1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 41277 H.F.L.P., LLC,

Plaintiff

- Appellant,

v. THE CITY OF TWIN FALLS,

Defendant

- Respondent. ) ) ) ) ) ) ) ) ) ) Boise, October 2014 Term
2014 Opinion No. 130

Filed: December 8, 2014
Step hen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.
District court decision regarding easement, affirmed.
Steven A. Wuthrich, PA, Montepelier, a rgued for appellant.

Wonderlich & Wakefiel d, Twin Falls, for respondent. Fritz A. Wonderlich argued.

____________________ BURDICK, Chief Justice This appeal arises from the Twin Falls County district court’s decisions regarding the
existence of an easemen t over property the City of Twin Falls (“the City”) owns in the Snake River Canyon. At trial, H.F.L.P., LLC , (“H.F.L.P.”) claimed it had a prescriptive easement and an easement by necessity over the property, but the district court ultimately entered judgm ent in favor of the City. H.F.L.P. argues on appeal that the district court : (1) did not have subject matter jurisdiction over the case; ( 2) erred when it held t hat H.F.L.P. failed to prove a prescriptive

easement and an easement by necessity ; and (3) erre d when it admitted photographic overlays over H.F.L.P.’s objections at trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND This case involves a proposed easement over a rough, relatively unimproved, single

vehicle dirt road that travels over property the City owns in the Snake River Canyon, south of the
Snake River. H.F.L.P. owns three parcels in the Snake River Canyon, west of Rock Creek :2 “Harmsen Parcel 1,” “Harmsen Parcel 2,” and “Harmsen Parcel 3

. ” 1 The City owns roughly twenty

- seven parcels in the Sna ke River Canyon, beginning at the waste water treatment plant (“treatment plant”) east of Rock Creek, and ex tending west of Rock Creek, just west of

“ Harmsen P arcel 2

. ” The road begins at the treatment plant and runs west/northwest, parallel to the Snake
River and across property now owned almost entirely by the City

. That property was previou sly owned by either the BLM, several unidentified owner s , Carl Urie, Carl Urie’s father and uncles,

or several other of H.F.L.P.’s predecessor s

. Once the road reaches Rock Creek, it crosses the Rock Creek Bridge and travels across “Harmsen Parcel 3,” through a parcel the City owns, to “Harmsen Parcel 2. ” The entire road is approximately five miles long

. H.F.L.P. seeks to establish

an easement over the length of the roa d because it owns property west of Rock Creek Bridge that
is landlocked and useless without an easement ; the Snake River border s H.F.L.P.’s land to the

n orth
, and canyon cliffs border the south and west. H.F.L.P. acquired its parcels following a series of conveyances that trace back to Carl Urie and his siblings. Carl Urie ’ s father owned property so uth of the Snake River and west of
Rock Cree k beginning in about the 1930’s

. Carl moved onto the property with his family in 1946, when he was two years old. Th e Uries had a trout farm on part of their property around the
1950’s , and th en a cattle business up to 1976. T hey also grew corn for silage on the property
, although it is unclear which lot(s) were used for these activities. The Uries apparently used the

r oad involved in this lawsuit as their exclusive access to their property. At times, other people protested the Uries’ right to use the road, but the Urie s would talk them out of it, insisting they had to use the road and were allowed to do so. However, at trial it

wa s unclear as to which part of the road was involved or which land owners participated in those
conversations. At one point in the 1960’s after the C ity took over the treatment plant, the Uries

encounte red a gate

— which was on the southeast part of the treatment plant property

— and they attempted to dismantle it. Thereafter, a man from the treatment plant stopped the Uries from dismantling the gate and provided them with a key to the gate. The Uries and their successors
hav e had a key ever since th en

. The Uries sold “Harmsen Parcel 1,” “Harmsen Parcel 2,” and “Harmsen Parcel 3” to Northern Hydro around 1992, and H.F.L.P. is a successor of Northern Hydro. Stephen Harmsen

1 Harmsen Parc el 1 is not part of this lawsuit.3 has an interest in H.F.L.P. and also had an interest in Northern Hydro. Harm sen and his employees used the subject road monthly, primarily for recreational purposes, ever since Northern Hydro acquired its properties from the Uries, but it is unclear which parts of which properties have been used. Harmsen has never been denied access to the road
, and the City gave him keys when it put up a new gate at the treatment plant

. At some po int, Harmsen attempted to get a permit to start construction on H.F.L.P.’s p roperty, but was informed he could not obtain a permit without a recorded easeme nt due to the property’s landlocked nature. Harmsen subsequently requested an easement over the City’s properties, which the City refused. Consequently, H.F.L.P. filed a c omp laint with the district court on October 27, 2011, seeking a declaration of easem ent over the City’s properties east of Rock Creek

. In that

c omplaint, H.F.L.P. sough t an easement by necessity, and
, alternatively, a prescriptive easement

. At trial however, H.F.L.P. conceded it could not prove unity of title with respect to the property east of Rock Creek, and as such, was no longer seeking an easement by necessity over that land.
Inste ad, H.F.L.P. sought an easement by p rescription over the land east of Rock Creek and an easement by necessity over land the City owns west of Rock Creek be tween “Harmsen Parcel 3”
and “Harmsen Parcel 2.” H.F.L.P. also pled a twenty

- year statutory period for its prescriptive easement claim, but subsequently submitted a pre

