*1 COMMISSION- BIG HORN COUNTY below),
ERS, (Respondent Appellant HINCKLEY, Appellee
DeVere T. below).
(Petitioner
No. 4987.
Supreme Wyoming. Court
April *2 Gish, Big County Atty., A. Horn
Robert Basin, appellant. for Hinckley, C. & Hinckley, S. Basin, Davis, W. Don- and John of Davis & nell, Worland, appellee. for RAPER, J., McCLINTOCK, Before C. ROSE, JJ., MAIER, Dis THOMAS Judge.* trict ROSE, Justice. appeal questions ability of the Commissioners, Big
appellant, Horn county to establish a com- road under the mon-law prescription doctrine of without complying provi- with the condemnation 24-60, W.S.1957, sions set forth in C.1967 provi- [now W.S.1977]1 * MAIER, assigned Judge, “(b) Payment damages; right ap- District to sit ROONEY,J., he, peal. awarded, damages who recused himself because amount of if —The Attorney State, any, as immediately paid General for person been indirectly subject persons deposited connected with the matter of or entitled thereto or county the case. delivery person the or clerk to such persons, payment shall without 24-3-118, W.S.1977, 1. Section which is the prejudice right per- person such or 24-60, W.S.1957, C.1967, provides: same as § appeal provid- sons to ed to the district court as “(a) Hearing; damages. determination of law. meeting “(c) Entry —At the next of the commis- into land.—When the road has appraisers sioners after the of the has been and the been established award has filed, may paid by been or as soon thereafter as board commissioners practicable, may highway department, the said board hear testimo- or person state ny petitions persons thereto, and consider for and deposit- remon- or entitled or against clerk, strances highway the establishment or altera- ed with the au- tion, may road, any may as the case employees be of or thorities and their contractors and any may may possession establish or alter road or refuse so take full exercise control do, board, judgment as in the of the said of the land within public good may require, case road so established. filed, damages “(d) there they prohibited; appeal. shall be no claim for Abandonment possible speedily highway shall act as in —After the de- the state partment right- matter. Said board increase or diminish has taken damages appraisers, of-way, the may allowed there shall be of the no abandonment establishing highway, make such establishmeni or alteration the event any dependent of the appeal by or conditioned of an an owner of real estate af- payment, part, thereby in whole or in fected district court from damages expenses finally awarded incurred in award commissioners, made the board of petitioners pay relation thereto for the said board shall finally road or such alteration of road. amount determined to be due. with condemna- showing comply is not regarding a set sions seeking to tion statutes W.S.1957, forth in C.1967 [now by prescription, 24-l-105(b), district W.S.1977].2 comply must court found that Board By dated November resolution provisions with these and remanded the undertook to establish proceedings, case to the Board for further by authority *3 C.1967, W.S.1957, Cum.Supp. will there must be further hold [now this ac- case, Notice of the proceedings in this but that Board W.S.1977].3 public high- “(e) of a creation or establishment of certificate.—A Recordation land certificate, county way right-of-way and the board of reference state authorized with chairman, signed by county highways its commissioners doc- under the common-law setting legal description prop- prescription forth the of the or trines of adverse erty taken shall be recorded in the office of prior subsequent to to or the enact- either clerk, county the and with like effects as if it were and indexed in like manner any If board shall resolve hereof. such ment the convey- a or of a creation establishment or of easement ance said owners to the the from upon highway right-of-way com- based the county. possession or doctrines adverse mon-law prescription, of etc., Alteration, site; “(f) survey of recor- shall, following filing it the of survey. If, upon considering dation of — plat survey required and accurate in accord- acting erwise, or the of the viewers oth- provisions with the terms section ance of county the board of commissioners statutes, proceed 24-51 of the [§ 24-3-109] road, lay any they shall decide to out or alter publication proposed for of the road with the county surveyor shall cause the to make an (3) (3) in suc- successive weeks three three cessive issues thereof, survey survey accurate necessary, if such is newspaper of official some plat in and to the same