*1 1278 Act, prohib- does not that of the Homestead any portion of not cite us
Appellant does alienating an grantees entryman from good-faith that the it a which indicates the record legal prior title to the issuance lack of in the lands knew of Walliker’s interest futile act in engage certificate) in a McMillan v. thereby intended to with the final Indeed, deeds. obtaining quitclaim (1909) P. 176 Wash. Wright, 56 execution prior to the was decided Tendolle en- a desert-land (Idaho requires law that It is a in the case at bar. the deeds land he entered the make oath that tryman making agree parties settled rule that benefit.). Nothing in sole lease and for his law and to presumed to know the ment are Act, 36-7-101, et Carey Wyoming § v. to the law. Click contract with reference W.S.1977, conveyances in prohibits the seq., 913, 920(1975). Seale, Tex., Ap 519 S.W.2d (See, particular, in this case. dispute Wal- rule, presume that this we must plying 36-7-404, W.S.1977.) 36-7-403 and § quit executed grantees liker and her court is af- judgment of the district knowledge of the Tendolle claim deeds firmed. likely consequence that and the decision when effective if and would become deeds legal acquired title.
Walliker argues also that
Appellant against pub conveyances are
purported go to Carey Act lands should policy
lic that this, suggests he actual settler. From justice against militate the interests of relation. Both side applying the doctrine of McGuire, Mickey Fred McGUIRE and Act, Carey cite the Federal U.S.C. (Contestees), Appellants language: which contains this may furnish sat- any “As fast as State Platte Board of Commissioners . . . isfactory proof (Contestee), County, irrigated, reclaimed and said lands are v. settlers, patents shall occupied by actual McGUIRE, McGuire, Eldon Dan Loretta assigns for or its be issued to State ” Allison, Appellees Allison and Elaine . . so reclaimed and settled: said lands (Contestants), nothing in appellees that agree We with the Company, Appellee Ranch Two Bar language inconsistent with the actual (Contestee). mineral interest selling a fractional settler No. 5176. occupy continuing irrigate, while good-faith in a the surface estate reclaim Supreme Wyoming. Court of agriculturally pro- land effort to make the argument accept appellees’ ductive.5 We March Congress up left to the states imposing requirements in addition option of and that Carey the Federal Act
to those of a restraint on
this court should not create legislature did not
alienation which our Church, Cf., to create. Adams
choose language
supra, (the statutory fn. Act of in contrast
Timber Culture “probing appellant’s the mineral unpersuaded a case the title to that the 5. We are also way granted by the State of estate in a in Batzer Oil cause is advanced statement Compa F.Supp. Wyoming Big Company, Company Horn Colonization Oil v. Ohio Id., Carey ny Wyo. 1960), .” at 368. (D. Act . . to the effect that go settlers. Batzer Oil land should to actual *3 Swainson, Kline, Chey- Arthur of Kline & enne, signed appeared the brief and in oral argument appellants. Phifer, Phifer, Phifer & Wheat-
Sky D. Phifer, land, signed and Fred W. the brief Wheatland, argument in oral appeared Allison. appellees McGuire and Sundahl, Sundahl, Godfrey John A. & appeared in Cheyenne, signed the brief and Compa- Ranch argument oral for Two Bar ny. Gen., Troughton, Atty. Mary
John D. Gen., Guthrie, amicus curiae Atty. B. Asst. Wyoming. for the State J., RAPER, and McCLIN- Before C. ROONEY, TOCK, THOMAS, JJ. ROSE RAPER, Justice. Chief application for appeal deals with an This parcel of landlocked private road to a a pursu- filed application The property. seq., et ant to W.S.1977.1 Dan and Lor- contestants-appellees, McGuire, naming petition filed their etta 12, 1976, “Any person July situat- petition whose land shall be so before was filed on 1. The to, peti- has no outlet nor connection ed that it the Platte Commissioners. make W.S.1957. The statute tion cited 24— writing to the board 24-9-101: now found at parties pur- because had Mickey Fred and added contestees-appellants, McGuire, Compa- as well as Two Bar Ranch question acres in from the chased appellees wanted ny.2 The appellees4 and were the record owners. appellants of either over the lands Thus, appellees. are also Our Allisons hearing A was had before Two Bar Ranch. appellees references thus include future County Commissioners June the Platte the Allisons. both the McGuires and hearing was conduct- An additional 1978.3 6, 1978, com- September On 12, 1978. In addition July ed on fact, findings of conclu- missioners issued testimony by the commission- heard law, sions of and an order which dismissed proceedings, sig- there were ers at these appellees’ application road. of exhibits and other items nificant number dismissal was based on The commissioners’ At placed the record. those of evidence grounds: several and Elaine Allison were hearings, Eldon *4 session, thirty (30) regular pri- point a in from certain a feet width a of his at premises leading premises applicant to some road from his vate convenient give the of the some on applicant road, Said shall point road. on the so to do certain thirty (30) days writing notice in at least possible damage to the lands the least through occupant agent the owner or resident or of located, private is which such road private road is all lands over which such they and shall also at the same time assess for, applied making appli- of the time of such by damages the or sustained owner own- the the of cation to such board. If owner such over such road to be established ers which nonresident, no be a and there be resi- land returns, plat full and with a of and make true agent upon personal service dent be some three at least which can to the of commis- such road board had, may published in then such notice be added.) (Emphasis sioners.” published newspaper weeks, (3) publication shall be the last Company has rested its 2. The Two Bar Ranch (30) hearing thirty days of before the theory throughout litigation this on the case parties application, at time all said which any parcel 80-acre which that road the by may appear and heard said interested also have to crossed Two Bar lands would road, said and all board as the Wyoming. lands owned the State of cross pertaining Upon the hear- matters ing thereto. statute, 36-9-118, W.S.1977, and Manual A application, said whether the owner or filing Appli- Regulations and Instructions for not, appear if the said others interested 6, Way, 5(c) Rights Ch. and cations that has com- board shall find (1974), permit private do roads across State law, plied private with the and that such road opinion no we make decision lands. regarding this necessary, appoint shall three is (3) said board an and rules. It is these statutes and electors of disinterested freeholders case, appellee in we shall refer to it as county, appraisers, and and as viewers clarity. Bar Ranch for the sake directing Two order be issued shall cause an day named in such order them to meet on road, proposed delay view locate a application on the and and initiation of 3. between the The inordinate private according hearing “explained” to the proceedings road in and therefor, damages to be sus- being and to assess of a result the record and briefs any thereby, reason such and if for really tained viewers and quiet who title action to determine appraisers to meet at are unable The record the 80-landlocked acres. owned also pro- said to view the time set posed board suggests proceeding was made neces- date, road, they may fix some intra-family dispute rag- sary because writing required give notice but shall be ing. occupant agent or resident to the owner said lands over to be viewers will proposed which said road is in the statement of will be evident later As place laid the time and where such facts, into a con- the Allisons in turn entered meet, days (10) at ten be- least Flynns to sell the 80 acres tract with the viewing time and at which fore place provision later contract It of this them. was appear persons all interested and providing be obtained if a road could not entering Before be heard said viewers. appellees property, would access required upon take viewers shall and their duties such property from the to take the back faithfully oath will