State Highway Com'n of Wyoming v. Sheridan-Johnson Rural Electrification Ass'n

• Decision Date: 18 December 1989
• Docket Number: No. 89-77,SHERIDAN-JOHNSON,89-77
• Citation: 784 P.2d 588
• Parties: STATE HIGHWAY COMMISSION OF WYOMING, Appellant (Plaintiff), v.RURAL ELECTRIFICATION ASSOCIATION, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 588

784 P.2d 588

STATE HIGHWAY COMMISSION OF WYOMING, Appellant (Plaintiff), v. SHERIDAN-JOHNSON RURAL ELECTRIFICATION ASSOCIATION, Appellee (Defendant).

No. 89-77.

Supreme Court of Wyoming.

Dec. 18, 1989.

Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., Lawrence A. Bobbitt, III, Sr. Asst. Atty. Gen., Cheyenne, for appellant.

Robert W. Conner, Jr., Sheridan, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellant State Highway Commission of Wyoming (Commission) challenges an order dismissing its petition for declaratory relief against appellee Sheridan-Johnson Rural Electrification Association (Sheridan-Johnson), and granting summary judgment to Sheridan-Johnson. The Commission sought to establish that Sheridan-Johnson was responsible for the costs of relocating all of its power transmission facilities from state highway lands that it occupied under a 1972 license granted by the Commission. Condition No. 2 in that license states that any relocation of facilities within the existing right-of-way will be completed without cost to the Commission. The district court found that the term "existing right-of-way" referred only to the sixty-six foot wide strip underlying U.S. Highway 16-14, and not to the parallel strip of land acquired by the Commission in 1954 for future improvements. Reasoning that the Commission could have expressly required relocation of all poles without cost if that was its intent, the court held that Sheridan-Johnson was not liable for the cost of relocating the utility poles from state property covered by the license, but outside the sixty-six foot strip.

We reverse, and direct summary judgment for the Commission as a matter of law.

As will be discussed, common law requires that public utilities bear the expense of removing and relocating their facilities placed along public roads when such relocation is in the public interest. This is an exercise of the police power of the state, which may be modified only by the legislature and cannot be waived by acts of state employees.

Sheridan-Johnson first obtained a license from the Commission to place its facilities--power lines, poles and down guys--on state lands used for highway purposes in June 1960. The license covered Sheridan-Johnson's poles located on the sixty-six foot wide strip on which Highway 14-16 was originally constructed, and on a parallel strip of land that the Commission acquired for future improvements from the Old Wyoming Railroad Company in 1954. It was granted by the Commission under authority of W.S.1957, § 1-791, "Right-of-way along public ways granted; permission necessary for new lines," which permits public utilities to place their poles, lines, or other facilities along state roads after obtaining permission from the Commission. ¹ The parties entered another, nearly identical licensing agreement in March 1970.

As a result of a project upgrading its power lines, Sheridan-Johnson executed a third license with the Commission in June 1972. This license was on a new form which was worded somewhat differently from the two preceding licenses. Where the earlier licenses had been silent about the cost of relocation when it was required by the Commission, Condition No. 2 of the 1972 license stated:

Any future alteration or modification of the Facility within the existing right of way, required and requested by the Department, shall be completed without delay and without cost to the Department.

In February 1985, the Commission notified Sheridan-Johnson that it was proceeding with reconstruction of a section of U.S. Highway 14-16, that the project required relocation of a number of Sheridan-Johnson's power poles, and that Sheridan-Johnson would bear the cost of relocation of its facilities located in the public right-of-way. Sheridan-Johnson agreed that it was responsible for the cost of relocating the poles within the sixty-six foot strip of land underlying the highway. However, the utility argued that the poles on the adjacent land owned by the Commission were not within the "existing right-of-way," and as a consequence, the state should bear the expense of relocating them.

