Patrick J. Whaley and Mary L. Whaley v. Flitner Limited Partnership, a Wyoming Limited Partnership
2017 WY 59
| Wyo. | 2017Background
- Patrick and Mary Whaley own land in Big Horn County, WY that is landlocked and historically accessed over two segments of Black Mountain Road (Upper and Lower). Upper is maintained and in better condition but is seasonally closed earlier; Lower is rugged but open longer each year.
- In 2011 the Whaleys applied for a private road along Upper Black Mountain Road and gave notice to landowners along that proposed route; Eleven Bar One (owner along Lower Road) was not initially notified.
- The county board appointed viewers and appraisers after a district court remand; the viewers identified Lower Black Mountain Road as a feasible alternate route and had Eleven Bar One notified before their site visit.
- The Board adopted the viewers’ recommendation and ordered establishment of the private road along Lower Black Mountain Road, imposing reciprocal easements; the district court affirmed the route selection but struck the Board’s grant of easements; the Whaleys appealed.
- The Supreme Court reviewed whether (1) viewers/appraisers could consider an alternate route crossing landowners not named in the original application, and (2) the Board’s selection of Lower Black Mountain Road was supported by substantial evidence.
Issues
| Issue | Whaleys' Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether viewers/appraisers may consider an alternate route that crosses land of a party not named in the original application | Viewers were limited to lands identified in the Whaleys’ original notice; Eleven Bar One’s land could not lawfully be included | Statute permits notice to additional landowners and authorizes viewers to mark alternative routes and notify additional affected parties | Viewers/appraisers were authorized to consider Lower Black Mountain Road and Eleven Bar One was properly noticed before site visit |
| Whether establishing Lower Black Mountain Road as the private road was supported by substantial evidence | Lower Road is illogical, uneconomic, and unproductive; Upper Road is superior and was previously found reasonable by the district court | Lower Road is used longer each year, has historic use by local ranchers, and is overall more practical despite being rough | Substantial evidence supports the Board’s conclusion that Lower Black Mountain Road was the most reasonable and convenient route |
Key Cases Cited
- Goodman v. Voss, 248 P.3d 1120 (Wyo. 2011) (discusses applicant’s selection of route under earlier statute)
- Voss v. Albany County Commissioners, 74 P.3d 714 (Wyo. 2003) (context on private-road statutory scheme and changes)
- Mayland v. Flitner, 28 P.3d 838 (Wyo. 2001) (previous treatment of Black Mountain Road and condition evidence)
- Reidy v. Stratton Sheep Co., 135 P.3d 598 (Wyo. 2006) (discusses necessity and suitability of alternative public/Forest Service access)
- McTiernan v. Scott, 31 P.3d 749 (Wyo. 2001) (definition of substantial evidence review)
- Ferguson Ranch, Inc. v. Murray, 811 P.2d 287 (Wyo. 1991) (court will not require landowner to accept wholly illogical or uneconomic route)