- trial memorandum asserting that in light of a recent decision from this Court, a five

- y ear statutory period applied. H.F.L.P. also a rgued the
five

- year statutory period at trial. Following a bench trial, the district court entered its June 18, 2013 F indings of Fact and
Conclusions of L aw. Preceding the findings , however, the court provided a special commentary
on the lack of defi nitive proof presented at trial, where t he court noted that its findings of fact were limited due to the manner in which H.F.L.P. presented its evidence. Specifically, the court noted that H.F.L.P. only had three wi tnesses testify at trial and that the testimony generally was not tied to any deeds, exhibits, or the chain of title summaries that were admitted into evidence.
The court also disc ussed several evidentiary flaws. The se flaws included that : (1) certain maps
were scaled differentl y and inadequately labeled; (2) the legal description of the easeme nt lacked particularized detail; and (3) the chain of title summaries were not in chronological order and did
not follow o ne piece of property at a time. Essentially
, the court stated , H.F.L.P.’s evidence was so fragmented that the court had limited proof and therefore could not determine what t he facts
established

. The court acknowledged that the evidence H.F.L.P. submitted may have contained4 information supporting it s claims, but that “ the court was in no position to ferret

- out : ( 1) what
that information is and ( 2) how it supported H.F.L.P.’s claims. ” Mos t significantly, the court emphasized that H.F.L.P.’s burden to prove its claim s included an obligation to pr esent evidence clearly and that it was not the court’s “duty to sift through maps and unsystematic exhibits to organize and figure out the plaintiff’s case. ”
T he court then set forth its findings of fact and ultimately conclu ded that H.F.L.P. did not prove its p rescriptive easement claim or its easement by necessity claim by clear and convincing evidence. As to the prescriptive easement claim, the district court found that H.F.L.P. failed to
show that : (1) the use of the road was adverse and under a claim of righ t; (2) the use of the road
was continuous and uninterrupted; and (3) the prescriptive elements were satisfied for the statutory period. With respect to the easement by necessity claim, the district court held that H.F.L.P. failed to prove unity of title of the parcels west of Rock Creek

. The district court also determined it properly exercised subject matter jurisdiction over the case because H.F.L.P. did
not show the United States claimed an interest in the subject property that would give the federal
dist rict courts exclusiv e jurisdiction over the case . H.F.L.P. timely appealed the district court’s judgment.
II. ISSUES ON APPEAL
1. Whether the district court had subject matter jurisdiction to decide easement rights over land the City of Twin Falls acquired from the BLM before this suit

. 2. Whether substantial and competent evidence supports the district court’s finding that H.F.L.P. did not establish all the elements of its prescriptive easement claim

. 3. Whether substantial and competent evidence supports the distric t court’s finding that H.F.L.P. did not establish an easement by necessity.
4. Whether the district court erred when it admitted aerial phot ographs of the property. III. ANALYSIS H.F.L.P. appeals a number of the district court’s decisions made during and after trial.
These decisions include the district court determining it had subject matter jurisdiction over the

case; finding H.F.L.P. failed to present sufficient evidence to establish its easement by necessity and prescriptive easement claims; and admitting ce rtain evidence over H.F.L.P.’s hearsay objections at trial

. Because the jurisdictional issue could be dispositive , we will address it first.
A. The district court had s ubject matter jurisdiction over the case

.5 H.F.L.P. argues the district court did not ha ve subject matter jurisdiction over easement claims relating to land the BLM once owned . H.F.L.P. asserts that 28 U.S.C. § 1346(f) gives
federal dis trict courts exclusive jurisdictio n over quiet title actions over land the United States
claims an interest in

. In other words , H.F.L.P. argues that because the BLM owned some of the
land duri ng the prescriptive period, federal courts have exclusive jurisdiction over the easement dispute, even though the BLM does not currently ow n or “claim an interest in” any o f t he land
involved in this suit

.

“ Questions of jurisdiction must be addressed prior to reaching the merits of an appeal. ”
Bach v. Miller , 144 Idaho 142, 144

– 45, 158 P.3d 305, 307

– 08 (2007) . Whether the district court had subject matter jurisdiction is a question of law over which this Court exercises free review.
Id. at 145, 158 P.3d at 308. Subject matter jurisdiction is “the power to determine cases over a general type or class of dispute.” Bagley v. Thomason , 155 Idaho 193, 196, 307 P.3d 1219, 1222 (20 13)

. The Idaho Constitution grants the district courts original jurisdiction over all matters at law and in equity. Idaho Const. art. V, § 20. This includes jurisdiction to declare easement rights. See, e.g. , Sinnett v. Werelus , 83 Idaho 514, 365 P.2d 952 (1961)

. However, 28 U.S.C. § 1346(f) deprives state district court s of jurisdiction over easement claims where a party brings an action under 28 U.S.C. § 2409a to “ quiet title to an estate or interest in real property in which an interest is claimed by th e United States. ” 28 U.S.C. § 1346(f). For a federal court to exercise jurisdict ion under 28 U.S.C. § 1346 (f)
, the United States must claim an interest i n the property at issue and
titl e to real property must be disputed

. Robinson v. United States
, 586 F.3 d 683, 686 (9th Cir. 2009)

