McGuire v. McGuire, 5176

Citation608 P.2d 1278
Decision Date21 March 1980
Docket NumberNo. 5176,5176
PartiesFred McGUIRE and Mickey McGuire, Appellants (Contestees), Board of County Commissioners of Platte County, Wyoming (Contestee), v. Dan McGUIRE, Loretta McGuire, Eldon Allison and Elaine Allison, Appellees(Contestants), Two Bar Ranch Company, Appellee (Contestee).
CourtUnited States State Supreme Court of Wyoming

Arthur Kline, of Kline & Swainson, Cheyenne, signed the brief and appeared in oral argument for appellants.

Sky D. Phifer, of Phifer & Phifer, Wheatland, signed the brief and Fred W. Phifer, Wheatland, appeared in oral argument for appellees McGuire and Allison.

John A. Sundahl, of Godfrey & Sundahl, Cheyenne, signed the brief and appeared in oral argument for Two Bar Ranch Company.

John D. Troughton, Atty. Gen., and Mary B. Guthrie, Asst. Atty. Gen., amicus curiae for the State of Wyoming.

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

RAPER, Chief Justice.

This appeal deals with an application for a private road to a parcel of landlocked property. The application was filed pursuant to §§ 24-9-101 et seq., W.S.1977. 1

The contestants-appellees, Dan and Loretta McGuire, filed their petition naming On September 6, 1978, the county commissioners issued findings of fact, conclusions of law, and an order which dismissed the appellees' application for a private road. The commissioners' dismissal was based on several grounds:

the contestees-appellants, Fred and Mickey McGuire, as well as Two Bar Ranch Company. 2 The appellees wanted a private road over the lands of either the appellants or Two Bar Ranch. A hearing was had before the Platte County Commissioners on June 6, 1978. 3 An additional hearing was conducted on July 12, 1978. In addition to the testimony heard by the county commissioners at these proceedings, there were a significant number of exhibits and other items of evidence placed in the record. At those hearings, Eldon and Elaine Allison were added as parties because they had purchased the 80 acres in question from the appellees 4 and were the record owners. Thus, the Allisons are also appellees. Our future references to appellees thus include both the McGuires and the Allisons.

"1. Dan McGuire and Loretta McGuire were, prior to August 13, 1975, the owners of 80 acres of land commonly described as the NW1/4 SW1/4 and SW1/4 NW1/4 of Section 10, T23N, R69W of the 6th P.M., Platte County, Wyoming.

"2. Subsequent to the filing of this petition, the contestants sold the described property on August 13, 1975, to Eldon Allison and Elaine Allison, husband and wife, under a Contract of Sale and Guarantee Agreement. Dan McGuire and Loretta McGuire are not the legal owners of the property in question, having conveyed the same by Warranty Deed to Eldon Allison and Elaine Allison, husband and wife, by Warranty Deed recorded on October 25, 1976, in Book 194 at Pages 163 and 164, Platte County records.

"3. Subsequently, on May 13, 1976, Eldon Allison and Elaine Allison resold the property under a Contract of Sale to Raymond Flynn and Darlene Flynn, husband and wife. Dan McGuire and Loretta McGuire were not parties to the said Contract of Sale, although they approved the terms thereof. This sale was subject to obtaining a road right of way to said premises.

"4. Eldon Allison and Elaine Allison are the holders of legal title to the 80 acres. The owners of said 80 acres, subject to the terms of the Contract of Sale, are Raymond Flynn and Darlene Flynn, who paid the taxes thereon for the year 1977.

"5. At the June 6, 1978, hearing, Eldon Allison and Elaine Allison were joined as contestants and applicants. At no time were Raymond Flynn or Darlene Flynn joined as applicants or contestants.

"13. There has been no evidence presented by the applicants as to the purposes for which the road is desired, future type or extent of use of any proposed road, or of the proposed use of the 80 acres. Accordingly, the Board of County Commissioners is unable to determine the impact which any proposed road would have upon adjoining landowners which the road might cross. The only interest of the Contestants-Applicants in obtaining a private road is financial, which interest the Board finds to be an inadequate basis for granting the application.

"14. The 80 acres in question are not presently used by the McGuires, the Allisons, or the Flynns. Use of such property has been limited to hunting and other minor activities upon the property.

