as the boundary between their properties constitutes an attempt to convey real property in violation of the statute of frauds

. . . and is invalid.” Berg v. Fairman , 107 Idaho 441, 444, 690 P.2d 896, 899 (1984) (emphasi s added) (quot ing
Gameson v. Remer , 96 Idaho 789, 791, 537 P.2d 631, 633 (1975 ) ) . Thus, “ [w] hile Idaho cases do recognize the doctrine of boundary by agreement, an orally agreed upon boundary cannot constitute the actual boundary between two pieces of property un less the true boundary line is

‘ unknown to the parties and is uncertain or in dispute. ’ ” Berg , 107 Idaho at 444, 690 P.2d at 899 (quoting Hyde v. Lawson , 94 Idaho 886, 889, 499 P.2d 1242, 1245 (1972)). As we have said,

t he doctrine of an agreed boundary line and its binding effects upon the coterminous owners rests fundamentally upon the fact that there is, or is believed by all parties to be, an uncertainty as to the location of the true line. When that uncertainty exists, or is believed by them to exist, the y may amongst themselves by agreement fix the boundary line, and that agreement will bind all the consenting parties. Downing v. Boehringer , 82 Idaho 52, 57, 349 P.2d 306, 308 (1960) (quoting Clapp v. Churchill
, 130 P. 1061, 1062 (1913) ). Here, the Crost ons argue that their son Jim’s conversation with Mrs. Fischer formed a binding agreement that a new boundary line would be placed on the line of the survey results. However, this argument fails under the statute of frauds, because even if an agreement was reached, it would need to be in writing to be enforceable. It is undisputed that the old fence
, which had been in place since at least 1951, was reflective of the true property line. A t the time
of the conversation between Jim and Mrs. Fischer, the survey revealing the boundary7 discrepancy between the old fence and the platted line had not yet been conducted . It is undisputed that neither party had knowledge that the platted boundary line differed from the old
fence line until after the survey. Thus, at the time of Jim and Mrs. Fischer’s conversation, the true boundary line was not “ unknown to the parties [,] uncertain or in dispute ” because the parties believed the true boundary line was consistent with the post

- and

- wire fence line. Berg , 107 Idaho

at 444, 690 P.2d at 899

. Absent such a dispute
, the Crostons cannot satisfy the first element of a boundary by agreement. Because there was not a dispute as to the boun dary line, there could not
be a valid boundary by agree ment as to a new line

. Accordingly, any oral agreement purporting to move the undisputed boundary line would violate the statute of frauds , and be unenforceable

. Id.
Moreover , an agreement changing the boundary line must be between the actual owners of the adjacent properties. “[I]f the location of the true boundary is unknown to either of the parties, and is uncertain or in dispute, such coterminous owners may agree upon a boundary
line.” Sims v. Daker , 154 Idaho 975, 978, 303 P.3d 1231, 1234 (2013) (emphasis added) ( quoting
Luce v. M arble , 142 Idaho 264, 271, 127 P.3d 167, 174 (2005) )

. This Court’s case law interpreting boundaries by agreement have continually held that it is “coterminous owners” who have the power to enter into a boundary by agreem ent. See Flying Elk Inv., LLC V. Cornwall
, 149 Idaho 9, 13, 232 P.3d 330, 334 (2010) ; Marble , 142 Idaho at 271, 127 P.3d at 174 ; Downing , 82 Idaho at 56, 349 P.2d at 308. Here, the Crostons concede that they

— the coterminous owners of the adjacent property

— could not have entered into an agreement with the Fischers regarding a new fence line and boundary. Instead, the Crostons contend, “there can be no mistake that the children of the Crostons were acting as agents for their pa rents and had direct communication with the
Fischers.” T he direct communication the Crostons contend formed the alleged agreement to
move the boundary line was between Jim and Mrs. Fischer. Thus, the Crostons argue that Jim was acting as their agent and hi s communication with Mrs. Fischer created a binding agreement on both parties. This argument is unavailing

. As noted, we have continually held that a boundary by agreement may be formed
between “coterminous owners.” See Flying Elk , 149 Idaho at 13, 232 P. 3d at 334; Marble , 142
Idaho at 271, 127 P.3d at 174; Downing , 82 Idaho at 56, 349 P.2d at 308. While this Court has not explicitly extended this authority to an agent of a coterminous owner, we embrace d such an8 idea in Duff v. Seubert
, where an agent’s agreement with a coterminous owner was sufficient for

a boundary by agreement. 110 Idaho 865, 867, 719 P.2d 1125, 1127 (1985). Nevertheless, for the reasons explained below , Jim was neither a coterminous owner nor an agent of a coterminous owner, and he thus lacked the authority to enter into any binding agreement or contract on behalf
of the Crostons.

