MEMORANDUM DECISION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

RONALD E. BUSH, Magistrate Judge.

I. BACKGROUND

In June 2009, Plaintiffs Joseph Guenther and Michelle G. Ryerson ("Plaintiffs") purchased a parcel of real property ("Property") in the Boise foothills of Ada County. The only physical roadway route to the Property is commonly known as the Barnes Main Access Road, which intersects with Hill Road, between North Pierce Park Lane and Seamans Gulch Road:

Part and parcel with the Property's purchase, Plaintiffs contemporaneously obtained a policy of title insurance ("Policy") from Defendant Old Republic National Title Insurance Company ("Old Republic"). The Policy was issued in the amount of $157,900 and, among other things, included the following defects of title as "Covered Risks": (1) "Unmarketable Title," and (2) "No right of access to and from the Land."

Shortly after purchasing the Property, Plaintiffs sought approvals and permits to construct improvements on the Property, but were denied by governmental authorities who said there was no legal right of access to and from the Property. Owing to the absence of legal access rights to and from the Property, Plaintiffs tendered proof of loss under the Policy to Old Republic, requesting that it defend and indemnify the right of access under, and the marketability of title to, the Property. Old Republic denied coverage, relying on the fact that unfettered physical access to the Property existed (and has always existed) by way of the Barnes Main Access Road, regardless of any legal right of access to use that roadway.

After Plaintiffs were unable to convince Ada County that they did, in fact, have a right of access to and from the Property, this lawsuit followed.

Relevant here, it is undisputed that the Policy provides coverage if there is "no right of access to and from the [Property]." It is also undisputed that, since purchasing the Property in June 2009, Plaintiffs (and other neighboring property owners) have always been capable of physically accessing the Property. The question of whether physical access amounts to "right of access" (as that latter term is used in the Policy) was previously addressed in the context of Old Republic's motion for summary judgment.

There, to test Plaintiffs' claims against it, Old Republic argued that, because Plaintiffs have always been able to physically access the Property, they have likewise always had a "right of access" to and from the Property and, thus, there is no coverage under the Policy. Plaintiffs disagreed, arguing that, while they may never have been physically prevented from accessing the Property, they nonetheless had no legal right of access to the Property (in essence, that they could have been physically prevented from accessing the Property) and, without such access, there is coverage under the Policy. The Policy did not define "right of access."

After considering the parties' arguments, and applying the legal standard for interpreting insurance contracts in Idaho, this Court ruled that the Policy did not clearly and unambiguously provide coverage only when there is no physical access to the Property, as Old Republic asserted in summary judgment briefing:

Owing to these conflicting interpretations, this Court ultimately found the Policy to be ambiguous as to coverage. In such a setting, Idaho law required that the Policy's terms in that regard be construed as a matter of law in favor of Plaintiffs (the insureds) and against Old Republic (the insurer). In turn, this Court went on to find that the Policy provided coverage in instances where no right of access — legal access — existed to and from the Property. As a result, Old Republic's motion for summary judgment was largely denied.1

But that didn't end the dispute; it instead highlighted additional unanswered questions. Specifically, whether a legal right of access to the Property actually existed during the relevant time period remained an unsettled question based on the record up to that point. That is, even though it was understood that the Policy provided coverage when no legal right of access to the Property existed, to prevail, Plaintiffs still had to prove that they had no such right and, in doing so, contend with Old Republic's arguments to the contrary.

Against this backdrop, the parties agreed to proceed with a bifurcated trial, stipulating that the sole issue to be resolved by this Court during the first portion of the trial was whether Plaintiffs indeed had legal access to their Property as of June 15, 2009 — the date the Policy was issued. The parties further stipulated that the resolution of that issue required the determination of some or all of the following discrete sub-issues:

Framed thusly, a two-day bench trial began on April 28, 2014. During the trial, the following fact-witnesses testified: (1) Richard Guenther, (2) Richard Beck, (3) James R. King, Jr., (4) Ruth Browning, (5) Flinda Terteling, (6) John Farmer, (7) Steven Price, and (8) Randy Noble. No expert witnesses testified.

The case was well-tried, by counsel who were prepared and thoughtful advocates. As is often true for civil cases that come to trial, the issues and their economic consequences were important to both parties, and the parties were in significant disagreement about such matters. The Court has carefully considered the arguments of counsel, the testimony of the witnesses, the exhibits admitted, and has weighed and compared the particulars of such argument and evidence. The Court must measure the evidence and hone through the arguments as it has done here, to draw findings of fact and conclusions of law as to how the Court is persuaded (or not persuaded) by the arguments and evidence presented at trial, as considered against the legal standards setting out the elements that Plaintiffs must prove to succeed on their claims, and as to the burden of proof they must meet, or Old Republic must meet, in seeking to prevail on such claims, or upon defenses to such claims. Those findings and conclusions follow in this decision.

II. FINDINGS OF FACT2

The Court makes and enters the following Findings of Fact pursuant to Federal Rule of Civil Procedure 52(a). All Findings of Fact referred to herein, unless otherwise qualified or limited, apply the preponderance of the evidence standard.

To the extent this Court has concluded that any evidence in the record does not support certain claims or defenses made by the respective parties, it will not be included in these Findings of Fact or otherwise referenced. The failure to mention an event or series of events in these Findings of Fact is not an oversight or unintentional omission, but rather an indication that the evidence does not support a finding and/or conclusion in favor of the claim alleged. See White Indus., Inc. v. Cessna Aircraft Co., 845 F.2d 1497, 1499 (8th Cir. 1988) (Rule 52(a) does not require particularized findings on each piece of evidence parties present at trial). With these principles in mind, here are the Court's Findings of Fact:

A. The Parties

1. Plaintiffs Joseph Guenther and Michelle G. Ryerson are, and at all relevant times have been, residents of Boise, Ada County, Idaho. (Compl., ¶¶ 1-2 (Docket No. 1, Att. 5); Ans., ¶¶ 2-3 (Docket No. 5)).

