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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37242

PIONEER IRRIGATION DISTRICT,

 Plaintifff-Counterdefendant-Respondent,

 

v.

CITY OF CALDWELL,

 Defendant-Counterclaimant-Appellant. 

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Boise, December 2011 Term

2012 Opinion No. 132 

Filed: November 14, 2012

Stephen Kenyon, Clerk

SUBSTITUTE OPINION, THE 

COURT’S PRIOR OPINION

DATED APRIL 27, 2012 IS 

HEREBY WITHDRAWN

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

Canyon County. Hon. Gregory M. Culet, District Judge.

The district court’s grant of partial summary judgment is affirmed in 

part, reversed in part and the matter is remanded for proceedings consistent with 

this opinion.

Hamilton, Michaelson & Hilty, LLP, Nampa, and Holland & Hart, LLP, Boise, 

for appellant. Eric Stidham argued.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Brad Williams 

argued.

 _______________________________________________

HORTON, Justice.

In 2008, Pioneer Irrigation District (Pioneer) filed suit against the City of Caldwell (the 

City), seeking declaratory and injunctive relief, as well as the removal of urban stormwater 

discharge conduits constructed by the City without Pioneer’s authorization. The district court 

granted summary judgment in favor of Pioneer. The court held that Pioneer held exclusive

interests in its irrigation easements and rights-of-way such that Pioneer could maintain trespass 

claims against the City. The court also held that I.C. § 42-1209 granted Pioneer the power to 

remove encroachments constructed without its permission that it deemed to unreasonably or 

materially interfere with its easements and rights-of-way. The district court held that review of 

certain decisions by the irrigation district would be limited to whether they were arbitrary and 
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capricious or reached in an unreasonable manner. The City moved for permissive appeal, which 

motion the district court granted. We affirm the decision of the district court, except for its 

holding that irrigation easements and rights-of-way are exclusive interests.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pioneer instituted this action in early 2008, seeking declaratory and injunctive relief 

against the City. Pioneer alleged that by adopting a new municipal storm water management 

manual, the City had caused or permitted developers to install storm water discharge pipes such 

that municipal storm water was being discharged into Pioneer’s irrigation delivery and drainage 

facilities without Pioneer’s permission. Pioneer alleged that these discharge pipes unreasonably 

and materially interfered with its irrigation easements and rights-of-ways. Pioneer sought several 

judicial declarations, including that Pioneer was authorized to both remove and prohibit the 

future construction of unauthorized, unreasonable encroachments pursuant to I.C. § 42-1209.

Pioneer also sought injunctive relief, alleging that it enjoyed an exclusive right to possession of 

its irrigation facilities and that municipal storm water runoff events were a trespass upon those 

facilities. 

Relevant to this appeal, the parties filed cross-motions for summary judgment. The 

district court granted portions of Pioneer’s motion, holding that where Pioneer exercised its 

discretion under I.C. § 42-1209 to deny a proposed encroachment as an unreasonable or material

interference, a court’s review of that exercise of discretion is limited to whether the decision was 

reached in an unreasonable manner, arbitrary and capricious, or based upon findings that were 

clearly erroneous. The court also held that I.C. § 42-1209 permits the owner of an irrigation 

easement or right-of-way to engage in self-help to remove an encroachment that was constructed 

without permission and unreasonably or materially interfered with the easement or right-of-way.

The district court held that the owner of an irrigation easement or right-of-way enjoys an 

exclusive interest therein, and on those grounds denied the City’s motion for summary judgment 

seeking dismissal of Pioneer’s trespass claims.

Following the district court’s grant of the City’s I.A.R. 12 motion for permissive appeal, 

this Court granted the City leave to appeal.

II. STANDARD OF REVIEW

We review a trial court’s grant of summary judgment under the same standard applied by 

the trial court. Read v. Harvey, 141 Idaho 497, 499, 112 P.3d 785, 787 (2005). A reviewing court 
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will construe all disputed facts and make all reasonable inferences in favor of the nonmoving 

party. Sprinkler Irr. Co. v. John Deere Ins. Co., 139 Idaho 691, 695-96, 85 P.3d 667, 671-72 

(2004). Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue of material fact and the 

moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). 

