Coronado Oil Co. v. Grieves

603 P.2d 406, 66 Oil & Gas Rep. 387, 1979 Wyo. LEXIS 490

• Court: Wyoming Supreme Court
• Decided: December 3, 1979
• Docket: 5104
• Status: Published

Opinions

RAPER, Chief Justice.

The central issue in this appeal is whether plaintiff-appellant, an oil company — a private corporation — pursuant to § 32, Art. I of the Wyoming Constitution¹ and § 1— 26 — 401, et seq., W.S.1977² has a right to condemn private property of defendants-ap-pellees in order to obtain a way of necessity required to provide access for purposes of exploration and development of federal oil and gas leases held by the oil company. The district court granted a summary judgment generally in favor of the appellees and dismissed appellant’s action to condemn a way of necessity.

We will reverse.

The issues posed by appellant are that the district court erred in granting summary judgment for appellees and, contrary to the holdings of the trial judge, it claims that:

1. Section 32, Art. I, Wyoming Constitution, is broad enough to cover the activity of Coronado Oil, is self-executing, and appellant is entitled to condemn a way of necessity whether or not such right is included in the statutory provision at issue in this case.

2. Appellant is entitled to condemn a way of necessity under § 1-26-401, et seq., supra, because it is engaged in “mining” within the contemplation of the statutes.

3. Appellant is entitled to condemn a way of necessity under § 1-26-301, et seq., W.S.1977, because it is a petroleum company within the contemplation of that statute.

4. Appellant did not fail to exhaust its remedies by failing to appeal a decision of the Weston County Commissioners which denied it a right-of-way of necessity after a proceeding held pursuant to § 24-9-101, et seq., W.S.1977.

5. The description of property sought to be condemned as set out in the complaint was sufficient under Rule 71.1, W.R.C.P.

The factual and procedural background of the case is essentially this. The appellant is the lessee under six federal oil and gas leases of land in Weston County, Wyoming. Appellant filed a complaint for condemnation of a way of necessity, alleging it had no access to the leased lands and sought to extend existing roads across lands owned by the appellees in order to explore for, develop and produce oil, and that it intended to haul by truck the oil produced. The complaint is complete and conforms in all respects to the requirements of § 1-26-401, et seq., supra, and Rule 71.1, W.R.C.P. The complaint also states that “ * * * the Weston County Commissioners denied [Appellant’s] petition for a private road pursuant to Wyoming Statues [sic], 1977 Republished Edition § 24-9-101 et seq.” Before hearing on January 4, 1979, appellant amended its complaint to allege a right to condemn private property under § 1-26-303, W.S.1977.³

At the outset of the hearing the district court granted appellees’ motion to dismiss appellant’s claim to condemn under § 1-26-401, et seq., supra, because appellant’s activity was not mining within the contemplation of the statutes. Later in the hearing, testimony was heard by the court from William Mitchell, president of appellant’s corporation, and three exhibits were introduced into evidence. At the conclusion of Mitchell’s testimony, the district court granted appellees’ motion for summary judgment on the grounds:

“ * * * that the statute, 1-26-303, does not provide authority for the court to act under the facts presented. The court construes the legislature to intend petroleum pipeline companies and other pipeline companies have the right of eminent domain and oil companies or any company or associations of persons that wish to go upon the lands of another to explore and drill for petroleum does not have statutory authority to secure right-of-ways by eminent domain.

“The court is also granting the summary judgment for the reason that the plaintiff has not exhausted its remedies. It is alleged and agreed that the county commissioners of this county were petitioned for a right-of-way; that was denied. It appears to the court that this matter was not appealed as provided by statute. Thus, the remedies were not exhausted. “Further, the description contained in the complaint for condemnation is insufficient and does not meet the requirement of Rule 71.1 of the Wyoming Rules of Civil Procedure.”

