Colorado Interstate Gas Co. v. Uinta Development Co., 2983

• Decision Date: 05 September 1961
• Docket Number: No. 2983,2983
• Citation: 364 P.2d 655
• Parties: COLORADO INTERSTATE GAS COMPANY, a Corporation, Appellant (Plaintiff and Petitioner below), v. UINTA DEVELOPMENT COMPANY, a Corporation, Appellee (Defendant and Respondent below).
• Court: Wyoming Supreme Court

Page 655

364 P.2d 655

COLORADO INTERSTATE GAS COMPANY, a Corporation, Appellant (Plaintiff and Petitioner below), v. UINTA DEVELOPMENT COMPANY, a Corporation, Appellee (Defendant and Respondent below).

No. 2983.

Supreme Court of Wyoming.

Sept. 5, 1961.

W. A. Muir, Greeley, Colo., and John U. Loomis, of Loomis, Lazear & Wilson, Cheyenne, for appellant.

William S. Edmonds, Kemmerer, for appellee.

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

Mr. Justice McINTYRE delivered the opinion of the court.

Pursuant to the provisions of § 3-6203, W.C.S.1945 (now § 1-793, W.S.1957), Colorado Interstate Gas Company as plaintiff filed its petition in the district court of Sweetwater County on April 20, 1956, reciting the necessary facts for condemnation of a pipeline right of way over certain lands belonging to the defendant, Uinta Development Company, and praying for authorization to proceed with such condemnation.

The statute relied upon provides that certain companies, including pipeline companies, may condemn rights of way by presenting a petition to the district judge, with certain information and a prayer for the appointment of appraisers. The judge then appoints three appraisers who are required to hear the proofs and allegations of the parties. Any two of them, after reviewing the premises, are to ascertain and certify the compensation proper to be made for the lands taken as well as all damages accruing in consequence of the condemnation. No provision for appeal from or exception to their award, nor for a trial by jury, is contained in this statute.

The district judge, after notice to the defendant as provided for by the foregoing section, appointed appraisers, who in their 'Certificate, Report and Appraisement' certified the compensation for the taking and the injuriously affecting the land to be $2,297.47, and in another portion of the same instrument stated that the right of way would be 1,021.10 rods in length and appraised 'the value thereof at $2.25 per rod.'

Considering the assessment excessive, the plaintiff filed written exceptions to the award with an application for review by the court and a demand for trial by jury. The statutory jury fee of $12 was paid at the time of such demand. The defendant then moved to dismiss plaintiff's appeal and asked that the demand for trial by jury be refused and denied. This motion was made on the grounds that no provision for an appeal or trial by jury had been made in the statute involved. Following a consideration of the matter on briefs of counsel, the trial judge entered an order in which the demand of plaintiff for a trial by jury was denied. No specific ruling on the motion to dismiss plaintiff's appeal appears in the record. A hearing before the court was had after the parties stipulated in writing 'that at the hearing in the district court on appeal, plaintiff and defendant shall be permitted to introduce evidence on the merits of the case.'

According to the judgment entered, the trial court found from the evidence that the report of the appraisers should be confirmed and that the ascertainment of compensation by said appraisers was made according to law. The judgment then recited that the court further finds and ascertains that the compensation, to be paid by plaintiff to defendant for the condemnation, use, damage and easement, for the property taken, and for damages to the lands of defendant not taken, is the sum of $2,297.47. It was ordered that defendant should have and recover that amount of the plaintiff, with interest. On appeal the plaintiff complains that its demand for trial by jury should not have been denied and that the award was excessive, unreasonable and unjust.

As we have already stated above, the statute followed in this case contains no provision either for exceptions to the award or for a trial by jury. Concerning the absence of a provision for exceptions to the award, the inherent and constitutional powers of the courts are such that they have a right of review in all proceedings of this nature. Irrespective of statutory authority therefor, it has been generally held that the court to which the report is submitted has power to review said report and to entertain exceptions thereto. United States v. Hess, 8 Cir., 70 F.2d 142, 8 Cir., 71 F.2d 78, 80; City of St. Louis v. Worthington, Mo., 19 S.W.2d 1066, 1067, Id., 331 Mo. 182, 52 S.W.2d 1003; Jewell v. Wisconsin-Minnesota Light & Power Co., 181 Wis. 56, 194 N.W. 31, 32. See also State v. Anderson, 92 Mont. 313, 13 P.2d 228, 230.

