Miller v. Hagie, 2259

• Decision Date: 31 August 1943
• Docket Number: 2259
• Citation: 140 P.2d 746,59 Wyo. 383
• Parties: DAVID MILLER and MICHAEL MILLER, Plaintiffs and Appellants, v. C. E. HAGIE, G. G. BARNARD, and G. W. DEAHL, the Board of County Commissioners of Goshen County, State of Wyoming, Defendants and Respondents
• Court: Wyoming Supreme Court

140 P.2d 746

59 Wyo. 383

DAVID MILLER and MICHAEL MILLER, Plaintiffs and Appellants, v. C. E. HAGIE, G. G. BARNARD, and G. W. DEAHL, the Board of County Commissioners of Goshen County, State of Wyoming, Defendants and Respondents

No. 2259

Supreme Court of Wyoming

August 31, 1943

Appeal from District Court, Goshen County; Sam M. Thompson, Judge.

Action by David Miller and Michael Miller against C. E. Hagie and others, constituting the Board of County Commissioners of Goshen County, State of Wyoming, to restrain the defendants from acting under certain eminent domain proceedings for a highway right of way. From a judgment denying injunction plaintiffs appeal.

Affirmed.

For the plaintiffs and appellants there was a brief and oral argument by Mr. J. A. Greenwood of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

Section 52-219, W. R. S. 1931, provides that when claims for damages are filed, the Board of County Commissioners shall appoint three appraisers to view the ground on a date fixed by said Board: North Laramie Land Co. v. Hoffman, 30 Wyo 238, 269, 219 P. 561; Sterrett v. Young et al., 14 Wyo. 146, 162. The Commissioners did not fix a day for the appraisers to view the ground. The oath the appraisers took was that they would duly and truly appraise the damages. Section 52-221, W. R. S. 1931, requires an oath that the appraisers will faithfully and impartially discharge their duties: 20 C. J. 1030, Sec. 417; North Laramie Land Co v. Hoffman, 30 Wyo. 258, 269; Thomas v. Boise city et al., 138 P. 1110, 1114. Section 52-221 provides that the appraisers must meet at some convenient place on the line of said proposed road and take and administer to each other such oath. Instead the County Clerk attempted to administer an oath to the appraisers at some undesignated place. The name of Lee A. Root appears as one of the appraisers, while Frank Jones, one of those appointed by the Commissioners, took no part in the proceedings. Section 52-221 provides that if any one of the parties appointed by the Board fails to perform his duty, the other two appraisers shall appoint another. The report of the appraiser does not comply with statutory requirements. It does not show that they viewed the ground nor that they were sworn as the statute requires before performing their duties; nor that any benefits would result to the claimants. The report of the appraisers contains no description of any land: 20 C. J. 1036, Sec. 422; Tegeler v. Schneider, 114 P. 288; Parks v. City of Waco, 274 S.W. 1006. One seeking to condemn land can not place upon the owner the burden of searching out information as to description: 18 Am. Jur. 969, Sec. 325. In condemnation proceeding, statutes must be strictly complied with: Bass v. City of Casper, 28 Wyo. 387, 401; 18 Am. Jur. 957, Sec. 312; State v. McCook, 64 A. L. R. 1453, 1457.

For the defendants and respondents there was a brief by Mr. George P. Sawyer of Torrington,, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

Injunction relief in eminent domain cases is not a matter of absolute right: 133 A. L. R. 99. The plaintiffs did not appeal but later brought this suit in equity to enjoin the defendants. They should have appealed within thirty days: 30 C. J. S., page 34, paragraph 353. The attack made by the plaintiffs is a collateral attack: Edwards et al. v. City of Cheyenne et al., 19 Wyoming 110 and 114 P. 677, and 122 P. 900; North Laramie Land Company v. Hoffman, 30 Wyo. 238, 219 P. 561, 563; Cottman v. Lochner, 40 Wyo. 378, 278 P. 71, 74. The failure to fix a day for the appraisers to view the ground is only an irregularity: 30 C. J. S., p. 128, paragraph 406. The defendants were not required to notify plaintiffs of the appraisers' meeting: North Laramie Land Company v. Hoffman, 30 Wyo. 238, 219 P. 570, 571, 133 A. L. R. 83. The oath the appraisers took was in substantial compliance with Section 52-221. The report of the appraisers was adequate for the Commissioners to act upon at the hearing and it cannot be questioned collaterally by a bill in equity. The description of the land to be taken as set forth in the notice of location of the road was in compliance with 52-216. The plaintiffs had an adequate remedy at law; they could have appealed: 133 A. L. R. 104, 30 C. J. S., p. 119, paragraph 401. The Commissioners had jurisdiction: Padlock Ranch v. Washakie Needles Irrigation District, 50 Wyo. 253, 60 P. 2d 819, 61 P. 2d 410.

