Bybee v. Northern Utilities Co.
| Decision Date | 05 November 1962 |
| Docket Number | No. 3088,3088 |
| Citation | 375 P.2d 477 |
| Parties | Kenneth BYBEE, Appellant (Defendant below), v. NORTHERN UTILITIES COMPANY, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
W. A. Smith and H. S. Harnsberger, Jr., Lander, for appellant.
Crofts, Mockler & Meier, Frank C. Mockler, Lander, for appellee.
Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.
This opinion has to do with a right-of-way easement for a pipeline or pipelines through land presently owned by Kenneth Bybee, the defendant and appellant in this case. The easement was granted in 1922 by Edward Stelzner to Producers and Refiners Corporation, a Wyoming corporation. Since that time ownership of the land described in the easement has passed by mesne conveyances to Bybee, and Northern Utilities Company, plaintiff and appellee, claims to be a successor in interest to Producers and Refiners Corporation.
In 1960 the Wyoming Public Service Commission issued a Certificate of Public Convenience and Necessity authorizing Northern Utilities to enlarge its gas transmission system by adding a six-inch transmission line paralleling the existing four-inch line between Hudson and Lander, Wyoming. The company claims that it offered to pay surface damages resulting from the additional line to Bybee and to the other land owners involved, but it was unable to reach an agreement as far as Bybee was concerned.
Relying upon the 1922 easement, as Northern Utilities states the case, it caused its pipeline crew to continue with the laying of the new line. Bybee, as both sides agree, ordered the crew off of his property. Whereupon, the company obtained a temporary restraining order from the District Court of Fremont County, and before anything further could be heard by the court the line was completed through Bybee's land.
Following a full hearing of the case by the trial court without a jury, Northern Utilities' right of entry under the 1922 easement was recognized and adjudicated, and the company was ordered to pay $500 as total damages to crops, fences, surface of the land, and the laying of additional pipe upon defendant's land. All other claims of both parties were denied. Bybee's appeal to this court is based upon a claim that Northern Utilities Company failed to prove that it was a successor in interest to Producers and Refiners Corporation.
There being no pretrial order or other settlement of issues, we can look only to the pleadings in the instant case for a statement of the issues which were tried to the court. In that connection, we find that plaintiff alleged in its complaint that it had duly and regularly acquired the existing line 'by mesne processes, conveyances, assignments or change of corporate names and structures and Plaintiff is now the owner of said pipe line and said right of way and has used each thereof continuously in the transmission and transportation of natural gas.' These allegations were placed in issue by the defendant's answer.
The record before us discloses that Northern Utilities as plaintiff made no effort to prove an assignment, conveyance or other transfer of the 1922 easement from the grantee named therein, Producers and Refiners Corporation. Plaintiff relies instead on the language of the easement which shows that it ran to the named grantee and to 'its successors or assigns.' However, plaintiff's proof of succession is likewise deficient.
In that regard, superintendent Glen Kelly of Northern Utilities testified that he previously worked for Producers and Refiners; that Producers and Refiners 'were absorbed' by New York Oil Company; and that Northern Utilities 'absorbed' New York Oil Company. Just what he meant by the word 'absorbed' was not explained. Neither was the process of absorption described. This recalls to mind that we had occasion to say in State ex rel. Kirk v. Gail, Wyo., 373 P.2d 955, 957, that a witness may not give his opinion on an ultimate issue in a case, and if he does, it should be disregarded. See also Fidanque v. American Maracaibo Co., 33 Del.Ch. 262, 92 A.2d 311, 316, wherein it was said that calling a corporate transaction a merger does not necessarily make it so. Of course, the same can be said for an absorption.
Kelly, as a witness for plaintiff, was asked specifically and in a leading manner whether Producers and Refiners were absorbed by another company. He answered that they were absorbed by New York Oil Company and then volunteered the further statement that Northern Utilities absorbed the New York Oil Company. Opposing counsel immediately objected to the question as leading and moved that the answer be stricken because it was not within the knowledge of the witness to know the answer. If the opinion thus expressed is to be given consideration at all, it must at least be viewed in the light of other testimony offered by the plaintiff on the same subject.
Harold M. Graham, assistant secretary, assistant treasurer and a director of Northern Utilities, testified at two different times that Northern Utilities purchased the controlling interest in New York Oil Company April 24, 1928. The same witness also testified that the properties of Mills, Riverton, Lander, Hudson and Rock Springs, Wyoming were 'acquired from the P and R Corporation' as of May 1, 1926, by New York Oil Company.
In their brief filed with this court, counsel for Northern...
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Weber v. Johnston Fuel Liners, Inc.
...premises. Weber firmly contends that Johnston has failed to establish its title to this right-of-way, relying upon Bybee v. Northern Utilities Company, Wyo., 375 P.2d 477, insisting this case is not distinguishable, and further asserting that because of the introduction of his conveyance fr......