III. ANALYSIS

A. This Court’s holding is limited to those issues raised in the City’s motion for 

permissive appeal.

The City attacks the district court’s holdings on a variety of grounds, including errors in 

statutory interpretation, the constitutionality of the district court’s statutory interpretation, and 

lack of specificity regarding the easements’ scope. Pioneer similarly defends on a variety of 

grounds, including statutory interpretation, the application of res judicata to preclude collateral 

challenges to Pioneer’s ownership interests, and judicial estoppel of claims that the judgment is 

invalid because it does not include all affected servient landowners.

However, when considering a permissive appeal, we must “address only the precise 

question that was framed by the motion and answered by the trial court.” Winn v. Frasher, 116 

Idaho 500, 501, 777 P.2d 722, 723 (1989). In the present case, the City moved for permissive 

appeal of the court’s grant of partial summary judgment. The district court granted that motion.

The City’s and the district court’s express statements of the issues to be addressed by the 

permissive appeal were nearly verbatim. The district court phrased those issues as follows:

1. Idaho Code section 42-1209 vests Pioneer with the initial discretion to 

determine whether an encroachment is likely to unreasonably or materially 

interfere with the use and enjoyment of its irrigation or drainage easements or 

rights-of-way, and to deny permission for the encroachment on those grounds.

Judicial review of Pioneer’s determination and decision is limited to (a) 

whether Pioneer’s denial of permission to encroach was arbitrary and 

capricious or based on clearly erroneous findings, and (b) whether Pioneer’s 

decision-making process was reasonable.

2. Idaho Code section 42-1209 authorizes Pioneer to enforce the removal of any 

encroachments installed after the effective date of section 42-1209 that 

Pioneer determines materially and unreasonably interfere with the use and 

enjoyment of its irrigation and drainage easements or rights-of-way, at the 

expense of the encroaching party, subject to certain limitations:

A. Pioneer must initially request removal of the encroachment by the 

encroaching party;
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B. Pioneer’s right of self-help (i.e., in lieu of pursuing a judicial remedy) 

to remov[al] of the encroachment must be accomplished within the 

borders of its easement or right-of-way and without a breach of the 

peace; and

C. Judicial review of Pioneer’s determination and decision is limited to 

(a) whether Pioneer’s decision to request removal of an existing 

encroachment was arbitrary and capricious or based on clearly 

erroneous findings, and (b) whether Pioneer’s decision-making process 

was reasonable.

3. That Pioneer Irrigation District enjoys exclusive rights in its primary 

easements and rights-of way under Idaho Code sections 42-1102 and 1209.

We are bound to address only these issues. Since several of the parties’ claims and defenses on 

appeal are irrelevant to these precise questions, we do not address them here.

B. Under I.C. § 42-1209, review of Pioneer’s decision whether to permit an 

encroachment is an exercise of discretion.

The City asserts that the question whether a proposed encroachment constitutes an 

unreasonable or material interference is a question that should be resolved by a trier of fact. The 

district court disagreed, reasoning that irrigation districts are quasi-municipal corporations 

engaged in the proprietary role of providing irrigation for landowners’ benefit, and that thus the 

scope of a civil challenge to an irrigation entity’s denial of permission to encroach must be 

limited to whether (a) the denial was arbitrary and capricious or based on clearly erroneous 

findings, or (b) the entity’s decision-making process was unreasonable.

To resolve this issue, we must derive legislative intent, looking first to the language of 

I.C. § 42-1209. Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 307, 312, 109 P.3d 161, 166 

(2005). Where a statute is unambiguous, its plain language controls. Id. If a statute is ambiguous 

because more than one reasonable interpretation exists, we look to rules of statutory construction 

for guidance. Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley Cnty., 132 Idaho 

551, 557, 976 P.2d 477, 483 (1999). In the event that this Court is required to engage in statutory 

construction, we may ascertain legislative intent from the statute’s context, the public policy in 

support of the statute, and the statute’s legislative history. State v. Rhode, 133 Idaho 459, 462, 

988 P.2d 685, 688 (1999). 

Idaho Code § 42-1209 was enacted in 2004. 2004 Idaho Sess. Laws, ch. 179, § 3, at 563. 

