Stringer v. Board of County Com'rs of Big Horn County

Decision Date08 December 1959
Docket NumberNo. 2879,No. F-54,F-54,2879
Citation347 P.2d 197
PartiesE. M. STRINGER and E. G. Markley, in the Matter of Their Claim for Damages Sustained by Reason of Establishment of a Highway, Known as Project(3), Big Horn County, Wyoming, Appellants (Petitioners below), v. BOARD OF COUNTY COMMISSIONERS OF BIG HORN COUNTY, Wyoming, Appellee (Respondent below).
CourtWyoming Supreme Court

Walter B. Phelan, Cheyenne, for appellants.

John O. Callahan, County and Prosecuting Atty., Big Horn County, Basin, and Robert L. Duncan, Sp. Asst. Atty. Gen., for appellee.

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

Mr. Justice PARKER delivered the opinion of the court.

In State ex rel. State Highway Commission v. Stringer, 77 Wyo. 198, 310 P.2d 730, 734, we held that Stringer and Markley, who had certain oil rights in property taken by eminent domain for a highway right of way, had not received 'Notice of Location of Road' as provided by law and were therefore entitled to file claim for damages and for a determination of same. In accordance therewith, Stringer and Markley 1 filed a claim under § 48-315, W.C.S.1945, now § 24-53, W.S.1957, and related sections. The appraisers appointed to view the premises disallowed the claim. The board of county commissioners 2 approved the report of the appraisers, and plaintiffs appealed to the district court where the matter was tried to a jury under a stipulation that the sole issue was that of the damage, if any, sustained by the plaintiffs. It was also stipulated that a temporary (later permanent) injunction had prohibited the use by plaintiffs of tools on Krueger No. 2 well; that the instruments of plaintiffs' title be admitted, viz., a lease of the oil and gas rights on the Krueger land, for as long as the same were produced, and a sale of the oil wells located thereon; and that plaintiffs' oil well, Krueger No. 2, was located not less than 1.2 and not more than 1.33 feet within the defendant's right of way. 3 The jury returned a verdict generally in favor of defendant and against plaintiffs, and the court entered a judgment decreeing that plaintiffs take nothing.

Plaintiffs have based their appeal on the alleged error in:

(1) The court's refusing to give Instruction 5A and in giving Instructions 7 and 14.

(2) The court's rejecting plaintiffs' offer of proof with reference to erection of a refinery to consume oil produced in the area of the lease.

(3) The court's refusal of the offer to prove the replacement cost of the well.

(4) The jury's manifest failure to follow the court's instructions.

(5) The jury's rendering of a verdict contrary to and unsupported by the law or the evidence.

I

The crucial part of Instruction 5A proffered by plaintiffs was the statement:

'* * * the measure of damages to be awarded * * * if any, is the market value of their property, namely the oil well * * *.' (Emphasis supplied.)

No authority is cited to justify the singling out of a portion of the property, the oil well, without reference to plaintiffs' entire property, the leasehold and wells. Defendant insists that the damage, if any, suffered by plaintiffs was the difference in the market value of their entire property before and after the taking. It relies upon Gillespie v. Board of Com'rs of Albany County, 47 Wyo. 1, 30 P.2d 797, 803, which, in passing upon the measure of damages to a person whose property was taken for a highway under the statute in question, said:

'* * * The jury were correctly instructed that the measure of damage, if any, was the difference between the market value of the ranch immediately prior to the establishment of the road and the value thereof immediately after such establishment. * * *'

