Arp v. State Highway Commission, No. 4770

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GUTHRIE; McCLINTOCK; ROSE; RAPER; I am convinced that the majority has compounded a mistake made in two long-standing cases, the second adopting the boner made in the first. We now have three of the same ilk. At the outset, I must freely conce
Citation567 P.2d 736
PartiesJohn C. ARP and Mildred K. Arp, as Trustees for the Use and Benefit of John C. Arp and Mildred K. Arp, husband and wife, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).
Decision Date12 August 1977
Docket NumberNo. 4770

Page 736

567 P.2d 736
John C. ARP and Mildred K. Arp, as Trustees for the Use and Benefit of John C. Arp and Mildred K. Arp, husband and wife, Appellants (Defendants below),
v.
STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).
No. 4770.
Supreme Court of Wyoming.
Aug. 12, 1977.

Page 737

Robert L. Duncan, Cheyenne, for appellants.

V. Frank Mendicino, Atty. Gen., Glenn A. Williams, Senior Asst. Atty. Gen., Daniel E. White, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

McCLINTOCK, Justice.

John C. Arp and Mildred K. Arp, Trustees (Arp), appeal from Judgment and Decree Granting Possession, entered by the district court of Laramie, County, Wyoming, in a condemnation proceeding brought by the State Highway Commission of Wyoming (Commission). The proceeding was brought to obtain title to and possession of certain land belonging to Arp, situated in the City of Cheyenne, Wyoming, it being the apparent intention of the Commission to use these lands as part of a limited-access highway facility connecting Interstate Highway 80 with downtown Cheyenne. Arp contested the necessity and good faith of the taking and now seeks review of the adverse ruling without completion of the proceeding. Following the docketing of this appeal and the filing of briefs upon the merits of the case the Commission filed motion to dismiss upon the ground that there was no appealable order. We permitted the matter to be orally argued on all questions but after consideration are convinced that the order herein entered was not a final order within the meaning of our rule and the previous decisions of this court.

Our present Rule 72(a), W.R.C.P. provides in pertinent part:

"Rule 72. General Provisions. (a) 'Final Order' Defined. A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right, made in a special proceeding, or

Page 738

upon a summary application in an action, after judgment; * * *." 1

Two precedents of this court clearly hold that an order for taking in a condemnation proceeding is not an appealable order: Hardendorf v. Board of County Commissioners of Fremont County, 73 Wyo. 1, 267 P.2d 747 (1954), and Big Horn Coal Co., Inc. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172 (1950). The only question concerning the views therein expressed is that neither case specifically refers to § 3-5301, W.C.S. 1945, which became a part of our Code of Civil Procedure by Ch. 60, § 778, S.L. of Wyoming, 1886. This section was taken from the Ohio Code. Despite the fact that there is no specific mention of the statute in question, we hold that the two above-mentioned cases must stand as a construction of the law of our statute at the time of the adoption of the rules, and we do not think that we should now reach a different result by saying that this court was not aware of the statutory definition of final order because it did not specifically mention the same statute.

As indicated in Big Horn Coal Co., Inc., supra, 67 Wyo. at 310, 224 P.2d at 176, this court was familiar with the treatment given by the Supreme Court of Ohio to the question of whether an order determining the preliminary questions involved in an eminent-domain proceeding (including the necessity) was a final order, and refers at some length to Ornstein v. Chesapeake & O. Ry. Co., 123 Ohio St. 260, 174 N.E. 772 (1931), which in turn referred to the earlier Ohio case of Pittsburgh, Cleveland & Toledo Rd. Co. v. Tod, 72 Ohio St. 156, 74 N.E. 172, in which it had been held that "determination of preliminary questions by the probate judge is not a final judgment, any more than is an order sustaining or overruling a demurrer." In the later case constitutional questions were raised as to a procedure that permitted the condemnor to appeal from an order denying the right to take by condemnation, while at the same time refusing to permit the condemnee to appeal from an order for such condemnation and whether this was a denial of equal protection of law. The claim was rejected by the Ohio court and appeal from this decision to the Supreme Court of the United States was dismissed for want of jurisdiction in Ornstein v. Chesapeake & Ohio Ry. Co., 284 U.S. 572, 52 S.Ct. 14, 76 L.Ed. 497. Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 255-257, 37 S.Ct. 295, 61 L.Ed. 702, an eminent-domain case where it was sought to review ruling of a state supreme court that a plaintiff had a right to exercise the power of eminent domain, was cited and it was there said that the judgment was not a final judgment. We find this to be generally the law 2 and while we appreciate that

Page 739

there may be a distinction between a final judgment and a final order, we think that this court was not concerned with the distinction in Big Horn Coal Co. or Hardendorf.