subscribe to an moneys paid on down refund Allisons and impartially perform their duties under and arrangements grew property. of these Out ap- appointment and said as viewers their appellees-McGuires the contention proceed praisers. then viewers shall Such were not enti- record were not the owners out accord- and mark locate ance with said the statute. tled to relief under exceeding application, not only interest might cross. Loretta McGuire “1. Dan in obtain- Contestants-Applicants 13, 1975, of the were, August prior to McGuire financial, in- road is commonly ing of land of 80 acres the owners an inade- to be the Board finds NWVí terest as the described SWV4 SWV4 T23N, application. granting R69W quate basis for NWVi of Section Wyoming. P.M., County, Platte 6th are not question The 80 acres in “14. filing of this Subsequent “2. McGuires, Alli- by the presently used the describ- sold the contestants petition, sons, property Flynns. or the Use of such 13, 1975, to Eldon August on property ed hunting and other has been limited to Allison, husband and Elaine Allison upon property. minor activities and Guar- wife, of Sale under a Contract surrounding “15. There are no fences Dan McGuire Agreement. antee acres, although boundary the 80 there is a legal not the owners McGuire are Loretta property. fence on the south side of having con- question, property improvements except There are no for a Warranty Deed to veyed the same The 80 homestead cabin ruin. acres are Allison, Elaine husband Allison and Eldon extremely situated in mountains [sic] on wife, Warranty Deed recorded property. Pages in Book 194 at October County records. Platte 163 and “16. 3 of the Enclo- Section Unlawful 13,1976, (43 sure Act El- of Public Lands U.S.C. May Subsequently, “3. prevents pas- obstruction of free Elaine Allison resold Allison and don *5 Ray- sage public over lands of the United of Sale property under Contract Flynn, husband States of America. Flynn and Darlene mond Loretta and wife. Dan McGuire “17. No evidence as to the necessity or the said Con- parties McGuire were need for such road has presented been Sale, although they approved the tract of this proceeding. subject thereof. This sale terms “18. The County Board of Commis- way to said obtaining a road private sioners finds that road is not premises. necessary, required by as 24-9— Section Elaine Allison “4. Eldon Allison and Wyoming Statutes for the rea- the 80 legal title to the holders of are applicants presently son that have acres, sub- owners of said 80 acres. The property access to the and such access has Sale, ject the terms of the Contract adjoining not been The denied. landown- Flynn, Flynn and Darlene Raymond requested ers over pri- whose lands year thereon for paid who the taxes vate road be located will suffer more 1977. granting from the of the than 6, 1978, hearing, El- “5. At the June will the applicants from its denial. were Elaine Allison don Allison and applicants. property At “19. Access to the joined contestants and has never denied, been Flynn or Darlene and access Raymond time were McGuires no west, has been joined applicants or contestants. from the Flynn traditionally * * * * * * north property. or the east of the “20. For in years, excess of 40 there been no evidence “13. There has has been an established road to the pur- north as to the applicants presented property Flats, desired, on the Muleshoe road is future for which the poses which County branch off of Road No. any proposed use of type or extent of lands, Said road is across BLM and has the 80 proposed use of or of been used public members of the dur- County Accordingly, the Board acres. ing that public time. The lands over to determine is unable Commissioners pass which such roads have not been re- road would impact any proposed which any public served for use. adjoining landowners upon have provides: “21. U.S.C. Section 932 “6. The State of constructing right way for the ‘The necessary United States of America are lands, public not re- highways over indispensable proceed- parties to uses, grant- hereby served for jurisdiction ing and the Board has no fective October which branch north “Although sufficient dedication of the offer contained ously ed.’ across Muleshoe Plats were laid out the statute was off the constitute 21, 1976, used acceptance repealed Road to the two roads in that previ- ef- .action road is owners granted in the determine if a ¡k 'appellees applied of land [*] then absence of for. [*] private over sought which the [*] road should be notice to review of this [*] all the district court. The district court considered statute, road and therefore an established The commissioners then concluded: is deemed to exist across the of the United States. $ sfi [*] [*] [*] public lands vides: the action of the matter and entered an order 1979. In pertinent part commission on June that order reversing pro- “1. LAW “CONCLUSIONS OF “That road to the South would pur- application herein is filed “1. The Contestee, cross the land of the Two Bar 24-9-101, Wyoming suant to Section Company, Ranch necessity, would of have Statutes, 1977. belonging to cross land to the State of is un- proposed private “2. Wyoming. Under Article Paragraph necessary. of Wyoming Constitution and the should appraisers No viewers “3. regulations various adopted by the Board to determine by this Board appointed Commissioners, of Land the contestees damages property granted may not be across State land. their a road over by location of caused Pursuant authority to this and various shown until contestants have property *6 statutes, County the Board of Commis- access, any and that necessity, lack of sioners Action should be affirmed insofar of contestees property over the such road pertains as it to the lands of Two Bar lawfully legally continued will Company, Ranch Company and said whose landowners the lands all over should be proceed- dismissed as to further road and public lies between the property ings!7! contestees, has proof which lands of been established. not “2. has an outlet The said 80 acres “4. to all given road, proper notice was which “That public with
and connection a private which of land over to owners is convenient and available outlet Since by Contestants. applied is road applicants!5! over acquired road County private Commission- cannot The Board of a “5. necessary give land, here- not parties jurisdiction has over State ers necessary give It was not hereof!6! them notice. subject matter well as the to as public public lands stipulation access across the contrary had finding 5. This supported way to which stipulation road on BLM lands parties, also of a the by support physical appellees does facts. The record wish connect. appellees been have not that the conclusion equate with not that does access—but an outlet denied having findings relative makes the district court 7.Here sufferance. than the United States and later as to the State During argu- being party. oral a without either ment, findings re- county make 6. The any appellees interest disclaimed being BLM lating present BLM without crossing State lands. employee BLM An before them. explain appear that a as witness did praisers viewing that locating notice to the U.S. Bureau Land Man- .private according application agement, as the evidence shows there is a Contestants, they shall not public road across the Bureau Land proceed eighty (80) south of said acre joined Management land that can be tract. private road from Contestants land. fn. “IT IS FURTHER ORDERED that [See 7.] Company
Two Bar Ranch
be dismissed as
“3.
a Contestee.”
Wyo-
conceded,
“That
24-9-101 of the
Section
It is
stipulat-
and it has been a
that,
ming
1977 states
very
case,
Statutes
ed
from the
fact
outset of this
any person
shall be so
appellees
whose land
situat-
public
that the
have no outlet to a
to,
.
ed that it has no outlet
nor connection
presented by
appel-
road. The issues as
public
to a
make
in lants are:
writing
County Commis-
to the Board of
finding
1. The district court erred in
session,
regular
sioners of his
at a
that the trail across the BLM lands is
leading
prem-
private
for a
from his
public
It is
road.
road.
road .
.
ises to some convenient
providing
2. The district court erred in
proceeds
The statute then
to state that
appellees
the relief it did because the
‘.
