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IN THE SUPREME COURT OF THE STATE OF IDAHO

DOCKET NO. 48007

JARED SOMMER and KATHERINE 

SOMMER, husband and wife,

 Plaintiffs-Respondents-

 Cross Appellants,

v.

MISTY VALLEY, LLC, an Idaho limited 

liability company,

 Defendant-Appellant-

 Cross Respondent.

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Twin Falls, Sept. 2021 Term

Opinion Filed: December 21, 2021

Melanie Gagnepain, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of Idaho,

Madison County, Gregory W. Moeller and Steven W. Boyce, District Judges.

The judgment of the district court is affirmed.

Hawley, Troxell, Ennis & Hawley, Pocatello, for Appellant/CrossRespondent/Defendant. John A. Bailey, Jr., argued.

Manwaring Law Office, Idaho Falls, for Respondents/Cross-Appellants/Plaintiffs.

Kipp L. Manwaring argued.

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BRODY, Justice.

This appeal involves a dispute over the scope of an express easement. Jared and Katherine 

Sommer brought a declaratory judgment claim against Misty Valley, LLC, after receiving written 

notice that the real estate developer planned to use an express easement across the Sommers’ land 

for access to a recently platted residential subdivision. The Sommers asserted that the planned use 

constituted an impermissible expansion of the scope of the easement and brought a claim to 

terminate the easement. After a bench trial, the district court limited the use of the easement to the 

dominant parcel, which only included part of Misty Valley’s planned subdivision, and declined to 

terminate it. Misty Valley appealed the district court’s judgment, and the Sommers cross-appealed.

We affirm the district court’s judgment and deny costs and fees on appeal to both parties.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Property.

Jared and Katherine Sommer are neighbors of a 152-lot residential subdivision planned by 

Misty Valley in Madison County, Idaho. The Sommers own the lot that is subject to the express 

easement at issue, and their home is located across the street and to the east of the easement on 

another parcel.

The origins of this dispute trace back to a series of land transfers that took place beginning 

about twenty years ago. Different members of the Saurey family owned and farmed three 

contiguous parcels. On July 2, 2002, Brent and Patricia Saurey (the “Saureys”) conveyed title to a 

43-acre parcel (“Brent Saurey Parcel”) to the North Fork Duck Club, LLC, together with a grant 

of easement (“Easement”) for ingress, egress, and utilities across the Saureys’ retained property 

(“Servient Parcel”). The Saureys, in granting the parcel and the Easement, “believed that the land 

would be used for duck hunting and possibly a residential development.” The property was zoned 

“Agricultural” which would have permitted two or three houses on the parcel. The Saureys retained 

ownership of the Servient Parcel until they sold it to the Sommers in 2017. The following diagram 

shows the parcels and easement at issue:
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On the same day of the Brent Saurey Parcel conveyance, Lyle and Jossine Saurey, the 

parents of Brent and Kerry Saurey, also conveyed title to a neighboring parcel (“Saurey Trust 

Parcel”) to the Duck Club. The language of the warranty deed did not mention the Brent Saurey 

Parcel conveyance, the Brent Saurey deed, the Brent Saurey Parcel, the Servient Parcel, or the 

Easement. About a week after that, Kerry Saurey conveyed a third neighboring parcel (“Kerry 

Saurey Parcel”), to the Duck Club. Again, the language of the warranty deed did not mention the 

prior conveyances, the Brent Saurey deed, the Brent Saurey Parcel, the Saurey Trust Parcel, the 

Servient Parcel, or the Easement. 

In 2004, about two years after acquiring the three Saurey parcels, the Duck Club conveyed 

the Brent Saurey Parcel to Misty Valley. In May 2008, Misty Valley also acquired title to the Kerry 

Saurey Parcel and Saurey Trust Parcel from the Duck Club. Thereafter, Misty Valley applied for 

a zone change from “Agricultural” to “Trans Ag 2” for all three parcels. The application included 

a conceptual map of a 130-lot residential subdivision and depicted a road located in the Easement 

area. Jared Sommer, who at that time, only owned a home located across the street and to the East 

of the Easement, attended the August 14, 2008 public hearing before the Madison County Planning

and Zoning Commission where he voiced his opposition to the application. The Planning and 

Kerry Saurey Parcel Saurey Trust Parcel

Brent Saurey Parcel

[Dominant Parcel]

Servient Parcel

Easement

Sommer/Brower Parcel
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Zoning Commission subsequently approved the zone change for all three parcels. About five years 

after the zone change, Misty Valley acquired a fourth neighboring parcel from Marie Sommer, 

Reed Sommer, Gene Brower, and Cheryl Brower (the “Sommer/Brower Parcel”). Again, the 

conveyance did not contain any mention of the Saurey conveyances described above, the Brent 

Saurey deed, the Brent Saurey Parcel, the Kerry Saurey Parcel, the Saurey Trust Parcel, the 

Servient Parcel, or the Easement. 

Sometime in the beginning of 2017, Jared Sommer and Brent Saurey discussed an 

anticipated increase in traffic from Misty Valley’s planned subdivision. Thereafter, in May 2017, 

the Sommers purchased the Servient Parcel from Brent and Patricia Saurey.

On August 3, 2017, Misty Valley applied to the Madison County Planning and Zoning 

Commission for approval of its first preliminary plat for a 152-lot residential subdivision. The 

preliminary plat outlined a subdivision that encompassed the Brent Saurey Parcel, the Saurey Trust 

Parcel, the Kerry Saurey Parcel, and the Sommer/Brower Parcel. In addition, it depicted the 

Easement as one of two required accesses to the subdivision.

On September 14, 2017, the Planning and Zoning Commission held a public hearing related 

to the preliminary plat application. Jared Sommer attended the meeting and voiced his opposition 

to the development. Subsequently, the Planning and Zoning Commission unanimously approved 

the preliminary plat application. After obtaining approval, Misty Valley initiated contact with the 
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Sommers to inquire about purchasing the Easement property. The Sommers and Misty Valley 

negotiated, but ultimately did not reach an agreement. 

On June 14, 2018, Misty Valley sent the Sommers a letter advising them that Misty Valley 

planned to build a fence and pair of gates on the Easement property. Jared Sommer testified at trial 

that Misty Valley did not seek his prior approval or consent for the fence and gates. After receipt 

of the June 14 letter, the Sommers revoked any outstanding offers to the sell the Easement property

to Misty Valley, and sent a cease and desist letter pertaining to construction of Misty Valley’s 

intended fence and gates on the Easement property. 

B. Procedural History

The Sommers filed suit against Misty Valley on August 22, 2018, requesting the court issue 

a declaratory judgment that Misty Valley’s intended use of the Easement for access to its planned 

subdivision unlawfully expanded the use of the Easement beyond the Brent Saurey Parcel. The 

Sommers included a claim to terminate the easement. Misty Valley timely answered and asserted, 

among other things, the defenses of the statute of limitations under Idaho Code section 5-224 and

quasi-estoppel. 

The Sommers filed their first motion for partial summary judgment in October 2018, asking 

the district court to rule as a matter of law that the Easement was appurtenant only to the Brent 

Saurey Parcel. Misty Valley responded with its own motion for partial summary judgment, 

asserting that the Sommers’ action was time-barred under Idaho Code section 5-224 and that the 

Kerry Saurey Parcel and the Saurey Trust Parcel were part of the “dominant estate.”

