Gorrell v. City of Casper
| Decision Date | 01 June 1962 |
| Docket Number | 3064,Nos. 3063,s. 3063 |
| Parties | J. E. GORRELL, D. Ross Murphy, Louise Rogers, Edwin A. Krueger, Henry Fritchell, Fred S. Butler, and Ross Swigart, Appellants (Plaintiffs below), v. The CITY OF CASPER, Wyoming, a municipal corporation, William R. Earnshaw, Mayor, Rudy Kohuth, Rebert G. Wildman, M. M. Orton, Patrick H. Meenan, Tim Force, Cecil Shaw and Robert Hildebrand, members of the City Council of said City, and Henry Rolfes, City Manager of said City, Appellees (Defendants below). The CITY OF CASPER, Wyoming, a municipal corporation, William R. Earnshaw, Mayor, Rudy Kohuth, Robert G. Wildman, M. M. Orton, Patrick H. Meenan, Tim Force, Cecil Shaw and Robert Hildebrand, members of the City Council of said City, and Henry Rolfes, City Manager of said City, Appellants (Defendants below), v. J. E. GORRELL, D. Ross Murphy, Louise Rogers, Edwin A. Krueger, Henry Fritchell, Fred S. Butler, and Ross Swigart, Appellees (Plaintiffs below). |
| Court | Wyoming Supreme Court |
Thomas A. Nicholas and Robert R. Rose, Jr., Casper, for appellants.
J. F. Mahoney (of Mahoney & Murphy), Casper, and Thomas B. Faxon (of Dawson, Nagel, Sherman & Howard), Denver, Colo., for appellees.
J. F. Mahoney (of Mahoney & Murphy), Casper, and Thomas B. Faxon (of Dawson, Nagel, Sherman & Howard), Denver, Colo., for appellants.
Thomas A. Nicholas and Robert R. Rose, Jr., Casper, for appellees.
Before PARKER, HARNSBERGER and McINTYRE, JJ.
This is an action by certain taxpayers on behalf of themselves and others similarly situated against the City of Casper, its mayor, councilmen, and manager, challenging the validity of a local improvement district purportedly created under the provisions of §§ 15-444 to 15-513, inclusive, W.S.1957, relating to local improvements in cities and towns. Although the petition alluded to various remedies, it appears that the principal relief sought was an injunction against further proceedings by defendants, and such was the interpretation of the trial court. The matters here questioned cannot well be divorced from prior occurrences.
In 1958, the City of Casper initiated action for the adoption of an extensive street improvement program and consulted engineers who filed a 200-page report setting forth their preliminary findings and analysis concerning the project. In April of 1959 the city employed an engineering firm which conducted an additional study and in a report reappraised the former engineers' findings and analyses and made its own recommendations. The 1959 program was submitted to the city landowners and in counsel's words 'was smothered by protests,' after which a member of the engineering firm previously employed by the city conducted a telephone survey of freeholders as to reasons for dissatisfaction. The engineering firm in October 1959 commenced work on grade designs and in mid-April 1960 presented maps to the city showing recommended flow line elevations at curbs. The defendants on March 18, 1960, opened an information center at the city's consulting engineer's office and disseminated certain publicity by radio, newspaper, and direct mail, including an information pamphlet apparently intended to describe the differences between the 1959 and 1960 programs. On April 11, 1960, the City Council adopted the Resolution of Intention for District No. 1960 (Project 60), which was published as a seven-page newspaper notice on April 19, with a copy being mailed to each property owner in the district. This resolution stated the boundaries of the district, which in effect constituted all except 225 acres of the City of Casper, and the character, king, and extent of paving, drainage, and curb, gutter, and sidewalk improvements; described fourteen different drainage areas; and gave estimates as to footage and the square foot cost of the paving, concrete, and drainage improvements. The only references in the resolution and notice which could conceivably refer to grade or grading were:
'That the City of Casper proposes to construct paving; curb; curb and gutter; combined curb, gutter and sidewalk; and drainage improvements in and along the following streets, and parts of streets, with intersections, within said City between the termini specified, as such are shown on the official plats and maps of the subdivisions or additions in said City, now on file and of record, the character and location to be as shown in more detail in the preliminary and tentative exhibits on file in the office of the City Clerk and available for public inspection during normal office hours.'
'The construction of concrete improvements shall include all necessary removal, replacement, excavation, filling grading, storm sewer inlets, curb openings for driveways and alleys, valley gutters and appurtenant work and shall be constructed parallel to the street center line. * * *'
Under § 15-453, which provides that there shall be no further proceedings if there is a protest by the owners of over one-half of the area subject to assessment, there were here filed protests by the owners of 26.27 percent of the property in the enlarged district. On December 5, 1960, the ordinance creating Project 60 was finally passed and adopted. On December 12 it was published, and on December 20 the council approved plans, specifications, maps, and estimated cost of the improvement and directed the giving of notice to contractors. The injunction proceeding was commenced on December 29. The complaint contained numerous recitations of illegality and impropriety relating to the project, many of which were eliminated at pretrial conference. Following an extended trial, the court found against plaintiffs on all aspects of the case except one, i. e., there was a substantial irregularity in the notice of intention and ordinance as related to the grades of numerous proposed streets, sidewalks, curbs, and gutters; 1 and accordingly, entered judgment enjoining the defendants from proceeding with Project 60. From this judgment defendants appealed (Case 3064) presenting the single issue of sufficiency of notice concerning grades. Simultaneously plaintiffs appealed (Case 3063) as to all issues on which the court found adverse to them but later waived a number of these by failure of reference in the brief. 2 The city's appeal presents the question, Did the resolution and notice, with such supplement as was provided by reference to maps, comply with the statute requiring specification with convenient certainty of the improvements contemplated insofar as grades were concerned?
The court's views on which the judgment was based are well reflected in certain portions of the findings of fact:
'The Resolution or Notice of Intention is not vague and indefinite in describing streets and places to be improved * * * except that it does fail to properly notify the property owners that it was proposed to establish and alter grades of numerous streets, sidewalks, curbs and gutters throughout the city at the cost and expense of the property to be assessed. * * *'
'* * * the facts are that in many instances the centerline elevation of streets will be raised or lowered, existing curbs, gutters and sidewalks will be removed and replaced and the result will be to change or alter the grade thereof * * *.'
and in the conclusions of law:
'The Notice of Intention did not specify with convenient certainty, as provided by Section 15-452, Wyoming Statutes, 1957, or contain a reasonable description of the improvements contemplated, as to the subject of grades, so it was impossible for the property owners to estimate as to how much grading, if any, was to be done. * * *'
The first step in evaluating the court's findings and conclusions on this point is a scrutiny of the evidence. It will be recalled that the resolution of intention published in the newspaper stated that maps and plats showing the character and location of the proposed improvements would be on file in the office of the city clerk. However, witnesses testified that the three documents which taken together constituted a 'grade map' were not in the office of the city clerk but at the information center and office of the city engineer where they were examined by certain callers with the assistance of the engineers. The nature of the 'grade map' and the information which it disclosed is well explained by the testimony of one of the engineers responsible for its preparation:
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