The statute expressly recognizes irrigation easements and rights-of-way are “essential” to 
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“irrigation districts, Carey act operating companies, nonprofit irrigation entities, lateral ditch 

associations, and drainage districts,” providing:

Accordingly, no person or entity shall cause or permit any encroachments onto 

the easements or rights-of-way . . . without the written permission of the irrigation 

district . . . owning the easement or right-of-way, in order to ensure that any such 

encroachments will not unreasonably or materially interfere with the use and 

enjoyment of the easement or right-of-way. Encroachments of any kind placed in 

such easement or right-of-way, without such express written permission shall be 

removed at the expense of the person or entity causing or permitting such 

encroachments, upon the request of the owner of the easement or right-of-way, in 

the event that any such encroachments unreasonably or materially interfere with 

the use and enjoyment of the easement or right-of-way. . . . 

I.C. § 42-1209.

It is evident from the plain language of the statute that merely providing notice to the 

ditch owner1 of a proposed encroachment does not permit a party to “cause or permit” the 

encroachment. Rather, I.C. § 42-1209 requires “written permission” from the ditch owner in 

order to “ensure that any such encroachments will not unreasonably or materially interfere with 

the use and enjoyment of the easement or right-of-way.” The plain language of the statute grants 

the ditch owner authority to evaluate the impact of a proposed encroachment and grant or 

withhold permission based on that evaluation. To hold otherwise would effectively eviscerate the 

ditch owner’s express statutory authority to grant or withhold permission for the encroachment. 

Accordingly, we hold that the ditch owner is vested with the discretion to determine whether an 

encroachment would result in unreasonable or material interference with the easement or rightof-way, and based on that exercise of discretion, is vested with the authority to grant or deny a 

requested encroachment.

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 1 “Ditch owner,” as used in this opinion, is shorthand for those “irrigation districts, Carey act operating companies, 

nonprofit irrigation entities, lateral ditch associations, and drainage districts” having easements and/or rights-of-way 

governed by I.C. § 42-1209. 

 “Although the person who has an easement for a ditch across the land of another does not thereby gain legal title 

to any portion of that land, Reynolds Irrig. Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1948), the owner of such an 

easement is often called the ‘owner’ of the ditch.” Camp v. E. Fork Ditch Co., Ltd., 137 Idaho 850, 857, 55 P.3d 

304, 311 (2002). 

2 The determination of “unreasonable or material interference” is not restricted to the physical impediment that may 

be created at the point of encroachment. Rather, the ditch owner may take into account the impact of the 

encroachment or encroachments upon the use and enjoyment of the easement or right-of-way. It is not difficult to 

envision encroachments that do not present a physical impediment to the operation or maintenance of a ditch, such 

as drainage diversions, which in times of heavy precipitation would permit introduction of a quantity of water 

exceeding the carrying capacity of the system, resulting in the ditch’s failure. Such a circumstance would evidently 
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We next examine the scope of legal challenges to the ditch owner’s exercise of discretion 

regarding encroachments. The City asserts that under I.R.C.P. 84(a)(1),3 the ditch owner’s

decision is not entitled to limited judicial review because there is no statute providing a right of 

judicial review. However, I.R.C.P. 84(a)(1) is inapplicable in such situations. Review of such 

decisions is not judicial review of an agency’s action. Rather, courts will be called upon to 

evaluate the ditch owner’s exercise of discretion in some form of civil action. Without 

attempting to identify all possible actions where these decisions may be reviewed, it is evident 

that such actions may well include those seeking injunctive relief or recovery of the costs of 

removal of an offending encroachment. 