. An easement dispute challenging the United States’ interest will suffice, so long as the dispute actually challenges the federal government’s title. Id . at 686, 688. Thus, 28 U.S.C. § 1346(f) only applies where the United State s claims a current interest in the property involved in the suit. For example, in Kirk v. Schultz , 63 Idaho 278, 119 P.2d 266, 269 (1941) , this Court noted that in Wilson v. Williams , 87 P.2d 683 (N.M. 1939) , plaintiff’s use
of a road over land the United States owned for 10 years before the defendant acquired title from
the United States crea ted a prescriptive right over the road that could be enforced against the defendant

. (emphasis added)

. There
, it was irrelevant that the United States owned the land
d uring the prescriptive period: the right was enforced against the defendant, not the United States. Thus, if the United States does not claim a current interest in

— and there is no dispute6 over the United States’ title to

— the property involved in an easemen t claim, state courts can properly exercise subject matter jurisd iction over the claim.
The district court held that it properly exercised subject matter jurisdiction over H.F.L.P.’s easement claims because the United States did not own any of the property when the suit was brought and thus, 28 U.S.C. § 1346(f) did not apply

. We agree. Here, H.F.L.P. lawsuit sought an easement against the C ity over land almost entirely owned by the City 2 at the time
H.F.L.P. filed its suit . The United States was not named a s a party to the action, and H.F.L.P. has
not demonstrated that the United States “claims” an interest in any of the property the road

traverses . H.F.L.P. ’s brief does not direct this Court to any evidence in the record that shows the
United States claims an interest in the land

. Further , H.F.L.P.’s opening brief alleges that the City acquired the land from the BLM by an Act of Congress “just a little over a week before [this] lawsuit was filed.” Th is statement undermines any argument H.F.L.P. makes regardi ng the
district court’s lack of subject matter jurisd iction over this suit. H.F.L.P. failed to demon strate facts in the record that would give federal courts exclusive jurisdiction over the case
, and we therefore hold that the district court properly exerc ised subject matter jurisdiction over the case

. B. Substantial and competence evidence supports the district court’s decision that H.F.L.P. failed to establish a prescriptive easement

. H.F.L.P. next argues the district court erred when it found H.F.L.P. fai led to prove all the
elements of its prescriptiv e easement claim. To establish an easement by prescription , a plaintiff must prove by clear and convincing evidence that use of the subject property is “(1) open and notorious, (2) continuous and uninterrupte d, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement (5) for the statutory period of five years.” Hughes v. Fisher
, 142 Idaho 474, 480, 129 P.3d 1223, 1229 (2006).
A district court’s dec ision that a plaintiff failed to establish a prescriptive easement involves entwined questions of law and fact. Hodgins v. Sales
, 139 Idaho 225, 229, 76 P.3d 969, 973 (2003). When t his Court reviews a lower court’ s decision, it determines whether the
evide nce supports the findings of fact and whether the findings of fact support the conclusions of
law. Anderson v. Larsen
, 136 Idaho 402, 405, 34 P.3d 1085, 1088 (2001). “Each element is essential to the claim, and the trial court must make findings relevant t o each element in order to sustain a judgment on appeal.” Hodgins
, 139 Idaho at 229, 76 P.3d at 973

. Consequently, i t is the

2 There is one small section owned by a private owner who was not a party to the lawsuit.7 province of the district court to weigh conflicting evidence and testimony and to judge the witnesses’ credibility

. Id. Because the trial court is the trier of fact in a bench trial, this Court liberally construes the trial court’s findings of fact on appeal in favor of the judgment entered.
Anderson , 136 Idaho at 405, 34 P.3d at 1088. Therefore , f indings of fact based on substantial and competent evidence will not be overturned on appeal even in the face of conflicting evidence. Id. Additionally
, courts should closely scrutinize and limit rights obtained through prescription because prescription acts as a penalty against the servient land owner. Gibbens v. Weisshaupt , 98 Idaho 633, 638, 570 P.2d 870 , 875 (1977). In other words
, Idaho law disfavors private prescriptive easements

. Elder v. Nw. Timber Co.
, 101 Idaho 356, 358, 613 P.2d 367, 369 (1980). After the bench trial, the district court found that H.F.L.P. proved the use of the road was open and notorious and that the owners of the servient properties had actual or impute d knowledge of that use. However, the court found that H.F.L.P. failed to prove that : (1) the use of
the road was continuous and uninterrupted, (2) the use was adverse and under a claim of right,
and (3) all the elements were satisfied for the statutory period. The district court also held that even if H.F.L.P. could prove all of the prescriptive easement elements , i ts claim would still f ail because private individuals cannot obtain prescriptive easement s against public property

. 1. Prescriptive easement elements. H.F.L.P. argues it put forth sufficient evidence to prove the use of the road was continuous and uninterrup ted, adverse and under a claim of right, and the prescriptive elements were satisfied for the statutory period. Because the court used t he same reasoning as a basis for its decision on both the continuous and uninterrupted element and the statutory period element, they will be discussed together

.

a. H.F.L.P. did not prove by clear and convincing evidence the c ontinuous and uninterrupted element or the statutory period element

. First, H.F.L.P. argues the district court erred when the court found the road use wa s not continuous and uninterrupted and that H.F.L.P. failed to establish that each element was satisfied for the statutory period