The district court denied summary judgment on Misty Valley’s statute of limitations 

defense and contention that the Easement benefited additional parcels. However, it granted the

Sommers’ motion for partial summary judgment, ruling that the Easement was appurtenant only 

to the real property expressly described in the Brent Saurey deed. The district court held that the 

Brent Saurey deed did not contain any ambiguity. Therefore, it declined to consider parole 

evidence offered by Misty Valley regarding the intent to benefit all three Saurey parcels with the 

Easement.

The Sommers filed a second motion for partial summary judgment in August 2019, 

asserting that Misty Valley’s plan to use the Easement as illustrated in the preliminary plat was an 

impermissible expansion of the Easement. The Sommers also moved for extinguishment of the 

Easement. In its Amended Memorandum Decision on October 8, 2019, the district court granted 
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partial summary judgment for the Sommers, holding that “Misty Valley, LLC[,] may not use the 

[E]asement to allow unrestricted public access to the subdivision, as doing so would impermissibly 

and unlawfully expand the scope of the easement.” However, the district court denied the 

Sommers’ motion to terminate the Easement after determining there were genuine issues of 

material fact relating to the scope of any current or proposed future use of the Easement. 

The district court subsequently held a bench trial to adjudicate the following unresolved 

issues: the Sommers’ request for a declaratory judgment, injunctive relief, and termination of the 

Easement; and Misty Valley’s quasi-estoppel and statute of limitation defenses. During the trial, 

the district court found that Misty Valley failed to supplement its discovery responses with text 

message communications between one of its witnesses, Terry Mortensen, and Jared Sommer 

occurring prior to December 6, 2017. The district court sanctioned Misty Valley for this violation 

by striking a portion of Mortensen’s testimony concerning communications prior to that date. 

On January 10, 2020, the district court issued its findings of fact and conclusions of law. 

The district court found that use of the Easement for access to the entire 152 lots in the subdivision 

as planned would result in an impermissible expansion of the Easement’s use beyond the dominant 

estate (i.e., the Brent Saurey Parcel). However, the district court also found that if Misty Valley 

changed course, and the Brent Saurey Parcel was platted as a “stand-alone” subdivision with thirty 

lots or less (without connection to any other parts of the subdivision as illustrated in the preliminary 

plat), the use of the Easement would not be impermissibly expanded. The district court determined 

that the use of the Easement must be limited to access solely for the dominant estate (i.e., the Brent 

Saurey Parcel). The district court declined to extinguish the Easement or issue any injunctive relief. 

The district court also rejected Misty Valley’s statute of limitations defense and quasi estoppel 

defense. The parties each timely appealed to this Court.

II. ANALYSIS

A. The district court did not err when it rejected Misty Valley’s statute of limitations 

defense.

Misty Valley contends the district court erred when it rejected its statute of limitations 

defense. The district court held that the Sommers’ declaratory judgment action was not time-barred 

by the four-year “catch-all” statute of limitations set forth in Idaho Code section 5-224 which 

states:
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ACTIONS FOR OTHER RELIEF. An action for relief not hereinbefore 

provided for must be commenced within four (4) years after the cause of action 

shall have accrued.

I.C. § 5-224. 

The parties do not dispute that this statute of limitations applies. The dispute centers on 

when the Sommers’ cause of action “accrued” under this statute. If no disputed issue of material 

fact exists, the date when a cause of action accrues is a question of law. C & G, Inc. v. Canyon 

Highway Dist. No. 4, 139 Idaho 140, 143, 75 P.3d 194, 197 (2003).

The district court applied the accrual standard set forth in Harris v. State, ex rel. 

Kempthorne, 147 Idaho 401, 210 P.3d 86 (2009), an inverse condemnation case. The district court 

ruled: “The Court finds that although [the Harris case] dealt with condemnation, the analysis 

applies here in that the time of accrual is when ‘the impairment, of such a degree and kind as to 

constitute a substantial interference with plaintiffs’ property interest, became apparent.’ ” The 

district court concluded that the Sommers’ predecessors in interest (the Saureys) may have been 

aware of Misty Valley’s plans to develop a possible subdivision as early as 2007. However, the 

evidence did not show the same against the Sommers with enough certainty or particularity. It was 

not until Misty Valley filed the preliminary plat that the Sommers were put on notice of 

information specific enough to discern the degree and kind of substantial interference intended by 

Misty Valley. Thus, the Sommers’ action against Misty Valley did not accrue until August 2017, 

when Misty Valley filed the preliminary plat. The Sommers filed the Complaint on August 22, 

2018. Therefore, Misty Valley failed to establish a statute of limitations defense.

Misty Valley, relying on Schneider v. Howe, 142 Idaho 767, 772, 133 P.3d 1232, 1237 

(2006), contends that a claim for declaratory judgment accrues when an “actual or justiciable 

controversy exists.” It argues that the Sommers’ cause of action accrued in August 2008 when 

there was a public hearing on Misty Valley’s zone change application. Misty Valley’s application 

included a conceptual map showing a 130-lot residential subdivision with an access road in the 

Easement area. Jared Sommer attended the public hearing and Brent Saurey submitted a letter in 

support of the zone change. Thus, Misty Valley contends that the Sommers and Saureys knew of 

the proposed use of the Easement in 2008, and the four-year period for filing a request for 

declaratory judgment ran long ago.
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The Sommers, in contrast, argue the district court’s ruling was correct, but contend the 

accrual standard set forth in Brown v. Greenheart, 157 Idaho 156, 162, 335 P.3d 1, 7 (2014), a 

quiet title action, should govern this dispute. In Greenheart, the Court held “[t]he cause of action 

for quiet title accrues where another person claims an interest in property ‘adverse to’ another.” 

Id. They argue that Misty Valley claimed an interest in their property “adverse” to them in 2017,

when Misty Valley sent a letter advising them that Misty Valley intended to build a fence and gates 

across the Easement. We agree with the Sommers and affirm the district court’s decision. 

To understand why the accrual standard set forth in Brown v. Greenheart applies, we begin 

with Idaho’s adoption of the Uniform Declaratory Judgment Act in 1933. Ch. 70, § 1, 1933 Idaho 

Sess. Laws 113–15. The Act authorizes courts to declare rights, status, and other legal relations:

Courts of record within their respective jurisdictions shall have power to 

declare rights, status, and other legal relations, whether or not further relief is or 

could be claimed. No action or proceeding shall be open to objection on the ground 

that a declaratory judgment or decree is prayed for. The declaration may be either 

affirmative or negative in form and effect, and such declarations shall have the force 

and effect of a final judgment or decree.

I.C. § 10-1201. The stated purpose of the Act is “. . . to settle and to afford relief from uncertainty 

and insecurity with respect to rights, status and other legal relations.” I.C. § 10-1212. The Act 

expressly provides that it is remedial and is to be liberally construed and administered. Id. The Act 

also provides that it is to be interpreted to effectuate a goal of uniformity with the state and federal 

laws that govern declaratory judgments:

This act shall be so interpreted and construed as to effectuate its general 

purpose to make uniform the law of these [those] states which enact it, and to 

harmonize, as far as possible, with federal laws and regulations on the subject of 

declaratory judgments and decrees.

I.C. § 10-1215.

