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Mullinax Concrete Service Co., Inc. v. Zowada

November 10, 2010


Appeal from the District Court of Sheridan County, The Honorable Dan R. Price II, Judge.

The opinion of the court was delivered by: Hill, Justice

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] Appellant, Mullinax Concrete Service Co., Inc. (Mullinax), protested against a petition filed by the Appellees, Merlin H. and Lori Zowada (Zowadas), for the establishment of a private road across lands owned by Mullinax. The Sheridan County Board of County Commissioners (Commission or Board) approved a road other than the one which historically had been used by the Zowadas to access their property. That road crossed lands owned by Mullinax. Both the Zowadas and Mullinax sought review of the Commission's decision in the district court. The district court reversed the Commission's decision, in part, and remanded the case to the Commission for further proceedings. Mullinax now seeks review in this Court of the district court's order reversing the Commission's order. We will affirm the district court's order, in part, and remand to the district court with directions that it modify its order reversing and remanding as set out more fully below.


[¶2] Mullinax raises these issues:

A. Substantial evidence was introduced into the record for the Commission to determine that the most reasonable and convenient location for the private road was the modified Industrial Drive option that was chosen and the Commission's findings adequately support that location.

B. Alternatively, the district court's order that a third set of appraisers and viewers must be appointed is incorrect and unworkable.

C. Alternatively, if the Commission's road location findings are remanded for further proceedings, the district court did not have authority to require the Commission to find that any location that the Commission settles on after remand must have BNSF consent for a right-of-way crossing.

The Zowadas restate the issues thus:

1. There was no evidence introduced into the record to support the [Commission's] location of the private road.

2. Mullinax's claims [of a] planned future use is not credible, was refuted, and should not be considered.

3. The findings and order of the district court are fully supported by the record.

4. There is sufficient evidence in the record for the Appellate Court to direct selection of the location of the private road as requested by the [Zowadas].

In its reply brief, Mullinax contends:

A. Zowadas cannot raise or argue an issue in this appeal that they lost before the district court and did not appeal to this Court (Issue 2, above).

B. Jurisdiction to complete any remand fact finding in this case rests solely with the [Commission].

C. Zowadas' new appendices C and H are not part of the record on appeal.

[¶3] We will not address issue C, immediately above, because this Court made no use of Appendices C and H in resolving this appeal.


[¶4] The proceedings below were governed by Wyo. Stat. Ann. §§ 24-9-101 and 24-9-103 (LexisNexis 2005), and they bear directly on the resolution of the issues raised in this appeal. For purposes of ready reference, they are set out in APPENDIX A at the end of the opinion. Those statutes were changed quite significantly in 2007 and 2008. See Wyo. Stat. Ann. §§ 24-9-101 and 24-9-103 (LexisNexis 2009). However, our review will be guided by the earlier version of those statutes.

[¶5] On January 31, 2006, the Zowadas filed before the Commission a petition to establish a private road, in accordance with §§ 24-9-101 and 24-9-103. A very similar petition was filed on May 15, 2006, and it included a certificate of compliance alleging service on both Mullinax and the BNSF Railway Company (BNSF). By letter dated March 20, 2006, a representative for BNSF agreed "that the language contained in the deed [to Zowadas] does, in fact, indicate a continued right to use the crossing that they have been using for the past ten years." BNSF was represented in all the proceedings before the Commission, but it has not participated in either the appeal to the district court or in the appeal to this Court. In closing arguments before the Commission, BNSF made clear that its only concern, and its principal reason for participating in the proceedings, was to ensure that none of the options considered by the Commission included use of the roadbed, of the railroad's right-of-way, as a part of the private road to be allowed to the Zowadas (as opposed to merely crossing the railroad's right-of-way so as to use that portion of the private road that continued on the other side of the tracks). BNSF conceded that, to the extent the railroad bed needs to be crossed as a matter incidental to several of the road options placed in issue, the railroad bed and tracks are no longer in use and are not maintained (and that has been the case for several decades). BNSF figures in this appeal only because the district court included a mention of BNSF in its order reversing and remanding the Commission's decision to the Commission, for further proceedings there. We will address that more fully later in this opinion.

[¶6] Only Mullinax and the Zowadas are parties to this appeal, but there were several other parties below. That was so because six different routes were considered by the Commission, as well as by the Viewers and Appraisers appointed by the Commission in accordance with the governing statutes. "Route 1" is the route the Zowadas had used for 10 years or so prior to the inception of this litigation. The exact amount of time the Zowadas had used the road was disputed by Mullinax. However, whether the Zowadas' use of the route was more or less than ten-plus years makes no difference to our resolution of this appeal. By order of the Commissioners the Zowadas have been permitted to continue to use that road since the inception of this litigation in 2006.

[¶7] "Route 1" was the route selected by the Viewers and Appraisers and recommended to the Commission. See APPENDIX B. "Route 2"was one of the alternative routes suggested by Mullinax and it would have funneled Zowadas' traffic through the parking/truck-operating area owned by Big Horn Beverage, Inc. "Route 2" was rejected by the Viewers and Appraisers, as well as the Commission, and that decision is not challenged in this appeal. "Route 3," which is immediately east of Big Horn Beverage's property and within 20 feet of Goose Creek, was also rejected and that is not challenged herein either. "Route 4" was rejected by the Viewers and Appraisers because it would have provided the Zowadas with access to their property from the east and north across undeveloped land owned by Mullinax. In addition, to the need for considerable road building, it would have been necessary for the Zowadas to build a bridge across Goose Creek from north to south. The rejection of that route is not challenged in this appeal. "Route 5" made use, in part, of an existing road called Industrial Drive, and then crossed lands owned by Mullinax as well as lands owned by N.A. and Ellen Nelson (Nelsons). The Nelsons made an appearance in writing and asked that a copy of the Viewers and Appraisers Report be sent to them. "Route 5" ultimately was rejected because of the difficulty of the terrain it traversed, and no issue is raised about that herein. Finally, what appears to be the longest route under consideration, "Route 6," was rejected by the Viewers and Appraisers because of its length and the probable cost of constructing a considerable portion of it across difficult terrain.

