Latvala v. Green Enterprises, Inc.

               IN THE SUPREME COURT OF THE STATE OF IDAHO
                              Docket No. 49173

MATTHEW V. LATVALA and                 )
BONNIE A. LATVALA, husband and         )
wife,                                  )
                                       )
        Plaintiffs-Respondents,        )
                                       )
v.                                     )
                                       )
GREEN ENTERPRISES, INC., an Idaho )
Corporation; JAMES K. FRANK and        )
JULIE B. FRANK, husband and wife;      )
LARIMORE J. CUMMINS and                )           Coeur d’ Alene, September 2022 Term
KATHRYN CUMMINS, husband and           )
wife; and all unknown persons claiming )           Opinion Filed: December 8, 2022
an interest in the road by the name of )
South Camp Bay Road, located in        )           Melanie Gagnepain, Clerk
Bonner County, Idaho,                  )
                                       )
       Defendants-Appellants-          )
                                       )
and                                    )
                                       )
GILL LIVING TRUST, acting through )
TRUSTEE DALE GILL; RUSSELL             )
W. EDWARDS and JANET M.                )
EDWARDS, husband and wife; CORAL )
MARIE EDWARDS; FRED GRUBB;             )
CAMP BAY, LLC an Idaho limited         )
liability company; MARION L. COX,      )
                                       )
        Defendants.                    )
____________________________________)


      Appeal from the District Court of the First Judicial District of the
      State of Idaho, Bonner County. Barbara Buchanan, District Judge.

      The district court’s second and third amended judgments are affirmed.

      John F. Magnuson, Coeur d’Alene, for Appellants. John Magnuson argued.

      Sandpoint Law, P.C., Sandpoint, for Respondents. Daniel McLaughlin argued.
                         _________________________________
                                               1
BEVAN, Chief Justice.
       This case concerns the scope of a prescriptive easement. In 2019, the district court granted
Respondents Matthew V. and Bonnie A. Latvalas’ claim for a prescriptive easement over a road
known as “South Camp Bay Road” to reach their property located on the shores of Lake Pend
Oreille. Because the prescriptive easement was created by the operations of an active mine, the
district court determined that the scope of the easement included the ability to transport labor and
materials to build a home on the Latvalas’ property. In Latvala v. Green Enterprises, Inc., 

, 

 (2021) (Latvala I), this Court affirmed the district court’s determination
that the Latvalas had a prescriptive easement over South Camp Bay Road. However, the Court
vacated the district court’s judgment after concluding it had impermissibly expanded the scope of
that easement. On remand, the parties disputed whether this Court’s decision prohibited the
Latvalas’ proposed residential use of South Camp Bay Road, or only the construction of a
residence on the Latvalas’ property. The district court entered a second amended judgment that
prohibited the Latvalas from using South Camp Bay Road to construct a residence on their
property, but did not restrict the Latvalas from using the road for residential purposes. Appellants
Green Enterprises, Inc., James K. Frank and Julie B. Frank, and Larimore J. Cummins and Kathryn
Cummins (neighboring landowners) timely appealed.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
       The relevant facts of this case are set forth in Latvala I. In 2015, the Latvalas purchased a
land-locked parcel of land known as Sulphide South, which was originally part of a patented
mining claim on the shores of Lake Pend Oreille. 168 Idaho at 690, 485 P.3d at 1133. The Latvalas
planned to use Sulphide South for both personal mineral and residential purposes. Id. at 693, 485
P.3d at 1136. To further these interests, the Latvalas wanted to use South Camp Bay Road to
transport material and men to build a residence on Sulphide South. Id.
       In 2017, the Latvalas sued neighboring landowners along South Camp Bay Road in an
effort to extend South Camp Bay Road to Sulphide South, including a claim for a prescriptive
easement that would allow the Latvalas to use and build on the Latvala property. Id. at 694, 485
P.3d at 1137. Following a four-day bench trial in 2019, the district court granted the Latvalas’
claim for a prescriptive easement over South Camp Bay Road. Id. Because the prescriptive
easement was created by the operations of an active mine, the district court determined that the
scope of the easement included access to Sulphide South, transport of labor and materials to build

