Cottman v. Lochner

• Decision Date: 28 May 1929
• Docket Number: 1554
• Citation: 40 Wyo. 378,278 P. 71
• Parties: COTTMAN v. LOCHNER [*]
• Court: Wyoming Supreme Court

278 P. 71

40 Wyo. 378

COTTMAN v. LOCHNER ^[*]

No. 1554

Supreme Court of Wyoming

May 28, 1929

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by Fred W. Cottman against Caroline Lochner. Judgment for plaintiff, and defendant appeals.

Affirmed.

For the appellant there was a brief by W. H. Patten of Casper, Wyo.

The action is by an individual for an injunction to abate a public nuisance; the petition does not state a cause of action for damages against defendant. The County Commissioners were without jurisdiction to establish a stock road or trail across defendant's property. No notice was given as required by statute. 2996 C. S. Laws 1913, page 68. Hentzler, et al. v. Bradbury, 47 P. 330, 13 R. C. L 52; Town v. Hand, 83 N.E. 196; In Re Sch. Dist No. 16, (Okla.) 85 P. 96; Sharp v. Johnson, (N H.) 40 Am. Dec. 259; Hamilton v. Comm'rs., 67 N.E. 792, 29 C. J. 409. There is no allegation that plaintiff suffered special or peculiar injury different from that sustained by the public in general. Defendant's motion to require a more definite statement of allegations was denied. The damage being of a special nature, must be specially pleaded. 17 C. J. 1004; Henderson v. Coleman, (Wyo.) 115 P. 489, 8 R. C. L. 612; Stricker v. Hillis, (Idaho) 99 P. 831; Hitch v. School, (Cal.) 181 P. 657, 29 C. J. 630; Ranch Co. v. Brooks, (Cal.) 9 L. R. A. (N. S.) 497.

For the plaintiff and respondent there was a brief by M. L. Bishop, Jr. and Nichols & Stirrett of Casper, and oral argument by Mr. Bishop and Mr. Stirrett.

The Commissioners exercised lawful jurisdiction in establishing the road. 4919 U. S. R. S. Secs. 2987-93, 2995-2998. The attack on the Commissioners proceedings is collateral, and the order establishing the stock trail by the board is conclusive. Land Co. v. Hoffman, (Wyo.) 219 P. 56; Edwards v. Cheyenne, 19 Wyo. 116; Bass v. City of Casper, 28 Wyo. 387. A private citizen may bring action to abate a nuisance special to himself, not common to the whole public. 20 R. C. L. 462, 477; 29 Cyc. 1208, 1213; Joss v. Nat. Guard, 43 L. R. A. (N. S.) 1214; Lansing v. Smith, 21 Am. Dec. 89; Milarkey v. Foster, 25 A. S. R. 531; Farmers Co. v. Albemarle, 53 A. S. R. 606; Bordon v. Baxter, 74 N.C. 470; Clark v. Peckham, 10 R. I. 35. The company could accept the grant. 1. By establishing the road under the statutes of the state; 2. By user to the public. 2477 U. S. R. S. 4919; U.S.C. S. 1916; Bishop v. Hawley, 33 Wyo. 276; Hatch Bros. v. Black, 25 Wyo. 109, 416. Allegations of the petition were sustained by the evidence. The trail was lawfully established. Defendant had notice and failed to object to the establishment of the trail. Defendant's homestead entry was subsequent to the establishment of the trail, being upon unappropriated public domain and prior to entry.

RINER, Justice. BLUME, C. J. and KIMBALL, J., concur.

OPINION

RINER, Justice.

Fred W. Cottman instituted an action in the District Court of Natrona County against Caroline Lochner, to abate an alleged nuisance in the form of a fence across an asserted highway or stock trail, and for damages suffered because of its obstruction. From a judgment in favor of the plaintiff, the record in the case, by direct appeal, is brought here for review.