There was then much discussion concerning the scope of the summary judgment and whether it should also cover the applicability of § 1-26-401, et seq., supra. The trial judge stated:

“Well, the court will reconsider its ruling on the first motions made by defendants in regard to 1-26-401 through 404. During its reconsideration will grant the motion to consider Exhibits No. 1 through No. 3 as submitted together with the testimony of Mr. Mitchell. The court’s ruling will remain the same on that motion. And the court will grant the summary judgment as stated.”

The written judgment recites:

“IT IS HEREBY ORDERED that defendants’ motion for summary judgment against plaintiff be, and it hereby is, granted, and that summary judgment be entered in favor of defendants and against plaintiff, and that plaintiff’s Amended Complaint be dismissed.”

We, therefore, conclude the net effect of all this to be that summary judgment was granted in favor of appellees as to all issues raised by appellant; and we will consider them in that light.⁴

The propriety of granting a motion for summary judgment depends upon the correctness of the court’s dual finding 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. Meuse-Rhine-Ijssel Cattle Breeders of Canada Ltd. v. Y-Tex Corporation, Wyo.1979, 590 P.2d 1306, 1309; Johnson v. Soulis, Wyo.1975, 542 P.2d 867. In this case we have no apparent factual dispute. The conflict between the parties here relates only to the application of a constitutional provision, pertinent statutes, and Rule 71.1, W.R. C.P., all pertaining to eminent domain. There is only a question of law.

Eminent domain is the right and power of the State to appropriate private property to a particular user for the purpose of promoting the general welfare. It embraces all cases where, by authority of the State and for the public good, the property of an individual is taken, without his consent, for the purpose of being devoted to some particular use, either by the State itself or by a corporation, public or private, or by a private citizen. Section 32, Art. I, Wyoming Constitution is a recognition of the proposition that the uses there outlined while serving a private purpose indirectly benefit the general public. A private use is by constitutional edict given the force and effect of a public use. Grover Irrigation & Land Co. v. Lovella Ditch, Reservoir & Irrigation Co., 1913, 21 Wyo. 204, 131 P. 43, L.R.A.1916C, 1275, Ann.Cas.1915D, 1207.

Constitutional authorization for ways of necessity is not unique to the State of Wyoming. See 2A Nichols on Eminent Domain, 3rd Ed., §§ 7.626 and 7.626[1] with 1979 Supplement, for a background discussion. The right to condemn a way of necessity under constitutional and statutory provisions is an expression of public policy against landlocking property and rendering it useless. Franks v. Tyler, Okl.App.1974, 531 P.2d 1067. The obvious purpose of the constitutional and statutory provisions is to provide a means whereby a landowner or owner of an interest in lands, enclosed on all sides by lands of others and unable to get to the land from a public road or highway can get relief by condemning a right of way to it across intervening land. McGowin Investment Co. v. Johnstone, 1974, 54 Ala.App. 194, 306 So.2d 286, cert. den. 293 Ala. 766, 306 So.2d 290.

We hold that § 1-26-401, et seq., are the statutes which govern eminent domain proceedings in this case. As a general rule, statutes conferring the power of eminent domain are to be strictly construed in favor of landowners, so that no person will be deprived of the use and enjoyment of his property except by a valid exercise of the power. 29A C.J.S. Eminent Domain § 22, pp. 219-220; West’s Digest System, Eminent Domain, <s=»8. However, this doctrine does not preclude the reasonable and sound construction of such statutes in light of the objectives and purposes sought to be attained. Concerned Citizens, United, Inc. v. Kansas Power and Light Co., 1974, 215 Kan. 218, 523 P.2d 755; 29A C.J.S. Eminent Domain § 22, pp. 220-221. We are not unaware of the great public interest in an imminent need for energy. While at the time of adoption of the constitution the concern was one of developing the economy and settlement of the state, the urgency has now become one of survival.

