RUBY DRILLING CO., INC., Appellant (Defendant), v. Jay BILLINGSLY, Deborah Billingsly, husband and wife, and Andrew Cornelius, Appellees (Plaintiffs).
No. 5785.
Supreme Court of Wyoming.
March 22, 1983.
Other jurisdictions have recognized that a trial court is without power to enter a nolle prosequi over the objections of the prosecuting attorney. While they have not necessarily articulated that rule in terms of a constitutional standard, still the essential thrust of their statements of the rule is consistent with this proposition.
As the Texas court said in State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 175, 69 A.L.R. 233 (1930):
“The courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to summarily dismiss criminal cases over the protest of the district attorney in charge of such prosecution. And, if the authority does not exist at common law, and has not been conferred by the Constitution nor by the statutes of this state, then the attempted exercise of such power by the court in this instance is ineffectual and void. [Citations.]”
The Texas court cites a number of cases as authority for that proposition. In addition the same proposition appears in Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977); State v. Summa, 5 Conn.Cir. 78, 242 A.2d 94 (1968); and State v. Hodsdon, Del. Super., 289 A.2d 635 (1972). The logical extension of a rule that the trial court cannot dismiss a criminal charge over the protest of the prosecuting attorney has to be that it cannot inhibit the refiling of a criminal charge even though technically a dismissal is found to be proper. Such an assumed power, as noted earlier, would contravene the separation of powers doctrine provided in our constitution.
ROSE, Justice, specially concurring.
I concur in the specially concurring opinion of Justice Thomas, but I do not hold with the specially concurring opinion of Justice Raper for two reasons:
First, the right of the State of Wyoming to appeal an adverse decision in a criminal case is not raised and, therefore, according to our traditional position, we should not undertake decision-making where issues are not raised by the parties to the appeal, ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981).
Secondly, Justice Raper has not shown me that there is any authority for the State of Wyoming to “appeal” an adverse decision. So far as I am concerned, bills of exception remain the only avenue along which the State may travel to find relief from where the decision in the district court is adverse in a criminal prosecution.
No appearance for appellees.
Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.
ROSE, Justice.
This is an appeal from a judgment rendered in favor of the appellees Jay Billingsly, Deborah Billingsly and Andrew Cornelius for damages resulting from an alleged trespass committed by the appellant Ruby Drilling Co., Inc. Appellant argues that the district judge erred in finding that appellant committed a trespass and in awarding the appellees damages for continuing trespass.1 The issue to be addressed is whether or not, under the facts as developed at trial, the appellant is liable for trespassing upon the appellees’ property. We will hold that Ruby Drilling Co., Inc. did not commit a trespass and will reverse.
FACTS
On July 6, 1972, the Campbell County Planning and Zoning Commission approved a platted subdivision to be known as Concho Valley Estates. The plat and map of the subdivision were approved by the Board of County Commissioners of Campbell County on July 7, 1972, and these instruments were filed and recorded on that date. The plat and map revealed that each street appearing thereon was to have its own name and that these streets resulted in the creation of a 60-foot-wide right-of-way easement. The effect of the easement was that each of the 45 lots was encumbered by a 30-foot right-of-way easement for street purposes and the easements traversed such areas of the properties as would otherwise belong, unencumbered, to the various lot owners.
The appellees are the owners of two adjoining lots in the Concho Valley Estates. Their property is bordered on the west by an access road designated in the recorded plat as Falcon Avenue. At the time of trial no provision had been made for establishing a central water supply or distribution system for the subdivision, but the record reveals that the appellees shared a water well which supplied their residences.
In 1976, the appellant Ruby Drilling Co., Inc. drilled a deep-water well near the subdivision and ever since has been trying to
On January 11, 1981, as a result of discussions with Meis, appellant installed a water line. This installation required the digging of a trench, the laying of a four-inch pipe, and backfilling. The trial court found that the pipeline was installed in the barrow ditch east of the traveled portion of Falcon Avenue, but within a distance of 22 feet from the road‘s center line. The evidence, therefore, established that the water line was located within the lines designated on the plat as the Falcon Avenue easement. It was also established that the pipeline was laid without the permission of any of the appellees.
