96 P.3d 637 (2004) 140 Idaho 536

Lawrence ("Bud") MOON, Jr., individually and on behalf of all others similarly situated, Alex H. Moon, by and through her parents and guardians, Trina H. Moon, and James H. Moon, individually and on behalf of all others similarly situated, Kaley F. Moon, by and through her parent and guardian, Laura F. Moon, individually and on behalf of all others similarly situated, Jeanne Wolcott, individually and on behalf of all others similarly situated, Jerry Vickers, individually and on behalf of all others similarly situated, Bruce Charles Rothermel, individually and on behalf of all others similarly situated, Plaintiffs-Respondents,
v.
NORTH IDAHO FARMERS ASSOCIATION; Wayne Meyer, William Dole, Michael Dole, Warren Dole, Jacquot Farms Enterprises, Inc., Satchwell Farms, Inc., Wallace Meyer, Terrell K. Baune, Baune Farms, Inc., Paul Deshiell, Arnold Brincke Keith Daman, Paul Daman, Denny Bros., L.L.C., Chad Denny, Matthew Drechsel, Dreschsel Brothers, Inc., Dennis Duncan, David Duncan, Chris Duncan, Joyce Duncan, Randy Duncan, David Fish, Thomas Freeburg, David Gumm, Charles A. Hahner, Hahner Farms, Inc., Larry Hansen, Joyce Hansen, Martin Hanson, Hatter Cree Farms, Inc., Don Hay, Clarence Haeg, Randy Holt, Duane Jenneskens, Cindy Janneskens, Dale R. Johnson, Ted Lacy, Phillip Lampert, Nick Lawson, Casey Lawson, Allen Lewis, Maple Leaf Farm, Inc., Herbert W. Millhorn, Millhorn Farms, Inc., Bruce Mills, Richard Morrison, Elmer Ness, Chris R. Ram, Michael Roecks, Rogada Farms, Inc., John Schultz, Karl Schultz, Tammy Schultz, Ron Tee, Allen Thoma, Windy Hill Farm, Inc., Todd F. Wright, Gary Wrigh, Wrights, Inc.; Wade Mc Lean, Doug Bruce, Erling Place, Michael Schlepp, Gary French; Lampert Farm Ranch, Inc., Earl Clausen, Michael La Shaw, Catherine Morris, Terry Nichols, Eugene Towne, Jeff Bloomsburg, Brian La Shaw, Joe Sievers; Bergen Bothman, Defendants-Appellants, and
Schlepp Ranch, Clausen Farms, Inc., Larry Heaton, David Lampert, Eric Larson and the State of Idaho, Defendants.
Lampert Farm & Ranch, Inc., Earl Clausen, Michael La Shaw, Catherine Morris, Terry Nichols, Eugene Towne, Jeff Bloomsburg, Brian La Shaw, Larry Heaton and Joe Sievers; G. Wade Mc Lean, Doug Bruce, Michael Schlepp, Gary French and Erling Place, Third-Party Plaintiffs-Appellants,
v.
Tim Freeburg and Michael Freeburg; Henry Bentz, Chester Franz, d/b/a Double F. Ranch, Michael Hemken, Hemken Farms, Inc., Terry Jacklin and Walter Meyer, Third-Party Defendants-Appellants, and
Sherry Claus, as personal representative of the Estate of John Carter, Gary Johnson, d/b/a D & G Farms, Daman Brothers Partnership, Gary Dreshel, d/b/a Reshel Brothers, Jim Fischer, Ford Gumm, Alvin Haas, Haas Farms General Partnership, Francis Hughes, J.R. Simplot Company, d/b/a Jacklin Seed-Simplot, Rodney Jacot, Ted Lacy, d/b/a Lacy Farm Enterprises, Thelma Mc Clellan, as personal representative of the Estate of L.E. Mc Clellan, William Mellick, Walter Meyer, Glen Miles, Morrfarms, Inc., Heaton Farms Partnership, KSH Partnership, Gerald Holt d/b/a Rockcreek, Third-Party Defendants.

Nos. 29896, 29897, 29898, 29899, 29900, 29901.