We think it plain beyond any doubt that the intended purpose of the cited constitutional provision and statutes was to facilitate the development of our state’s resources. We will hereafter construe the word “mining” to include the exploration for oil and gas, and that now is hardly unique or expansive of that term and is nothing more than a reasonable and sound construction which carries out the intent of the constitution and related statutes, as well as permitting development of the resources of this state for the common good.⁵ It is only reasonable that the owner of valuable resources should not be shut in and deprived of the opportunity to exploit them for what is in a significant part a compelling public purpose. The argument put forward by appellees, and which was adopted by the district court, would have us construe the term “mining” and the phrase “mine truck haul road” so strictly, narrowly, and technically as to defeat and ignore the evidence purpose of § 32, Art. I, Wyoming Constitution and applicable statutes implementing that granted power.

Because of our disposition, it is unnecessary for us to decide whether § 32, Art. I of the Wyoming Constitution is self-executing for purposes of this case. The legislature has carried forward that constitutional provision insofar as the relief sought by the appellant is concerned. The right to proceed in eminent domain as was done in this case has its roots in the constitutional provision and is recognized by statute. The legislature has defined ways of necessity as including access by road to and from mining activities. This, the legislature has a right to do. Meyer v. Colorado Cent. Coal Co., 1928, 39 Wyo. 355, 271 P. 212, reh. den. 1929, 274 P. 1074. Though the legislature’s interpretation of the constitution is not binding on the supreme court, we would be loath to interpret the constitution otherwise. Laverents v. City of Cheyenne, 1950, 67 Wyo. 187, 217 P.2d 877. We give much weight to legislative interpretation, though not conclusive. State ex rel. Irvine v. Brooks, 1906, 14 Wyo. 393, 84 P. 488, 6 L.R.A., N.S. 750, 7 Ann.Cas. 1108. Acting upon that foundational authority, the legislature has in addition provided for a procedure to carry out its objects and purposes. Section 1-26-405, W.S. 1977 sets out the mechanics:

“Any action or proceeding to acquire title to or any interest in the real or personal property of another by condemnation, for any purpose whatsoever, shall be commenced and conducted in accordance with Wyoming Rules of Civil Procedure.”

Rule 71.1, W.R.C.P., therefore governs the procedure to be taken in the exercise of the power of eminent domain.

Both § 32, Art. I, and § 1-26-^01 use the words way of necessity without any conditional or restrictive language. The constitution, of course, was adopted in 1890 and § 1-26 — 401 was originally enacted ih 1907. At that time oil was considered generally to be a. mineral and an oil well to be a mine. This categorization, while not absolutely accurate in a scientific sense, was .widely accepted and persists to this day. As early as 1895, this court recognized that the exploration of oil was a placer mining claim. Van Horn v. State, 1895, 5 Wyo. 501, 40 P. 964. This same recognition is reflected in Douglas Oil Fields v. Hamilton, 1908, 17 Wyo. 54, 95 P. 849; and Dean v. Omaha-Wyoming Oil Company, 1913, 21 Wyo. 133, 128 P. 881; Skeen v. Lynch, 10th Cir. 1931, 48 F.2d 1044, cert. den. 1932, 284 , 52 S.Ct. 17, 76 L.Ed. 539; Amoco Production Co. v. Guild Trust, D.Wyo.1978, 461 F.Supp. 279, 282. We hold that the exploration for oil and gas is “mining” within the meaning of the statutes here in question. See also, Southland Royalty Co. v. Pan American Petroleum Corp., Tex. 1964, 378 S.W.2d 50, 56; Gueno v. Medlenka, 1960, 238 La. 1081, 117 So.2d 817, 820; 27 Words and Phrases, “Mining,” pp. 343-344 (1961); 1A Summers, Oil and Gas, § 135, n.30; 58 C.J.S. Mines and Minerals §§ 2 and 3. And that would by a reasonable construction include a “mine truck haul road” as a way of necessity in that it is necessary to haul out the mined petroleum product, as well as to haul in the necessary oil well drilling equipment and supplies. The words speak for themselves.