The Act itself does not contain an express statute of limitations. This makes sense since the 

Act does not create any new substantive rights, but rather, authorizes a form of relief. “The [Act] 

does not create any new rights, statuses, or legal relations. It applies only where such rights, 

statuses, or legal relations already exist.” Brooksby v. Geico Gen. Ins. Co., 153 Idaho 546, 548, 

286 P.3d 182, 184 (2012) (emphasis original), abrogated on other grounds by Tucker v. State, 162 

Idaho 11, 18, 394 P.3d 54, 61 (2017) (holding Idaho Rule of Civil Procedure 12(b)(1) governs 

justiciability challenges, not Rule 12(b)(6)).
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The Utah Supreme Court explained this point in Jenkins v. Swan, 675 P.2d 1145 (Utah 

1983) nearly forty years ago and judicial decisions of other states and the federal judiciary are in 

accord:

The statutory creation of relief in the form of a declaratory judgment does 

not create a cause of action or grant jurisdiction to the court where it would not 

otherwise exist. The Utah Declaratory Judgment Statute merely authorizes a new 

form of relief, which in some cases will provide a fuller and more adequate remedy 

than that which existed under the common law. Gray v. Defa, 103 Utah 339, 135 

P.2d 251 (1943).

Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983); see, e.g., Schilling v. Rogers, 363 U.S. 666, 

677 (1960) (“Additionally, the [Federal] Declaratory Judgments Act is not an independent 

source of federal jurisdiction; the availability of such relief presupposes the existence of a 

judicially remediable right. No such right exists here.”) (citation omitted); Greenbriar Grp., 

L.L.C. v. Haines, 854 N.W.2d 46, 50–51 (Iowa Ct. App. 2014), as amended (Aug. 1, 2014);

Beahringer v. Page, 789 N.E.2d 1216, 1223–24 (Ill. 2003); Wilson v. Kelley, 617 A.2d 433, 436 

(Conn. 1992); Builders Ass’n of N. Nev. City of Reno, 776 P.2d 1234, 1234 (Nev. 1989); State 

ex rel. Edmisten v. Tucker, 323 S.E.2d 294, 308 (N.C. 1984); Hodgdon v. Campbell, 411 A.2d 

667, 669 (Me. 1980); Williams v. S. Bank of Norfolk, 125 S.E.2d 803, 807 (Va. 1962); Tietjens v. 

City of St. Louis, 222 S.W.2d 70, 71–72 (Mo. 1949) (en banc).

Recognizing that a claim for declaratory judgment depends on existing substantive rights,

courts examine the underlying substance of the claim to determine the applicable statute of 

limitations. The United States Court of Appeals for the Second Circuit held in Luckenbach S. S. 

Co. v. United States that limitations periods under the Federal Declaratory Judgment Act depend 

on the substantive claim, not the remedy:

Declaratory relief is a mere procedural device by which various types of 

substantive claims may be vindicated. There are no statutes which provide that 

declaratory relief will be barred after a certain period of time. Limitations periods 

are applicable not to the form of relief but to the claim on which the relief is based.

312 F.2d 545, 548 (2d Cir. 1963). 

Other federal circuits agree. See, e.g., Gilbert v. City of Cambridge, 932 F.2d 51, 57–58 

(1st Cir. 1991); Algrant v. Evergreen Valley Nurseries Ltd. P’ship, 126 F.3d 178, 184–85 (3d Cir.

1997); New Amsterdam Cas. Co. v. Waller, 301 F.2d 839, 844 (4th Cir. 1962); Int’l Ass’n of 

Machinists & Aerospace Workers v. Tenn. Valley Auth., 108 F.3d 658, 667–68 (6th Cir. 1997); 
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Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688–89 (9th Cir. 1993); Clulow v. Oklahoma, 

700 F.2d 1291, 1302–03 (10th Cir. 1983).

The courts of multiple states also agree. See, e.g., Dehoff v. Att’y Gen., 564 S.W.2d 361, 

363 (Tenn. 1978) (“Limitations statutes do not apply to declaratory judgment suits, as such, 

because a declaratory judgment action is a mere procedural device by which various types of 

substantive claims may be asserted. Accordingly, it is necessary to ascertain the nature of the 

substantive claims sought to be asserted in a declaratory judgment action in order to determine the 

appropriate statute of limitations.”); Maguire v. Hibernia Sav. & Loan Soc’y, 146 P.2d 673, 680 

(Cal. 1944); Wilson v. Kelley, 617 A.2d 433, 436–39 (Conn. 1992); Grand Lodge of Iowa of the 

Indep. Order of Odd Fellows v. Osceola Lodge No. 18, Indep. Order of Odd Fellows, 178 N.W.2d 

362, 372 (Iowa 1970); Taxpayers Allied for Constitutional Taxation v. Wayne Cnty., 537 N.W.2d 

596, 601 (Mich. 1995); Taylor v. Lovelace Clinic, 432 P.2d 816, 818 (N.M. 1967); Save the Pine 

Bush, Inc. v. City of Albany, 512 N.E.2d 526, 529 (N.Y. 1987); Dehoff v. Att’y Gen., 564 S.W.2d 

361, 363 (Tenn. 1978); Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity, 587 S.E.2d 701, 

707 (Va. 2003); Weavewood, Inc. v. S & P Home Inv., LLC, 821 N.W.2d 576, 580 (Minn. 2012).

The action filed by the Sommers is—in substance—an action to quiet title under Idaho 

Code section 6-401. Section 6-401 sets forth the cause of action:

An action may be brought by any person against another who claims an 

estate or interest in real or personal property adverse to him, for the purpose of 

determining such adverse claim, provided that all actions to adjudicate water rights 

and obtain a decree as to water source, quantity, point of diversion, place of use, 

nature of use, period of use, and priority against other water users shall be brought 

under the provisions of chapter 14, title 42, Idaho Code.

I.C. § 6-401 (emphasis added). Except for the addition of “or personal” by amendment in 1937, 

and the exclusion of water rights, “this statute is the same now as it was when first adopted by the 

territorial legislature in 1881.” Anderson v. Whipple, 71 Idaho 112, 121, 227 P.2d 351, 356 (1951), 

overruled on other grounds by David Steed & Assocs., Inc. v. Young, 115 Idaho 247, 766 P.2d 717 

(1988).

Idaho abolished the distinction between disputes in equity versus law, entrusting our 

district courts with the power to settle real property disputes regardless of form. Coleman v. 

Jaggers, 12 Idaho 125, 131–32, 85 P. 894, 897–98 (1906); Idaho Const. art. V, §§ 1 and 20. 

Previously, equity’s jurisdiction was strictly limited through the “old bill of peace” which required 
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a plaintiff, among other things, to first establish title in law before he or she could seek equitable 

relief to quiet title. Coleman, 12 Idaho at 130–31, 85 P. at 897–98; Anderson, 71 Idaho at 121, 227 

P.2d at 356. Now free from formalistic relics, a plaintiff may, through the quiet title statute, 

“immediately, upon knowledge of such claim, require the nature and character of the adverse estate 

or interest to be produced, exposed and judicially determined, and the question of title be thus 

forever quieted.” Coleman, 12 Idaho at 130–31, 85 P. at 896–97; see also Bennet v. Bank of Eastern 

Oregon, 167 Idaho 481, 493, n. 11, 472 P.3d 1125, 1137 n. 11 (2020) (“Statutes enlarging 

traditional quiet title actions are intended to afford an easy, fast, and efficient way to quiet title to 

real estate[.]” (quoting 65 Am. Jur. 2d Quieting Title § 7)). “It is a remedial statute supplementing, 

more than replacing, common-law and equity-based jurisprudence; hence, it should be broadly 

construed.” Bennet, 167 Idaho at 493, 472 P.3d at 1137 (holding an expired judgment lien is 

redressible by a quiet title action).

