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Stephen Smith and Audrey Smith, Husband and Wife v. Board of County

January 9, 2013


Appeal from the District Court of Park County The Honorable Wade E. Waldrip, Judge

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

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] The Smiths contend that an unlawful taking occurred when the Board of County Commissioners of Park County (the Board) declared the Smiths' private driveway to be part of a county road. Failing to obtain any relief through administrative proceedings, the Smiths sued the Board in district court, alleging claims of inverse condemnation under Wyo. Stat. Ann. § 1-26-512 (LexisNexis 2011), inverse condemnation under article 1, sections 32 and 33 of the Wyoming Constitution, trespass, and ejectment. The district court granted summary judgment to the Board on all of the Smiths' claims, concluding that the inverse condemnation claims were barred by the statute of limitations found in the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1-39-101 to -121 (LexisNexis 2011), and that the trespass and ejectment claims failed as a matter of law because the Smiths no longer had sufficient possessory interest to make those claims.

[¶2] With due respect for the doctrine of stare decisis, but recognizing its limitations, we will reverse the district court's grant of summary judgment as to the inverse condemnation claims. The Smiths have not pursued their claims for trespass and ejectment in this appeal.


[¶3] Does the statute of limitations found in the WGCA govern in inverse condemnation cases?


[¶4] The Smiths live on rural ranch land in Park County, Wyoming. They have always considered their access road to be a private driveway. In January 2006, the Smiths' neighbors to the north, Scott and Marjory Justice, filed with the Board a Petition for Establishment of a County Road, along an unsurveyed legal description that closely equated to the Smiths' driveway.

[¶5] The Board held an informal meeting on February 21, 2006, to discuss the Justices' petition. At that meeting, the Board voted to appoint a viewer to determine the practicality of the proposed road. The viewer's report presented on April 3, 2006, indicated that "no significant reason appears to hinder Park County from proceeding with the process to establish this section of County Road R.O.W." On May 17, 2006, however, the Board dismissed the Justices' petition on the ground that the Smiths' driveway already was part of County Road 11, which had been established in 1902.

[¶6] The gravamen of the Smiths' disagreement with the Board is stated succinctly in paragraph 25 of their Complaint:

25. The location of the Plaintiffs' driveway is quite different from the location of County Road 11 depicted on the 1911 Count[y] Road Plat map which is the official current record map recorded in the Office of [t]he Park County Clerk. Plaintiffs['] private driveway is at least a quarter of a mile away from County Road No. 11 at places, and runs across different parcels of land than County Road No. 11 [a]s clearly depicted on the official County Road Plat map.

[¶7] After reading in the newspaper of the Board's action, the Smiths sought a reconsideration of the decision. The Board discussed the matter at a general meeting on September 5, 2006, and declined the Smiths' request. The Smiths then filed a Petition for Judicial Review in the district court, challenging the Board's authority to create a county road at a new location without following the provisions of Wyo. Stat. Ann. §§ 24-3-101 to -127 (LexisNexis 2011), which statutes govern the procedures for the establishment, vacation, or alteration of county roads. On February 25, 2008, the district court remanded the matter to the Board for the purpose of conducting a survey of the existing county road to determine whether the Smiths' driveway was, or was not, contained within the county road right-of-way.

[¶8] Upon remand, rather than do as the district court ordered, the Board simply appointed a second viewer to view the Smiths' driveway. Without obtaining a survey of either the driveway or County Road 11, the Board declared that the driveway was part of the county road in that the former was "close" to the latter, and in that the 1902 survey of the county road likely was inaccurate on the county plat map. The Smiths then filed in the district court a Petition for Review of Agency Action. After a hearing on December 10, 2009, the district court again remanded the matter to the Board, ruling that the Board should follow the statutory procedures for establishing, altering, or vacating a county road, specifically to include a survey of the Smiths' driveway.

[¶9] Rather than obtain a survey of the Smiths' driveway, the Board hired an expert, who determined that the 1902 survey used to create County Road 11 on the county's official county road plat map was in fact correct. On December 18, 2009, the Smiths met with representatives of the county attorney's office and with the Board's expert to discuss the expert's conclusions. The Smiths took the position that, if the 1902 survey of the county road was accurate, as the expert had established, their private driveway was not part of the county road because the two roadways were in different locations. Some time later, the county attorney informed the Smiths' attorney that the Board did not intend to change its position that the Smiths' driveway was part of the existing county road. This lawsuit followed.*fn1


[¶10] Our standard for the review of a summary judgment is so well known that it need not be repeated here. See, e.g., Knapp v. Landex Corp., 2006 WY 36, ¶ 7, 130 P.3d 924, 926 (Wyo. 2006); and Ahrenholtz v. Laramie Econ. Dev. Corp., 2003 WY 149, ¶ 16, 79 P.3d 511, 515 (Wyo. 2003). The question of the application of the WGCA to claims of inverse condemnation involves statutory construction, which is a question of law that we review de novo. State ex rel. Wyo. Dep't of Revenue v. Hanover Compression, LP, 2008 WY 138, ¶ 8, 196 P.3d 781, 784 (Wyo. 2008).


[¶11] In its answer to the Smiths' Complaint, the Board asserted the following affirmative defenses:

2. Plaintiffs have failed to comply with the Wyoming Governmental Claims Act, W.S. § 1-39-101, et seq. (LexisNexis 2009) and/or Article 16, § 7 of the Wyoming Constitution and thus this Court does not have subject matter jurisdiction over some or all the claims presented.

3. Defendant is immune from liability for the claims of Plaintiffs, or some of them, under the Wyoming Governmental Claims Act, W.S. § 1-39-101, et seq. (LexisNexis 2009) and/or Article 1, § 8 ...

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