Generally speaking, this rule is in accord with many of the leading authorities on eminent domain. 4 Nichols on Eminent Domain, 3d ed., § 12.2; 1 Orgel on Valuation under Eminent Domain, 2d ed., § 17; 18 Am.Jur. Eminent Domain § 242; 29 C.J.S. Eminent Domain § 136. We think, however, that no more weight should be given to the statement in the Gillespie case than the facts therein warranted. There the amount of damages for the lands actually taken had already been determined prior to the trial in the district court, and thus the only issue was the dispute as to the damage to the lands not taken. Accordingly, the defendant here has sought to unduly enlarge the holding in that case. Moreover, we must bear in mind all statutes which the legislature has enacted to accomplish the taking of private property for highway purposes. Section 48-303, W.C.S.1945, now § 24-3, W.S.1957, and related statutes, under which the present action is brought, allow the county to take the property for the highway department and establish procedures governing same, while § 48-105, W.C.S.1945, now § 24-37, W.S.1957, allows the highway department to take the property under the procedure applicable to that permitting eminent domain by railroads (§ 3-6101 ff., W.C.S.1945, now § 1-754 ff., W.S.1957). Section 3-6123, W.C.S.1945, now § 1-776, W.S.1957, specifically requires that the certificate of the commissioners or the verdict of the jury, as the case may be, contain the following items:

'First--An accurate description of the land taken;

'Second--The value of the land or property actually taken;

'Third--The damages, if any, to the land affected, but not taken, after deducting therefrom the value of the real benefits or advantages which may accrue to such land from the construction of said railroad.'

It is a fundamental principle of statutory construction that to ascertain the meaning of a given law all statutes relating to the same subject or having the same general purpose shall be read in connection with it as constituting one law. They must be construed in harmony, else the law of the State would consist of disjointed and unharmonious parts with a conflicting and confusing result. Civic Ass'n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 116 P.2d 236; Cuthbertson v. Union Pacific Coal Co., 50 Wyo. 441, 62 P.2d 311. In this situation, we cannot assume that the legislature intended to set up dissimilar criteria for the determination of damages.

Instruction 7, given by the court over the objection of plaintiffs, advised that the proper basis for the determination of damages was the difference between the market value of the plaintiffs' premises immediately prior to the establishment of the road and thereafter, taking into consideration all the elements found to exist from the evidence. The argument of the parties here and the instructions of the trial court would seem to indicate that the jury was in effect prevented from a consideration of the value of the property actually taken, i. e., Krueger No. 2.

Instruction 14, given by the court over the objection of plaintiffs, read:

'* * * the Board of County Commissioners of Big Horn County acquired an easement across the surface of the property and therefore the title to the minerals remained in the landowner or the lessees, * * * by such easement the Board of County Commissioners of Big Horn County did not acquire any of the minerals underlying the surface thereof.'

Since there was no other instruction which related to mineral rights or which told the jury that the county commissioners were not by law permitted to interfere with the mineral rights of plaintiffs, the jury was only partially instructed on the subject. They were misled because Instruction 14 inferentially excluded from the jury's consideration the facts shown by the stipulation--that the oil well, Krueger No. 2, was within the right of way and that plaintiffs had in effect been prohibited from operating it by reason of the injunction theretofore issued. The instruction also tended to exclude from consideration the testimony of the witness who said that Krueger No 2 produced one-half barrel of oil per day 4 and that it was capable of such production continuously for a period of twenty years or more.

From what we have said, it appears that this is a case which illustrates the difficulties encountered when by statute 5 instructions, unless erroneous, must be given by the court if requested by counsel. The duty for instructing the jury is primarily with the court, but from the right of a litigant to ask for special instructions has grown up the custom by which each counsel will submit all of the instructions which seem to him to be desirable to his cause. The result tends to be the promulgation of an uncoordinated series of statements which often lose sight of the true governing factors in the litigation. It follows that so far as instructions are concerned there was no merit in the contention of plaintiffs that the court erroneously rejected 5A, but there was a basis for the objections to Instructions 7 and 14.

II

Plaintiffs offered to prove that at the time they purchased the oil wells and procured the lease there was no market for the Krueger oil and that in order to supply a market they had erected a refinery located close to the wells on the lease so as to make production profitable. This offer was...

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