                                                 2
a home, and the construction of an access road across a neighboring parcel of land known as
Sulphide North. 168 Idaho at 694, 485 P.3d at 1137. The district court concluded that “it was
reasonably foreseeable to the servient landowners that use of South Camp Bay Road might
someday change from mining to residential purposes, and that residential structures could be built
on the Sulphide Lode Property.”
       The district court entered a judgment specifying:
              Title is quieted in an easement for ingress, egress, and utilities for the benefit
       of Sulphide South (also known in this action as the Latvala Property) . . . . This
       easement is an easement appurtenant. It may be used for residential purposes, and
       includes the right to use, repair, improve, and maintain South Camp Bay Road for
       vehicular and utility access to Sulphide South, but shall not include the right to
       physically expand the width of the easement. . . .
(Emphasis added.) The court subsequently entered an amended judgment awarding costs to the
Latvalas. The neighboring landowners appealed to this Court, arguing the prescriptive easement
granted by the district court constituted an unreasonable expansion in use of any rights that the
Latvalas could claim by prescription. Latvala I, 168 Idaho at 694, 485 P.3d at 1137.
       In Latvala I, this Court affirmed the portion of the district court decision granting a
prescriptive easement to access Sulphide South via South Camp Bay Road. 168 Idaho at 695–99,
485 P.3d at 1138–42. However, the Court held the district court impermissibly expanded the scope
of that prescriptive easement. Id. at 699–702, 485 P.3d at 1142–45. This Court focused primarily
on disavowing the district court’s conclusion that “building a residence on Sulphide South was
reasonably foreseeable [during the prescriptive period].” Id. at 702, 485 P.3d at 1145 (emphasis
added). That said, the Court also recognized that “there is no proof in the record that any
‘residence’ was ever located on Sulphide South for the prescriptive period . . . . No residential,
mining, or other purpose has been established for Sulphide South.” Id. Ultimately, the Court held
“where Latvala plans to transport materials and men down South Camp Bay Road for the
construction of a road and a home on Sulphide South, such a use diverges from how Sulphide
South has been used throughout time – an undeveloped parcel, underneath which a mineshaft
exists.” Id. The Court concluded “using South Camp Bay Road to construct a residence on
Sulphide South and a new road across Sulphide North is beyond the scope of the prescriptive
easement and, accordingly, [we] reverse that portion of the district court’s decision.” Id.
       Following this Court’s decision in Latvala I, the Latvalas filed a motion for entry of an
amended judgment that only restricted the Latvalas from using South Camp Bay Road to construct
                                               3
a residence on Sulphide South and a road across Sulphide North. The neighboring landowners
opposed the motion, arguing that it was inconsistent with this Court’s decision, positing the Court
also held residential use of Sulphide South was an unreasonable expansion of the prescriptive
easement. The neighboring landowners submitted their own amended judgment, which specified
South Camp Bay Road “shall not be used to facilitate or enable the use of Sulphide South for
residential purposes or for the construction of a new road across Sulphide North.” The Latvalas
objected to the neighboring landowners proposed judgment, arguing it was overly restrictive.
       On August 5, 2021, the parties appeared for a hearing on the Latvalas’ motion for entry of
amended judgment. The district court recognized that the sole issue was trying to determine the
holding of this Court in Latvala I. The Latvalas argued this Court’s holding was very specific,
emphasizing the Court’s language strictly construing the “prescriptive easement rights and the
burden that would be placed on the servient easements during the construction phase of this
project.” (Emphasis added.) Conversely, the neighboring landowners highlighted this Court’s
statement that “road development and residential use of Sulphide South are unreasonable
expansions of the prescriptive easement.” (Emphasis added.)
       The neighboring landowners also pointed out that the Latvalas had filed a petition for
rehearing before this Court, asking for, among other things, “[w]hether the evidence and findings
in the record established that the Latvalas’ proposed residential use of South Camp Bay Road is
not an intensification of use of the prescriptive easement” and “[w]hether the evidence and findings
in the record established that the Latvalas’ proposed residential use of South Camp Bay Road was
reasonably foreseeable.” Thus, the neighboring landowners argued the Latvalas understood that
the Court’s opinion had the effect of precluding residential use of the Latvala property by way of
South Camp Bay Road. Though this Court issued a substitute opinion following the Latvalas’
petition for rehearing, it did not address the Latvalas’ residential claims. See generally Latvala I.
       Following the hearing, the district court signed and entered a second amended judgment
that prohibited the Latvalas from using South Camp Bay Road to construct a residence on Sulphide
South, but did not include the additional language the neighboring landowners proposed restricting
the Latvalas from using the road “for residential purposes:”
                The Amended Judgment . . . is affirmed and remains in full force in effect
       as to all Defendants except as expressly amended in part below.
               The Amended Judgment is hereby amended in part to provide that the
       prescriptive easement over that portion of South Camp Bay Road located within
                                               4
       the real property owned by [neighboring landowners] shall not be used to construct
       a residence on Sulphide South . . . or for the construction of the new road across
       Sulphide North.
               Subject to the foregoing construction limitations which apply only to the
       above referenced portions of South Camp Bay Road located within the
       [neighboring landowners] property, title is quieted in an easement for ingress,
       egress and utilities for the benefit of Sulphide South over Sulphide North as well
       as over South Camp Bay Road, as set forth in the amended judgment.
The neighboring landowners filed a timely notice of appeal.
       The district court later, based on a stipulation between the parties, entered a third amended
judgment that dismissed the Latvalas’ claim for a declaratory ruling that South Camp Bay Road is
a public right-of-way. The district court also declined to award costs. The third amended judgment
did not otherwise alter the second amended judgment. The neighboring landowners filed a timely
amended notice of appeal from the third amended judgment on the same issues identified in their
original notice of appeal.
                                    II. STANDARD OF REVIEW
       “A determination that a claimant has established a prescriptive easement involves entwined
questions of law and fact.” Latvala I, 168 Idaho at 699, 485 P.3d at 1142 (citing Beckstead v. Price,