.
the said Board shall find that
.if
give
failed to
notice to all other land-
law,
complied
has
with the
owners whose lands lie between the
necessary,
and that such
road is
parcel
80-acre
and the convenient
(3)
appoint
shall
three
disinter-
said board
public roads in the area.
ested freeholders and electors of the
finding
district court erred in
appraisers
as viewers and
.
road to the south which
stipulated
It was
between the Contest-
property
crossed Two Bar Ranch
Contestees,
ants and
Fred McGuire and
would of
belong-
cross lands
McGuire,
(80)
Mickey
eighty
ing to the
Wyoming.
State of
question
acres in
has
outlet to
no
overruling
4. The district court erred in
road.
commissioners on the issue
necessity.
“4.
5. The district court
finding
erred in
finding
“It is the
of the Court that the
that a
right-of-way may not
undisputed
that the
fact
land Contest-
be obtained over
lands.
State
ants is land-locked is in and of itself a
appellees
fully
satisfied with the
necessity,
and that the Board of
given by
relief
the district court and
Commissioners,
failing
appoint
three
*7
judgment (order)
defend its
without reser-
(3) disinterested freeholders and electors
vation.
appraisers,
as viewers and
We will affirm the district court’s re-
error,
were in
and that
their decision
mand to the county commissioners but with
should be reversed and the case remanded
different directions.
County
to the Board of
Commissioners.
case,
“IT
THEREFORE ORDERED AD-
IS
In this
we
appeal
have an
JUDGED AND DECREED that this mat-
County
the Board of
«Commissioners
ter be
County
County
remanded to the Board of
Platte
to the district court. The
County
Commissionersof Platte
sitting
and that
district court is
as an intermediate
appoint
appellate
said Commissioners shall
power only
court with
to review
(3)
three
appraisers
pro-
viewers and
the action taken
commission
24-9-101, Wyoming
vided under
prerogatives
Section
ers.
It is not within the
Statutes, 1977,
judgment
and to thereafter follow courts to substitute their
ad
procedure
authority
perform
set forth
said Section ministrative
or to
duties
boards,
ap-
assigned
with instructions to the viewers
law to administrative
sponsibility
entertaining appellees’ appli-
Sweetwater
committees, and officers.
the statute and to render a
Organiza-
cation under
Planning
Committee
Hinkle,
good
conformity
and in
Wyo.1972, decision in
faith
Districts v.
tion
School
presented
the evidence
to them.
with
P.2d 1050.
obligation
its review in
to make
court conducts
It is this court’s
The district
9-4-114,
give
W.S.1977:8
full force
with
sense out of a statute and
accordance
(cid:127)
legislative product. Yeik
and effect to the
“(a) Subject
requirement
to the
Taxation,
of Revenue and
Department
v.
be exhausted
remedies
administrative
construing
stat
Wyo.1979,
county in which such administrative tion or inaction was any real ministrative action or fore or hereinafter provisions of shall be to a determination that: ming supreme court. * * excess “(c) “(i) [*] proceeding before The *. The court’s in accordance with of its property affected The [*] agency this section shall be limited procedure powers; [*] review adopted by acted taken, inaction is located [*] the district court to be followed pursuant without or in rules hereto- by such ad- or in [*] Wyo- [*] ac- was no outlet There is no pra, that also nor connection future premise's to some The quirements. application is filed or that therefore do was ute. applicant abundantly clear from the The first use be disclosed. petition The the land be in use entitled to requirement in § It parties stipulated that complied with the notice from the 80-acre with, thing appears plain convenient “leading from his proceed under the The appellants the nature of at appellees road. in the statute 24-9-101, su public road.” the time the parcel record. This is had to [their] there were stat re to, its agency ac- “(ii) or other The decision for the road must ask fraud; procured by was tion viewers because the specificity with some * * * ac- agency day on a named “(iii) The decision or other are to “meet law; view and locate conformity proposed tion is in according findings in issue “(iv) The of facts appellees merely said therefor.” by sub- supported case are contested par to two gave notice wanted a road and evidence; and stantial go should that the road suggested ties and agency ac- “(v) The decision or other other but of one or the the lands over charac- arbitrary, capricious or tion is which, saying that not know appellees did by abuse of discretion.” terized statutory lan up to the viewers.. court’s concerns of the district The central *8 out a applicants to set requires the guage county com- that the review are to ensure proposes. it description of the road governing statute missioners adhered get case, did not appellees the In this conclusions that their factual and to ensure appli- Their requirement. that first county beyond The the evidence. supported by are law, with the fully comply did not the re- cation charged were commissioners 25, May (c) amended, 1979. rewritten 9. was this ver- Subsection 8. This statute has been 58, 2, Wyo. Sess. Laws. 1979 governs appeal. Ch. in this sion 1286 posed applicants the rests with the view- county failed to fol- the commissioners commis- par- appointed by county The to language the statute. ers
low the to are bound follow agency ties and the sioners. Meuse-Rhine-Ijssel statutory procedure. have Once the commissioners Ltd. Y-Tex v. Cattle Breeders of Canada finding applicant made dual that the their Wyo.1979, P.2d 1306. Un- Corporation, 590 road complied has with the law and the is circumstances, it was incumbent these der spot that go viewers then necessary, the process in its court upon district course, the out the road. Of mark findings and conclu- review to reverse the good in applicant request must make his county commissioners and di- sions of reasona faith the route chosen must be dismissing appli- of an entry rect order but, chosen ble and the route convenient— cation, prejudice, for failure of the without to be most convenient does not have a road. applicants describe taking possible route into and reasonable holdings ap are Some additional sim possible routes. It must be account all the case with propriate order to return route. See ply a reasonable and convenient guidance appears it the matter in that some Nichols, Domain, 2A Eminent generally will, likelihood, be renewed. It is in all 1979); (3d 7.626 Solana Land Co. v. ed. appellate for an court to decide proper 117, 593, Ariz. 210 P.2d Murphey, again. that bound arise questions not the door may leave on Applicant Chicago Railway Western Com North map step request they the viewers Riverton, City on reh. 70
pany
appli
out a
road for the
convenient
agree
660. We
with the
Wyo.
P.2d
responsibility
has the
applicant
cant. The
judge
commission
district
asking
alternative routes and
studying
finding that
was
“neces
ers’
the road
good
faith for one that is reasonable and
by the
sary”
unsupported
evidence.