Just as it is unfortunate that this court did not discuss § 3-5301 (which was later incorporated in the rules as 72(a)), it is also unfortunate that neither of the Ohio cases mentioned discusses the Ohio counterpart or our statute-rule. However, we think that the ruling of this court that the order disposing of the preliminary matters is not an appealable order is clearcut and § 3-5301 must have been incorporated into the rules in the context that an order of taking in an eminent-domain proceeding was not an appealable order. We should not now change that ruling.

Arguments pro and con can be made, but the possibility that the condemnor may occupy and use the premises while its right to take remains in dispute should not require us to reconsider what is the clearly established rule of this jurisdiction.

The motion to dismiss the appeal is sustained.

ROSE, Justice, specially concurring.

While I concur in the dismissal of this appeal, persuaded by the authorities and reasoning of the majority opinion, I am troubled by the implications thereof. I am hopeful that district courts will remain constantly concerned with the probable and practical mootness that goes with the condemnor taking and imposing the improvement upon the property before the owners' appellate rights have ripened. When the highway has been constructed, it is academic to still be litigating the taking but this is the state of the law as I view it inequitable as it may be.

As stated in the majority opinion, there is a "possibility that the condemnor may occupy and use the premises while its right to take remains in dispute." In the present case, this theoretically means that a limited-access highway facility could be constructed over appellants' land before they have an opportunity to have judicial review of the necessity or authority for the taking. By the time compensation is awarded, and thus an appealable order entered, it is conceivable that appellants' challenge in this respect may have become meaningless. Once constructed a highway is difficult to move.

I do not doubt the authority of the district court to enter an order granting possession to a condemnor prior to determination of damages. The statutes and rules of this state contemplate such a procedure. See § 1-754, W.S.1957; § 1-793, W.S.1957; § 1-792(b), W.S.1957, 1977 Interim.Supp.; and Rule 71.1(e), W.R.C.P. The decision to grant immediate possession in the condemnor rests in the sound discretion of the district court. Given a possibly severe effect on property rights, however, such discretion must be exercised only after due circumspection. My concern with such an occurrence is somewhat lessened by the remedies which I see as available to aggrieved landowners aside from the knowledge that compensation at some time will be awarded. First, in appropriate cases I believe resort may be had to the provisions of Rule 54(b), W.R.C.P. See 12 Wright and Miller, Federal Practice and Procedure: Civil § 3042, at 96; and Burkhart v. United States, 9 Cir. 1954, 210 F.2d 602. Second, I believe that a stay of proceedings may be sought by a condemnee under appropriate circumstances. Such is not the case under the Federal Declaration of Taking Act, (40 U.S.C.A. §§ 258a through 258e) and under certain state laws. See 40 U.S.C.A. § 258b; and Wright v. State, 204 Okl. 380, 230 P.2d 462,

Page 740

466 (1951). In those jurisdictions there are specific statutory provisions which preclude an appeal from operating to delay the prosecution of work on the condemnee's property. I could find no such statute or rule in Wyoming and would, therefore, assume that such a procedure is available in this state. See City of Portland v. Anderson, 248 Or. 201, 432 P.2d 1020 (1967). By this recitation, I do not foreclose the possibility that there may be other remedies available to a condemnee which will temper the potential harshness of our ruling in this and other cases.

With the preceding observations in mind, I concur in the dismissal of this appeal.

RAPER, Justice.

I dissent.

I am convinced that the majority has compounded a mistake made in two long-standing cases, the second adopting the boner made in the first. We now have three of the same ilk. At the outset, I must freely concede and wholeheartedly endorse the principle of stare decisis, that is to say, keeping to the decisions, because of its importance in maintaining a stability of jurisprudence and establishing a predictability upon which the trial judiciary, bar and public can rely. Without the tool of precedent, judges and lawyers would be helpless and the state of jurisprudence would be a mess. On the other hand, the principle does not have an unyielding rigidity, requiring a court to perpetuate an inherent error though on its face, an opinion and decision has the appearance of reliability. When we dissect a case with the scalpel of close scrutiny and discover it cancerous, we should not close the incision and let it grow if a cure is possible. It is...