, 

 (2008)). But, whether the increased use of the road amounts
to an “expansion of the original easement” or merely an “increase in degree of use” is solely a
question of law. 

 (quoting Gibbens v. Weisshaupt, 

, 

 (1977)).
                                           III. ANALYSIS
       The discrete issue before this Court is whether the district court’s second amended
judgment (restated in its third amended judgment) properly reflects this Court’s holding in Latvala
I. Again, the district court’s second amended judgment prohibited the Latvalas from using South
Camp Bay Road to construct a residence on Sulphide South but did not amend language from the
first amended judgment that allowed the Latvalas to use the road “for residential purposes.” This
Court must now determine whether its substitute opinion in Latvala I restricted the Latvalas from
using South Camp Bay Road for residential purposes.
A.     The district court’s second and third amended judgments are consistent with this
       Court’s holding in Latvala I.
       As a threshold matter, the Latvalas argue that the neighboring landowners are attempting
to collaterally attack this Court’s substitute opinion by asking the Court to revise the holding
therein. The Latvalas contend there is no indication the substitute opinion restricts the easement in
                                                 5
the manner suggested by the neighboring landowners, i.e., preventing residential use. The Latvalas
suggest the neighboring landowners’ efforts to “obtain a modification” of the Court’s holding in
Latvala I are barred by two rules: Idaho Appellate Rule 38 and the “law of the case doctrine.”
       The relevant portion of Idaho Appellate Rule 38 specifies that opinions become final 21
days after the announcement of a modified opinion without a rehearing. I.A.R. 38(b)(3). The
substitute opinion in Latvala I was issued on May 3, 2021, and became final May 24, 2021. On
the other hand, “[t]he law of the case doctrine, which is well settled in Idaho, requires that when
an appellate court, in ‘deciding a case presented states in its opinion a principle or rule of law
necessary to the decision, such pronouncement becomes the law of the case, and must be adhered
to throughout its subsequent progress, both in the trial court and upon subsequent appeal[.]’ ” State
v. Gorringe, 

