Gillespie v. Board of Com'rs of Albany County

• Decision Date: 13 March 1934
• Docket Number: 1806
• Citation: 30 P.2d 797,47 Wyo. 1
• Parties: GILLESPIE v. BOARD OF COM'RS OF ALBANY COUNTY
• Court: Wyoming Supreme Court

30 P.2d 797

47 Wyo. 1

GILLESPIE v. BOARD OF COM'RS OF ALBANY COUNTY

No. 1806

Supreme Court of Wyoming

March 13, 1934

APPEAL from the District Court, Albany County, V. J. TIDBALL, Judge.

Action by H. M. Gillespie against the Board of Commissioners of Albany County. From an order adverse to defendant, it appeals.

Reversed and remanded.

For the appellant there was a brief by Glenn Parker of Laramie, J. C O'Mahoney and Bard Ferrall of Cheyenne and oral arguments by Messrs. Farrell and W. O. Wilson of Cheyenne.

The only question involved was the amount of damages caused to the lands of respondent, which were taken for the road, and the proper measure of such damage. The measure of damages is the difference in the market value of the property before and after the alleged injury. Edwards v. City of Cheyenne, 19 Wyo. 119, 153; Town Council of Town of Hudson v. Ladd, 37 Wyo. 419, 427. In the absence of proof of such difference no damages can be recovered. State v. Huddleston, 52 S.W.2d 3-35; Commonwealth v. Combs (Ky.) 50 S.W.2d 497-499; Wiles v. Department (Nebr.) 234 N.W. 918-921; Schlict v. Clark (Miss.) 75 So. 130; 20 C. J. 739. The court erred in admitting irrelevant and prejudicial evidence with reference to the operation of respondent's ranch over a long period of years prior to 1930. Morrison v. Cottonwood Development Co., 38 Wyo. 190; Tate v Commission, 49 S.W.2d 282-284; 10 R. C. L. 145; Illinois Power Co. v. Wieland, 155 N.E. 272-274; Weiser Valley Co. v. Ryan, 190 F. 417-423. The court erred in permitting evidence of a stock-driveway established by the Government, which necessitated the construction of many miles of fence to prevent trespass. Decheck v Duquesne Light Co. (Pa.) 157 A. 685; Louisville & N. R. Co. v. Hall, 136 S.W. 905; Commissioners v. Warner, 181 N.E. 304. The court erred in excluding proper evidence relating to the fencing of ditches. Dulaney v. Nolan County, 20 S.W. 70; City of Detroit v. Beecher, 42 N.W. 986; Colusa County v. Hudson (Cal.) 24 P. 791. Instructions numbered 5, 6 and 8 were erroneous, all relating to the elements of damage that might be taken into consideration. The court erred in refusing to give appellant's requested instructions numbered A., B. and C. The motion for a directed verdict should have been sustained.

For the respondent there was a brief by Corthell, McCollough and Corthell of Laramie, and oral argument by Mr. M. E. Corthell.

The respondent's evidence as to damages was from witnesses familiar with respondent's land as cattle ranch property and the only value that could be placed upon respondent's ranch. The authorities sustain the point. 2 Lewis on Eminent Domain, Section 655; Pacific Live Stock Co. v. Irr. Dist. 270 F. 555, (C. C. A. Ore.); Portland Ry. Co. v. Boom Co. (Wash.) 109 P. 814; Montana Ry. Co. v. Warren, 137 U.S. 348; Lehigh Valley Co. v. City of Chicago, 26 F. 415; St. Louis, I. M. & S. Ry. Co. v. Lyman (Ark.) 22 S.W. 170; Edwards v. City of Cheyenne, 19 Wyo. 119; Town Council v. Ladd, 37 Wyo. 419, cited by appellant, is not in point, nor is the case of Wiles v. Department, 234 N.W. 918. The same may be said of all of the authorities cited by appellant. The evidence offered by respondent and objected to by appellant was approved in Pipe Line Co. v. Stewart (Mo.) 35 S.W. 627. In this state landowners are required to fence out range stock. Gillespie v. Wheatland Industrial Co., 22 Wyo. 331; State v. Johnson, 7 Wyo. 512. The right of way was one of the elements of damage to lands of respondent. Section 42-114, R. S. 1931. The rule as to the measure of road damages is established by the authorities. Idaho Ry. Co. v. Columbia Conference, 119 P. 60; Crane v. City of Harrison, 232 P. 578; Tyler v. Town of Darieu, 162 A. 837; Shell Pipe Line Corp. v. Woodfolk, 53 S.W.2d 917; Wood v. Dake Land & Imp. Co., 81 S.E. 422; Craig v. Fort Worth & D. C. Ry. Co. (Texas) 185 S.W. 944. Appellant in acquiring the right of way for the road, may make any use of it for highway purposes, including the right to fence, and if converted into a state highway, appellant cannot, through inference that the road will not be fenced, deprive the respondent of damages resulting if appellant should exercise its right to fence, and the effect of such fence upon the ranch. Ry. Co. v. Gradert, 43 Wyo. 268. It is proper to show fence as a barrier preventing cattle from passing to the river. The authorities cited by appellant on the subject of fences do not seem to sustain its contention. The evidence of value offered by respondent as affecting the question of damages was competent. 1 Elliott on Roads and Streets, 4th Ed., Sec. 287; Light Company v. Creed (Mo.) 32 S.W.2d 783; Yolo Water & Power Co. v. Hudson (Cal.) 186 P. 772; Chicago I. & S. Ry. Co. v. Ader, 110 N.E. 67; Ham v. Ry. Co., 181 P. 898; Texas R. Co. v. Burt, 243 S.W. 669; Southern Ry. Co. v. Michaels (Tenn.) 151 S.W. 53; Powell v. Ry. Co. (N. C.) 100 S.E. 423; Sharp v. United States, 341 L.Ed. 211. The exceptions urged to instructions numbered 5, 6 and 8, we believe to be unimportant. The court instructed the jury that damage to business would not be considered, and that only elements causing damage to land could be considered, which was proper. Stone v. Delaware (Pa.) 101 A. 813; State v. Caruthers (Mo.) 51 S.W.2d 126; Chicago Ry. Co. v. Nolin (Ill.) 77 N.E. 435; Texas Co. v. Stewart (Mo.) 35 S.W.2d 627. Instructions numbered A, B and C, requested by appellant and refused by the court were not correct statements of the law. Morrison v. Development Co., 38 Wyo. 190; Pullman Company v. Finley, 20 Wyo. 456.

