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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 36853

VERNON L. KENNEDY and DOROTHY

KENNEDY, husband and wife,

 Plaintiffs-Respondents,

v.

SAMUEL E. SCHNEIDER, JR. and LAURIE

SCHNEIDER, if married, as it relates to that

real property described as parcel 3,

 Defendants-Appellants,

and

FRED J. STUART and JANE DOE STUART, 

as it relates to the real property herein

described as parcel 1; the heirs, devisees,

assigns or statutory trustees of STEEN

MEAT CO. LTD, a forfeited corporation, as

to parcel 2 hereinafter described; together

with the spouses of the above-named persons

if they be known or unknown; the unknown

heirs, devisees, or legatees of any of the

foregoing persons; the successors in interest

be they known or unknown; the unknown

heirs, claimants, creditors, or parties who

might claim an interest in or to the following

three (3) parcels of property described in

Idaho County, State of Idaho, to wit: SEE

FILE FOR DESCRIPTION,

 Defendants. 

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Moscow, November 2010 Term

2011 Opinion No. 28

Filed: March 17, 2011

Stephen Kenyon, Clerk

Appeal from the District Court of the Second Judicial District of the State of 

Idaho, Idaho County. Hon. John H. Bradbury, District Judge.

The district court’s decree quieting title and judgment awarding attorney fees 

are vacated and the case is remanded for a determination of costs.

Clark and Feeney, Lewiston, for appellants. Jonathan D. Hally argued.
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Dennis L. Albers, Grangeville, for respondents. 

 _______________________________________________

HORTON, Justice

This is an appeal by Samuel Jr. and Laurie Schneider (Schneiders)1 from the district 

court’s decree quieting title to real property located near Stites, Idaho in favor of Vernon and 

Dorothy Kennedy (Kennedys) as adverse possessors. The Schneiders also appeal the district 

court’s award of attorney fees to the Kennedys. The Kennedys seek an award of attorney fees 

incurred on appeal. As we find that there was not substantial, competent evidence to support the 

district court’s findings, we vacate the district court’s decree and its judgment awarding attorney 

fees to the Kennedys and deny the Kennedys’ request for attorney fees on appeal. 

I. FACTUAL AND PROCEDURAL BACKGROUND

This action relates to property located west of the South Fork of the Clearwater River, 

approximately a mile and one-half downriver from the village of Stites. In 1924, Vernon 

Kennedy’s great-uncle, William Massey, purchased property from Allen and Bertha Manes. 

Over the years, the land that William Massey purchased was transferred to members of his 

family, and it ultimately came to belong to the Kennedys. A drawing of the parcel attached to 

the 1924 Manes-Massey deed led to an erroneous belief in the Kennedy family as to extent of the 

land that they owned. When the Kennedys decided to place their property up for sale, they

became aware that three parcels of the property that they believed had been owned by their 

family for generations were the subject of deeds in favor of other parties. 

On July 11, 2007, the Kennedys initiated this quiet title action, asserting ownership of the 

three parcels of land as adverse possessors under a written claim of title. Default judgment in 

favor of the Kennedys was entered against the titleholders of record as to two of the parcels. The 

Schneiders answered and defended the Kennedys’ claim as to the third parcel.

Following a one-day court trial, on June 23, 2009, the district court issued a 

memorandum decision finding that the Kennedys had proved the elements of their claim of 

adverse possession under a written claim of title by clear and satisfactory evidence. The court 

 1 The Kennedys filed suit against Samuel Schneider, Jr. and Jane Doe Schneider. The Schneider answer also 

referred to Samuel Schneider, Jr. and Jane Doe Schneider. Laurie Schneider’s name did not appear in the pleadings 

until the Schneiders filed their notice of appeal. Thus, the district court decisions reference only Samuel Schneider, 

Jr. 
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found that Vernon Kennedy had possessed the property since 1988, that there was a written 

instrument “sufficient to create color of title” in favor of the Kennedys, that the property had 

been exclusively used by the Kennedys and their predecessors, that the possession had been 

continuous, and, most significantly to this appeal, that both the Kennedys and the Schneiders had 

paid taxes on the property. The district court then applied the rule announced by this Court in 

Trappett v. Davis, 102 Idaho 527, 534, 633 P.2d 592, 599 (1981), that “when both the record 

owner and the adverse occupant pay taxes on the disputed property during the adverse possession 

period, the adverse possessor prevails.” Thereafter, on July 15, 2009, the district court entered a 

decree quieting title in the disputed property in favor of the Kennedys.

