Mayland v. Flitner

• Decision Date: 10 August 2001
• Docket Number: No. 00-143.,00-143.
• Citation: 28 P.3d 838,2001 WY 69
• Parties: Martin R. MAYLAND, Appellant (Petitioner), v. David A. FLITNER; and The Board of County Commissioners of the County of Big Horn, Appellees (Respondents).
• Court: Wyoming Supreme Court

28 P.3d 838

2001 WY 69

Martin R. MAYLAND, Appellant (Petitioner), v. David A. FLITNER; and The Board of County Commissioners of the County of Big Horn, Appellees (Respondents).

No. 00-143.

Supreme Court of Wyoming.

August 10, 2001.¹

Joseph E. Darrah and S. Joseph Darrah of Darrah & Darrah, P.C., Powell, WY, Representing Appellant.

Randy L. Royal, Greybull, WY, Representing Appellee Flitner.

No appearance for Board of County Commissioners.

Before LEHMAN, C.J.; GOLDEN and KITE, JJ.; and DAN SPANGLER, D.J. (Ret.).

KITE, Justice.

[¶ 1] Martin R. Mayland seeks review of a final decision of the Big Horn Board of County Commissioners (County Commissioners) granting David A. Flitner a private road over Mr. Mayland's property and awarding damages for the taking. The district court certified the matter to this court. Mr. Mayland contends: (1) The final decision is not supported by substantial evidence; (2) the findings do not comply with the specificity requirements of the Wyoming Administrative Procedure Act; (3) no good faith finding was made; (4) Mr. Flitner failed to comply with statutory requirements including, but not limited to, studying alternative routes and, therefore, the County Commissioners did not have jurisdiction to determine the matter; (5) the decision was made in an executive session in violation of the Public Meetings Act; (6) the damages determination is defective because the appraisers failed to set out before and after values per Lindt v. Murray, 895 P.2d 459 (Wyo.1995); and (7) interest should have been awarded to Mr. Mayland from the date Mr. Flitner obtained a temporary restraining order granting him full use of the road. We affirm.

FACTS

[¶ 2] Mr. Mayland and Mr. Flitner own adjacent properties in the Big Horn Mountains. There are only two existing routes by which Mr. Flitner can access his property. One is a road that crosses Mr. Mayland's private property and connects with a public road known as Snowshoe Pass Road (Mayland/Snowshoe Pass Road). The other, referred to as Black Mountain Road, crosses over private lands owned by Loren Good, Richard Whaley, and Stan Flitner (Mr. Flitner's brother), Bureau of Land Management (BLM) property, and state land.

[¶ 3] The Flitner family had used Mayland/Snowshoe Pass Road since at least the 1930s and, prior to 1995, had never been denied access by the Mayland family. In approximately June of 1994, Mr. Flitner commenced construction of several buildings on his property. In connection with the construction project, Mr. Flitner requested and received Mr. Mayland's permission to make some improvements to Mayland/Snowshoe Pass Road. By November 1994, approximately sixty percent of the building construction was completed. In January 1995, Mr. Mayland's then-legal counsel advised Mr. Flitner by letter that permission to use Mayland/Snowshoe Pass Road was terminated and an easement would be considered for payment of $100,000 and transfer of a specific forty-acre parcel of land.

[¶ 4] Mr. Flitner commenced proceedings in February of 1995 for establishment of a private road pursuant to Wyo. Stat. Ann. §§ 24-9-101 to -104 (LEXIS 1999) (amended 2000). In the summer of 1995, he obtained a temporary restraining order from the district court in order to maintain access to his property to continue construction until the county acted on his application.

[¶ 5] A hearing on the Application for Establishment of a Private Road was held before the County Commissioners on April 30, 1996. Within approximately a month thereafter, Mr. Mayland filed a motion to reopen the evidence alleging new evidence had come to light that would impeach Mr. Flitner's April 30, 1996, hearing testimony. Mr. Flitner filed a traverse to the motion to reopen but consented to the County Commissioners receiving the additional evidence. A second hearing was held before the County Commissioners on September 4, 1996. The County Commissioners issued Findings of Fact and Conclusions of Law on June 17, 1997, and concluded: (1) Mr. Flitner had demonstrated the necessity of the private road; (2) he had complied with the procedural requirements and aspects of § 24-9-101; (3) he had established he had no legally enforceable existing outlet or connection with a public road; (4) the private road should be established; and (5) viewers should be appointed to locate and determine the value of the road as contemplated in § 24-9-101.

