Thursday, July 21, 2011

Summary 2011 WY 112

Summary of Decision July 21, 2011

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

Case Name:  J & T Properties v. Gallagher

Citation:  2011 WY 112        

Docket Number:  S-10-0213

Appeal from the District Court of Natrona County, The Honorable David B. Park, Judge

Representing Appellant (Respondent):  R. Todd Ingram of Clapp, Ingram & Olheiser, P.C., Casper, Wyoming

Representing Appellee (Petitioner):  Keith R. Nachbar of Keith R. Nachbar, P.C., Casper, Wyoming.

Date of Decision:  July 21, 2011

Facts:  When Appellee purchased his property, he believed that a series of easements across properties to the east provided access to a nearby public road.  However, Appellee soon learned that he did not have an easement across Appellant’s property.  Consequently, Appellee petitioned the Board of County Commissioners for a private road across Appellant’s property.  The county commissioners concluded that Appellee had no legally enforceable access and certified the case to the district court.  

The viewers and appraisers appointed by the district court recommended condemning a private road along an existing roadway on Appellant’s property.  The private road began at Appellee’s property line and continued east to the eastern boundary of Appellant’s property, where it connected with a series of private easements crossing the adjoining properties to a nearby public service road.    

The viewers and appraisers set the value of the damage to Appellant’s property from the private road at $1,000, without any evidentiary basis for that amount.  Appellant engaged a professional appraiser who performed a before-and-after analysis of the impact of the private road and concluded that the value of Appellant’s property was reduced by $8,200 as a result of the private road.  

After a hearing, the district court accepted the viewers and appraisers’ recommendation as to the location of the road, but rejected their damages valuation and accepted Appellant’s.  Although the district court awarded Appellant the higher damage amount, it refused to award other expenses requested by Appellant, including the cost of the appraisal.  Appellant appealed.   

Issues: 1) Whether the private roadway statute, Wyo. Stat. § 24-9-101, required joining neighboring landowners in the proceeding where the applicant already held legal and record access to a public road across those neighboring lands; and 2) Whether the District Court below committed reversible error by declining to order the applicant to pay for the private commercial appraiser hired by the landowner.

Holdings:  Affirmed.  The Court found that by interpreting the private road statutes to allow an applicant to use other means of legal access together with a private road to cure his access problem, the policies of reason, convenience and economic affordability are fullfilled.  Moreover, such solution avoids the unsatisfactory result that would arise if an applicant who had gone to the time and expense of securing private easements along part of his way then had to bring those same people into the private road condemnation action.  The Court found that the district court correctly interpreted § 24-9-101 as allowing the condemnation of a private road even though it did not connect directly with a public road and properly refused to require Appellee to join the owners of land over which he already had easements.      

In terms of the costs issue, the Court agreed with the district court that the private road statutes did not authorize assessment of the appraisal costs to Appellee. The Court observed that the plain language of § 24-9-101(f) addresses the costs that county commissioners, or in this case the district court, may assess for “acting on the application,” but does not logically include the expenses incurred by either party for the preparation of their respective case, including the retention of experts.  Further, on its face, § 24-9-103(d) also does not authorize an award of appraisal costs.  The Court found the statute is very specific and only imposes upon the applicant the responsibility to pay for engineering and construction costs.   The Court observed that while this situation may seem inequitable, they are limited by the statutory language.

Furthermore, although Appellant did request the district court award it the appraisal fee, Appellant did not specifically argue to the district court that it was entitled to recover the costs of the appraisal pursuant to Rule 54(d) and U.R.D.C. 501.  Even on appeal, Appellant provided no authority or cogent argument to establish that it was the prevailing party or that an appraisal fee qualifies as an “expense of preparing exhibits received in evidence” under Rules 54(d) and 501(a)(3)(F).  The argument was not properly presented to the district court or this Court, and the Court refused to consider it further. 

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

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