On August 6, 2009, the district court received oral argument on the Kennedys’ request for 

an award of attorney fees and indicated its intention to award attorney fees to them. On August 

28, 2009, the district court issued a memorandum opinion in which it concluded that the 

Schneiders had frivolously defended the action, thus warranting an award of attorney fees to the 

Kennedys pursuant to I.C. § 12-121. The district court awarded the Kennedys $6,137.50 in 

attorney fees.2

 The Schneiders timely appealed from the decree quieting title and the order 

awarding attorney fees to the Kennedys. 

II. STANDARD OF REVIEW

Our standard of review is well-established. Findings of fact will not be set aside on 

appeal unless they are clearly erroneous. Chen v. Conway, 121 Idaho 1000, 1004, 829 P.2d 

1349, 1353 (1992) (citing I.R.C.P. 52(a)). Where findings of fact are supported by substantial 

and competent, though conflicting, evidence, they are not clearly erroneous and thus will not be 

disturbed by this Court. Hodgins v. Sales, 139 Idaho 225, 229, 76 P.3d 969, 973 (2003). This 

Court exercises free review over the district court’s conclusions of law to determine whether the 

court correctly stated the applicable law and whether the legal conclusions are sustained by the 

facts found. Conley v. Whittlesey, 133 Idaho 265, 269, 985 P.2d 1127, 1131 (1999).

III. ANALYSIS

The Schneiders present a narrow challenge to the district court’s determination that the 

Kennedys established their claim of adverse possession. The Schneiders assert that the district 

court’s finding that the Kennedys paid taxes on the disputed property is clearly erroneous. 

 2 The district court’s order awarding attorney fees was entered on August 6, 2009, in advance of the memorandum 

opinion.
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Consequently, they argue, the district court erred in its conclusion that the Kennedys proved the 

elements of adverse possession. Working from these premises, they assert that the district court 

abused its discretion by awarding attorney fees to the Kennedys.

A. The district court’s finding that the Kennedys paid taxes on the disputed parcel is 

clearly erroneous, as it failed to acknowledge that tax parcels in Idaho County are 

based upon metes and bounds descriptions.

Idaho Code § 5-207 provides as follows:

When it appears that the occupant, or those under whom he claims, 

entered into the possession of the property under claim of title, exclusive of other 

right, founding such claim upon a written instrument, as being a conveyance of 

the property in question, or upon the decree or judgment of a competent court, and 

that there has been a continued occupation and possession of the property 

included in such instrument, decree or judgment, or of some part of the property 

under such claim, for twenty (20) years, the property so included is deemed to 

have been held adversely except that when it consists of a tract divided into lots, 

the possession of one (1) lot is not deemed a possession of any other lot of the 

same tract.

Idaho Codes § 5-210 further provides:

[I]n no case shall adverse possession be considered established under the 

provisions of any sections of this code unless it shall be shown that the land has 

been occupied and claimed for the period of twenty (20) years continuously, and 

the party or persons, their predecessors and grantors, have paid all the taxes, state, 

county or municipal, which have been levied and assessed upon such land 

according to law. 

In DeChambeau v. Estate of Smith, 132 Idaho 568, 571, 976 P.2d 922, 925 (1999), this 

Court identified the well-established elements that a party must establish by clear and 

satisfactory evidence in order to establish adverse possession upon a written claim of title:

(1) that they entered into possession, as that term is defined by I.C. § 5-208, of the 

disputed property; (2) under a claim of title . . . (3) exclusive of other right; (4) 

that there has been a continuous occupation and possession of the disputed 

property described [in the written instrument]; (5) that they have so held the 

property for [the statutory period]3; and (6) that they have paid all taxes, state, 

county or municipal, which have been levied and assessed upon such land 

according to law.

(quoting Rice v. Hill City Stock Yards Co., 121 Idaho 576, 580, 826 P.2d 1288, 1292 (1992)). 

 3 In 2006, the Legislature extended the required period of possession from five to twenty years. 2006 Idaho Sess. 

Laws ch. 158, §§ 4, 5, p. 475.
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The Schneiders’ appeal has focused on the sixth element, specifically, whether there is 

substantial evidence to support the district court’s finding that the Kennedys paid all taxes for the 

disputed property.