Supreme Court of Idaho, Boise, May 2004 Term.

August 2, 2004.

*639 Hall, Farley, Oberrecht & Blanton; and Batt & Fisher, Boise, for appellants North Idaho Farmers.

*640 Paine, Hamblen, Coffin, Brooke & Miller, LLP, Coeur d'Alene and Baise & Miller, Washington, D.C., for appellants Meyer through Wrights, Inc. Peter C. Erbland argued for all appellants.

Clements, Brown & McNichols, Lewiston, for appellants McLean through French.

Michael E. Ramsden and Jedediah James Whitaker, Coeur d'Alene, for appellants Lampert Farm through Sievers.

Brady Law, Chartered, Boise, for appellants Bothman, Bentz and Jacklin.

D. Samuel Eismann, Coeur d'Alene, for Freeburg through Hemken Farm.

Gordon Law Offices, Boise and Hagens, Berman LLP, Seattle, WA. for respondents. Steve W. Berman argued.

Hon. Lawrence G. Wasden, Attorney General; Clive D. Strong, Deputy Attorney General; Clay Riggs Smith, Deputy Attorney General, Boise, for amicus curiae, State of Idaho. Clay Riggs Smith argued.

BURDICK, Justice.

The defendant-seed growers are appealing the district court's decision holding the amendments to I.C. § 22-4801 et seq., which were passed by the 2003 Legislature, unconstitutional. This Court granted a permissive appeal of this interlocutory order. For the reasons outlined below, we hold the recently enacted amendments to be in conformity with the Idaho and United States Constitutions.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs are individuals claiming sensitivity to grass smoke, who filed an action against various seed growers in north Idaho who traditionally burn the post-harvest straw and stubble in their fields as part of their farming activities. The plaintiffs' complaint, filed in June of 2002, asserted among others, claims of nuisance and trespass. The plaintiffs filed for a preliminary injunction in July of 2002, seeking to enjoin the defendant-seed growers from burning their Kentucky bluegrass fields. The district court, in August 2002 took testimony from the plaintiffs' medical experts, State officials from Washington and Idaho, class members and grass farmers. The district court issued findings of fact and conclusions of law and ultimately granted the preliminary injunction to abate the injury caused by the field burning of the grass farmers and required the posting of a bond.

In September of 2002, however, the Idaho Supreme Court granted the defendant-seed growers' request for a writ of prohibition, after concluding that the injunction exceeded in some respects the district court's jurisdiction. The Court enjoined the district court from enforcing the terms of the preliminary injunction against the grass burners.

The plaintiffs sought and were granted certification as a class^[1] and were granted leave to amend their complaint to assert a punitive damage claim. Thereafter, in the early spring of 2003, several bills related to field burning were under consideration by the Idaho legislature. The district court held a hearing on April 11, 2003, where the impact of the various bills was discussed with respect to the plaintiffs' property and their statutory rights to abate the nuisance and/or enjoin the trespass caused by the grass burners' smoke.

In April 2003, after Governor Kempthorne signed House Bill 391 into law, the plaintiffs filed a motion to the district court to declare the law unconstitutional as applied to the facts of this case. HB 391, which was passed as an emergency measure, amended the Smoke Management and Crop Residue Disposal Act of 1999, I.C. § 22-4801 et seq., and effectively extinguished liability for all North Idaho grass farmers that burn in compliance with its provisions. Of particular significance, HB 391 amended portions of I.C. § 22-4803 and added a new statute, I.C. § 22-4803A.

The district court heard the motion of the plaintiffs, arguing the unconstitutionality of I.C. § 22-4803A(6), which reads as follows:

*641 (6) Crop residue burning conducted in accordance with section 22-4803 Idaho Code, shall not constitute a private or public nuisance or constitute trespass. Nothing in this chapter shall be construed to create a private cause of action against any person who engages in or allows crop residue burning of a field or fields required to be registered pursuant to section 22-4803(3) Idaho Code, provided such activities are conducted in accordance with chapter 49, title 22, Idaho Code, and rules promulgated thereunder.