, 179, 

 (2021) (quoting Berrett v. Clark Cnty. Sch.
Dist. No. 161, 

, 

 (2019)).
       The Latvalas’ arguments are without merit. Here, the neighboring landowners are merely
seeking an interpretation of this Court’s substitute opinion, not a modification. Indeed, in their
reply brief, the neighboring landowners acknowledge that the Court’s substitute opinion is
“obviously final” and submit the “[s]ubstitute [o]pinion already includes findings that ‘no
residential purpose has been established for Sulphide South’ and that ‘[t]here’s no support in the
record for the view that a residence built in 2015 . . . would have been reasonably foreseeable . . .
.” (Emphasis in original).
       The neighboring landowners summarize the issue on appeal as whether the district court
erred by awarding the Latvalas a prescriptive easement over South Camp Bay Road that included
“residential use” within the easement’s scope. The Latvalas counter that the neighboring
landowners have “disingenuously” framed the issue, given that the second amended judgment does
not contain any reference to residential use, except to the extent the judgment indicates the Latvalas
may not use the easement for construction of a residence on Sulphide South. While it is true the
second amended judgment does not contain a specific reference to the Latvalas’ ability use South
Camp Bay Road for residential purposes, it does affirm and incorporate the remaining provisions
in the amended judgment “[s]ubject to the . . . construction limitations.” The amended judgment
plainly held that the prescriptive easement “may be used for residential purposes.” Thus, the issues
the neighboring landowners have raised on appeal are properly before us.


                                                  6
       In discussing the scope of the prescriptive easement in Latvala I, this Court focused
primarily on the increased burden that would be placed on the servient estates during the
construction phase of the project:
       “We also diverge from the district court’s conclusion that building a residence on
       Sulphide South was reasonably foreseeable in 1946-1954.”
       “Ultimately, where Latvala plans to transport materials and men down South Camp
       Bay Road for the construction of a road and a home on Sulphide South, such a use
       diverges from how Sulphide South has been used throughout time – an undeveloped
       parcel, underneath which a mineshaft exists.”
       “We strictly construe these prescriptive easement rights and the burden that would
       be placed on the servient estates during the construction phase of this project.”
       “We hold that using South Camp Bay Road to construct a residence on Sulphide
       South and a new road across Sulphide North is beyond the scope of the prescriptive
       easement and, accordingly, reverse that portion of the district court’s decision.”
168 Idaho at 702, 485 P.3d at 1145 (emphasis added).
       However, this Court also commented on the “residential use” of Sulphide South
independent of the proposed construction. First, the Court summarized the neighboring
landowners’ prior argument as being that “the road development and residential use of Sulphide
South are unreasonable expansions of the prescriptive easement,” before adding “[w]e agree.” Id.
at 699, 485 P.3d at 1142. Later, the Court discussed:
       [T]here is no proof in the record that any “residence” was ever located on Sulphide
       South for the prescriptive period, and the only structures on Sulphide North were a
       mill and a tool and dry shed. No residential, mining, or other purpose has been
       established for Sulphide South. As the Appellants put it: “the Latvala property has
       never been used for anything.” The existence of structures on Sulphide North or the
       planned structures in [an adjacent area in 1947] do not support the logical inference
       that a residence could be built on Sulphide South roughly sixty-eight years later.
       Even if some miners occupied a “camp” at Sulphide South for a time, there is no
       proof that their habitation was continuous throughout the five-year prescriptive
       period. “The right gained by prescription is always confined to the right as
       exercised for the full period of time required by the statute, which is, in this state,
       five years.” Loosli v. Heseman, 

, 

 (1945). There
       is no support in the record for the view that a residence built in 2015 when Latvala
       purchased this property, would have been reasonably foreseeable to the servient
       estates between 1946 and 1954.
Id. at 702, 485 P.3d at 1145 (emphasis added).




                                                 7
        Although the Court never specifically held “residential use is prohibited,” the neighboring
landowners argue this discussion of residential use was intertwined with its analysis of the
construction of a residence on Sulphide South.
        Courts closely scrutinize prescriptive easement rights because a prescription is a penalty
against a landowner. Latvala I, 168 Idaho at 699, 485 P.3d at 1142 (citing Beckstead, 

, 

). “As a general rule, an easement acquired by prescription is confined to the
right as exercised during the prescriptive period. . . . While some change of usage is permissible,
any changes in the use of a prescriptive easement cannot result in an unreasonably increased
burden on the servient estate.” 