The district court’s findings regarding payment of taxes in its memorandum decision are 

not extensive. 

The Idaho County Recorder included the property in the Schneider’s [sic] name 

and they paid taxes on it. The same property, however, was also included in the 

property for which the Kennedys paid taxes. . . .

There is no material question that both the Schneider family and the 

Kennedys have paid property taxes on the disputed property for the past twenty 

years.

Leah Mager is a State Tax Commission certified appraiser who appraises 

real property in Idaho county [sic] for the Idaho County Assessor. The county 

inspects and appraises all the property in Idaho County on a rotating schedule 

every five years. She testified that she is familiar with and has appraised the 

disputed property and included its assessed value in the Kennedy tax bill.

Carolyn [sic] Park works in the mapping department for the Idaho County 

Assessor. She testified that tax payers [sic] pay by the tax number assigned to 

property by the assessor. She stated that the disputed property was included in 

both tax numbers. She testified that given the number of acres for which the 

Kennedys were taxed, that the disputed property had to have been included in 

their tax parcel. The evidence is clear and convincing that both the Kennedys and 

the Schneider family have paid taxes on the disputed property for more than 

twenty years.

In its memorandum decision awarding the Kennedys attorney fees, the district court 

acknowledged the Schneiders’ challenge to the sufficiency of evidence that the Kennedys had 

paid taxes on the disputed property, noting that Mr. Schneider “argues further that the tax lot 

exception does not apply because each tax lot number had a metes and bounds description at the 

assessor’s office.” The district court then expanded its discussion of the issue, discussing 

applicable case law, and ultimately concluding that “the uncontested and irrefutable testimony” 

of Leah Mager and Carolynn Park established “that the value of the disputed property was 

included in the Kennedy’s [sic] tax assessment.” 

During the relevant time,4 the Kennedys paid taxes based upon the following parcel 

description from the Idaho County Assessor: 

T32N R4E SEC 20 15.066 AC

 4 In 1999, the Kennedys acquired a parcel of land that had previously been a railroad right-of-way. Until that time, 

they had been assessed taxes based upon ownership of 14.588 acres. The railroad right-of-way is not part of the 

disputed parcel. 
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TAX #’S 16, 28 & 30 ALONG

WITH A 50’ WIDE STRIP 

OF RR ROW ALONG W SIDE OF

TAX #28 LESS TAX #’S 113,

220, 236, 268 & 269

The Schneiders paid taxes based upon the following parcel description:

T32N R4E SEC 20 60.03 AC

SE4NE4 & NE4SE4 LESS TAX #’S

16, 17, 18, 20, 21, 80,

81, 85

There is no evidence that suggests that any portion of the disputed parcel falls within tax 

parcels 16, 28, 30 or the railroad right-of-way. Rather, as evidence that they satisfied the tax 

payment requirement, the Kennedys point to the fact that they paid taxes for a parcel 

approximately the same size as they unquestionably own plus the disputed parcel. As will be 

discussed later, it is “uncontested and irrefutable” that both parties historically paid taxes for 

more land than they actually owned. The critical questions presented by this appeal relate to the 

Idaho County Assessor’s methodology for identifying the property for which taxes were paid and 

specifically, whether the Kennedys paid taxes for the disputed parcel. 

In White v. Boydstun, 91 Idaho 615, 428 P.2d 747 (1967), the Court considered the tax 

payment requirement. Taxes were paid on “the Fleharty tract,” and the pivotal question was 

whether the taxes assessed for the Fleharty tract were simply for Parcel A, which was 

unquestionably owned by White, or whether the assessment included the disputed Parcel B. This 

Court placed particular weight upon the testimony of the county assessor that he had “physically 

examined tract A and B and assessed the whole to the Flehartys.” 91 Idaho at 621, 428 P.2d at 

753. This Court observed that “although any assessments made were charged to the Flehartys, it 

is quite possible that no taxes were assessed on parcel B.” Id. Under these circumstances, this 

Court found that substantial evidence supported the trial court’s finding that White and his 

predecessor “paid whatever taxes were assessed and levied on parcel B.” Id. White is significant 

for the proposition that the adverse possession element requiring payment of taxes may be 

satisfied when the tax assessment is based upon a physical examination of the parcel, rather than 

a metes and bounds description. 