Only
may
then
convenient.
opposite
clearly
The evidence
demands
complied
law so
be said to have
with the
any person
We hold that
whose
conclusion.
juris
have
that the
commissioners
it has no
land is so situated that
outlet—no
proceed.
diction to
can
legally enforceable means which he
gain
necessity,
access—has demonstrated
pro
Once the viewers arrive at
law,
being
there
matter of
without
posed
they then
whether it
ascertain
he lives
need to
on that
further
show
possible
“so as to do the least
located
be,
being,
it is
or will
used for
land or that
damage
lands
which such
specific purpose
proper
nor was
24-9-101,
some
private road is located.” Section
adjoining owners
inquire
impact
into
supra.
language
of the section
We read
(other than the owners whose land will
say
is not so
proposed
that if the road
taken),
applicants,
financial interest of
use
located,
the viewers
alter its course
hunting,
improvements, or
fences and
out,”
one that does.
either
“stake
permissive
had been denied.
whether
access
event,
approving
after
a route
the viewers
view,
“necessary”
In our
the word
proceed
damages “sus
then
to ascertain
type
the lack of the
only
statute refers
or owners” over which
tained
the owner
we have
to a “convenient”
outlet
described
make
is to be established and
road
public road.
return
their
findings
regard, along
plat
with a
in that
court’s order contains
district
have
and marked.
located
light
holding
surplusage
some
our
studied,
initially
the statute is
applicants
propose
carefully
must
a When
that the
It
description.
quite
must be followed.
has
adequate
simple
some
complicated
power
pro-
unnecessarily
made
ultimate
to locate
road as
been
54, 65,
Wilson,
Wyo.
always
legislature
10. It is
30 P.2d
that the
Co. v.
assumed
convenience,
promote
only
We private locate road order to view and a sense, keeping in mind what general in the according application, and to assess to the intended enacting must have legislature the damages thereby, sustained and the to be act, the of the when of passage at the time affirmed, faith- being duly after sworn just coming to life. State discharge fully impartially and the to BLM roads has been The status of and after at appointments, of their duties In least one other court. considered at per- notice to all days’ given least three 1971, Or.App. County, 6 Major Douglas v. private through whose such sons lands 544, 808, considered P.2d the court there 488 located, viewers shall road is public to use right to be of the the test the private a proceed to locate mark out There, here, general public had the it. like width, feet in from certain thirty road right the to use the many years enjoyed of the point premises on the road; therefore, public so, was a BLM road, point public on the so some certain language, Oregon statutory road within possible damage do as to the least county.” That “any public within road road lands which such than holding conceptually is no different located, they shall also at the same an general one used absence damages by the time assess the sustained public statutory definition. A applicable owning such person persons land.” public generally road is one that —not The statute remained into statehood this portion public privileged merely a of the —is 11, until it was amended in 1901. Ch. form Avenue, 1956, Pa. In re Penn 386 to use. 1-3, Wyo. Laws. The statute has Sess. 715; 403, 126 Galloway Wyatt Metal A.2d v. virtually unchanged since 1901. remained 1938, Works, 837, 189 La. 181 So. & Boiler readily apparent that We consider it 189; 187, County v. Interurban Sumner legislature procedure pro- intended Co., 493, 1919, Transp. 141 Tenn. 213 S.W. available, readily a a vide in local forum 765; 413, 412, Heninger Peery, 5 A.L.R. affordable, economically efficient and time 896, 102 Va. 1013. Within S.E. obtain whereby method a landowner could a record, then, we must by the facts reflected property. to his means access a road conclude the BLM Seemingly, early are few cases in there 24-9-101, supra. within terms of § terpreting applying this statute. dispositions, Because of it is unneces- our Anthony McIlquham v. Wilkinson Live definitively sary us to address Co., 1909, Wyo. 104 P. Stock appellant. issues raised implicitly found that the statute was court remedy and it was not in an alternative order. response the dissent is in A supplant the common-law tended obtaining way a This method grantee to to his land a a means access language originated 1886. grantor. his over lands of appeared as it in 1886 territorial statute was: McIntosh, Wyo.1961, In Hoffmeister v. person land shall Any
“Sec. whose rehearing 361 P.2d denied 364 P.2d be so it has no connection situated questions this court several addressed relat- road, any public applica- make ing appeal procedure county commission- writing tion determination made commis- session, for regular his at a ers of significant aspects most Perhaps sion. leading premises from his opinion suggestion its that Rules of that W.R.C.P.,13 through 76, govern proce- to some convenient thereupon appeal said commissionere to be in the district dure followed [sic] holding house- appoint three disinterested court and its the district court shall viewers, fact, adjudicate, as a authority is without holders directing question necessity. opinion In the to be issued cause order superseded replaced by are now 13. These rules WRAP.
denying
rehearing,
provided
this court
enactment,
earlier
24-9-101,
must fall.
*11
guidance
rather clear
to the district courts Section 1-26-405 read in context contem-
pointed
when it
out:
plates an action
proceeding
judicial
in a
“ * * *
forum,
means,
71.1,
as
course,
This
does Rule
that the
W.R.C.P.
roads.
Administrative
that county
WRAP. For
before a county commission under
cernible that
court is an administrative review. A relat
ture, and
101 are
ed matter was
early case Mcllquham
swered several
to a similar
Big
clear
kinson Live
ley, Wyo.1979,
We cannot
24-9-
§§
is found. The
position
context and
of the
seq.,
101 et
supra, were either impliedly or
section in the act are unmistakable indicia
directly repealed
1-26-405,
W.S.1977,
legislature
that the
prescribe
intended to
71.1,
or Rule
Implied
W.R.C.P.
repeals are
different forum and
procedures
different
Russell,
Nehring
favored.
Wyo.1978,
for all the above
types
listed
of condemna-
67;
State,
582 P.2d
Wyo.1977,
Thomas v.
tion than for
roads. Hoffmeister v.
