Summary 2006 WY 69

Summary of Decision issued June 2, 2006

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Case Name: Reidy and Reidy v. Stratton Sheep Company

Citation: 2006 WY 69

Docket Number: 05-194

Appeals from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellants (Petitioners): Kermit C. Brown of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee (Respondent): Catherine MacPherson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Date of Decision: June 2, 2006.

Issue: Whether access is necessary because Stratton has no legally enforceable access. Whether USFS 807 is a public road such that, under W.S. § 24-9-101(a), respondent Stratton has an outlet to or connection with a public road. Whether the southern portion of Tract 49 is “surrounded on all sides by land owned by another person or persons or a natural or man-made barrier making access unreasonably costly.” Whether Stratton has satisfied the requirements of Wyo. Stat. Ann. § 24-9-101. Whether the road established by Carbon County Board of Commissioners in its Findings of Fact, Conclusions of Law and Order was necessitated by the requirement Wyo. Stat. Ann. § 24-9-101 that the viewers and appraisers recommend “the most reasonable and convenient route.”

Holding: The Reidys own a dude ranch in Carbon County along the Wyoming-Colorado border. Stratton owns a 160-acre parcel known as Tract 149 adjacent to the Reidys’ property. The Reidys and their predecessors allowed Stratton to travel the road over their private property to access the southern boundary of Tract 49. The Reidys revoked permission in 1997 due to Stratton’s proposal to use semi-trucks to transport cattle through the dude ranch. Pursuant to § 24-9-101, et seq., the board held a hearing to determine whether Tract 49 was landlocked and a private road over the Reidy’s property was necessary. The board concluded that Stratton had successfully established the private road was a necessity and appointed viewers and appraisers to locate the road and determine the amount of compensation due to the Reidys. The Reidys filed a petition for review and the district court affirmed the board’s decision. Both parties presented evidence so the Court reviewed the factual determinations of the board by applying the substantial evidence test. However, no deference was given to the board’s conclusions of law.
Public Road: Section 24-9-101, et. seq., sets out the procedure for obtaining a private road and provides the sole remedy for land-locked landowners. The threshold inquiry for establishment of a private road under this section is necessity. The board did not expressly rule whether FS 807 was a public road, but its findings and conclusions implied it did not consider FS 807 to be a public road. The record contains voluminous testimony and documentary evidence presented at the contested case hearing concerning the characteristics of FS 807. Stratton argued that the road was not a “public road” within the statute’s meaning because there was testimony that the road could be restricted or closed and that use of the road was a privilege and not a right. The Court held, as a matter of law, the fact that a road can potentially be restricted or closed is not determinative of the issue of whether it is a public road. Further the Court held as a matter of law that a road over federal lands may be considered a public road within the meaning of Wyoming private road statutes, provided the characteristics of the road indicate it is available to the general public. The Court found no evidence contraindicating the assertion that FS 807 was available for use by the general public. In determining FS 807 could not be considered a public road under the case law, the board misinterpreted the Court’s precedent. The Court held as a matter of law, roads over federal lands may be considered public roads under Wyoming private road statutes. The individual characteristics of each road would determine its status. The Court concluded that the board erred when it failed to recognize FS 807 as a public road and ruled that Stratton had proven necessity because its access via FS 807 was not “legally enforceable.”
Convenience: The convenience factor must be applied judiciously. The Court stated that interpreting the statute to allow a finding of necessity when an applicant is seriously inconvenienced by an alternative route serves the purposes of the private road statute. Substantial inconvenience can include the consideration of whether or not the road is plowed in the winter, the total distance of the two routes and the suitability of the road for the proposed traffic. Wagstaff illustrates the high level of inconvenience which must be shown to justify a taking of a neighbor’s land for a private road. The Court reviewed the record and concluded that the instant case did not demonstrate the high level of inconvenience required to establish necessity. The board’s conclusion to the contrary was legally incorrect.

The Court reversed and remanded to the district court directing the district court to enter an order reversing the order of the board and directing the board to deny the Stratton application for a private road.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/sxgfj .