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Loomis & McGrew v. Richwell Resources Ltd.

filed*fn*: September 16, 1991.

LOOMIS & MCGREW, AN IDAHO PARTNERSHIP, AND WILLIAM H. MCGREW AND HELEN BRANDT MCGREW, HUSBAND AND WIFE, PLAINTIFFS-APPELLEES,
v.
RICHWELL RESOURCES, LIMITED, A BRITISH COLUMBIA, CANADA CORPORATION; AN IDAHO CORPORATION WHOSE CHARACTER HAS EXPIRED; JAMES H. HAWLEY, JR., INDIVIDUALLY AND AS A TRUSTEE FOR BLACKSTONE MINING COMPANY, LIMITED; JAMES H. HAWLEY, III, AND SILVER CHIEF MINING CO., INC., AN IDAHO CORPORATION, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the District of Idaho; D.C. CV-87-01294-MJC; Marion J. Callister, Senior District Judge, Presiding.

Wright, Farris and Trott, Circuit Judges.

MEMORANDUM

The McGrews, owners of land patented under the Stock Raising Homestead Act (SRHA), 43 U.S.C. § 299 (1988), brought this action for trespass against owners of the patented mining claims on the McGrews' land. The district court found Richwell Resources and the other defendants*fn1 jointly and severally liable for trespass damages. The court also granted an easement by prescription to the McGrews for the fences that cross Richwell's mining claim. Richwell appeals the district court's award of damages and grant of an easement.

This appeal presents four issues: (i) whether Dana Barclay, a Richwell employee, acted within the scope of his employment when he caused a trespass on the McGrews' land; (ii) whether the McGrews are entitled to an easement; (iii) whether damages were properly calculated; and (iv) whether joint and several liability is appropriate.

I

The court found that Barclay was Richwell's employee. Supporting this finding was a business card Barclay gave to John McGrew, identifying Barclay as Richwell's director of operations. In addition, Richwell's April 1987 Vancouver Stock Exchange filing listed Barclay as an employee with an option to purchase 23,333 shares of Richwell stock. The court properly applied the law based upon these facts.

Barclay's trespass occurred within the scope of his employment because he was working under Richwell's direction and performing the type of work for which he was hired. Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1375 (9th Cir. 1990); 53 Am. Jur. 2d Master and Servant § 427 (1970).

II

The McGrews met all the legal requirements for a prescriptive easement. See Webster v. Magleby, 98 Idaho 326, 563 P.2d 50, 51 (1977).

An easement may be established in many objects, including a fence. Dunnett v. Hughes, 399 Ill. 120, 77 N.E.2d 36, 38 (1948). An easement may also be burdensome. Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870, 877 (1977).

The district court's award of an easement on condition that the McGrews build and maintain gates to provide access to the mining claim was not clear error.

III

Although required to do so by the SRHA, Richwell never obtained the Bureau of Land Management's approval of its bond prior to beginning work on its claim. Richwell's unapproved state bonds do not satisfy federal requirements.

Richwell also asserts that it should not have to pay $10,000 out-of-pocket to reclaim the McGrews' land when it already posted $6700 in bonds for that purpose. The damage award and the state bonds serve different purposes. The court need not consider the state bonds in ...


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