Section impliedly 1-26-405 does not provides re- Section 24-9-101 a method to be peal seq. 24-9-101 et Sections §§ initiated before an agency executive for the repugnant 24-9-101 are not so that the establishment of A road. close appears page codification; but, case, 14. This statute 880 of the 1977 suit of the stat- appears 1-26-405, Session Laws and is numbered 1-27- ute now at W.S.1977. renumbering apparently 404. This the re- jurisdiction authority to transfer that indicates that pertinent statutes reading of apply Rule qualify pursue would then would not district courts which the McGuires 1-26-401, seq., et 71.1, proceeding. under to such condemnation W.R.C.P. procedure established W.S.1977. power “Jurisdiction” is 24-9-101, appropriate has supra, been in contro hear determine matter state, and people of this needs Nall, parties. Begley v. versy between the satisfactorily over apparently worked has 254, 166 A P.2d 466. number Wyo. County Commis- Board of years. The jurisdic necessary to confer things body to appropriate deal sioners is *12 First, it complete form. must tion in its nature, and problems of local a most general power over matters of have dis- burdening the of avoids case; next, in particular No kind involved initially. these courts with matters trict partic in some authority presented by proceeding has the dissent must be initiated been manner; finally, gives judicial branch exclusive and there must ular Ranch, proceed- jurisdiction parties. over eminent domain Padlock Inc. notice to ings. Dist., 1936, reh. Irr. v. Washakie Needles 273, 410, 411. In Wyo. 61 P.2d State 71.1, supra, Rule that assertion Eighth Jud. Court of ex rel. Yohe District interpreted directly repealed to have can be 1925, 33 Cty., Dist. In and For Natrona 24-9-101, stray seq., also seems to et 545, 547, 281, 288, this court Wyo. P. to power beyond the bounds of this court’s jurisdiction; discusses extensively rather are supersede legislature. We acts of jn and, “power,” points out its definition of proce that make rules empowered to prerequisite is that court primary that a seq., 24-9-101 et in nature. Sections dural authority to must have proceeding before jurisdictional create a substantive and have stat do so. The cannot rule-making powers our original utory power proceeding in an usurp change. To do so would be to court private roads. The district condemn legislature. power clearly vested in those power proceedings has to review legislate by repealing This court cannot jurisdiction. original that section. us, legislature has In the case before Wy rule-making power of the commis- authority on conferred statu Supreme restricted oming Court is private to create roads. sioners as a tribunal way any rule in te.15 We cannot no assume au- The district court can more enlarge the change rights or substantive than can thority create roads jurisdiction from any court. It is obvious of usurp authority of the Public Service 24-9-101, supra, language of § rates, utility or the au- Commission to fix legislature county commission granted has city grant liquor licenses or thority adjudicate the establish of jurisdiction ers grant irrigation per- engineer has no the ment of roads. This court state supervisory 5-2-114, “(ii) Any review of or other 15. Section W.S.1977: judgment proceedings any of or decision supreme Wyoming may from “The court of court, board, officer, or commission repeal modify general adopt, and time to time when such review is authorized law. governing pleading, practice and rules and forms “(b) abridge, enlarge rules Such shall neither state, procedure, purpose all of courts any modify rights person of nor the substantive promoting speedy and of the efficient determination any jurisdiction of of the courts nor nor the litigation upon its of any change provisions of of statute limita- merits.” added.) (Emphasis tions.” 5-2-115, Section W.S.1977: their are dis- These statutes and “(a) may govern: Such rules writs, State rel. v. District “(i) process, pleadings cussed in ex Frederick The forms of For parties, dep- of Fifth Judicial District subjects Court County and motions and the ositions, ments, Horn, Big Wyo. trials, evidence, judg- 399 P.2d discovery, respect aspect trials, provisional but with A.L.R.3d and final reme- new pleading, prac- which the district court eminent domain over dies all other matters jurisdiction procedure; original to act. had tice county com- STATUTORY HISTORY require can it mits. Nor 71.1, Rule W.R.C.P. missioners to follow 24-9-103 Sections compels respond us to authority The above (before originally were in 1886 enacted theory set out in the dissent. statehood) part of an act which also (after In 1895 concerned roads. court is affirmed The order of the district statehood) they part reenacted as were it reversed the commissioners only in that entitled, revise, “An Act to amend an act proceedings. further and remanded relating consolidate the Statutes by this court to the The matter is remanded Bridges.” Highways and Ch. Session directions that it vacate district court with parts 1895. The other Laws of reversing enter one the order its order and location, estab- that act also concerned the directing county commissioners and national, lishment, altering vacating proceedings future conformi- roads, state, the con- territorial and opinion. with the sense of this ty them, and the struction and maintenance levying of taxes therefor. These other ROONEY, Justice, dissenting. public roads. 24- parts concerned Sections *13 through private 24-9-103 concern
9-101 Thus, original act and the re- roads. ENTREE public involved both roads and vised act holding majority I must dissent from the and 24- private roads. 24-9-101 Sections the follow- in this case inasmuch as sets in directly 9-103 were amended ing very precedents: bad per- minor and of no the amendments were precedent that the Rules 1. It sets as a sections now tinency to this matter. Such supersede do not of Civil Procedure provide: statutory provisions in procedural 24-9-101: Section therewith. conflict person land shall be so situ- “Any whose precedent the continued It sets as a to, nor connec- has no outlet ated that it 24-9-101 viability and use of §§ road, may appli- make tion with a 24-9-103, W.S.1977,statutes county of writing in to the board cation inconsistent, unwieldy are and which county regular at a commissioners of his constitution- questionable statutes of session, leading road private for a were, first, ality, and statutes which convenient premises his to some W.R.C.P., 71.1, superseded by Rule at least applicant give shall road. Said later, and, by legis- repealed then writing to the (30) notice in thirty days lature. occupant of all agent or resident or owner for condemnation procedure Since road is private lands over which such through 24-9-103 provided for, making such the time of applied of by provided superseded has been If the owner application to such board. 71.1, processed this matter was not Rule nonresident, and there be a such land case proper procedure. The under personal upon which agent be no resident prejudice to dismissed without should be had, may notice then such service can be proper proceedings. the institution published newspaper in some published be weeks, (3) the last for three foregoing, it is vividly To illustrate (30) thirty least publication shall at background two appropriate consider applica- hearing of said days 24-9- before (A) history of §§ items: the actual interested tion, parties all at which time their historical through 24-9-103 and by said rules, appear and be heared statutes and relationship [sic] with other road, and necessity of said as to the majority board (B) errors of and the basic Upon the thereto. pertaining all matters opinion. applied upheld majority in such hold- pivotal and and ing. to the 1. These statutes are them, upon holding premised holding. Such road, points damages assess said and application, whether the hearing of said not, with such determination.” accordance appear or interested owner or others the appli- board shall find if said 24-9-103: Section law, and complied has cant so appraisers appointed, “The viewers necessary, said private board such them, make re- majority or a shall free- (3) disinterested appoint three shall at the port as county, of the and electors session, holders regular next and shall cause appraisers, them, amount viewers so and also the located them, directing them damages, any, order to be issued if assessed to such persons order on the or entitled day person named in such meet on a if the commissioners are damages, road, and locate view proposed just, report is and af- satisfied that such according to the private road all by the cost payment ter damages therefor, and to assess road, damages locating such and the any thereby, if for reason sustained viewers, the commission- assessed appraisers are unable such viewers and con- report shall such to be ers order to view the time set the board meet at to be a and declare such road firmed road, proposed they may fix some said road, shall be re- and the same date, give required but shall be aggrieved by Any person corded such. writing to the owner or resident notice in action of the board over agent occupant of said lands awarded, may appeal damages amount be laid of proposed said road is at time within the district court place the time and where viewers (30) finally road is thirty days after said meet, (10) days at least ten before will com- established said board *14 which time and viewing such at missioners.” persons appear place all interested to been referred as These statutes have by said viewers. Before and be heard proceeding” which an “eminent domain upon duties such viewers entering their I, 33, Art. “had its roots in 32 and §§ to take subscribe an oath shall and Ruppert, Wyoming Constitution.” Snell per- they faithfully impartially will and (1975). 1042, Wyo., 541 1045-1046 P.2d ap- their duties under their said form appraisers. 1, 32, pro- viewers and pointment Wyoming Art. Constitution § proceed to locate viewers shall then Such vides: in private road accord- and mark out a not be taken for property “Private shall exceeding application, with said not
ance private by consent of the own- use unless thirty (30) er, in from a certain private necessity, feet width except ways for of reservoirs, drains, the of the flumes or point premises for and road, so others point certain on the or across the lands of some ditches on damage mining, the possible agricultural, milling, domestic as to do the least is nor in case through sanitary purposes, lands which such located, they compensation.” also at the same without due and shall the damages sustained time assess the 1, 33, pro- Wyoming Art. Constitution § over which such road owner or owners vides: full and true be and make established taken or property “Private shall be the returns, plat such road to with a use with- damaged board of commissioners.” just compensation.” out Section 24-9-102: 1953, in 24-9- procedure § the outlined materially appointed indirectly in appraisers 101 was amended
“The viewers pre- legislative Ch. changed of the the enactment provisions accordance with 181, 2, Wyoming 1953 ceding shall have Session Laws of section [§ 24-9-101] W.S.1977), (now 24-l-105(b), pro- whether to determine in all cases power placed proper be at vides: gates or not shall * ** “(a) Wyoming Rules of
“(b). Any
party
land
or interested
owner
re-
desiring
any question
govern
procedure
raise
Civil Procedure
taking
spect
necessity
personal
the condemnation
real and
purposes
provi-
under
for road
land
property
power
under the
of eminent do-
Chapter 48,
Wyoming
Article
sions of
main, except
provided
as otherwise
in this
Statutes,
do
shall
so
Compiled
rule.”