Although our disposition makes it unnecessary as well to give plenary treatment to the scope of § 1-26-303, supra, the record does show that appellant is authorized by its corporate charter to construct pipelines. However, nowhere in the pleadings or evidence presented below does appellant allege that it intended to condemn for such a purpose and at this stage of the proceedings there is no issue to be decided under § 1-26-303. This is not to suggest that at an appropriate time and in the light of future facts appellant would not qualify to pursue such a condemnation action if production justifies the necessity to construct a pipeline.

Appellees assert, and the district court held, that appellant was precluded from bringing this action because they sought to establish a private road pursuant to § 24-9-101, et seq., W.S.1977.⁶ This issue is raised in a somewhat unusual and unsatisfactory manner. Appellant asserted in its complaint that it had gone to the county commissioners to obtain a private road and had been turned down.⁷ No issue with regard to this question was raised in the district court by appellees. Rather the district court seems to have raised it and decided it sua sponte. The district court decided that appellant was precluded from pursuing this action because appellant “has not exhausted its remedies” when the county commissioners denied relief under § 24-9-101. Neither of the parties contests that such a proceeding took place and under the circumstances of this case we think it provident to point out several matters apparently not taken into account by the district court.

The trial judge apparently misconceived and misapplied the exhaustion doctrine. The exhaustion doctrine is concerned with timing of judicial review of administrative action. 3 Davis, Administrative Law Treatise, 1958, § 20.01, p. 57. In the case before us, the action taken in the district court was not to question or review the administrative proceeding before the county commissioners. That proceeding was abandoned and a new proceeding taken under completely separate and unrelated statutes. The question became one of election of remedies and we will decide the issue on that basis.

We are not certain what remedies the district court determined that appellant had failed to exhaust. However, we think it clear and hold that while appellant might pursue some remedy under § 24-9-101, supra, and, without seeking redress by way of appeal from an unfavorable determination of that action, it is not precluded from pursuing a remedy under § 1-26-401, et seq., supra. Where consistent cumulative remedies are provided by statute, there is no requirement that a claimant elect or pursue them in any particular order or manner. Vissenberg v. Bresnahen, 1949, 65 Wyo. 367, 202 P.2d 663, 665-666; 28 C.J.S. Election of Remedies, §§ 1 — 4. We found no statutory declaration that any particular remedy is exclusive, as far as condemnation is concerned. There is also a question here of whether appellant’s seeking of a remedy under § 24 — 9-101 was anything more than the fruitless pursuit of a remedy that was not available to it, and thus would be no bar to a subsequent action under § 1-26-401, et seq. Since appellant’s real relief should have been sought under § 1 — 26—401 because it really was after a mine haul road, the first proceeding may not have been proper because of the availability of a special statute. Where there is really but one remedy and not a choice, recourse to one remedy which proves futile does not preclude thereafter successfully invoking a second more appropriate remedy. Roberts v. Roberts, 1945, 62 Wyo. 77, 162 P.2d 117, 122. However, it is unnecessary for us to decide this latter question since it is clear under Vis-senberg that appellant would not be barred from an action under § 1-26-401 no matter what characterization is given to the final disposition of its earlier application under § 24-9-101. The district court erred in ruling that appellant had failed to exhaust remedies supposedly available under the earlier suit, and thus granting summary judgment in favor of appellees. '

