Summary 2010 Wy 146

Summary of Decision November 10, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Mullinax Concrete Service Co., Inc. v. Zowada

Citation: 2010 WY 146

Docket Number: S-0900237

URL: http://tinyurl.com/27td52j

Appeal from the District Court of County Sheridan County, Honorable Dan R. Price II, Judge

Representing Appellant (Petitioner): Anthony T. Wendtland of Wendtland & Wendtland, Sheridan, WY

Representing Appellee (Petitioners): Harlan Rasmussen, Sheridan, WY

Date of Decision: November 10, 2010

Facts: Appellant protested against a petition filed by the Appellees for the establishment of a private road across lands owned by Appellant. The Sheridan County Board of County Commissioners approved a road other than the one which historically had been used by the Appellees to access their property. That road crossed lands owned by Appellant. Both sides sought review of the Board’s decision in the district court. The district court reversed the Commission’s decision, in part, and remanded the case to the Commission for further proceedings. Appellant now seeks review in this Court of the district court’s order reversing the Commission’s order.

Issue: Whether there was sufficient evidence to support the Board’s location of a private road.


Holdings: Appellees had the initial burden to establish that their land had no outlet to a convenient public road. It is not questioned in this appeal that the Appellees met that burden. The standard of review requires the court to apply the pure form of the substantial evidence test. That is so because with respect to the question of which route was “the most reasonable and convenient route for the access” the governing statute does not assign the burden of proof on that point to either party. Indeed, Wyo. Stat. 24-9-101(g) provides that all affected parties may be heard, and the County Boarders’ decision must be supported by substantial evidence winnowed from those proceedings. Although this may not be true for all private road cases, here the arbitrary and capricious standard also applies because the Board rendered a decision which “cannot be easily categorized.”

The decision-making process must begin by examining the record on appeal to ascertain if substantial evidence exists to support an agency's conclusions. In the present action, there is not substantial evidence to support the Board’s conclusion that the route chosen was the most convenient and reasonable route, when the competing interests of Appellant and Appellees are considered side-by-side, rather than in an individualized and isolated consideration of their competing interests. From Appellant’s standpoint the route may be “wildly” superlative, but from Appellees’ standpoint it is all but confiscatory. A hallmark of private road cases has always been that convenience and reason should prevail in the establishment of private roads, but the route chosen does not have to be the most convenient and reasonable route possible. Thus, Board’s decision to select the chosen route must be reversed. The Board did not articulate a sound factual basis for choosing the route, which appears to be quite inconvenient for the Appellees due both to its length as well as the cost of creating much of the road on virgin pastureland. Moreover, there is a lack of evidence as to what its actual cost might be.

In addition to the lack of evidence to support selection of the route, the Board’s decision that Appellant was not entitled to any damages for that portion of the route, which crosses the land that Appellant purchased after the hearing was concluded, but before the Board reached its decision, was incorrect. The Board should have required a before and after values analysis. There is no evidence in the record on which to base such analysis, which in and of itself, amounts to a lack of substantial evidence and, arguably, makes the decision arbitrary and capricious. The Board disagreed with the Viewers and Appraisers assessment an alternative route was the most reasonable and convenient route. However, it appeared the Board based its decision on the conclusion that Appellant would be deprived of the right to use that location for its sediment pond. The Board did not address the Viewers’ and Appraisers’ other observations, including that the other route was the historical access, was by far the shortest, used an existing railroad crossing, involved crossing only one landowner, and was located on a boundary line. The Board’s failure to weigh these factors was error. Neither did the Board conduct an analysis of the facts relating to the sediment pond. First it should have made findings about the DEQ’s requirements for such a pond and the deadline, if there was one, for having it in place. The Board considered some other alternatives for Appellant’s storm water issues but concluded that these options were too expensive. However, it did not address the fact that the Viewers and Appraisers specifically stated that there were other places where the pond could be built. There was disputed evidence about this at the contested case hearing. One engineer testified that the pond could be placed elsewhere for approximately the same cost as constructing it at the proposed location, whereas Appellant testified that it could not be placed elsewhere without disrupting Appellant’s business operations. The Board did not resolve this dispute and does not appear to have considered this option at all. It was the Board’s duty as fact finder to assess the credibility of the witnesses, including that of the Viewers and Appraisers, and weigh the evidence to determine whether the pond could be constructed elsewhere and what the cost would be.

The Board did not make adequate findings of fact, comparing the relative costs and benefits of two alternatve routes. Therefore, the matter is remanded to the district court with directions that it modify its order remanding this matter to the Board as follows:

1. The Board need only compare the relative merits of the two proposed routes in light of the circumstances in which both of the parties will be left.
2. If the one route is ultimately chosen, the Board must fully consider why the greater costs of that road are justified. It must also obtain a before and after appraisal to consider in any award of damages to Appellant.
The Board may opt to take additional evidence in order to meet these requirements, but should be able to do so without the need to appoint new Viewers and Appraisers.

The order of the district court remanding to the Board for further proceedings, as modified above, is affirmed. This matter is remanded to the district court with directions that it further remand it to the Board for additional proceedings consistent with this opinion.


J. Voigt delivered the opinion for the court.