Salt River Enterprises, Inc. v. Heiner, No. 5824

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before ROONEY; ROONEY
• Citation: 663 P.2d 518
• Decision Date: 23 May 1983
• Docket Number: No. 5824
• Parties: SALT RIVER ENTERPRISES, INC., Appellant (Plaintiff), v. Charles G. HEINER, Appellee (Defendant).

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663 P.2d 518 SALT RIVER ENTERPRISES, INC., Appellant (Plaintiff),
v.
Charles G. HEINER, Appellee (Defendant). No. 5824. Supreme Court of Wyoming. May 23, 1983.

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Larry L. Jorgenson, Jackson, signed the brief and appeared in oral argument on behalf of appellant.

Wallace L. Stock, of Loomis, Lazear, Wilson & Pickett, Cheyenne, signed the brief and appeared in oral argument on behalf of appellee.

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

ROONEY, Chief Justice.

Appellant-plaintiff instituted this action against appellee-defendant alleging that appellee had constructed an easement road across appellant's property at a different location than that described in a written road easement given to appellee by appellant's predecessor in interest. After a trial to the court, the written easement was held to be ambiguous and the intention of the parties was found to require construction of the road at the location where appellee did construct it.

We affirm.

Before addressing the issues presented on appeal, we must determine the extent of the record properly available for our review. Part of that filed with this court consists of a purported transcript of proceedings had at the trial of the matter. It appears to be an original, but it does not contain a court reporter's certificate that it is "true and correct in every particular" as required by Rule 4.02, W.R.A.P. ¹ Nor is the

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transcript certified by the clerk as part of the record on appeal as required by such rule.

In one of the earliest cases reported after Wyoming became a state, the necessity of a properly authenticated transcript was discussed. This court there concluded that the certificate of the clerk was not sufficient to guarantee the reliability of the transcript and that, absent the court's certificate that the transcript correctly and fully states the evidence received, it could not be considered. Roy v. Union Mercantile Co., 3 Wyo. 417, 422-423, 26 P. 996, 998 (1891). The necessity for proper authentication of a transcript was reiterated in In Re Basin State Bank, 43 Wyo. 1, 296 P. 1074 (1930), in a number of cases cited therein, and in Northwestern Terra Cotta Co. v. Smith-Turner Hotel Co., 47 Wyo. 190, 33 P.2d 915 (1934).

The requirement for a proper certification is now embodied in a rule of court rather than a statute, as was the situation in the early cases, but the requirement is nonetheless binding. The facts necessary to present a question for review must be properly before us. As was said in In Re Basin State Bank, supra, 43 Wyo. at 12, 296 P. at 1076:

"It is self-evident reviewing courts 'must be furnished with legal evidence of the fact that what are brought to them as records on appeal are in truth the transcripts or other proper reproductions of all that took place at the trials.' Bognuda v. Pearson, 71 Cal.App. 105, 234 P. 857, 859."

Since we do not have a properly authenticated transcript before us, we must accept the trial court's findings of fact as that upon which any decision on issues pertaining to the evidence must be based.

On appeal from the judgment, the appellant words the issues as follows:

"A. Whether the Common Easement Agreement is ambiguous as a matter of law?

"1. Whether the District Court erred in holding that the worded description in the recorded easement is uncertain and ambiguous?

"2. Whether the District Court erred in finding there was an existing road or roadway at the location Defendant constructed his road?

"B. Whether the District Court erred in admitting into evidence Defendant's Exhibits A & B?

"C. Whether the District Court erred in holding that Plaintiff knew or should have known or discovered where the parties to the Common Easement Agreement intended the road to be constructed?"

Issues A.2, B and C are issues pertaining to the evidence. Appellant makes extensive reference to the transcript to support his contentions relative to the issues. Inasmuch as we cannot follow the leads in his

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argument on these issues into the transcript, we must address them only from that contained in the findings of fact. Issues A and A.1 are issues which are founded on a construction or interpretation of the easement agreement. Whether or not it is ambiguous and uncertain can be ascertained from it and external evidence need be considered only if it is ambiguous. The easement agreement is in the record as an exhibit to the complaint.

ISSUES A AND A.1

AMBIGUITY

In reviewing the district court construction of the easement agreement, we are governed by the principles applied to the construction of contracts in general. Rouse v. Munroe, Wyo., 658 P.2d 74 (1983); Hollabaugh v. Kolbet, Wyo., 604 P.2d 1359 ...