books be, any published county, such there if provided by county purpose, be such for therein, published newspaper and if no be county and the clerk shall in the same record posted three in at least such notice shall be (3) opposite plat near so that books the same concerning or to such pro- along public places the lines of the may easily ascertained road, posed shall be exclusive which notice road, proceeding platted following may inbe all notices and other location, in of the said board establishment or alteration of said order to relation to form: road, in it The board whom concern: “To all separate keep in a book a record of county commissioners county county.” all the roads of that has resolved . 24-1-105(b), the same as 2. Section which is public high- and establishment creation W.S.1957, C.1967, provides: way right-of-way the common-law “(b) Any party or de- landowner interested prescription in that the road was doctrine of any question respect siring to raise with of the land for substantially or maintained constructed necessity taking the road county) general (either the state or purposes provisions chap- under the long- (ten years or use 48, Statutes, 3, Wyoming Compiled ter article er) commencing at.in said 1945, thirty (30) filing, shall do so within running Wyoming, county, . days proposed publication after last of notice of the (here general thence described in terms petition location such terminating thereof), points courses in which the district court at. any part land district possible, petition thereof is located. The objections filed must be “All thereto days, (10) if court shall within ten writing clerk of said with the filing from and after the of said day of on the . before noon question hear and determine the such . A.D.or necessity. petition Provided when said such reference to established without will be filed, necessity showing is burden of shall objections. high- be way department. state sustained or the petition, noIf to raise the County Clerk necessity, question thirty (30) is filed within said dated.A.D. day period, “(b) cause The commissioners question presumed and the cannot later be copy to be mailed the above notice raised.” registered persons mail to all or certified 24-1-101, W.S.1977, any claiming owning 3. Section which interest lands W.S.1957, C.1967, pro- same as Supp., provides Cum. which or across lands over posed part: pub- in relevant established. to be created or lication, mailings “(a) posting notice Except, nothing . . . contained legal to all preventing and sufficient notice shall be a herein shall be construed as published, indicating 1977, Hinckley tion was 4, interest- On filed a February petition (Civil persons objections 12206), ed file No. should their for review Case appealing the December 15 decision Board’s During December October and Road 602. This No. November, survey map was made and a petition, alleged lack of notice of the prepared, showing pro- location of the pursuant hearing, December filed posed road. received actual notice Adminis- protest of the Board action and filed a with trative Procedure Act. The district court the Board on December 1976. On De- finding subsequently entered order 8, 1976, Hinckley’s appeared cember son comply Board had failed to 24- protest before the the proposed statutes; 6(b), supra, and other related apparently road and was told there would petition Hinckley’s review Civil Case hearing on December 1976—al- timely tolling No. 12206 was due to the son, though the appellee’s who also attor- *4 action; intervening effect of the mandamus ney appeal, receiving on denied notice of that Civil Case No. 12181 should be dis- hearing. the Board; with prejudice missed to the and 14, Hinckley On petition December filed a that No. should Case be remanded for (Civil hearing 12181), Case administrative consistent with requesting No. that the 24-6(b) 24-60, supra. §§ be required Board to show necessity in ac- 24-6(b), cordance with supra. § Notwith- following questions The Board asks the standing petition, notice of this the Board appeal: on proceeded to hold the 15 hearing December 1. Is the a hear- Board hold by prescription establish the road in ing pursuant statutory con- question, denominated Road No. provisions it demnation seeks to 7, 1977, 602. January Hinckley On applied prescrip- a establish road received, for and tion? parte hearing, after an ex mandamus, ordering writ the Board to 2. Did the court in district err dismiss- nullify ing preju- its Civil No. with proceedings. December 15 Case Prior dice as to the compliance the Board? Board’s the writ of mandamus, sought 