Closs v. Schell

2006 WY 95, 139 P.3d 435, 2006 Wyo. LEXIS 100, 2006 WL 2105509
CourtWyoming Supreme Court
DecidedJuly 31, 2006
DocketNo. 05-243
StatusPublished
Cited by3 cases

This text of 2006 WY 95 (Closs v. Schell) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Closs v. Schell, 2006 WY 95, 139 P.3d 435, 2006 Wyo. LEXIS 100, 2006 WL 2105509 (Wyo. 2006).

Opinion

BURKE, Justice.

[¶ 1] James and Debra Schell are owners of property in Converse County. They applied to the Board of County Commissioners of Converse County (the Board) for establishment of a private road to obtain access from their property to a public road. The Board determined that a private road was necessary and established a road that crossed the property of Mr. and Mrs. Closs. The Board also awarded damages to the Closses for the taking of their property. Dissatisfied with the location of the road and the amount of damages, the Closses filed a petition for review with the district court. The district court affirmed the Board’s decision. We also affirm.

ISSUES

[¶ 2] The issues are:

A. Did the viewers/appraisers properly determine the “before and after value” as required by Wyo. Stat. Ann. § 24-9-101® and did the Board inappropriately disregard and/or dismiss the comparables relied upon by the Closs-es’ appraiser when determining the extent of damages?
B. Were the Closses deprived of due process because viewer/appraiser Soren-son did not attend the final hearing?
C. Was the viewing/appraisal process nullified because the viewers/appraisers were directed that the private road had to exit from the Closses’ property at a point which intersected with an easement acquired by the Closses from a third-party?
D. Is the final report of the viewers/appraisers invalid because a plat of the [438]*438chosen road was not filed contemporaneously with the report?

FACTS

[¶3] The Schells purchased a parcel of recreational property in Converse County in 1985. The Schells believed that their property was accessible by a permanent right-of-way easement on a two-track road that traversed land owned by the Closses and Vincent Gronski.1 The Schells later discovered that this easement was not legally enforceable.2

[¶4] The Schells sought to obtain easements from the Closses and Mr. Gronski to formally secure access to their property. After those attempts failed, the Schells filed an application for a private road easement.3 [439]*439The application alleged that the property was landlocked and the most convenient access to the property was via the two-track road. Prior to the initial hearing on the application, Mr. Gronski granted an easement to the Schells and was released from the proceedings. The Closses continued to refuse to grant an easement, but submitted a proposal for an alternate route.

[¶ 5] In accordance with Wyo. Stat. Ann. § 24-9-101(c), the Board held an initial hearing on the petition. The Board determined the Schells had complied with the requirements of Wyo. Stat. Ann. § 24-9-101 in making and filing their application and the Schells had no outlet to or connection with a convenient public road.

[¶ 6] The Board appointed three viewers and appraisers — Richard Grant, Joy Soren-son, and Brad Boner (collectively, “viewers”). Mr. Grant and Mr. Boner met with both parties on the Closses’ property to view the proposed easements on May 26, 2004. Ms. Sorenson was unable to attend this viewing but returned on June 8, 2004, with Mr. Grant to review the proposed routes. The Schells’ route incorporated an existing two-track road that crossed the middle of the Closs property and continued through the Gronski property to the Schell boundary. The alternative easement proposed by the Closses followed their southern boundary line and did not provide a connection to the Gronski easement. After walking and marking out each proposed route, the viewers determined that the Schells’ proposal was the most reasonable and convenient route.4

[¶ 7] On June 14, 2004, the viewers submitted their report to the Board detailing their findings and assessing damages. A final hearing was held on July 7, 2004, to address the report in accordance with Wyo. Stat. Ann. § 24-9-103(a) (LexisNexis 2003). At the hearing, the Closses objected to the report because it failed to include the value of their property before and after placement of the proposed road and the viewers did not file a plat with the report. The Board overruled the objection.

[¶ 8] The Board entered its Findings, Conclusions and Decision on the Report of Viewers and Appraisers on August 4, 2004. The Board established the road requested by the Schells with the modification suggested by the viewers. The Board also assessed damages for the taking of the Closses’ property. The Closses filed a petition for review in the district court. The district court affirmed the Board’s decision. This appeal followed.

STANDARD OF REVIEW

[¶ 9] We review administrative decisions pursuant to Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
[440]*440(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶ 10] In conducting our review, “we accord no special deference to the district court’s conclusions.” Bailey v. State ex rel. Wyo. Workers’ Safety Comp. Div., 2002 WY 145, ¶ 6, 55 P.3d 23, 25 (Wyo.2002). Rather,

[w]e review the administrative order issued by the Board as if it had come directly to this [C]ourt from the Board. We examine the entire record to determine whether substantial evidence supports the administrative agency’s findings of fact. We may not substitute our judgment for that of the agency when substantial evidence supports its decision. “Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions.” We do not, however, defer to an agency’s conclusions of law. If the correct rule of law has not been correctly applied, the agency’s errors are to be corrected.

Wagstaff v. Sublette County Bd. of County Comm’rs, 2002 WY 123, ¶ 7, 53 P.3d 79, 81 (Wyo.2002) (internal citations omitted).

DISCUSSION

[¶ 11] The Closses claim that several errors require vacating the order establishing the private road and the assessing of damages.

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Bluebook (online)
2006 WY 95, 139 P.3d 435, 2006 Wyo. LEXIS 100, 2006 WL 2105509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/closs-v-schell-wyo-2006.