Town of Clearmont v. State Highway Commission

• Decision Date: 06 December 1960
• Docket Number: No. 2929,2929
• Citation: 357 P.2d 470
• Parties: TOWN OF CLEARMONT, a Municipal Corporation, M. B. Shickley, Wayne Gilstrap, E. C. Workman, Albert Jennings, Philip Schuman, Anthony Panian, Carl Weber, Ray C. Yates, William C. Campbell, and Ben C. Schroeder, Appellants (plaintiffs below), v. STATE HIGHWAY COMMISSION of Wyoming; and Homer Oxley, E. W. Record, Asa Jarrett, T. B. Pleak, John T. Bishop, H. D. Del Monte, and John A. Guthrie, as the present members of the State Highway Commission of Wyoming, J. R. Bromley and T. D. Sherard, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 470

357 P.2d 470

TOWN OF CLEARMONT, a Municipal Corporation, M. B. Shickley, Wayne Gilstrap, E. C. Workman, Albert Jennings, Philip Schuman, Anthony Panian, Carl Weber, Ray C. Yates, William C. Campbell, and Ben C. Schroeder, Appellants (plaintiffs below), v. STATE HIGHWAY COMMISSION of Wyoming; and Homer Oxley, E. W. Record, Asa Jarrett, T. B. Pleak, John T. Bishop, H. D. Del Monte, and John A. Guthrie, as the present members of the State Highway Commission of Wyoming, J. R. Bromley and T. D. Sherard, Appellees (Defendants below).

No. 2929.

Supreme Court of Wyoming.

Dec. 6, 1960.

A. G. McClintock, Cheyenne, for appellants.

Norman B. Gray, Atty. Gen., and Robert L. Duncan, Sp. Asst. Atty. Gen., for appellees.

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

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

This is an action brought by the Town of Clearmont, a municipal corporation in this state, against the State Highway Commission and its officers to stop them from constructing Interstate Highway 90 through the northern portion of this state as hereinafter mentioned. Judgment was rendered in favor of the defendants and the Town of Clearmont has appealed. The parties will be mentioned herein as in the court below or by name.

The building of highways has undergone a revolution in the last half-century or more. The first hard-surfaced road in Wyoming was a stretch of six miles long directly south of Sheridan built sometime before 1910. Oiled highways were not then known. The first oiled highway in this state was between Sinclair and Rawlins, constructed in the late twenties or early thirties. Since then oiled highways have become the rule in this state. They were narrow at first but experience has shown that wider highways have become essential for the safety of automobile travelers. In the last few years it has been deemed essential for a number of reasons to construct four-lane highways across the nation. In 1944 by an Act approved December 20, 1944 (58 Stat. 838-844), Congress enlarged the appropriations for federal aid projects and in § 7 of the Act provided for a national system of interstate highways not exceeding 40,000 miles in extent and making appropriations therefor. The Act was amended in 1956 by Public Law 627, 70 Stat. 374-387, which provided for public hearings by highway commissions in the states in reference to bypassing or going through any cities, towns or villages. The Act was again amended in 1958 (72 Stat. 902, 23 U.S.C.A. § 128). See 23 U.S.C.A. §§ 101-131, 1959 Cum.Pocket Supp., which contains the same provision in regard to public hearings above mentioned. Among the interstate highways is one numbered 90 which starts in the eastern United States and stretches west through South Dakota, the northern part of Wyoming and further west. That is the highway involved in the controversy herein, particularly that part west of Gillette to Sheridan. A map, a copy of an exhibit admitted in this case, showing the intended four-lane highway in controversy is attached. It is the one in the heavy black line. Gillette is situated at the east end of the map herein shown. The road from Gillette to Sheridan heretofore existing and now existing, numbered 14-16, is shown in the less heavy line, first going north from Gillette to Spotted Horse, thence west to Leiter, thence southwest to Clearmont and Ucross and thence northwest to Sheridan. The intended new four-lane highway misses Clearmont, the nearest point being about 29 miles distant. The map is as follows:

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

For a number of years and particularly when wider and four-lane highways began to be constructed, consideration was given to the bypassing of cities and towns; so the legislature of this state, becoming apprehensive of what the effect of that might be, enacted a bypass law in 1950 (Ch. 18, Spec.S.L. of Wyoming, 1950) which was amended by § 1, Ch. 185, S.L. of Wyoming, 1953, which is now § 24-80, W.S.1957. This statute will be mentioned more particularly hereafter.

