Snell v. Ruppert

• Decision Date: 31 October 1975
• Docket Number: No. 4484,4484
• Citation: 541 P.2d 1042
• Parties: Orvalle SNELL and Ellen E. Snell, husband and wife, Appellants (Petitioners below), v. L. J. RUPPERT, Appellee (Respondent below), and The Board of County Commissioners in and for Sheridan County, Wyoming,*(Respondent below).
• Court: Wyoming Supreme Court

Page 1042

541 P.2d 1042

Orvalle SNELL and Ellen E. Snell, husband and wife, Appellants (Petitioners below), v. L. J. RUPPERT, Appellee (Respondent below) and The Board of County Commissioners in and for Sheridan County, Wyoming,*(Respondent below).

No. 4484.

Supreme Court of Wyoming.

Oct. 31, 1975.

Charles R. Spratt, Buffalo, signed the brief and appeared in oral argument on behalf of appellants.

W. K. Archibald, Sheridan, signed the brief and appeared in oral argument on behalf of appellee, L. J. Ruppert.

Before GUTHRIE, C. J., and PAPER and ROSE, JJ.

PAPER, Justice.

The respondent-appellee, Ruppert, seeks the establishment of a private road by proceedings before the county commissioners of Sheridan County, Wyoming, pursuant to § 24-92, W.S.1957, C.1967:

'Any person whose land shall be so situated that it has no outlet to, nor connection with 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 public road. * * *'

Ruppert in 1963 purchased a lot near Story, Wyoming, containing about two and one-half acres of land. It was part of a subdivision created early in this century but had no access to a public road because of other lots of the same subdivision that intervene to the north and Piney Creek to the west and south. The other lots have permanent improvements on them and the banks of Piney Creek are too steep for a road. The appellants-petitioners Snell own agricultural acreage that adjoins to the east. Ruppert is land-locked; it is acknowledged that the best way for him to gain access to the public road is by way of a north-soutn 30-foot by 300-foot private road on and along the west boundary of the Snell land. A road could be put across lots between the Ruppert lot and the public road but the terrain is unsatisfactory and in doing so, the expense would be great and the value of those lots would be diminished because of the location of presently existing improvements along with the necessity to cut down trees, which lend value to properties in the Story community.

Ruppert had been trying for several years to negotiate with the Snells for purchase of a road easement, without success. They would not sell at any price but offered to buy out Ruppert at their price which he refused to consider.

Proceedings, as provided by § 24-92, W.S.1957, C.1967, ¹ ensued. The administrative proceeding taken before the county commissioners was back and forth between the county commissioners and the district court on two previous occasions; we now consider what we shall for the moment refer to as the third appeal to the district court. The county commissioners ordered the private road established and fixed compensation to be paid by Ruppert to Snell. The district court affirmed. The case is before this court for the first time.

The Snells contend that there is no necessity for a taking of their land because Ruppert has a common-law way of necessity through the lots of the subdivision to the road which should be enforced by a civil action and not this administrative proceeding. The common-law rule they assert is that whenever a grantor conveys away a part of his property, he conveys with it whatever is necessary for the beneficial use of the land he conveys, including a way of ingress and egress over his remaining land, if not otherwise available. The way is presumed to have been intended by the parties. 25 Am.Jur.2d (Easements and Licenses) § 34. ² Snell contends that even though the unity of title to the lots involved last existed in 1920, the intervening lots are still bound by the further rule set out in 25 Am.Jur.2d (Easements and Licenses) § 35:

'* * * if at one time there has been unity of title, the right to a way of necessity may lie dormant through several transfers of title and yet pass with each transfer as appurtenant to the dominant estate and be exercised at any time by the holder of the title. * * *'

There have been several individual transfers of title since 1920.

The question then before the court on this appeal is whether Ruppert is confined to the common-law remedy of forcing a way of necessity across the lots to his north, having a common origin of unity of title with his or whether he has available to him the right to take a private road across the lands of a stranger to his title. Let us now trace the law of Wyoming.