. H.F.L.P. relies on Carl Urie’s testimony at trial that his family used the road continuously between 1945 and 1986
, and on th e fact that this testimony was undisputed to

argue th at it proved the use of the road was continuous and uninterru p ted

. Further, H.F.L.P. argues that the district court erroneously focused on post

- 1961 events when it determined
H.F.L.P. failed to prove the se two elements. H.F.L.P. argues the appropriate timeframe was
between the 1930’s and 1984 . H.F.L.P. asserts that by doing so, the district court either applied a8 time period exceeding the applicable five year period or somehow ruled that H.F.L.P. abandone d
the easement. Because abandonment was not raised as an affirmati ve defense in the pleadings and because there was no evidence in the record of any intent to abandon, H.F.L.P. argues that the district court erred to the extent it applied abandonment to de termine the use was not
continuous.
T he district court did not rely on any sort of “ab andonment theory” when it held H.F.L.P.
failed to show continuous and uninterrupted use of the ro ad. T he d istrict court focused heavily on
the fact that H.F.L.P. failed to indicate the triggering date for the prescriptive easement. The court noted that the absence of a triggering date “create[d] a problem because the court does not
know which date to reference to determine that all elements are satisfied and were satisfie d for the statutory time period.” It further noted that “without a proposed triggering date, neither the defendant nor the court can tell whether any statute of limitation may prohibit this action ” or whether the easement was abandoned between 1986 and 199 2, since H.F.L.P. provided no testimony regarding road use during that period. The court’s statements merely illustrate the problems that aro se because of H .F.L.P.’s failure to establish a date the easement was triggered,
not that the district court adopte d a twenty

- year statutory period or that it ruled H.F.L.P.
abandoned the easement.
The district court analyzed the facts and evidence presented and ultimately concluded that Carl Urie’s testimony regarding use of the road from the 1930’s until 1984 was in sufficient to satisfy the conti nuous and uninterrupted element. The court reasoned that H.F.L.P. did not establish a specific triggering date such that the court could find continuous use for any given
five

- year period. For this same reason, the district c ourt determined it had no way of ensuring the other elements were satisfied for the statutory five years. Without a specific triggering date, the court noted that it was left to guess which year H.F.L.P. believed the statutory period was
satisfied and use it as a reference to ensure the other elements were sat isfied for the statutory period. Therefore, the district court held that H.F.L.P. failed to prove by clear and convincing
evidence the continuous and uninterrupted element and the statutory period e lem ent . We agree. Carl Urie’s testimony was the only evidence presented as to the road use during
H.F.L.P. ’s claimed prescriptive period

. Significantly, Urie was at a young age during much of the period to which he testified. It is within the trial court’s di scretion to weigh witnesses’ credibility , and since Urie was the only individual who testified as to the use of the road, the trial9 court presumably took his age at the time of the alleged road use into account. For nearly every piece of testimony elicited from Urie to support the continuous use element, there was also
testimon y tending to weaken his testimony’s persuasive effect

. Indeed, Urie testified that his family used the road f rom the 1930’s until about 1984 and that it was the only vehicle access t hey had. However, Urie also testified that at one point there was an interstate bridge that his family used to access their property. Urie testified that his family had a trout farm on the property for approximately ten years and that his family used the r oad to take the trout to the freight office “probably at least once a week.” However, Urie also testified
th at he would have been one year old when the trout farm started and that he had no personal knowledge of the trout farm ; he just knew that when he wa s a child, there was a trout farm. Finally
, Urie testified that the use of the road continued from the time he was a young child until he sold the property in 1992. However, Urie testified that he moved off of the property in early 1986, and there is no in formation in the record of how the Uries, or anyone else, used the road
from 1986 until it was sold in 1992. Consequently, t he district court determined there was no clear and convincing evidence that anyone used the road during those years.
As indicated above
, Urie testified that at one point there was an interstat e bridge that his family used to get out of the canyon. This c ould have interru pted the Uries’ “continuous use.” However, it is unclear when they used the bridge or for how long, which further c omplicates the analysis and makes it impossible to determine whether H.F.L.P. establ ished the continuous use

or statutory period element s

. H.F.L.P. does not point to any additional evidence in the record, nor
could this Court find any that clearly shows th e use of the road was continuous or that the elements were satisfied for the prescriptive period. Without more testimony to corroborate Urie ’ s testimony regarding his family’s use of the road and without a specific t riggering date, it is impossible to dete rmine whether those elements were established. We therefore hold that
substantial and competent evidence supports the district court’s decision that H.F.L.P. failed to

prove by clear and convincing evidence that the co ntinuous and uninterrupted use and sta tutory period elements were satisfied.
b. H.F.L.P. did not prove by clear and convincing evidence the a dverse and under a claim of right element

. H.F.L.P. next argues that the road use was adverse and under a claim of right b ecause Urie testified that : (1) h is family’s use of the road pre

- 1961 wa s under a claim of right and (2)
when people disput ed their right to use the road, the Uries “ always insisted they had to use it and10 were allowed to use it. ” H.F.L.P. contends that the fact the Uries were g iven a key to a gate on the road does not indicate permissive use. Instead, H.F.L.P. argues these facts merely
demonstrate that landowners were recognizing the Uries had a vested property right in the road. H.F.L.P. points to testimony from the City’s staff engineer, who testified that the City “[r]ecognized that that was an access to [H.F.L.P.’s ] property and that we weren’t going to
restric t what historical access that [it] may have had.” For these reasons, H.F.L.P. argues that the
district court erred in determin in g the use was permissive rather than adverse. H.F.L.P. further

argues that the court erred in determining there was a presumption of permissive use due to the unimproved nature of the lands. H.F.L.P. argues the presumption of permissive use should not appl y because Carl Urie testified that there was a dairy farm on some of the land, as well as a barn, irrigation, and four homesteads, which demonstrates at least some of the land was occupied and improved during the prescriptive period. H.F.L.P. argues that t he fact the road itself and the land bordering it was unimproved does not itself obviate the presumption of adverse use. Under Idaho law, a prescriptive right cannot be obtained if the use of the servient estate i s through the landowner’s permission

