John C. ARP and Mildred K. Arp, as Trustees for the Use and Benefit of John C. Arp and Mildred K. Arp, husband and wife, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).
No. 4770.
Supreme Court of Wyoming.
Aug. 12, 1977.
568 P.2d 888
Appellants seek reversal of a judgment denying them damages for injuries sustained during an altercation in a bar. Their notice of appeal was not timely, and we must dismiss this appeal by virtue of our rules and prior decisions.
The judgment and decree herein were filed on February 5, 1976; motions for new trial and to alter or amend judgment also were filed that day. According to
Appellees have moved for an award of costs and attorney‘s fees on appeal. Because this is proper only in aggravated cases we hesitate to impose such penalties, Keller v. Anderson, Wyo., 554 P.2d 1253. Ordinarily this might be determined by an examination of appellants’ presentation in determining whether it would be proper to make such award. However, because appellees herein failed to raise or argue the dispositive issue in the appeal, i. e., timeliness of the notice of appeal, we will not apply this practice herein. Appellees could have saved considerable time for themselves and for the judicial system if, instead of pursuing a response to the appeal on issues which we cannot reach, they would have asserted this crucial jurisdictional issue. Appellees’ expenses and attorney‘s fees would have been demonstrably less had this been called to the court‘s attention immediately upon the filing of this defective notice. The motion for costs, attorney‘s fees, and expenses is denied.
Appeal dismissed.
V. Frank Mendicino, Atty. Gen., Glenn A. Williams, Senior Asst. Atty. Gen., Daniel E. White, Asst. Atty. Gen., Cheyenne, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
McCLINTOCK, Justice.
John C. Arp and Mildred K. Arp, Trustees (Arp), appeal from Judgment and Decree Granting Possession, entered by the district court of Laramie, County, Wyoming, in a condemnation proceeding brought by the State Highway Commission of Wyoming (Commission). The proceeding was brought to obtain title to and possession of certain land belonging to Arp, situated in the City of Cheyenne, Wyoming, it being the apparent intention of the Commission to use these lands as part of a limited-access highway facility connecting Interstate Highway 80 with downtown Cheyenne. Arp contested the necessity and good faith of the taking and now seeks review of the adverse ruling without completion of the proceeding. Following the docketing of this appeal and the filing of briefs upon the merits of the case the Commission filed motion to dismiss upon the ground that there was no appealable order. We permitted the matter to be orally argued on all questions but after consideration are convinced that the order herein entered was not a final order within the meaning of our rule and the previous decisions of this court.
Our present
“Rule 72. General Provisions. (a) ‘Final Order’ Defined. A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right, made in a special proceeding, or
upon a summary application in an action, after judgment; * * *”1
Two precedents of this court clearly hold that an order for taking in a condemnation proceeding is not an appealable order: Hardendorf v. Board of County Commissioners of Fremont County, 73 Wyo. 1, 267 P.2d 747 (1954), and Big Horn Coal Co., Inc. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172 (1950). The only question concerning the views therein expressed is that neither case specifically refers to
As indicated in Big Horn Coal Co., Inc., supra, 67 Wyo. at 310, 224 P.2d at 176, this court was familiar with the treatment given by the Supreme Court of Ohio to the question of whether an order determining the preliminary questions involved in an eminent-domain proceeding (including the necessity) was a final order, and refers at some length to Ornstein v. Chesapeake & O. Ry. Co., 123 Ohio St. 260, 174 N.E. 772 (1931), which in turn referred to the earlier Ohio case of Pittsburgh, Cleveland & Toledo Rd. Co. v. Tod, 72 Ohio St. 156, 74 N.E. 172, in which it had been held that “determination of preliminary questions by the probate judge is not a final judgment, any more than is an order sustaining or overruling a demurrer.” In the later case constitutional questions were raised as to a procedure that permitted the condemnor to appeal from an order denying the right to take by condemnation, while at the same time refusing to permit the condemnee to appeal from an order for such condemnation and whether this was a denial of equal protection of law. The claim was rejected by the Ohio court and appeal from this decision to the Supreme Court of the United States was dismissed for want of jurisdiction in Ornstein v. Chesapeake & Ohio Ry. Co., 284 U.S. 572, 52 S.Ct. 14, 76 L.Ed. 497. Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 255-257, 37 S.Ct. 295, 61 L.Ed. 702, an eminent-domain case where it was sought to review ruling of a state supreme court that a plaintiff had a right to exercise the power of eminent domain, was cited and it was there said that the judgment was not a final judgment. We find this to be generally the law2 and while we appreciate that
there may be a distinction between a final judgment and a final order, we think that this court was not concerned with the distinction in Big Horn Coal Co. or Hardendorf.
