Board of County Com'rs of Fremont County v. State ex rel. Miller

• Decision Date: 07 March 1962
• Docket Number: No. 3011,3011
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF FREMONT, State of Wyoming, Matt McGuire, H. L. Leaming, and Thomas Coleman, Appellants (Defendants below), v. STATE of Wyoming ex rel. Vern H. MILLER, Jim Gallinger, William B. Mullins, Robert R. Cantleberry, Mervin J. Hedges, Maurice A. Doane, Harvey Betts, Everett Ward, Hugh L. Otte, Roy Groves, Hugh Cooley, J. C. Arnold, and all others similarly situated, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 537

369 P.2d 537

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF FREMONT, State of Wyoming, Matt McGuire, H. L. Leaming, and Thomas Coleman, Appellants (Defendants below), v. STATE of Wyoming ex rel. Vern H. MILLER, Jim Gallinger, William B. Mullins, Robert R. Cantleberry, Mervin J. Hedges, Maurice A. Doane, Harvey Betts, Everett Ward, Hugh L. Otte, Roy Groves, Hugh Cooley, J. C. Arnold, and all others similarly situated, Appellees (Plaintiffs below).

No. 3011.

Supreme Court of Wyoming.

March 7, 1962.

G. L. Spence, Riverton, for appellants.

Elmer C. Winters, Lander, for appellees.

Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Twelve electors of Fremont County, in the name of the State, for themselves and others similarly situated, sought a writ of mandamus directing the board of county commissioners 'to save and protect Fremont County * * * [Road] No. 212 * * * for the use and benefit of said County, the electors and citizens thereof; and to remove all fences, gates, and manmade obstructions' from the said road and make it available for travel. ¹

Plaintiffs alleged that the board on March 21, 1921, had established county road 212; that the said road connected with and provided access to public lands which were the property of the State of Wyoming and the United States of America, including national forest lands; that the board failed and refused to perform its statutory duty under §§ 18-149 and 24-5, W.S.1957; that the board permitted construction of fences across the road by which access was denied to petitioners and to the public; and that plaintiffs had no adequate remedy at law.

The court forthwith ordered issuance of an alternative writ of mandamus commanding the board to remove all fences and gates from the right of way of 212.

In their answer, defendants alleged that plaintiffs had an adequate remedy at law, admitted that certain proceedings with reference to the establishment of county road 212 had been taken but that said road as so established had never been built or maintained. In affirmative defenses, they urged that there had been no proper demand to remove obstructions, that Boeseke, Sullivan, and Meyers, over whose land the road ran, were indispensable parties, and, somewhat ambiguously, alleged that if road 212 had ever been established it had been vacated and abandoned.

The court ordered the three named persons to be joined as defendants, whereupon Sullivan and Boeseke each filed an answer, admitted ownership of certain lands through which the road purported to run and alleged that neither the board nor plaintiffs had any right, title, or interest to the property and that he had prohibited the use of his land by plaintiffs until a proper road was laid and fenced. Each insisted he was not a proper or indispensable party and prayed the dismissal of plaintiffs' petition and asked that his title to the land be quieted against both the defendants and the plaintiffs. No service was had upon Meyers, who was reported not found in Fremont County.

Following trial of the matter, the court found generally in favor of the petitioners, ordered that a peremptory writ of mandamus issue directing the board to forthwith give the owners and agents of the land over which county road 212 was located notice in writing to remove fences from the right of way, and further decreed that 'if all of said fences across the right of way * * * are not so removed by said landowners within * * * thirty (30) days * * * the Board * * * shall remove said fences and said road shall be opened and worked.'

The board has appealed, urging that (1) the court erred in requiring the performance of an act where the legal duty to perfrom was not clear and complete, (2) the court had no jurisdiction to direct the board how to exercise its judgment, (3) the court had no jurisdiction to issue a writ of mandamus, the effect of which was to try title to property, and (4) there was a failure of plaintiffs to prove either demand of the board to perform a specific act which was its clear and undisputed duty or a refusal of the board to so perform.

FACTS

There is no dispute between the litigants as to facts developed at the hearing. The records of the board disclose that on July 25, 1920, there was a petition asking for the establishment of a public road running between two others already established, namely, North Fork and Baldwin Creek. The road was not immediately denominated, but in the field notes of the county surveyor was listed as the extension of the Baldwin Creek Road, No. 212. The board purported to comply with the statutes on the subject, and its records regarding the proceedings were placed in evidence at the trial, but it is unnecessary to consider them since the answer admitted the establishment of the road. The testimony disclosed that in the period following 1920 and for at least twenty years prior to the trial there had been a road of sorts in the general vicinity of 212, that it had been worked by the board on occasion, and that various ranches in the area served by the road had come into single ownership during the years so that the main travel in recent times was to and from Shoshoni Lake and certain areas of government land where hunting and fishing occurred. In 1958 the board took steps, including the publication of notice, to vacate the road, received numerous objections, held meetings with ranchers and other interested parties, and finally wrote a letter disclaiming responsibility for settling disputes and indicating that the parties should resort to the courts.

Bishop, the present county surveyor, was called as a witness for defendants and testified that at the direction of the board he had made some investigation of the area, had supervised one survey beginning at the north end of 212, had conducted the actual instrument work and made notes in another survey which began at the southern end of the road in question; that the road as traveled in many places did not coincide with 212 as established according to the records but varied in some places as much as 350 feet, that the county records were so ambiguous and uncertain that it would be difficult if not impossible to lay out a road therefrom, and that, as near as he could ascertain, 212 as shown by the records was over ground which in some places was so rough that a road could not be reasonably built. His conclusion that the road could not be laid out from the previous records is unconvincing since he began his survey some distance from the Baldwin Creek Road, purportedly following the calls on record in the clerk's office but ignoring entirely the original survey therein. Additionally, a map of his survey designated Exhibit A and referred to in his testimony, but not admitted, showed his first call as 1740 feet, whereas that on the original survey showed 1780 feet.

Plaintiffs made no denial of the variance between the road which was traveled and that which was listed in the county records but relied upon the fact that the board had by its notice of vacation recognized the existence of the road and was now in effect complaining of the inability of its own employee in locating a right of way which the court had found to exist.

At the inception we note that the defendant board in its answer admitted, at least tacitly, the establishment of road 212 and in the brief stated, 'We do not deem it necessary to comment upon the sufficiency of the evidence introduced for the establishment of Road No. 212, since this case need not turn upon the technicalities of establishing a county road, but upon principles more broad and fundamental * * *.' Notwithstanding the position thus taken the defendant board here urges 'The first question that comes to the Commissioners' minds is * * * simple and crucial * * *: Where is Road 212?' thereby implying that...