City of Evanston v. Robinson

• Decision Date: 11 July 1985
• Docket Number: Nos. 84-86,84-87,s. 84-86
• Citation: 702 P.2d 1283
• Parties: CITY OF EVANSTON, Wyoming, a Wyoming municipal corporation, Appellant (Defendant), Cities Service Company, a corporation; Amoco Production Company, a corporation; Mesa Petroleum Company, a corporation; and Burton/Hawks, Inc., a corporation; Rex L. Randolph; Steve C. Champlin; R. Downs Poindexter; Grady Vaughn; Albert Sklar; R.K. O'Connell; Rainbow Resources, Inc.; Terra Resources, Inc.; EMC Energies, Inc.; Frank L. Schulte; Horizon Oil & Gas Co.; William R. Dixon; Husky Oil Co.; First Interstate Bank of Casper, N.A.; Bill Hawks; Guy Burton, Jr.; Bill D. Farleigh; and Williams Exploration Company, (Defendants), v. George L. ROBINSON and Sarah J. Robinson, husband and wife; Kilburn Porter and Nellie Evaline Porter, husband and wife, Appellees (Plaintiffs). Burton/Hawks, Inc., a corporation; Rex L. Randolph; Steve C. Champlin; R. Downs Poindexter; Grady Vaughn; Albert Sklar; R.K. O'Connell; Rainbow Resources, Inc.; Terra Resources, Inc.; EMC Energies, Inc.; Frank L. Schulte; Horizon Oil & Gas Co.; William R. Dixon; Husky Oil Co.; First Interstate Bank of Casper, N.A.; Bill Hawks; Guy Burton, Jr.; Bill D. Farleigh; and Williams Exploration Company, Appellants (Defendants), CITY OF EVANSTON, Wyoming, a Wyoming municipal corporation; Cities Service Company, a corporation; Amoco Production Company, a corporation; Mesa Petroleum Company, a corporation, (Defendants), v. George L. ROBINSON and Sarah J. Robinson, husband and wife; Kilburn Porter and Nellie Evaline Porter, husband and wife, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 1283

702 P.2d 1283

CITY OF EVANSTON, Wyoming, a Wyoming municipal corporation, Appellant (Defendant), Cities Service Company, a corporation; Amoco Production Company, a corporation; Mesa Petroleum Company, a corporation; and Burton/Hawks, Inc., a corporation; Rex L. Randolph; Steve C. Champlin; R. Downs Poindexter; Grady Vaughn; Albert Sklar; R.K. O'Connell; Rainbow Resources, Inc.; Terra Resources, Inc.; EMC Energies, Inc.; Frank L. Schulte; Horizon Oil & Gas Co.; William R. Dixon; Husky Oil Co.; First Interstate Bank of Casper, N.A.; Bill Hawks; Guy Burton, Jr.; Bill D. Farleigh; and Williams Exploration Company, (Defendants), v. George L. ROBINSON and Sarah J. Robinson, husband and wife; Kilburn Porter and Nellie Evaline Porter, husband and wife, Appellees (Plaintiffs).

Burton/Hawks, Inc., a corporation; Rex L. Randolph; Steve C. Champlin; R. Downs Poindexter; Grady Vaughn; Albert Sklar; R.K. O'Connell; Rainbow Resources, Inc.; Terra Resources, Inc.; EMC Energies, Inc.; Frank L. Schulte; Horizon Oil & Gas Co.; William R. Dixon; Husky Oil Co.; First Interstate Bank of Casper, N.A.; Bill Hawks; Guy Burton, Jr.; Bill D. Farleigh; and Williams Exploration Company, Appellants (Defendants), CITY OF EVANSTON, Wyoming, a Wyoming municipal corporation; Cities Service Company, a corporation; Amoco Production Company, a corporation; Mesa Petroleum Company, a corporation, (Defendants), v. George L. ROBINSON and Sarah J. Robinson, husband and wife; Kilburn Porter and Nellie Evaline Porter, husband and wife, Appellees (Plaintiffs).

Nos. 84-86, 84-87.

Supreme Court of Wyoming.

July 11, 1985.

Dennis W. Lancaster of Phillips, Lancaster & Thomas, P.C., Evanston, for appellant in Case No. 84-86.

Houston G. Williams and Richard L. Williams of Williams, Porter, Day & Neville, P.C., Casper, for appellants in Case No. 84-87.

Charles D. Phillips, Evanston, Frank J. Allen, Salt Lake City, Utah, for appellees.

Before THOMAS, C.J. ^* , and ROSE, ROONEY ^**, BROWN and CARDINE, JJ.

ROSE, Justice.

These appeals present a single issue for review:

"Does the City of Evanston have such right, title or interest in the streets and alleys of the City as will allow the City to grant a valid oil and gas lease covering the oil and gas underlying the streets and alleys?"

The case arose as a class action by property owners in Evanston, Wyoming, seeking a declaration of the rights to oil, gas and other minerals underlying the streets and alleys abutting their lots. The district court determined that the City had acquired no rights or interest in the minerals as a result of the dedication of the streets and alleys to the public use. Accordingly, the court entered summary judgment denying the claims to the underlying minerals asserted by the City, its mineral lessee, and the lessee's assignees. We will affirm.

FACTS

Members of the class involved in this litigation own property in the original Town of Evanston or in subsequently developed subdivisions. The plat of the original town was recorded August 19, 1870, and specified areas were dedicated to the public use:

"I, Grenville M. Dodge, being Agent and Trustee for the Union Pacific Railroad Co. as owner of the lands, lots and premises described and shown on the foregoing plat do designate and name the Town of Evanston, and dedicate the Streets, Alleys, and Public grounds therefor shown on Said Plat to the public use."