"15. There are no fences surrounding the 80 acres, although there is a boundary fence on the south side of the property. There are no improvements except for a homestead cabin ruin. The 80 acres are situated in extremely mountains (sic) property.

"16. Section 3 of the Unlawful Enclosure of Public Lands Act (43 U.S.C. § 1063 prevents obstruction of free passage over public lands of the United States of America.

"17. No evidence as to the necessity or need for such road has been presented in this proceeding.

"18. The Board of County Commissioners finds that the private road is not necessary, as required by Section 24-9-101, Wyoming Statutes 1977, for the reason that the applicants presently have access to the property and such access has not been denied. The adjoining landowners over whose lands the requested private road may be located will suffer more from the granting of the application than will the applicants from its denial.

"19. Access to the property has never been denied, and access by the McGuires has traditionally been from the west, north or the east of the property.

"20. For in excess of 40 years, there has been an established road to the north of the property on the Muleshoe Flats, which branch off of County Road No. 271. Said road is across BLM lands, and has been used by members of the public during that time. The public lands over which such roads pass have not been reserved for any public use.

"21. 43 U.S.C. Section 932 provides:

'The right of way for the constructing of highways over public lands, not reserved for public uses, is hereby granted.'

"Although the statute was repealed effective October 21, 1976, the two roads which branch off the County Road to the north across Muleshoe Flats were previously laid out and used by the public sufficient to constitute acceptance and dedication of the offer contained in that statute, and therefore an established road is deemed to exist across the public lands of the United States.

The commissioners then concluded:

"CONCLUSIONS OF LAW

"1. The application herein is filed pursuant to Section 24-9-101, Wyoming Statutes, 1977.

"2. The proposed private road is unnecessary.

"3. No viewers or appraisers should be appointed by this Board to determine damages to the property of the contestees caused by location of a road over their property until contestants have shown necessity, lack of access, and that any such road over the property of contestees will be lawfully and legally continued over the lands of all landowners whose property lies between the public road and the lands of contestees, which proof has not been established.

"4. The said 80 acres has an outlet and connection with a public road, which outlet is convenient and available to the applicants. ( 5

"5. The Board of County Commissioners has jurisdiction over the parties hereto as well as the subject matter hereof. ( 6

"6. The State of Wyoming and the United States of America are necessary and indispensable parties to this proceeding and the Board has no jurisdiction to determine if a private road should be granted in the absence of notice to all the owners of land over which the private road is applied for.

The appellees then sought review of this action by the county commissioners in the district court. The district court considered the matter and entered an order reversing the action of the commission on June 4, 1979. In pertinent part that order provides:

"1.

"That any road to the South that would cross the land of the Contestee, Two Bar Ranch Company, would of necessity, have to cross land belonging to the State of Wyoming. Under Article 18, Paragraph 3 of the Wyoming Constitution and the various regulations adopted by the Board of Land Commissioners, a private road may not be granted across State land. Pursuant to this authority and various statutes, the Board of County Commissioners Action should be affirmed insofar as it pertains to the lands of Two Bar Ranch Company, and said Company should be dismissed as to further proceedings. ( 7

"2.

"That proper notice was given to all owners of land over which the private road is applied for by Contestants. Since a private road cannot be acquired over State land, it was not necessary to give them notice. It was not necessary to give "3.

notice to the U.S. Bureau of Land Management, as the evidence shows there is a public road across the Bureau of Land Management land that can be joined with the private road from Contestants land. (See fn. 7.)

"That Section 24-9-101 of the Wyoming Statutes 1977 states that, '. . . any person whose land shall be so situated that it has no outlet to, nor connection to a public road, may make application in writing to the Board of County Commissioners of his county at a regular session, for a private road leading from his premises to some convenient road . . .'. The statute then proceeds to state that '. . . if the said Board shall find that the applicant has complied with the law, and that such private road is necessary, said board shall appoint three (3) disinterested freeholders and electors of the county as viewers and appraisers . . .'. It was stipulated between the Contestants and Contestees, Fred McGuire and Mickey McGuire, that the eighty (80) acres in question has no outlet to a public road.

"4.

"It is the finding of the Court that the undisputed fact that the land of Contestants is land-locked is in and of itself a necessity, and that the Board of County Commissioners, in failing to appoint three (3) disinterested...

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