2. Defendant Old Republic is, and at all relevant times has been, a Minnesota corporation engaged in the business of selling title insurance in the state of Idaho. (Compl., ¶ 3 (Docket No. 1, Att. 5); Ans., ¶ 4 (Docket No. 5)).

B. Jurisdiction and Venue

3. This Court has subject matter jurisdiction based on diversity of citizenship, pursuant to 28 U.S.C. § 1332(a). The amount in controversy, exclusive of interest and costs, exceeds the sum of $75,000.

4. Venue properly lies in this District, pursuant to 28 U.S.C. § 1391(a)(2), because it is the District in which a substantial part of the events giving rise to the claims occurred, or a substantial part of the property that is the subject of this action is situated.

C. The Property and the Barnes Main Access Road

5. The Property is located entirely in the Northwest Quarter of Section 18, Township 4 North, Range 2 East, Boise Meridian, Ada County, Idaho. (Pls.' Exs. 1034A & 1034B; Day 1 Tr. 50:11-17). Generally speaking, the Property is located in what is known as the Boise foothills.

6. The only way to access the Property is via the Barnes Main Access Road ("Road"), a dead-end road that intersects to the north off of Hill Road, between North Pierce Park Lane and Seaman's Gulch Road. (Pls. Exs. 1034A & B; Day 1 Tr. 50:18-25; 9/26/13 MDO, p. 2 (Docket No. 81)). For the purposes of the first portion of the bifurcated trial, the only portion of the Road over which there is a dispute as to Plaintiffs' access rights is that which crosses through the Southeast Quarter of the Northeast Quarter of Section 13, Township 4 North, Range 1 East, Boise Meridian, Ada County, Idaho. (Stip. (Docket No. 146)).

7. Before reaching the Property, the Road runs through real property previously owned by Terteling Land Company and The Terteling Company, Inc. ("Terteling"). (Joint Ex. 16). In the early 1970's, Joseph Barnes and Lillian Barnes ("Barnes") owned most of the real property "upstream" from the Terteling property, including the at-issue Property. (Joint Exs. 8 & 11).

8. On January 10, 1973, by "Warranty Deed" (Instrument No. 834167), the Barneses attempted to convey to John and Ruth Browning ("Browning") certain real property in Section 18, as well as use of the Road beginning at Hill Road and proceeding into Section 18, including the portion of the Road that crossed the land owned by Terteling. (Joint Ex. 12).

9. On January 23, 1973, by "Grant of Easement" (Instrument No. 834380), Terteling granted to Joseph Barnes an easement for access across the Terteling property (including the same portion of the Road that the Barneses attempted to convey to the Brownings on January 10, 1973). (Joint Ex. 1). Integral to this action, the Grant of Easement included the following proviso:

Id.

10. On January 29, 1973, by "Grant of Easement" (Instrument No. 834381), the Barneses attempted to grant to the Brownings an easement over the same portion of the Road that the Barneses had attempted to deed to the Brownings on January 10, 1973 (and over which Joseph Barnes had obtained only an easement right from Terteling by the January 23, 1973 Grant of Easement). (Joint Ex. 13).

11. On February 14, 1974, by "Deed of Dedication" (Instrument No. 874845), the Barneses attempted to convey a right-of-way to the public for use of the Road (including the portion of the Road over which Joseph Barnes had obtained only an easement right from Terteling by the January 23, 1973 Grant of Easement). (Joint Ex. 2).

12. On August 23, 1974, by "Warranty Deed" (Instrument No. 8872473), the Barneses deeded the Property to Edna Wyckoff ("Wyckoff"). (Joint Ex. 5, Bates GUENTER000549-51).

13. On October 10, 1975, the Barneses attempted to re-record the "Deed of Dedication" (Instrument No. 7531016)4, originally recorded on February 14, 1974, including therein an additional section of the Road located entirely within Section 18. (Joint Ex. 3).

14. On February 2, 1978, the Ada County Highway District ("ACHD") responded to a request for information from Wyckoff concerning "a proposed development [she] may have off the Main Barnes Access Road," stating in relevant part:

(Pls.' Ex. 1006).

15. On November 22, 1978, ACHD's Board of Commissioners recognized that the Barneses never owned the land they purported to dedicate on February 14, 1974 and October 10, 1975, stating:

(Pls. Ex. 1012, Bates ACHD000655). Additionally, ACHD suggested that "the property owner should get together and try to acquire the parcel owned by Terteling Land Co." and that "Commissioner Fairbanks directed staff to meet with the property owners to discuss the possibilities of improving the road." Id.

16. On September 30 1984, by "Warranty Deed" (Instrument No. 8449105), Terteling conveyed to Ada County the real property in Section 13 where the Road is located. (Joint Ex. 16). The Warranty Deed conveying title to that property makes no specific mention of any easement (or ownership of the Barneses) over the Road. Id. Even so, the October 2, 1984 title policy and corresponding title commitments relating to the September 30, 1984 transaction indicate as "Special Exception" No. 16,5 the following:

(Old Republic Ex. 2001).

