Meyer v. Colorado Central Coal Co.

• Citation: 271 P. 212,39 Wyo. 355
• Decision Date: 30 October 1928
• Docket Number: 1513
• Parties: MEYER, ET AL. v. COLORADO CENTRAL COAL CO. [*]
• Court: United States State Supreme Court of Wyoming

271 P. 212

39 Wyo. 355

MEYER, ET AL. v. COLORADO CENTRAL COAL CO. ^[*]

No. 1513

Supreme Court of Wyoming

October 30, 1928

Rehearing Denied March 5, 1929; See 274 P. 1074.

Rehearing Denied 39 Wyo. 355 at 371.

ERROR to District Court, Carbon County, VOLNEY J. TIDBALL, Judge.

Proceeding by the Colorado Central Coal Company against R. D. Meyer and others, to condemn land for railway sidings, spur tracks and tramways. To review an order denying defendants' motion to set aside a final decree for petitioner, they bring error.

Affirmed.

W. E Clark of Denver, Colorado, and James A. Greenwood of Cheyenne, for plaintiffs in error.

The condemnation statute relied upon in this case is one pertaining to surface rights and not to a "way of necessity" down through the land to the center of the earth; 2938 C. S. Chap. 75, Laws 1921. The attempted enlargement of the operation of the statute, constitutes the taking of property without due process of law. Art. I, Sec. 6, 32 and 33, Const. The sub-surface constituent is valuable, coal bearing land, and did not come within the operation of the condemnation proceedings which asked for nothing more than a way of necessity on, over, and across the lands for purposes described in the petition.

F. D. McMillan and Harry B. Henderson, Jr., for plaintiff in error.

The condemnation proceedings were brought to secure fee simple title. The motion to vacate the judgment was not signed by an attorney licensed to practice in Wyoming, and is invalid; Land Company v. Huffman, 26 Wyo. 327. No appeal was taken from the award made by the Commissioners. The motion to vacate the judgment was apparently intended as a motion for a new trial. 6401, 6392 C. S. Bank v. Rawlins Bank, 24 Wyo. 23; Lumber Co. v. Bank, 23 Wyo. 302; Parrott v. Dist. Court, 24 Wyo. 494; Conradt v. Lepper, 13 Wyo. 99; but the motion was not filed in time. The statute of limitations applies. Lobell v. Oil Co., 19 Wyo. 174; In re Laramie River, 23 Wyo. 78; Fremont Lodge v. Thompson, 24 Wyo. 15; Bonner v. Bank, 25 Wyo. 261; an erroneous judgment cannot be corrected except by appeal. Scott v. Light Assn., 137 N.C. 515; Mitter v. Coal Co., 206 P. 132. The judgment cannot be opened now. 5424, 5926 C. S. The procedure was not for the opening of the judgment. 5716 C. S. There was no answer to the petition. None of the original defendants joined in the motion, which does not seem to have been made by the real party in interest. Clark v. Lumber Co., 31 Wyo. 205; Kipp v. Clinger, 97 Minn. 135; James v. Company, 32 Wyo. 291. The motion was addressed to the sound discretion of the Court. A judgment will not be vacated until it appears that a valid defense to the action exists. 5929 C. S. Bank v. Anderson, 6 Wyo. 529; James v. Lederer, supra. The affidavit filed in support of the motion is false. Plaintiffs are guilty of laches. They ignored the petition for about three years. The rule is that one seeking the opening of a judgment on default, must give good reason for default and an excuse for laches. Johnson v. Clark, 6 Wend. 517; Hitchcock v. Herzer, 90 Ill. 543. Cutler v. Burton, 51 Minn. 550; Albright v. Warkington, 31 Kan. 442; Pederson v. Newton, 139 Minn. 24. Plaintiffs in error are estopped by their silence, and apparent acquiescence in defendant's possession and improvement of the land. The statute indicates that the fee title passes by condemnation. 5946 C. S. The term "fee" and "fee simple" are synonomous, Brown v. John, 201 Ill. 295; Jecko v. Tausig, 45 Mo. 167. No appeal was taken. The judgment should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a proceeding in error to review an order of the District Court of Carbon County, Wyoming, made October 25, 1927, overruling a motion of plaintiffs in error to vacate and set aside a "final order and decree" of that court made some three years previously. The facts disclosed by the record are substantially as follows:

