Woolley v. State Highway Commission

• Decision Date: 24 December 1963
• Docket Number: Nos. 3194,3198,s. 3194
• Citation: 387 P.2d 667
• Parties: Frank A. WOOLLEY and Mildred H. Woolley et al., Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below). Frank A. WOOLLEY and Mildred H. Woolley, Petitioners, v. The Honorable Robert CHRISTMAS, Judge of the District Court, Third Judicial District, and the State Highway Commission of Wyoming, Respondents.
• Court: Wyoming Supreme Court

Page 667

387 P.2d 667

Frank A. WOOLLEY and Mildred H. Woolley et al., Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).

Frank A. WOOLLEY and Mildred H. Woolley, Petitioners, v. The Honorable Robert CHRISTMAS, Judge of the District Court, Third Judicial District, and the State Highway Commission of Wyoming, Respondents.

Nos. 3194, 3198.

Supreme Court of Wyoming.

Dec. 24, 1963.

P. W. Spaulding, Evanston, and Clifford L. Ashton and Howard L. Edwards, of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for appellants and petitioners.

John F. Raper, Atty. Gen., Glenn A. Williams, Asst. Deputy Atty. Gen., and Dean W. Clark, Sp. Asst. Atty. Gen., Cheyenne, for appellee and respondents.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

The matters here result from two eminent domain proceedings commenced by the State Highway Commission for the purpose of acquiring certain real property rights deemed necessary for the construction, maintenance, and operation of a segment of Interstate Highway 80 between Evanston, Wyoming, and the Wyoming-Utah State line. Mr. and Mrs. Woolley were the owners of lands sought to be taken or affected and complain of the trial court's determination that that commission was entitled to take their property for the purposes stated. Because common questions of law and fact are involved, the proceedings, by stipulation of counsel, have been consolidated. No. 3194 is an appeal from an order of conveyance entered by the trial court vesting title to certain of the Woolleys' lands and rights in the commission, and for convenience we refer to it hereafter as the first taking. No. 3198 is an action in prohibition instituted here by the Woolleys to prevent the trial court from proceeding further in what we shall refer to as the second taking.

A general outline of matters appearing in the record shows that existing U. S. Highway 30 runs in an easterly and westerly direction between Evanston, Wyoming, and the Wyoming-Utah border. The lands owned by the Woolleys are adjacent or near said border on the Wyoming side and consist of a tract of approximately 3.5 acres lying immediately north of the right of way of said Highway 30 and a tract of approximately 15 acres lying immediately south of said right of way. The original plan of the commission for the proposed interstate highway for the particular area here involved was to construct a limited access facility highway on the route of said Highway 30 to consist mainly of a divided four-lane highway, together with a service road. As disclosed by the map attached to the petition in the first taking, access control lines 440 feet apart were established on the north and south as the outer limits of said facility, and for such purposes the commission deemed it necessary to acquire title to all of the lands embraced within the access control lines and also to acquire rights of ingress and egress to lands adjacent but outside and control area. In this connection the right of way of Highway 30 was to be utilized and wherever possible paved portions of said highway were to be retained as a service road but, even so, in order to carry out the commission's proposal, additional lands and property rights were required. That is how the Woolleys became involved, and in the first taking the commission sought to appropriate 0.9 acres of the Woolleys' tract fronting on the north side of Highway 30, together with rights of ingress and egress to the remainder of the said 3.5 acres, and to appropriate 1.8 acres of the Woolleys' tract fronting on the south side of Highway 30, together with rights of ingress and egress to the remainder of the said 15 acres.

Subsequent to the first taking it is apparent that a change in plans for the construction of the proposed facility occurred. The commission decided to incorporate into the project provision for weigh or check stations on each side of the divided traffic lanes, with acceleration and deceleration lanes to and from said stations connecting directly with the said through-traffic lanes. In addition, provision was made for facilities to be used for public parking and which would also be used by the highway departments of both Wyoming and Utah for parking and turning movements of maintenance and snow-removal equipment, and maintenance operations in general. To accommodate these additional needs the commission determined that more land would be required, and as a result initiated the second taking some seven months after the first taking. Again both tracts of the lands of the Woolleys became involved, and the commission sought to take an additional 0.7 acres out of the north tract and an additional 2.2 acres out of the south tract. With this additional taking the outer limits of the proposed access facility highway were extended from 440 feet to a width of approximately 660 feet.

