Summary 2011 WY 112

Summary of Decision July 21, 2011

[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:  J & T Properties v. Gallagher

Citation:  2011 WY 112        

Docket Number:  S-10-0213

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464101

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.

Summary 2011 WY 33

Summary of Decision February 25, 2011

[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: Goodman v. Voss, Voss V. Goodman

Citation: 2011 WY 33

Docket Number: S-10-0058, S-10-0115

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461783

W.R.A.P. 12.09(b) Certified Question from the District Court of Albany County, The Honorable Jeffrey A. Donnell, Judge

Case No. S-10-0058:

Representing Appellants (Respondents): Gay Woodhouse and Deborah L. Roden of Woodhouse Roden, LLC, Cheyenne, Wyoming. Argument by Ms. Woodhouse.

Representing Appellees (Petitioners): Mark T. Voss and Laura M. Voss of Cheyenne, Wyoming. Argument by Mr. Voss.

Case No. S-10-0115:

Representing Appellants (Petitioners): Mark T. Voss and Laura M. Voss of Cheyenne, Wyoming. Argument by Mr. Voss.

Representing Appellees (Respondents): Daniel B. Frank of Frank Law Office, P.C., Cheyenne, Wyoming, for Appellees Stevens. Gay Woodhouse and Deborah L. Roden of Woodhouse Roden, LLC, Cheyenne, Wyoming, for Appellees Respondent. Argument by Mr. Frank and Ms. Woodhouse.

Date of Decision: February 25, 2011

Facts: These related cases came before the Court in their present iterations as W.R.A.P. 12.09(b) certifications from the district court. The battle is between neighboring landowners, with one seeking condemnation of a private road under Wyo. Stat. Ann. § 24-9-101 (LexisNexis 1999), and one contesting location of that road on her property. The issues before the Court all involved decisions rendered by the Board of County Commissioners of Albany County, Wyoming (the Board), in exercising its authority under the statute.

Issues: 1) Whether Respondent’s petition for review was timely filed; 2) Whether the doctrines of res judicata and collateral estoppel bar Respondent from relitigating the questions of whether the Petitioners’ property is landlocked and whether the Petitioners acted in good faith in pursuing their petition under the statute; 3) Whether the Board erred as a matter of law in focusing upon damage to the Petitioners’ property instead of damage to Respondent’s property, in locating the road; 4) Whether the Board erred as a matter of law in allowing the Petitioners to install a cattle guard at the junction of their property and the private road; 5) Whether the Board erred as a matter of law in denying the Petitioners’ motion for an award of costs under W.R.C.P. 68.

Holdings: As to the first and second issues, Respondent’s petition for review was timely filed because it was filed within 30 days of the Board’s order, which was an appealable order under the rules. Respondent is barred, however, from relitigating the issues of whether the petitioner property is landlocked and whether the Petitioners filed their private road petition in good faith, those issues having been previously decided against her below, and affirmed by the Court. The remand was for the purpose of selecting a different route; it did not start the case over from scratch.

As to the third issue, The Board was authorized to amend the viewers’ report, but the amendment in this case violated the statutory mandate that the road be located so as to do the least possible damage to the land over which it is located. The viewers recognized that ending the easement at the northeast corner of the petitoner property did the least possible damage to Respondent’s property, and they reported accordingly. The extension of the road by the Board deeper into Respondent’s property created additional damage to the Respondent property, solely as a convenience to the Petitioners.

As to the fourth issue, the Court found the Board did not err as a matter of law in allowing the Petitioners to install a cattle guard where the easement entered their property because this Court’s precedent has established that, if sufficient facts are proven, a cattle guard rather than a gate may be installed under the private road statute.

And finally, the Board did not err as a matter of law or fact in denying the Petitioners’ motion for an award of costs. It is not at all clear from the record that the eventual result of the proceedings put the Petitioners in a better position, or Respondent in a worse position, than what was offered.

The court affirmed in part and reversed in part and remanded to the district court for further remand to the Board for entry of an order consistent herewith. That remand shall include a recomputation of damages based upon the decreased amount of property allowed to be taken under this opinion.

J. Voigt delivered the opinion for the court.

J. Hill delivered the dissent. The facts, including the grant of a public easement, have changed since the first proceeding. Consequently, the law of the case doctrine does not prohibit consideration of whether, on the facts as they now exist, the Petitioners are landlocked under the statute. If the Petitioners are not landlocked, then there is no necessity and, consequently, no constitutional basis to allow a taking of the Respondent property. The dissent would reverse.

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.

Summary 2009 WY 40

Summary of Decision issued March 18, 2009

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

Case Name: Voss v. Goodman

Citation: 2009 WY 40

Docket Number: S-08-0060

Appeal from the District Court of Albany County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Voss: Pro se.

Representing Appellee Goodman: Gay Woodhouse and Deborah L. Roden of Gay Woodhouse Law Offices, PC, Cheyenne, Wyoming.

Facts/Discussion: Mark and Laura Voss requested relief from a district court decision in a declaratory judgment action finding that the Albany County Board of County Commissioners (Board) did not have the authority to grant them temporary access across Goodman’s land during a private road condemnation case.