Summarized, the pleadings of the parties are to the following effect: Plaintiff's petition states that as a resident of Natrona county he has been engaged in the sheep industry since the year 1911, and with others has moved his herds and other property, as became necessary, to and from his ranches and the adjacent public range, to and from the town of Bishop, for shearing, shipping and dipping; that an act of Congress (43 U.S.C. A. 932, U.S. Rev. St., Sec. 2477), granted the public the right to establish highways over the unappropriated public domain, which grant, under procedure authorized by Chapter 184, W. C. S. 1920 and amendatory acts, the Board of County Commissioners of Natrona County accepted and established the highway in controversy known as the "Seventeen Mile Well Bates' Hole Stock Trail." After describing the course of the highway by metes and bounds and detailing the acts of the board of county commissioners looking to the creation of this highway, which were begun April 5, 1916, it is alleged that the road was finally established March 6, 1918. It is also stated that the plaintiff and the general public had for a long time used this highway prior to its official establishment and also thereafter, until it was fenced by the defendant, said road being indispensible to the plaintiff and to others in the conduct of their several businesses; that defendant recognized the existence of this trail for many years before she put up the fence of which complaint is made; that said fence was without right erected by her across the highway in the fall of 1925, the description of the fence and the portions of the highway obstructed by it being specifically set forth; that the defendant continues to maintain the fence in derogation of the plaintiff's right to use the road; that on June 13, 1926, when plaintiff was conducting his herds of sheep from the aforesaid town of Bishop over the highway, his and their passage was hindered and delayed for forty-eight hours by said fence, which the defendant, upon demand, refused to remove, by reason of which plaintiff and the sheep were injured and expense entailed in the sum of $ 500. Judgment for damages in this amount was asked, and it was prayed that the fence be removed and the defendant restrained from further obstructing the highway.

The answer of the defendant, after setting out a general demurrer to plaintiff's petition and charging that there is a defect in parties in that the action could only be brought by Natrona County or its representatives, entered a general denial of the allegations of plaintiff's pleading, admitting, however, that the defendant is the owner of Section 13, Township 34, Range 81, West of the Sixth Principal Meridian, and that the section is fenced. The answer also specifically denies that any road or highway was ever established in any way over or across said land or any part thereof. The prayer of the answer was that the action be dismissed.

Trial to the court resulted in the judgment in favor of the plaintiff already mentioned, wherein damages as claimed were awarded, the defendant ordered to remove the obstructing fence, and the costs of the proceedings were taxed against her.

The facts of the case, in so far as they are essential to an understanding of the points urged to obtain a reversal of the judgment, will be mentioned as these matters are considered.

It is first insisted that the Board of County Commissioners of Natrona County obtained no jurisdiction to lay out the highway involved here across Section 13 above mentioned, to which section the defendant holds a patent from the National Government, for the reason that the board failed to give her notice, or sufficient notice, of its intention to establish the road so that she might be heard concerning the matter.

The proof is, that the proceedings to establish a road were commenced by petition presented to the aforesaid board on April 5, 1916. A viewer was appointed and his report favorable to the establishment of the road was thereafter made and filed. May 3, 1916, the board ordered the county surveyor to make a survey of the proposed highway and to file with the county clerk of Natrona County, plats and notes of the survey. This work appears to have been done in July and August, 1917. Thereafter on October 2, 1917, the defendant took up her residence upon Section 13 aforesaid, under a homestead filing previously made sometime during that year, and she continued to live there until patent was issued to her for the land on August 1, 1921. The survey of the highway ran through the north line of the section about a quarter of a mile from its northeast corner, thence in a southwesterly direction through the subdivision to a point on the west line thereof about one-half mile north from the section's southwest corner, with the result that a triangular piece of ground was left in its northwesterly corner.

November 8, 1917, the Board of County Commissioners of Natrona County ordered the clerk of that county to cause to be published in the official paper a notice requiring all persons who might claim damages because of the creation of the stock trail, or have objection thereto, to file their claims or objections in the clerk's office on or before noon of the 22nd day of December, 1917, or the road and trail would be established without reference to such claims. In the proceedings of the commissioners, the intended highway of 500 feet in width was fully described by metes and bounds. A notice, duly conforming to the board's order and containing a complete description of the road, was published for three successive weeks in the Casper Record, a newspaper of general circulation, published weekly at Casper, Wyoming, the first publication of the notice being December 4, 1917, and the last on December 18, 1917. It is not alleged or proven that any copies of this notice were ever sent by registered mail to anyone. Pursuant to the notice thus published, one of the owners of lands affected by the proposed highway presented his claim for damages, which was duly considered and disposed of by the board. However, neither the defendant nor anyone else seems to have appeared in the matter.

Sometime during the year 1919, according to the testimony of Herbert L. Kennedy, who was then County Surveyor of Natrona County Adam Lochner, the son of defendant and who acted as her agent and business manager concerning the highway matters around which this controversy centers, came to Kennedy's office...