Summary 2006 WY 95

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Case Name: Closs v. Schell

Citation: 2006 WY 95

Docket Number: 05-243

Appeal from the District Court of Converse County, Honorable Keith G. Kautz, Judge

Representing Appellants (Petitioners): Charles S. Chapin, of Crowell, Chapin, & Dixon Casper, Wyoming.

Representing Appellees (Respondents): James A. Hardee, Douglas, Wyoming

Date of Decision: July 31, 2006

Issues: Whether the viewers/appraisers properly determined the "before and after value" as required by Wyo. Stat. Ann. § 24-9-101(j) and whether the Appellee Board of Commissioners inappropriately disregarded and/or dismissed the comparables relied upon by the Appellants' appraiser when determining the extent of damages to award for the taking of their property for a private road. Whether the Appellants were deprived of due process because one of the three viewers/appraisers did not attend the final hearing. Whether the viewing/appraisal process was nullified because the viewers/appraisers were directed that the private road had to exit from the Appellants' property at a point which intersected with an easement acquired by the Appellants from a third-party. Whether the final report of the viewers/appraisers is invalid because a plat of the chosen road was not filed contemporaneously with the report.

Holdings: Although the before and after values were not separately stated in the final report, two of the viewers testified at the final hearing explaining their determination of damages. Wyoming precedent allowed viewers to testify at the final hearing explaining their valuation rather than requiring the submission of a report. In the case at hand, one of the viewers testified as to his understanding of the methodology for calculating damages. He explained that "you find a dollar value of the property before the easement, and a dollar value after." This testimony demonstrates that the viewers understood that damages were required to be calculated by a "before and after" valuation of the Appellants' property. They then concluded no damages were caused to the property except damages sustained by the actual land taken for the placement of the private road. So long as it is clear from the record the landowner was fully compensated for the difference in values of his land before and after the taking, the action must be sustained. In this case, the viewers understood the assessment of damages required the determination of before and after values of the Appellants' property. A majority of the viewers attended the final hearing and were examined by counsel concerning their valuation process. Clearly it would serve no valid purpose to remand this matter and require the viewers to provide 'before and after' values which would simply reflect the value difference in the amount of the damages already determined.

The Board did not inappropriately disregard the testimony of the Appellants' expert appraiser. After careful consideration of all of the evidence, the Board chose to give the viewers' testimony more weight and credence than the testimony of the Appellants' expert. The Board adequately explained its reasoning for accepting the viewers' testimony. Thus upon review of the record, there was no error in the Board's acceptance of the viewers' assessment of damages. The viewers concluded that the only damages caused to the property were damages sustained by the actual land taken for the placement of the private road. The viewers applied their knowledge of the local conditions and common sense in making their determination. The record makes it apparent that the viewers made the appropriate review utilizing the required "before-after" analysis to determine damages. The viewers also complied with applicable law in making their assessment and substantial evidence exists to support that assessment.

Landowners have a right to a due process hearing before the board in a proceeding to establish a private road because of the property rights that are involved. In the present action, Appellants were afforded a due process hearing before the Board enabling them to lodge their objections concerning the final report submitted by the viewers. Although one viewer was not present to testify, neither the statutes nor case law require the presence of all the viewers at the hearing. Two of the viewers were present to testify and were extensively cross-examined by the Appellants. Nothing prevented the Appellants from subpoenaing the missing viewer or requiring the other viewers to produce copies of the comparables used. Thus, there was no violation of the Appellants' right to due process.

Convenience and reason should prevail in the establishment of roads. In the action at hand, the viewers' report reveals that each proposed route was given appropriate consideration. The report explains that the viewers walked and marked out each route. Upon doing so, they discovered the Appellees' proposal used an existing two-track road that had been utilized to access the property since 1985. The two-track road connected directly to an easement granted by a third party and led to a public road. In contrast, the alternate route proposed by the Appellants was not an existing roadway and required significant cost to build. The proposed alternate route did not connect to the existing easement nor to a public roadway. Additionally, that portion of the Appellants' property contained a sharp incline and soft areas, or "bogs." Establishing a road along this route would also require the road to cross a creek and the removal of many trees. After considering each route, the viewers concluded that the Appellees' proposal was more convenient and reasonable. The Board agreed with the viewers that the Appellees' proposal was more reasonable and convenient. The Board found that the expense and physical obstacles in the alternate proposed route made it impractical except under the most desperate of circumstances. The Board also expressly stated that its decision was not premised on the fact that the alternate proposed route did not connect with the existing easement. The Appellees' sole purpose for filing a petition to establish a private road was to ensure access to their property. A proposed route that requires the building of an entirely new road that does not connect to any other existing roadway or easement is neither convenient nor reasonable. Accordingly, there is no error.

The Board accepted the viewers' report and ordered the Appellees to file a certificate of survey within twelve months. The Board further required that the assessment of damages be paid upon completion of the survey. In addition, the measurements of the road upon the filing of the final plat were the same as the survey filed with the petition for a private road. Even if the measurements had been different, the method used to assess damages in this case could easily have been applied to correct any discrepancies. As a result, any alleged irregularity was de minimis.

The Board's decision was supported by substantial evidence. The viewers did not err in their assessment of damages and the Board did not inappropriately disregard Appellants' appraiser's testimony. The Appellants' due process rights were not violated. The Board and viewers gave appropriate consideration to each of the proposed routes for placement of the road. There was no prejudicial error to the Appellants as a result of the late filing of the plat.

Affirmed.

J. Burke delivered the opinion for the court.