Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., SHERIDAN-WYOMING

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtRINER
Citation67 Wyo. 300,224 P.2d 172
PartiesBIG HORN COAL CO. v.COAL CO., Inc.
Decision Date21 November 1950
Docket NumberNo. 2469,SHERIDAN-WYOMING

Page 172

224 P.2d 172
67 Wyo. 300
BIG HORN COAL CO.
v.
SHERIDAN-WYOMING COAL CO., Inc.
No. 2469.
Supreme Court of Wyoming.
Nov. 21, 1950.

[67 Wyo. 301] R. E. McNally, Sheridan, for appellant.

A. W. Lonabaugh, Sheridan, W. C. Fraser, Omaha, Neb., for respondent.

RINER, Chief Justice.

The Big Horn Coal Company, a corporation, plaintiff and respondent here, by its petition brought an action in the District Court of Sheridan County to obtain by eminent domain proceedings a right of way over certain lands owned by the Sheridan Coal Company, also a corporation. The right of way was sought by said Big Horn Coal Company to secure the means, through the [67 Wyo. 302] construction of a railroad, of moving coal from certain described real property leased by said company from the owners thereof to the main line of the Chicago, Burlington and Quincy Railroad Company. This action was brought pursuant to the provisions of Article 63, Sections 3-6301 to 3-6316 inclusive of W.C.S.1945 and the Sheridan-Wyoming Coal Company aforesaid was consequently named in said action as defendant. Hereafter for brevity and convenience, the plaintiff below will be so designated or as the Big Horn Company and the defendant below will be so mentioned or as the Sheridan Company.

Thereafter the defendant filed its answer to plaintiff's petition in general denying plaintiff right to condemn the right of way sought and asserting that there was no immediate necessity for the appropriation by the Big Horn Company of the lands desired by the latter.

It appears by the record that there were two rather extended hearings had at which evidence was introduced before the court concerning the issues presented by the pleadings above mentioned, one commencing May 24, 1949 and concluding May 25, 1949; the other commencing and concluding on August 1, 1949. The evidence taken in the earlier hearing was by stipulation submitted for consideration by the court in the second hearing so far as it was deemed material.

Page 173

It is stated in the brief of the Big Horn Company herein filed that during the course of the presentation of the matter in May 1949 the trial judge accompanied by counsel and representatives of both parties inspected the premises sought to be condemned, the lands leased by the Big Horn Company where it was proposed to do strip mining, the route suggested in the original petition of the plaintiff, the alternate routes proposed by the Sheridan Company and the lands in the vicinity.

[67 Wyo. 303] This statement does not seem to be controverted. Subsequent to the May hearing an effort was made by the parties to reach an agreement as to the right of way which should be accorded plaintiff. Apparently this was done at the suggestion of the court and would seem to account for the fact that the hearing on the matter was split, and two had instead of one complete hearing. This effort failed and the August hearing was then had. Upon its termination the court entered an order designated a 'judgment' which in general terms found substantially as follows:

That plaintiff is a Wyoming corporation engaged in the business of mining coal and defendant is the owner and in possession of the property sought to be condemned and hereinafter described; that it is the plaintiff's purpose to construct along the routes and between the places hereinafter mentioned, a standard gauge railroad from a point where said route intersects the Chicago, Burlington and Quincy Railroad which point is specifically described, thence in a general northeasterly direction across the Tongue River to the coal lands of the plaintiff; that plaintiff has caused to be surveyed, staked and located, its railroad line as set forth in plaintiff's petition, said right of way being there specifically and particularly described; that an immediate necessity exists for the appropriation by the plaintiff of that part of defendant's lands hereinabove described to enable plaintiff to construct, maintain, and operate its said railroad for coal transportation; that plaintiff has heretofore sought in good faith to purchase defendant's interests in said lands and settle for the damages resulting from the taking of the same but without result and consequently served the defendant with notice of its intention of file its petition for condemnation as by law required; that the land sought to be taken is located so as to be most compatible with the aforesaid necessity of plaintiff and which will be least injurious.

[67 Wyo. 304] The court further found that the right of way as described in plaintiff's petition and sought to be taken includes certain of defendant's lands desired for trackage and tipple extending beyond where plaintiff has access to its own lands and as to this attempted appropriation, the court found against the plaintiff and in favor of the defendant and plaintiff's petition in that respect is denied; that plaintiff has applied as provided by Section 3-6311 and Section 3-6312, W.C.S.1945 for fixing a bond to enable plaintiff to enter upon and appropriate the above described real property of the defendant and that a bond in the sum of $1000 should be fixed conditioned upon payment of such condemnation money, compensation, and costs as shall be finally determined.

The court accordingly ordered and decreed that said proceedings were duly and regularly brought and that there exists an immediate necessity for the appropriation of the above described real estate; that defendant forthwith file in the district court for approval its bond in the sum of $1000 for the payment of all condemnation money compensation and costs and upon such a filing and approval of said bond, plaintiff is authorized to enter upon said premises, take and appropriate the possession of same and proceed with the construction of its railroad thereon.