 (quoting Elder v. Nw. Timber Co., 

, 

 (1980)). Thus, “any changes in the use of a prescriptive easement cannot result in an
unreasonabl[y] increased burden on the servient estate and that the increase in use must be
reasonably foreseeable at the time the easement is established.” 

 (quoting Gibbens, 

, 

). “In other words, when examining whether a planned use of a prescriptive
easement would impose an unreasonable increased burden, the focus of the inquiry should be on
whether it is reasonable to conclude that the owner of the land where the easement is located would
have objected to the increased use had it occurred during the prescriptive period.” 

, 485
P.3d at 1144.
        The Latvalas argue that merely driving over South Camp Bay Road, just as the then
owners/lessees of the Sulphide Lode property1 did during the prescriptive period is neither an
increase nor a change of use. The Latvalas allege the subjective intent of the party driving over the
road is irrelevant if there is no impact on the servient estate holder when compared to the
prescriptive period. In Latvala I, this Court recognized that it would have to measure the Latvalas
planned use of South Camp Bay Road against the historical usage, which the district court
summarized as being
        for ingress and egress to the Sulphide Lode property (Sulphide North and Sulphide
        South) and was used by motor vehicles to transport laborers, hand tools, mining


1
  The Latvalas reference the Sulphide Lode property as it existed during the prescriptive period (1946-1954), before
the land was split into Sulphide North and Sulphide South in 1982. The neighboring landowners argue that the Latvalas
are limited to the historic use of Sulphide South and cannot establish any prescriptive easement rights relating to
Sulphide North. However, before 1982, Sulphide South and Sulphide North were one combined parcel; thus, the
prescriptive easement applies equally to both. Beckstead v. Price, 

, 

 (2008) (“An
easement appurtenant is attached to a dominant tenement. . . . an easement appurtenant serves the owner of the
dominant estate in a way that cannot be separated from his rights in the land.”).
                                                         8
       equipment (e.g., rails, ore cars, a compressor, and a drifter (rock drill)), and 15 tons
       of ore.
Latvala I, 168 Idaho at 697, 485 P.3d at 1140.
       We further recognized that:
       With multiple employees, the miners would have travelled to and from the mine
       regularly, as would supplies from the local towns. In addition, the plethora of tools
       and equipment necessary to complete this work would have been brought to the
       sulphide claim property . . . .
Id.
       Comparing the historical use of South Camp Bay Road during the prescriptive period
against the Latvalas’ proposed use, the Latvalas allege this Court only found two proposed uses
that would exceed the scope of the prescriptive easement: (1) the construction of a road over
Sulphide North; and (2) the construction of a residence on Sulphide South. See Latvala I, 168
Idaho at 702, 485 P.3d at 1145 (“Thus, we hold that using South Camp Bay Road to construct a
residence on Sulphide South and a new road across Sulphide North is beyond the scope of the
prescriptive easement and, accordingly, reverse that portion of the district court’s decision.”).
       The Latvalas maintain that if the proposed use is consistent with the use during the
prescriptive period, with no increased use or expansion of the roadway, there is no need to
determine whether the use is foreseeable. The Latvalas posit that the neighboring landowners
would have this Court prohibit the Latvalas from driving over South Camp Bay Road for any
purpose other than to actively mine their property, diverting the focus to the Latvalas’ subjective
intent rather than the impact on the servient estates. In support, the Latvalas cite the following
passage from Gibbens v. Weisshaupt:
       We do not mean to imply from our decision today that any increase in use of a
       prescriptive easement is an expansion. Our decision is consistent with [§§] 478 and
       479 of the Restatement of Property concerning evolution and expansion of
       easements. Rights obtained by prescription should be strictly limited, and we read
       these sections of the Restatement narrowly. We are aware that some changes in the
       character of the dominant estate are foreseeable and will necessitate changes in the
       use of a prescriptive easement. We however emphasize that any changes in the use
       of a prescriptive easement cannot result in an unreasonable increased burden on the
       servient estate and that the increase in use must be reasonably foreseeable at the
       time the easement is established.

, 

.



                                                  9
          The Court’s decision in Gibbens is the seminal case addressing the scope of a prescriptive
easement and subsequent changes in use. In Gibbens there was a dispute between neighboring
landowners over the “scope” of a prescriptive easement. 