The complaint filed by the Sommers seeks to settle the title, rights, and interests 

surrounding the Servient Parcel, Misty Valley’s parcels, the Deed, and the Easement. The 

complaint begins with detailed allegations describing the land owned by the parties and the various 

land transfers that have occurred over the last twenty years. It alleges the creation of the Easement 

for the benefit of the Brent Saurey Parcel. It contains allegations related to the zone change that 

took place in 2008 and the positions taken by the parties. It also contains allegations describing 

Misty Valley’s intention to use the Easement for purposes of erecting a fence to the planned 

residential subdivision and the Sommers’ objection to that planned use. After laying out three 

pages of factual allegations that largely mirror the facts set forth in this opinion, the complaint then 

sets forth three counts: Count 1 – Declaratory Judgment; Count 2 – Termination of Easement; and 

Count 3 – Injunctive Relief. The prayer for relief requests judgment in several forms: a declaration 

that Misty Valley cannot expand the scope of the Easement to provide access to the planned 

subdivision; a declaration that the Easement is terminated; and injunctive relief prohibiting Misty 

Valley from entering the Easement to erect a fence or increasing the burden on the Sommers’ 

parcel. Labeling Count 1 as “Declaratory Judgment” does not blind us to the quiet title action that 

has actually been pleaded.

Understanding that this is a quiet title action in substance, we can return to the parties’ 

dispute over the statute of limitations. This Court previously held in Brown v. Greenheart, 157 

Idaho 156, 162, 335 P.3d 1, 7 (2014), that the four-year statute of limitations set forth in Idaho 
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Code section 5-224, the statute the parties agree applies to this case, governs quiet title actions. 

The Court also addressed the accrual standard to be applied, holding “[t]he cause of action for 

quiet title accrues where another person claims an interest in property ‘adverse to’ another.” Id. 

(emphasis added). We agree with the Sommers that this is the accrual standard the district court 

should have applied.

Assuming the Sommers and the Saureys were put on notice in 2007 or 2008 of Misty 

Valley’s intent to build a subdivision, this is not enough to trigger accrual under Greenheart. In 

Greenheart, accrual occurred when Greenheart claimed an interest in the Browns’ water rights by 

filing a notice with the Idaho Department of Water Resources. Greenheart, 157 Idaho at 162, 335 

P.3d at 7. This was the first point in time that Greenheart took an objective action with enough 

specificity to claim an interest “adverse to” Browns’ water rights. Id. Here, between 2007 and 

2008, Misty Valley communicated a general intent to build but did not take any objective action 

(e.g., filing with the appropriate government agency) to notice the Sommers or Saureys of any 

particular or specifically planned subdivision that utilized the Easement. Without this, the 

Sommers and Saureys could have no way of knowing in 2007 and 2008 whether Misty Valley’s 

intended subdivision would come to fruition and if it did, whether it would be “adverse to” their 

interests.

Moreover, even the 2008 application for zone change did not constitute an “adverse” claim 

because approval of the change from “Agricultural” to “Trans-Ag 2” permitted subdividing of 

Misty Valley’s property, but it was far from certain that subdividing would occur, let alone in a 

manner, or to an extent, that the subdivision would be “adverse to” the Sommers’ or Saureys’ 

property interests. The earliest possible date a quiet title action might have accrued was August 3, 

2017, when Misty Valley filed its preliminary plat application. That application not only had a 

map showing the proposed use of the Easement, but also required actual plans to subdivide the 

property. The application required that the property developer include, among other things, 

engineered plans for streets, sewers, sidewalks, and other public improvements. Those documents 

do not appear to be part of the record. The latest the cause of action could have accrued was June 

14, 2018, when Misty Valley sent the Sommers the letter advising them that they intended to erect 

a fence on the Easement area. We need not resolve which specific accrual date applies because the 

Sommers filed their complaint in August 2018, well within the four-year statute of limitations 

regardless of which date the cause of action arose. From this, it follows Misty Valley did not
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establish a statute of limitations defense, and we affirm the district court’s judgment that Idaho 

Code section 5-224 does not bar the Sommers’ action.

To be clear, today’s decision does not foreclose the ability of parties to bring claims for 

declaratory relief pursuant to Idaho Code section 10-1201 prior to the accrual of an underlying 

cause of action. The Uniform Declaratory Judgments Act, upon which the Idaho statutory scheme 

was modeled, explains in its “Reasons for [ ] Adoption” that the Act enables parties to take 

advantage of the declaratory judgment procedure before any wrong has been done or breach has 

been committed:

In order to have recourse to and take advantage of the Declaratory Judgment 

procedure it is not requisite that any wrong should have been done or any breach 

committed. It is to prevent and forestall such happenings by a Declaratory Judgment 

setting forth rights and duties for the guidance of those concerned and indicating 

the course to be followed, that a remedy is provided by the Act, and thus litigation 

is avoided. The measure is not merely preventive, it is also interpretative. It 

concerns itself not only with contracts, but with wills and other instruments of 

writing, with matters of governmental regulation, such as ordinances and the like, 

with respect to titles to property, and particularly with the status of family relations, 

man and wife, parent and child, guardian and ward, and also with provisions of 

trust. In all such cases the Act will be found of benefit. Under the Act the courts 

will have power to declare rights, status and other legal relations whether or not 

further relief is or could be demanded and no judgment will be open to the objection 

that it will be declaratory. It will therefore be binding. In other words, before war 

is openly declared between parties the courts may decide that there is no occasion 

there-for. The Uniform Act permits the court to construe a contract either before or 

after a breach thereof.

Unif. Declaratory Judgments Act, Prefatory Note, 4 (1922) (https://www.uniformlaws.org/Higher

Logic/System/DownloadDocumentFile.ashx?DocumentFileKey=153c6f5f-5946-9209-c153-a8f8

5e6fceef&forceDialog=0). 

In other words, so long as the claim for declaratory relief is justiciable, it may be brought 

before the statute of limitations begins to run on an underlying cause of action. See, e.g., Schneider 

v. Howe, 142 Idaho 767, 772, 133 P.3d 1232, 1232 (2006) (dealing with standing and ripeness).

To illustrate, in this case, Idaho’s Declaratory Judgment Act would have allowed Misty Valley, or 

the Sommers, to bring a declaratory judgment claim some time prior to August 3, 2017—the 

earliest date the Sommers’ quiet title action could have accrued. Such a claim would be authorized 

by section 10-1201, so long as it presents a “case where an actual or justiciable controversy exists.” 

Harris v. Cassia Cnty., 106 Idaho 513, 516, 681 P.2d 988, 991 (1984). Thus, a claim for declaratory 
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relief brought in the period prior to accrual of the underlying cause of action is not subject to an 

applicable statute of limitations.

B. The district court did not err in concluding that the Deed was unambiguous.

Ruling from the bench, the district court granted the Sommers’ first motion for partial 

summary judgment asking the court to hold that the Deed was unambiguous. Specifically, the 

district court concluded that the only reasonable interpretation of the Deed was that the Easement 

created in that instrument was for the benefit of (i.e., appurtenant to), the parcel of land conveyed 

by that instrument:

[A]s to [Sommer’s] motion for summary judgment, it’s based entirely on what the 

deed says and whether or not there was any reason why I should consider anything 

but the four corners of the deed. By virtue of the fact that this is the deed that created 

the easement, if there was any other property that was going to be served by the 

easement, I would have expected it to appear in the deed. Instead, there’s just a 

parcel of ground with a little chunk taken out of it, and then it says there’s an 

easement for ingress and egress. I don’t think there would be any logical reading of

the deed that would suggest anything other than the fact that this easement is to this 

section of property, but it doesn’t suggest in any way that there’s additional land 

that would be covered by it. So based upon the state of the record before the Court 

today, I can’t find that there is a genuine issue of material fact, and [it] does appear, 

based upon well-established Idaho real property law, that the scope of the easement 

is defined by the creating document, the deed, in the absence of any kind of 

ambiguity. I don’t find any ambiguity at this time, and so therefore, there’s no 

reason to consider the considerable parole evidence that was offered by [Misty 

Valley].

