Town of City of Newcastle v. Toomey

• Decision Date: 26 August 1958
• Docket Number: No. 2833,2833
• Citation: 329 P.2d 264,78 Wyo. 432,76 A.L.R.2d 525
• Parties: , 76 A.L.R.2d 525 TOWN OF THE CITY OF NEWCASTLE and State Highway Commission of Wyoming, Appellants (Plaintiffs below), v. E. H. TOOMEY, Toomey's Mills, Inc., Charles F. Martens and May O. Martens, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 264

329 P.2d 264

78 Wyo. 432, 76 A.L.R.2d 525

TOWN OF THE CITY OF NEWCASTLE and State Highway Commission of Wyoming, Appellants (Plaintiffs below), v. E. H. TOOMEY, Toomey's Mills, Inc., Charles F. Martens and May O. Martens, Appellees (Defendants below).

No. 2833.

Supreme Court of Wyoming.

Aug. 26, 1958.

Thomas O. Miller, Atty. Gen., Robert L. Duncan, Sp. Asst. Atty. Gen., Thomas L. Whitley, Newcastle, for appellants.

Edward S. Halsey, Newcastle, for appellees.

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

Mr. Chief Justice BLUME delivered the opinion of the court.

In this action the Town of the City of Newcastle (hereafter called the town or Town of Newcastle) and the State Highway Commission of Wyoming seek to recover from the defendants for a right of way a strip of land 80 feet in width extending from east to west along the lands claimed by E. H. Toomey and Toomey's Mills, Inc. (herein called the Toomey land), and along the lands claimed by Charles F. Martens and May O. Martens (hereafter called the Martens land) pursuant to an attempted eminent domain proceedings by the town. The length of the strip of ground over the Toomey land does not appear in the record but according to the map seems to be approximately 400 feet in length. The length of the strip of ground along the Martens land, which is west of the Toomey land, also does not appear, but seems to be of greater length than that along the Toomey land. The court declined to award the strip of land 80 feet in width to the plaintiffs except a strip along the center thereof, being 25 feet in width which is paved and has a black top, plus an additional six feet along the Toomey land, being three feet on each side of the paved street by reason of a drain along each side of the paved street. From that judgment the plaintiffs have appealed to this court.

The basis of the claim of plaintiffs is alleged to be as follows: On April 26, 1923, the Council of the Town of Newcastle adopted a resolution to locate a public highway across the strip 80 feet in width, described as follows:

'A strip 80 feet wide, the center line of which is described as follows: Starting at a point which is ten feet south of the West quarter corner of Section 29, Township 45 North of Range 61 West, 6th Principal Meridian, which is at Station 1426 plus 70 of the State Highway Survey, thence north 88 degrees 43 minutes east 720 feet to the curve of 573.7 feet radius, thence around the curve to the left 220.5 feet to the end of the curve, thence North 66 degrees 40 minutes east, 1093.3 feet, to a curve of 1432.7 feet radius; thence around the curve to the left 151.3 feet to a point on Warren Avenue, of the Town of the City of Nowcastle, Wyoming at the end of the curve to a point which is Station 1448 plus 63 of the State Highway Survey and forty feet south of the north line of Warren Avenue.'

The resolution stated further that all objections thereto and claims for damages should be filed in writing with the town clerk of the town on or before the 26th day of May, 1923, or that such highway would be established and located. The names of the owners of the property were not mentioned. It appears that this resolution was duly published in the News Letter Journal, a newspaper published at Newcastle, Wyoming, for four consecutive weeks, namely on May 3, 10, 17 and 24, 1923. The description contained in this resolution and the notice thereof is the same description contained in the petition filed by the plaintiffs herein as having been acquired by the town as a right of way in 1923. On June 4, 1923, a meeting of the city council of the town was held and the matter of establishment of a highway was considered at that meeting. The minutes of that meeting state that due notice of the establishment of the highway had been given by publication; that no objections thereto, and no claims for damages by reason thereof, had been filed. Thereupon the highway was declared to be established by metes and bounds. Again the names of the owners of the property were not mentioned. These minutes of the council appear in Plaintiffs' Exhibit 2, while the notice of location of the highway heretofore mentioned appears as Plaintiffs' Exhibit 1. The actual route for a highway attempted to be established on June 4, 1923, and set forth in Plaintiffs' Exhibit 2, was an altogether different route from that mentioned in the notice which was published. This matter will be mentioned again hereafter.

