267 P.2d 747 | Wyo. | 1954
The two cases above mentioned were consolidated for hearing. They involve the same questions and what is said herein applies to both cases alike. The only difference is that the Hardendorfs are the owners of the S^NW1/^ and Lot 2 of Section 9, Twp. 33 N, Range 99 West of the 6th P.M., in Fremont County, Wyoming, and Walter A. Clark is the owner of land in Section 34 of the same township and range.
A petition was filed in the district court of Fremont County, Wyoming, on July 2, 1953, in which the plaintiff or plaintiffs alleged the ownership of the lands above mentioned and that the defendants had initiated proceedings to take from the plaintiffs for the purpose of building a road commonly known as the Lander-Hudson Road, Project No. F-78(3), County No. 191, certain portions of their lands (describing it). In subsequent paragraphs, plaintiffs allege in substance that there is no necessity of taking the above described lands for a highway; that the public convenience or necessity does not require the taking of said lands; that there are other lands available immediately adjacent to the proposed highway which could be used; and that the
Summons was issued requiring the defendants to answer the petition on or before the 1st day of August 1953. On that day an answer was filed by the Board of County Commissioners denying each and every allegation of the petition, except admitting the allegations numbered 1 and 2 of the petition. On August 4, 1953, the court set the hearing on the petition for trial and on that day the plaintiffs filed a motion for a continuance of the case, stating that they have 10 days after the answer of the defendants had been filed in which to reply or to demand a jury and that the time given by the court is not sufficient in which to prepare the cause for! trial; and that they require a great amount of technical assistance and preparation to properly present their caseto the court. The continuance was denied. On August 4, 1953, plaintiffs filed a motion for judgment upon the grounds that no issues were presented to the court in the answer filed by the defendants. On August 6, 1953, the court entered judgment reciting that plaintiffs appeared represented by their attorneys and the defendants appeared represented by their attorneys, including Bob C. Sigler representing the Wyoming State Highway Department, and “the testimony and evidence having been heard and received by the Court, whereupon the defendants rested their case, whereupon the plaintiffs declined to submit any testimony or evidence in behalf of plaintiffs, and further moved for judgment on behalf of the plaintiffs on the grounds and for the reasons that defendants had failed to sustain their burden of proof,-which motion was then and there denied by the Court, and being thus fully advised in the premises, the Court finds generally that there is necessity for the establishment and the taking of lands for the construction of a Highway known as
Chapter 48, Wyoming Compiled Statutes 1945, provides for the establishment of highways, both state and county. Section 48-302 provides that state highways shall be located and surveyed under the direction and supervision of the State Highway Superintendent; and that county highways shall be located and surveyed under the direction of the county surveyor of the county in which such highway is located. Section 48-303, as amended by Chapter 181, Session Laws of Wyoming, 1953, provides: “The board of county commissioners of the several counties of the State of Wyoming, through which state highways pass, are hereby authorized, required and may proceed under the provisions of this chapter, to secure the right-of-way of any such highway or highways wherever necessary; and whenever the State Highway Commission has designated or shall hereafter designate, any State highway within any county or counties, which has not been previously constructed by the State, it shall be the duty of the board of county commissioners of any such county or counties to acquire the necessary right-of-way * * Further provisions of the chapter above mentioned provide that the board of county commissioners of any county may on its own motion or on petition establish a highway. A viewer is appointed and he makes his report in writing to the board of county commissioners and if the board approves the location of the highway the notice shall be published for three successive weeks
Section 48-306, as originally enacted, provided that all county roads should not be less than 60 feet in width, etc. Chapter 181, Session Laws of Wyoming 1953, added subdivision (b) which reads as follows:
“Any land owner or interested party desiring to raise any question with respect to the necessity of the taking of the land for road purposes under the provisions of Chapter 48, Article 3, Wyoming Compiled Statutes, 1945, shall do so by filing, within thirty (30) days after the last publication of notice of the proposed location of such road, a petition in the District Court of the county in which the land or any part thereof is located. The District Court shall within ten (10) days, if possible, from and after the filing of said petition hear and determine the question of necessity. Provided that when said petition is filed, the burden of showing necessity shall be sustained by the county or the State Highway Department. If no petition, to raise the question of necessity, is filed within the said thirty (30) day period, the necessity shall be presumed and the question cannot later be raised.”
The case has been submitted both on a motion to dismiss and on the merits. It may be noted that the eminent domain proceedings of the board of commissioners have not, so far as the record shows, been completed, and that the appeal herein has been taken from
The second ground for the motion to dismiss is that this appeal presents no issues for our determination, in view of the fact that the evidence taken in the case has not been embodied in the record on appeal. Plaintiffs counter by saying that no evidence was properly introduced because the trial court should have given
That subdivision provides that the court shall determine the question of necessity within ten days after the petition has been filed. In other words the court may set down a hearing upon the petition at once after the latter has been filed, subject doubtless to the fact that the parties shall have an opportunity to present their case. In view of that provision, it is quite clear that the legislature did not contemplate that any answer to the
Other points argued herein, for instance that the so-called petition of plaintiffs is fatally defective, or to what extent the question of necessity of taking property in the eminent domain proceedings here involved is a judicial question, are points not necessary to be determined herein.
The motion to dismiss this appeal is sustained.
Dismissed.