Whether an ambiguity exists in a legal instrument is an initial question of law, over which 

this Court exercises free review. Knipe Land Co., v. Robertson, 151 Idaho 449, 455, 259 P.3d 595, 

601 (2011). “Ambiguity exists only if language of the conveyance instrument is subject to 

conflicting interpretations.” Neider v. Shaw, 138 Idaho 503, 508, 65 P.3d 525, 530 (2003)

(emphasis added). “There are two types of ambiguity, patent and latent.” Id. “A patent ambiguity 

is an ambiguity clear from the face of the instrument in question.” Id. “A latent ambiguity exists 

where an instrument is clear on its face, but loses that clarity when applied to the facts as they 

exist.” Id. If the instrument is ambiguous, a court moves past the initial ambiguity question, and

the interpretation of the deed becomes a question of fact determined by parole evidence of the facts 

and circumstances surrounding the property transaction. Id. Misty Valley maintains on appeal that 

the district court erred because the Deed is latently ambiguous as a matter of law. We affirm the 

district court’s conclusion that the Deed is unambiguous.
15

In Porcello v. Estate of Porcello, we examined the core attributes of the latent ambiguity 

doctrine from a line of prior cases and articulated what we now dub the “tethered” test. 167 Idaho 

412, 424, 470 P.3d 1221, 1233 (2020). Under this test, we explained that a latent ambiguity must 

be tied to the language of the instrument itself:

[I]t is clear that a latent ambiguity in a contract must ultimately be tied to 

the language of the instrument itself. Latent ambiguities by nature only exist 

when the instrument is applied to the facts as they exist . . . In determining 

ambiguity, as articulated by Professor Williston, the court hears the proffer of the 

parties and determines if there are objective indicia that, from the parties’ linguistic 

reference point, the contract’s terms are susceptible of different meanings.

Id. (emphasis added) (citations and quotations omitted).

Based on this holding, there are two points of analysis when determining whether an 

instrument contains a latent ambiguity: first, we examine the language of the instrument, including 

other writings incorporated into the instrument; and second, we examine the reasonable alternative 

meanings suggested by the parties as to language within the instrument. Id. (quoting 11 Williston 

on Contracts § 30:5 (4th ed.)). We may consider extrinsic evidence of the structure of the 

instrument; the parties’ relative positions and bargaining power; the parties’ bargaining history; 

the party drafting the instrument; and “any conduct of the parties which reflects their understanding 

of the contract’s meaning” to determine whether language within the instrument is reasonably 

susceptible of more than one meaning. Id.

The warranty deed from Brett and Patricia Saurey to the Duck Club created the Easement 

at issue. The Deed stated in relevant part:

Lyle Brent Saurey also known as L. Brent Saurey and Patricia L. Saurey, 

Husband and Wife the grantor(s), do(es) hereby grant, bargain, sell and convey unto

North Fork Duck Club, LLC

Whose current address is PO Box 272, Bloomington, IN 47402

The grantee(s), the following described premises in Madison County, Idaho, TO 

WIT:

Parcel 1: The north 830 feet of the S 1⁄2 NE 1⁄4 of Section 3, Township 6 North, 

Range 39 East, Boise Meridian, Madison County, Idaho, excepting therefrom the 

following parcel of land:

The East 330 feet of the North 830 feet of the S 1⁄2 NE 1⁄4 of Section 3, Township 6 

North, Range 39 East, Boise Meridian, Madison County, Idaho.
16

Parcel 2: Together with an easement for ingress, egress and utilities described as 

follows: The North 60 feet of the East 330 feet of the North 830 feet of the S 1⁄2 NE 

1⁄4 of Section 3, Township 6 North, Range 39 East, Boise Meridian, Madison 

County, Idaho.

. . . .

Misty Valley argues the identity of the dominant estate to which the Easement is 

appurtenant is ambiguous. It points to the absence of any term that affirmatively restricts the 

dominant estate’s identity to the Brent Saurey Parcel (Parcel 1 in the Deed). It also points to 

extrinsic evidence of the other Saurey family conveyances (Kerry Saurey Parcel and Saurey Trust 

Parcel) to the Duck Club made essentially at the same time the Brent Saurey Parcel was conveyed. 

The Sommers respond by denying that any ambiguity exists. In light of Porcello’s tethered test, 

Misty Valley’s arguments are unavailing.

First, even when we assume, without deciding, that all three Saurey Family conveyances 

were part of the “same transaction” as Misty Valley contends, this does not establish a latent 

ambiguity within the Deed. There is nothing in the Deed’s language—or the language of the Kerry 

Saurey and Saurey Trust conveyances if they are read within the same four corners as the Deed—

to which a latent ambiguity may be tethered. The district court found the Deed contained only one 

conveyance of real property in fee simple—the Brent Saurey Parcel described in “Parcel 1.” The

language following the heading “Parcel 2” describes the Easement. Moreover, the Deed contains 

no language referencing some other parcel (e.g., Kerry Saurey Parcel or the Saurey Trust Parcel). 

Nor does the Deed include language granting an easement for the benefit of a “dominant estate” 

while failing to include any language that could reasonably identify it. 

As the district court concluded, there is no ambiguity in the Deed. The Deed is not patently 

ambiguous because there is only one reasonable way to read the Deed: the Easement conveyed 

under “Parcel 2” is for the benefit of Parcel 1. There is no latent ambiguity because Misty Valley’s 

extrinsic evidence of ambiguity cannot be tethered to any language within the Deed (or the other 

conveyances if we assume they were all part of the “same” transaction). Instead, contrary to 

Porcello, Misty Valley wholly relies on creating a latent ambiguity through extrinsic evidence—

not the language in the Deed. 

Next, Misty Valley argues that because the Deed does not expressly limit the scope of the 

dominant estate’s identity by its terms, or expressly restrict the dominant estate as limited to the 
17

property identified under “Parcel 1”—the Deed is latently ambiguous as to the full identity of the 

dominant estate. In other words, unless there is restrictive language, Misty Valley advances that it

is open season on how many other parcels comprise the full identity of a dominant estate. Misty 

Valley points to Christensen v. City of Pocatello, 142 Idaho 132, 124 P.3d 1008 (2005), in support 

of its argument. Misty Valley’s reliance on Christensen is misplaced.

In Christensen, we noted that where “the deed does not identify the dominant parcel served 

by the easement . . . the question of which parcel(s) the easement was intended to serve might be 

up for debate.” 142 Idaho at 136–37, 124 P.3d at 1012–13 (declining to reach the issue because 

the City admitted in its answer the identity of the dominant estate). The deed in Christensen stated 

that the servient parcel was subject to an easement—but omitted any language identifying the 

dominant estate or any other parcel that could reasonably be interpreted as such. Id. Thus, the 

Court in Christensen only opened the “debate” as to a dominant estate’s full identity where 

language identifying the dominant estate is entirely absent within the conveyance—not where 

there is an absence of language restricting the dominant estate to a parcel that is identified.