The district court also based its grant of summary judgment in favor of appellees on the basis that the description of the property taken was insufficient under Rule 71.1(c)(2), W.R.C.P., which requires that the complaint contain a description of the property sufficient for its identification. It is obvious from the record that the description given was fairly general and in some respects, perhaps, incorrect. Nonetheless, the record is abundantly clear that the purpose of the proceeding was for appellant to obtain a way of necessity across the described lands. The statutes which govern the power of eminent domain which appellant has a right to pursue make it clear that such a way of necessity is restricted to that which is necessary and allowed by the statute. Here appellant wants what is described as a winding road and appellant was forthright in stating it was impossible to describe it more precisely than the description which was given in the complaint. As we understood at oral argument, the appellant has never been permitted on the lands in order to make a survey and be more precise in describing a road to its leases. Moreover, the exhibits, particularly Exhibit 3, show a proposed path of the way of necessity.⁸ That which can be made certain, is certain. The district court erred in granting summary judgment on this ground. The description given in the complaint satisfies the purpose of Rule 71.1, supra, to give general notice to all who will be concerned what lands are contemplated by the condemnation. 12 Wright and Miller, Federal Practice and Procedure, Civil § 3044, p. 101; 7 Moore’s Federal Practice, ¶ 71A.40[4], p. 359. It is obvious that any deficiencies in the land description will be remedied in the course of further proceedings. Once the right of entry is granted pursuant to § 1-26-401, “ * * * [persons under this subsection may enter upon any lands to examine and make surveys for planning or changing any use authorized under this subsection.” The complaint is sufficient to give notice to appellee of what lands are the subject of this condemnation proceeding.

There may be other issues developed during the course of further proceedings following remand. We view the record as indicating that nothing the plaintiff could do would have satisfied the trial judge that the plaintiff had authority to proceed in condemnation. A correct description or other matters suggested by the dissenting and concurring opinions were really not matters necessary for determination by the trial court once it took the adamant position that the plaintiff had no standing to undertake acquisition of lands under eminent domain. While the majority neither approves nor disapproves of the partially concurring and partially dissenting opinions because much of their discussion is premature, they may have a salutary effect upon the district court and counsel.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

1 . Section 32, Art. I, Wyoming Constitution:

“Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.”

2 . Section 1-26-401, W.S.1977, in pertinent part:

“(a) Any * * * corporation authorized to do business in this state may appropriate by condemnation a way of necessity over, across or on so much of the lands or real property of others as necessary for the location, construction, maintenance and use of * * * tramways or mine truck haul roads required in the course of their business for agricultural, mining, milling, electric power transmission and distribution, domestic, municipal or sanitary purposes, or for the transportation of coal from any coal mine or railroad line. Persons under this subsection may enter upon any lands to examine and make surveys for planning or changing any use authorized under this subsection.

“(b) The right of condemnation may be exercised for the purpose of:

“(i) Acquiring new ways of necessity;

“(ii) Enlarging or relocating existing ways of necessity;

“(iii) Acquiring material for the construction, repair or maintenance of any structures or facilities for which the way of necessity is or may be acquired;

“(iv) Acquiring easements or rights-of-way over adjacent lands sufficient to enable the owner of the way of necessity to construct, repair, maintain and use the structures or facilities for which the way of necessity is acquired.

“(c) A way of necessity acquired hereunder shall not exceed one hundred (100) feet in width on each side of the outer sides or marginal lines of the reservoir, drain, ditch, underground water pipeline, canal, flume, power transmission line, railroad trackage, siding or tramway unless a greater width is necessary for excavation, embankment or deposit of waste from excavation. In no case may the area appropriated exceed that actually necessary for the purpose or use for which a way of necessity is authorized.

“(d) A way of necessity for a mine truck haul road shall not be granted except where no other reasonable and practicable way is available. The petitioner for a mine truck haul road way of necessity shall show that his petition is made in good faith, that no other reasonable and practical way is available and that the mining operation is economically feasible. The way of necessity may not exceed in area that which is actually necessary for the haul road, and in no case shall it exceed one hundred (100) feet in total width. “(e) No appropriation of private property shall be made for the uses herein specified until just compensation is paid to the owner or owners of the property taken, as provided by law.

