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In the Matter of the v. Daniel Gallagher

July 21, 2011

IN THE MATTER OF THE ESTABLISHMENT OF A PRIVATE ROADWAY TO REAL PROPERTY OWNED BY DANIEL GALLAGHER: J & T PROPERTIES, LLC, APPELLANT (RESPONDENT),
v.
DANIEL GALLAGHER, APPELLEE (PETITIONER).



Appeal from the District Court of Natrona County The Honorable David B. Park, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] The district court granted Daniel Gallagher a private road across land owned by J & T Properties, LLC (J & T). J & T appealed, arguing the private road did not meet the statutory requirements because it did not connect directly to a public road and the district court erred by not ordering Mr. Gallagher to reimburse J & T for the costs of an appraisal establishing the damages to its property from the private road.

[¶2] We affirm.

ISSUES

[¶3] J & T presents the following issues on appeal:

A. Did the district court err in failing to create a private road leading from Gallagher's land "to some convenient public road?"

B. Did the district court err in failing to award J & T costs incurred [in] obtaining and presenting its own "before and after" appraisal?

Mr. Gallagher restates the issues as:

1. Does the private roadway statute, Wyo. Stat. § 24-9-101, require joining neighboring landowners in the proceeding where the applicant already holds legal and record access to a public road across those neighboring lands?

2. Did the District Court below commit reversible error by declining to order the applicant to pay for the private commercial appraiser hired by the landowner?

J & T articulates several issues in its reply brief. However, just one complies with the requirements of W.R.A.P. 7.03, which allows a reply brief only when necessary to address new issues raised in the appellee's brief. The one issue meeting that requirement is whether J & T argued in the district court that the rules of civil procedure authorized reimbursement of the appraisal fees.

FACTS

[¶4] Mr. Gallagher purchased property in an industrial area of Natrona County, just west of J & T's property. When he purchased the property, he believed that a series of easements across properties to the east provided access to a nearby public road. However, Mr. Gallagher soon learned that he did not have an easement across J & T's property. Consequently, on July 17, 2008, he petitioned the Natrona County Board of County Commissioners for a private road across J & T's property.

[¶5] The county commissioners concluded that Mr. Gallagher has no legally enforceable access and certified the case to the district court.*fn1 The district court appointed viewers and appraisers to locate a private road and place a value on the damage to the condemned property. The viewers and appraisers recommended condemning a private road along an existing roadway on J & T's property. The private road began at Mr. Gallagher's property line and continued east to the eastern boundary of J & T's ...


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