Clifford v. City of Cheyenne, 3939

• Citation: 487 P.2d 1325
• Decision Date: 12 August 1971
• Docket Number: No. 3939,3939
• Parties: Jess CLIFFORD et al., Appellants (Plaintiffs below), v. CITY OF CHEYENNE, Wyoming, a Municipal Corporation et at., Appellees(Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 1325

487 P.2d 1325

Jess CLIFFORD et al., Appellants (Plaintiffs below), v. CITY OF CHEYENNE, Wyoming, a Municipal Corporation et at., Appellees(Defendants below).

No. 3939.

Supreme Court of Wyoming.

Aug. 12, 1971.

A. Joseph Williams, Bernard E. Cole, Cheyenne, for appellants.

William A. Riner, City Atty., Cheyenne, for appellees.

Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiffs on July 6, 1970, commenced an action against the City of Cheyenne and its officers, seeking to enjoin the enactment of an ordinance providing for a partial vacation of a street identified as Omaha Road on the basis that the proposed vacation was without benefit to the city or the public and users of the street and was for the sole and exclusive benefit of the owners and operators of the K-Mart store. In disposing of the litigation the trial court in its memorandum opinion determined that the vacation was for a public purpose and the determination by the city council to vacate that portion of the street from the point where it intersects with Holmes Street to the west curb line of Grove Drive, ¹ requiring an additional driving distance of approximately 150 feet, was not fraudulent, collusive, arbitrary, or an abuse of discretion. Judgment was entered accordingly and plaintiffs appeal. While we do not find that plaintiffs' amended complaint in so many words charged that the proposed vacation would be the result of fraud, collusion, or grave abuse of discretion on the part of the city council, the trial court seems to have so treated it and we proceed on that basis.

By way of some background, the record discloses that Omaha Road many years ago was a part of the old Lincoln Highway which commenced east of Cheyenne at the intersection of Pershing Boulevard and Ridge Road and ran diagonally southwesterly from the intersection to Lincolnway and the downtown area. As a result it formed a 'five-legged intersection' at Pershing and Ridge Road, and over the years with the increase in traffic and growth of north and east Cheyenne it began to present a problem. In 1965 Smith and Associates, consulting engineers, were employed by the highway department at the request of the city and county to study and develop a comprehensive plan for the streets and highways in and around Cheyenne. The study was completed in 1968 and a report submitted in 1969. In that report it was proposed to eliminate the 'five-legged intersection' by realigning Omaha Road to intersect with Pershing at a point some 300 feet west of the intersection. In addition, Mr. Vealess F. Hudspeth, a consulting engineer also employed by the highway department, made a study of Pershing Boulevard east from Randall Avenue, the entrance to Warren Air Base, to U. S. Highway 30, some distance east of the Pershing-Omaha-Ridge intersection, and in 1966 submitted a report proposing that Omaha Road be brought into Pershing some 150 to 200 feet west of the intersection. No action was taken on either proposal at that time but by September 1969 the TOPICS program-a federal aid program designed to increase the capacity and safety of streets and highways for the movement of traffic-came into being and Mr. Hudspeth was again employed primarily by the highway department in conjunction with the city and county to make a further study of the entire situation. In October 1969 a preliminary report was made listing some 19 problem areas, one of which was the intersection here in question and which was shown in the TOPICS program as a project proposed for 'immediate action.' There the matter rested until December 10, 1969, when Mr. Hudspeth obtained the copy of a 'plot plan' from Mr. Garrett, a real estate broker, for proposed construction of the K-Mart store. The next day Mr. Hudspeth wrote to Mr. John Whiting, City Engineer, so advising him and stating, 'It appears some modifications are needed in the realignment of Omaha Road' and proposing two possibilities, (a) turn Omaha Road into Pershing on Grove Drive, or (b) turn it along Holmes Street to Ridge Road. On January 6, 1970, he submitted to Mr. Dick Uthoff, Transportation Engineer in charge of the TOPICS program, an addendum concerning the intersection to the same effect. Then on June 6, 1970, he submitted a report to the highway department and presumably to the city wherein with respect to realignment of Omaha Road it was said:

'The proposed realinement of Omaha Road starts near Pine Drive and connects to Holmes Street on an approximately 600-foot radius. Grove Drive will be the street connecting the severed segment of Omaha Road. The segment of Omaha Road between Grove Drive and Ridge Road is the area where several alternatives in design could be applied.'

In addition to the several proposals to eliminate the 'five-legged intersection,' which incidentally was not accomplished by the vacation now before us, Mayor Holland testified that when he learned of the possibility of the K-Mart store locating in the area he was concerned about the problem of drainage which would result from the construction of a large building and surfacing of extensive parking facilities. Commissioner Gysel also testified that drainage was a problem in the area even in its new state and the big problem presented by realigning Omaha Road was whether to gather the runoff in a retaining pond or 'drain it down one of the roads.' In any event, sometime in January 1970 a proposal was made-by whom is left undeveloped-whereby, according to Mayor Holland, the problem could be taken care of by the use of a 'retaining pond during a downpour so that it could be released at a later time when the rain had subsided and it should be on the same property.' Also during 'dry weather' the land could be used as a parking area. The terms of a trade were then worked out whereby the K-Mart people, who incidentally were the only abutting owners involved, would acquire title to the vacated portion of Omaha Road and the city in turn would acquire from K-Mart the right-of-way for realignment of Omaha Road from its point of intersection with Pine Drive in a 'gradual curve' eastward to Holmes Street and Grove Drive. Other conditions were also imposed which so far as the city was concerned, according to Commissioner Gysel, saved the city some $15,000 to $20,000 on the costs of the realignment. Finally, on June 11, 1970, at a meeting of the city council and representatives of the purchasers of the property the terms of the trade were agreed upon as reflected by the letter of the city engineer dated the next day, and on June 15, 1970, and June 22, 1970, the ordinance vacating the portion of Omaha Road here considered was passed on first and second readings.

Little more need be added except to say that several of plaintiffs' witnesses testified as to almost daily use of Omaha Road to get back and forth from the downtown area and objected to the inconvenience resulting from the anticipated need to make three turns as a result of the vacation and the likelihood of interference from snow in the wintertime. It was also stipulated that in excess of 750 persons living north and east of the intersection used the street almost daily and would testify along the same lines if called.

Much of the time of the trial was also taken up by attempting to establish that the plaintiffs-Clifford suffered some sort of special damage, but here again we think the trial court quite properly put those considerations aside. Other than the inconvenience of using Omaha Road in common with the other users, which was shown to be quite infinitesimal, ² the Cliffords were not abutting owners, none of their property was taken, their ingress and egress to the property was the same as before the vacation, and the contemplated loss of business coming from the west to their motel and related facilities, even if compensable, was speculative and conjectural. Were it not for the sincerity of plaintiffs' counsel in advancing the public versus private-purpose argument, we would be inclined to affirm the judgment of the trial court denying relief by way of an...