17. On January 22, 1986, the official plat of the Hidden Hollow Subdivision was recorded with the Ada County Recorder (Instrument No. 8603849). The plat identified certain easement rights, but not any easement rights reflective of the January 23, 1973 Grant of Easement from Terteling to Joseph B. Barnes. (Joint Ex. 5, Ex. 51 therein; Pls. Ex. 1008).

18. On September 25, 1986, Ada County denied a request to establish a private road on a portion of the Road, citing a lack of any perpetual access easement:

(Joint Ex. 5, Ex. 52 therein).

19. On July 28, 1988, the Board of Ada County Commissioners approved the Quail Hollow Subdivision, including a conditional approval of the Road as a private road, subject to the applicants' acquisition of an easement from Ada County "for access across County lands in Hidden Hollow Subdivision." (Joint Ex. 5, Ex. 43 therein). However, neither the Record of Survey 1334 (recorded on November 10, 1988) (Instrument No. 8855626), nor the Record of Survey 1358 (recorded on December 27, 1988) (Instrument No. 8863197) identifies an easement for the Road. (Joint Ex. 5, Exs. 53 & 54 therein). The conditions of the Quail Hollow Subdivision approval not having been met, the approval expired on July 28, 1990. (Joint Ex. 5, Bates GUENTHER000489).

20. On October 20, 1992, after inspecting and reviewing the "Barnes Access Road," ACHD indicated that it would "accept the road as a public road if it is brought up to acceptable standards," including having the right-of-way dedicated. (Pls. Ex. 1005).

21. In 1998, consistent with Resolution No. 542,7 the Road was located and placed on ACHD's official map ("Official Map"). (Day 2 Tr. 69:17-70:6; Joint Ex. 17). From 1998 to at least 2009, the Road has been located and placed on ACHD's Official Map as an undetermined public right of way. (Day 2 Tr. 72:13-74:18).

22. On October 29, 1999, Ada County Development Services issued a "Property Status Report." (Old Republic Ex. 2003). Therein, the Property Status Report concluded that, although the Property had frontage along the Road, the Road "was not a public street or an approved private road" and, as a result, the Property did not have access to a public street for the purposes of obtaining a building permit. Id. Still, the Property Status Report indicated that the Property was nonetheless eligible for a building permit because (according to the development standards of the Rural Preservation zone) a manufactured home had been legally placed on the Property prior to 1985. Id.

23. On or around June 26, 2003, Ada County Development Services issued a zoning certificate and building permit for a new dwelling on a parcel adjacent to, and "upstream" from, the Property. (Old Republic Ex. 2004).

24. On May 9, 2005, Kathy Smith, Senior Right-of-Way Agent with ACHD's Right-of-Way & Development Department, Right-of-Way Division, wrote an "inter-office memo" regarding the Road and its alleged dedication:

(Pls.' Ex. 1007).

25. On June 2009, Plaintiffs purchased the Property from Wyckoff's estate, with the intention of building a new home and having a small farm and vineyard on the Property. In purchasing the Property, Plaintiffs relied upon the information contained in the 1999 Property Status Report and the fact that building permits had been issued for neighboring properties. (Old Republic Ex. No. 2007; Day 1 Tr. 221:3-6).

D. The Policy and the Underlying Access Dispute

26. On June 15, 2009, in conjunction with their purchase of the Property, Plaintiffs purchased a policy of title insurance — the Policy — from Old Republic, through its agent, Pioneer Title Company ("Pioneer"), in the amount of $157,900. (Old Republic Ex. 2002). Among the "Covered Risks" identified in the Policy are the following defects of title: (1) "Unmarketable Title," and (2) "No right of access to and from the Land."8 Id.

27. On June 25, 2009, Plaintiffs submitted a building permit application for the Property. (Day 1 Tr. 63:2-7; Pls. Ex. 1030). Plaintiffs' application for a building permit was made in reliance upon their review of the Ada County zoning ordinance, as well as the 1999 Property Status Report. (Old Republic Ex. No. 2007).

28. On July 31, 2009, Jay Gibbons, Planning and Zoning Administrator for Ada County Development Services, informed Plaintiffs that, because of the Property's lack of access, a zoning certificate could not be issued and, thus, a building permit also could not be issued:

(Pls. Ex. 1030).

29. On August 14, 2009, Plaintiffs appealed Ada County's decision, hiring Spink Butler, LLP to help address and resolve the access problems identified by Ada County Development Services in its July 31, 2009 decision. (Joint Ex. 6, Bates GUENTHER000150-55; Day 1 Tr. 73:25-74:8).

30. On December 7, 2009, in reference to the "Barnes Road," ACHD Staff Attorney Scott Spears indicated in an e-mail that, among other things:

(Pls.' Ex. 1002, Bates GUENTHER001440) (emphasis in original).

31. On December 9, 2009, the Board of Ada County Commissioners issued the first "Findings of Fact, Conclusions of Law, and Order," denying Plaintiffs' appeal, finding in relevant part:

(Pls. Ex. 1002).9

32. On December 16, 2009, Plaintiffs tendered a claim on the Policy to Pioneer, stating that Ada County, "along with ACHD made the determination that [the Road] is not legal access and no other form of ingress/egress exists to our farm site." (Day 1 Tr. 77:10-17; Ex. 26 to Shaw Dep. (Docket No. 56, Att. 2)). Pioneer did not respond to Plaintiffs' claim; instead, it forwarded the claim to Old Republic pursuant to the terms of its Agency Agreement, along with several documents regarding Plaintiffs' claim. (Ex. 28 to Shaw Dep. (Docket No. 56, Att. 2)).