(30) days after the
filing,
thirty
within
in
exception
There is no
rule which
the proposed
publication
last
of notice
proceeding
would remove the
in this case
petition in the
of such
location
from
of the rule.
county in which the
District Court of the
provides
pertinent
Rule W.R.C.P.
any part
is located. The
land or
thereof
part:
(10) days,
ten
Court shall within
District
procedure
“These
in all
govern
rules
possible,
filing
if
from and after the
Wyoming,
courts
of record
State of
determine the
petition
said
hear and
actions,
proceedings
in all
suits or
of a
necessity.
Provided that
question
nature,
special statutory pro-
civil
in all
filed,
petition
when said
burden
* *
ceedings
They
con-
*.
shall be
showing
be sustained
necessity shall
just,
in-
Highway
speedy
strued to secure the
Depart-
or the
State
petition,
ques-
expensive
every
raise
If no
determination of
action.”
ment.
within the said
necessity,
(Emphasis
tion of
is filed
supplied.)3
(30) day
shall
thirty
period,
87(c),
provides
part:
Rule
W.R.C.P.
presumed
question
cannot la-
*
**
“(c)
The sections of
ter be raised.”
Statutes, 1957,
amended,
hereinafter
3, Wyoming Compiled
Chapter
Article
enumerated,
superseded,
shall
therein,
Statutes,
includes
referred
in con-
such statutes and all other laws
which we are here con-
the statutes with
no further
flict with Rule 71.1shall be of
24-9-103,
(now
cerned
* *
(Emphasis
force or effect
Thus,
W.S.1977).
determination of the
supplied.)
taking
necessity for
transferred
enu-
here involved were not
statutes
the board of
87(c),
are included
merated in Rule
However,
unwieldy
district court.
with Rule
within “all other laws
conflict
procedure
inconsistent nature of
*15
Rule 71.1
procedure
71.1.” The
set forth in
complex,
not cured.
It remained
time
was
set
completely incompatible
is
with that
consuming and impractical.
forth in
here involved.
the statutes
impracticability
complexity and
Similar
71.1,
commenced
Under Rule
the action is
con-
statutory procedures
in the
for
existed
actions,
e.,
filing a com-
as in
i.
other
purposes.2
for
Further-
demnation
An answer
plaint
serving
and
a summons.
more,
procedures
anything
several
were
the
to
required
if the defendant desires
only
is
remedy
To
uniform and consistent.
but
the
property
the
contest the
to take
such,
Wyoming
71.1
to the
Rule
was added
an an-
necessity
Whether or not
Procedure,
therefor.
effective March
Rules of Civil
filed,
expedited
swer is
the court holds an
provides
part:
It
1966.
practice
governing pleading,
procedures
Separate
rules and forms
existed
condemnation
cities, towns,
State,
districts,
procedure,
and
in all courts of this
for actions
school
roads,
companies,
promoting
speedy
purpose
and
counties for
cities
the
railroad
for
of-way
the
of
utilities,
highways, rights-
litigation upon
its
state
of
efficient determination
petroleum
telephone,
telegraph,
and
merits.”
pipeline companies,
this,
power
etc.
Beyond
or other
the court has an inherent
expeditious
to make rules for the efficient and
disposition
53, 1,
Wyoming
of
1947
3. Ch.
Session Laws
§
Southern
of its official business.
1-116, W.C.S.1945,
Cum.Supp.) pro-
(§
Miss.,
1957
Company
Reynolds,
v.
Pacific Lumber
vides:
(1968), citing
treatises.
ences between
OPINION
of the Feder-
and Rule 71A
Civil Procedure
errors which are basic
following
Procedure,
Rule 71.1
al Rules of Civil
holding:
the majority
71A.
and is similar to Rule
after
modeled
71A,
proce-
opinion
recog-
Rule
adoption
majority
1. The
fails
Prior
for eminent domain in
federal
dures
of the 1953 amendment on
nize the effect
“sys-
many
area were also
varied.
The 1953 amend-
question.
the statutes in
the rule was neces-
tem is atrocious” and
(now 24-l-105(b)) transferred from
ment
government
sary to “rescue
board
Ad-
Supplementary Report
morass.”
court
to determine the
duty
district
222, 224,
Committee,
visory
11 F.R.D.
long
In
run
taking.
for the
(1952).
inasmuch as
this error should
immaterial
of Rule 71A was to make
purpose
“The
procedure
superseded
the entire
to simplify
condemnation
uniform
Rule 71.1.4 But insofar as
rationale
”
* * *
United States
proceedings.
viability
majority opinion
relative
Tulare,
Land,
3,065.94
County of
Acres of
through 24-9-103
con-
24-9-101
§§
U.S.D.C.S.D.Cal.,
F.Supp.
California,
cerned,
recognize
apply
its
failure
(1960).
24-l-105(b)
provisions
is fatal.
It
of §
holding
majority
later Rule
incongruous
It is
is fatal
the contention
rejects
rule
refus-
inapplicable
here
the court’s own
71.1 and
1-26-405 are
pur-
it in this case toward the
apply
es to
It is fatal
24-9-103.
it
poses
adopted.
for which was
procedure was
to the contention that
legislatively
be administrative
directed to
legislature recognized both
judicial.
the con-
rather than
It is fatal to
authority of
and the
the wisdom of
rule
judicial
interest in eminent
tention
enacting
promulgating
court
*16
proce-
domain is “substantive rather than
repealing all other
legislation specifically
ambiguity
no
in
24-1-
dural.” There is
statutory
§
proceedings
eminent domain:
105(b) and,
opinion points
majority
as the
acquire
title
“Any
proceeding
action or
out,
gath-
legislative intention must
personal
in
or
or
interest
real
meaning
itself and a
shall
ered from act
condemnation, for
another
property of
nullify its
given
not be
to it which will
whatsoever,
com-
any purpose
shall be
given
interpretation
if
can be
operation
with
in accordance
menced and conducted
operation.
support
Procedure.” which will
such
Wyoming Rules of Civil
Grieves,
ny
Wyo.,
(1979).
majority
disagree
I do
v.