On June 4, 2003, the district court issued an order holding HB 391 unconstitutional. The district court held: (1) that HB 391 effects an unconstitutional taking of property without prior compensation or due process; (2) that HB 391 imposes a limitation that is not in the interests of the common welfare and thus violative of Article I, § 1 of the Idaho Constitution; and (3) that HB 391 is a "local or special law" in violation of Article III, § 19 of the Idaho Constitution. The district court concluded that for two months of the year, August and September, "the burning invades and destroys two of the three fundamental aspects of the plaintiffs' property rights ... possession and use." The district court also ruled that by affirmatively granting the grass burners the right to maintain the nuisance on the plaintiffs' property, the State imposed an easement on the plaintiffs' land.

The district judge who ruled on the constitutionality of the statutory amendments, particularly I.C. § 22-4806, was disqualified by order dated June 12, 2003. By order of the Idaho Supreme Court dated June 28, 2003, the Honorable District Judge W.H. Woodland was appointed to take over the case. Shortly thereafter, the district court granted the defendants' motion to stay the proceedings until the Supreme Court determines the motion for a permissive appeal of the interlocutory order pursuant to I.A.R. 12(a). The Idaho Supreme Court granted the motion for permissive appeal on July 22, 2003.

ISSUES ON APPEAL

1. Did the district court err in finding HB 391 is an unconstitutional "taking" of private property under both the Idaho and United States Constitutions?

2. Did the district court err in finding that HB 391 is a violation of Article I, § 1 of the Idaho Constitution, because the "limitation" imposed by the amendments were not in the "interests of the common welfare"?

3. Did the district court err in finding the HB 391 is a "local or special law" in violation of Article III, § 19 of the Idaho Constitution?

STANDARD OF REVIEW

The constitutionality of a statute is a question of law over which this Court exercises free review. State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998); Fremont-Madison Irr. Dist. and Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996). The party challenging a statute on constitutional grounds bears the burden of establishing that the statute is unconstitutional and "must overcome a strong presumption of validity." Olsen v. J.A. Freeman Co., 117 Idaho 706, 709, 791 P.2d 1285, 1288 (1990). Courts are obligated to seek an interpretation of a statute that upholds its constitutionality. State v. Newman, 108 Idaho 5, 13, 696 P.2d 856, 864 (1985). The judicial power to declare legislative action invalid upon constitutional grounds is to be exercised only in clear cases. State ex rel. Brassey v. Hanson, 81 Idaho 403, 406, 342 P.2d 706, 709 (1959).

DISCUSSION

I.

HB 391 affected amendments to portions of I.C. §§ 22-4801, -4803 and -4804 and added an entirely new section, I.C. § 22-4803A. The plaintiffs' motion dated April 30, 2003, challenged the constitutionality of HB 391 in several respects.

In asserting their challenge to the statute, the plaintiffs contended that the immunity conferred by I.C. § 22-4803A(6) to the grass farmers who burn their fields results in a taking of private property without the payment of compensation in violation of federal and state constitutional provisions. The statute *642 at issue provides in relevant part: "Crop residue burning conducted in accordance with section 22-4803, Idaho Code, shall not constitute a private or public nuisance or constitute a trespass." The district court determined that I.C. § 22-4803A(6) is unconstitutional because it takes property without prior compensation in violation of the Fifth Amendment to the federal Constitution.

The just compensation clause of the Fifth Amendment of the United States Constitution provides that no person shall "be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation." The Idaho Constitution also guarantees its citizens the right of due process if private property is taken for a public use, pursuant to Article I, § 13, and provides for just compensation for such a taking, pursuant to Article I, § 14. The question this Court must answer, then, is whether the grant of immunity to the grass farmers can be deemed a "taking" from the plaintiffs. In other words, have the plaintiffs been deprived, by the statute, of their common law right to bring a nuisance action and/or a trespass action, without remuneration.