Just as it is unfortunate that this court did not discuss
Arguments pro and con can be made, but the possibility that the condemnor may occupy and use the premises while its right to take remains in dispute should not require us to reconsider what is the clearly established rule of this jurisdiction.
The motion to dismiss the appeal is sustained.
ROSE, Justice, specially concurring.
While I concur in the dismissal of this appeal, persuaded by the authorities and reasoning of the majority opinion, I am troubled by the implications thereof. I am hopeful that district courts will remain constantly concerned with the probable and practical mootness that goes with the condemnor taking and imposing the improvement upon the property before the owners’ appellate rights have ripened. When the highway has been constructed, it is academic to still be litigating the taking—but this is the state of the law as I view it—inequitable as it may be.
As stated in the majority opinion, there is a “possibility that the condemnor may occupy and use the premises while its right to take remains in dispute.” In the present case, this theoretically means that a limited-access highway facility could be constructed over appellants’ land before they have an opportunity to have judicial review of the necessity or authority for the taking. By the time compensation is awarded, and thus an appealable order entered, it is conceivable that appellants’ challenge in this respect may have become meaningless. Once constructed a highway is difficult to move.
I do not doubt the authority of the district court to enter an order granting possession to a condemnor prior to determination of damages. The statutes and rules of this state contemplate such a procedure. See
With the preceding observations in mind, I concur in the dismissal of this appeal.
RAPER, Justice.
I dissent.
I am convinced that the majority has compounded a mistake made in two longstanding cases, the second adopting the boner made in the first. We now have three of the same ilk. At the outset, I must freely concede and wholeheartedly endorse the principle of stare decisis, that is to say, keeping to the decisions, because of its importance in maintaining a stability of jurisprudence and establishing a predictability upon which the trial judiciary, bar and public can rely. Without the tool of precedent, judges and lawyers would be helpless and the state of jurisprudence would be a mess. On the other hand, the principle does not have an unyielding rigidity, requiring a court to perpetuate an inherent error though on its face, an opinion and decision has the appearance of reliability. When we dissect a case with the scalpel of close scrutiny and discover it cancerous, we should not close the incision and let it grow if a cure is possible. It is our duty to set aside a case or line of cases founded on failure to consider a controlling statute or court rule to the contrary. Courts are not infallible and as proponents of honesty, we should be the first to admit our mistakes, when found. We should not be stopped dead in the tracks of our predecessors.
The case before us is an ideal one in which to correct an error because it will permit progress to proceed, close an important phase of the case before us and not leave a question dangling, undecided. I can best explain by presenting all the facts and questions raised in this appeal, now aborted by the majority.
The court in this appeal from a final order, interlocutory as far as the whole case is concerned, in a condemnation action, was presented two questions: (1) Can the landowner appeal from the district court‘s intermediate ruling that a necessity for the taking had been established and the State was entitled to immediate possession before adjudication of just compensation? and (2) If there is an appealable order: (a) was the State premature in filing the condemnation action because it had not obtained a right-of-way for crossing railroad tracks? (b) was approval of the City of Cheyenne necessary before proceeding? (c) must the City of Cheyenne first vacate streets which must be closed before the State may proceed in condemnation? (d) did the State act arbitrarily and in abuse of its power to condemn land for highway purposes?
I would hold that the interlocutory appeal in this case was proper and affirm the district court on the merits.
As a part of the federal system of interstate highways, Interstate Highway 80 traverses the State of Wyoming and passes by and through the City of Cheyenne. The Wyoming State Highway Commission under its powers determined to take certain lands within the City for a limited access facility highway, known as the Cheyenne Interstate Spur, which will connect the Interstate 80 Central Avenue interchange with downtown Cheyenne at 16th Street. Part of lands necessary are owned by the defendants. Upon the filing of a complaint in condemnation by the plaintiff, State Highway Commission, the defendant landowners filed an answer contesting the necessity for the taking on the ground that the only purpose of the project was to obtain federal funds to build a railroad viaduct, that the State had no agreement with the Union Pacific Railroad to cross its tracks, the City of Cheyenne had not ap-
The Commission applied to the court for immediate possession. A hearing was held and the trial judge made findings of fact and conclusions of law which, after preliminary and introductory provisions, declared the project an integral part of and necessary to the Interstate Highway system and that the defendants’ land must be taken in order to construct the project. The district court also found that the project conformed to all necessary standards, both State and Federal, and that the plaintiff had performed all required conditions precedent. A judgment and decree granting possession was made and entered and the State deposited with the clerk of the district court the sum of $50,085.00, as estimated, just compensation required by the decree. The money has been available ever since for withdrawal by defendants.