The ability to exercise the discretionary authority that I.C. § 42-1209 vests in the ditch 

owner is one means by which the ditch owner is able to satisfy obligations imposed upon it by 

law. See I.C. § 42-1201 (to the extent capable, keep irrigation ditches sufficiently full to meet the 

requirements of those entitled to water); I.C. § 42-1202 (maintain the good order and repair of 

irrigation ditches, canals, and conduits); I.C. § 42-1203 (maintain embankments in order to 

prevent waste of irrigation water); I.C. § 42-1204 (duty to maintain waterworks in good repair in 

order to avoid damage to others). Ditch owners face prospective liability for failure to meet these 

statutory obligations. Stephenson v. Pioneer Irr. Dist., 49 Idaho 189, 194, 288 P. 421, 422 (1930)

(owner of an irrigation ditch faces liability for negligent construction, maintenance, and 

operation thereof). 

We hold that a ditch owner’s determination whether to permit an encroachment will be 

reviewed to determine whether the decision-making process was reasonable, the determination 

was arbitrary and capricious, or the findings upon which the determination was reached were 

clearly erroneous. This conclusion is consistent with the Legislature’s determination that the 

ditch owner should be vested with the authority to make such decisions and recognizes that ditch 

owners are required to satisfy significant statutory obligations and face exposure to liability if 

they fail to fulfill those obligations. Thus, we affirm the district court’s decision on this issue.

C. Under some circumstances, a ditch owner may remove encroachments at the 

encroaching party’s expense and without prior judicial intervention, and the 

decision to remove an unpermitted encroachment will be reviewed to determine 

 

impair the ditch owner’s “use and enjoyment” of its easement or right-of-way. Likewise, one encroachment, by 

itself, may not result in unreasonable or material inference while multiple similar encroachments may. 3 In part, I.R.C.P. 84(a)(1) states that “[a]ctions of state agencies or officers or actions of a local government, its 

officers or its units are not subject to judicial review unless expressly authorized by statute.”
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whether the decision-making process was reasonable and whether the decision was 

arbitrary and capricious or based upon clearly erroneous findings.

1. The right to self-help

The City contends that a ditch owner must initiate judicial proceedings in order to effect 

an encroachment’s removal. The district court held that a ditch owner may exercise self-help to 

remove encroachments constructed after the effective date of I.C. § 42-1209 for which written 

permission was not obtained and that unreasonably or materially interfere with the use and 

enjoyment of the easement or right-of-way. We affirm the district court and hold that, under 

certain circumstances, I.C. § 42-1209 authorizes the ditch owner to remove an encroachment 

without prior judicial approval.

We first look to the plain language of the statute to derive legislative intent. Four

conditions must be satisfied before an encroachment “shall” be removed. First, the encroachment 

must have been constructed after the effective date of I.C. § 42-1209, as the statute’s provision 

for “such express written permission,” which clearly references preceding language in the 

statute, was not a requirement prior to that date. Second, the encroachment must have been 

constructed without permission. Id. Third, the encroachment must unreasonably or materially 

interfere with the use and enjoyment of the easement or right-of-way. Id. Fourth, the ditch owner 

must request that the party responsible for the encroachment remove it. Id.

Upon satisfaction of these requirements, the statute provides that the encroachment “shall 

be removed at the expense of” the encroaching party. Id. In the event that the party responsible 

for the encroachment accedes to the demand for its removal, the statute clearly places the 

financial burden for the cost of the removal upon the encroaching party.

The statute is silent, however, as to what happens when the party responsible for the 

encroachment fails to act upon the demand within a reasonable time.4 The question then is 

whether the ditch owner must go to court in order to vindicate its right to cause the removal of 

the encroachment, or whether it may act first and seek compensation later. When confronted with 

statutory silence as to an appropriate remedy, this Court is “free to apply general rules of

statutory construction to ascertain” legislative intent. Bilow v. Preco, Inc., 132 Idaho 23, 32, 966 

 4 If the party responsible for the encroachment is not afforded reasonable time to respond to the request, then the 

statutory requirement of a “request” for removal would be nullified. What constitutes a “reasonable time” to respond 

to the request is clearly dependent upon circumstances. A request for removal made during spring or summer 

months when a ditch is full may well require an immediate response. Conversely, during winter months, when water 

is not flowing, there may not be a need for immediate action.
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P.2d 23, 32 (1998). When engaging in statutory construction, “the Court should consider not 

only the literal words of the statute, but also the reasonableness of proposed constructions, the 

public policy behind the statute, and its legislative history in order to discern and implement the 

intent of the legislature.” Gonzalez v. Thacker, 148 Idaho 879, 881, 231 P.3d 524, 526 (2009)

(citing Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 398–99, 111 P.3d 73, 83–84 

(2005) and Kelso & Irwin, P.A. v. State Ins. Fund, 134 Idaho 130, 134, 997 P.2d 591, 595 

(2000)).