33. On December 28, 2009, Mike Shaw, Old Republic's claims counsel assigned to the matter, sent an email to Mr. Spears (ACHD Staff Attorney), stating:

(Joint Ex. 5, Ex. 55 therein).

34. On December 30, 2009, Mr. Spears responded to Mr. Shaw's December 28, 2009 email, stating:

(Joint Ex. 5, Ex. 55 therein).

35. On January 5, 2010, Old Republic denied Plaintiffs' claim, saying that Plaintiffs "have legal access to [their] land by way of a number of recorded instruments." (Ex. 34 to Shaw Dep. (Docket No. 56, Att. 3)).

36. On January 8, 2010, Plaintiffs sent an email to Old Republic, asking Old Republic to reconsider its denial of coverage. (Ex. 35 to Shaw Dep. (Docket No. 56, Att. 3)).

37. On January 12, 2010, Old Republic said no to Plaintiffs' request to reconsider, stating that "[w]e find nothing that indicates you have been denied access to your land"; "it is inconceivable that Ada County would deny you access to your land"; "it is our position that the [P]olicy is correct in its insuring you access"; and "[i]f any person or entity seeks to deny you access to your land, Old Republic Title will take such action as may be required under the policy to establish insurable access." Id.

38. On January 22, 2010, Plaintiffs filed a Petition for Judicial Review and Complaint in Idaho state court, essentially challenging Ada County's decision relating to the access issues concerning the Property. (Ex. 9 to Guenther Dep. (Docket No. 58, Att. 1).

39. On March 21, 2011, Plaintiffs submitted a request for a zoning certificate for an agricultural structure on the Property. (Joint Ex. 5).

40. On May 20, 2011, Richard Beck, Associate Planner for the Ada County Development Services, issued the second "Findings of Fact, Conclusions of Law, and Order," denying Plaintiffs' submission, finding in relevant part:

(Joint Ex. 5).

41. On or around August 3, 2011, Plaintiffs submitted an application requesting approval of a private road between Hill Road and the Property. (Pls. Ex. 1000).

42. On October 12, 2011, the Board of Ada County Commissioners issued the third "Findings of Fact, Conclusions of Law, and Order," conditionally approving Plaintiffs' application, finding in relevant part that, as to the Road:

(Pls. Ex. 1000).

43. On April 23, 2012, Plaintiffs filed this lawsuit in Idaho state court. Old Republic removed the action to this Court on May 15, 2012. (Not. of Removal (Docket No. 1)).

44. On July 10, 2012, in response to an email from Plaintiffs' counsel concerning what was said by ACHD's Justin Lucas during the October 12, 2011 hearing,14 ACHD's general counsel, Steven Price, responded in relevant part:

(Old Republic Ex. No. 2011).

45. On October 9, 2012, a property transfer was made from Ada County to ACHD, transferring the strip of land containing the Road in the Northeast Quarter of Section 13 to ACHD; on October 10, 2012, a Resolution (Resolution No. 1066) was passed by ACHD Board of Commissioners to accept the property transfer from Ada County, stating in relevant part:

(Joint Ex. 7) (emphases in original).

III. DISCUSSION15

The Court has considered the parties' briefing and the trial evidence against the four issues stipulated for resolution during this portion of the bifurcated trial. The record from which the Court's decision will be drawn is a patchwork of evidence — including government records, direct testimony, maps, and photographs — loosely tracing the history of the Road and its use over the course of nearly 40 years — with interlocking pieces in some instances, and missing parts in others. With this in mind, the Court now addresses the stipulated issues in order to determine whether Plaintiffs had legal access to their Property as of June 15, 2009.

A. Issue No. 1: Whether the Road was Improved as Required by the 1973 Grant of Easement Between Terteling and Joseph Barnes16

The first chapter in this tangled web of a dispute began innocuously enough in a simple contract made on January 23, 1973, in which Terteling granted to Joseph Barnes an easement to access the Property via the Road. The Grant of Easement contained this relevant, and potentially dispositive, language:

(Joint Ex. 1). Hence, if the improvements were completed by December 31, 1977, an easement was cemented (the argument goes) as of June 15, 2009, thus providing Plaintiffs with legal access to their Property and, therefore, no coverage under the Policy. Plaintiffs argue that the improvements were never completed (otherwise, they'd never be here in the first place). Old Republic counters that Plaintiffs cannot meet its burden on this point.

There is nothing in the record which is directly dispositive of this question, such as a written communication between the Barneses and Terteling about the fact of the improvements having been made, or acknowledged to have been made. Instead, the evidence concerning whether the Road was improved as required by the Grant of Easement is both sparse, at best, and sometimes only indirectly relevant upon the ultimate issue.

For example, aerial photographs taken during the relevant time period (1972, 1974, 1975, 1976, and 1978), were admitted into evidence to illustrate changes (or non-changes) in the appearance of the road from the air. Such photographs do contain some changes in appearance of the width or contour of the road in locations, but otherwise do not (and presumably could not) reflect the composition of the road, nor the dimensions or depths of any road materials. Even the changes in width, where such changes can be identified, are ultimately nothing more than drifting pieces of evidence because they have no contextual mooring to actual dimensions on the ground. (Pls.' Exs. 1021-27). Plaintiffs acknowledge that "there is evidence of some roadway construction in the 1978 aerial photograph," but argue that, even if true, such evidence is not outright proof of (1) the specific improvements called for in the Grant of Easement, that (2) existed as of the December 31, 1977 deadline regardless. The Court agrees. The aerial photographs allow possible inferences that could be drawn of something having changed on the road over the period during which they were taken, but the inferences fall short of more-probable-than-not evidence of the actual improvements required by the terms of the Grant of Easement. It is simply impossible to tell from these photographs; in short, they raise as many questions as they answer.