“ There are three separate types of agency, any of which are sufficient to bind the principal to a contract entered into by an agent with a t hird party[.]” Bailey v. Ness , 109 Idaho 495, 497, 708 P.2d 900, 902 (1985)

. “ The three types of agencies are: express authority, implied authority, and apparent authority. ” Id. A principal creates agency when he, (1) [E]xpressly grants the agent authorit y to conduct certain actions on his or her behalf; (2) impliedly grants the agent authority to conduct certain actions which are necessary to complete those actions that were expressly authorized; or (3) apparently grants the agent authority to act through conduct towards a third party indicating that express or implied authority has been granted. Forbush v. Sagecrest Multi Family Pro p. Owners’ Ass’ n, Inc. , 162 Idaho 317,
__, 396 P.3d 1199, 1212 (2017) (quoting Humphries v. Becker , 159 Idaho 728, 735, 366 P.3d 1088, 1095 (2016) )

. “This Court has previously viewed the question of whether an agency relationship exists as a question of fact for the jury to determine.” But, to be clear, “[w]hether facts sufficient to constitute an agency relationship exist is indeed a question of fact for the jury, however, whether a given set of facts are sufficient to constitute an agency relationship is a question of law appropriate for t his Court’ s consideration.”
Forbush
, 162 Idaho at ___, 396 P.3d at 1212 (citations omitted). Here, as an initial matter, it is undisputed that J im was not a coterminous owner of the Croston property , as the Croston parents are the owners of the property

. Moreover, t he Crostons’ daughter
, Ms. Penning
, is their designated agen t and holds power of attorney. The record repeatedly indicates Ms. Penning is “the agent” of the Crostons. Thus, Jim neither owned the property nor did he hold his parents’ power of attorney

. Moreover, Jim was not an agent of his parents as he did not have express, implied, or apparent authority to enter into agreements or contracts on behalf of his parents. As to express authority, there is no evidence in the record the Croston parents express ly authorized Jim to act on their behalf. In fact, they designated their daughter Ms. Penning as their agent and power of attorney. It was Ms. Penning , not Jim, who was authorized to act on their parent s ’ behalf. In addition to there being no express authority, there was also nothing in the record indicating any9 implied authority “ to conduct certain actions which are necessary to complete those actions that were expressly authorized [.]” Id. Lastly, as to apparent a uthority, there is again no evidence in the record that the Crostons “apparently grant[ed] [Jim] authority to act through conduct towards a third party indicating that express or implied authority has been granted .” Id. At no time did the
Crostons or Jim represent that he was authorized to act on behalf of his parents. Because Jim was not an agent of his parents, he lacked any authority to act on his parents’ behalf and enter into a binding agreement with the Fischers regarding the boundary between his par ents’ property and the Fischer property. See Bailey , 109 Idaho at 497, 708 P.2d at 902 (explaining the three types of agency sufficient for an agent to bind a principal to a contract)

. The Crostons next argue that Ms. Penning , the Crostons ’ agent, was pres ent when Jim spoke to Mrs. Fischer. However, Ms. Penning did not speak to Mrs. Fischer, or accept any agreement on behalf of her parents. Instead, the evidence shows only that she was “present” during the conversation between her brother
, Jim
, and Mrs. Fis cher. Her presence alone is not enough to convey agency to her brother Jim . As stated in the Restatement, “ [a] gency creates a personal relationship betwee n principal and agent; an agent’ s delegation of power to another person to act on behalf of the principal is inconsistent with the undertaking made when a person consents to act as agent on behalf of a principal. ” Restatement (Third) Of Agency § 3.15 (2006)

