Thomas v. Jultak, 2485

• Decision Date: 22 May 1951
• Docket Number: No. 2485,2485
• Citation: Thomas v. Jultak, 68 Wyo. 198, 231 P.2d 974 (Wyo. 1951)
• Parties: THOMAS et al. v. JULTAK et al.
• Court: Wyoming Supreme Court

Page 974

231 P.2d 974

68 Wyo. 198

THOMAS et al. v.JULTAK et al.

No. 2485.

Supreme Court of Wyoming.

May 22, 1951.

A. G. McClintock, Cheyenne, for appellants.

A. Joseph Williams, Cheyenne, for respondents.

BLUME, Justice.

This case involves the validity of a resolution of the Council of the City of Cheyenne vacating a portion of an alley in Block 404 of the City of Cheyenne.The defendants filed a demurrer to the second amended petition on the ground, among others, that it did not state facts sufficient to constitute a cause of action.The demurrer was sustained and plaintiffs not pleading further, judgment was rendered for the defendants.

The second amended petition alleges the following facts: Block 404 of the City of Cheyenne was duly platted as part of the city on September 21, 1870.It is bounded on the northerly side by Lincoln Highway, on the east by a street, on the south by the Union Pacific Railroad right-of-way, on the west by the west boundary of the City of Cheyenne.The following plat will throw light on the situation.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

An alley running east and west through Block 404 is shown where the plat states 'Block 404' and is the alley in controversy here.It is a dead-end alley or cul-de-sac abutting on the property of the plaintiffWyott Manufacturing Company on the west.That company owns the land immediately west of the west boundary of the city and abuts on the Lincoln Highway, and includes the unshaded portion on the map adjacent to the alley in question here.The shaded portion shows the buildings on its property.Defendants Jultak own Lots 6 to 17 of Block 404.Plaintiff Thomas owns Lots 18 to 22.Sometime in the year 1939Walter S. Bunting who was the then owner of the lots now owned by the defendants Jultak herein, wrongfully and illegally, as is alleged, encroached upon and obstructed the foregoing alley by adding to a house erected upon his lots a porch and stoop, which porch and stoop are located entirely in the alley thereby completely blocking the same.On or about July 28, 1941 the City of Cheyenne, through its mayor and council, but without any notice to plaintiffs or others, and without any opportunity given to them to be heard, adopted the following resolution vacating and abandoning the alley adjacent to Lots 6 to 17, both inclusively, in other words, more than half of the western part of the alley in question here.The resolution of the city is as follows:

ResolutionNo. 576

Entitled: 'Vacating Part of Alley in Block 404, City of Cheyenne, Wyoming, with Certain Reservations.'

'Whereas, Walter S. Bunting, owner of real estate consisting of the major portion of Block 404 in the City of Cheyenne, Laramie County, Wyoming, has petitioned the Council of the City of Cheyenne, Wyoming, to abandon and vacate that portion of the alley in said Block 404 described below due to the fact that the said alley as shown on the recorded plat of said city, has never been used by the public as an alley and for alley purposes, and that the use of said alley is not necessary for the public, and it is not feasible to use the same due to the fact that said alley has a dead end at the west extremity thereof;

'Now, Therefore, Be It Resolved by the Council of the City of Cheyenne, Laramie County, Wyoming, that all that portion of said alley in Block 404 in the City of Cheyenne, Laramie County, Wyoming, situate, lying and being between and adjacent to lots six (6) to eleven (11) inclusive, and lots twelve (12) to seventeen (17) inclusive, in said Block 404, be, and the same hereby is, declared vacated and abandoned; reserving to said City of Cheyenne right-of-way and easement for sewer, water and public utility lines and maintenance thereof; and authorizing the Mayor and City Clerk, on behalf of said City, to execute a quit claim deed accordingly.

'Presented, read, adopted and passed this 28th day of July, 1949.'