Notice of appeal was given. Further proceedings, as provided by
INTERLOCUTORY APPEAL
Hardendorf v. Board of County Commissioners of Fremont County, 1954, 73 Wyo. 1, 267 P.2d 747, citing Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., 1950, 67 Wyo. 300, 224 P.2d 172, relied upon by the majority, held that any order in a condemnation case short of the final adjudication of just compensation was not appealable. In the eagerness of this court, as then constituted, to promote a most desirable policy of avoiding piecemeal appeals, it completely ignored and did not even mention the statute, now
I was quite surprised to find that in Big Horn Coal and Hardendorf, supra, no reference whatsoever was made to
“Until the legislature shall otherwise provide, this code shall not affect proceedings to assess damages for private property taken for public uses, nor the proceedings under the statutes for the settlement of estates of deceased persons, nor proceedings under statutes relating to apprentices, bastardy, insolvent debtors, or any special statutory remedy not heretofore obtained by action; but such pro-
ceedings may be prosecuted under the code, whenever it is applicable.”
But even a further statutory section should have been then considered,
“Where, by general or special statute, a civil action is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the legislature shall otherwise provide; but in all such cases, as far as it may be consistent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates, by name or otherwise, the kind of action, but does not prescribe the mode of proceeding therein, such action shall be commenced and prosecuted in conformity to this code; where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly.”
It is elementary law that applicable statutes be considered.
How can we in good conscience adopt a rule and then interpret it to mean something other than what it so clearly says? This is in complete conflict with the settled doctrine utilized when we view a statute. This court has often, with soundness of reason, said that where the language of a statute is plain, unambiguous and conveys a clear and definite meaning, there is no occasion and the court has no right to look for and impose another meaning. Wyoming State Treasurer v. City of Casper, Wyo. 1976, 551 P.2d 687; Statutes, West‘s Wyoming Digest. Or as so well said in Lo Sasso v. Braun, Wyo. 1963, 386 P.2d 630, courts will not enlarge, stretch, expand or extend a statute to matters not falling within its express provision. There is no justification for this court to view its own rules in a light different than acts of the legislature.
We cannot blindly say that the taking of a citizen‘s property in condemnation against his will, does not affect “a substantial right.” While I would not decide this case on any constitutional ground, the Wyoming Constitution, as does the Constitution of the United States, places emphasis on the protection of property. Section 6, Article I, Wyoming Constitution: “No person shall be deprived of * * * property without due process of law.” (Emphasis added.) Section 8, Article I, Wyoming Constitution: “All courts shall be open and every person for an injury done to * * * property shall have justice administered without sale, denial or delay. * * *” (Emphasis added.) Section 29, Article I, Wyoming Constitution: “No distinction shall ever be made by law between resident aliens and citizens as to the possession, taxation, enjoyment and descent of property.” (Emphasis added.) More specifically related to this case is § 33, Article I, Wyoming Constitution: “Private property shall not be taken or damaged for public or private use without just compensation.” (Emphasis added.)
A ruling on the right to take represents the difference between the loss of property and retention. We consider that phase to be vital to the interests of the owner and the public as well. It is basic that an unauthorized project not be pursued. Whether the claim of the landowner has substance or not is immaterial but his right to make the claim is substantial. The right to take is a determination of substance specially required of the trial judge when the question is raised and one we must also make when properly presented.
Nor is there any question but what a proceeding in the exercise of eminent domain is a special proceeding couched with many variations from the usual civil action—special enough that this court has adopted a lengthy, detailed special rule to govern its procedure.
The language of
Justice Blume in Donovan v. Owen, 1935, 52 Wyo. 479, 76 P.2d 339, in dealing with the authority of an irrigation district to construct a project, related contract and issuance of bonds, the particular problem being whether a judge could be disqualified by affidavit to sit in a special proceeding when the statute in that respect provided that either party in a civil action could by affidavit of bias or prejudice require a presiding judge to step down and require the calling of another to preside. At that time there existed § 89-4827, Wyo.Rev.St. 1931, heretofore cited and set out as
This court, by the adoption of
I will not attempt to generally define “special proceeding” as applied to cases other than those in eminent domain. Research discloses many variations.2 I would hold that an eminent domain or condemnation action instituted for the purpose of taking lands for public purposes is a special proceeding in that it utilizes distinctive procedures, not found in the ordinary civil action for judicial relief and requires extraordinary handling to accomplish its objective. It is a special proceeding historically in this state carried forward through adoption of
Even looking at the matter without consideration of the important fact that we have a rule permitting an appeal from the final order determining the right to take, 6 Nichols on Eminent Domain, 3d Ed., § 26.32, pp. 26-247 and 26-248, explains very practical reasons for allowing the appeal:
“The tendency of modern jurisprudence is to extend the right of appeal in interlocutory matters when the public interests require it (that is, when the economic loss to the public by compelling the appellate courts to waste their time over points of law which may never be necessary to a final decision of a litigated case is less than will be caused by compelling trial courts and parties litigant to waste their time over the trial of issues of fact which may be rendered nugatory by an adverse decision of the appellate court on points of law), public policy requires that the appellate courts must run the risk of wasting their time. The long drawn out trial of a land damage case is a serious economic waste, if, after the verdict is reached, the appellate court decides that the petitioner had no right to condemn the land in question at all; and consequently it is held in some jurisdictions that an order of condemnation may be appealed from at once, and the questions of law upon which the validity of the taking depends finally determined before the trial upon the measure of compensa-
tion. * * *” (See footnote 87, to text, for courts following that rule.)