Idaho case law has defined "trespass" to apply to the wrongful interference with the right of exclusive possession of real property, while the tort of private "nuisance" applies to the wrongful interference with the use and enjoyment of real property. Mock v. Potlatch Corp., 786 F.Supp. 1545 (D.Idaho 1992). See also Carpenter v. Double R Cattle Co., Inc., 105 Idaho 320, 669 P.2d 643 (Ct.App. 1983) ("But where an invasion of property is merely incidental to the use of adjoining property, and does not physically interfere with possession of the property invaded, it generally has been classified as a nuisance rather than a trespass."); I.C. § 52-101 (defining nuisance as "anything which is injurious to health [ ... ]or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property."). A useful differentiation between trespass and nuisance is found in a case that the district court found to be squarely on point, in which the Iowa Supreme Court noted: "Trespass comprehends an actual physical invasion by tangible matter. An invasion which constitutes a nuisance is usually by intangible substances, such as noises or odors." Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998), cert. den. sub nom, Girres v. Bormann, 525 U.S. 1172, 119 S.Ct. 1096, 143 L.Ed.2d 96 (1999), citing Ryan v. City of Emmetsburg, 232 Iowa 600, 603, 4 N.W.2d 435, 439 (1942). Thus, in the plaintiffs' situation, an action could be said to lie in nuisance and in trespass, respectively, given the invasion of the thick, oppressive smoke generated by the farmers' burning and the particulates emitted from the smoke onto the plaintiffs' land.

In Covington v. Jefferson County, 137 Idaho 777, 53 P.3d 828 (2002), the increased noises, offensive odors, dust, flies, and litter caused by the operation of the landfill near the Covingtons' property formed the basis of their claim of inverse condemnation. In their amended complaint, they alleged that their property was impaired by the operation of the landfill by an amount in excess of 25% of the property's total value, which they claimed amounted to a taking for which they were entitled to compensation. The Court analyzed the elements of the claim, including whether the Covingtons' property was invaded or appropriated to the extent of a taking, and determined as a matter of law that the Covingtons had failed to allege a taking under either the state or the federal constitution. Id. at 780, 53 P.3d at 831.

According to the Covington court, before an owner is entitled to compensation for a violation of Article I, § 14 of the Idaho Constitution, his property must be "taken" and not merely "damaged." Id. at 781, 53 P.2d at 832, citing Powell v. McKelvey, 56 Idaho 291, 307, 53 P.2d 626, 632-33 (1935). This conclusion was based on the language of the constitutional provision that contains only the word "taken" and which has not authorized the collection of damages where there is no actual physical taking of the property. Id. at 780, 53 P.3d at 831, citing Idaho-Western Ry. Co. v. Columbia Conference of Evangelical Lutheran Augustana Synod, 20 Idaho 568, 584-85, 119 P. 60, 65 (1911). The Court also held that under the United States Constitution, a physical invasion or a regulatory *643 taking, which permanently deprives the owner of "all economically beneficial uses" of his land, requires compensation. Id., citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

The case presently before the Court is not an inverse condemnation case but as in Covington, deals with a regulatory taking. Covington, 137 Idaho at 781, 53 P.3d at 832. Although a footnote in Covington indicates that "[t]his activity may constitute a nuisance claim which is not before this court," the opinion does not address whether the elimination of such a nuisance claim by act of the legislature could or could not be deemed a taking. The determination of whether or not there was a taking is a matter of law to be resolved by the trial court. Rueth v. State, 100 Idaho 203, 596 P.2d 75 (1979). The trial court should also determine the nature of the property interest so taken. Tibbs v. City of Sandpoint, 100 Idaho 667, 670, 603 P.2d 1001, 1004 (1979).

The taking asserted by the plaintiffs is not a physical taking because the plaintiffs' land is not appropriated and because the smoke complained of does not result in a loss of access or of any complete use of the property. See Hughes v. State of Idaho, 80 Idaho 286, 328 P.2d 397 (1958) (impairment of a right of access constituted a `taking of property'). See also Covington, supra (where there has been no loss of access to or denial of any use of the Covingtons' property). The taking asserted then, is in the nature of a regulatory taking, but the plaintiffs have not claimed a permanent deprivation of all economically beneficial uses of their land. As such, under the Idaho Constitution, which does not allow less than a total deprivation of use or denial of access, and under Lucas, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798, there is no taking in violation of the state or the federal constitution. See also Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, et al., 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (holding no categorical taking had occurred because the regulations had only a temporary impact on the petitioners' fee interest in the properties); cf. Renninger v. State, et al., 70 Idaho 170, 213 P.2d 911 (1950) (a taking requiring just compensation occurs when the state inflicts permanent and irreparable injury on land).