“(f) Except for underground water pipelines, the way of necessity appropriated is for a surface easement or right-of-way only, and shall not include any claim, interest or property in or to the underlying minerals or mineral estate. Damages or compensation shall not be awarded for or on account of the underlying minerals or mineral estate, but only for the actual rights and property claimed and appropriated.”

3 . Section 1-26-303, W.S.1977, in pertinent part:

“Whenever * * * any petroleum or other pipeline company * * * shall not have acquired by gift or purchase, any land * * required for the construction or maintenance of their * * * pipe, * * * the said corporation shall have the right of eminent domain and may condemn the land *

4 . At the very tail end of the hearing, appellant was allowed to amend its complaint to include § 32, Art. I, Wyoming Constitution. The pertinence of the constitutional provision was discussed in memorandum briefs submitted to the court by both parties and in oral argument to the court, and it appears that the intent of the district court was to include it as an issue by the summary judgment, although the record is somewhat fuzzy in that regard.

5 . See also, Snell v. Ruppert, Wyo.1975, 541 P.2d 1042, 1046 (fn. 5); 29A C.J.S. Eminent Domain § 56, p. 292.

6 . Section 24-9-101, W.S.1977, in pertinent part:

“Any person whose land shall be so situated that it has no outlet to, nor connection with a public road, may make application in writing to the board of county commissioners of his county at a regular session, for a private road leading from his premises to some convenient public road. * * * ”

Then follows the procedure to be taken before the board of county commissioners. Provision for appeal to the district court is also made.

7 . This was coupled with the allegation that appellant was also unable to negotiate a satisfactory arrangement with appellees. The obvious purpose of these allegations is to make plain that appellant was in good faith seeking a remedy from the court.

8 . 6A Nichols, Eminent Domain, 1976, § 27.23, pp. 27-37 to 27-39, explains a comparable phrase appearing in Rule 71A, F.R.C.P.:

“(f) Description. — Rule 71A of the Federal Rules of Civil Procedure requires that the complaint set forth a description of the property sought to be acquired ‘sufficient for its identification.’ A sufficient description of what the condemnor proposes to acquire is essential for several reasons. It serves first to inform the owner as to the extent and location of the property to be taken. It also enables the jury or commissioners to assess the damages intelligently. The description in the complaint should be such that no difficulty will arise in framing the judgment by reference to such description without repeating it.

“The word ‘description’ has been defined as a portraiture or representation in language. The complaint must, therefore, give a representation of the property in language. On the theory that the proceedings operate as a deed to transfer title, some authorities hold that the land should be described with as much certainty as would be necessary in a conveyance. Others hold sufficient a description from which a surveyor or someone familiar with the locality might locate the tract. Usually, however, general allegations are held sufficient. The word ‘about’ does not materially impair the certainty of the description. Designation of the property by ‘square number’ if the property sought to be acquired constitutes all the privately owned land within the given square, is sufficient. Descriptions by metes and bounds or by subdivisions of the government survey sections should be deemed sufficient. In descriptions by metes and bounds, definite and certain termini are necessary, unless the tract is platted land. It has been held that reference to a line of stakes liable at any moment to be removed, without reference to a fixed monument for a beginning, is not sufficient.

“Although it has been said that the description must be definite enough so that the land can be ascertained without extrinsic evidence, it will usually be considered sufficient, although some investigation outside the description itself is necessary. Thus, if the allegations in the complaint together with a map make an intelligible description, it is sufficient. The map need not be physically attached, for it may be included by reference to a recorded map open to the defendant’s inspection. But whether the map or plan is physically attached to the petition or not, the description must incorporate it by reference or the court will not take notice of it. The complaint may also be aided by reference to an authorizing statute which contains a further description of the land.

“If the description can be made certain by rejecting that which is repugnant or false, this will be done so as to effectuate the intention of the instrument as a whole, and at times the subordinate features or circumstances of the description will be rejected as surplusage in order to allow the complete and correct parts to stand alone.” (Footnotes omitted.)