State ex rel. State Highway Commission v. Stringer, 2774

• Decision Date: 07 May 1957
• Docket Number: No. 2774,2774
• Citation: 310 P.2d 730,77 Wyo. 198
• Parties: The STATE of Wyoming ex rel. STATE HIGHWAY COMMISSION of Wyoming, Plaintiff and Respondent, v. E. M. STRINGER and E. G. Markley, Defendants and Appellants.
• Court: Wyoming Supreme Court

Page 730

310 P.2d 730

77 Wyo. 198

The STATE of Wyoming ex rel. STATE HIGHWAY COMMISSION of Wyoming, Plaintiff and Respondent, v. E. M. STRINGER and E. G. Markley, Defendants and Appellants.

No. 2774.

Supreme Court of Wyoming.

May 7, 1957.

Walter B. Phelan, Cheyenne, for defendants-appellants.

Howard B. Black, Deputy Atty. Gen., and Robert L. Duncan, Sp. Asst. Atty. Gen., for plaintiff-respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

In 1954 plaintiff, the State Highway Commission, proceeded with the reconstruction and improvement of U. S. Highway No. 20 between Basin and Greybull across certain land which the record showed to be in the name of Henry Krueger, with an outstanding 1948 oil and gas lease to Defendants Stringer and Markley who had three stripper oil wells thereon. The 200 foot right of way would have included defendants' well, Krueger No. 2, except that plaintiff, recognizing the existence of the well, excluded a rectangular notch 105' by 50' so that the well instead of being included in the right of way remained some two inches outside. The commissioners of Big Horn County in 1951 had proceeded under art. 3, c. 48, W.C.S.1945, making the newspaper publication provided in § 48-316, W.C.S.1945, but admittedly sent no registered letter and gave no other notice to defendants whose address was shown by the recorded lease to be Denver, Colorado.

On July 15, 1954, defendants, being without knowledge of the condemnation proceedings, began preparation for clean out of Krueger No. 2, placing certain equipment in the right of way; and plaintiff brought this action against defendants for a temporary injunction, which, upon hearing, the district court made permanent. From such judgment defendants have appealed, raising, among others, the pivotal question: Does newspaper publication under § 48-316 (without registered mailing of a copy) constitute notice as against a nonresident person owning or claiming an interest in land to be taken by eminent domain?

Plaintiff relies on Cottman v. Lochner, 40 Wyo. 378, 278 P. 71, 74, emphasizing an excerpt therefrom:

'* * * In view of the peculiar phraseology of the statute, the requirement that a copy of the notice should be sent by registered mail to owners of lands or those claiming an interest in lands over which a highway is proposed to be laid out is, in our judgment, directory merely. * * *'

Reliance on a single statement to solve any case is somewhat precarious unless such statement grows out of facts which are substantially identical with those which bring about the problem to be solved. In the Cottman case, a citizen, seeking to use a previously located highway, requested an injunction against a property owner who built a fence across the highway; and the property owner attacked the highway location for lack of service of notice. As the court there pointed out, the attack was clearly collateral in character. Moreover, no claim was made that the property owner had been unaware of the location of the highway. It is also significant to note the admonition of the court that:

'* * * The requirement [sending of registered notice] should be followed in each case so far as possible, but failure to do so cannot be held to vitiate the entire proceedings in establishing the road.' (Emphasis supplied.)

In the instant case, the defendants could scarcely make a more direct attack than they have done in resisting the injunction, insisting that the condemnation proceedings were instigated without proper service on them, and contending that plaintiff was without right of title to the property in the vicinity of the oil rig. It is undisputed that defendants knew nothing of the condemnation proceedings until shortly before the present action. Furthermore, defendants herein do not seek to vitiate the entire proceedings in establishing the road but seek only an opportunity to have their day in court for a determination of the proper amount of damage they suffer by reason of the interference with their property rights. Accordingly, the holding in the Cottman case must be taken as far less than a blanket pronouncement that a governmental agency may, by publishing a statement of location of road in the newspaper, foreclose an uninformed landowner's right to damages without an opportunity for hearing.

We pass then to another case on which plaintiff relies, Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045, in which condemnation of land for a railroad was held valid when there was full compliance with the terms of the statute requiring publication of notice. The case on preliminary perusal may seem to indicate that the mere appearance of a statement in a newspaper for the required number of times is sufficient to provide notice to a landowner in an eminent domain proceeding and to provide him his day in court on the question of damages. We doubt if the case should be so broadly interpreted inasmuch as the action there was one of trespass, obviously a collateral attack on the eminent domain proceeding. Moreover, the Court said at 130 U.S. 562, 9 S.Ct. 605 that 'The transcript on its face seems to be regular in every particular, showing a full compliance with all the requirements of the statute on the subject.'

A comprehensive analysis of the question is presented in Walker v. City of Hutchinson, Kan., 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178, reversing the lower court's denial of relief to a landowner whose property was taken by eminent domain after newspaper publication and without any copy of notice having been sent him. The Court said at 77 S.Ct. 202:

'It cannot be disputed that due process requires that an owner whose property is taken for public use must be given a hearing in determining just compensation. The right to a hearing is meaningless without notice. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, we gave thorough consideration to the problem of adequate notice under the Due Process Clause. That case establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. We there called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with circumstances and conditions. We recognized that in some cases it might not be reasonably possible to give personal notice, for example where people are missing or unknown.

'Measured by the principles stated in the Mullane case, we think that the notice by publication here falls short of the requirements of due process. It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property. In Mullane we pointed out many of the infirmities of such notice and emphasized the advantage of some kind of personal notice to interested parties. In the present case there seem to be no compelling or even persuasive reasons why such direct notice cannot be given. Appellant's name was known to the city and was on the official records. Even a letter would...