1295 attempts majority opinion 2. The enumerated statutes “and all other laws in simple language of plain avoid the and conflict with Rule 71.1 shall be of no fur- 1-26—405 and resorts to a form of obtuse ther force or effect.” The enumerated stat- § “reasoning” contrived to contend that utes are the ones to which majority and repeal opinion such statute did not 24-9-101 would limit the §§ so, words, through language 24-9-103. The 1- rule. If such were “and all § direct, concise, unambiguous 71.1,” and 26-405 is other laws in conflict with Rule positive. imagine surplusage. Legislatures It would be hard to lan- would be and guage that presumed is more so. Section 1-26-405 courts are not to do useless clearly definitely things. Herrera, and states that: Wyo., DeHerrera v. 565 * * * (1977); Depart- P.2d 479 and see Yeik v. “Any proceeding acquire * * * * * * Taxation, ment Wyo., of Revenue and any interest in the real (1979) majority opinion. P.2d 965 cited in condemnation,
property of another whatsoever, any purpose shall be com- 24-9-101 24-9-103 Sections menced and conducted accordance intentionally directly superseded were Wyoming Rules of Civil Procedure.” by Rule 71.1. The same was later con- (Emphasis supplied.) firmed and ratified 1-26-405. § majority opinion attempts to rational- majority opinion 3. The seeks to avoid any purpose ize that the words “for whatso- plain unambiguous language they say noting ever” do not mean what by suggesting Rule 71.1 and 1-26-405 § provisions relative to other eminent domain 24-9-101 creates a substantive proceedings containing in the enactment “jurisdictional right” and a and that there- 1-26-405. The title to enactment apply fore the Court Rules cannot to it. plain refutes such rationalization. It is also quick complete sug- answer to this One unambiguous indicating an intention so, gestion is that if such is then all other straighten out and make uniform all procedures condemnation which have been procedures. eminent domain The title superseded by the rules are in the same part: reads in majority opinion boat. And even the does * * * “AN ACT to eliminate obsolete proceeding not so contend. The under statutes, fully executed to conform through 24-9-103 is an “emi- §§ statutes, conflicting duplici- to eliminate proceeding” nent domain which “had its * * * language; pro- tous or archaic 1, Wyoming Art. roots” in 32 and §§ viding procedures prosecuting for the Constitution, Ruppert, supra, Snell conforming all forms of civil actions and (1975). P.2d at These are the procedures Wyoming Rules of provisions same constitutional in which all * * Procedure *.” Civil Ch. Ses- proceedings in the state other condemnation Wyoming sion Laws of their have roots. As the stated: often rule the meas- Section 24-9-101 does not set language plain,
“Where of a statute is damages paid upon ure of to be condemna- unambiguous, conveys a clear and tion, give authority nor does it to con- meaning, definite there is no occasion to demn. is contained in 32 and Such ” * * * resort to rules of construction. 1, Wyoming Art. These two Constitution. Supply Company Mountain Fuel v. Emer- things only are the substantive matters in son, (1978). Wyo., 578 P.2d condemnation. «* * * language generally agree And the same can be said of the ‘Courts direct, simple, plain, defining in Rule 71.1. It is the terms “substantive” *17 unambiguous. “adjective” cre- “govern[s] It states that it that “substantive” law ** ates, defines, op- procedure regulates rights the for the and as condemnation “adjective” “procedural” law power posed under the of eminent domain.” or enforcing ambiguity provides There is no or which the method of limitation duties, language 87(c) protecting rights, and of Rule which directs certain and 1296 majority to avoid opinion 4. The seeks are substantive created obligations ”’* * * language plain unambiguous and of rel. Frederick ex
laws. State by suggesting 1-26-405 Rule 71.1 § District Fifth Judicial v. District Court of in 24-9- procedures set forth Horn, §§ that the Big Wyo., of In For have to do with “ad- through 24-9-103 101 (1965). 585 399 P.2d and are there- condemnations ministrative” court for the federal That which was said subject judicial Again it action. fore Plumer, 380 U.S. system in Hanna v. legislature put the be noted that the can 1136, 1144, 14 (1965), L.Ed.2d 85 S.Ct. right in the middle of the judiciary smack our can be said of courts: l-26-405(b). procedure by enactment § «* * * provi- For constitutional hesitancy in majority opinion has no (augment- system a sion for federal court deciding necessity existed “judicially” that Clause) Proper Necessary and ed “administra- contrary for road6— congressional power to it carries with County Com- the Board of tive” decision of practice and governing rules make from the time the ini- missioners. And courts, which in turn pleading in those through 24- 24-9-101 §§ tial enactment regulate matters power includes a 9-103, control were judicial a review and which, falling uncer- though within the event, which has anticipated. In proce- tain area between substance specific already relative to been said dure, capable of classifica- rationally use of the legislative ratification ” * * * tion as either. condemnations, in Rule 71.1 procedure aspects of eminent do- The substantive whatsoever,” as set forth any purpose “for main, taking as the is for at least insofar 1-26-405, legislative intent reflects the in § concerned, sovereign right. is public a use of condemnation be type to have this of constitutional independently It exists judicial method. 29A C.J.S. legislative provisions. See majority opinion its conclu- 5. The bases (1965). With refer- Eminent Domain § public the BLM trail “is a sion that taking public purpose, a ence to a for of” 24-9-101 on the within the terms § “* * * provisions relat- constitutional such section “does not contention that right power or ing to the exercise public road” and that “does not define [a] are but limitations of eminent domain public road that is require with a connection be abso- power a would otherwise which Attention is county controlled.” state or 29A Emi- or without limit.” C.J.S. lute 24-9-101 was to the fact that § directed (1965). 3, p. nent Domain original 1886 enactment only part Constitution, sets Art. statehood) (before and that such enactment certainly with reference (after in 1895 was revised and amended limitation — and insofar as taking public purpose, for statehood) to include a definition of taking to a such can be done with reference roads: private purpose.5 for a state shall be “All roads within this may or highways have been superseded, 24-9- which were Before state, national, proce- declared law to provided the All dure, exercising roads. roads for territorial only procedure, designated or marked as the con- that have been established a substantive government maps plats highways on stitution. way type constitutionality taking there is a dictate the of a for a 5. The purpose necessity. example, terrain is referred infra. For the use and be, here, may hunting fishing, with a majority opinion may erroneous 6. The also be pack being even a horse trail sufficient—or holding exists for instances, trail in a wilderness area. land is landlocked. from fact airstrip may negate the of an the existence private way provision is constitutional necessity for of access. other means necessarily necessity. a road. The Such not topography, property, use etc. *18 precedent by land office of the Unit- The set the majority opinion the record of state, ed within this and which States giving viability continued publicly high- used as traveled have been through 24-9-103 is also bad. closed or ways, and which have not been procedure The contained therein is un- by
vacated order of the Board of the wieldy and inconsistent. This case has been County of the Commissioners progress year. for over a Before amend- located, wherein the same are are de- by 24-l-105(b) ment proce- § public highways clared to be until the required application dure a written to the same are closed or vacated order of regular commissioners “at a ses- County the Board of Commissioners of so, doing sion.” But before located, wherein the same are give days’ prior had to writing notice in charged by and the board or officer law * * * occupant” to the “owner or keep open duty with such shall the same pass. lands over which the road is to repair and in the same as in the case of nonresident, publica- But if the owner is a regularly opened by roads laid out and had, may tion for 3 weeks of a notice be order of the Board of the Com- (Emphasis supplied.) publication missioners.” Ch. with the last to be at least 30 69, 1, Laws of Session days § hearing” applica- “before the on the tion. accompanied this definition 24-9- Since enactment, 101 in the 1953revision of the it Already potential the inconsistencies and obviously roads definition problems are If the owner lives manifest. referred to therein. York, only publication in New is neces- bring BLM may It be difficult to sary occupant, if the one of owner’s —even “trail” within the “convenient road” relatives or lessees—is resident on the land.
