Gregory v. Sanders

• Decision Date: 03 November 1981
• Docket Number: No. 5451,5451
• Citation: 635 P.2d 795
• Parties: Albert D. GREGORY, Gary W. Gregory, and Ronald W. Gregory, Appellants (Defendants), v. William A. SANDERS and Nadine Sanders, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 795

635 P.2d 795

Albert D. GREGORY, Gary W. Gregory, and Ronald W. Gregory, Appellants (Defendants), v. William A. SANDERS and Nadine Sanders, Appellees (Plaintiffs).

No. 5451.

Supreme Court of Wyoming.

Nov. 3, 1981.

Rehearing Denied Nov. 24, 1981.

Walter C. Urbigkit, Jr., Urbigkit & Whitehead, P.C., Cheyenne, signed the brief and appeared in oral argument on behalf of appellants.

Arthur T. Hanscum, Pence, MacMillan & Hanscum, Laramie, signed the brief and appeared in oral argument on behalf of appellees.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

The ultimate issue in this appeal is the validity of appellants' claim of a prescriptive right to use of roadways owned by appellees. Appellees filed an action in the district court to enjoin use by the appellants. The district court held that appellants had no such right and enjoined further use. ¹ Appellants in their statement of issues merely listed topics to be discussed. Appellees rephrase appellants' positions into the form of questions which, with some editing, we can resolve:

1. Is Nadine Sanders a proper party in the litigation and, if not, what is the consequence thereof?

2. Is William A. Sanders a real party in interest with respect to the subject matter of the litigation?

3. Does the evidence show the requisite elements for the acquisition by Defendants of an easement by prescription over the roads in the North Fork Subdivision; i. e., did defendants show that they or their predecessors in interest used (a) the private roads contiguous to the North Fork Subdivision roads, (b) continuously or uninterruptedly, and (c) adversely for a ten-year period of time?

4. Is the evidence sufficient to show that continued use of the North Fork Subdivision roads would cause irreparable harm such as to justify injunctive relief?

5. Is the judgment prohibiting Defendants from using the North Fork Subdivision roads to gain access to their property sustainable by the evidence as disclosed by the record in the trial court?

We will affirm.

A rough sketch of the area, not to scale, may help to understand the facts:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The road access to which appellants (Gregorys) lay claim is across from south to north what is shown as North Fork River Homesites near Centennial. The trial court's Findings of Fact, which we now summarize, disclose that for some years the Gregorys and their predecessors in title off and on gained access through the Sanders' property. As noted by the trial court, the Sanders subdivided their property and in doing so created different types of roads:

"9. * * * a) Roads dedicated to the public in North Fork Subdivision Numbers 1, 2 and 3; b) real property owned by Plaintiffs set aside for the benefit of North Fork Homesite Owners as a private access road between Subdivision Numbers 4 and 7, and 5 and 6; and c) access road by reservation in deed, or by easement in Subdivision Numbers 6 and 8 respectively on the easterly edge of said subdivision and continuing in a generally northwesterly direction until a point at which a road enters Subdivision Number 3."

Suffice it to say that the roads dedicated to the public do not interconnect so that there is a continuous route over public roads through the subdivision to the Gregory lands from Highway 130 at the south end of the Sanders' property, which Highway 130 passes through. The Gregorys do have access to their lands over what is known as the Rainbow Valley Lodge Road which enters their land from the west, north of the Sanders' land. Beginning in 1975, the Gregorys nevertheless used private roads going through the various subdivisions in conjunction with the public roads to reach their lands. On or about October 21, 1977 and November 8, 1977, each of the Gregorys were notified that they were not to use the Sanders' private roads in the North Fork Subdivision.

Because of the Gregorys' persistence in use of the private roads, the Sanders brought the action in the district court, from which case this appeal is now taken, to enjoin the Gregorys from such use.

Other facts will be set out as required in disposition of the issues.

I

The Gregorys attach some significance to the fact that Nadine Sanders shows up as a party plaintiff (an appellee). Her name was not on the Petition for Preliminary and Permanent Injunction as a party but first appears as a signatory principal on the Bond on Preliminary Injunction at which time she was also included as a plaintiff in the caption on a stipulation regarding the uses by the Gregorys of certain roads during pendency of the action. Counsel for the Gregorys have included the name in some of their filings as well. It does not appear that any objection or motion to strike was ever made during any proceedings in the district court. The Gregorys attach to their brief, as an appendix, the form of warranty deed used by the Sanders in the sale of lots within the various subdivisions. It shows Nadine Sanders, grantor, as the wife of appellee William A. Sanders and provides for her signature.