[¶ 6] Thereafter, three appraisers were appointed, an instructions hearing was held regarding the process of computing damages, the appraisers viewed the properties, and a damages hearing was held which concluded on September 27, 1999. Mr. Mayland presented his appraiser who testified the total loss in value of Mr. Mayland's property was $231,000. His opinion concluded the $2,800,000 "before value" of the property incurred a diminution in value of seven percent or $196,000 due to the road. He added $5,272 for the estimated value of acres taken by the thirty-foot right-of-way (computed by multiplying 6.39 acres times an estimated value of $825 per acre using values reflective of recreational property) and $30,000 for the cost to cure reservoir/water system damage which he alleged the road would cause.

[¶ 7] Mr. Flitner presented testimony of his expert who conducted a review of Mr. Mayland's appraisal. She testified the value of Mr. Mayland's property before the taking was $2,334,353 and the value after was $2,331,637 for a total loss in value due to the taking of $2,716. She utilized a lower per acre value based on agricultural property for the acres taken by the right-of-way and concluded other damage to the property would not occur.

[¶ 8] The appointed appraisers submitted their final conclusion to the County Commissioners on December 1, 1999, which determined Mr. Flitner was obligated to compensate Mr. Mayland $5,272 (6.39 acres valued at $825 per acre) for the taking of the right-of-way and an additional $10,000 for other damages for a total of $15,272. There was no direct reference in this document to values before and after the taking.

[¶ 9] The County Commissioners held a hearing on January 18, 2000, to receive the parties' objections to (1) the Findings of Fact and Conclusions of Law, (2) the appraisers' report, and (3) the private road application procedure in general. The Order Adopting Report of Appraisers and Establishing Private Road was issued by the Country Commissioners on February 1, 2000. The order adopted the appraisers' determination of damages but awarded Mr. Mayland no interest on the damages and no litigation costs. The order also required Mr. Flitner to pay Big Horn County $17,446.21 for the costs incurred by the county in "locating this road." It was further provided the order would be filed with the Big Horn County Clerk and Recorder upon payment of the sums found due, thereby legally establishing the private road. Mr. Flitner made payment, and the order was duly recorded. Mr. Mayland then filed a Petition for Judicial Review of Administrative Action, which the district court certified to this court on its own motion.

STANDARD OF REVIEW

[¶ 10] In reviewing appeals from agency action, we are in the same position as the district court; we cannot substitute our judgment for that of the agency as long as the decision is supported by substantial evidence. Gold v. Board of County Comm'rs of Teton County, 658 P.2d 690, 695 (Wyo.1983). Our task is to examine the entire record to determine whether substantial evidence supported the agency's findings of facts. Dunning v. Ankney, 936 P.2d 61, 63 (Wyo.1997). No deference is given to an agency's conclusions of law. Martens v. Johnson County Board of Comm'rs, 954 P.2d 375, 379 (Wyo.1998). If the agency has not invoked and properly applied the correct rule of law, we are obligated to correct the error.

Miller v. Bradley, 4 P.3d 882, 886 (Wyo. 2000).

DISCUSSION

A. Adequacy of the Findings of Fact and Conclusions of Law

[¶ 11] The first three issues posed by Mr. Mayland principally contest the adequacy of the County Commissioners' Findings of Facts and Conclusions of Law. In order to address the contentions in an efficient and cohesive manner, we reframe the core question for review as follows: Were the County Commissioners' Findings of Fact and Conclusions of Law consistent with the requirements of the Wyoming Administrative Procedure Act, supported by substantial evidence, and, therefore, adequate to support the grant of a private road?

[¶ 12] Mr. Flitner brought his application for establishment of a private road pursuant to § 24-9-101 which provided in part:

Any person whose land has no outlet to, nor connection with a public road, may apply in writing to the board of county commissioners of his county for a private road leading from his premises to some convenient public road. At least sixty (60) days prior to applying to the board, the applicant shall give notice in writing to the owner, resident agent or occupant of all lands over which the private road is applied for, of his intent to apply for a private road . . .. At the hearing, all parties interested may appear and be heard by the board as to the necessity of the road and all matters pertaining thereto. Upon the hearing of the application, whether the owner or others interested appear or not, if the board finds that the applicant has complied with the law and that the private road is necessary, the board shall appoint three (3) disinterested freeholders and electors of the county, as viewers and appraisers, and shall cause an order to be issued directing them to meet on a day named in the order on the proposed road, and view and locate a private road according to the application therefor, and to assess damages to be sustained thereby.

[¶ 13] This court has found good faith in bringing the application is an essential prerequisite. See Martens v. Johnson County Board of Commissioners, 954 P.2d 375, 380 (Wyo.1998)

(citing Dunning v. Ankney, ...