. The Restatement goes on to say, “ [h] owever, a principal may empower an agent to appoint
anoth e r agent to act on the principal’ s behalf. ” Id. Here, Ms. Penning would need actual or apparent authority to appoint Jim as a subagent or coagent, and there is no evidence in the record Ms. Penning had such authority. See Restatement (Third) of Agency § 3 .15 (b) (2006). Accordingly, Ms. Penning was unable to appoint Jim as a subagent or coagent. Thus, Ms. Penning’s presence when Jim spoke to Mrs. Fischer about the boundary line is insufficient to delegate Jim agency to act on his parents’ behalf in forming agreements. While the existence of agency is a question of fact, “ whether a given set of facts are sufficient to constitute an agency relationship is a question of law appropriate for t his Court’ s consideration.” Forbush
, 162 Idaho at ___, 396 P.3d at 12 12 (citations omitted). Here, the record
is completely de void of any facts or evidence showing Jim was his parents’ agent . There is no evidence his parents’ granted him any authority to act on their behalf. Instead, the Crostons appointed their daughter
, M s. Penning
, as their agent and power of attorney. As discussed above, Ms. Penning’s presence was insufficient to convey agency authority to Jim when she was present10 while he spoke to Mrs. Fischer. Thus, Jim was unable to enter any sort of binding agreement on the Crostons’ behalf. Accordingly, there was no binding agreement between the Crostons and the Fischers to move the boundary line.
The Crostons next contend th at their construction of a new fence and payment for the materials was consideration, and ev idence of , a contract between the parties

. This argument is unavailing

. As analyzed above, Jim was not an agent of his parents and thus could not form binding contracts on their behalf. Additionally
, Mrs. Fischer’s statement to Jim lacks specificity, and is not sufficiently definite to give rise to an enforceable contract . As we have stated, a contract must be “sufficiently definite and certain in its terms and requirements” in order to be
enforceable. Syringa Networks, LLC v. Idaho Dep’t of Admin. , 155 Idaho 55, 63, 305 P.3d 499, 507 (2013). As the district court correctly stated, “the comments made by Fischer are not sufficiently clear and precise to give rise to an enforceable agreement to change the property line.” Moreover , the Crostons’ building of the fence and supplying of the materials was not consideration for any alleged agreement or contract

. “ To constitute consideration, a performance or a return promise must be bargained for. A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 780, 215 P.3d 494, 500 (2009) (quoting Restatemen t (Second) of Contracts § 71 (1981) )

. Here, there is no evidence the Fischers bargained for the Crostons ’ purchasing and building of a new fence on the survey line. In fact, the Fischers asked the Crostons not to build a fence on the survey line until the dispute
could be res olved, yet the Crostons constructed a fence despite protestation by the Fischers. Because the purchasing and construction of the fence was not bargained for by the Fischers, it is not consideration for any alleged agreement. In sum, the Crostons have not shown a genuine dispute of material fact sufficient to preclude summary judgment on this issue. As we have stated,

w e emphasize that the purpose of summary judgment proceedings is to eliminate the necessity of trial where facts are not in dispute and where existent and undisputed facts lead to a conclusion of law which is certain. If a party resists summary judgment, it is his responsibility to place in the record before the trial court the existence of controverted material facts which require resolution by trial. A party may not rely on his pleadings nor merely assert that there are some facts which might or will support his legal theory, but rather he must establish the existence of those facts by deposition, affidavit, or otherwise. F ailure to so11 establish the existence of controverted material facts exposes a party to the risk of a summary judgment. Berg , 107 Idaho at 444, 690 P.2d at 899 (citations omitted). Here, the Crostons needed to place in the record the controverted
, materi al facts precluding summary judgment. They have failed to do so. The Crostons argue that there was an agreement between the parties that the survey line would control the new boundary line. While the parties do disagree on whether an agreement was ultimate ly formed to change the boundary
line , the underlying facts surrounding the formation of the alleged agreement are not in dispute.
The facts here
, construed in the light most favorable to the Crostons, do not give rise to an enforceable agreement for multiple reasons. First, an oral agreement to move the boundary line
would be invalid under the statute of frauds. Next, Jim had no authority to enter into a binding agreement on his parent s ’ behalf, as Jim was neither a coterminous owner of the property nor an agent for his parents. And, even so, there was no specificity or consideration to support any alleged agreement or contract. To the extent the Crostons rely on stricken portions of Ms. Penning’s affid avit as support for their arguments, we do not consider such evidence, as it was stricken below and that decision was not appealed. See Foster , 145 Idaho at 30 n. 2 , 175 P.3d at 192 n. 2