, 

. The “scope”
of an easement means the extent of the privilege of use, including the time (e.g., day/night,
summer/winter), place (the location of the easement area and the parcel it benefits), manner (e.g.,
foot traffic, automobile traffic, trucks, recreational vehicles), and purpose of use (e.g.,
ingress/egress, utilities). See Restatement (First) of Property V I 39 Intro. Note (1944) (“Within
the scope of the privilege of use are included the elements of time, place, manner, and purpose of
use.”).
          From the early 1930s until about 1970, the owners of the 700-acre parcel in Gibbens used
a dirt road located on a neighboring 20-acre parcel as a means of ingress and egress for a single-
family residence, farm, and cattle operation. 98 Idaho at 635–36, 570 P.2d at 872–73. The
Connollys (two of the plaintiffs) purchased the 700-acre parcel in 1967. 

, 

. In 1970, they sold ten acres of the parcel to a commercial greenhouse operation that employed
20-30 people, and they eventually sold four other parcels to families who then built homes. 

          In 1973, a dispute over the use of the dirt road came to a head when the Weisshaupts, the
owners of the 20-acre parcel, built a fence that limited the width of the dirt road to 12 feet. 

 The
Connollys, the other homeowners, and the greenhouse operation sued the Weisshaupts (the
defendants) to establish the existence of a prescriptive easement across the 20-acre parcel and to
prohibit the Weisshaupts from interfering with their use of it. 

 After a trial, the district court
decided in favor of the Connollys and the other plaintiffs, ruling that an easement for ingress and
egress existed and that it was 40 feet in width where the dirt road adjoined another road and 22
feet in width elsewhere. 

 The district court held that the increase in road use after the Connollys’
sale to the greenhouse operation and the construction of the other family homes was only an
“increase in degree of use” and did not constitute an impermissible expansion of the scope of the
original prescriptive easement. 

 The Weisshaupts appealed. 

          On appeal, this Court, much like the decision in Latvala I, affirmed the existence of the
prescriptive easement, but reversed the district court’s decision concerning scope, holding that the
increased traffic caused by the greenhouse operation and the four additional family residences on
the 700-acre parcel extended beyond the original use for a single-family residence, farm, and cattle
operation. 

, 

. This Court quoted favorably from a California case which
                                                  10
held that the scope of a prescriptive easement is fixed and determined by the manner of use in
which it originated:
        When an easement is acquired by prescription, the extent of the right is fixed and
        determined by the manner of use in which it originated. An easement acquired by
        prescription cannot be extended or increased so as to enlarge the burden except by
        grant or by adverse user which has been acquiesced in for the required statutory
        time. One who has acquired an easement by prescription or by grant may not use it
        to impose a substantial increase or change of burden on the servient tenement. The
        scope of a prescriptive easement is determined by the use through which it is
        acquired. A person using the land of another for the prescriptive period may acquire
        the right to continue such use, but does not acquire the right to make other uses of
        it.

, 

 (quoting Bartholomew v. Staheli, 

, 828–29 (Cal. Ct. App.
1948) (citations omitted in Gibbens)).
        This Court in Gibbens was also careful to recognize, however, that not every increase in
the use of a prescriptive easement is an impermissible expansion and provided a two-part legal test
to be used when addressing this issue:
        We do not mean to imply from our decision today that any increase in use of a
        prescriptive easement is an expansion. Our decision is consistent with §§ 478 and
        479 of the Restatement of Property concerning evolution and expansion of
        easements. Rights obtained by prescription should be strictly limited, and we read
        these sections of the Restatement narrowly. We are aware that some changes in the
        character of the dominant estate are foreseeable and will necessitate changes in the
        use of a prescriptive easement. We however emphasize that any changes in the use
        of a prescriptive easement cannot result in an unreasonable increased burden on
        the servient estate and that the increase in use must be reasonably foreseeable at
        the time the easement is established.
Id. (emphasis added) (footnote omitted). This Court went on to give an example of a permissible
change in use to illustrate its point:
        The respondents Wallace and Eda Connolly purchased the dominant estate in 1967.
        The respondents leased portions of their property for pasturage and cattle were
        hauled over the roadway in question. Any increase in use caused by these leasing
        operations would not be an expansion of the easement, merely a permissible
        increase in degree of use. The original easement contemplated the operation of a
        cattle ranch and the further development of this cattle ranch would be foreseeable.
        Also this additional use would not amount to an unreasonable increased burden
        because of the infrequency of the trips.
Id. at 639, 

.