. Wood v. Hoglund , 131 Idaho 700, 702, 963 P.2d 383, 385 (1998)

. The general rule is that where no evidence is presented to establish how the use began
, a presumption arises that the use was adverse and under a claim of right. Gibbens , 98 Idaho at 636,
570 P.2d at 873

. However, if the servient estate is wild, unenclosed, or unimproved land
, the presumptio n of adverse use does not apply; rather, permissive use is presumed

. Cox v. Cox , 84 Idaho 513, 522, 373 P.2d 929, 934 (1962)

. Moreover, if the presumption of per missive ness applied when the use began, the presumption continues until a hostile and adverse use is clearly manifested and “brought home” to the servient property owner

. Backman v. Lawrence , 147 Idaho 390, 398, 210 P.3d 75, 83 (2009) ; Gameson v. Remer , 96 Idaho 789, 792, 537 P.2d 631, 634 (1975)

. As this Court has stated, [t]h e reason for the rule that a passageway over unenclosed and unimproved land is deemed to be permissive is sound and al so easily understandable, * * * . It assumes that the owner of su ch land in many instances will not be in position to readily detect or prevent others from crossing over his land, and, even if he did, he might not enter any objection because of a desire to accommodate others and because such usage resulted in no immedia te damage to him. Also in such instances the landowner would probably have no reason to think the users of the passageway were attempting to acquire any adverse rights. On the other hand there would be no reason or basis for such inference of permission on the part of11 the landowner if someone tore down his fence or destroyed his crops by reason of such usage. These acts alone would be calculated to put the landowner on notice that others were using his land adversely to his own in terest and right of occupat ion.
Cox , 84 Idaho at 522, 373 P.2d at 934 (quoting Fullenwider v. Kitchens , 266 S.W.2d 281, 283 (Ark. 1954). Consequently, when a plaintiff claims a prescriptive easement over wild or unenclosed land, “mere use of the way for the required time is not gene rally sufficient to give rise to a presumption that the use is adverse

. ” Id. Instead, the plaintiff must rebut the presumption of permissive use by putting forth sufficient evidence to show (1) that the use was actually adverse to the landowner and (2) tha t the landowner had not ice of the adverse use: not merely that the landowner had notice of use in general.
The district court in this case held that the use of the road was permissive rather than adverse, and i n doing so it relied on Christle v. Scott , 11 0 Idaho 829, 718 P.2d 1267 (Ct. App. 1989). In Christle
, the defendant to a quiet title action claimed he had a prescriptive easement
over a road on plaintiff’s land in Idaho County

. Id. at 830 , 718 P.2d at 1268. The defendant’s

pr edecessors in interest po ssibly began using the road as early as the 1930’s, but it was unclear exactly how and when the use began. Id. at 831, 718 P.2d at 1269. After conducting an on

- site inspection of the land, the trial judge determined that the land was “unimproved, wild, and
remote.” Id. Consequently, the court held that without any other indication of how and when the use began, the presumption of permissive use over the wild and unimproved land applied. Id. The Idaho Court of Appeals affirmed this holding, and noted that ev idence from trial further supported finding that the use was permissive

. Id. Specifically, the Court of Appeals pointed to the defendant ’s testimony that he originally thought there was a recorded easement across the plaintiff’s land and that after he bega n using it he never thought he was using it in derogation of anyone’s rights, trespassing on the property, or interfer ing with anyone else’s use of the property. Id. Furthermore, the defendant’ s predecessor i n interest testified that he had
asked and recei ved permission to use the road and that as far as he knew the agreement had been
handed down

. Id. A former tenant of plaintiff’s property also testified that he assumed the defendant was permitted to use the road. Id. Finally, at one point, the tenant put a lock on the gate into the property to keep people out, but gave the defendan t a key to the lock so he could continue using the road. Id. T he Idaho Court of Appeals held that the foregoing was substantial12 and competent evidence supporting the district cou rt’s finding that there was a presumption of permissive road use

. Id.
The district court in this case found the facts in Christle were indistinguishable from the
facts in this case. The district court reasoned that much like Christle , it was unclear in thi s case how and when the Uries began using t he road, but the road traversed wil d, unimproved, and unenclosed land, and the Uries were given a key to the gate at the treatment plant. Based on this, the district court found there was a presumption of permissi veness, which became a conclusion of law when supported by additional facts in the record. We agree.
i. The land was wild and unimproved. Substantial and competent evidence supports the finding that the land was wild and unimproved. First, t he photographs ad mitted into evidence depict wil d, undeveloped, and unimproved land. Trial testimony also supports this finding. For example, on cross