Here, unlike the debate alluded to in Christensen where the conveyance gave no hint as to 

what parcel is benefited, the Deed conveys the Brent Saurey Parcel “together with” the 

Easement—and no other real property. Thus, the Deed not only gives a hint as to what parcel is 

benefited by the Easement, the only reasonable reading of the Deed is that the Easement’s benefit 

is appurtenant to the parcel the same instrument conveys—the Brent Saurey Parcel. See Coward 

v. Hadley, 150 Idaho 282, 287, 246 P.3d 391, 396 (2010) (“[E]xpress easements are presumed to 

be appurtenant . . . . An easement appurtenant is one whose benefits serve a parcel of land. More 

exactly, it serves the owner of that land in a way that cannot be separated from his rights in the 

land.”). Thus, the “debate” Christensen alluded to is not applicable here. We decline to read in 

restrictive terms absent from the Deed’s plain language. Doing so would invariably hollow out the 

rule against parole evidence and the tethered test in future cases. 

In sum, we agree with the district court’s conclusion of law that the Deed was unambiguous 

as to the dominant estate’s identity. Even if we assumed that the Deed, the Kerry Saurey 

conveyance, and the Saurey Trust conveyance were part of the “same” transaction, no latent 

ambiguity over the identity of the dominant estate can be tied to the Deed’s language as required 

by Porcello’s tethered test. Thus, we affirm the district court’s grant of partial summary judgment 

identifying the dominant estate solely as the Brent Saurey Parcel. 
18

In addition, because Misty Valley’s argument on appeal as to the permissible use of the 

Easement turns on this Court determining the ambiguity question in Misty Valley’s favor, we do 

not reach its merits. Thus, we affirm the district court’s ruling limiting the Easement’s use to 

benefit a residential development solely on the dominant estate—the Brent Saurey Parcel

C. The district court abused its discretion in excluding testimony at trial, but this 

error was harmless because it did not affect Misty Valley’s statute of limitations 

or quasi-estoppel defenses.

The district court struck a portion of Terry Mortensen’s testimony at trial as a sanction for 

a discovery violation by Misty Valley. Terry Mortensen was Misty Valley’s witness and was called 

to, among other things, testify about his conversations with the Saureys and Sommers starting in 

2007 regarding Misty Valley’s plan for a subdivision. The district court imposed the sanction after

determining Misty Valley had failed to supplement its discovery responses with certain text 

messages between Mortensen and Jared Sommer that occurred prior to December 6, 2017. For the 

reasons discussed below, we conclude the district court abused its discretion because it did not act 

consistently with the legal standards applicable to the specific choices available to it. However, 

this error was harmless because it did not affect Misty Valley’s statute of limitations or quasiestoppel defenses. 

Idaho Rule of Civil Procedure 26(e)(3) authorizes a trial court to exclude testimony or 

evidence as a sanction for a party’s failure to supplement responses to discovery requests. “The 

imposition of discovery sanctions is within the discretion of the trial court and [the] Court will not 

overturn that decision absent a manifest abuse of discretion.” Farr v. Mischler, 129 Idaho 201, 

206, 923 P.2d 446, 451 (1996). “In determining whether the trial court abused its discretion in 

imposing a sanction for a discovery violation, [the Court] must first determine whether a discovery 

violation occurred.” Easterling v. Kendall, 159 Idaho 902, 909, 367 P.3d 1214, 1221 (2016) 

(internal quotations omitted).

The Court will not overturn a trial court’s determination that a discovery violation has 

occurred if it is supported by substantial and competent evidence. State v. Stradley, 127 Idaho 203, 

207–08, 899 P.2d 416, 420–21 (1995). Substantial, competent evidence exists if there is evidence 

in the record that a reasonable trier of fact could accept, and rely upon, in making the factual 

finding challenged on appeal. Caldwell Land and Cattle, LLC v. Johnson Thermal Systems, Inc., 

165 Idaho 787, 795, 452 P.3d 809, 817 (2019). Finally, if there was an abuse of discretion, we 
19

evaluate whether the error was harmless. Brauner v. AHC of Boise, LLC, 166 Idaho 398, 409, 459 

P.3d 1246, 1260 (2020).

During the bench trial, the district court determined Misty Valley failed to supplement its 

discovery responses and the court made the decision to strike part of the Mortenson’s testimony

as a sanction:

The court has before it a motion to strike testimony of the witness, Mr. 

Mortensen, based on a discovery sanction. I've considered the motion. I did look at 

the text messages that were provided in Exhibit 6. The court, in making this ruling, 

has to consider a few things. The first thing I look at is whether or not there has 

been any discovery violation, whether that’s occurred or not, and then what’s an 

appropriate remedy if the court finds there is a discovery violation. Some of this is 

governed by Rule of Civil Procedure 26. That indicates that if there is a failure to 

supplement, the court may exclude the testimony of any witness or the admission 

of evidence not disclosed by a supplementation. It’s required by the rule.

[The Sommers] asked that I strike the entire testimony of Mr. Mortensen. 

The court thinks that is a remedy that’s not warranted here. I do think there was a 

requirement under the rule to supplement the discovery responses, in particular the 

request under Interrogatory No. 7 for these declarations. Mr. Mortensen clearly 

knew a lot about the project and other things. 

His testimony is not stricken in its entirety, but I will strike just those 

sections of his testimony as they relate to discussions with Jared Sommers that 

predate the text messages that were included in Exhibit 6. And the reason for that 

is, clearly, Mr. Mortensen had knowledge of that. He had those text messages 

available, and those should have been provided.

Misty Valley first argues the district court failed to perceive the issue of whether to strike 

Mortensen’s testimony as one of discretion. Misty Valley points to the district court’s statement

that “[i]t’s required by the rule” to argue the district court believed it had to strike the testimony. 

Misty Valley misapprehends the ruling.

In the sentence immediately before the statement Misty Valley relies upon, the district 

court correctly recognized the court “may” exclude testimony or evidence where there was a failure 

to supplement discovery. Reading the colloquy in full, the district court’s use of the term 

“required” referred to a party’s obligation to seasonably supplement discovery requests pursuant 

to Idaho Rule of Civil Procedure 26(e)(1)(C), not the court’s authority to impose sanctions. Thus, 

the district court did perceive the issue of whether to strike some portion, or all, of Mortensen’s 

testimony as one of discretion.
20

Next, Misty Valley argues the district court abused its discretion because “the record on 

appeal and trial transcript do not support that any discovery violation actually occurred.” The 

discovery violation the district court found and used to support its decision to strike portions of 

Mortensen’s testimony, was that Misty Valley failed to produce text messages exchanged between 

Mortensen and Jared Sommer prior to December 6, 2017. However, as Misty Valley points out, 

there is not substantial, competent evidence in the record that any text messages between 

Mortensen and Jared Sommer ever existed prior to December 6, 2017. On direct examination,

Mortensen only testified to communications with Jared Sommer prior to December 6, 2017 by 

way of in person meetings or interactions at Planning & Zoning hearings—not text messages. The 

only texting Mortensen testified to started in December 2017—consistent with the text messages 

produced by Misty Valley in Exhibit 6. The Sommers’ examination in aid of their discovery 

violation objection reveals nothing different. From this, it follows that there is not substantial 

evidence in the record of a failure to supplement by Misty Valley—rendering the district court’s 

finding of a discovery violation without a factual basis. See Stradley, 127 Idaho at 207–08, 899 

P.2d at 420–21. The decision of the district court to sanction Misty Valley without a factually 

supported discovery violation was inconsistent with the legal standards applicable to the specific 

choices available to it. As such, the district court abused its discretion.

Misty Valley argues on appeal that this abuse of discretion affected proper consideration 

of their statute of limitations and quasi-estoppel defenses in the district court’s conclusions of law. 