. The Crostons have not established there are controverted, material facts that require resolution by a trial. See Berg , 107 Ida ho at 444, 690 P.2d at 899

. Because t here was no binding agreement to change the boundary line between the parties
, the true property line remains unchanged, a nd is that of the old fence line

. See Duff , 110 Idaho at 867, 719 P.2d at 1127 (stating boundaries by agreement are “ controlling even if that boundary varies from the boundary set forth in a written legal description.” ). There is no dispute a s to the location of that
line. Accordingly, the district court’s order granting summary judgment is affirmed.
B. The Crostons trespassed when they constructed a fence on the survey line. The Fischers argue that the Crostons trespassed when they constructed a fence on the survey line during the dispute. The Crostons concede they entered the disputed strip of land, but that such action was not trespass when the strip of land in dispute had not yet had title quieted to
the Fischers. The record shows that w hile the dispute regarding the n ew fence line was ongoing,
th e Crostons, through their agent
, Ms. Penning , crossed the old fence line and installed a fence on the survey line, which was on the Fischers’ property. To do this, the Crostons passed “n o trespassing” signs that the Fischers ha d placed on the old fence line. The district court found12 entering the Fischers ’ land and constructing a fence constituted trespass pursuant to Idaho Code
section 6

- 202 and Weitz v. Green , 148 Idaho 851, 863, 230 P.3d 743, 755 (2010). We affirm. 2
Idaho Code section 6

- 202 provides, Any person who, without permis sion of the owner . . . willfully and intentionally enters upon the real property of another person which property is posted with “No Trespassing” signs or other notices of like meaning, spaced at inte rvals of not less than one (1) notice per six hundred sixty (660) feet along such real property

. . . without lawful authority, is liable to the owner of such land

. . . for treble the amount of damages which may be assessed therefor or fifty dollars ($50. 00), plus a reasonable attorney’ s fee which shall be taxed as costs, in any civil action brought to enforce the terms of this act if the plaintiff prevails. This Court, in Weitz , interpreted and applied this statute to a case with facts similar to the
case here. In Weitz , owners of neighboring properties w e re in dispute as to ownership of land located along the common border of two adjacent properties. Weitz , 148 Idaho at 856, 230 P.3d

at 748

. During the dispute, one party entered the contested tract of land and built a fence in place of an existing dilapidated fence. Id. The disputed land was ultimately found to belong to the respondents. Id. at 863, 230 P.3d at 755. In determini ng whether the party had trespassed when it constructed the fence, we stated, “ [w] hile the statute does not so state in terms, it is clear, we think, that it was not intended to apply to cases in which the trespass was committed through an
innocent mistake as to the boundary or location of a tract of land claimed by the defendant.” Id.

at 863

– 64, 230 P.3d at 755

– 56 (quoting Menash a Woodenware Co. v. Spokane Int’ l Ry. Co. , 19 Idaho 586, 593, 115 P. 22, 24 (1911 ) )

. However, we stated , when the appellant s entered the tract of contested land and construct ed the fence, they “ were not committing an innocent mistake in

re

- entering the property, cutting down vegetation, and erecting a fence. They had notice from the [respondents] that the property was in disput e. ” Id. at 864, 230 P.3d at 756. This Court went on to say that it “strongly disfavors the resort to forceful self

- help in resolving property disputes.”
Id. Ultimately, this Court determined the appellants acted willfully and intentionally, and were thus g uilty of trespass and liable for treble damages under Idaho Code section 6

- 202. Id.
This case is similar to Weitz. Here, the tract of land between the old fence line and the platted boundary line as revealed by the survey was in dispute. The Crostons had n otice of this