- examination, the City handed two aerial photographs to Carl Urie, who identified the land in the photographs
as that exten ding from the treatment plant west to the Rock Creek Bridge. Carl Urie affirmed the City’s asserti on that the property shown in the photographs was in its wild condition and also acknowledged that the road looked like it “ ran through desert out there. ” Fur thermore, H.F.L.P.’s
land surveyor , who did the legal description for the easement
, testifie d that the road was essentially two tire tracks and that sagebrush and rocks would scratch a person’s vehicle if it got
too cl ose to either side of the road. Finall y, the City’s staff engineer, who was present during Carl Urie’s testimony, testified that Urie’s description of the road from the treatment plant to Rock Creek as being wild and unimproved was an accurate description of the land.
H.F.L.P. contends suffic ient evidence indicated po r tions of the land were occupied and improved during the prescriptive period and points to Ca r l Urie’s testimony that there was a dairy farm on some of the land, as well as four homesteads, and a barn and irrigation. However,
ther e was no testimony as to which lot(s) contained the houses or other structures, and there was no indication which lot(s) were used for which activities. Moreover , Harmsen testified that three of the homesteads were west of Rock Creek. If that is the case, the homesteads are irrele vant to this issue, because the land west of Rock Creek is not included in the prescriptive easement claim. Here, H.F.L.P. has put forth no evidence that the dairy or any other improvement was located on the land involved in the pr escriptive easement claim. Likewise, H.F.L.P. has failed to direct this Court to any evidence in the record that would prove the land was not wild and13 unimproved. Therefore, s ubstantial and competent evidence supports the district court’s finding
that the land was wild and unimproved and therefore correctly applied the presu mption of permissive use

. ii. Evidence from trial indicates permissive use. Evidence from trial further supports the district court’s finding that the road use was permissive. In fact, when asked whether anyone ever disputed his family’s right to use the road, Urie testified: “yeah. But we always talked them out of it. We always insisted we had to use it,
that we were allowed to use it.” (emphasis added). Further, Urie testified that one tim e in the early 1960’s
, a lock on the gate at the treatment plant prevented his family’s access to their property and that his family, upon dismantling the gate, was stopped by a man who ran the treatment plant. Urie went on to testify that they argued for a bit, “but then [the man who ran the plant] let us have a key to the gate. And in fact, he told us that the City had told him to let us use
it .” (emphasis added). Testimony further indicates that from that time forward, the Uries and
their successors alwa ys had key s to the gate by the treatment plant. Furthermore, Harmsen
testified that since owning the property
, no one disputed his claim to use the road a nd that it was his understanding that he always had the right to use the road. Harmsen believed that t he access road came with the property and that access was never an issue: the City never denied him access to his property. Based on the foregoing, the district court found that the Uries’ road use was permissive,
and that the permissive use continued on through and i ncluding H.F.L.P.’s current use. H.F.L.P.’s argument that these facts merely show the landowners were recognizing vested property rights is unavailing because it was the province of the district court to decide what
inferences to draw from the evidence. In fact, there is a complete lack of evidence in the record indicating adverse road use

. Therefore, the distric t court did not err when it held H.F.L.P. failed to prove by clear and convincing evidence the road use was adverse and under a claim of right.
Because substantial and competent evidence supports the district court’s findings as to the prescriptive easement elements, we hold that th e district court did not err when it determined H.F.L.P. failed to pr ove its prescriptive easement claim. 3

3 In any event, H.F.L.P.’s prescriptive easement claim must fail because prescriptive easements cannot be obtained against public l ands. See Tyrolean Associates v. City of Ketchum
, 100 Idaho 703, 704, 604 P.2d 717, 718 (1979) ; Hellerud v. Hauck
, 52 Idaho 226, 13 P.2d 1099 (1932) ; United States v. California , 332 U.S. 19, 40 (1947) . As the district court in this case noted, “[t] he land in question over which the prescriptive easement is sought has been14 C. Easement by necessity. Next, H.F.L.P. argues the district court erred when it held H.F.L.P

. failed to prove unit y of title in its easement by necessity claim. The City argue s that H.F.L.P.’s easement by necessity
claim should be barred bec ause H.F.L.P. seeks to assert the easement over land west of Rock Creek that was neither ple d in the complaint nor argued at trial. The City argues that even if the
claim is not barred , the district court correctly found H.F.L.P. failed to prove its easement by
clear an d convincing evidence

. H.F.L.P. responds that the issue of an easement by necessity over land west of Rock Creek was tried by consent of the parties at trial. Additionally, it argues for the first time on appeal in its reply brief that the district court e rred when it determined an easement by necessity must be proved by clear and convincing evidence. W e will first address whether the easement by necessity claim was tried by consent

. 1. H.F.L.P.’s easement by necessity cl aim was tried by implied consent.
I dah o R ule of Civil P rocedure 15(b) provides that “[w]hen issues not raised by the pleading are tried by express or implied consent of the part i es, they shall be treated in all respects as if they had been raised in the pleadings.” The purpose of Rule 15 ( b ) is to allow courts to decide cases on the merits, rather than upon t echnical pleading requirements. Hughes , 142 Idaho

at 483, 129 P.3d at 1232 . Implied consent to an unpleaded issue is not established merely
because evidence relevant to that issue was introd uced without objection. Id. Rather, it must appear that the parties understood that the evidence at trial was aimed at the unpleaded issue. Id. In its complaint, H.F.L.P. sought an easement by necessity over la nd east of Rock Creek