Under the provisions of Chapter 316 (Sec. 4938, as amended by Laws of 1921, c. 75, Sec. 4939 et seq.), W. C. S. 1920, on September 12, 1924, the Colorado Central Coal Company, hereinafter referred to as the "coal company," filed in the District Court of Carbon County its petition against R. D. Meyer, et al., subsequently mentioned herein as "the owners," seeking to condemn a strip of land fifty feet on each side of a described line of survey, as stated in said petition, "in fee simple to the plaintiff and to its successors and assigns forever," for a "way of necessity for railway trackage sidings, spur tracks and tramways" over and across said land, for the transportation of coal from the coal company's mine to the line of the Union Pacific railroad. The petition asked that the court appoint three impartial appraisers of the property thus sought to be taken and fix the time and place of their first meeting and the time for making their report.

Previous to the filing of such petition, due notice of its proposed filing was given the owners, as required by Section 4941--the one resident of the state but not of Carbon county being notified by substituted service, and all the owners--resident as well as non-resident--by constructive service through publication. On October 4, 1924, the coal company appearing by its counsel--the owners not having appeared or objected to the proceeding in any way, the court entered an order finding the allegations of the petition to be true, except that the value of the premises to be taken and the damages to be incurred by reason of such taking, should be determined by named appraisers, whose first meeting was fixed, and the time for filing whose report was likewise duly noted therein. Thereafter the appraisers, thus selected, qualified and within the extended time fixed by the court, on October 27, 1924, filed their report, fixing the value of the land taken and the damages to the owners' other lands for such appropriation. Neither upon the coming in of this report nor within fifteen days following, as allowed by Section 4945, W. C. S. 1920, did the owners file any objections, or applications for a jury trial, and on December 3, 1924, a final order and decree was entered by the court confirming the award of the appraisers and adjudging, among other things, that "the title in fee simple to all the said strip of land is hereby passed from the said owners and defendants and each and all of them to" the coal company, "its successors and assigns forever, free and clear from all claims of the defendants and each and all of them and all persons claiming through or under them in any manner whatsoever." No proceedings in error or appeal to review this order were ever instituted. Meanwhile, in 1926, a spur railroad track of standard gauge was built by the coal company upon the land thus appropriated, extending from the main line of the Union Pacific Railroad Company to the coal company's property.

Nothing further appears to have been done by any of the parties until May 17, 1927, when the owners, or those who succeeded to their rights by contract or conveyance, filed in the District Court of Carbon County a motion to set aside the final decree of December 3, 1924, above mentioned, because of claimed "irregularity in and about the proceedings pertaining to the securing of said order and decree, in that due process of law has not obtained and both the statutory and constitutional provisions of the State of Wyoming have been violated." This motion was heard upon argument and affidavits and on October 25, 1927, the court entered an order denying said motion, and, as already indicated, it is to review that order that these proceedings in error are brought.

While some other and inconsequential matters were suggested by the briefs and argued by counsel, the real and controlling question in the case is whether the decree of condemnation violated the constitutional and statutory law of this state, when it assumed to give to the coal company a fee simple title to the land appropriated. The claim is that only the surface right and perhaps necessary support therefor could be awarded to the coal company by the decree attacked. It is said that Chapter 316, supra, in its purport "tends to and does limit the 'way of necessity,'" for which Section 4938, as amended, permits the taking of another's land "to the surface." But an examination of the statute, we think, shows that this is not so.

Section 4946, W. C. S. 1920, wherein the legislature undertook specifically to define the effect of the order of condemnation and the nature of the interest transferred by it, after declaring that a certified copy thereof shall be recorded and indexed in the office of the county clerk "in like manner, and with like effect, as if it were a deed of conveyance from the said owners and parties interested, to the person, association of persons, company or corporation seeking to take and acquire real property as by this act provided, their heirs, successors or assigns," provides:

"Upon the entry of such order the said petitioner shall become seized in fee of all such property described in said order as is required to be taken as aforesaid, and may take possession of and hold and use the same for the purpose specified in said petition, and shall thereupon be discharged from all claims for any damages by reason of any matter specified in such petition, certificate or verdict, or in the order of the court."

This language would in itself seem to be an unmistakable declaration on the part of the legislature that the fee title to the land condemned should pass. This conclusion is additionally supported by the latest expression of the legislative will on the subject in Chapter 75, Laws of 1921 where Section 4938 was amended, and w...