The district court, in analyzing the extent of the taking, concluded that "[a]ny destruction, interruption, or deprivation by the common, usual and ordinary use of property is by the weight of authority a taking of one's property in violation of the constitutional guaranty." Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 231, 101 P. 81, 86 (1908), as cited in Hughes v. State, 80 Idaho 286, 294, 328 P.2d 397, 401 (1958). As noted above, the destruction of access and deprivation of the use of property may be compensable, but the mere interruption of the use of one's property, as it is less than a permanent (complete) deprivation, does not mandate compensation. This Idaho authority relied upon by the district court has since been overruled by the Supreme Court's interpretation of the scope of a taking. Covington, supra.

The district court also relied on Renninger v. State, 70 Idaho 170, 213 P.2d 911 (1950), for the proposition that just compensation is warranted even when the taking is intermittent. This proposition is derived from cases cited in Renninger holding that where a structure causes `permanent liability to intermittent but inevitably recurring overflows' it is taking. Id., citing Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608 (1924). The physical structure in Sanguinetti was a dam, and the servitude created by reason of the intermittent overflow was held to be a partial taking. See id. In Renninger, the structure that led to injury to the land was a bridge—distinguishing it from the smoke created by the field burning in the case at hand.

Another proposition cited by the district court, which is not the holding of Renninger, is a quote from Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 80 U.S. 166, 20 L.Ed. 557 (1871):

where real estate is actually invaded by superinduced additions of water, earth, sand or other material ... so as to effectually destroy or impair its usefulness, it is a *644 taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle.

Id. at 181, 20 L.Ed. at 561. Rather, in Renninger, where the plaintiff sought to recover damages in inverse condemnation for the injury caused by the bridge built by the State, the Court held that when the state inflicts permanent and irreparable injury on the land without making any compensation, there is a violation of Article I, § 14 of the Idaho Constitution. The district court's reading of Renninger is inaccurate.

Next, the district court concluded that the right to maintain a nuisance is an easement, citing the RESTATEMENT OF PROPERTY § 451, at 2912 (1944), which provides: "An affirmative easement entitles the owner thereof to use the land subject to the easement by doing acts which, were it not for the easement, he would not be privileged to do." As explained by the comments to § 451:

In many cases, the use an owner of an affirmative easement is entitled to make enables him to intrude upon the land subject to the easement in ways which, were it not for the easement, would make him a trespasser upon the land. On the other hand, it may entitle him to do acts on his own land which, were it not for the easement, would constitute a nuisance."

Id. cmt. (1944). Idaho, however, has not adopted the Restatement; moreover, in the case before the Court, the smoke created by the burning of the fields is the "nuisance or trespass" immunized by the statute, I.C. § 22-4803A(6). This immunity thus entitles the grass farmers to invade the property of the plaintiffs' with the smoke from their burning fields, while preventing the plaintiff landowners from full possession, use, and quiet enjoyment of their land and denying them a remedy from the invasion from the farmers' smoke.

The district court followed the reasoning of the court in Bormann, v. Board of Supervisors. In Bormann, the Iowa Supreme Court recalled long-standing law that the right to maintain a nuisance is an easement, 584 N.W.2d at 315-16, citing Churchill v. Burlington Water Co., 94 Iowa 89, 62 N.W. 646, 647 (Iowa 1895), which holding is consistent with the Restatement of Property § 451. The court characterized the nuisance immunity provision in section 352.11(1)(a) of the Iowa Code as creating an easement in the property affected by the nuisance (the servient tenement) in favor of the applicants' land (the dominant tenement). Id. at 316. Concluding that easements are property interests subject to the just compensation requirements of the Iowa and the Federal Constitutions, the court ruled that the approval of the application for an agricultural area pursuant to 352.11(1)(a) conferred immunity, which resulted in the Board's taking of easements in the neighbors' properties for the benefit of the applicants. Id. at 321. The court concluded that the legislature had exceeded its authority by authorizing the use of property in such a way as to infringe on the rights of others by allowing the creation of a nuisance without the payment of compensation, compelling the court to hold "that portion of Iowa Code section 352.11(1)(a) that provides for immunity against nuisances unconstitutional and without any force and effect." Id. at 321-322.