                                                11
       The Latvalas claim that simply driving over South Camp Bay Road to reach the Sulphide
property is neither an increase nor an expansion of what the owners of the Sulphide Lode property
were doing during the prescriptive period. They were, in fact, using South Camp Bay Road for
vehicular passage. The Latvalas submit there can be no doubt that the owners of the servient estates
would foresee the continued use of South Camp Bay Road for vehicular access to the Sulphide
Lode properties regardless of whether the subjective intent of such use was for mining or
residential purposes. The Latvalas advance it is only the use of the road to construct a residence or
build a road across Sulphide North that would result in an unforeseeable intensification and
expansion of that historical use, which have already been prohibited by the substitute opinion in
Latvala I.
       Indeed, we must focus on whether there is an expansion of use that would result in an
increased burden on the servient tenements rather than the Latvalas’ subjective intent each time
they drive over South Camp Bay Road. In reaching this conclusion we note the neighboring
landowners’ concerns that the Latvalas’ proposed “residential use” could expand to include
multiple residences that ultimately might be used as rental properties. However, to speculate about
what kind of residence the Latvalas might build, or how many people would have access to the
property, is premature at this juncture. Unlike the evidence in the record detailing the “veritable
parade of semi-trucks and trailers, cement mixers, excavation equipment, and construction
materials that might need to travel down South Camp Bay Road to construct . . . a road across
Sulphide North,” there is no evidence indicating what kind of residential use the Latvalas are
intending. Thus, this Court has no way to gauge whether the Latvalas’ proposed residential use
would result in an increased burden on the servient estates.
       In Latvala I we held that using South Camp Bay Road to construct a residence on Sulphide
South and a new road across Sulphide North is beyond the scope of the prescriptive easement. 168
Idaho at 702, 485 P.3d at 1145. The district court’s second and third amended judgments
incorporated this holding, specifying:
       The Amended Judgment is hereby amended in part to provide that the prescriptive
       easement over that portion of South Camp Bay Road located within the real
       property owned by [neighboring landowners] shall not be used to construct a
       residence on Sulphide South . . . or for the construction of the new road across
       Sulphide North.



                                                 12
       Because possibly driving across South Camp Bay Road will do nothing to increase the
burden on the servient landowners, we affirm the district court’s second and third amended
judgments because they are consistent with our holding in Latvala I. The Latvalas may not use
South Camp Bay Road to build a residence; they may drive along Camp Bay Road to access a
residence. Whether and to what extent that burden may or could change in the future is a question
for another day. On the record before us we will not hypothesize on what the outcome would be
under those theoretical scenarios.
B.     We decline to award attorney fees on appeal.
       The Latvalas request an award of attorney fees and costs under Idaho Code section 12-121.
Idaho Code section 12-121 provides, “[i]n any civil action, the judge may award reasonable
attorney’s fees to the prevailing party or parties when the judge finds that the case was brought,
pursued or defended frivolously, unreasonably or without foundation.” The Latvalas contend the
neighboring landowners are effectively asking this Court to reexamine and reweigh the evidence
already considered by the Court in the first appeal in an effort to obtain a different holding. The
Latvalas advocate the decision cannot be modified in this manner.
       Though we have held the Latvalas prevailed on appeal, we decline to award attorney fees
under Idaho Code section 12-121. Latvala I did not explicitly declare that residential use was
prohibited. Thus, consideration of whether the district court’s second amended judgment runs
afoul of this Court’s decision in Latvala I was not unreasonable, without foundation, or frivolous.
The neighboring landowners put forth well-reasoned, thoughtful arguments in support of their
claims on appeal. Accordingly, we decline to award attorney fees. Costs are awarded to the
Latvalas as the prevailing party on appeal.
                                         IV. CONCLUSION
       The district court’s second and third amended judgments are affirmed. Costs are awarded
to the Latvalas as the prevailing party on appeal.

       Justices BRODY, STEGNER, MOELLER, and ZAHN CONCUR.




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