We disagree. First, even when fully considered, the testimony in the record of Mortensen’s 

communications with Jared Sommer from 2007 forward is not material to Misty Valley’s statute 

of limitations defense. As discussed supra, the quiet title action did not accrue until at least August 

3, 2017, when Misty Valley filed its preliminary plat, because the communications between Misty 

Valley and the Sommers prior to that filing did not provide concrete, non-speculative notice of the 

nature and extent of Misty Valley’s intended interference with the Sommers’ interests. Thus, the 

district court’s error in excluding Mortensen’s testimony of communications with Jared Sommer 

between 2007 and December 6, 2017, was harmless as Misty Valley cannot establish a statute of 

limitations defense even when this testimony is considered.

Second, the district court’s error did not affect Misty Valley’s quasi-estoppel defense for 

two reasons: (1) it was Misty Valley’s duty to clarify at trial any confusion over what testimony 

the district court was striking and what it was still considering; and (2) the district court considered 
21

all of Mortensen’s testimony in rejecting Misty Valley’s quasi-estoppel defense notwithstanding 

its prior ruling purporting to strike portions of it.

The district court did not reduce its ruling to writing to clarify exactly which sections of 

Mortensen’s testimony it was striking. Instead, the district court set the line as striking “discussions 

with Jared Sommers” before December 6, 2017 (the date of the earliest text messages disclosed in 

Exhibit 6 during discovery). Misty Valley complains on appeal that it is unclear what was actually 

stricken versus what was considered by the district court when it rejected Misty Valley’s quasiestoppel defense. However, Misty Valley cannot now on appeal complain of confusion over what 

the district court did or did not strike when Misty Valley did not raise this issue with the district 

court. It was incumbent on Misty Valley to clarify the record for issues it wished to preserve for 

appeal. See Profits Plus Capital Management, LLC v. Podesta, 156 Idaho 873, 890, 332 P.3d 785, 

802 (2014) (“It is the litigant’s duty to not only clearly state its contentions to the trial judge, but 

to make such contentions, and the rulings thereon, of record so they may be reviewed on appeal.”).

Furthermore, the district court’s conclusions of law and record citations reveal the district 

court did not follow the parameters of its own sanction when concluding that Misty Valley failed 

to establish its defense of quasi-estoppel. In pertinent part, the district court’s conclusion of law 

states:

Evidence was presented at trial that the parties had discussed a proposed future 

development on several occasions in 2007. There is insufficient evidence to 

establish that as a result of the discussions the Sommers gained any advantage, 

caused any disadvantage to Misty Valley, or induced Misty Valley to change its 

position regarding the proposed development to the property. After those 

discussions, in 2011-2013, the property went through a foreclosure, sheriff’s sale 

and subsequent redemption. With all of the intervening circumstances that occurred 

after the discussions, including the foreclosure and redemption of the property, 

Misty Valley has failed to show that those prior discussions were sufficient to 

establish quasi-estoppel.

Within this conclusion, the district court, in footnotes 49 and 50, cites to, and relies on,

Mortensen’s testimony as to his communications with Jared Sommer between 2007 and December 

6, 2017—the same testimony the district court purported to strike as a discovery sanction.

Moreover, the district court explicitly stated it considered evidence presented at trial of the parties’

discussions in 2007 and concluded it was “insufficient.” From this, it follows that the district 

court’s error in sanctioning Misty Valley could not have affected its quasi-estoppel defense

because the district court did consider Mortensen’s testimony of what Jared Sommer knew or 
22

represented to Misty Valley from 2007 forward—and still rejected Misty Valley’s quasi-estoppel 

defense. 

Even if we assume the district court’s citations to Mortensen’s purportedly stricken 

testimony were not evidence of reliance upon it, our review of the record affirms the district court’s 

rejection of the quasi-estoppel defense. There is insufficient evidence to establish that the Sommers 

changed positions, gained an advantage, or caused a disadvantage to Misty Valley. There is 

insufficient evidence to establish that the Sommers induced Misty Valley to change its position 

regarding its proposed development or that the Sommers derived a benefit from, or acquiesced in, 

Misty Valley’s proposed development. See Trumble v. Farm Bureau Mut. Ins. Co. of Idaho, 166 

Idaho 132, 136, 456 P.3d 201, 215 (2019) (listing the elements of a quasi-estoppel defense).

In sum, the district court abused its discretion in sanctioning Misty Valley without the 

support of substantial, competent evidence in the record of a discovery violation. However, the 

district court’s error was harmless because it did not affect Misty Valley’s statute of limitations or 

quasi-estoppel defenses. Thus, we affirm.

D. The district court properly declined to extinguish or terminate the Easement.

On cross-appeal, the Sommers argue that the district court erred as a matter of law in 

relying on Gray v. Gore, 119 Idaho 425, 807 P.2d 643 (1991), to deny the Sommers’ request for 

termination of the Easement. The Sommers advocate for the adoption of the easement termination 

rule fashioned by a California District Court of Appeal in Crimmins v. Gould, 308 P.2d 786 (Cal. 

Dist. Ct. App. 1957). Here, even if we were to adopt the rule in Crimmins, the Sommers do not 

prevail. Thus, we affirm the district court’s refusal to terminate the Easement. 

In Crimmins, a California appellate court evaluated the propriety of extinguishing an 

easement as a remedy. 308 P.2d at 791. The court noted “[t]he general rule is that misuse or 

excessive use is not sufficient for abandonment or forfeiture, but an injunction is the proper 

remedy.” Id. (citing 16 A.L.R.2d 610 (1951)). Crimmins detailed that the defendants did not 

merely subdivide the dominant estate and increase the use of the private easement as to that parcel. 

Instead, under the particular character of adjoining parcels, defendants had permanently extended 

use of the private easement to a second parcel with no rights to the easement, and extended the 

private easement into two public streets. Id. Ultimately, the Crimmins court announced the rule 

that if “the burden of the servient estate is increased through changes in the dominant estate which 

increase the use and subject it to use of non-dominant property, a forfeiture will be justified if the 
23

unauthorized use may not be severed and prohibited.” Id. (emphasis added). Thus, the court in 

Crimmins determined forfeiture was appropriate because the character of the parcels paired to the

defendant’s multiple unlawful extensions of the easement made it impossible to sever the misuse 

and return the easement to its intended private nature. Id.

Here, the district court declined to terminate the Easement because of the future use 

restrictions it imposed:

The Sommers have sought the remedy of termination of the Easement. An 

easement “should only be terminated as a last resort and only if there is no viable 

alternative to prevent misuse or overuse because the Supreme Court has made it 

clear that there is a strong preference against forfeiture.” Gray v. Gore, 119 Idaho 

425 426, 807 P.2d 643, 644 (1991). With the Court’s holding that future use 

consistent with the restrictions defined herein is permitted, the facts in this case do 

not support the extreme remedy of termination of the Easement. As such, the 

Sommers’ request for termination of the Easement is denied.

Before turning to application of Crimmins, we note the district court misquoted Gray v. 