That it was further ordered by the court that three impartial freeholders of said county, naming them, be appointed as commissioners to determine the compensation to be paid defendant for the taking of said property without regard to the minerals underlying same, condemnor having waived same; that August 25, 1949 was appointed by the court as the date for the first meeting of the commissioners who should make and certify their ascertainment and assessment on or before August 31, 1949. To this order of the court the defendant and plaintiff

Page 174

each excepted and these exceptions[67 Wyo. 305] were allowed by the court. This order was entered on the court's journal August 15, 1949.

One of the commissioners thus selected resigned and on August 22 following, another one was appointed by the court to serve in his stead.

August 23, 1949 the defendant filed its notice of appeal to this court from the 'judgment' of the court entered August 15, 1949; this notice was acknowledged as served on plaintiff by its counsel the day it was filed. August 25, 1949 the plaintiff also filed its notice of appeal from said 'judgment' and service thereof was acknowledged by the defendant the same day.

August 30, 1949 the commissioners or appraisers aforesaid took their oath of office which was filed with the clerk of the district court Suptember 1, 1949. The same day, to-wit: August 30, 1949 the commissioners made their appraisement of the appropriated property assessing the value and damages involved in the 'total sum of $655.79'. This certificate of assessment was filed September 1, 1949. On the date last mentioned the plaintiff deposited with the clerk of the district court of Sheridan County its check for the amount of this assessment and award as given above.

September 8, 1949 the defendant filed in said clerk's office its exceptions to the commissioners' award as described above and also its demand, supported by affidavit of counsel for defendant, that the matter of damages to be paid by plaintiff for the taking and injuring of defendant's lands 'be submitted to a jury in this court according to law'. By repeated extensions applied for by the defendant, time for filing the record on appeal in the district court was extended to December 25, 1949. This record was finally filed in that court December 19, 1949 and thereafter in this court January 19, 1950.

[67 Wyo. 306] No motion was filed by the plaintiff to dismiss this appeal and no jury trial has as yet been had as provided by Section 3-6308, W.C.S.1945, counsel for both parties...

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14 practice notes
  • Bird v. Rozier, No. 95-232
    • United States
    • United States State Supreme Court of Wyoming
    • December 3, 1997
    ...State Treasurer ex rel. Workmen's Compensation Dept. v. Niezwaag, 444 P.2d 327 (Wyo.1968); Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172 (1950). Indeed, we have a duty to do so. Niezwaag; Big Horn Coal I turn to federal cases for authority that I find eminently p......
  • Arp v. State Highway Commission, No. 4770
    • United States
    • United States State Supreme Court of Wyoming
    • August 12, 1977
    ...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. ......
  • South Dakota Dept. of Transp. v. Freeman, No. 14969
    • United States
    • Supreme Court of South Dakota
    • August 1, 1985
    ...rel Dept. of Public Works v. Rodoni, 243 Cal.App.2d 771, 52 Cal.Rptr. 857 (1966); Big Horn Coal Company v. Sheridan-Wyoming Coal Company, 67 Wyo. 300, 224 P.2d 172 (1950), cited in Arp, supra. The court also relied on 6 J. Sackman, Nichols on Eminent Domain Sec. 26.32 (3rd ed. 1984), in whi......
  • Mountain West Farm Bureau Mut. Ins. Co., Inc. v. Hallmark Ins. Co., No. 4621
    • United States
    • United States State Supreme Court of Wyoming
    • March 10, 1977
    ...Goodson v. Smith, 69 Wyo. 439, 243 P.2d 163, reh. den. 69 Wyo. 439, 244 P.2d 805. 4 The citations are: Big Horn Coal Co. v. Coal Co., 67 Wyo. 300, 224 P.2d 172, 177; Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327, 328; Bowman v. Worland Sch......
  • Request a trial to view additional results
14 cases
  • Bird v. Rozier, No. 95-232
    • United States
    • United States State Supreme Court of Wyoming
    • December 3, 1997
    ...State Treasurer ex rel. Workmen's Compensation Dept. v. Niezwaag, 444 P.2d 327 (Wyo.1968); Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172 (1950). Indeed, we have a duty to do so. Niezwaag; Big Horn Coal I turn to federal cases for authority that I find eminently p......
  • Arp v. State Highway Commission, No. 4770
    • United States
    • United States State Supreme Court of Wyoming
    • August 12, 1977
    ...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. ......
  • South Dakota Dept. of Transp. v. Freeman, No. 14969
    • United States
    • Supreme Court of South Dakota
    • August 1, 1985
    ...rel Dept. of Public Works v. Rodoni, 243 Cal.App.2d 771, 52 Cal.Rptr. 857 (1966); Big Horn Coal Company v. Sheridan-Wyoming Coal Company, 67 Wyo. 300, 224 P.2d 172 (1950), cited in Arp, supra. The court also relied on 6 J. Sackman, Nichols on Eminent Domain Sec. 26.32 (3rd ed. 1984), in whi......
  • Mountain West Farm Bureau Mut. Ins. Co., Inc. v. Hallmark Ins. Co., No. 4621
    • United States
    • United States State Supreme Court of Wyoming
    • March 10, 1977
    ...Goodson v. Smith, 69 Wyo. 439, 243 P.2d 163, reh. den. 69 Wyo. 439, 244 P.2d 805. 4 The citations are: Big Horn Coal Co. v. Coal Co., 67 Wyo. 300, 224 P.2d 172, 177; Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327, 328; Bowman v. Worland Sch......
  • Request a trial to view additional results

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