Witness testimony is similarly lacking in persuasiveness as to whether certain improvements were made by a certain date, and, in some instances, the witness testimony strongly inferred that such improvements had never been made. For example:

No other witnesses offered relevant testimony regarding the condition of the Road (and whether the called-for improvements had been made) between 1973 and 1977.20 It is not surprising that the available evidence on this subject, for that time period, is hard to come by. Of what is available, there is insufficient relevant evidence to persuade the Court that the required improvements were made during the period between January 1973 and December 1977. In that regard, the Court has focused upon the following evidence:

Mrs. Browning, understandably, does not have a precise memory of that particular decade, and what she was able to remember was imprecise — e.g., she remembers a large-scale construction project in the 1970's, but not what was specifically done or whether it was done before December 31, 1977.

Ms. Terteling made a search of Terteling's records and could find nothing related to any alleged easement. She says that it was Terteling's practice to "clean-up any problems" presented by exceptions to a title policy connected to a sale of company real estate. Yet, there was nothing in the records at all about the Grant of Easement/Easement, despite the fact that it was mentioned as a special exception in the title policy issued in September 1984 in regard to Terteling's conveyance to Ada County of the real property in Section 13 where the Road is located.21 Then, less than two years later, on January 22, 1986, Terteling caused to be recorded the official plat of the Hidden Hollow Subdivision. The plat identified certain easement rights, but not any easement rights reflective of the Grant of Easement. The most sensible inference to be drawn from those details is not that Terteling acknowledged the Easement, but rather that Terteling did not acknowledge the Easement.

It is hardly surprising that witness testimony of attenuated information, or entirely lacking first-hand knowledge on matters four decades old, is less-than-precise or even persuasively helpful on these issues. Further, while it might have been helpful to have expert testimony discussing the roadway engineering "ins and outs" of what the Road's improvements (had they been accomplished sometime between 1973 and 1977) might have looked like years later compared against what actually exists today, its absence is not fatal to Plaintiffs' claim when considering, again, the paucity of evidence speaking to any improvements made to meet the Grant of Easement's conditions in both scope and time.22 What is known, though, is that, with the exception of the October 2, 1984 title policy and corresponding title commitments, no easement accessing the Property using the Road was ever recognized, despite the many opportunities to do so over the course of many years.

At most, what can be gleaned from the record is that, while certain improvements to the Road may have taken place between 1973 and 1977, there is no ultimately persuasive evidence of improvements actually taking place during this exact time, in the manner specified by the Grant of Easement. There is evidence of something having been done, but the testimonial and documentary evidence does not support a conclusion that the conditions of Grant of Easement were satisfied. Stated in the converse, on this issue, Plaintiffs have met the burden of proving that the Grant of Easement's conditions were not satisfied.

B. Issue No. 2: Whether the Easement's Reversionary Clause Was Self-Implementing or Subject to a Right of Re-Entry

In the alternative, Old Republic contends that, even if the improvements to the Road were not made in accordance with the Grant of Easement, the easement rights continued unaffected because no one ever took any affirmative action to terminate the Easement. In essence, Old Republic argues that the Easement did not automatically revert to Terteling as of December 31, 1977 but, instead, was subject only to a right of re-entry and neither Ada County nor its predecessor-in-interest took the necessary steps to terminate the Easement.

For this position, Old Republic relies upon Idaho Code § 55-608.23 Enacted in 1887, Idaho Code § 55-608 states:

I.C. § 55-608. Chapter 6, Title 55, Idaho Code, applies to "Transfer[s] of Real Property." An easement — while no-doubt an interest in real property — is not the same as a transfer of real property; it simply creates a "`right to use the land of another for a specific purpose that is not inconsistent with the general use of the property of the owner.'" Beckstead v. Price, 190 P.3d 876, 881 (Idaho 2008) (quoting Luce v. Marble, 127 P.3d 167, 176 (Idaho 2005)).24, 25 easement is more akin to a servitude than an estate in fee simple (the latter of which unquestionably is subject to Idaho Code § 55-608). In discussing the termination of servitudes, the Restatement (Third) of Property provides that, "[i]f the terms of the servitude include an express expiration date or provide for termination on the occurrence of a condition, the terms will be given effect. ..." Restatement (Third) of Property § 7.2 cmt. a (2000) (updated 2014); see also id. at § 4.1 ("A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.");26 25 Am. Jur. 2D Easements and Licenses in Real Property § 17 (2014) ("The general rules that apply to the construction of writings apply to the construction of grants of easements. .... If the language [by which an easement purportedly is granted] is clear and explicit, extraneous circumstances ordinarily may not be resorted to, nor may parol evidence be admitted to, vary the terms of the instrument."); id. at § 82 ("... an easement may be created which will terminate on the occurrence of a specified event or contingency or which may be terminated on the occurrence, breach, or nonperformance of a condition."); id. at § 83 ("The written terms of the grant of an easement ordinarily will determine the manner of its termination and the events which may cause it."); id. at § 84 ("Where an easement has been created until the happening of a specific event or contingency, the easement will terminate ipso facto on the happening of the specified event or contingency.")