Gore, 119 Idaho 425, 426, 807 P.2d 643, 644 (1991). The district court quoted Gray as stating that 

“[an easement] should only be terminated as a last resort and only if there is no viable alternative 

to prevent misuse or overuse because the Supreme Court has made it clear that there is a strong 

preference against forfeiture.” Gray does not contain this quote. See Gray, 119 Idaho at 426, 807 

P.2d at 644. In Gray, we held that an automatic easement forfeiture clause in a court order that 

itself created the easement was not enforceable. Id. We noted Idaho’s strong preference against 

forfeitures and explained that even when there is a written agreement between parties for forfeiture 

upon abuse of an easement’s restrictions, such an agreement will “not be honored in order to avoid 

unconscionable results.” Id. Thus, the district court correctly discerned that Gray stands for the 

proposition that Idaho disdains forfeitures. See also Stringer v. Swanstrum, 66 Idaho 752, 760, 168 

P.2d 826, 830 (1946) (“Equity abhors forfeitures.”); Hurst v. Idaho-Iowa Lateral & Reservoir Co., 

42 Idaho 436, 442, 246 P. 23, 25 (1926) (“The courts abhor a forfeiture, and, where no public 

interest is favored thereby, equity leans against declaring a forfeiture.”); Abercrombie v. Stoddard, 

39 Idaho 146, 158, 228 P. 232, 235 (1924) (“Forfeitures are not favored in law or equity . . . . 

Courts are reluctant to declare and enforce a forfeiture if by reasonable interpretation it can be 

avoided.”).

Turning to Crimmins, the district court concluded injury to the Sommers is only 

“threatened” at this time because the proposed subdivision is still in the planning phase. Moreover, 
24

it determined that a new plat could be prepared for a stand-alone subdivision on the Brent Saurey 

Parcel to ensure the Easement was not subject to an unlawful use or burden. Finally, the district 

court determined there is no actual, or ongoing, unlawful use of the Easement, let alone a 

permanent change in the dominant estate such that misuse of the Easement is impossible to sever. 

Again, the Crimmins rule permits forfeiture or termination of an easement only “if the 

unauthorized use may not be severed and prohibited.” 308 P.2d at 791. Based on the district court’s 

findings and conclusions, there simply is no evidence to support that type of finding. 

Finally, the Sommers argue the Easement should be terminated because it has no 

permissible use based on Misty Valley’s planned subdivision. The Sommers’ argument fails to 

account for the fact that the Easement here is a written easement, by grant, appurtenant to the Brent 

Saurey Parcel owned by Misty Valley. The Court has long held that mere non-use of an easement 

by grant does not establish abandonment. Quinn v. Stone, 75 Idaho 243, 250, 270 P.2d 825, 832 

(1954); Kolouch v. Kramer, 120 Idaho 65, 67, 813 P.2d 876, 878 (1991). Thus, even if Misty 

Valley never uses the Easement, it will not result in abandonment without more.

In sum, we affirm the district court’s refusal to terminate the Easement. Because the 

Sommers have not prevailed in demonstrating grounds for termination of the Easement under 

Crimmins, it is not necessary to reach Misty Valley’s arguments in response to the Sommers on 

this issue. 

E. The district court did not abuse its discretion in determining the Sommers were 

not the prevailing party below.

After the district court issued its findings of fact and conclusions of law, the Sommers filed 

a motion for costs pursuant to Idaho Rule of Civil Procedure 54(d)(1) and Idaho Code section 10-

1210, contending they were the prevailing party. Misty Valley responded with a motion to disallow 

the Sommers’ request for costs—arguing that neither party was the overall prevailing party. The 

district court denied the Sommers’ motion. The Sommers cross-appeal the denial here.

Before costs at trial may be awarded, the trial court must determine which party, if any, is 

the prevailing party. I.R.C.P. 54(d)(1). 

In determining which party to an action is a prevailing party and entitled to costs, 

the trial court must, in its sound discretion, consider the final judgment or result of 

the action in relation to the relief sought by the respective parties. The trial court 

may determine that a party to an action prevailed in party and did not prevail in 

part, and on so finding may apportion the costs between and among the parties in a 
25

fair and equitable manner after considering all of the issues and claims involved in 

the action and the resulting judgment or judgments obtained.

I.R.C.P. 54(d)(1)(B).

“The determination of prevailing party status is committed to the sound discretion of the 

district court and will not be disturbed absent an abuse of that discretion.” Jorgensen v. Coppedge, 

148 Idaho 536, 538, 224 P.3d 1125, 1127 (2010). The four-part abuse of discretion standard from 

Lunneborg applies here and is set out supra. See Lunneborg, 163 Idaho at 863, 421 P.3d at 195.

In previous cases, the Court has affirmed the decision of the district court denying 

prevailing party status where the district court appropriately weighed the Rule 54(d) factors, 

looked at the overall view or result of the action, and reached a conclusion through the exercise of 

reason. See, e.g., Israel v. Leachman, 139 Idaho 24, 27, 72 P.3d 864, 867 (2003) (affirming the 

district court’s decision to not award attorney fees where the district court determined both parties 

prevailed in part); Trilogy Network Systems, Inc. v. Johnson, 144 Idaho 844, 847–48, 172 P.3d, 

112–23 (2007) (affirming the district court’s decision that the plaintiff was not the prevailing party 

where the plaintiff succeed on its breach of contract claim but failed to prove damages); Jorgensen, 

148 Idaho at 539, 224 P.3d at 1128 (affirming the district court’s decision that no party was the 

prevailing party where one party succeed on its breach of contract claim and the other successfully 

defended against a fraud claim).

Here, the Sommers contend that the district court abused its discretion when it denied them 

prevailing party status. The Sommers argue Misty Valley asserted five affirmative defenses, none 

of which Misty Valley prevailed upon (failure to state a claim, statute of limitations under section 

5-224, quasi-estoppel, unclean hands, and consent to expansion of the easement). While the 

Sommers are correct that Misty Valley did not succeed on these defenses, their argument ignores 

that Misty Valley did succeed, as Misty Valley argues in response, in defending against the 

Sommers’ request for injunctive relief and termination of the Easement. From this, the district 

court concluded that neither party was the prevailing party under Rule 54(d) as each prevailed in 

part. 

However, the Sommers take issue with the district court’s use of the term “affirmative

defenses” within its decision denying their motion for costs:

[the] Sommers [were] successful in obtaining judgment defining a restricted us[e] 

of the easement as compared to Misty Valley’s proposed use, the easement remains 
26

and was not terminated. Thus[,] Misty Valley prevailed in its affirmative defenses 

as well.

The district court’s use of the word “affirmative” before the word “defenses” unfortunately 

confuses the matter, as Misty Valley did not prevail on any “affirmative” defenses as the Sommers

correctly point out. However, the underlying substance of the district court’s reasoning still rests 

on its determination that Misty Valley prevailed in part because it successfully defended against 

two of the Sommers’ requested forms of relief (injunction and termination). As Misty Valley 

prevailed in part below, the Sommers also only prevailed in part. The Sommers present no 

argument as to why this case is different from Israel, Trilogy Network Systems, Inc., or Jorgensen,

where the Court affirmed the trial courts’ discretion to deny prevailing party status after the trial 

court properly determined a party prevailed only in part. Thus, the district court did not abuse its 

discretion in denying prevailing party status to the Sommers and we affirm.

F. Attorney fees and costs on appeal are denied for both parties.

Finally, both the Sommers and Misty Valley assert they are entitled to an award of costs 

and attorney fees in this appeal and cross-appeal pursuant to Idaho Appellate Rules 40 and 41, and 

Idaho Code section 12-121. Given the mixed results in this case, neither party is the prevailing 

party on appeal, thus, we deny fees and costs to both parties.

III. CONCLUSION

We affirm the district court’s judgment. We deny costs and attorney fees on appeal to both

parties.

Chief Justice BEVAN, Justices STEGNER and ZAHN, and Justice Pro Tem TINGEY, 

CONCUR.