There is, however, a distinction between the inherent right of courts to review decisions of lesser tribunals, to ascertain the regularity of their proceedings, and the right to entertain an appeal which ordinarily can exist only by virtue of statute. In Edwards v. City of Cheyenne, 19 Wyo. 110, 114 P. 677, 686, Id., 122 P. 900, it was said:

'* * * The statute of 1888 [pertaining to railroads] provides expressly for exceptions to the award. Although section 3084 [R.S. of Wyoming 1899] is silent in that regard, we entertain no doubt that such exceptions are permissible in a proceeding thereunder, and that thereon the award and certificate of the appraisers may be reviewed by the court, and that the same may be vacated if the exceptions are sustained. * * *'

Turning then to a consideration of the power of the court to modify or change the award of the appraisers, it is sufficient to say that we have very recently dealt with this subject in an opinion written by Chief Justice Blume in State Highway Commission v. System Investment Corporation, Wyo., 361 P.2d 528, 534-535. In that opinion Justice Blume pointed out that textwriters and other writers seem to be agreed that the trial judge has no power to increase or decrease the award of the appraisers except by express statutory authority. It is not necessary to review the authorities cited by the learned Chief Justice on that point.

Although in the State Highway case the court was influenced to some extent in its decision by the implications of the statute there involved, most of the authorities relied upon had to do with situations where, as in the case at bar, there was an absence of controlling statutory provisions. We think the same holding should be applied in the instant case and that we should follow the rule that in the absence of statutory authority the court's power is limited to the right to confirm, set aside or remit the report of appraisers. See State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937, 940; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600, 602-603; 18 Am.Jur., Eminent Domain, § 366, p. 1008 (1938); Jahr, Eminent Domain, p. 402 (1953); 29 C.J.S. Eminent Domain § 313, p. 1346. In such situations only questions of law are open for consideration and determination by the district judge, i. e., whether the award was substantiated by the evidence and was fairly, impartially, and regularly made. National Labor Relations Board v. Lion Shoe Co., 1 Cir., 97 F.2d 448, 452; E. Anthony & Sons v. National Labor Relations Board, 82 U.S.App.D.C. 249, 163 F.2d 22, 24, certiorari denied 332 U.S. 773, 68 S.Ct. 89, 92 L.Ed. 358; 73 C.J.S. Public Administrative Bodies and Procedure § 228, p. 599. With certain limited exceptions, which are not here applicable, questions of law must be tried by the court. Rule 38(a), Wyoming Rules of Civil Procedure.

It is well settled that there is no constitutional right to a trial by jury in condemnation cases, and in the absence of a special constitutional or statutory provision such a right does not exist. Edwards v. City of Cheyenne, supra, at page 114 P. 687; Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 983, 42 L.Ed. 270; City and County of Honolulu v. United States, 9 Cir., 188 F.2d 459, 461, 462, certiorari denied 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641. It is notable that special statutory provisions for a trial by jury have been made in most condemnation procedures adopted by the legislature in Wyoming, but the procedure adopted for pipeline companies and other companies referred to in the same statute remains an exception to the general rule. Certainly there is no valid reason why a jury trial should be allowed in one instance and not in aother, but we cannot by judicial interpretation accomplish what the legislature has failed to do. It must therefore be held that a trial by jury has not been provided for in the kind of condemnation proceeding which is involved in the case at bar.

We pass then to the propriety of the judgment in the light of plaintiff's argument that it is contrary to law and unsupported by the evidence. There are two considerations upon which the decision of this court must depend, first, Is there substantial competent evidence upon which the judgment may be based, and second, Was the award of the appraisers fair, impartial and regularly made?

As to the first point, § 1-793 provides that the appraisers shall certify the compensation proper to be made to the owner for the land taken or affected as well as all damages accruing in consequence of the taking. The record discloses no comprehensive statement of the overall situation relating to the before and after value of the entire holdings of the defendant which criterion is universally accepted as being proper in eminent domain proceedings where as in the present instance it is claimed that damages accrued to remaining holdings by reason of the easement. Defendant's counsel argued that it was impossible to present evidence of this nature, but we are unconvinced on the point. There were undoubtedly numerous experts in grazing lands, land management, and grazing activities who could have been secured to present competent evidence bearing upon this point. Since there was nothing before the court of a comprehensive nature, it is necessary to review the testimony which related to various aspects of land values and damages.

One witness of plaintiff, a real...