Early in the year 1956 attention was called to the highway commission that a direct route from Gillette to Buffalo might well be considered. On March 17, 1956, the mayor of Newcastle appeared before the commission in the interest of such direct route. On that day was present Mr. A. C. Spann, district engineer of the Bureau of Public Roads of the federal government. Present also was the Attorney General of the State of Wyoming who stated that after study of the law it was his opinion that the bypass law passed by the legislature applied only to local situations and not to new routes constructed at considerable distance from an incorporated town where the existing highway through the town was continued in effect as a state highway and so maintained. He stated that courts have always ruled that no business has legal or vested right in the highway but that the highway can be moved and no damages to the business can be claimed. He stated that an official opinion would be given later. That opinion was rendered by Robert L. Duncan, Special Assistant Attorney General, on May 21, 1956. It reiterated the statement above mentioned and considered that after the people of Clearmont had been notified that Interstate Highway 90 might be constructed by direct route from Gillette to Buffalo the Town of Clearmont should have until March 1, 1957, to commence an action to test whether or not it had the right to object to the new road. The opinion is apparently based on the theory that if the new road did not bypass Clearmont within the meaning of the state's bypass law no objection to the new road could exist. We understand that the Town of Clearmont was notified as mentioned, but it enlarged the issue beyond that mentioned by the Assistant Attorney General, as hereinafter mentioned, and ignored, as it had a right to do, the statement as to when an action should be commenced.

The action herein was commenced on June 12, 1958. The complaint here is voluminous and we hardly think it is necessary to set it out. Answer was duly filed by the Attorney General claiming, generally speaking, that the bypass law in this state did not apply in this case. An amendment to the complaint was filed on July 28, 1958, in which it was alleged that a contract for the construction of some bridges was let by the highway commission to Husman Brothers, Inc., so the latter was made a party herein. The case was tried before the Honorable Franklin B. Sheldon at Cheyenne, Wyoming, on March 23 and 24, 1959. On April 6, 1959, the trial court entered judgment, generally finding in favor of the defendants and making specific findings as follows:

'A. That the proposed location of highway 90 on the direct route between Gillette and Buffalo does not constitute a by-pass of the Town of Clearmont within the meaning of the so-called Anti-bypass Law (Chapter 18 Wyoming Session Laws 1950 as amended by Chapter 185 Wyoming Session Laws 1953) and, therefore, the approval of the people of said town is not required for the establishment and construction of such highway; that the said anti-bypass statute by its terms applies only to existing state highways or state and federal highways traversing or passing through incorporated cities or towns at the time of the enactment of the statute; that the law does apply to U. S. Highways 14 and 16 as presently located through the Town of Clearmont, but it is not proposed to change or divert in any way the present route of such highway in said town; that the proposed highway 90 will be an entirely new road and is to be constructed pursuant to Act of Congress as part of a national system of interstate highways, 'so located as to connect by routes as direct as practicable the principal metropolitan areas, cities and industrial centers to serve the national defense * * * [58 Stat. 842]'; that although such new highway when completed will divert most, if not all, interstate and through traffic from that portion of U. S. 14 and 16 passing through the Town of Clearmont, such diversion of traffic by the construction of a new highway in the State of Wyoming is not mentioned or contemplated by the Anti-bypass Law.

'B. That the proposed location of highway 90 as a direct route between Gillette and Buffalo does not come within 20 miles of the Town of Clearmont and consequently the provisions of Section 116(c) of the Federal Aid Highway Act of 1956, 70 Stat. 374, requiring the Highway Department, which submits plans for an aid highway project involving the by-pass of or going through any town to hold public hearings, has no application to the circumstances in this case.

'C. That the action of the State Highway Commission in locating highway 90 in a direct route between Gillette and Buffalo was not arbitrary and capricious as contended by the plaintiffs, but, to the contrary, the evidence discloses that the Commission and the Bureau of Public Roads had the location of the interstate highways in this area under study and consideration for approximately two years before a decision was reached; that during this period numerous surveys were made, local interests were consulted, protests were heard, and meetings were held with delegations from all the communities interested and affected; that the Bureau of Public Roads rejected the Commission's original proposal to construct said highway along the present route of U. S. 14 between Gillette and Sheridan and also along a proposed new direct route between Gillette and Sheridan via Clearmont; that the direct route between Gillette and Buffalo will reduce the length of interstate highways to be constructed in this area by some 23 miles under any other proposed routes and result in estimated savings in construction costs of $6,710,000; that the traffic volume over U. S. 14 and 16 decreased 15% during the years 1953, 1954 and 1955, while traffic volumes over parallel routes in Montana...