Jurisdiction: The single issue before the district court was whether the Board had the authority to grant the Vosses temporary access during the private road condemnation case. It was apparent from the decision letter that the district court limited its decision to the appropriate legal issue before it. The Court’s interpretation of the Declaratory Judgment Act makes clear that there remains the prerequisite that the party seeking declaratory relief present the court with an actual controversy. After reviewing the four elements necessary to make a justiciable controversy, the Court stated the case presented a justiciable question and the district court had jurisdiction to decide the question.
Summary Judgment – Interpretation of the Statute: The Court examined the district court’s interpretation of the statute. It noted that while the Board was correct that it was possible for an agency to have implied powers in conjunction with express statutory grants of power, the instant case was not a situation where such an implied power existed. Wyoming’s private road statutes provide the mechanism by which a landowner may petition the exercise of the State’s eminent domain access between his own property and a public road. The statute makes no provision for temporary access. The purpose of a private road condemnation action is to determine whether a landowner meets the statutory requirements that allow a board of county commissioners to exercise its very limited powers of eminent domain. A grant of temporary access, while convenient, is not necessary step in the process. The Vosses sought leave to amend their Answer to add a claim for injunctive relief granting them temporary access to their property during the pending private road proceeding on the theory that the district court could grant such access through equity. The Court held in Bush v. Duff that a district court may not exercise the right of eminent domain. The Voss’ proposed amendment asked the district court to exercise powers of eminent domain not even granted to the executive branch at the time of the request, therefore such a request was futile.

Conclusion: The district court had subject matter jurisdiction to entertain the action for declaratory judgment and correctly determined that the Board had no authority under § 24-9-101 to grant the Vosses temporary access over Goodman’s land during a pending private road proceeding. The district court did not abuse its discretion when it refused to allow Voss to amend their Answer to add a futile claim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/cc5qr8 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 158

Summary of Decision issued October 8, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Elk Horn Ranch, Inc. v. The Board of County Commissioners of Crook County, WY

Citation: 2007 WY 158

Docket Number: S-07-0007

Appeal from the District Court of Crook County, the Honorable Michael N. Deegan, Judge

Representing Appellant (Petitioner): Max Main and Wade Nyberg of Bennett, Main & Gubbrud, PC, Belle Fourche, SD

Representing Appellee (Respondent): Joseph M. Baron, Crook County and Prosecuting Attorney, Sundance, Wyoming.

Issues: Whether the findings of fact and conclusion of law made by the Board are not supported by substantial evidence. Whether the Board erred in selecting the route preferred by the Cragos as the route that does the least possible damage. Whether the Board erred in selecting the route preferred by the Cragos as the route that is the most reasonable and convenient.

Facts/Discussion: Appellants will be referred to as Fortaks as owners of Elk Horn Ranch. Appellees are the Cragos who operate an adjoining ranch under the Crago Ranch Trust. The Cragos asserted they had no enforceable means of access to their ranch because in 2003, the Fortaks began denying the Cragos the use of a road that they had used for at least the preceding 50 years. The Fortaks acquired the Elk Horn Ranch in 1987. The Cragos sought a private road under Wyo. Stat. Ann. § 24-9-101. The need for the road was not in dispute, rather the issues related to the selection of which of two existing routes across the Fortaks’ ranch was the most appropriate under the terms of the governing statute and which method would be used to measure the damages caused to the Fortaks.
The Statute: The statute provides the sole and complete remedy for landlocked owners to obtain access to their property. The statute was changed in 2000 so the Wyoming cases that predate those amendments are not a reliable source of authority. The Court has concluded that once a landowner has proved that he has no “legally enforceable means by which he can gain access” to a public road, then he has demonstrated the necessity for a private road.
The Parties to this Judicial Review: The Fortaks sought review of the Board’s action in the district court pursuant to W.R.A.P. 12 and Wyo. Stat. Ann. § 16-3-114(c). The Court stated they questioned the soundness of their holding in Miller and backtracked a bit from it. Under the circumstances of the instant case, the Board acted principally as an adjudicatory body. The County and the Board may have an interest in the sensible laying out of roads throughout the County and that may be deemed as an exercise of its regulatory powers. However, the Board did not act in the defense of its regulatory powers in these appeals. The Fortaks did not challenge the Board’s acting as the principal respondent in the district court proceedings and they do not challenge its role as Appellee in this appeal. The Court did not consider this a circumstance that deprived the Court of its jurisdiction to resolve the appeal. The Court cautioned that the district court and similarly situated parties need to be more attentive to those concerns.
Standard of Review: Judicial review of an agency action is directed by Wyo. Stat. Ann. § 16-3-114. In appeals where both parties submit evidence at the administrative hearing, Newman mandated that appellate review be limited to application of the substantial evidence test, regardless of which party appeals.
The Road Not Taken: The principal source of controversy is that there were two roads/routes already in existence and available for the Cragos to use: Route #1 or Route #2. The Court carefully considered the evidence presented before the Board and concluded there was substantial evidence to support the Board’s decision that the Cragos should be granted a private road over Route #1.
Damages: The Court noted that the viewers and appraisers found the fair market value of the Fortaks’ land was $2,000 per acre. The Court stated there was substantial evidence on that point. The Court concluded that substantial evidence from the transcript, video tapes and the specific findings supported the selection of Route #1.
The Court noted the damage determination made by the Board had significant flaws they could not ignore. The “before and after” appraisal was not appropriately determined as defined by the appraisal business. Also, the Board adopted the findings of the viewers and appraisers even though they rejected the recommendation of the viewers and appraisers.

Holding: Although the appeal and the proceedings in the district court had an improper party included (the Board) and the proper party did not participate (the Cragos), the Court concluded that they should respond to the issues raised.
The award of damages had no apparent basis in the facts and circumstances in the case. The order of the district court affirming the Board’s award of damages was reversed. The Court affirmed the Decision of the Board establishing the private road over Route #1. The matter was remanded to the district court to remand to the Board to begin the process of having the viewers and appraisers make a “before and after” determination of the Fortaks’ damages.

Affirmed in part, reversed in part and remanded to the district court with directions that it be further remanded to the Board for additional proceedings.

J. Hill delivered the opinion.

Link: http://tinyurl.com/333hjk .

Summary 2007 WY 35

Summary of Decision issued March 2, 2007

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance with a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

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 .