Alfred J. WALTON and Carol Jean Walton, his wife, Appellants (Respondents), v. Dennis C. DANA and Joan Dana, his wife, Appellees (Petitioners).
No. 5216.
Supreme Court of Wyoming.
April 10, 1980.
608 P.2d 1271
Once this question has been answered affirmatively, the district court must move on to the second determination, i. e., is there no just reason for delay? This determination is reviewаble only for an abuse of discretion. 10 Wright & Miller, supra, Civil § 2655, p. 38 (fn. 35). This is so because such a decision is more in the nature of a factual determination. The district court is called upon to weigh a variety of factors and factual circumstances in reaching its decision. 10 Wright & Miller, supra, Civil § 2659.
In this case, the district court erred in determining that there were multiple claims2 within the contemplation of
Because of this holding, we need not decide whether the district court abused its discretion in determining that there was no just reason for delay.
There being no final order, Rule 1.05, W.R.A.P., from which an appeal may be taken, an order dismissing the appeal will be entered concurrently with this oрinion.
ORDER DISMISSING APPEAL
Pursuant to the court‘s opinion filed this date and for the reasons there stated, it is
ORDERED that the above-entitled appeal be, and is, dismissed.
Duane E. Thomas, Lake City, Fla., signed the brief for appellees. Glenn Parker of Hirst & Applegate, P. C., Cheyenne, appeared in oral argument.
Before RAPER, C. J., and MCCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
RAPER, Chief Justice.
The appellees (Danas) pursuant to
The issues as presented by the Waltons are:
“1. Did the Appellees meet their burden of proof before the Board of County Commissioners to show ‘necessity’ as required by
§ 24-9-101, Wyo.Stat.1977 , in order to have the Appellants’ land condemned for a private road of necessity for the benefit of the Appellees?“2. Is the land owned by the Appellees ‘so situated that it has no access to nor connection with a public road‘?
“3. Is the common law doctrine of implied easement by necessity a factor to be considered in determining whether a parcel of land has no access to nor connection with a public road?”
We will affirm the district court.
The Danas acquired their 3.75 acre tract of land by gift from Dennis Dana‘s parents who retained land bordering that which was conveyed, which land has frontage on the Muddy String Road, which road is approximately one and one-half miles from the land of the Danas. The road which the Danas sought to еstablish crosses the Waltons’ land for a distance of about one-quarter mile and connects with U. S. Highway 89. The Waltons refused access. No road exists from the Danas’ land across that of their grantors. The road the Danas wished to establish already was in existence and had been used in the past by their predecessors in possession.
The petition filed with the county commissioners does not furnish a precise description of the road it seeks but does allege that it presently exists and proceeds east along the northern boundary of appellants’ land. According to the testimony of Dennis C. Dana, one of the petitioners, any road across the land of their grantоrs would be impractical and the cost prohibitive because there is too much swamp and in addition it is cut off by “the East Side Canal.” He had discussed with his father a road across his parents’ land but no agreement in that regard had been reached because it was never considered feasible on account of the swampy condition, as well as the canal. There was no evidence presented to the county commissioners other than the testimony of Dennis C. Dana with an aerial photograph as an exhibit to explain the lay of the land and the road location. The Waltons did not appear personally but were represented by counsel at the hearing.
The county commissioners in their decision and order found that the Danas owned the 3.75 acres; the Waltons owned the land over which the Danas sought a road for access to U. S. Highway 89 and had given no permission to the Dаnas to cross their
“6. A road can be built on Lafe Dana‘s [father of appellee Dennis Dana] and to give accеss to the Danas’ land from the Muddy String County Road.
“7. Petitioners may have access to their real property across their grantors property from the Muddy String Road which is a public road and therefore not so situated that it has no outlet to, nor connection with a public road.
“8. That the Petitioners’ grantors still own the property to the East of the Petitioners’ property which is bounded by the Muddy String Road.”
The argument of counsel for the Waltons and the conclusions of law reached by the county commissioners clearly indicate that the road was denied for the reason that the Danas have a common law way of necessity. The commissioners concluded as a matter оf law:
“3. If the land granted is partly surrounded by that of the Grantor and partly by that of strangers, a right-of-way over the grantors’ remaining land exists by necessity.
“4. Whenever a grantor conveys away a part of his property, he conveys with it whatеver is necessary for the beneficial use of the land he conveys, including a way of ingress and egress over his remaining land if not otherwise available. The way is presumed to have been intended by the parties.
“5. While it is not a condition precedent to this proceeding that the Petitioners first enforce their common law way of necessity; the existence or non-existence of the availability of a common law implied easement or wаy of necessity is a factor which may be considered in determining if the private road sought to be condemned is necessary.
* * * * *
“7. Article I, Section 32 of the Wyoming Constitution does not abolish the common law concept of аn implied easement of ingress and egress over the grantor‘s remaining land if access is not otherwise available nor does the case of Snell v. Ruppert, 541 P.2d 1042 (Wyo. 1975) foreclose the possibility that a common law way of necessity can bе imposed in a proper case.
“8. The Petitioners have the burden of showing a ‘necessity’ for the establishment of a private way of necessity. The Petitioners have failed to meet that burden.”
Whether to pursue their right to claim a common law way of necessity or proceed for establishment of a private road over the lands of a stranger is a choice which rests exclusively with the petitioners. There is no requirement in
We point out that the language of
In Snell v. Ruppert, Wyo.1975, 541 P.2d 1042, we plainly held that it is not a condition precedent to proceeding under
We, therefore, conclude and hold that the Danas have met their burden of proof and have shown necessity in that they have no presently existing access to nor connection with a public road and that the availability of a common law way of necessity is not a factor to be considered.
Affirmed.
ROONEY, Justicе, dissenting with whom MCCLINTOCK, Justice, joins.
I dissent for the reasons set forth in my dissent to McGuire v. McGuire, Wyo., 608 P.2d 1278.
Until either (1) the legislature repeals
I would remand the сase with direction to vacate both the order appealed from and the decision of the Board of County Commissioners without prejudice to institute proper proceedings under Rule 71.1 for the purpose of оbtaining an alleged private way of necessity.