requirement Additionally 24-9-101. occupant But such need not be notified. the determination of the status of the BLM given days notice must be before probably “trail” should not be made with- application filing given if other than presence out the of the United States —as publication. given by publication If the 30 majority opinion indicated before it days against of the measured date proceeded to do so. “hearing.” hearing on the date Will be statute, the Tenth With reference to application? It was not in this case. appeal said on from the Circuit Court U.S. hearing, At the the board determines Wyoming: District Court for the District of appoints the necessity, and if it finds such it “ * * * The law is well settled that appraisers” and sets a time “viewers and sovereign immunity waiver of is to be purpose of assess- for them to meet for the construed, plain strictly and it is locate a ing damages and to “view and Congress give did not its consent to suits according application against by private seeking it individuals they change If the date of the therefor.” Dry Lodge, roads.” Creek Inc. v. meeting, to the owner given notice must be States, United 10th Cir. 515 F.2d date set occupant days before the .new 926, 930. meeting. may Note that the owner occupant, a vitally interested and the EPILOGUE example, may not care. Yet a lessee for foregoing propriety illustrates the occupant There notice to the will suffice. dismissing this action for failure to follow whether the view- question be a as to 71.1, e., i. Rule and it proper procedure, ascertaining where “locate” the road ers precedent illustrates the bad set will and “mark- application says it holding the effect majority e., “according ing” plat, locating it on i. supersede Rules of Civil Procedure do not therefor” or whether in conflict procedural statutory provisions place. can “locate” it at some other therewith. *19 26,- Eminent Domain problem of Am.Jur.2d additional there is the Then (1966): pp. 668-671 public road.” a “convenient just what is the instances where There be Section 25: private necessity to the way a of only needs exercise general is that the “The rule given private has him else who the of eminent domain road of someone of public only for a property can be taken wording of this use it. The permission to words, it is or use. In other purpose such do not accommodate statute does private property generally settled 71.1. provisions the of Rule public than a taken for other cannot be report appraisers the viewers After * * * any circumstances. use under private “of the to the use is held nonpublic for a Condemnation them, and also the road so located though process, even be a denial of due any, if damages, of assessed amount accompanied by compensation full persons entitled to them, person or and the owner. confirm damages,” the commissioners however, instances, consti “In certain that such report are “satisfied if some of the states authorize tutions of provided just.” appeal is report is An private property private taking of for court. district as, example, ways necessity, for of uses— drains, flumes, reservoirs, ditches places the onus on amendment The 1953 domestic, mining, milling, agricultural, party” land or interested “any owner any use nec sanitary purposes —or days court within 30 petition the district of essary complete development the notice for a deter- publication after of or the of the state the material resources do if necessity. What does this mination of of the health its inhabitan preservation given publica- without written notice was ts.[7]! provisions, But and the these event, the determines any court tion? thereunder, have ordi enacted statutes county com- not the board of necessity, intending to narily as not been construed But, the court determines missioners. after taking private property a authorize then necessity, do the commissioners necessity public or advan without some court to reverse the opportunity have an tage.” (as “just” finding report is not Section 26: 24-9-103)? provided in § a explained that already “It has been provision no for assess- that there is Note taking property use cannot damages by jury a should ment of Congress without violat- authorized in Rule 71.1. party provided so is desire—as the Consti- ing Fifth Amendment States, and that such of the United tution through 24-9-103 are Sections state, by a is in taking, when authorized cumbersome, unwieldy and inconsistent. Fourteenth Amendment. violation of the part is reason the Undoubtedly such a decision of Occasionally happens that legislature repeal saw fit to and court taking that a a state court supersede them. use, involving only constitutionality dispose of this case I would Since the usual consti- a state statute under procedure was not proper basis brought provisions, is before tutional followed, constitu- would not I address un- Supreme Court of United States However, it is problem. proper ques- tional process clause. Such der due however, purpose arise, any taking for a un- note that frequently more tions provisions found constitutionality. special This constitutional questionable der declaring certain several of the states in 26 general proposition is summarized reasons, private way justified Perhaps taking for a can for one these justification must be rational. McCLlNTOCK, J., disposi- concurs in the generally which are uses provisions are appeal suggested such. Such tion of the in the dissent- considered courts so far as the binding ROONEY, on the state ing opinion of J. *20 concerned, of the states are
constitutions the Fourteenth they cannot override
but
Amendment; and a state statute taking property for a
provides for the use, though specifically authoriz- state, can be constitution of the
ed Supreme Court of the by the
overturned States, highest even
United itself, Federal the state since the court of JOHNSON, Carl A. as his interest binding on the courts of Constitution is (Plaintiff), appear, Appellant provi- every notwithstanding any state Especially is sion in its own constitution. v. the state constitution this the case when AETNA CASUALTY & SURETY CO. OF pub- not declare a certain use to be does HARTFORD, 06115, and Richard CONN. lic, property merely provides but Burk, Rep., 1616 War- G. Resident Claim use, even if it is may be taken for that Ave., Cheyenne, Wyoming, Richard ren (Emphasis supplied.) private.” Bader, St., Cheyenne, Wy- 214 E. 17th L. Domain, 1 Nichols on Eminent 4.7 at See Obstructing oming, and Jus- Unknowns
p. 4-29. tice, (Defendants). Appellees Finally, I note that the fact No. 5223. applied through 24-9-101 24- court has §§ disposing past 9-103 in cases Supreme Wyoming. Court of superseded by such sections were and after proper refusing Rule 71.1 is not a reason for 1, April 1980. acknowledge supersedure. such Courts Rehearing April Denied often correct their own errors. Brown Topeka, of Education of Board Shawnee Kan.,
County, U.S. S.Ct. (1954), supp. opin. 349
L.Ed. 873 U.S. (1955), the Court
S.Ct.
struck “separate equal.”
trine of In Washakie v. Her
County District No. One School
schler,
(1980), this court
Wyo.,
refused
financing, having previously many acted disap
cases relative thereto without
proval. acknowledge un-
It is time to
wieldy conflicting by Rule 71.1. I superseded
24-9-103 were with direction to
would remand the case appealed
vacate the order from and both
the decision of the Board of Com- prejudice
missioners without to institute
proper proceedings under Rule 71.1 alleged private way
purpose obtaining to and from the 80-acre tract of
land.