The Grant of Easement provides that, if certain improvements are not made to the Road by December 31, 1977, the Easement automatically reverts back to the servient estate on that date. See (Joint Ex. 1) ("... if Grantee shall not by December 31, 1977, have improved said right of way ..., then on that date said easement ... shall revert to the then owner of the servient tenement.") (emphasis added). It follows, then (and consistent with basic principles of contract law), that because the improvements to the Road were not made by December 31, 1977 (see supra), the Easement automatically reverted back to Terteling — unaffected in that context by Idaho Code § 55-608.27 Old Republic has not met its burden on this issue.

C. Issue No. 3: If the Easement was Subject to a Right of Re-Entry, Whether the Requisite Action was Taken to Terminate the Easement

The Easement terminated on December 31, 1977, as it was not subject to a right of re-entry (see supra). Thus, whether the necessary step was taken to terminate the Easement is moot.

D. Issue No. 4: If the Easement Terminated, Whether Legal Access Existed by Virtue of the Alternative Access Theories

This Court previously ruled as a matter of law that the Policy "provides coverage in instances where no right of access — legal access — exists to and from the Property." 9/26/13 MDO, p. 18 (Docket No. 81) (emphasis in original). However, whether legal access to and from the Property existed as of June 15, 2009 remained an unsettled question before this Court — one that was ultimately tried during the first portion of the bifurcated trial. To that end, Old Republic advanced different arguments — the "alternative access theories" — that, if accepted, would establish the requisite legal access (independent of the Grant of Easement) and, thus, preclude coverage under the Policy. The alternative access theories include: (1) Idaho Code § 40-202/public right-of-way; (2) quasi-estoppel/permissive use; and (3) easement by prescription.

1. Idaho Code § 40-202/Public Right-of-Way

There are specific ways by which a public highway may be created in Idaho. See I.C. § 40-202. Pertinent here, Old Republic argues that the Road became a public right-of-way pursuant to Idaho Code § 40-202(3), which provides:

Section 40-402 has been a source of frequent litigation in Idaho courts, and a number of reported decisions discuss the burden placed by Idaho law upon those who would argue that a roadway is a public roadway. "Idaho Code § 40-402 may be used by counties or by private parties to obtain a declaration that a road is a public highway. ... The primary factual questions are the frequency, nature and quality of the public's use and maintenance." Burrup v. Stanger, 753 P.2d 261, 264 (Idaho Ct. App. 1988) (quoting Tomchak v. Walker, 700 P.2d 68 (Idaho 1985)).

In this case, if one assumes that the Road was properly recorded on the ACHD Official Map (a fact not decided here, and strongly contested by Plaintiffs, (see discussion infra)) the pivotal issue is whether there was sufficient public use of the road for a period of at least five years. "The public's use of the road must have been more than only casual and desultory." Id., citing Kirk v. Schultz, 119 P.2d 266 (1941). The facts must show "that the public has used the road regularly, as it would any similar public highway," and "the public's use of the road was not merely the result of permission given by the owner, as opposed to acquiescence of the owner." Id. Accord Lattin v. Adams County, 236 P.3d 1257, 1262 (Idaho 2010) ("casual or sporadic use is not enough — the use must be regular and continuous"). Similarly, there must be "regular or customary use by the public." Roberts v. Swim, 784 P.2d 339, 346 (Idaho Ct. App. 1989). Significantly, such use must be "extensive." Ada County Highway Dist. v. Total Success Invs. LLC, 179 P.3d 323, 328 (Idaho 2008) ("public status of the roadway can be established by proof of regular maintenance and extensive public use") (citing Floyd v. Bd. of Comm. of Bonneville County, 52 P.3d 863, 869 (Idaho 2002)).

In this case, Old Republic argues that there is sufficient evidence of public use for a period of five years. The trial record contains a pockmarked array of evidence as to use. There was testimony that certain adjoining landowners used the Road to get to and from their homes. This includes Edna Wyckoff, from whose estate Plaintiffs purchased their property, who used the Road on a daily basis from 1974 until sometime around 2007. Ruth Browning did the same, from 1973 until the present, and her family members and friends also used the road to reach her home.

Mrs. Browning said that Idaho Power would send a meter reader up to read her electric meter and her neighbors' meters until a few years ago, when the company switched to meters that could be monitored remotely. Mr. King, who has lived at the intersection of Hill Road and the Road since the late 1970's, said that his wife and kids have walked up the road, that he sees his neighbors using the road, and that he sees a few joggers and a few horseback riders. But generally, Mr. King said that use of the road by non-landowners was limited: "I don't know why the general public would go up there," Mr. King said. "It's a dead end road. ... there's several cars I recognize as being offspring of the neighbors, but I don't think the general public uses the road much."29 (Day 1 Tr. 335:6-336:15).

The evidence relied upon by Old Republic is attenuated and thin, especially when compared to cases in which the Idaho appellate courts have upheld trial court decisions recognizing public roads. In summary, the evidence is that the handful of landowners who lived along the Road used the Road to get to and from their homes, that relatives and their friends used the Road for the same purpose, that the electric utility meter reader used the road to read the electric meters, and that an occasional jogger or horseback rider would travel up the road. Otherwise, to repeat what Mr. King said from his many years living next to the road, "I don't know why the general public would go up there."

Old Republic contends that such evidence is sufficient, arguing that "the Road has been used continuously by the public since the 1970's," and relying upon the holding in Ada County Highway Dist. v. Total Success Invs., LLC, 179 P.3d 323, 330-331 (Idaho 2008). That decision does discuss evidence of adjacent landowner use, but its emphasis is upon "use of a roadway by adjoining landowners' invitees and guests ...," which, the Idaho Supreme Court acknowledges is a proper piece of the evidence to be considered. Id. However, there is no holding that evidence limited to use by adjoining landowners (or evidence limited to use by adjoining landowners, their invitees, and guests), requires a finding that sufficient public use is present. To the contrary, such use (if that is all there is) must still meet all of the touchstones that Idaho law requires — it cannot be casual, it cannot be desultory, it must be regular, it must be extensive, and it must last a period of five years.