On July 31, 1941 the city conveyed to the successor in interest of Walter S. Bunting, the vacated portion of the alley heretofore mentioned.Plaintiffs allege that when Bunting first erected the porch and stoop above mentioned, the plaintiff Thomas protested against the obstruction.Bunting thereafter allowed the plaintiff Thomas to use a portion of his lots, now owned by the defendants Jultak as a passageway between the tracts here involved.This situation existed until 1947 when the defendants Jultak herein acquired the lots formerly owned by Bunting.They caused an investigation to be made of the practical situation and were informed through their attorney that plaintiffs were objecting to the maintenance of the porch and stoop and that the same would have to be removed; that notwithstanding such knowledge and information the defendants Jultak purchased the premises on or about November 24, 1947 and subsequently denied plaintiffs all means of communication across the same.Plaintiffs allege that the Wyott Manufacturing Company of which the plaintiff Thomas is president, is engaged in manufacturing on its premises outside the limits of the city as above mentioned, but that its property and the property owned by Thomas have for many years been used in conjunction with one another, and the easterly tract, namely that owned by Thomas, is a necessary and important adjunct of the property of the manufacturing company outside the limits of the city.It has in the past been used and can still be used as a parking area for employees of the plant.In August 1941 a storage warehouse was erected by Thomas on the lots owned by him in Block 404, and ever since has been rented to and used by the manufacturing company for the storage of materials used by the manufacturing company on its premises; that because of the growth and development of the business of the manufacturing company it is necessary and desirable to increase the storage and warehouse facilities on the lots of Thomas and that it is the plan of the plaintiffs to do so; that the materials stored in the warehouse are needed at the factory of the manufacturing company and it is necessary to move them by truck; that the alley here in question constitutes the most convenient and least dangerous route between the two tracts both for the movement of trucks and of people.The Lincoln Highway bounding the block in question on the northerly side is a more circuitous route.The highway is hazardous and dangerous because it is one of the principle transcontinental highways from east to west carrying a very large stream of traffic which, at the points in question, is proceeding at a high rate of speed; that the highway carries a great many large trucks traveling at good speeds.Plaintiffs have a lease to use the right-of-way of the Union Pacific Railroad Company but that lease may be cancelled at any time at the end of any year, so that this passageway cannot be relied upon by the plaintiffs in order to transport what is necessary to be transported between the lots of Thomas in Block 404 and the manufacturing company outside of the limits of the city.Plaintiffs allege further:

'12.Plaintiffs claim, contend and assert that the action of the said City of Cheyenne in purporting to vacate and abandon the said alley was and is wholly null and void and of no force and effect against the public generally or these Plaintiffs specially for the reason that no power exists in said City under its charter or the applicable statutes of the State of Wyoming so to vacate the said alley for the sole benefit of the said Walter S. Bunting and his successors in interest.Plaintiffs are informed and believe and therefore allege on such information and belief that the Defendants contend that the purported vacation and abandonment as aforesaid was in all respects valid and legal and within the authorized powers of said City.

'13.Plaintiffs further claim, contend and assert that if the City did have power to vacate said alley for the sole benefit of said Bunting or if the street were in fact vacated in the public benefit, which Plaintiffs do not admit, then said action of the City was and is wholly null and void and of no force and effect against these Plaintiffs because no notice of such vacation or opportunity to appear was given to Plaintiffs or either of them as is required under the said charter and the applicable statutes of Wyoming and Plaintiffs have been deprived of their property rights in the continued existence of said alley without due process of law in contravention of the constitution of the State of Wyoming and the United States.Plaintiffs are informed and believe and therefore allege on such information and belief that the Defendants contend that no notice to or opportunity to appear by Plaintiffs or any others was required.

'14.Plaintiffs further claim, contend and assert that the said deeds above referred to insofar as they purported to convey any title to said alley or any part thereof were and are null and void and of no force and effect against the public generally and these Plaintiffs specially for the reason that the said City was without power under its charter or the applicable statutes of the State of Wyoming to vest in any individual the fee title to said alley, the same having been irrevocably dedicated to the general public.Plaintiffs are informed and believe and therefore allege on such information and belief that the Defendants contend that upon the vacation and abandonment of said alley as aforesaid and which they claim to have been a legal and valid vacation, title to that portion of the alley so vacated vested in the City which could convey it in any way it saw fit.'Plaintiffs accordingly prayed for a declaration for their rights and that the defendants Jultak be enjoined from keeping and maintaining any obstruction in and across the alley here in question and should be compelled to remove any obstruction now existing therein.

It may be here noted...