3. Did the jurisdic- Board a vacation of district court have Hinckley’s petition writ. tion over Concluding that re- had an in view Civil No. 12206? adequate Case remedy at law—evidenced by the petition that previously been filed —the Hinckley argues that this court has no court, 31, 1977, district January on vacated jurisdiction appeal, over this the writ and pro- ordered December 15 jurisdiction Board had no establish a ceedings reinstated until such time as the allegedly road because defec- matter fully litigated. could be tive notice. persons owning claiming any (10) days lands or inter- doned. Within ten after the notice proposed office, in appeal est lands over which the road is in his filed to be created or established. No viewers or clerk shall and file make out in office of appraisers appointed, court, be nor county, shall shall the clerk of the district in his damage heard, transcript office, claims objections papers be considered on in his file the sole to be heard proceedings board and the in relation board against directed the creation or es- pro- to such creation and establishment. The tablishment of such under ceedings appeal governed on common-law doctrines of adverse Wyoming Administrative Procedure Act prescription. Any objector may appeal 9-4-115], appeal 9-4-101 to [§§ If the from the final decision the board of upheld appellant shall be reimbursed commissioners district court of the the ing for all reasonable of assert- costs county in which the land is situated. Notice [Emphasis supplied] his claim.” All appeal of such must be made portions 24-1-101, supra, those do § thirty (30) days
clerk within after such deci- appear legis- not in italics were added board, sion has been made or such S.L.1973, in lature ch. 1.§ claim shall be deemed to have been aban- 24-6(b) 24-60 and Turning Hinckley’s jurisdic ROLE OF first to SECTIONS contentions, previously this court de tional in order to district court found Hinckley’s nied motion to dismiss. This mo by prescription the establish a tion, here, premised on which is renewed procedures must outlined follow the court’s belief that the district order —re supra, supra, in to which manding case to the Board for a hear finding, applies. The and the effect of ing on and other issues —is not a proceedings, resultant further remand for 1.05, W.R.A.P., final order under Rule require was to to re-commence the Board holding Arp Highway our v. State Com County Road proceedings No. to establish mission, (1977). Wyo., 567 P.2d 602—but this Board would be re- time the hold, now previously, quired determined set forth in procedures to follow the set and those forth the district order affects a court’s substan addition, supra. accord- right prevents judg tial of the Board and 24-6(b), supra, ance with the Board would ment in the Board’s favor of establishment subject proceeding court on a district by prescription under § necessity. question therefore, supra. is, a final appealable 1.05(1), order Rule W.R.A.P. in order estab- argues The Board it by prescription need lish Hinckley’s jurisdictional con second set only comply procedures forth with the premised tention is on the belief that it and that would jurisdiction Board did not have Board to require anomalous to show *5 County published Road No. 602 because 24-6(b), supra. necessity under § “points notice failed to contain a and A.
courses”
Section 24-60
description
proposed
of the
road as
24-1-101(a),
supra. Hinckley
§
Hinckley’s and the district
The basis for
relies,
position,
in support of this
on our
contained in our
position
language
court’s
Schuett,
Ruby
Wyo.,
decision
v.
P.2d
360
County
decision in
Commissioners
Board
(1961).
Ruby
170
In
we held that a
White, Wyo.,
of Carbon
547 P.2d
County v.
jurisdiction
pub
board has
to
no
establish a
(1976).
case,
1195
Board
to
In that
sued
lic road
where
by condemnation
there has
enjoin
closing a road over
from
Whites
published
survey
been no
made and the
Whites, claiming,
lands owned
inter
by the
points
notice
to describe the
fails
alia,
acquired
to
County
had
title
proposed
courses
road.
of the
This court
County,
The
to
prescription.
the road
held, however,
has also
that where
claim,
there
use
support
public
this
asserted
file,
map
proposed
road on
a defect
years,
for 10
other
maintenance
proposed
in the
description
including
filing
road was
actions
the Board
irregularity,
a mere
not fatal to the Board’s
plat.
The facts disclosed
jurisdiction.
proceedings
of County
Harris v. Board
condemnation
had commenced
Commissioners,
120,
in 1960 and
Wyo.
proposed
301
382
to
pertinent
76
P.2d
case,
(1956).