. It does not appear H.F. L.P. sought an easement by necessity over land west of Rock Creek at that
time. However, H.F.L.P. put forth evidence at trial for purposes of establishing an easement by necessity west of Rock Creek. Specifically, Harmsen testified that there was no unity of title over land east of Rock Creek, but that there was unity of tit le over land west of Rock Creek and that he sought an easement by necessity over that land. From the testimony, the City should have understood the evidence was being aimed at the unplea ded issue of an easement by necessity over its land west of Rock Creek. There is nothing in the record showing the City objected to trying the issue at trial , and because there are no post

- trial briefs in the record before this Court, it is impossible to t ell whether the City objected to trying the issue post

- trial. Furthermore, the

public land for as long as the court knows based on the information provided by H.F.L.P. ” Because a prescriptive easement cannot be obtained against public land, H.F.L.P.’s claim must fai l regardless of whether it proved all of the prescriptive easement elements.15 district court made findings of fact and conclusions of law on the issue. We therefore conclude
that the easement by necessity over the land west of Rock Creek was tried by impl ied consent.
2. This Court declines to address H.F.L.P.’s argument that the clear and convincing evidentiary standard should not apply to easement by necessity claims because H.F.L.P. raised the is sue for the first time in its reply brief

. The district c ourt ’s decision adopted and imposed a clear and convincing standard of proof for H.F.L.P.’s easement by necessity claim. H.F.L.P. did not did not argue in its opening brief that the district court erred in adopting this clear and convincing standard. Howev er, H.F.L.P. subsequently raised the issue for the first time in its reply brief.
For this Court to consider an issue , the appellant must identify legal issues and provide authorities supporting the arguments in its opening brief. I.A.R. 35. “ A reviewing court looks only to the initial brief on appeal for the issues presented because those are the arguments and authority to which the respondent has an opportunity to resp ond in the respondent’ s brief.” Suitts
v. Nix , 141 Idaho 706, 708, 117 P.3d 120, 122 ( 2005). “Consequently, this court will not consider arguments raised for the first time in the appellant’s reply brief.” Myers v. Workmen’s Auto Ins.
Co. , 140 Idaho 495, 508, 95 P.3d 977, 990 (2004) . Because H.F.L.P. did not challenge the
district court’s d ecision to impose a clear and convincing st andard in its opening brief, H.F.L.P. has not properly raised it as an issue on appeal and we therefore decline to address it

. 3. Whether H.F.L.P. proved u nity of t itle

. H.F.L.P. argues that the district court erred in finding that H.F.L.P. failed to prove unity
of title

. H.F.L.P. argues it put forth sufficient evidence proving unity of title for the property west of Rock Creek. However, H.F.L.P. supports its argument only with Carl Urie’s testimony that “[m]y dad and three, three of my uncles originally homesteaded all that property from the city sewage treatment plant to two miles west of Rock Creek and there were four homes, homesteads all together, and my father acquired all four of them sometime in the 1930’s

. ”
T his Court reviews factual findings made after a bench trial for clear error. Coward v. Hadley
, 150 Idaho 282, 286, 246 P.3d 391, 395 (2010) (citing I.R.C.P. 52(a)). Where substantial and competent evidence supports f indings of fact , they will not be distur bed on appeal, even if there is conflicting evidence. Backman
, 147 Idaho at 394, 210 P.3d at 79 . Substantial evidence is that which a reasonable trier of fact would accept and rely upon it in determining findings of fact.
Id. This Court exercises free revi ew over the district court’ s conclusions of law. Id.16 The district court found that H.F.L.P.’s evidence did not establish unity of title. The district court acknowledged that unity of title may have existed at some point, but that H.F.L.P. did not present e vidence in an articulate way that would allow the court to conclude unity of title
ever existed. Specifically, the evidence was “insufficient to establish that Carl Urie’s father owned all of the lots in question at a single moment in time, and that the lo ts his father owned were geographically adjacent.” The court noted in its special c ommentary that Urie testified only “generally about land that he claimed once belonged to his family,” and that the testimony did not provide the court with the particulariz ed detail that would allow it to make definitive findings for the specific parcels in que stion. It noted that Carl Urie’ s testimony was not tied to specific parcels, deeds
, or the chain of title “summaries ” in the record. It also noted that H.F.L.P. did no t link the deeds it admitted to the properties in any way, leaving the court with little information to sync the deeds with the maps. The court also pointed out that the easement road’s legal description failed to mention specific lots and indicate who own ed the lots, so the court could not accurately evaluate the easement claims in terms of unity of title or ownership history. Most significantly, the district court noted that the chain of title s ummaries were difficult
to follow because they did not run c hronologically, nor did they follow one piece of property at a
time. Even if the summaries were understandable, the court reasoned, H.F.L.P. provided no direction as to how the lots associated with the maps and the road it claimed an easement over

. The cou rt went on to state: For example , for an ea sement by necessity

. . . H.F.L.P. must show unity of title. H.F.L.P. claims that Carl Urie’s father owned all of the land involved. However, no map is shown giving the court an indication as to which lots to loo k for

— suc h as, “Carl’s father owned lots 28, 30, 33, and 35 of section 14” coupled with a map that shows lots 28, 30, 33, and 35 so the court can verify that those lots are adjacent. There is also no reference that multiple lots were owned at the same time

. Essentially, H.F.L.P. submitted many map s, deeds, and chain of title summaries without connecting any dots for the court. Finally , the court noted that H.F.L.P. referenced various
exhibits to show Carl Urie ’ s father had unity of title, but those exhibit s contained names wi th no indication of who they were and did not indicate how, if at all, the individuals were related to the
Uries or to the unity of title claim

