H K D Homesite Co. v. Board of County Com'rs of Laramie County

• Decision Date: 19 February 1952
• Docket Number: No. 2525,2525
• Citation: 69 Wyo. 236,240 P.2d 885
• Parties: H K D HOMESITE CO. v. BOARD OF COUNTY COM'RS OF LARAMIE COUNTY.
• Court: Wyoming Supreme Court

Page 885

240 P.2d 885

69 Wyo. 236

H K D HOMESITE CO. v. BOARD OF COUNTY COM'RS OF LARAMIE COUNTY.

No. 2525.

Supreme Court of Wyoming.

Feb. 19, 1952.

Harry B. Henderson, E. Keith Thomson, Cheyenne, for appellant.

Walter B. Phelan, Teno Roncalio, Cheyenne, for respondent.

RINER, Justice.

This cause is before us by direct appeal proceedings from a judgment of the District Court of Laramie County which confirmed and approved an award of damages made by the Board of County Commissioners of said County now respondents here to the H K D Homesite Company, a Corporation, the appealing party herein complaining of the award as made by the respondent. The facts briefly outlined are as follows:

On November 2nd 1949 the Board of County Commissioners aforesaid decided to locate a road to be known as the Cheyenne-Pine Bluffs Road. This proposed road was stated as:

'Commencing at a point on the east corporate limits of the City of Cheyenne, said point being the intersection of the centerlines of Hot Springs Avenue and Fourteenth Street; thence running in an easterly and northeasterly direction for a distance of approximately six and three-fourths miles through sections 33, 34, 27, 26, 25 and 24, in T. 14 N., R. 66 W., and sections 19, 30, 20, 29, 21 and 28, in T. 14 N., R. 65 W., to a point which is 48 feet south of the northeast corner of section 28, T. 14 N., R. 65 W.

'The above road, being embraced within a distance of ten miles of the nearest boundary of the City of Cheyenne, is to be designated as an Access Facility Free Way as set forth in Chapter 85 of the Session Laws of Wyoming, 1949, in which the same are defined as highways especially designated for through traffic, and over, from or to which owners or occupants of abutting lands or other persons have only limited right of easement or access.'

Chapter 85 of the Session Laws of Wyoming for 1949 as described in its title thus: 'An Act to provide for the planning, designation, establishment, use regulation, alteration, improvement, maintenance, and vacation of access facilities; the acquisition of lands required therefor, the restriction of intersections and control of approaches; the establishment of local service roads; the prohibition of certain acts thereon and provisions for penalties therefor; and for other purposes.'

An access facility is in section 2 of said Act defined as follows: 'For the purpose of this Act, an access facility is defined as a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such controlled access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses and other commercial vehicles may be excluded; or they may be free ways open to use by all customary forms of street and highway traffic. Authority to construct or designate any access facility shall be limited to an area embraced within a distance of ten miles from the nearest boundary of any city, town or village having a population of 1500 people or more according to the last Federal census.'

Section 3 of said Act provides in substance: that the highway authorities of the State, counties, cities and towns, acting alone or in co-operation are authorized to 'plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide access facilities for public use wherever such authority or authorities are of the opinion that traffic conditions, present or future, will justify such special facilities'; that said authorities in addition to the specific powers granted in this Act shall also have: 'and may exercise, relative to access facilities, any and all additional authority now or hereafter vested in them relative to highways or streets within their respective jurisdictions. Said units may regulate, restrict, or prohibit the use of such access facilities by the various classes of vehicles or traffic in a manner consistent with Section 2 of this Act.'

Sections 4 and 5 of said chapter read verbatim:

'Section 4. The highway authorities of the State, county, city, town, and village are authorized to so design any access facility and to so regulate, restrict, or prohibit access thereto as in their opinion may best serve the traffic for which such facility is intended. In this connection such highway authorities are authorized to divide and separate any access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers, stripes and other devices. No person shall have any right of ingress or egress to, from or across access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified by proper authority from time to time, or as hereinafter specifically provided for.

'Section 5. For the purposes of this Act, the highway authorities of the State, county, city, town, or village may acquire private or public property and property rights for access facilities and service roads, including rights of access, air, view, and light, by gift, devise, purchase or condemnation in the same manner as such units are now or hereafter may be authorized by law to acquire such property or property rights in connection with highways and streets within their respective jurisdictions. All property rights acquired under the provisions of this Act shall be in fee simple where conditions permit, otherwise by appropriate easement.' (Italics supplied.)

There are six more sections in the Act but bearing in mind the matter submitted in the appeal at bar it will not be necessary to review them at this time.

Sections 48-316 to and including section 48-324, W.C.S.1945, indicate the manner of exercising the power of eminent domain in the establishment of roads and so far as can be told from the record before us were the provisions of law which the respondent invoked in the matter of laying out the road in question. Section 48-327, W.C.S.1945, provides for an appeal to the district court of the County 'in which the land lies' by 'any applicant for damages claimed' from the final decision of the Board of County Commissioners under certain limitations therein stated but not now necessary to be at this time considered.

Pursuant to the sections mentioned in the last paragraph above the County Clerk of Laramie County published notice in accord therewith in three successive issues of the Wyoming Tribune Cheyenne State Leader. Appraisers were appointed by the said Board, viz. H. B. Reid; N. G. Smith, and Dean T. Prosser. In their work in this matter they had the assistance of an employee from the Highway Department of the State of Wyoming and also the City Engineer of the City of Cheyenne.

These appraisers made and verified their report to the Board of County Commissioners of Laramie County concerning the lands herein involved which are located in the east half of section 33, township 14 north range 66 west of the 6th Principal Meridian on February 16th 1950. The acreage and property of appellant taken by the respondent for the purposes aforesaid and as prescribed in said chapter 85 was 17 acres. None of the land condemned for the purpose of this road was improved but at the time of the appraisement and, for that matter, at the present time it was and is simply open prairie grass land; there were no improvements through homesite buildings adjoining or even in the immediate neighborhood thereof.

The appraisers made their award to the owner of said lands, the appellant herein, of $7,650 at the rate of $450 per acre. This award, the Board of County Commissioners of Laramie County approved and confirmed on April 13, 1950.

On appeal from this award by the Homesite Company aforesaid to the District Court of Laramie County, both parties, the H K D Homesite Company and the Board of County Commissioners of Laramie County were accorded a full hearing with opportunity afforded to each to produce such witnesses and proofs as they were advised to do. The cause was tried February 28th 1951 to the Court without a jury in attendance, and upon the conclusion of the trial and under date of March 28, 1951, that court rendered judgment as follows:

'Now Therefore, it is hereby ordered, adjudged and decreed that the Appellant take nothing by its appeal, and that the award made by the Respondent be confirmed and approved:

'To which said Judgment and Decree the Appellant excepts and said exception is allowed.'

The judgment thereafter as above stated was brought by appeal to this court for review, the Homesite Company being dissatisfied with the judgment thus rendered.

The contention advanced by appellant is that the damages which were allowed in the taking of this property were entirely inadequate. We shall not undertake to review the evidence adduced by the parties though the transcript thereof is not so very extended or lengthy. The H K D Homesite Company introduced but two witnesses, persons who were, as one of them testified, after explaining that they held an option on the whole tract involved, in consequence 'very vitally interested in it.' The respondent Board of County Commissioners of Laramie County submitted testimony of three witnesses; one of them being an employee of the State of...