Glenn S. Parker, W. O. Wilson and Bard Ferrall in reply.

Respondent did not show the value of the ranch before the alleged injury. Sharp v. United States, 24 S.C. R. 114. It is common knowledge that real estate values have decreased since 1921. State Bank v. Bagley Brothers, 44 Wyo. 456. The measure of damages is the value before as compared with the value after the alleged injury. Hutchenson v. Louisville & N. R. Co., 57 S.W.2d 12; Lehigh Valley Coal Co. v. Chicago, 26 Federal 415. The Federal Government can do as it desires with its lands and its motives cannot be inquired into. Buffalo Basin Company v. Tanberg, 44 Wyo. 434. As to the question of fencing public roads, we refer to Section 42-114, R. S. 1931; Missouri Co. v. Creed, 32 S.W.2d 783. The cases cited by respondent are readily distinguished when the facts in the present case are considered.

Corthell, McCollough and Corthell in support of respondent's motion to dismiss appeal.

We do not believe an appeal lies in this case to the Supreme Court. There is no authority in the statute for the order affirming the verdict. 52-229, R. S. 1931. The question is not whether the Legislature may deny the right of appeal, but whether it has limited the right of appeal from an appellate court. 1 Elliott, 4th Ed., on Roads and Streets, Section 412. The right of appeal to this court depends upon the existence of a final order or judgment. Sections 89-4901, 4902 and 4903 R. S. 1931; Western Co. v. St. Ann Co. (Wash.) 60 P. 158; Longview, P. & N. R. Co. v. Seattle (Wash.) 233 P. 1058; People v. Richmond (Colo.) 26 P. 929; City of Portland v. Gaston (Ore.) 63 P. 1051; Great Northern Ry. Co. v. Fiske, 169 P. 44. The Legislature has limited the right of appeal in various forms of special proceedings. Section 22-1007, R. S. 1931, Section 22-1522, R. S. 1931; 23-119, R. S. 1931; 38-220, R. S. 1931; 38-221, R. S. 1931; 38-224, R. S. 1931. There is nothing in the road law indicating that an appeal lies to the Supreme Court in road cases under the general law. Various changes and amendments made in the road laws since our general appellate procedure was enacted seem to exclude a right of appeal in road cases. Mayor, etc. v. Keith, 94 S.W. 62; Mau v. Stoner, 14 Wyo. 193; also Greenland v. Commissioners, 11 A. 581; Valley R. Co. v. Martin, 59 A. 714. The motion to dismiss should be sustained.

Glenn S. Parker, W. O. Wilson and Bard Ferrall in resistance of motion.

The right of appeal is based upon Section 52-229, R. S. 1931, also Article I, Section 8; Article V, Sec. 1, 10, and 18. There was a final order. 89-4801, R. S. 1931. The power of the Supreme Court over judgments and final orders of the District Court is governed by the following statutes, Article 48, R. S. 1931; Section 89-4803; Section 89-4901, R. S. 1931; Section 89-4902, R. S. 1931; North Laramie Land Co. v. Hoffman, 30 Wyo. 248; 2 R. C. L. 27, 28. The question is fully discussed in Mau v. Stoner, 41 Wyo. 183, and in 3 C. J. 297; Mayor, etc. v. Keith (Tenn.) 94 S.W. 62; Missouri Power & Light Co., 32 S.W.2d 783. The case of Midwest Hotel Company v. Board, 39 Wyo. 461 is not applicable in the present case. A final order was entered, Section 89-2201, R. S. 1931; Bank v. Co., 5 Wyo. 50; Bank v. Steinhoff, 7 Wyo. 464; Anderson v. Matthews, 8 Wyo. 307; Anderson v. Englehart, 18 Wyo. 196; Thomas v. Bivin, 32 Wyo. 478; Mitter v. Black Diamond Coal Co., 27 Wyo. 72. The motion should be overruled.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

This is a proceeding under statutes, now Sections 52-207 to 52-229 R. S. 1931, for the establishment of a public road in Albany County. The respondent, owner of lands crossed by the road, claimed damages--$ 2.50 per acre for the lands taken, and $ 10,000 for lands damaged but not taken. The appraisers, acting under section 52-221, allowed the damages as claimed. The board of county commissioners, acting under section 52-222, approved the allowance of $ 2.50 per acre for the lands taken; reduced to $ 500 the allowance for lands damaged but not taken, and made the establishment of the road dependent and conditioned "upon the payment by the petitioners of all that...