No statute governed the effect of filing a plat or dedicating streets and alleys at the time that the original town was established.

The plats for all of the other subdivisions involved in this case were filed between 1885 and 1950 and are subject to the Platting and Dedication Act, §§ 34-12-101 through 34-12-104, 34-12-106 through 34-12-115, W.S.1977. These plats included or had attached language of dedication similar to the following example:

"I, Martin V Morse, being the owner of the land and premises described and shown on the plat hereto annexed, do name the same as M.V. Morse's Fourth Addition to the Town of Evanston, in the State of Wyoming. And I do hereby dedicate the streets and alleys as shown on said plat to the public use."

Property owners within these subdivisions sought a judicial declaration of the rights to the minerals underlying the streets and alleys and brought this class action against the City of Evanston; Burton/Hawks, Inc., the City's oil and gas lessee; various assignees of Burton/Hawks; and Cities Service Company, Amoco Production Company and Mesa Petroleum Company, operators charged with the distribution of proceeds from the sale of the oil and gas. The district court entered summary judgment, declaring

" * * * [t]hat Defendant City of Evanston does not (except as it claims through conveyances other than the dedications of streets and alleys affected by the acknowledgement and/or filing of plats) own oil and gas and other minerals underlying streets and alleys abutting lots owned by members of the Class."

The district court did not determine the extent, if any, of the property owners' rights in the minerals, but directed the entry of judgment pursuant to Rule 54(b), W.R.C.P., so that the City, Burton/Hawks, and the assignees of Burton/Hawks could perfect immediate appeals to this court. ¹

DEDICATION OF PROPERTY TO THE PUBLIC USE

Common Law Dedication of Streets and Alleys

When the plat of the original Town of Evanston was filed in August, 1870, the Territory of Wyoming had no laws in effect concerning the platting of subdivisions or the dedication of property. The territorial legislature had repealed all laws enacted by the Territory of Dakota which might have affected the question of ownership under a dedication. Chapter 84, Laws of the Wyoming Territory, 1869. Consequently, the common law governs the dedication of streets and alleys in the original plat. Gay Johnson's Wyoming Automotive Service Co., Inc. v. City of Cheyenne, Wyo., 367 P.2d 787 (1961).

We have held that dedication of streets and alleys at common law creates an easement:

" * * * Under common law, at dedication the public or municipality acquires an easement in the streets and alleys, but the fee remains in the original proprietor or abutting owner." Gay Johnson's Wyoming Automotive Service Co., Inc. v. City of Cheyenne, supra, 367 P.2d at 788.

The City's interest under a common-law dedication is sufficient to accommodate the use of the property by the public for street and related purposes, but the City acquires no interest in the minerals underlying the streets. Leadville v. Coronado Mining Co., 37 Colo. 234, 86 P. 1034 (1906); Lambach v. Mason, 368 Ill. 41, 53 N.E.2d 601 (1944).

Appellants contend that the dedicatory language associated with the original town plat is broad enough to overcome this common-law rule. The phrase "dedicate[d] * * * to the public use," according to appellants, indicates that the dedicator intended to convey the street areas for more public uses than streets alone. For example, the City has the right to lay sewer and utility lines beneath the surfaces of streets, appellants point out. See Ruby Drilling Co., Inc. v. Billingsly, Wyo., 660 P.2d 377 (1983). Other permissible, subsurface uses would include the mining of oil and gas to obtain revenues for the public coffers, appellants submit. If the dedicator intended to reserve an interest in the minerals beneath the streets, it should have restricted the general dedicatory language, appellants conclude.

We cannot agree that the addition of the phrase "to the public use" enlarges the effect of a common-law dedication. By definition, a dedication of property is an expression of the owner's intent to devote that property to the public use:

" * * * [A] dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner, manifesting an intention that it shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication. Thus it is vital to a dedication of property to public use that it is to be forever and irrevocable after acceptance, and that it be for a public use." 11 McQuillin, Mun Corp § 33.02, p. 636 (3rd ed.).

" * * * Dedication is the intentional appropriation of land by the owner to some proper public use. The intention of the owner to set aside lands or property for the use of the public is the foundation and life of every dedication. [Citation.]" City of Phoenix v. Landrum & Mills Realty Co., 71 Ariz. 382, 227 P.2d 1011, 1013 (1951).

See also Hand v. Rhodes, 125 Colo. 508, 245 P.2d 292, 295 (1952); 4 Tiffany, The Law of Real Property, § 1101, p. 574 (3rd ed. 1975).

The dedicatory language attached to the plat of the original Town of Evanston simply expresses the owner's intent to devote the delineated streets and alleys to the public use, in compliance with the elements of a lawful dedication. Under the law of the Territory of Wyoming applicable at the time, such dedication transferred only an easement. Gay Johnson's Wyoming Automotive Service Co., Inc. v. City of Cheyenne, supra. Therefore, the streets and alleys in the original town plat were appropriated for public passage and not for the multiple uses envisioned by appellants.

The fact that the public's interest as an easement holder encompasses the right to install utility lines under the streets does not compel the conclusion that the City has the right to remove minerals underlying the streets. Courts have historically recognized that a city's interest in dedicated streets and alleys includes the right to use so much of the ground underneath as might be required for laying gas and water pipes, building sewers, and for other related municipal purposes. Ruby Drilling Co., Inc. v. Billingsly, supra; City of Leadville v. Bohn Mining Company, 37 Colo. 248, 86 P. 1038 (1906). Elliott's treatise, The Law of Roads and Streets, contains the following comprehensive definition...