Because appellant failed to obtain permission, appellees filed a complaint alleging that Ruby Drilling had trespassed on their property causing them damage. Appellant generally denied the commission of a trespass upon the properties of the appellees and filed a counterclaim. The counterclaim was dismissed on appellees’ motion for summary judgment and the case went to trial on the trespass claim resulting in the previously mentioned judgment entered in appellees’ favor.
THE LAW
As we noted above, the cause of action filed by appellees in this case was for an alleged trespass that occurred as a result of Ruby Drilling‘s laying of the water line. We have also made mention of the fact that the evidence established that the water line was installed within the boundaries of the 60-foot Falcon Avenue easement described on the plat filed with the county clerk in 1972. Given these facts, the sole question to be answered concerns whether or not the appellees had any claim to possession of the portion of the easement used for the water line, so that an action for trespass would in fact lie.2
A resolution of the question requires us to determine the effect of the dedication of the easement on the plat. The appellant argues that it is of no significance that the notation on the plat does not state that the roadway easements are dedicated to the public because the language of
We have construed the predecessors of
In Tissino v. Mavrakis, 67 Wyo. 560, 228 P.2d 106 (1951), we held that the language of the statute intending the platting of a subdivision, and the sale of lots in accordance therewith, constituted a public dedication of the streets which are shown upon the plat. We also held that the platting and recording of a subdivision in accordance with the statutes4 resulted in the county or
We modified the above holding in Tissino v. Mavrakis, supra, in two later cases that had to do with the power of municipalities to sell or transfer property formerly dedicated to the public through operation of the statute. In Gay Johnson‘s Wyoming Automotive Service Co. v. City of Cheyenne, Wyo., 367 P.2d 787 (1961), and Payne v. City of Laramie, Wyo., 398 P.2d 557 (1965), we held that the intent of the language of § 34-115, W.S.1957 (predecessor to
These cases at least stand for the proposition that the language of present
Carr v. Hopkin, supra, involved a case in which appellant had constructed a water line across certain property claimed by appellee, which lands had been designated for use as a street on a plat of the subdivision. Although in that case we held that appellee had an action for trespass, that holding is to be distinguished from what we say here, because there the plat had never been filed or recorded, nor had the disputed easement ever been used for a street. We believe the holding in Gregory v. Sanders, supra, has little bearing on the present circumstances because there some of the disputed roads had clearly been reserved on the plat for private use of the lot owners.
Given these authorities, we are of the opinion that, under the facts of record
Having come to this conclusion, we must also conclude that appellees could not maintain an action for trespass. This holding flows from the fact that the entire 60-foot-wide area was dedicated to the public and the dedication was not restricted to only that portion being used for a roadway. This being so, the appellees as owners of lots in the subdivision only have a right to the use of the Falcon Avenue easement for ingress and egress to their property; they have no possessory interest in that area sufficient to provide the underpinning for an action in trespass.
It may be said that appellees could have maintained an action for interference with their right to use the easement, but such allegations were never made. It appears from the record that the case was tried on the theory of trespass and we hold that no action could be maintained on that ground. The above resolution obviates the need to discuss appellant‘s remaining issue having to do with the award of damages for continuing trespass.
Reversed.
ROONEY, Chief Justice, specially concurring.
I concur, but I take exception to the statement in the majority opinion that:
“the holding in Gregory v. Sanders, supra [Wyo., 635 P.2d 795 (1981)], has little bearing on the present circumstances because there some of the disputed roads had clearly been reserved on the plat for private use of the lot owners.”
As pointed out in my dissent to that case, the plats of the five subdivisions involved in that case, clearly and unambiguously dedicated the roads thereon to the public. Notarized statements on plats for Subdivisions 1, 2, 3, and 4 so dedicated the roads “as shown on the foregoing Plat,” and a notarized statement on the plat for Subdivision 5 dedicated “to the public use existing roads and ways.” The roads under consideration were then existing roads. There was no reservation for private use on the plats.
Although the majority opinion in Gregory v. Sanders, supra, does not harmonize with this opinion, the dissent in it does, and the holding in this case is proper.