The principal contention of the Woolleys is that the commission failed to establish its right to acquire a right of way in excess of 300 feet in width as limited by the provisions of § 24-37, W.S.1957, as amended by Ch. 36, S.L. of Wyoming, 1961, and that in any event the commission was wholly without authority to acquire lands for the purpose of constructing a check station and the facilities related thereto.

Inasmuch as the commission also invoked the provisions of § 24-37 as a part of its authority for the taking, we set forth the pertinent provisions thereof, which state:

'* * * the commission shall have the authority to acquire the same [rights of way] by purchase or gift, and if such rights of way cannot be so acquired, the commission shall have the authority to acquire rights of way for state highways up to three hundred (300) feet in width, and where greater width is necessary for parking facilities, maintenance, excavations, embankments or deposit of waste materials to also acquire such greater widths as is reasonably necessary therefor, by condemnation proceedings * * *.'

In considering the contentions of the parties related to the above, it is desirable first to mention the matter of the pleadings. Under the statutory procedure prescribed for the taking, certain essentials are required for a petition in condemnation, such as a specific description of the property; the interest or right to be taken or adversely affected and the names of persons having an interest therein; the work to be constructed thereon; the use to be made of the property acquired; the necessity for the taking; and a prayer for appropriation and appointment of appraisers. Section 1-757, W.S.1957. Then § 1-766, W.S.1957, requires that all pleadings in the proceeding be verified and although counter pleadings to the petition are not required, it is clear that such pleadings are contemplated, at least on the questions of authority, public purpose, use and necessity ¹ for the primary reason that unless 'controverted by counter pleadings' the allegations of the petition 'shall be deemed to be true.'

With unimportant exceptions, the commission's petitions in both takings were identical in form; were verified; and contained all of the matters necessary to invoke the jurisdiction of the court. It was alleged that by resolution duly made the commission had determined to construct as an access facility highway the segment of Interstate 80 above described and directed that condemnation proceedings be commenced for acquisition of necessary right of way. With respect to use, an important allegation here, it was alleged 'That the lands, lots, grounds and real estate described * * * are to be appropriated for the public use, to wit, the building, constructing, maintaining, using, excavating, embanking and depositing waste earth, and any other use necessary and essential for the construction, maintenance and use of said access facility highway.' No question was raised by the Woolleys concerning the petitions, and no responsive pleadings with respect thereto were filed prior to or at the time of the preliminary hearings before the trial court to determine the right of the commission to make the appropriations for the use proposed and the necessity therefor. It will be noted that the foregoing allegations with respect to use were substantially in the language of statutory requirements, particularly those allegations invoking exceptions to the limitation of § 24-37; and in a proceeding of this nature that is sufficient. 29 C.J.S. Eminent Domain § 254, p. 1223. Under the circumstances, the regularity of the proceedings was prima facie established at the time of the preliminary hearings.

It is true that said petitions made no mention of proposed parking facilities for the project or the proposed construction and operation of check stations and related facilities. Nevertheless, at said hearings the commission proceeded to offer proof of the proposed use and necessity for the appropriations and for such purpose produced as a witness Edward H. Crow, its resident engineer stationed at Evanston, Wyoming. At the hearing on the first taking the witness stated that he was personally familiar with the lands involved, the location of the highways, and the plans and specifications for the proposed project; and that the map attached to the petition reflecting these matters was prepared by him and by others under his direction from actual surveys. He also testified that the project, as a part of the Interstate System, was required to be an access control facility and that there would be no access between the Wyoming-Utah border and an interchange to be located near Evanston, Wyoming; that such control was essential for this type of highway; that the property rights sought were necessary for such purposes; and that other routes had been investigated but the line selected was determined 'To be the best line.'

At the second hearing the witness identified Exhibit A as the...