While fee title to the land out of which the various subdivisions were carved was in the name of William A. Sanders as sole owner, this court takes judicial notice of the practice within this state of the wife joining in the conveyance by the husband of his separate property as an assurance that no claim of a homestead right will be later made by the wife. ²

We see no problem in this de minimis matter and hold that since the question was not raised in the district court and is not a candidate for consideration as plain error, we will not give it our attention on appeal. City of Rock Springs v. Police Protection Association, Wyo., 610 P.2d 975 (1980). Furthermore, the Gregorys have presented us with no authority or cogent argument justifying our consideration. Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979).

II

It is the contention of the Gregorys that the grant of access road rights by conveyances, plat and "behavior" left no interest in Sanders as grantor sufficient to afford him real-party-in-interest status.

However, the evidence discloses that the Sanders retained title to certain lands forming part of the route the Gregorys claim a right to use. It is conceded that Sanders granted the residents of the subdivision easements to use various roadways which he agreed to create for purchasers. ³ It should also be noted that appellees retained ownership to a buffer strip of land upon which the southern entrance to the subdivisions is located. The evidence discloses that the purpose of ownership retention was to assure privacy to subdivision purchasers. The law is clear that the owner of a servient estate has a right to object to an unauthorized use of an easement. 25 Am.Jur.2d Easements and Licenses, § 72 (1966).

The question that remains is whether all roadways-both those on appellees' retained land and any shown on the subdivision plats-were dedicated to the public. If so, the Sanders would have in effect given the public an easement and could not complain about the Gregorys' use of the road.

To determine whether a public dedication occurred, the plats filed with the county clerk's office must be considered. After doing so, the district court judge found the roads shown on and contained in North Fork Subdivision Nos. 1, 2, and 3 were dedicated to the public. These subdivisions constitute the northwest one third of the area denoted as the North Fork River Homesites in the diagram, supra. The roads in the remainder of the development were found by the trial judge in his findings as not dedicated to public use:

"11. The Plaintiffs' Subdivision Number 4 was established in 1964. All roads and public ways, as was shown on the plat of the subdivision, were dedicated to the public's use. The road, entitled access road, despite the fact that it is shown on the map, is not within the plat nor the dedication and by reason thereof, was not dedicated to the public.

"12. Plaintiff did not intend to dedicate the access road shown on the map of Subdivision Number 4 when it dedicated the platted area within Subdivision Number 4.

"13. North Fork Subdivision Number 5 was established in 1965. The owners dedicated to the public use such roads and public ways as were shown on the plat. However, no roads were shown on the plat. A road that is contiguous to Subdivision Number 5, on its east side, was constructed during 1963 and 1964.

"14. The North Fork Subdivision Number 6 was filed in 1966. The dedication provided that such roads and public ways that existed were dedicated to the public use. However, no roads were depicted on the plat. The subdivision road that is contiguous to Subdivision Number 5, and which was constructed during 1963 and 1964, served the homesites that were located directly east of Subdivision Number 5. A road was built to serve the homesites on the eastern side of Subdivision Number 6 in 1969 and 1970. An additional road that runs from east to west and bisects Lots No. 9 and 10 in Subdivision Number 6 was constructed between 1969 and 1970.

"15. Subdivision Number 7 and Number 8 were dedicated in 1969 and 1970 respectively. The subdivisions as filed do not indicate any roads and there is no dedication of roads to the public."

The filing of the plats was done pursuant to § 34-113, W.S.1957:

"Every original owner or proprietor of any tract or parcel of land, who has heretofore sub-divided, or shall hereafter sub-divide the same into three or more parts for the purpose of laying out any town or city, or any addition thereto, or any part thereof, or suburban lots, shall cause a plat of such sub-division, with references to known or permanent monuments, to be made, which shall accurately describe all the sub-divisions of such tract or parcel of land, numbering the same by progressive numbers, and giving the dimensions, and length and breadth thereof, and the breadth and courses of all...