2 While we affirm the district court on this issue, to the extent the district court in discussing the trespass issue lists a plural form of agent s, agents as a plural is in error. As analyzed in Section A, supra , o nly Ms. Penning was an agent of the Crostons. Here, the record shows
, and the Crostons concede
, that Ms. Penning entered land that would belong to the Fischers based on the old fence line, and constructed a fence based on the survey results.13 dispute, as the Fischers notified them of the discrepancy, asked them not to construct a fence until the dispute was resolved, and put up “no trespassing” signs on the old fence line. The
Crostons did not wait for the dispute to be resolved, and instead finished constructing a fence on the survey line three days after receiving notice of the disputed line. Like in Weitz , the Crostons were not “committing an innocent mistake . . . erecting a fence” but instead “had notice from the [Fischers] th at the property was in dispute.” Id. Thus, like in Weitz , the Crostons committed trespass when their agent and daughter
, Ms. Penning
, constructed a fence on the survey line, as the old fence line was the true boundary, and the property on the survey line b elonged to the
Fischers. Accordingly, the district court’s grant of summary judgment is affirmed.
C. Attorney fees below and on appeal. Following the entry of summary judgment, the Fischers submitted an affidavit and memorandum of attorney fees and costs, to which the Crostons objected. T he district court declined to award attorney fees to the Fischers under Idaho Code section 12

- 121, but did award attorney fees under S ection 6

- 202, which provides for recovery of atto rney fees in a trespass
action. The district court limited the award of attorney fees to the trespass issue, noting the primary claim was to quiet title, a nd the trespass claim was only incidental to the primary cl aim. 3

We affirm the district court’s grant of attorney fees to the Fischers for trespass under S ection 6

- 202

. Idaho Code section 6

- 202 provides for a reasonable attorney fee for prevailing plaintiff s in a trespass action. As this Court has stated,
A tria l court is authorized to award attorney fees only as provided by statute or contract. I. R.C.P. 54(e)(1). Under I.C. § 6

- 202, where a defendant willfully and intentionally trespasses on properly posted real property, that defendant is liable to the property owner “for treble the amount of damages

. . . plus a reasonable attorney’ s fee which shall be taxed as costs, in any civil action brought to enforce the terms of this act if the plaintiff prevails.” The plain language of I.C. § 6

- 202 “mandates the award o f a reasonable attorney fee to a plaintiff who prevails in an action brought under the statute.” Bubak v. Evans , 117 Idaho 510, 513, 788 P.2d 1333, 1336 (Ct. App. 1 989). Therefore, under I.C. § 6

- 202, a prevailing plaintiff may only be awarded attorney fee s “reasonably incurred in prosecuting the trespass action upon which he prevailed.”

3 The Fischers requested $31,131 in attorney fees and $684 in costs. However, because the district court li mited the award to the amount spent litigating the trespass action, the Fischers were awarded only $266 in costs and $2,670.40 in attorney fees.14 Akers v. Mortensen , 156 Idaho 27, 36, 320 P.3d 418, 427 (2014)

. However, S ection 6

- 202 only provides an attorney fee for “fees incurred in prosecuting the trespass action” and as such the district court must apportion its award of attorney fees. Id. Here, the Fischers are entitled to a reasonable attorney fee for prosecuting the trespass action. Accordingly, the district court’s grant of attorney fees for the trespass porti on of the Fischers ’ claim is affirmed. Next, the Fischers request attorney fees on appeal. In Weitz , this Court held that because
S ection 6

- 202 was applicable to the trespass issue in the case, the prevailing party on appeal was entitled to attorney fees on appeal under S ection 6

- 202

. 148 Idaho at 868, 230 P.3d at 760

. Similarly here, because S ection 6

- 202 is applicable in this case, the Fi schers are entitled to attorney fees on appeal as apportioned to the trespass action. “Where the district court’s award of

atto rney fees pursuant to section 6

- 202 was challenged on appeal and upheld, we will also award a prevailing plaintiff attorney fees on appeal pursuant to that statute. ” Mueller v. Hill , 158 Idaho 208, 218, 345 P.3d 998, 1008 (2015 ). In this case
, we grant the Fischers ’ request for attorne y fees under S ection 6

- 202 on appeal, as apportioned to time spent appealing the trespass issue.
We declin e to award attorney fees under S ection 12

- 121.
V. CONCLUSION We affirm the district court’s grant of summary judgement quieting title to the disputed
tract of land to the Fischers . Additionally, we affirm the district court’s awar d of attorney fees pursuant to S ection 6

- 202. On appeal , we award attorney fees under S ection 6

- 202 apportioned to the fees incurred as to the trespass issue. Costs on appeal to the Fischers.

Justices BRODY, BEVAN and Justices Pro Tem LORELLO and BUTLER CONCUR.