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Marjorie E. Bedessem, Trustee of the Marjorie E. Bedessem Revocable v. David P. Cunningham and Susan M. Cunningham

March 9, 2012


Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

The opinion of the court was delivered by: Golden, 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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Marjorie Bedessem (Bedessem), as trustee of her revocable trust, filed a complaint against David and Susan Cunningham (Cunninghams), seeking enforcement of an easement across the Cunningham property to access the Bedessem property. Bedessem claimed an implied access easement or, in the alternative, access pursuant to the restrictive covenants applicable to both properties. The district court found no evidence of an implied easement and that the restrictive covenants authorized only the Architectural Control Committee to sue for enforcement of the covenants. On those grounds it granted Cunninghams' summary judgment motion. We affirm.


[¶2] On appeal, Bedessem does not challenge the district court's finding on the implied easement claim and presents only the following issue:

I. Whether the District Court erred when it ruled that Plaintiff did not have standing to enforce a restrictive covenant against Defendants.


[¶3] In the early 1990s, Red Butte Development Corporation (Red Butte) developed a 600-acre tract of land south of Laramie, Wyoming. The planned development included a two-phase residential subdivision of tracts under thirty-five acres in size. Phase I of the Buttes Subdivision was a 300-acre development that reserved to Red Butte the right to grant use of the subdivision's roads for access from Highway 287 to lands east of the Phase I development.

[¶4] In conjunction with its original plan, Red Butte applied for a right-of-way across a Bureau of Land Management (BLM) tract of land east of Phase I of the Buttes Subdivision and between the Phase I area and what was proposed, at the time, to be Phase II of the Buttes Subdivision. Red Butte sought to use this right-of-way as part of a looped connection to the Phase II development. At some point, however, Red Butte abandoned the second phase of its proposed subdivision and instead opted to develop the easternmost lands as "the Large Tracts." The Large Tracts, designated Tracts I through IV, ranged in size from forty to one-hundred acres, and they are numbered from south to north, Tract I being the southernmost tract.

[¶5] In December 1993, Red Butte sold Tract II of the Large Tracts to Windy Perkins. The Warranty Deed for Tract II granted an access easement to Tract II from the north across Tracts III and IV. In December 1994, Red Butte sold Tract I to the Cunninghams.

The Warranty Deed for Tract I gave the Cunninghams access easements to their property that did not cross Tracts II, III or IV.

[¶6] In conjunction with the sale of Tract I to the Cunninghams, Red Butte applied to the BLM to revise the right-of-way across the BLM tract so as to eliminate the loop and terminate the right-of-way across the BLM land at Tract I's western boundary. In March/April 1995, the BLM approved and adopted the requested revision to the right-ofway to terminate Butte Loop as a loop road and to specify that Butte Loop, crossing the BLM tract, would terminate at the Tract I boundary. On April 6, 1995, the BLM right-of way grant was assigned from Red Butte to the Cunninghams, effectively eliminating the southern portion of the so-call "Loop."

[ΒΆ7] In 1997-1998, Cunninghams built a home on Tract I, and Windy Perkins, along with her husband, Dr. James R. Smith, built a home on Tract II. During this time, Cunninghams agreed that Perkins and Smith could access Tract II via Butte Loop across Tract I, and Perkins/Smith agreed to share the cost of substantial improvements to the road. Eventually, Cunninghams and Perkins/Smith became close ...

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