Summary 2005 WY 153

Summary of Decision issued December 1, 2005

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Cundy and Sundance v. Range Telephone Coop, Inc.
Sundance and Cundy v. Union Telephone Co.

Citation: 2005 WY 153

Docket Number: 04-218; 04-220

Appeal from the District Court of Crook County, Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Cecil A. Cundy of Sundance, Wyoming.

Representing Appellees (Plaintiffs): Bruce S. Asay of Cheyenne, Wyoming for Range Telephone Cooperative, Inc.; and Paul J. Drew of Gillette, Wyoming for Union Telephone Company.

Date of Decision: December 1, 2005

Issues: The issues in these two interrelated cases are very similar. Case 04-218: Whether Range Telephone had a right-of-way for ingress and egress to maintain the facilities – including microwave facilities, located atop Sundance Mountain in Crook County, Wyoming. Case 04-220: Whether Cundy may assert the Statute of Frauds to defeat the validity of Union Telephone’s lease. Whether there is any evidence to support Cundy’s affirmative claim that Union Telephone’s predecessors were without authority to transfer Union Telephone’s leasehold property. Whether the trial court properly granted partial summary judgment in favor of Union Telephone.

Holdings: Case 04-218: This case is an appeal of a summary judgment in favor of Range’s motion. Range, by two different and separate chains of authority, had purchased right-of-way to access its deeded property located on Sundance Mountain. Wyoming courts have stated in unequivocal terms that the owner of an easement has the absolute right to occupy and use the easement and is entitled to injunctive relief to prevent interference by the landowner. A plain reading of the transfer documents indicates that the Grantors passed to Grantees and their successors in interest or assigns the right of ingress and egress.
Summary judgment is granted on the finding that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The record is examined from the vantage point most favorable to that party who opposed the motion, affording that party the benefit of all favorable inferences that fairly may be drawn from the record. The construction of reservations in deeds are to be narrowly and strictly construed against the grantor and in favor of the grantee. The district court properly concluded that the lease and its concomitant authorization for Range to use the right-of-way conveyed for the limited purposes associated with that lease was efficacious and is affirmed. The district court also noted that Range had a second right-of-way through acquisitions of rights-of-way held by its predecessors in interest which permitted Range access. Implicit in the district court’s findings is that Range’s use of the second right-of-way does not create a significant additional burden to that right-of-way and the interest Cundy has in it. Trust instruments are to be construed as authorizing all acts within the use contemplated to effectuate the object of the creator of the trust. Changes in circumstances may give rise to an assumption that the settler of the trust would allow the trustee to adjust his conduct to those changes. The Court stated that circumstances in the field of telecommunications have changed dramatically and it is not a leap of logic or sound judgment to conclude that an extension of telephone services is related to the distribution of television.
All the parties in the instant case had complete notice of all claims and were afforded a full opportunity to develop and litigate the issues the district court ultimately decided. The district court determined that Range did have access to the right-of-way which Cundy had blocked. The Court reviewed the record and held that Range did state a cause of action upon which relief could be granted. Summary judgment in favor of Range was affirmed.
Case 04-220: The issues in the Union Telephone case were identical to those of Range and in light of the condition of the pleadings and proceedings in the case, the Court affirmed the district court’s order in its totality.

C.J. Hill delivered the opinion for the court.