This Court returned to the tax payment requirement in Scott v. Gubler, 95 Idaho 441, 511 

P.2d 258 (1973). In Scott, this Court considered a claim of adverse possession of a disputed 
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parcel between two government lots (3 and 4) located in Jerome County. We upheld the district 

court’s finding that taxes had been paid on the disputed parcel, noting that 

there is no evidence in the record as to how Lots 3 and 4 were described on the 

assessment roll of the Jerome County Assessor’s Office during the period from 

1959 to 1968. Hazel Gubler’s 1972 Jerome County taxpayer’s statement 

describes Lot 3 by its government survey designation rather than by metes and 

bounds. There was no evidence of visual inspection of Lots 3 and 4 by [the] 

Jerome County Assessor after Scott’s fence was installed. 

Id. at 444, 511 P.2d at 261.

In Flynn v. Allison, 97 Idaho 618, 549 P.2d 1065, (1976), the adverse possessor 

inadvertently encroached upon his neighbor’s property because he believed stakes placed by a 

third party’s private survey marked the boundaries of his property. Id. at 619, 549 P.2d at 1066. 

By doing so, he occupied the actual acreage he owned but shifted its boundaries sixty feet to the 

north. Id. The adverse possessor’s payment of taxes on his actual acreage, payments which he 

reasonably believed covered the property he occupied, was sufficient to satisfy the tax payment 

requirement. 97 Idaho at 621, 549 P.2d at 1068. 

In Trappett v. Davis, 102 Idaho 527, 633 P.2d 592 (1981) this Court attempted to bring 

clarity to an area which was, by then, abounding with confusion. We explained:

In the general case (which is by no means the most typical case), I.C. § 5-

210 requires actual payment of taxes which are assessed to the disputed property. 

[Citations omitted.] Of critical importance is the assessor’s actual basis for 

valuation of the property in question, i.e., whether his assessment was based on 

estimated acreage derived from physical inspection, value based on frontage feet, 

area calculated from a metes and bounds description, or some other method of 

valuation. The general tax rule focuses on actual payment as evidenced by the 

assessor’s actual valuation. However, this Court has fashioned several corollaries 

and exceptions to the general rule which, when applied, have the effect of 

satisfying the tax requirement (by fiction or otherwise), even though it cannot be 

determined that the adverse claimant actually paid property tax on the disputed 

land.

The first and most frequent example is the “lot number” corollary.

“[I]n the case of boundary disputes between contiguous 

landowners, where one landowner can establish continuous open, 

notorious and hostile possession of an adjoining strip of his 

neighbor’s land, and taxes are assessed by lot number or by 

government survey designation, rather than by metes and bounds 

description, payment of taxes on the lot within which the disputed 

tract is enclosed satisfies the tax payment requirement of the . . . 

statute.” Scott v. Gubler, 95 Idaho 441, 443-44, 511 P.2d 258, 
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260-61 (1973) (emphasis added, footnote omitted).

. . . The primary reason behind the lot number corollary is as follows: when taxes 

are assessed according to some generic description, “it (is) impossible to 

determine from the tax assessment record the precise quantum of property being 

assessed. . . .” Flynn v. Allison, 97 Idaho at 621, 549 P.2d at 1068. In the instant 

case, the properties of all parties involved were assessed on the basis of metes and 

bounds descriptions found in the respective deeds. Hence, Ogborn and the 

Trappetts cannot take advantage of the lot number corollary.

102 Idaho at 530-31, 633 P.2d at 595-96 (emphasis original).

The district court found that the Kennedys satisfied the tax payment requirement under 

White v. Boydstun because, for the length of the statutory period, the Kennedys were assessed 

taxes equal to the amount of land they actually occupied. This legal conclusion is inconsistent 

with our explanation in Trappett. Rather, we must carefully examine the testimony upon which 

the district court based its factual finding that the Kennedys actually paid taxes for the disputed 

parcel. We first consider the testimony of Leah Mager, the assessor who examined the property 

and whom the district court found had “appraised the disputed property and included its assessed 

value in the Kennedy tax bill.” 

Leah Mager’s testimony was not consistent with the district court’s characterization. She 

testified that in her visit to the Kennedy property in 2003, she “assumed [a portion of the 

disputed property] was Kennedy’s” based upon the appearance of the property, explaining that 

the assumption was based “[j]ust by the way the land is sitting, you come around there, you just 

assume everything from the green house up is Kennedy’s.” Although the assessed valuation of 

the Kennedy property increased, Mager testified the increase was the result of a change in market 

conditions, rather than based upon an increase in the number of acres owned by the Kennedys. 

