*1 sentence is judgment mainder
affirmed. RANCH, INC., Wyoming
FERGUSON (Defendant),
Corporation, Appellant MURRAY, Jr., and F. William
Edward (Plaintiffs). Edwards, Appellees J.
No. 90-166. Wyoming. Court Graves, Charles E. Graves Santini Villemez, May appellant. Cheyenne, for Rogers, Cheyenne, appellees. B.
John THOMAS, CARDINE, MACY Before GOLDEN, JJ., TAYLOR, Judge. District CARDINE, Justice. by appellees Edward
This was an action (M Murray, J. Edwards F. Jr. and William E) Ranch, against Ferguson Inc. to ob- & right way, termed common tain lands, Ferguson judgment granting M appeals the way. E the & this: question we must answer is grantee parcel title Where a takes adequate means property which has (is landlocked), grant- ingress/egress grantee obligated provide his com- therefor, must pensation obtain accordance seq. We address also W.S. 24-9-101 et of a land- question of whether parcel grantor must look to his locked landlocked condition before relief his seeking right across the parties. third decision of the district We reverse the relief, Appellees’ source of under court. an action the circumstances of 24-9- to W.S. *2 They may Ferguson not demand a common law At one time both sec- owned 19, 1984, the lands necessity of over of tions 18 and 19. On October Ranch, appellant, Ferguson (Fergu- Inc. Ferguson conveyed a third section 19 to son). party. right No easement or of provided section 19 was at the time of Ferguson raises these issues: conveyance, although appellee alleges an err, “I. Did the Trial Court as a matter existing road across section 18 was used law, granting 'way necessity’? 1, 1987, purpose. for that On March Statutory “II. Did the Declaration of a party conveyed third sold and section 19 extinguish private road common law proceeding M & E. M & E commenced a property? easements to the same County before the Laramie Commissioners Appellee “A. barred due to aban- Is private to obtain a to W.S. any implied donment of easement? 24-9-101. M & E were successful this necessity previ- “B. Was the issue proceeding entry which culminated with ously litigated and therefore barred August establishing an order estoppel/issue of collateral doctrine surveyed private road preclusion? Gladys upon John and Lindt conditioned Appellee “C. barred Was payment damages taking for the in the Estoppel? Doctrine of Judicial $33,600. amount of M & E were dissat- “D. Did cease with the Decla- proceeding isfied with the results of the Appellee Statutory pri- ration for petition and filed a for review in the district necessity proceeding? vate alleging damages court awarded in failing “HI. Did the Trial Court err for establishment of the road were the easement across Defendant’s bar excessive, speculative, arbitrary. [Ferguson] possession lands adverse respondents, Lindt, Gladys John and also statutory period?” for the petition filed a for review in the district EM & state this outline of the issues: alleged which action of the err, “A. Did the trial court as a matter arbitrary, capri- commissioners was law, granting ‘way necessity’? cious, and an abuse of discretion and M & uncompleted “B. Did a commenced but E were not entitled to a road be- statutory proceeding establish- cause had a common law of ne- operate ment of a to extin- cessity Ferguson. over the lands of M E& guish as a result of: appeal obtained dismissal of and com- “1. Abandonment? menced this action common law estoppel/issue preclu- “2. Collateral Ferguson over the section 18.