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6 practice notes
  • South Dakota Dept. of Transp. v. Freeman, No. 14969
    • United States
    • Supreme Court of South Dakota
    • August 1, 1985
    ...an appeal may be taken from an order determining only the necessity of the taking or the right to take. In Arp v. State Highway Com'n, 567 P.2d 736 (Wyo.1977), the Wyoming Supreme Court applied its statute that defines "final order," WRCP 72(a). The court dismissed the appeal and held that ......
  • Paxton Resources, LLC v. Brannaman, No. 03-143
    • United States
    • United States State Supreme Court of Wyoming
    • August 12, 2004
    ...616 (Wyo. 1990); Wiens v. American Motors Corp., 717 P.2d 322, 323 (Wyo. 1986); State v. Berger, 600 P.2d 708, 709 (Wyo. 1979); Johnson, 567 P.2d at 736; McMullen, 559 P.2d at 38; Jackson v. State, 547 P.2d 1203, 1205 (Wyo. [¶16] Court rules have the force and effect of law and are construe......
  • City of Sunland Park v. PASEO DEL NORTE, No. 19516.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 3, 1999
    ...204 Ga.App. 119, 418 S.E.2d 451 (1992); South Dakota Dep't of Transp., v. Freeman, 378 N.W.2d 241 (S.D.1985); Arp v. State Highway Comm'n, 567 P.2d 736, 738-39 & n. 2 (Wyo.1977) (collecting cases); see also 6A Julius L. Sackman, Nichols on Eminent Domain, § 26E.03[3][a], at 26E-75 n. 54 (3d......
  • Bridle Bit Ranch v. Basin Elec. Power, No. 04-134.
    • United States
    • United States State Supreme Court of Wyoming
    • September 7, 2005
    ...by this Court that the "taking" portion of a condemnation action is not Page 999 an appealable order. Arp v. State Highway Commission, 567 P.2d 736, 739 (Wyo. [¶ 4] Both groups of landowners contend that Basin is a public utility as defined by Wyo. Stat. Ann. § 37-1-101 (LexisNexis 2005), a......
  • Request a trial to view additional results
6 cases
  • South Dakota Dept. of Transp. v. Freeman, No. 14969
    • United States
    • Supreme Court of South Dakota
    • August 1, 1985
    ...an appeal may be taken from an order determining only the necessity of the taking or the right to take. In Arp v. State Highway Com'n, 567 P.2d 736 (Wyo.1977), the Wyoming Supreme Court applied its statute that defines "final order," WRCP 72(a). The court dismissed the appeal and held that ......
  • Paxton Resources, LLC v. Brannaman, No. 03-143
    • United States
    • United States State Supreme Court of Wyoming
    • August 12, 2004
    ...616 (Wyo. 1990); Wiens v. American Motors Corp., 717 P.2d 322, 323 (Wyo. 1986); State v. Berger, 600 P.2d 708, 709 (Wyo. 1979); Johnson, 567 P.2d at 736; McMullen, 559 P.2d at 38; Jackson v. State, 547 P.2d 1203, 1205 (Wyo. [¶16] Court rules have the force and effect of law and are construe......
  • City of Sunland Park v. PASEO DEL NORTE, No. 19516.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 3, 1999
    ...204 Ga.App. 119, 418 S.E.2d 451 (1992); South Dakota Dep't of Transp., v. Freeman, 378 N.W.2d 241 (S.D.1985); Arp v. State Highway Comm'n, 567 P.2d 736, 738-39 & n. 2 (Wyo.1977) (collecting cases); see also 6A Julius L. Sackman, Nichols on Eminent Domain, § 26E.03[3][a], at 26E-75 n. 54 (3d......
  • Bridle Bit Ranch v. Basin Elec. Power, No. 04-134.
    • United States
    • United States State Supreme Court of Wyoming
    • September 7, 2005
    ...by this Court that the "taking" portion of a condemnation action is not Page 999 an appealable order. Arp v. State Highway Commission, 567 P.2d 736, 739 (Wyo. [¶ 4] Both groups of landowners contend that Basin is a public utility as defined by Wyo. Stat. Ann. § 37-1-101 (LexisNexis 2005), a......
  • Request a trial to view additional results

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