There is no direct authority in Idaho holding that the right to maintain a nuisance is an easement. In a case arising out of the mooring of a houseboat on Lake Coeur d'Alene that was open, notorious, continuous, uninterrupted and with knowledge of but without permission of the littoral owners, the Court held that the houseboat owners had prescribed part of the littoral rights and acquired an easement in gross as against the littoral owners. West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973). In an action to enjoin the maintenance of a sign on a state highway right-of-way, the Court referred to a California case involving an alleged obstruction or nuisance on a highway in the form of a shed erected on a right-of-way, which held: "Where the sole question is whether the maintenance of the structure or obstruction is inconsistent with the full enjoyment of the right of way by the public, the owner of the fee is deemed to possess no greater rights than those who are strangers to the title." *645 State ex rel. Burns v. Kelly, 89 Idaho 139, 146, 403 P.2d 566 (1965).

The challenge in Bormann was one of inverse condemnation by the landowners when the Board of Supervisors failed to seek condemnation in court. 584 N.W.2d at 311-12. The landowners claimed an invasion of their property by the Board's approval of an application for an agricultural area designation, the effect of which was an immediate interference with the plaintiffs' enjoyment and use of their land and a corresponding, measurable loss of the property's value. The Bormann court found historical support for allowing compensation for interferences short of a physical taking or touching of the land in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)(statute that was an attempt to condemn property and deny the owner coal company the occupancy and right to mine his property viewed as a taking of an interest without any physical intrusion) and Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914) (recognizing the taking of a property interest or right to be free from `special and peculiar' governmental interference with enjoyment and eliminating the requirement of a physical taking or touching). The Bormann court looked to more recent United States Supreme Court cases drawing a distinction between per se takings as outlined in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), and all other cases involving regulatory takings, which are to be examined on a case-by-case basis, calling for a balancing test that is one of reasonableness,^[2] to determine at which point the exercise of police power becomes a taking. Bormann, 584 N.W.2d at 316-17, citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648 (1978).

The district court in deciding whether the farmers' grass burning effected a taking also relied on Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914), as cited in Bormann, 584 N.W.2d at 319, which awarded compensation for the gases and smoke emitted from engines in the tunnel, which constituted "special and peculiar" damage resulting in diminution of the value of the plaintiff's property. Richards, 233 U.S. at 557, 34 S.Ct. at 658, 58 L.Ed. at 1093. The grass farmers correctly argue here, that the plaintiffs have not alleged any "special and peculiar" damage so as to bring themselves within the scope of a private nuisance as contemplated by Richards, but only such damages as naturally and unavoidably result from the field burning and are shared generally by property owners whose lands lie within the range of the inconveniences necessarily incident to proximity to the fields being burned.

We reiterate that Idaho has not recognized the right to maintain a nuisance as an easement, and we decline the plaintiffs' invitation to adopt the Restatement of Property § 451 as the law in Idaho. See Diamond v. Farmers Group, Inc., 119 Idaho 146, 804 P.2d 319 (1990) ("[T]his Court has consistently displayed its preference for selectively examining various sections and comments from the Restatement, and thereafter adopting, citing favorably, or rejecting the provision, as the occasion warrants"). Further, we decline to hold that the nuisance immunity provision of I.C. § 22-4803A(6) creates an easement in favor of the grass farmers.

The grass farmers argue that the plaintiffs have failed to identify Idaho authority for the proposition that the Legislature is foreclosed from abolishing nuisance or trespass causes of action that have not yet accrued. Article XXI, § 2 of the Idaho Constitution provides that the legislature has the power to modify or repeal common law causes of action. It is well established that "it is the province of the Legislature, and not the court, to modify the rules of the common law." Moon v. Bullock, 65 Idaho 594, 607, 151 P.2d 765, 771 (1944). The Court has held that the Legislature can abolish common law causes of action entirely or impose statutes *646