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Zowada v. Mullinax Concrete Serv. Co., Inc.

Supreme Court of Wyoming

September 24, 2014

MERLIN H. ZOWADA and LORI ZOWADA, Appellants (Petitioners)

W.R.A.P. 12.09(b) Certification from the District Court of Sheridan County. The Honorable William J. Edelman, Judge.

Representing Appellants: H. W. Rasmussen, Attorneys at Law of Wyoming, P.C., Sheridan, Wyoming.

Representing Appellee: Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming.

Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.


Page 456

DAVIS, Justice.

[¶1] Sheridan County landowners Merlin and Lori Zowada petitioned the Board of County Commissioners[1] to establish a private road to access their landlocked tract through property belonging to Mullinax Concrete Service Company. The Board's first ruling in the case came before this Court in

Page 457

Mullinax Concrete Service Co. v. Zowada, 2010 WY 146, 243 P.3d 181 (Wyo. 2010) ( Mullinax I ).[2] We remanded to the district court with a mandate to direct the commissioners to compare the relative merits of only two alternative routes, and to determine whether the greater cost of one of the routes was justified. After further proceedings, the Board again established the road on a route not favored by the Zowadas, who challenge the ruling in this appeal. We accepted certification from the district court, and we affirm.


[¶2] The Zowadas raise two issues relating to Mullinax's construction of a stormwater collection facility on the route sought by the Zowadas and Mullinax's evaluation of the costs of constructing and maintaining a road on the route selected by the Board. We restate those issues as follows:

1. Should the Board have excluded certain facts as irrelevant because they relate to events that did not take place until after the Board received the viewers and appraisers[3] report and held its first contested case hearing in 2007?

2. Were the Board's findings supported by substantial evidence?


[¶3] The Zowadas filed their petition on January 31, 2006. The Board appointed two sets of viewers and appraisers who considered six alternative routes for the private road, only two of which now remain in contention. They have come to be known as Route 1, championed by the Zowadas, and Route 6, the path the Board has now chosen twice. See Mullinax I, ¶ ¶ 5-11, 243 P.3d at 183-85. The following is an aerial view of the general area and the original six proposed routes:

Mullinex I, Appendix B.

[¶4] As the map shows, Route 1 proceeds north to the Zowadas' land from Fort

Page 458

McKenzie Road, Wyoming Highway 337. It crosses the narrow eastern end of Mullinax's roughly triangular property along its approximately 168-foot boundary with property housing a warehouse owned by Big Horn Beverage, Incorporated.

[¶5] Route 6 begins on Highway 337 approximately 1,500 feet west of Route 1, proceeds north on Industrial Road for roughly 1,200 feet until it crosses an unused railroad bed that parallels what was the northern border of Mullinax's property, and then proceeds to the southeast for nearly another 1,200 feet to the western border of the Zowadas' land. In other words, one driving west on Highway 337 heading for Route 6 would pass Route 1, travel a significant distance west, then north, and then double back east to the Zowada property. Route 1 is, of course, considerably shorter than Route 6.

[¶6] After the Board's November 2007 contested case hearing, but before it issued its findings of fact and conclusions of law in December 2008, Mullinax advised that it had purchased land abutting what had been the northern boundary of its property and extending north of the railroad right-of-way. Mullinax I, ¶ 12, 243 P.3d at 185. Mullinax's previous lack of a legal interest in that land had profoundly affected the evaluation of Route 6 by both sets of viewers and appraisers.

[¶7] The first group of viewers and appraisers recognized that the Wyoming Department of Environmental Quality (DEQ) had mandated that Mullinax devise a plan to keep sediment-laden stormwater from draining off its property to nearby Goose Creek, and that an engineering study commissioned by Mullinax concluded that the best solution required placing a structure at the northern end of Route 1. Because there was no equally well-engineered alternative for stormwater control, the first set of viewers and appraisers rejected Route 1. They ultimately selected a problematic variation of Route 6. Aware that no right-of-way then existed north of the Mullinax property line, and therefore concluding that a road paralleling the old rail line would require condemnation of another's land, they suggested locating Route 6 on the bed of the old rail line.

[¶8] The Board rejected the report because it concluded that the viewers and appraisers had failed to follow instructions, and it then appointed a new group of viewers and appraisers. Mullinax I, ¶ 9, 243 P.3d at 184. The new group rejected Route 6 because it would require obtaining an easement through the land that Mullinax purchased nearly six months later, and because at the time it could not be determined how long it would take to negotiate an easement or its cost. They chose Route 1, dismissing the contents of the design report relating to the stormwater containment pond with the conclusory statement that they felt " there are alternative locations for this type of facility which would serve as well." Id., ¶ 10, 243 P.3d at 185.

[¶9] In light of Mullinax's intervening purchase of the land needed to construct the final leg of Route 6, the Board rejected the recommendation of the second group of viewers and appraisers. It concluded that although they had properly calculated the loss in value of Mullinax's property attributable solely to the amount of land set aside for Route 1, Mullinax was also entitled to compensation for the loss of the additional land it would have to dedicate to stormwater containment if it could not place its sediment containment pond at the northern end of Route 1. It also noted that Mullinax should be compensated for the difference in construction costs ...

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