On this record, those thresholds are not met. The only evidence of public use in the record other than the use of the Road by the adjoining landowners are the occasional vehicle trips made by relatives and friends (and there is no detail as to how many and how often), the utility meter reader (who, the Court will take notice, would have made a monthly visit), and the infrequent jogger or horseback rider.

Such use is far closer to "casual and desultory" than not, and does not support a finding of public use. Kirk v. Schultz, 119 P.2d 266 (1941). Further, there is insufficient evidence "that the public has used the road regularly, as it would any similar public highway" even as to the adjoining landowners and guests. See Lattin v. Adams County, 236 P.3d 1257, 1262 (Idaho 2010) ("casual or sporadic use is not enough — the use must be regular and continuous"); Roberts v. Swim, 784 P.2d 339, 346 (Idaho Ct. App. 1989).

Perhaps most importantly, the evidence of use — even including the use of the Road by the adjoining landowners' guests and invitees — simply cannot, under any sensible assessment, be considered "extensive." Total Success, 179 P.3d at 328 ("public status of the roadway can be established by proof of regular maintenance and extensive public use,") citing Floyd v. Bd. of Comm. of Bonneville County, 52 P.3d 863, 869 (Idaho 2002). The Road is hidden in the foothills, is not a thoroughfare, has only a handful of adjoining landowners, contains no business operations, and is a place where, by all appearances, one is more likely to hear the howl of a coyote than the sound of a car. The nature of the use is starkly different than the use considered by the Idaho Supreme Court in Total Success, where the road at issue was regularly used by sewer system employees to access manholes, and by multiple different suppliers, service people, vendors, and customers to access adjacent businesses on a daily or weekly basis. Id., 179 P.3d at 366-367.

There is a difference between any use and extensive use. Here, there is not persuasive evidence of extensive use for a period of five years. Rather, the evidence is much more of the nature found in the cases where the Idaho Supreme Court has ruled against the existence of a public roadway. E.g., Lattin, 236 P.3d 1257, 502,503 (Idaho 2010) (notwithstanding affidavit evidence from three residents attesting to use of contested roadway for at least 20 years by local residents to access adjoining national forest for various recreational or personal activities, and occasional use of roadway by construction equipment, there was insufficient evidence that such use "occurred frequently, or with any consistency, especially over a five-year span" and therefore there was "insufficient evidence" of "sufficient public use of the road"); Aztec Ltd., Inc. v. Creekside Inv. Co., 602 P.2d 64, 66 (Idaho 1979) (use of roadway by three or four homeowners, their visitors, and invitees might constitute private easement, but is insufficient to establish public use for five-year period required to establish public road under Idaho law); Roberts v. Swim, 784 P.2d 339, 346 (Idaho 1989) (use of roadway by adjoining landowner and his predecessors to access water sources and to facilitate farming operations did not, standing alone, establish regular and customary use by public of roadway).

Additionally, as in Homestead Farms, 119 P.3d 630 (Idaho 2005), the 1998 ACHD Official Map presents its own set of issues when applied against the language of Idaho Code § 40-202. There, the Idaho Supreme Court found that the Teton County Board of Commissioners erred in creating a map showing public highways throughout Teton County:

Id. at 634-35; accord Halvorson v. North Latah Cnty. Highway Dist., 254 P.3d 497, 503 (Idaho 2011) . Similarly, the validity of including the Road on the 1998 Official Map is not without criticism. Up to that point in time (and even beyond, as indicated by Resolution 1066 in 2012), ACHD consistently took the position that the Barneses' 1974 and 1975 Deeds of Dedication were never accepted. See, e.g., (Pls.' Exs. 1006, 1005, & 1012, Bates ACHD000655).30 At the very least, this calls into question whether, under Idaho Code § 40-202(3), the Road was properly created as a public highway by virtue of its mere inclusion on the 1998 Official Map.31

Without the record establishing the public's use of the Road for at least five years, Idaho Code § 40-202(3) does not apply to convert the Road into a public-right-of way. Old Republic has not met its burden on this issue.

2. Quasi-Estoppel/Permissive Use

Quasi-estoppel stands for the proposition that "one cannot blow both hot and cold." KTVB, Inc. v. Boise City, 486 P.2d 992, 994 (Idaho 1971). In Idaho, quasi-estoppel applies when: "(1) the offending party took a different position than his or her original position, and (2) either (a) the offending party gained an advantage or caused a disadvantage to the other party; (b) the other party was induced to change positions; or (c) it would be unconscionable to permit the offending party to maintain an inconsistent position from one he or she has already derived a benefit or acquiesced in." Allen v. Reynolds, 186 P.3d 663, 668 (Idaho 2008).

According to Old Republic, Ada County's actions during its 29 years of ownership of the section of the disputed Road — for example, (1) issuing building permits to "upstream" landowners and allowing them to use (and place signs declaring their right to use) the Road, (2) the Ada County Development Services' 1999 Property Status Report indicating that the Property was eligible for a building permit, and (3) not disputing the 1984 title policy listing the Easement as an encumbrance — would have precluded Ada County from ever attempting to deny Plaintiffs access to the Property under the doctrine of quasi-estoppel. See Old Republic's Proposed FOF/COL, pp. 29-30 (Docket No. 160).