No notice other than by publication in a newspaper was given of the foregoing proceedings, although the addresses of the owners were known. The Martens land at that time was owned by the Lincoln Land Company, and its known address (of record) was Lincoln, Nebraska. The Toomey land at that time was owned by D. J. Toomey Produce Company, and its known (record) address was Spearfish, South Dakota. In addition the latter company had a resident manager at Newcastle, but no notice was given to him personally. It is stipulated herein that no compensation was ever paid to the owners of the property for the right of way herein claimed.

Soon after the foregoing proceedings, a paved street 25 feet in width was constructed along the center of the claimed strip of 80 feet by the State Highway Department. That was done by the acquiescence of D. J. Toomey Company, and no objection appears from the Lincoln Land Company. The strip mentioned at that time was all within the town limits, but part of it--apparently all or the major portion of the Martens land[78 Wyo. 440] --was by proper proceedings excluded from the town limits in 1951, and it is this excluded portion of the strip which is claimed herein by the State Highway Department, while the strip within the boundaries of the town is claimed herein by the town.

Defendants and their predecessors in title had adverse possession of their respective lands since 1923, excepting the paved street and road above mentioned (plus six feet along the Toomey land). Business properties were placed thereon by defendants south of the paved street, all to the knowledge and without objection of the plaintiffs. Plaintiffs had peaceable possession since 1923 only of the paved street and road along with the drain above mentioned.

1. The question before us is as to whether or not the court erred in limiting the right of way for a street and road as above mentioned, namely to 25 feet occupied by the paved road (plus six feet for drain along the Toomey land). We think not for the reasons hereafter mentioned. In the first place the attempted condemnation above mentioned by the town was invalid. It is an elementary rule that towns and cities have only such powers as are granted to them either expressly or by implication. Whipps v. Town of Greybull, 56 Wyo. 355, 109 P.2d 805, 146 A.L.R. 596.

We find no statutory provision which grants to any city or town any power to exercise the power of eminent domain by resolution or ordinance adopted by a town or city council. The Town of Newcastle, we take it, is a town under the statutes of the State of Wyoming. Section 29-430, W.C.S.1945, subdivision 22 relating to towns, provides that the town may 'take private property for public use, in such manner as may be provided by law'. Counsel for appellants herein claim that the special provisions relating to condemnation proceedings by a county, namely § 48-307, W.C.S.1945, and subsequent sections, are the statutory provisions to be followed by a city or town. That is not true. The county is a subdivision of the state entirely different from a town or city. The only provision which is applicable is § 3-6001, W.C.S.1945, which provides:

'The state, the counties and each municipal corporation, shall have the power to purchase or acquire by condemnation, any real estate, including streets, alleys, or public highways, as sites for public buildings, or for any other necessary public purpose, and to take therein the fee simple absolute which power of condemnation shall be exercised in the manner prescribed by law for the condemnation of real estate by railroad corporations. Proceedings in condemnation as aforesaid shall be conducted in the name of the state, county or municipal corporation, as the case may be, and by the attorney general, when for the state; the county attorney when for the county, and the municipal attorney, when for a municipal corporation.'

Turning then to the provision relating to condemnation by railroad companies, we find that § 3-6103, W.C.S.1945, states that whenever such corporation desires to acquire property by condemnation, it must file a petition in the district court of the county where the real property or any part thereof is situated. Section 3-6104, W.C.S.1945, provides the essentials of the petition. It must contain a specific description of the property sought to be taken, state the necessity for the appropriation, the name of the owner of each parcel, if known, or if not known, a statement of that fact. It must give the names of all persons having or claiming an interest, legal or equitable, in the property, so far as the same can be ascertained. Section 3-6107, W.C.S.1945, provides that ten days' notice of the intended filing of the petition must be given to the owners or persons interested in the property, the notice to be a personal notice, if given in this state. Section 3-6108, W.C.S.1945, provides that when a person having an interest is unknown or his residence is beyond the state, or is unknown, notice by publication may be given. Section 3-6114, W.C.S.1945, provides that if the court determines that the property should be condemned, it must appoint commissioners to determine the compensation to be paid to the parties interested. That requirement is made whether a claim for damages is filed or not. The foregoing permission as to notice by publication must be construed in connection with other sections of our statute which provide as to what must be done when...