Waid v. State ex rel. Dept. of Transp.

• Citation: 996 P.2d 18
• Decision Date: 08 February 2000
• Docket Number: No. 98-20.,98-20.
• Parties: Paul WAID and Jo Waid; Norm Santesson and Jo Santesson; Waid Services, Inc.; Richard Salcido and Deborah Salcido; and Ted Adams and Donna Adams, Appellants (Plaintiffs), v. STATE of Wyoming, by and through the DEPARTMENT OF TRANSPORTATION; and Burlington Northern Railroad Company, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

996 P.2d 18

Paul WAID and Jo Waid; Norm Santesson and Jo Santesson; Waid Services, Inc.; Richard Salcido and Deborah Salcido; and Ted Adams and Donna Adams, Appellants (Plaintiffs), v. STATE of Wyoming, by and through the DEPARTMENT OF TRANSPORTATION; and Burlington Northern Railroad Company, Appellees (Defendants).

No. 98-20.

Supreme Court of Wyoming.

February 8, 2000.

Representing Appellants: S. Joseph Darrah and Joseph E. Darrah of Darrah & Darrah, P.C., Powell, Wyoming; and Brad Smith, Cody, Wyoming.

Representing Appellee State, by and through the Department of Transportation: William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Thomas C. Wilson, Senior Assistant Attorney General; and Jennifer A. Cudworth, Assistant Attorney General, Cheyenne, Wyoming.

Representing Appellee Burlington Northern Railroad Company: John A. Coppede of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

THOMAS, Justice.

Paul Waid, Jo Waid, Norm Santesson, Jo Santesson, Waid Services, Inc., Richard Salcido, Deborah Salcido, Ted Adams, and Donna Adams (collectively the Waid group) appeal from a summary judgment entered in favor of the Wyoming Department of Transportation (WYDOT) and Burlington Northern Railroad Company (Burlington) in an action for inverse condemnation. Specifically, the Waid group contests the ruling, upon which the district court premised the summary judgment, that Wyo. Stat. Ann. § 1-26-516 (Lexis 1999) requires a permanent taking for inverse condemnation. As we analyze this statute, a permanent taking is not required, but the district court's grant of summary judgment can be, and it is, affirmed on other grounds. The Waid group failed to satisfy the time limit for filing a claim against WYDOT, as set forth in Wyo. Stat. Ann. § 1-39-113 (Michie 1988). The record demonstrates that there is no causal connection between Burlington's activities and any damage to the Waid group lands, nor does Burlington come within the category of one conducting activities on adjacent land for purposes of inverse condemnation under the statute. The Findings of Fact and Order Granting Defendants' Motions for Summary Judgment is affirmed.

In the Brief of Appellant, filed on behalf of the Waid group, the issues are articulated in this way:

A. Did the District Court err in holding that defendants could defeat claims for inverse condemnation of a flooding easement, brought under W.S. § 1-26-516, by showing that they could take steps to prevent recurrence of flooding in the future without submitting evidence to support that claim?

B. Did the District Court err in granting summary judgments to all defendants on the issue of the taking of personal property without the Defendants submitting evidence in support of their motion?

C. Could the District Court have granted summary judgment on any of the other bases on which Defendants sought summary judgment?

This Statement of the Issues is found in the Brief of Appellee Burlington Northern Railroad Company:

1. Whether the district court properly granted summary judgment against the Appellants on their inverse condemnation claims where the evidence showed the claims were based on two isolated instances of temporary flooding?

2. Whether the district court properly granted summary judgment against the Appellants on their inverse condemnation claim where the landowners as a matter of law failed to show that their properties were damaged for a public use?

3. Whether a landowner can maintain an inverse condemnation claim against a party for allegedly inversely acquiring a property right for which it did not possess the power to acquire directly through an eminent domain proceeding?

4. Whether this Court should affirm the district court's summary judgment against the Appellants on their inverse condemnation claims where the evidence failed to show that this Appellee's activities were the proximate cause of the Appellants' alleged damages?

In the Brief of Appellee State of Wyoming, By and Through the Department of Transportation, the issues are stated to be:

1. Whether the district court was correct in granting summary judgment to Appellee State of Wyoming by finding that Appellants failed to show a permanent taking because Appellants' claims were based on a very few isolated instances of temporary flooding which served no public service.

2. Whether Appellants' claim was timely filed under the Wyoming Governmental Claims Act pursuant to case authority and stipulated to by all parties when Appellants discovered they had a cause of action as early as the early 1980s and no later than 1987 when the alleged first flood occurred.

This statement of arguments appears in the Reply Brief of Appellants:

Plaintiffs are not required to demonstrate permanent taking or public purpose in accordance with W.S. § 1-26-516.

Appellants have timely filed their claims.

The State cannot re-characterize appellant's claims in order to apply an otherwise inapplicable cause of action because appellants have proffered evidence of intentional conduct.

The Waid group owns property lying to the east of U.S. Highway 20, which runs north and south along the west border of that property. Burlington owns a railroad track bed west of U.S. Highway 20, and operates trains upon that track. Upper Hanover Irrigation District (Upper Hanover) and Lower Hanover Canal Association (Lower Hanover) operate two irrigation systems that furnish water for agricultural use in the vicinity. In the early years of the 1980's, WYDOT raised the elevation of the highway by approximately ten feet. At the time the highway was raised, both WYDOT and Burlington replaced their existing culverts in that area with new culverts of the same size.

In July of 1987, a severe rain storm dropped three inches of water on and around the Waid group property in only about an hour. Faced with the deluge, Upper Hanover and Lower Hanover discharged water into Durkee Draw, a drainage that lies between U.S. Highway 20 and the Waid group property. The culvert under the highway could not accommodate all the water and carry it under the road, while the elevation of the road prevented water from passing over the top of the road. The water flowed to the east instead, flooding the Waid group property and causing extensive damage. A similar event occurred in May of 1993, which resulted in further damage to the Waid group property. A third flood threatened to occur in July 1994, but, on that occasion, Upper Hanover diverted water into an additional ditch. That diversion limited the flow into Durkee Draw, and the highway culvert was able to accommodate the water that then went down Durkee Draw.

The Waid group filed claims with Upper Hanover, Lower Hanover, and WYDOT in February of 1995, pursuant to the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 through 1-39-120 (Michie 1988). On March 31, 1995, the Waid group filed a complaint in the district court alleging inverse condemnation pursuant to Wyo. Stat. Ann. § 1-26-516 and asserting real and personal property damage together with diminution in value. Named as defendants in the action were Upper Hanover, Lower Hanover, Burlington, and WYDOT. Voluminous pleadings followed, including discovery, after which the district court granted summary judgment in favor of all the defendants. Preferring not to defend the appeal in this case, Upper Hanover and Lower Hanover settled with the Waid group, and the Waid group pursued this appeal against Burlington and WYDOT.

Recently, we have summarized our process for the review of summary judgments granted pursuant to W.R.C.P. 56 in this way:

Our standard for the review of summary judgments is well established:

"`When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.'" Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

"A summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat'l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt." Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

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