Section 32, Art. I, Wyoming Constitution, provides as follows:

'Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.'

Section 33, Art. I, Wyoming Constitution, supplements § 32 and states, 'Private property shall not be taken or damaged for public or private use without just compensation.'

In Meyer v. Colorado Central Coal Co., 1928, 39 Wyo. 355, 271 P. 212, reh. den. 274 P. 1074, it was explained that:

'Constitutional provisions of the character appearing in sections 32 and 33, supra, are not unusual, especially in the western states of the Union. The states of Washington, Colorado, and Arizona, besides our own, have them. The courts of those states have considered the meaning of the phrase, 'way of necessity,' as it thus appears in their Constitutions, and it has been held that the Legislature may define them and establish procedure to make the right thereto available. (Citing cases.) * * *' ³

Section 24-92 had its roots in §§ 32 and 33, Art. I, Wyoming Constitution.

With exceptions, Wyoming is governed by the common law. Section 8-17, W.S.1957, provides as follows:

'The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law prior to the fourth year of James the First (excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature and not local to England, shall be the rule of decision in this state when not inconsistent with the laws thereof, and shall be considered as of full force, until repealed by legislative authority.' (Emphasis added.)

The common law having been adopted in this state, the courts may rely upon and follow the English decisions so far as they are not incompatible with the statute law. Johnston v. Laird, 1935, 48 Wyo. 532, 538, 52 P.2d 1219, 1220. If a statute covers a whole subject matter, the abrogation of the common law on the same subject will necessarily be implied. Schlattman v. Stone, Wyo.1973, 511 P.2d 959, 961; Roberts v. Roberts, 1943, 58 Wyo. 438, 461, 133 P.2d 492, 500. Schlattman goes on to hold that the common law obtains only when not changed by statutes and statutes take precedence where there is any inconsistency or conflict with the unwritten law.

The whole concept of the exercise of eminent domain is the taking of property without the consent of the owner and this is anticipated by § 32 of Art. I of the Constitution, when it says, 'Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, * * *.' This is inconsistent with any concept of the common-law rule in regard to a way of necessity; under the common law, there is present the implied consent of the owner that his grantee has an outlet from the property which he has conveyed. Another inconsistency rests within the anticipation of the Constitution and the statute that compensation be paid for the way in and out. A way of necessity in the common-law sense goes with the land and does not anticipate the payment of compensation. Section 24-92, W.S.1957, offers complete relief to the shut-in landowner and covers the whole subject matter.

The Snells contend that a condition precedent to proceeding under the statute is that Ruppert must first proceed in a civil action to enforce a common-law way of necessity across intervening lots of the subdivision. There is no such condition imposed by the statute. We cannot stretch, extend, enlarge nor amend what the legislature has clearly said. Lo Sasso v. Braun, Wyo.1963, 386 P.2d 630, 632. While we need not consider the matter, there may be a practical reason why a civil action would not lie and it was observed by the trial judge at the district court hearings. In excess of 50 years has passed since the subdivision was created; title to lots has passed through several hands. The intervening lot owners could probably successfully raise the shield of the 10-year statute of limitations. Section 1-13, W.S.1957, states:

'An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten years after the cause of such action accrues.' ⁴

The eminent domain proceeding offers a realistic approach. ⁵ We hold that Ruppert proceeded properly.

Earlier in this opinion it was indicated that this appeal is before us on what we would for the moment refer to as the third appeal to the district court. The course of the proceedings was more specifically that a first appeal was taken by Orvalle Snell because of an insufficient hearing before the board of county commissioners. The parties stipulated to a remand for a full hearing. Following that hearing, the board by its order established the road on the Snell land and fixed the compensation. That order was appealed by Orvalle Snell by a petition for review to the district court on the major grounds that the road should have been established across the lots once held in a unity of title along with the applicant's and the board of county commissioners had reduced the viewers' award. There were other...