. H.F.L.P. does not point to any evidence in the record to contradict the district court’s findings, nor does it cite to any evidence aside from Carl Urie’s testimony that his father and17 uncles homesteade d all the property east of the wastewater treatment p lant to two miles west of Rock Creek to prove unity of title. Urie testified that there we re four homesteads all together and
that his father acquired all four of them sometime in the 1930’s. However, none of his uncles or successors in interest testified at trial, and it is unclear from the record who owned what parcels
and wh en because H.F.L. P. did not tie any of the testimony to specific legal descriptions or to any of the deeds that were admitted into evidence. Although it appears that one exhibit indicates that Urie previously owned the City’s property west of Rock Creek, it is not clear wh en Urie

— or his father

— owned the land for purposes of determining unity of title. Furthermore, there was no testimony indicating which lots the road travels over once it crosses the Rock Creek Bridge, making it difficult to determine which land required uni ty of title. Finally, although Urie test ified that at one time he owned parcels 1, 2, and 3 on Exhibits 16A and 16B, it is unclear if Urie was referring to the property labeled “Harmsen Parcel ” 1, 2, and 3; or “City of Twin Falls” 1, 2, and
3. Based on the foregoing, we hold that substantial and competent evidence supports the district court’s finding that H.F.L.P. failed to prove unit y of title . C onsequently, the district court did not err in holding H.F.L.P. failed to prove its easement by necessity claim

. D

. The district c ourt’s evidentiary r uling

. H.F.L.P. argues the district court abused its discretion when it admitted Exhibits B

- 1 and
B

- 2

— two aerial photographs of the property in Snake River Canyon, overlaid with parcel property lines

— over H.F.L.P.’s objections at trial

. 4 As a preliminary matter, H.F.L.P. objected to
the admission of Exhibits B

- 1 and B

- 2 (the “ overlays ”) before they were even offered into
evidence while the City was laying foundation for them

. 5 The City only moved to admit the overlays after H.F.L.P. conducted voir dire and then objected to the two overlays bein g admitted

. The district court admitted the overlays without providing a reason for doing so. H.F.L.P. argues on appeal that the district court erred when it admitted the overlay s because they were
inadmissible hearsa y not within an exception

. This Court disregards error s made on evidentiary ruling s u nless the ruling s were a manifest abuse of the trial court’ s discretion and affected the party’s substantial right s

. Perry v. Magic Valley Reg’l Med. Ctr. , 134 Idaho 46, 51, 995 P.2d 816, 821 (1999) . Indeed, I.R.E. 103(a)

4 H.F.L.P.’s own witness, Carl Urie
, testified to these same two exhibits earlier in the trial during the City’s cross

examination of Urie without H.F.L.P. objecting to the testi mony

. 5 T he district court allowed H.F.L.P

. to conduct voir dire in aid of objection before the City even offered the two exhibits into evidence. Bette r practice would be to allow voi r dire in aid of an evidentiary objection only after the exhibit is actu ally offered into evidence to be sure the proponent was finished laying its foundation.18 provide s that “[e]rror may not be predicated upon a ruling which admits or excludes evidence
unless a substantial ri ght of the party is affected.” Similarly, I.R.C.P . 61 provides that “[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Furthermore, i ssues on appeal are not considered unless they are properly su pported by both authority and argument. Gem State Ins.
Co. v. Hutchison , 145 Idaho 10, 16, 175 P.3d 172, 178 (2007) . B ecause an appellant can only prevail if the claimed error affected a substantial right, the appellant must present some argument
that a su bstantial right was implicated. Hurtado v. L and O’ Lakes, Inc.
, 153 Idaho 13, 18, 278 P.3d 415, 420 (2012)

. Thus, “w hen appealing from an evidentiary ruling reviewed for abuse of discretion, the appellant must demonstrate both the trial court’ s abuse of dis cretion and that the error affected a substantial right.” Id. T his Court has held that a party’s failure to present some argument as to how the evidentiary ruling affected a substantial right is fatal to its evidentiary challenge and the Court deems the is sue waived

. Id. ( declining to consider appellant’s claims that
the district court erred when it admitted expert testimony because appe llant failed to argue on appeal that the err or affected a substantial right ) ; Akers v. D.L. White Const., Inc. , 156 Idah o 37,
320 P.3d 428, 436 (2014) (“[I] f the appellant does not present argument that the court’ s error affected a substant ial right, the issue is waived.”).
H.F.L.P. does not argue on appeal that the district court’s evidentiary ruling affected a
substantial right. In fact, the only argument it presents in its brief is that the district court erred in admitting the overlays. It does not elaborate as to how that error affected H.F.L.P.’s substantial rights , let alone provide any authority or argument that demon strates such. Consequently
, we hold that H.F.L.P. waived the issue.
IV. CONCLUSION
W e hold that (1) the district court properly exercised subject matter jurisdiction over the easement claims; (2) substantial and competent evidence supports the district c ourt’s findings that H.F.L.P. failed to prove by clear and convincing evidence both its easement by prescription claim and its easement by necessity claim; and (3) H.F.L .P. waived its challenge to the admission of the photographic overlays into evidence be cause H.F.L.P. did not argue on appeal that admitting the overlays into evidence affected a substantial right

. Therefore, we affirm the
district court

. Costs to the City

. Justices EISMANN, J. JONES, HORTON and WALTERS, J., Pro tem, CONCUR.