However, Mager also testified that she did not calculate the acreage owned by the Kennedys 

during her visit to the property. Rather, she explained that the tax assessment was based upon 

“[t]he land, the legal description. We go by what the legal description says on the file for the 

land.” Based upon this testimony, there is no substantial evidence supporting the district court’s 

conclusion that the Kennedys paid taxes on the disputed property as a result of Mager’s visual 

inspection of the property. 

We next consider the district court’s finding that Carolynn Park, the mapper from the 

assessor’s office, testified “that the disputed property was included in both tax numbers.” A 

careful review of her testimony clearly demonstrates that both the Schneiders and the Kennedys 
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paid taxes for acreages in excess of that which they actually owned. After this controversy arose, 

at the request of the parties’ attorneys, Ms. Park used a computerized mapping program to 

ascertain the amount of property actually owned by each of the parties. The Schneiders had been 

taxed based upon ownership of a parcel 60.03 acres in size. After remapping and recalculating 

the parcels for which the Schneiders were deeded titleholders, the recalculated acreage was 

46.864 acres. In 2006, the Kennedys were assessed taxes based upon ownership of 15.066 acres. 

Based upon the remapping, that figure was reduced to 13.521 acres.5

 

At one point in her testimony, Carolynn Park testified that it appeared that both parties 

“perhaps, paid tax on the same piece [of land].” In her later testimony, she clarified, stating “I 

don’t believe I said [Mr. Kennedy] was paying taxes on that area. He was paying taxes on Tax 

16 and his other tax numbers.” Ms. Park then testified that each tax parcel was identified by a 

metes and bounds description, and that a tax parcel is “just a shortened legal description for the 

Assessor’s Office.” Thus, there was no substantial evidence supporting the district court’s 

finding that each of the parties paid taxes on the disputed parcel. To the contrary, it is evident 

that, unlike White v. Boydstun and Scott v. Gubler, the tax parcel exception is inapplicable here 

as the tax parcels were not “some generic description” but rather were based upon metes and 

bounds descriptions. In short, although the Kennedys undoubtedly paid taxes for more land than 

they owned, under the methodology employed by the Idaho County Assessor there is simply no 

evidence that they paid taxes on the disputed parcel.

Because there is no substantial evidence supporting the district court’s finding that the 

Kennedys paid taxes on the disputed parcel, we reverse the district court’s judgment and vacate 

the decree quieting title in the parcel in favor of the Kennedys. 

B. Because the Kennedys failed to prove the necessary elements of their claim of adverse 

possession, the district court’s award of attorney fees and costs in their favor must be 

vacated.

As we reverse the district court’s finding that the Kennedys proved their claim of adverse 

possession, the district court’s award of attorney fees and costs in their favor must be vacated. 

Stanley v. Lennox Indus., Inc., 140 Idaho 785, 789, 102 P.3d 1104, 1108 (2004). This matter will 

be remanded to the district court for a determination of the costs to which the Schneiders are 

 5 The difference in the Kennedy’s acreage is largely attributable to the acreage assigned to Tax Parcel 28. It appears 

that the discrepancy may be attributable to a a 1948 flood which moved the channel of the South Fork of the 

Clearwater River to the west, reducing the size of the parcel.
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entitled as prevailing parties below. Ray v. Frasure, 146 Idaho 625, 630, 200 P.3d 1174, 1179 

(2009).

C. Because the Kennedys are not the prevailing parties in this appeal, they are not entitled 

to an award of attorney fees.

The Kennedys request an award of attorney fees on appeal pursuant to I.C. § 12-121. As 

they have not prevailed in this action, they are not entitled to an award of attorney fees. Kelley v. 

Yadon, No. 36705, 2011 WL 310366, at *5 (Feb. 2, 2011). 

IV. CONCLUSION

We reverse the district court’s finding that the Kennedys proved their claim of adverse 

possession. Accordingly, we vacate the decree quieting title in favor of the Kennedys and the 

district court’s award of attorney fees and costs. As the Schneiders were the prevailing party in 

the litigation below, we remand for the district court to determine the costs to which the 

Schneiders are entitled. We deny the Kennedys’ request for an award of attorney fees on appeal. 

Costs on appeal to the Schneiders. 

Chief Justice EISMANN and Justices BURDICK, J. JONES and W. JONES CONCUR.