Since
Through
If this court is to dogmatically turn its head away from an apparent rule and pretend like it does not exist, then it had better take proper steps to formally rescind and remove it from Volume 2A, Wyoming Statutes, 1957.
THE MERITS
I would, after allowing the appeal, dispose of the merits and have done with it.
I am not aware of any requirement that the State Highway Commission acquire land and rights in land in any particular sequence nor has the court been cited to any such authority. Such perfunctory arguments should be dispatched summarily. Clouser v. Spaniol Ford, Inc., Wyo.1974, 522 P.2d 1360. If the State is unable to negotiate a right-of-way over the tracks of the Union Pacific Railroad, it need only proceed in condemnation under its right of eminent domain in that direction as well. When many landowners are involved, the State may proceed with necessary acquisitions in the manner within its discretion most expedient.
Defendants contend that there should have been an approval from the City of Cheyenne pursuant to
With respect to appellant‘s contention of arbitrariness and abuse of power, it was stated in Woolley v. State Highway Commission, supra:
“* * * that is not to say, of course, that the courts are without inherent power to inquire into such matters as usurpation of power, fraud or conduct tantamount to fraud; nor can it be said that under our procedural statutes a landowner, where issues are properly joined, may not obtain the aid of a court to inquire into the use of and the necessity for the lands sought to be appropriated. * * * But again the court‘s authority is not unlimited. If the determination of the commission is within its authority, has some reasonable basis, and is not arbitrary, capricious or discriminatory, the decision of the commission must stand. Colorado Interstate Gas Co. v. Uinta Development Co., Wyo., 364 P.2d 655, 657; State ex rel. Sharp v. 0.62033 Acres of Land in Christiana Hundred, New Castle County, 10 Terry 174, 49 Del. 174, 112 A.2d 857, 859; State v. North Star Concrete Company, Parcel Channel Change, 265 Minn. 483, 122 N.W.2d 118, 121; City of Trenton v. Lenzner, 16 N.J. 465, 109 A.2d 409, 413, certiorari denied 348 U.S. 972, 75 S.Ct. 534, 99 L.Ed. 757.” (Emphasis added.)
The landowners here assert the Commission abused its power by arbitrarily designating the project an “Interstate Spur,” merely to get a larger contribution of federal funds to rebuild the present railroad viaduct, even though it deviates somewhat from normally-applied state highway standards. First, the record is barren of evidence to sustain this claim. In fact, the record is fully supportive of the conclusion that this project is in complete compliance with appropriate federal interstate highway standards. Second, I fail to see how this claim relates in any way to the necessity for the land acquisition.
The landowners further contend that the Commission abused its power by purchasing other rights-of-way for the project prior to required public hearings. Again, that claim is not substantiated by the evidence, indicating that all required public hearings were held. The timing of property acquisition rests in the sound discretion of the Commission, and bears no relationship to the necessity for appropriation.
Finally, landowners contend that the Commission abused its power by establishing the Interstate Spur as an access-controlled facility, when other interstate routes along Warren and Central Avenues are not so controlled. The Commission‘s determination in this, and all other respects, is founded on a reasonable basis and is not arbitrary, capricious or discriminatory. Its decision ought to stand.
I would have entertained the appeal and affirmed the district court. The matter would then be behind the parties, the district court and this court and the work could proceed without a pall of doubt hanging over the project.
Notes
“Rule 72. General Provisions. (a) ‘Final Order’ Defined. An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment, is a final order which may be vacated, modified or reversed, as provided in these rules.”
The only change from the statute was the substitution of the closing words, “these rules” for the statutory words, “this chapter.” The rule has been amended since its original enactment but in no way that is pertinent to the pending case. Section 3-5301, W.C.S. 1945, provides as follows:“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment, is a final order which may be vacated, modified or reversed, as provided in this chapter.”