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

OPINION

RINER, Justice.

The review is asked herein by direct appeal of a judgment of the District Court of Goshen County, Wyoming denying the appellants, David Miller and Michael Miller, plaintiffs below, an injunction whereby it was sought to restrain the defendants, respondents here, C. E. Hagie, G. G. Barnard, and G. W. Deahl as the Board of County Commissioners of said county from acting under certain eminent domain proceedings for a highway right-of-way, these proceedings being hereinafter described.

The facts material to be considered are substantially these: On November 7, 1941 the respondents named above hereinafter designated usually as the "Board" or the "defendants" acting as the Board of County Commissioners of said county at its regular session caused a "Notice of Location of Public Road" to be published in the Torrington Telegram, a newspaper published in the town of Torrington in said county. This notice read as follows:

"To Whom It May Concern:

"The Board of County Commissioners of Goshen County, Wyoming, have decided to locate a road to be known as Torrington - Van Tassell Road, beginning at the southeast corner of the NE 1/ 4 N.E. 1/4 of Section 9, Township 24 North, Range 61 West of the Sixth Principal Meridian, and running thence in a northerly direction to the northeast corner of Section 33, Township 25 North, Range 61 West; thence westerly to the north-west corner of Section 33, said township and range; thence northerly to the Interstate Canal. The plans of said road showing location in detail are on file in the County Clerk's office.

"The proposed location and width of right of way required are set forth in detail on said map on file in the County Clerk's office and may be examined at said office.

"All objections thereto and claims for damages must be filed in writing with the County Clerk of said County before noon on the 8th day of December, 1941, or such road will be established without reference to such objections or claims for damages.

"Dated this 7th day of November, A. D. 1941."

Thereafter copies of this notice were sent by mail to all the persons who owned lands adjoining the proposed highway.

Pursuant to said notice and within the time fixed therein, to-wit, December 8, 1941, the plaintiffs filed their written "Objection and Claim for Damages" with the county clerk of said county, the language thereof, omitting title, being hereinafter set forth for the most part verbatim thus:

"The undersigned, Dave Miller and Michael Miller, of Scotts Bluff County, State of Nebraska, respectfully represent that they are owners in fee of the following described real estate, to wit:

Northwest Quarter (NW 1/4) of Section Thirty-four (34), Township Twenty-five (25), Range Sixty-one (61), Goshen County, Wyoming.

"The said Dave Miller and Michael Miller hereby object to the locating of a road in Goshen County, State of Wyoming, to be known as the Torrington - Van Tassell road. Objection to the locating of said road is made in compliance with a purported legal notice entitled "Notice of Location of Public Road", which said notice was transmitted to the aforesaid Dave Miller by United States Mail."

After setting out a copy of the notice hereinbefore quoted, the aforesaid "Objection and Claim for Damages" continues:

"The said Dave Miller and Michael Miller object to the locating of said road for the reason that the locating of said road requires the taking of an undetermined part of the real estate owned by the said Dave Miller and Michael Miller and described herein; that the taking of said real estate for said proposed road is not attempted to be done according to the statutes of the State of Wyoming and the taking of said real estate or an attempt to take the same is contrary to the laws of the State of Wyoming and of the United States. In further compliance with the said notice, the said Dave Miller and Michael Miller hereby present their claim for damages for the taking of said real estate, if the same be taken, and present their claims for damages to real estate not taken but injuriously affected, which said claim for damages is in the total amount of $ 5000.00.

"The within objections and claim for damages are filed solely for the purpose of complying with aforesaid notice, and the said Dave Miller and Michael Miller do not thereby waive their rights in and to the real estate described therein and to their rights to demand that the locating of said road and taking of real estate thereby be done strictly in accordance with the provisions of the Statutes of the State of Wyoming.

"Dated this ___ day of December, 1941.

Dave Miller

Michael Miller."

There is attached to this paper a form of verification which does not seem to have been completed though said paper is stipulated by the parties to be a "true and correct copy" thereof.

On December 8, 1941 the Board aforesaid held a special meeting and the minutes of that meeting read relative to the matter at bar:

"Claim for damages for the location of a road known as the Torrington-Van Tassell road was filed December 8, 1941 by Dave Miller and Michael Miller, wherein they state they will be damaged in the amount of $ 5,000 if said road is located.

"Said objection has been duly considered by the Board and the...