The policy advanced by I.C. § 42-1209 is clear: given the essential role that irrigation 

facilities play in this state, people must not construct encroachments that unreasonably or 

materially interfere with their operation. If a ditch owner is forced into litigation in order to 

secure the removal of an encroachment constructed without permission and which unreasonably 

or materially interferes with the use and enjoyment of the easement or right-of-way, the ditch 

owner will be forced to wait weeks, if not months, to cause the removal of an encroachment that 

ought not have been constructed in the first instance. We conclude that the policy underlying I.C. 

§ 42-1209 supports the right of the ditch owner to remove an encroachment without first 

resorting to the courts in the event that the party causing or permitting the encroachment fails to 

act upon the request for the encroachment’s removal. 

Interpreting I.C. § 42-1209 as authorizing the ditch owner to remove an encroachment 

that has been constructed without permission and which unreasonably or materially interferes

with the use and enjoyment of the easement or right-of-way is consistent with the common law 

rule that predated the enactment of the statute. An “easement owner has a right to remove 

obstructions unreasonably interfering with use of the easement, so long as there is no breach of 

the peace.” Carson v. Elliott, 111 Idaho 889, 891, 728 P.2d 778, 780 (Ct. App. 1986). “Statutes 

are construed under the assumption that the legislature was aware of all other statutes and legal 

precedence at the time the statute was passed.” Druffel v. State, Dep’t of Transp., 136 Idaho 853, 

856, 41 P.3d 739, 742 (2002). Accordingly, we presume that the Legislature knew that the selfhelp remedy was available to irrigation easement owners when it enacted I.C. § 42-1209. The 

language of the statute does not demand a construction in abrogation of the common law.

Further, we note that this Court must read I.C. § 42-1209 in the context of the statutory 

scheme that prescribes the rights and obligations of ditch owners. See I.C. §§ 42-1201 – 1204. In 

light of the duties that the Legislature has imposed upon ditch owners, in some circumstances it 
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will be imperative that they have the authority to act expeditiously, and without prior court 

intervention, to address exigencies (and potential liability to third parties) created by unpermitted 

encroachments. An interpretation of I.C. § 42-1209 that authorizes ditch owners to remove

encroachments that unreasonably interfere with the ditch and which have been constructed 

without permission advances the legislative objectives of permitting ditch owners to meet the 

needs of water users and protecting the persons and property of third parties.

We hold that I.C. § 42-1209 does not modify the ditch owner’s common law right to selfhelp. Rather, the statute codifies the ditch owner’s right to recover the cost of removing 

unpermitted encroachments that unreasonably or materially interfere with the use and enjoyment

or the easement or right-of-way. We therefore affirm the district court’s decision on this issue.

2. The standard of review of challenges to a ditch owner’s decision to demand 

removal of an encroachment or remove an encroachment without prior judicial 

approval

As with the standard of review of a ditch owner’s decision to deny permission to 

encroach upon its easement or right-of-way, the parties disagree as to the standard to be applied 

when the ditch owner demands removal of an encroachment or exercises its right to remove an 

encroachment that has been constructed without permission. The district court concluded that 

review of such decisions is limited to determining whether the decision-making process was 

reasonable and whether the decision was arbitrary and capricious or based upon clearly 

erroneous findings. 