The parties were unable to agree on liability for relocation costs, but entered into an agreement for adjustment of facilities on August 6, 1987. This agreement provided that the Commission would advance the costs of relocating the power poles pending a resolution of the dispute, and would then seek a declaratory judgment that Sheridan-Johnson was responsible for those costs. The Commission filed its motion for declaratory relief on November 10, 1987, and the district court denied the motion and granted summary judgment for Sheridan-Johnson on February 17, 1989.

Summary judgment is proper when there is no genuine issue of material fact, and judgment for the prevailing party is correct as a matter of law. We apply our well-established standard of review, viewing the record and according inferences from the facts in a manner favorable to the party opposing the motion. Case v. Goss, 776 P.2d 188, 190-91 (Wyo.1989). In this instance we find that there is no issue of material fact, but that judgment for Sheridan-Johnson is incorrect as a matter of law.

The district court erred in focusing on the definition of "existing right-of-way." Even if the meaning assigned by the district court is correct, ² the phrase in the 1972 license is no basis for granting Sheridan-Johnson- "Johnson a windfall where there has been no legislative modification of the common law rule that utilities shall bear the expense of relocating their facilities placed along public roads. This rule is an expression of the state's police power, and it is beyond the authority of state employees to enter an agreement which compromises reasonable exercise of the police power unless they are authorized to do so by statute. As a result, even if "existing right-of-way" is something less than the public way covered by the license, the Commission is still not responsible for Sheridan-Johnson's relocation expenses. ³

The common law requires that utilities pay the cost of removing and relocating their facilities placed upon public highways when necessitated by highway improvements. New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831 (1905); State Road Commission of Utah v. Utah Power & Light Company, 10 Utah 2d. 333, 336, 353 P.2d 171, 173 (1960). We have often said that the common law remains the law in Wyoming unless it is set aside by statute, Condos v. Trapp, 717 P.2d 827, 831 (Wyo.1986), on rehearing 739 P.2d 749 (Wyo.1987), and this rule of law concerning relocation and expense of relocation has not been annulled or modified by any Wyoming statute. Other jurisdictions have made similar statements about the application of common law while addressing utility relocation costs, holding that only an express statute will shift the burden to the state. State of Arizona ex rel. Herman v. Electrical District No. 2 of Pinal County, 12 Ariz.App. 222, 469 P.2d 114, 117 (1970). ⁴

We have consistently said that our statutes will be read in harmony with the common law. Wetering v. Eisele, 682 P.2d 1055, 1061 (Wyo.1984). In this light it is apparent that the "in such manner as not to incommode the public in the use of such roads * * * " language in W.S.1957, § 1-791 ⁵ expresses only the limited user granted by common law. A utility may not inconvenience the traveling public by either the location of its facilities in the public way, or with the expense of removing and relocating those facilities, should that be required by the public interest.

The common law rule requiring removal and relocation at the utilities' expense is an expression of the police power of the state. Utah Power & Light, 10 Utah 2d at 340, 353 P.2d at 176; Washington Natural Gas, 373 P.2d at 135. We have described the police power as "a government's ability to regulate private activities and property usage without compensation as a means of promoting the public health, safety, morals and general welfare." (emphasis added). Cheyenne Airport Board v. Rogers, 707 P.2d 717, 726 (Wyo.1985). Police powers are an essential attribute of the state as sovereign and cannot be bargained or contracted away. New Orleans Gaslight, 197 U.S. at 460, 25 S.Ct. at 413, 49 L.Ed. at 835; State Highway Commission v. Clackamas Water District, 247 Or. 216, 428 P.2d 395, 397 (1967); City of Paris v. Paris-Henry County Public Utilities District, 207 Tenn. 388, 340 S.W.2d 885, 888 (1960). Consequently even if the district court were correct regarding the intent of the Commission, any attempt to limit the police power by agreement is invalid because it is beyond the authority of state employees to do so. Sheridan-Johnson cannot rely on the district court's interpretation of the license language where that interpretation compromises reasonable exercise of the police power. Only the legislature may authorize reimbursement for utility relocation. Utah Power & Light, 10 Utah 2d. at 340, 353 P.2d at 176.

Sheridan-Johnson claims that it relied to its detriment on the license language, and...