[¶8] As noted above, the Zowadas filed their initial petition for establishment of a private road on January 31, 2006. On February 16, 2006, Mullinax terminated the Zowadas' "temporary access" to use the road at issue as of 4:30 p.m., on February 20, 2006. The Zowadas filed a request for temporary access on February 17, 2006, and the Commission granted them conditional temporary access by letter dated February 24, 2006.

[¶9] The Viewers and Appraisers were appointed as contemplated by the governing statute and those Viewers and Appraisers submitted their report to the Commission on December 18, 2006. The route they "suggested" was similar to "Route 6," described above, in that it included the use of Industrial Drive, but then it diverted the road onto the existing BNSF railroad bed. According to the viewers, this would allow Zowadas to remove the existing rails and ties from the railroad bed and create a roadway to their property. This report was rejected by the Commission out of hand because the Viewers and Appraisers had failed to follow the instructions given them by the Commission.

[¶10] New Viewers and Appraisers were chosen on June 26, 2007, and they were provided with instructions from the Commission. The record is clear that in this second go-around, the BNSF right-of-way could not be used for the proposed road itself (although crossing of the right-of way was acceptable). On October 2, 2007, the Viewers and Appraisers submitted their report to the Commission and selected "Route 1," described above, the route the Zowadas had historically used. The report included a before and after appraisal that assessed damages in favor of Mullinax in the amount of $4,500.00. The Viewers and Appraisers gave detailed explanations for their decision to reject Routes numbered 2, 3, 4, 5, and 6. Their explanation for choosing "Route 1" was this:

a. The present access has been in existence for an extensive period of time. See Deposition of Merlin Zowada, Thursday August 10, 2006 page 32, lines 19-23. "Q All right. How long have you been using the temporary access where it is across the Mullinax property either with the county commissioner letter or otherwise? And you can be -- I mean roughly." "A At least 12, 13 years."

b. The Mullinax land containing the easement is on the extreme Eastern boundary of the Mullinax land and on the boundary having the least dimension.

c. Any route changes examined show no reasonable alternatives. [Emphasis in original.]

d. Mullinax is contending that the access is required for a "storm water containment pond" which would apparently provide catchment for the entire property. Appendix J contains a letter from DEQ (Nov. 14, 2006) outlining rough requirements. Appendix G1 contains a drawing of a detention pond designed by Ronald Destafano P.E. which would be placed in the present access. The dimensions of the detention pond at the water line are approximately 85 feet long by 18 feet wide by 6 feet deep. We feel that there are alternate locations for this type of facility which would serve as well without disruption to the Zowada's longstanding access.

e. The strip of land required for the roadway is approximately 168 feet long, 24 feet wide and contains 4031 square feet. [617]

[¶11] In addition to this report of the private road recommended and the damages to be paid by the Zowadas to Mullinax, the Viewers and Appraisers made these recommendations: (1) That Zowadas be notified when the necessary periodic road maintenance for the hard surfaced portion of the road is required and that Zowadas pay 50% of the cost thereof; (2) That Zowadas maintain the gravel portion of the road at their cost; (3) The Zowadas' proposed security gate be implemented. This allows Zowadas to remain open on weekends which in turn reduces weekday traffic through Mullinax along the road; Zowadas to bear all costs associated with this gate; (4) That Zowadas be required to pay 50% of the redesign of a storm water facility to relocate the Mullinax storm water containment pond. Costs must be reasonable.

[¶12] A hearing was held before the Commission on November 7-9, 2007. In the Findings of Fact and Conclusions of Law signed by the Commission on December 24, 2008, the Commission made its decision. Of significance in this appeal, the Commission did not establish the private road requested by the Zowadas and recommended by the Viewers and Appraisers. Rather, the Commission awarded them the route identified as "Route 6" above. Much of the content of the Commission's findings is given over to a summary of the procedural aspects of this very lengthy case, and we have further summarized those above. In Findings 34-37, the Commission concurs with the conclusions of the Viewers and Appraisers with respect to Routes 2, 3, 4, and 5. The Commission then goes on to declare "Route 1" as the most unreasonable and inconvenient route and "Route 6" as the most reasonable and convenient. We quote the remainder of the Commission's findings verbatim:

38. It is uncontroverted that Mullinax must comply with the Wyoming Department of Environmental Quality regulations regarding surface water discharge. It is likewise clear that the current method of addressing surface water discharge, involving the apparent permissive trespass into the Fort Road right-of-way and the use of hay bales to collect sediment, is ineffective.

39. The damages determined by the viewers and appraisers for the actual loss of value of the land subject to the easement ($4,500.00) is fair and reasonable and based upon valid sales comparisons.

40. In May 2008, the Commission was notified by counsel for John E. Rice & Sons, Inc. and Mullinax that Mullinax had purchased lands owned by John E. Rice & Sons, Inc. which lands lie north of Mullinax in and around the BNSF right-ofway. The Commission, ...

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