sion? alleged M & E use the old road- estoppel? “3. Judicial way over section claimed abandoned “4. Termination of the element of ne- Ferguson, was “an absolute necessity” if cessity? they were to be able to enter and leave failing Did the court err in “C. trial enjoy their rights ingress lands and bar the easement across Defendant’s heirs, egress for themselves and their [Ferguson] possession lands adverse assigns, guests, invitees and licensees. We statutory period?” for the emphasize pled, that M & E attempted prove, facts which would
FACTS have established a common law significant There ais difference E section 18. M & own owns between a common law is, section 19 which is landlocked—that and an easement. We are satisfied way pro- is no easement sought that M&E the former rather viding ingress access known to law as than egress. the latter. The distinction M & E seek a common law between the two Ferguson’s opinion. over section 18. will be addressed later in the personal service can be agent
DISCUSSION had, published notice of a common in a three weeks once week for most purposes, the necessity serves several published in the newspaper county. *3 land to ensure that important of which was publication thirty be at last shall least purposes. 2 productive be for could (30) days hearing appli- before the the Property Thompson on Real §§ hearing, parties all At the inter- cation. important very facet Repl.). Another may appear and the ested be heard grant- because the the doctrine was necessity of as to the the road and board no common law ee of such lands had pertaining Upon matters thereto. the all of third a across the land to claim hearing the the application, whether the the parties, not, appear or interested or others ingress/egress could be method which applicant if the board finds policy is a Opposed Id. obtained. pri- complied with law and that the the inequitable or to recognizes it is unfair necessary, shall road board vate claim, landowner to permit a landlocked (3) appoint three disinterested freehold- compensation, a county, ers and electors of the as viewers could grantor his which across the lands of appraisers, and shall cause an order and pur- provided for at time of have been directing them to meet on a to issued may have conveyance and and which chase in day proposed named the order on cost land. in a reduced final resulted road, private locate a road and view and policy questions competing The were Id. therefor, and according application to the 24-9-101 resolved enactment W.S. damages to be sustained there- to assess says that to access is to which the solution and by. If for reason viewers to a condemn allow a landlocked landowner are to meet the time appraisers unable right way the lands best-location proposed to view set board damages stranger payment of a date, road, they may fix some other grantor, require than to a an rather owner, writing to give notice in shall transaction, arm’s-length pro- real estate agent occupant of lands resident right-of-way a that is vide his proposed laid the road is to be over which compensation grant- therefor. The free of place the time and where the viewers acquisition the time real estate ee at meet, (10) days at least ten before figure property able to out that well road, place time viewing the at which and negotiate right-of-way and a landlocked may appear and be persons interested all purchase. part as entering Before heard viewers. statute, In this case a the viewers shall take upon their duties procedure for obtain- provides a means and they will an oath that and subscribe to property. ing access the landlocked perform their faithfully impartially problem. It states statute eliminates appointment as view- under their duties as follows: shall appraisers. viewers ers to, and mark out proceed to locate
“Any person
land
no outlet
whose
road,
appli-
private road
accordance
public
nor connection with
other manner and loca-
county
cation or
such
apply writing to the board of
provided the
appropriate,
county
tion
deem
of his
commissioners
shall
marked
leading
premises to some
location
road
from his
person
sixty
cross
public
At
out to
convenient
road.
least
board,
(60)
lands were not described
days prior
applying whose
given
has not
notice
writing
application and who
applicant
give notice in
shall
application.
proposed
owner,
agent
occupant
resident
thirty
feet in width
road is
shall not exceed
of all lands over which
for,
premises
on
apply
intent to
from certain
applied
of his
point on the
applicant
road.
land is
some certain
If the owner of the
road,
nonresident,
located so as
public
and there is no resident
and shall be
damage to the lands Dana
clarify the
does not serve to
possible
do the least
Nonetheless,
private road is locat-
created in Snell.
through
ambiguity
which the
also at the same
ed. The viewers shall
we conclude the time has come to announce
damages
sustained
time assess
decisions,
anything
said in these
or our
the road is to be
the owner over which
decisions which have followed Snell true re-
and make full and
established
Stovall,
such Miller v.
as
turns,
plat of the road to
with a
(Wyo.1986)1
if the parties, probably rather dicta. This the lands of third than resulted because is across lands, fully it necessary explore was not than necessity” question “way in those is a factual be resolved eases. county commissioners. disposition, con of this we need not holding, a result of this Because
As par- the other raised that the district court was without address issues clude M & jurisdiction entertain E’s suit ties. McGuire Reversed remanded the district
McGuire, (Wyo. that the district court court with directions 1980). of holding that the existence Our complaint jurisdic- for lack of dismiss precludes 24-9-101 an action for Further, the order of the district tion. necessity way law of serves common dismissing in petitions review court and, clarify perhaps, extends somewhat arising related matter the coun- before Therefore, holdings of this court. previous ty commissioners is reversed and the dis- fairness, and in the interests of because or- trict court is instructed vacate that Court, District parties to First Judicial Civil parties petitions review der. The likely very were Page Docket County Laramie Com- of the order having purport court misled district may appeals their missioners continue action, to dismiss that as well as ed in accordance the district court county underlying proceedings before the opinion. provided in this directions commissioners, further we will direct pursue their parties that action THOMAS, Justice, dissenting. appeals respective district county of the commis decision years, one hundred the stat- For almost Such action must be commenced sioners. Wyoming provid- State of have utes of the thirty days of the of this within date of a for the establishment ed county com opinion, or decision person whose land has “[a]ny in favor of final, fur only with the missioners to, public nor with a no outlet connection * * E must required being that M & ther action road, *.” W.S.1977 Section requirements remaining fulfill one (Cum.Supp.1990). In the course wish statutes if governing years, this court considered hundred emphasize again, the con road. We of neces- legal of a law cept of least occasions. In none sity on at five should, event, part play cases, implication contrary to these deci commissioners’ review sugges- majority, has there been court. sion district any constitutional antithesis with tion of the common-law of necessi- suggested opinion, respect It is legal history with the patently ty. incor- is consistent suggestion The is legislate. the common-law is the fact that The critical decision which rect. taking, the constitutional Rup- is not a while for this Snell v.
foundation
taking;
to authorize a
provision
The
is intended
P.2d 1042.
