*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 72 A.L.R.4th 113 commissioners.” board Duff, Bush v. (Wyo. P.2d any ambiguity may 1988)2 may suggest To the extent the existence decisions, make previous exist specifi a common law *4 action for a common clear now that civil construc cally overruled and is dicta. This necessity is not available be way law 24-9-101, i.e., it tion of W.S. that obviates 24-9-101. the existence of W.S. cause of recognition law the need for of the common 461, v. P.2d 463-64 Walton 609 necessity, area clarify serves to Ruppert, v. P.2d Snell (Wyo.1980); 541 of the law and will also eliminate the confu Sheep (Wyo.1975); and see Leo 1042, 1046 complications sion and that will undoubted States, 440 U.S. 668, 680, v.Co. United 99 ly arise out of the rule that a common law (1979). 1403, 1410, L.Ed.2d 677 S.Ct. 59 long as the lasts as quite clear. We Snell The decision Herman, See, e.g., v. Joines necessity. 89 concept of a common law held that the 507, 606, N.C.App. 607-08 366 S.E.2d theoretically incompatible (1988); Dulaney v. Rohanna Iron and I, with Art. 32 of the Constitu- § Metal, Inc., 45, Pa.Super. 344 495 A.2d tion, provides: Gilliland, 1389, (1985); Oyler v. 1391 382 not taken for property “Private shall be 517, 519, (Ala.1980); So.2d 10 A.L.R.4th 443 by unless consent of the own- use 442, Lyons, Badura v. 147 23 Neb. N.W.2d er, private ways except for Cullen, 26 678, (1946); Roediger v. 683-85 reservoirs, drains, and for flumes 690, 669, (1946). P.2d 673 A Wash.2d 175 the lands of others ditches on across private road established accordance with mining, milling, agricultural, domes- 24-9-101, provides permanent a more sanitary purposes, tic or nor case equitable as a more solution. as well compensation.” without due Moreover, as has been noted several addition, if also held that a statute we Snell, forcing decisions, e.g., Dana and matter, abroga- subject covers whole wholly a landlocked landowner to choose a tion common law on the same sub- of the uneconomic, illogical, unproductive implied. terse ject necessarily Our If road makes no sense at all. that were to that W.S. and rather clear conclusion was case, soon riddled be the our state would seq., “offers complete relief to et space money roads which waste landowner and covers whole shut-in development problems and create road subject matter.” 541 P.2d at 1046. eventually paid would have to be opinion does de- Footnote 4 of the taxpayers truly strangers are who language tract the clear roadways. 1 of the body opinion, and footnote to a common law the confusion between the two is uncom- 1. We note that the reference Thompson Property 2 on Real 362 § was dicta in the Miller case. mon. (1980 analysis, agree Repl.). Upon we law close The distinction between a common Wyo- implied with the United States Court that easement is an ex- and an ming longer recognizes a common law tremely important Thompson 2 on Real one. Bush, 3; necessity. P.2d at fn. Leo 754 163 Property Repl.). 362 States, Sheep Co. v. United 440 U.S. (1979). S.Ct. L.Ed.2d 677 discussion of the common dicta, largely We note here treat all in Bush is also also some states really with an such easements statute which does add clari the court was concerned easement, ty to this area the law. See Parham v. Red rather than a common law dick, (Fla.App.1988). necessity. Thompson, As noted Professor 537 So.2d Thus, 99 S.Ct. at 1410. cannot reemphasize a landlocked it We accurately to seek whatever be said that is not entitled result landowner It is most “strained.” unfortunate that subse- he desires or is convenient seek, quent fully and the decisions of this court failed to him. He still must only recognize holding Ruppert, of Snell v. approve, are bound commissioners proper decisions employ means of to landlocked but none those such access necessity” “way remedy, In the as a are instant ty as reasonable. nothing route of it amounts to more practical most and reasonable discussion

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 609 P.2d 461 tained v. Walton “ * * * Anthony McIlquham In v. Wil Duff, v. (Wyo.1980),and Bush Co., 1909, Wyo. 18 kinson Live Stock (Wyo.1988). In this latter 159 implicitly [1909], 104 P. 20 this court court said: predecessor the statute found that [the common-law “Such a (Cum. of Section W.S.1977 subject to taking not constitute a does remedy Supp.1990)] an alternative in Art. restraints found constitutional supplant and it was not intended 33 of the Constitution of 32 and §§ a to a the common State of land over the means of access to his grant ingress presumes that the grantor.” lands of his egress conveyed land decidendi, McGuire, its in terms of ratio estate was intend- owner of servient application parties. Ruppert, of the statute and dealt with ed Powell, (1975); Wyo., in it for es- P.2d 1042 3 R. requirements incorporated 541 Property, supra, it. The Law of Real Ch. tablishing Grant- agree should be. I the Order of the common at 61-68. The rule Summary goes Judgment must ing Motion for law is that reversed, re- dominant es- the case should be constituting the the land genuine mate- tate, payment of additional com- manded for trial of issues of and no Bush, 754 fact pensation contemplated.” rial fact. Those issues of material prior 163. P.2d at relate a determination of surrounding the effort to establish events history perspective, critical With this legal the statute. The private road under rationale evaluation resolved would relate issues to be departure opinion in order. The effort impact the common- page majori- 289 of is the statement example: For ty that: “ * * * judicial estoppel Is the doctrine recog- policy Opposed applicable? inequitable to that it is unfair or nizes claim, reme- landowner 2. Has been an election of permit a landlocked compensation, way Murray dies Edwards? grantor which the lands of his 3. Did that effort manifest a waiver provided for at time could have been reme- abandonment of alternative conveyance and which purchase dy? final resulted in a reduced cost may have summary I am satisfied While of the land.” reversed, the correct judgment must be authority apparently cited for this nov case is remand it for resolution of this Real Thompson Proper el on comment justification, other than trial. There is no A ty, Repl.). careful §§ decision, to direct that the ease legislative disclose that text fails to reading of jurisdiction. for lack of must be dismissed for the statement articulated basis event, clearly it is incom majority.

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