The considerations that led to our conclusion regarding review of a ditch owner’s 

decision to grant or withhold permission to construct an encroachment are applicable here. The 

Legislature has vested ditch owners with discretion to grant or deny permission to construct an

encroachment, and the exercise of that discretion is subject to review to determine whether the 

decision-making process was reasonable, and whether the decision was arbitrary and capricious 

or based upon clearly erroneous findings. Considering the statutory obligations imposed upon 

ditch owners and the potential liability that may result from failure to fulfill those obligations, it 

would be unreasonable to hold that a party who has constructed an encroachment in violation of 

its statutory obligation to obtain permission may thereby nullify the discretionary authority that 

the Legislature has conferred upon irrigation authorities. See Turner v. Washtenaw Cnty. Rd. 

Comm’n, 467 N.W.2d 4, 4-5 (Mich. 1991) (review of road commission’s statutorily-authorized 

removal of encroachment limited to whether it reasonably exercised its discretion); Devine v. 
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City of Seward, 258 P.2d 302, 304-05 (Kan. 1953) (challenge to city’s self-help removal of 

encroachment limited to whether the decision to remove was arbitrary, capricious, or not made in 

good faith). We hold that a ditch owner’s decision to request removal of encroachments 

constructed without permission or to thereafter remove offending encroachments shall be subject 

to review to determine whether a reasonable decision-making process was employed, and 

whether the decision was arbitrary and capricious or based upon clearly erroneous findings. We 

therefore affirm the decision of the district court as to this issue.

D. A ditch owner does not enjoy exclusive rights in its primary easements and rightsof-way.

The district court held that, pursuant to I.C. §§ 42-1102 and 1209, Pioneer enjoys 

exclusive rights in its primary easements and rights-of-way. We disagree. 

Before turning to these particular statutes, it is appropriate to look at this Court’s earlier 

statements explaining the scope of rights of a ditch owner. In Idaho, the common law has long 

recognized that irrigation easements and rights-of-way are not exclusive. E.g., City of Bellevue v. 

Daly, 14 Idaho 545, 550-51, 94 P. 1036, 1038-39 (1908) (owner of servient estate not liable for 

pollution caused to irrigation waters by his cattle in the ordinary course of husbandry and 

likewise not responsible for constructing a fence to protect the irrigation easement or right-ofway); Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 630-31, 277 P. 542, 546 (1929) 

(irrigation easement owner not entitled to exclusive possession of property upon which easement 

is located and cannot assert trespass where servient estate owner’s cattle enter easement; rather 

where easement owner fails to adequately maintain irrigation conduit and injury to servient 

estate owner’s cattle results, easement owner is liable); Pioneer Irr. Dist. v. Smith, 48 Idaho 734, 

739, 285 P. 474, 476 (1930) (irrigation district’s right-of-way is not exclusive and servient 

landowner’s reasonable, ordinary, and usual farming of hogs near and on easement is 

permissible; irrigation easement owner is responsible for damages to irrigation conduit resulting 

therefrom); Nampa & Meridian Irr. Dist. v. Mussell, 139 Idaho 28, 33, 72 P.3d 868, 873 (2003)

(owners of servient estate “entitled to make any uses of their property that d[o] not unreasonably 

interfere with the District’s enjoyment of its [irrigation] easement.”). In fact, this Court has 

expressly recognized railroad easements as distinguishable from irrigation and other types of 

easements and rights-of-way, and held that only railroad easements are exclusive. Lake CDA 
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Invest., LLC v. Idaho Dep’t of Lands, 149 Idaho 274, 281-82, 233 P.3d 721, 728-29 (2010)5

(citing Coulsen, 47 Idaho at 627-28, 277 P. at 544-45). 

As previously noted, the Legislature is presumed to be aware of this Court’s earlier 

decisions. Druffel, 136 Idaho at 856, 41 P.3d at 742. Certainly, our Legislature knows how to 

abrogate decisions from this Court. See, e.g., Act of March 4, 2010, ch. 29, 2010 Idaho Sess. 