United States
pert, 541
instead,
grant.
of an
just exactly as it
it is doctrine
Court read
way, the common-law
majority opinion
of this court. Stated another
is read
States,
conveyancing;
doctrine
Sheep Co. v.
440 U.S.
Leo
United
vein,
Snell,
when con-
In a similar
emi-
aspect of
doctrine
it is not an
Ruppert did
fronted with a contention that
nent domain.
for relief under the statute
qualify
not
holding in
Snell v.
majority asserts
to him a
he had available
common-
because
(Wyo.1975),that a
Ruppert, 541 P.2d
recognized
the court
is theo-
“common
Ruppert’s right to invoke the statute.
I,Art
32 of
incompatible with
retically
court said:
* *
(At
Constitution,
that a condition
“The Snells contend
290).
holding
to Snell
ascribe such
To
proceeding
under
stat-
precedent
bold,
a clear mistake.
certainly overly
if not
Ruppert
proceed
must first
ute is that
does, that
suggest,
as the
To
“[i]t
enforce a common-law
a civil action to
subsequent decisions
is unfortunate
intervening
necessity across
lots
the hold-
fully recognize
this court failed
There is no such
of the subdivision.
(at 291)
simply
ing
Ruppert,”
of Snell
We
imposed by
condition
the statute.
holding.
is no such
wrong
stretch,
extend, enlarge nor
cannot
regard is
holding
in this
of Snell
legislature
clearly
amend what the
necessary for the
that it was
said.”
541 P.2d at
pursue the
to first
the landlocked tract
however,
page,
at footnote
On the same
invok-
before
remedy concept
clearly
the alternative
marginally
It is
statutory remedy.
ing the
articulated:
selective
to invoke
acceptable for advocates
here,
“By
holding
we do not fore
inappro-
opinions, but it is
reading of court
possibility that a common-law
close the
prece-
priate
court to treat
its own
imposed in a
necessity can
in that fashion.
dents
proper
the isolated landowner
case where
*6
ruled that the
consistently
This
point
While not
chooses that course.
statutory right
a
road es-
to have
statutory
it did not consider the
because
remedy
the
against
is an alternative
tablished
clear case
procedure and was a
to.
for the own-
granting
common-law
a
McIl
the
per-
I
Anthony
landlocked tract.
do
Live
quham
er of the
v.
Wilkinson
20,
1909,
53,
Co.,
Wyo.
104 P.
it is either
18
ceive this case as one which
Stock
granting or denial of a
legal
ponder
does
necessary to abolish
appropriate or
necessity.”
pre-
common-law
long standing and
precedent that
is
accepted by
legisla-
sumably has been
only that
majority
to conclude
For
question as
I have a serious
ture. Because
“[fjootnote
opinion
4 of the
does de-
Snell
resolved ac-
whether this case can be
language
the clear
tract from
I
majority opinion, dissent.
cording to the
(at 290)
body
opinion”
is a classic
recognition of the
understatement.
McGuire,
In
608 P.2d
McGuire v.
remedy
consistently main-
alternative
is
(Wyo.1980),this court said:
1288
patible Wyoming precedent cited
above. little that this court
There can be doubt acknowledged statutory recogni- *7 necessity by
tion of the common-law 8-1-101, adoption W.S.1977. INC., GLASS, & PAINT JACKSON majority P.2d 1042. The now (Petitioner), Appellant statutory adoption of this holds remedy repealed impli- adoption cation of § BOARD OF TOWN OF JACKSON light of the con- (Cum.Supp.1990). ADJUSTMENT, Appellee prop- court of the recognition tinual this (Respondent). remedies, repeal by alternative osition of No. 91-31. highly appears It
implication suspect. Wyoming. Court majority legisla- misread that the prece- tive in the same intent May misread and this court have been dents of Not given interpretation. a strained has abdicated fed-
interpretation judiciary.
eral usurped
I that the court has am satisfied legislature prerogative by judi- a result achieved
instance legislation. case can be resolved
cial judicial legislation, it