Summary 2007 WY 35

Summary of Decision issued March 2, 2007

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Case Name: Pine Bar Ranch, LLC and Torrey, Torrey and Torrey v. Luther and Luther and The Board of County Commissioners of the County of Fremont

Citation: 2007 WY 35

Docket Number: 06-108

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge

Representing Appellant (Cross-Petitioners/Respondents): David B. Hooper, of Hooper Law Offices, PC, Riverton, Wyoming; Tom A. Glassberg, of Hooper Law Offices, PC, Teton Village, Wyoming. Argument by Mr. Hooper.

Representing Appellees (Petitioners/Respondents): Joel M. Vincent, of Vincent & Vincent, Riverton, Wyoming; Paul J. Hickey, Roger C. Fransen, and Brandi L. Monger, of Hickey & Mackey, Cheyenne, Wyoming. Argument by Mr. Hickey.

Issue: Whether the Board of County Commissioners of Fremont County erred when it determined that the Surrell Creek Road was a public road for purposes of Wyo. Stat. Ann. § 24-9-101 et seq.

Facts/Discussion: The Luthers are the owners of a parcel of real property located in Fremont County. They filed an application with the Board of County Commissioners of Fremont County (Board) to establish a private road, claiming they did not have legal access from their property to a public road. After a hearing, the Board determined the Luthers did not meet their burden of establishing necessity and denied their application. The Board found the Luthers had access by way of the Surrell Creek Road. The Luthers filed a petition for review with the district court contesting the Board’s finding. The district court reversed the Board’s decision. Pine Bar Ranch filed this appeal.
Standard of Review: The Wyoming Administrative Procedures Act governs the Court’s review of a Board’s decision on an application for a private road under Wyo. Stat. Ann. § 24-9-101. The Court stands in the same position as the district court and reviews the Board’s decision as if it had come directly to the Court from the Board.
Wyoming’s private road statute provides that the applicant must first show that he has no legally enforceable means by which he can gain access to a public road. Once that showing is made, the applicant has demonstrated necessity as a matter of law. The undisputed facts concerning the Surrell Creek Road: it is a two-track dirt trail that was constructed in the 1940’s by the C.C.C. for purposes of forest and range administration and fire control. Other than a recorded right-of-way for approximately one mile leading to the Boulder Flats Subdivision, no other recorded right of way exists for the remaining several miles of the Surrell Creek Road to the LHart Ranch. Wyoming statutes providing definitions of public roads are of little assistance in the instant case because the Surrell Creek Road is located within the boundaries of the Wind River Indian Reservation and is subject to the jurisdiction of the Bureau of Indian Affairs (BIA) and the Joint Business Council of the Arapahoe and Shoshone Tribes. The Court referred to a recent case, Reidy, where they addressed a similar situation. They held in Reidy that “as a matter of law, a road over federal lands may be considered a public road within the meaning of our private road statutes, provided the characteristics of the road indicate it is available to the general public.” Unlike the voluminous testimony and documentary evidence presented in Reidy indicating the road was open to the general public, the evidence presented in this case indicated that the use of Surrell Creek Road was limited to employees, former employees, and family members of LHart Ranch. Pine Bar Ranch failed to present any evidence of public use. As a result, the Board’s finding that the Surrell Creek Road was a public road was not supported by substantial evidence.
Pine Bar Ranch contended that even if the Surrell Creek Road was not a public road, the Luthers could apply for a limited right-of-way to cross the tribal lands. The Superintendent of the Wind River Agency stated the BIA was wiling to grant a limited right of way to the Luthers along the existing commonly known Boulder Flats Road for their heirs, employees and guests for traditional ranch purposes. The Court stated the offer was insufficient to establish access to a public road. Further the Court stated that even if the Luthers could have pursued a limited right of way from the tribes, they were not required to do so before seeking to establish a private road.
Pine Bar Ranch contended that even if the Luthers met their burden of proof that they were landlocked, their petition must be dismissed because the Luthers’ proposed road did not contain an uninterrupted physical connection between the Luthers’ land and a public road. The Court agreed with the Luthers that this argument was premature and that upon remand, the Board should appoint viewers and appraisers to locate and mark out a convenient public road. Any issues related to the location of the private road should be resolved in accordance with that process.

Holding: The Board’s finding that the Surrell Creek Road was a public road was not supported by substantial evidence. The order of the district court was affirmed.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yqmk2y .