1963,
completed
pro-
present
undisputed
never
In the
24-60, supra.
ceedings in
map
§
evidence
that a
was made in Novem
accordance
ber, 1976,
this behavior
We refused
“countenance
Big
Horn
to
and was available
any right in this
granting
as
County
public inspection.
Clerk’s Office
1198. In the
.
P.2d at
. .” 547
map
to this
made reference
conclusion, we
14,
process
coming
survey original
petition.
his
December
following
made the
statement:
preferable
provide
While it
might be
first
points-and-eourses description,
appellant’s
posi-
or to incor
“The answer to
Edwards,
Wyo.
72
porate
map
proposed
the file
tion lies in Nixon
287,
Rocky Mountain
jurisdiction
we
264
hold that
the Board had
P.2d
Com’rs
proceed
Sheep Co. v. Board
to establish
Road No. 602
11,
581 2, holding 24-6(b), supra refers The last-mentioned obviates footnote Section provi only taking to a of land “under the necessity to Board’s second is- discuss the 48, 3, chapter article sions of sue. 9 Statutes, 48, Chapter ar Compiled 1945.” 3, W.C.S.1945, comprised of 48- ticle is §§ JURISDICTION 48-343, At the time that 301 W.S.1945. enacted, 24-6(b), supra, was the statutes § Although jurisdic- we normally discuss county’s as to a referred were silent questions prior reaching the merits tional by prescript establishment of a disposition in a appeal, this case of acquisition only
ion.10 The of con mode of proper analysis was merits templated by highway was these statutes jurisdictional issue. the Board’s condemnation-type proceed the traditional (see, 48-316, ing W.C.S.1945), except § Hinckley The Board contends that where roads could be established consent comply appeal provisions failed to (see, adjustment damages of § (1) supra, he: contained because § W.C.S.1945). is, therefore, There no indica appeal a with the failed to file notice of legislative of a intent to that a require tion clerk; (2) timely failed to file prove 24-6(b), a § —under petition for that filed. We review was supra establishment of a —for the merit are unable ascertain by prescription. peti part first of contention since this Again, this conclusion is inevita 12206) No. (Civil review Case bears tion for ble, possession since the law of adverse Big Horn certificate of service on the prescription contemplate does not a show County Clerk. person’s ing property need for the the Board’s conten- aspect The second Rasch, adversely possessed. Stryker In v. 34, 570, peti- 576, rehearing premised is on the belief that Wyo. 57 112 P.2d tion Wyo, 52, (1941), 12206) we (Civil denied 57 113 P.2d was review Case No. tion for Webb, quoted with v. approval from Blalock day The Board calculates one late. filed 769, 10 747, 748, 190 Ga. to the effect S.E.2d days of 28 between period there was a that purpose that law of manifest on and the date December 15 decision its possession adverse is to establish title complied with the writ the Board good against legal formerly title held mandamus, nullify it to this deci- ordering others, ad but forfeited reason of Then, that there the Board calculates sion. possession. this verse In order to realize days between were three additional purpose, possessor only an adverse need vacated, “reinstating” writ time the was “actual, prove open, that his decision, the time December notorious, exclusive, and for the continuous 4, February Hinckley’s petition was filed on hostile, statutory period, under color in these days 1977. Board adds right.” City title or claim Rock time and concludes separate periods, 908, Sturm, Wyo. 494, Springs 273 P. thirty- Hinckley petition filed on the his (1929). find no We could case authori after Board’s decision. day first us, ty, requires and none was cited so, writ doing the Board assumes necessity in showing of addition to a show but appeal, the time for mandamus tolls ing of these elements. hold that does tolling when eliminated effect that the by prescrip order 30-day with a new tion, provide not subject provi not appeal. 24-6(b), within which to supra. sions contained 27-806(7), 24-6(b), W.C.S.1945, original- virtue of It is noted 9. linkage enacted as an fn. is no indication amendment there ly supra S.L.1953, predecessor W.C.S.1945. Ch. between section supra. 