Laws 49, 49–50 (abrogating holding of Rammell v. Idaho State Dep’t of Agric., 147 Idaho 415, 

422–23, 210 P.3d 523, 530–31 (2009)). This Court will not interpret a statute as abrogating the 

common law unless it is evident that was the Legislature’s intent. Statewide Const., Inc. v. Pietri, 

150 Idaho 423, 429, 247 P.3d 650, 656 (2011), abrogated on other grounds by Verska v. Saint 

Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). See also Baker v. Ore–Ida 

Foods, Inc., 95 Idaho 575, 583, 513 P.2d 627, 635 (1973) (“Where the clear implication of a 

legislative act is to change the common law rule we recognize the modification because the 

legislature has the power to abrogate the common law.”). Nothing in the language of I.C. § 42-

1209 indicates legislative intent to overturn our longstanding precedent that ditch owners’ rights

are non-exclusive.

Further, this Court has previously addressed whether I.C. § 42-1102 expands the rights of 

irrigation easement holders. In Nampa & Meridian Irrigation District v. Washington Federal

Savings, 135 Idaho 518, 20 P.3d 702 (2001), this Court rejected the irrigation district’s claim that 

the statute expanded the rights of ditch owners. Id. at 522, 20 P.3d 706 (“We conclude that 

neither the provisions expressed in [a channel change easement] nor the quoted language of the 

statute . . . operate to create a greater right”). Instead, we stated: “I.C. § 42-1102 only 

contemplates a right-of-way for cleaning, maintaining, and repairing canals. The statute provides 

notice to owners of land that the owner of the ditch or canal has the right-of-way, and serves to 

clarify what the right-of-way includes.” Id. at 524, 20 P.3d at 708. Although the issue presented 

in Nampa & Meridian Irrigation District related to a dispute between the ditch owner and the 

owner of the servient estate, this Court rejected the suggestion that I.C. § 42-1102 expanded the 

rights of ditch owners: “Missing from the statute is any suggestion that owners of the right-ofway may, in cleaning, maintaining, or repairing the canal or ditch, restrict the servient 

landowner’s use of the right-of-way because of safety concerns.” Id. 

 5 Although Pioneer challenges the application of this Court’s precedent to the matter at hand on the ground that the 

precedent predates the 2004 enactment of I.C. § 42-1209, we decided Lake CDA Investments in 2010. 
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As the statutes lack a clear expression of legislative intent to abrogate the common law 

and grant easement owners an exclusive right to possession, we conclude that the district court 

erred in holding that owners of irrigation easements and rights-of-way have an exclusive 

possessory interest in those easements. 

E. Neither party is entitled to attorney fees on appeal.

The City requests attorney fees on appeal pursuant to both I.C. §§ 12-117(1) and 12-121.

Pioneer requests attorney fees pursuant to I.C. § 12-121. Under I.C. § 12-117(1), the prevailing 

party in an administrative or civil judicial proceeding between a state agency or political 

subdivision and a person is entitled to attorney fees if “the nonprevailing party acted without a 

reasonable basis in fact or law.” Under I.C. § 12-121 and I.R.C.P. 54(e)(1), a court may award a 

prevailing party attorney fees if “the case was brought, pursued or defended frivolously, 

unreasonably, or without foundation . . . .” Since each party has only prevailed in part on this 

appeal, we decline to award attorney fees to either party.

IV. CONCLUSION

We affirm a portion of the district court’s grant of partial summary judgment on the 

grounds that, pursuant to I.C. § 42-1209, a ditch owner’s determination that an encroachment 

unreasonably or materially interferes with the right-of-way shall be overturned if it is arbitrary 

and capricious, was based upon clearly erroneous findings, or was not the product of a 

reasonable decision-making process. We likewise affirm the district court’s grant of partial 

summary judgment on the grounds that, pursuant to I.C. § 42-1209, a ditch owner may engage in 

self-help to remove an encroachment that it has determined unreasonably or materially interferes 

with its right-of-way, and hold that such action is reviewed under the same standard applicable to 

the denial of permission to construct an encroachment. However, we reverse the district court’s 

grant of partial summary judgment holding that ditch owners enjoy exclusive rights of 

possession. As each party has prevailed in part, we decline to award attorney fees and costs. This 

matter is remanded to the district court for proceedings consistent with this opinion.

Justice EISMANN CONCURS.