The infirmity of Old Republic's theoretical argument lies in the fact that it presumes a contest that did not exist — namely, it presents a possible defense to Ada County's non-existent quiet title action. This Court will not engage in rendering an advisory opinion on matters that could have taken place (but did not) in a hypothetical proceeding involving entities not a party to the instant action. See Daien v. Ysursa, 711 F.Supp.2d 1215, 1228 (D. Idaho 2010) (Federal court's role "`is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.'") (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009)).32

Without an actual change in position to consider here, the doctrine of quasi-estoppel cannot be used to somehow prove that Plaintiffs had legal access to their property as of June 15, 2009. Old Republic has not met its burden on this issue.33

3. Easement by Prescription

A party seeking to establish the existence of an easement by prescription "must prove by clear and convincing evidence use of the subject property which is characterized as: (1) open and notorious; (2) continuous and uninterrupted; (3) adverse and under a claim of right; (4) with the actual or imputed knowledge of the owner of the servient tenement (5) for the statutory period." Hodgins v. Sales, 76 P.3d 969, 973 (Idaho 2003).

Old Republic argues that, notwithstanding any termination of the Easement, an easement by prescription existed (or more accurately, would have existed) in the name of Plaintiffs' predecessor-in-interest owing to the latter's undisputed use of the Road on a daily basis to access her home between December 31, 1977 (the date the Easement terminated) and September 30, 1984 (the date Terteling sold the Property to Ada County). See Old Republic's Proposed FOF/COL, pp. 30-31 (Docket No. 160).

Here again, Old Republic's argument rests upon a hypothetical and, necessarily, abstract claim — in this instance, a claim that might have existed for a prescriptive easement. As with Old Republic's argument concerning the doctrine of quasi-estoppel (see supra), the argument rests upon a supposition, not a result. Certainly, had a documented, prescriptive easement been conceded to, or adjudicated, as of June 15, 2009, a strong argument could be made that Plaintiffs had legal access to the Property as of that date. But there is neither any such event, nor documentation creating the bones of such a result. See, e.g., (Day 1 Tr. 83:25-84:6) (Plaintiff Guenther testifying that he was never able to identify, nor was he provided a document in the record establishing an access right, including prescriptive easement); see also (Day 1 Tr. 270:15-24) (Richard Beck, Associate Planner for Ada County Development Services testifying to same). Other than the Grant of Easement, there is no document (whether in the form of a judicial decision, a recorded instrument, a contract, or otherwise) that would potentially provide a right of access for Plaintiffs to have legal access to the Property. The possibility that a predecessor-in-interest might have been able to make such a claim cannot substitute for the fact of the existence of a prescriptive easement, allowing access to the property on June 15, 2009.

In the context of this dispute, absent an established easement by prescription as of June 15, 2009, it cannot be assumed that Plaintiffs in fact had an easement by prescription as of that same date. Old Republic has not met its burden on this issue.

IV. CONCLUSIONS OF LAW34

The Court's jurisdiction in this action is based on diversity of citizenship. Under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), "federal courts sitting in diversity jurisdiction apply state substantive law and federal procedural law." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). Therefore, Idaho's substantive law applies to the claims/issues presented for this Court's consideration.

1. Plaintiffs originally asserted the following causes of action against Old Republic: (1) Declaratory Judgment — No Right of Access (Count I); (2) Declaratory Judgment — Policy Coverage Applies (Count II); (3) Bad Faith Tort (Count III); (4) Breach of Contract (Count IV); (5) Negligence (Count V); (6) Breach of Fiduciary Duty (Count VI); (7) Breach of Implied Covenant of Good Faith and Fair Dealing (Count VII); and (8) Intentional Infliction of Emotional Distress (Count VIII). This Court previously dismissed Plaintiffs' claims for breach of contract (Count IV) and intentional infliction of emotional distress (Count VIII).

2. By stipulation, the parties agreed to resolve the remaining causes of action in bifurcated stages. Also by stipulation, the parties agreed that the sole issue to be resolved by this Court during the first portion of the bifurcated trial was whether Plaintiffs had legal access to their Property as of June 15, 2009. The parties agreed that the resolution of that question required the determination of some or all of the following questions:

5. Plaintiffs proved that the Barnes Main Access Road was not improved as required by the 1973 Grant of Easement between Terteling Land Company and Joseph and Lillian Barnes (Issue No. 1). The evidence is in conflict; however, the Court is persuaded that it is more probable that the required improvements were not made by December 31, 1977.

6. Old Republic did not prove that the Easement's reversionary clause was subject to a right of re-entry (Issue No. 2). Instead, the Easement automatically reverted back to Terteling on December 31, 1977 because the Barnes Main Access Road was not improved as required by the 1973 Grant of Easement between Terteling Land Company and Joseph and Lillian Barnes.

7. Because the Easement was not subject to a right of re-entry, this Court need not determine whether the requisite action was taken by Ada County and/or its predecessors-in-interest for the purpose of terminating the Easement. Issue No. 3 is moot.

8. Old Republic did not prove that Idaho Code § 40-202 applies to the facts of this case so as to provide Plaintiffs with legal access to the Property as of June 15, 2009, and this Court rules as a matter of law that Idaho Code § 40-202 does not create a public roadway on the facts of this case.

9. Old Republic did not prove that the doctrines of quasi-estoppel or permissive use provided Plaintiffs with legal access to the Property as of June 15, 2009.

10. Old Republic did not prove that an easement by prescription provided Plaintiffs with legal access to the Property as of June 15, 2009.