10. The land had the power acquire establishing prescription purpose *9 12.04, precedent hearing Rule was condition to Rules of on Appellate Procedure, provides if a possession. elements of adverse Our rehearing case, is held in an administrative today decision belief holds this was 30-day period then appeal does not com erroneous, only clarifying but after one of rehearing mence until on decision previous our decisions. written, given parties through to cer This to district court case is remanded words, tified notice. In other when an entry directing the for of an order Board to agency renders a the full second decision hearing, provide a with accordance decision, appeal period runs from the second parties supra, all with to interested go appealing party and an need not back objections pro- to the establishment of the days expended and calculate the between posed by prescription. the first decision and the date which on rehearing granted was to how determine THOMAS, J., specially concurring filed a many days appeal he to has left after the opinion. general second decision. same rule applicable post-trial motion decisions in THOMAS, Justice, concurring. specially 2.01, civil and criminal cases. Rule W.R. agree I result of rationale A.P. It has also held been that where an opinion for the case. I majority in this can agency administrative vacates decision go step even a an further and find affirma and enters the decision subsequently, same legislative tive intention to eliminate for taking appeal begins time to run requirement necessity to demonstrate in a from the date of the later decision. 73 proceeding for the creation establish C.J.S. Public Administrative Bodies and public highway right-of-way ment of a (1951). Procedure at 541 We find all possession or prescrip based adverse analogous of these situations to the circum language 24-1(b), tion. In the W.S. stances herein. It makes little difference amended, (now Cum.Supp. as whether the voluntarily vacated its 24-1-101(d), W.S.1977) provid it is where decision, own or whether a court ordered it ed, “Only portion county highways subsequent do so—the entry same ** * actually constructed or substan begins appeal period decision anew. tially county maintained and trav- that Hinckley’s petition hold for review general elled and used timely was filed. * * * (10) years longer ten might be that all legal said presumed public highways to be maneuvering prior Hinckley’s February lawfully established as such official au filing wrong, thereby vitiating right his thority” (emphasis supplied), can I find a pursue procedures the appropriate some legislative presumption conclusive that ne days after the Board’s initial decision. cessity has been demonstrated. might true, were it not for the Why requires county legislature language in Board of Commission showing necessity to sustain the burden of White, ers v. supra Hinckley which —on sought when road is be estab- a right rely the effect that § —to impose not lished condemnation does thereby supra, provid requirement the board of ed alternate modes proceeding in an at a road tempt commissioners concludes challenge the establishment of a prescription is an the doctrine prescription. Since court, itself, anomaly use for me. Travel and trap set have into general Hinckley fell, and even construction it would inappropri penalize Hinckley ate to can as present for and maintenance much his manner of proceeding. It is because of of neces- also this reason that convenience because objections sity. entitled to have It should be easier for his not heard by the use as a obviously private property Board. He to dedicate believed that a challenge does not in- of the road road when *10 pay than it is to so tend to land property when the
dedicate agree Yet for the land. I pay present legis- product this is the
lative scheme. legislature be that some future
will choose to re-evaluate feature requirement A
these statutes. similar prop fair
both instances would be more
erty owners. addition burdens
supervision, management and control of W.S.1977; (§ 24-1-104, roads County of Fre Commissioners Miller, Wyo.,
mont v. State ex rel 369 P.2d (1962)) public liability as well (§§
attaching roads
W.S.1977; v. Com Oroz Board
missioners, (1978)) Wyo., 575 P.2d readily not more
should assumed by prescription
instance of establishment pursuant road is
than established procedure.
to the condemnation WILLIAMS,
Nancy Idlewild Cafe d/b/a Lounge, Appellant below),
(Defendant Fay Waugh, Appellees
Carl WAUGH below).
(Plaintiffs
No. 4998.
Supreme Wyoming. Court of
April