J. JONES, Justice, specially concurring.
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I concur in the Court’s Opinion, as far as it goes in applying I.C. § 42-1209 to the specific 

factual situation of this case, but write separately to opine on certain matters not specifically 

addressed.

The Opinion holds that “a ditch owner’s6 determination whether to permit an 

encroachment [in its easement or right-of-way] will be reviewed to determine whether the 

decision-making process was reasonable, the determination was arbitrary and capricious, or the 

findings upon which the determination was reached were clearly erroneous.” Thus, a decision 

made by an irrigation district pursuant to Section 42-1209 must be the result of a reasonable 

decision-making process and the determination must be based upon findings. A reasonable 

decision-making process implicates procedures such as the Legislature has required for state 

administrative agencies in I.C. § 67-5242 and for local planning agencies in Section 67-6535. 

That is, a right to notice, a meaningful opportunity to be heard, a record of the proceedings, 

findings of fact, and a reasoned decision. While the Legislature has not specified the type of 

procedure to be employed pursuant to I.C. § 42-1209, this Court has the inherent “power to 

fashion the procedures necessary to perform [its] duties.” City of Boise v. Ada County, 147 Idaho 

794, 802, 215 P.3d 514, 522 (2009). The process requirements we here adopt for review of 

irrigation district decisions under Section 42-1209 will help to ensure the due process rights of 

the adverse party and a reviewable record on appeal. By adopting standards comparable to those 

mandated by the Legislature for other proceedings, the Court has a tested yardstick to ensure 

against arbitrary and capricious decision-making. 

The City raises a number of concerns regarding the effect of the district court’s decision 

on its historic drainage or flowage rights, the irrigation district’s ability to exercise self-help, and 

the like. Specifically, the City points to a position statement contained in the record wherein 

Pioneer states:

[Caldwell’s storm water runoff] should not be drained through existing irrigation 

drainage facilities even if the post development land proposed for such drainage is 

land that used to be historically drained in such a manner. Existing irrigation 

 6 I would read “ditch owner’s” to mean an irrigation district because that is the specific entity involved in this case. 

Ditch owners other than irrigation districts−Carey act operating companies, nonprofit irrigation entities, and lateral 

ditch associations−are private, non-governmental entities. Drainage entities may be either private or quasigovernmental. There may well be valid legal or policy reasons for confining our holding to governmental entities or 

irrigation districts specifically, but that is beyond the scope of our undertaking in this case. Since our decision is 

limited to the issues raised in the City’s motion for permissive appeal, a determination as to whether the standard of 

review we adopt here applies to entities other than irrigation districts remains to be decided on another day, in 

another case. 
14

drainage facilities were designed to drain excess water from undeveloped 

agricultural lands and were not designed, constructed and/or not maintained to 

accept storm water runoff from developed lands.

However, the City’s concerns may be overstated. Section 42-1209 does not purport to affect 

drainage, flowage, or runoff rights that predate the July 1, 2004 effective date of Section 42-

1209. Nor does it affect anything other than physical encroachments placed in an easement or 

right-of-way, such as roads, utilities, fences, gates, pipelines, structures, or other objects. Section 

42-1209 does not restrict or enhance any right of self-help beyond that available under the 

common law. Indeed, the Court cites Carson v. Elliott, 111 Idaho 889, 891, 728 P.2d 778, 780 

(Ct. App. 1986) for the proposition that an “easement owner has a right to remove obstructions 

unreasonably interfering with use of the easement, so long as there is no breach of the peace.” As 

the Court points out, this common law rule predated the enactment of the statute and does not 

result in an expansion of the right of self-help. Further, the Court does not purport to expand the 

review procedure adopted here to any other statutes or situations. As previously noted, the 

Opinion only addresses the three issues decided by the district court−the review process for 

Pioneer’s decisions under Section 42-1209, whether Pioneer has the right of self-help, and 

whether Pioneer enjoys exclusive rights in its primary easements and rights-of-way. The Opinion 

does not purport to address other than these three limited issues. 

Chief Justice BURDICK and Justice W. JONES CONCUR.