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Sharpe v. Timchula

Supreme Court of Wyoming

December 4, 2019

CINDY A. SHARPE; GEORGE A. LOGAN; and SYBILLE RANCH, LLC, Appellants (Defendants),
JUDITH TIMCHULA, Trustee of the Judith Timchula Living Trust dated October 19, 2000, Appellee (Plaintiff), and JACK GARSON; ALETHA GARSON; JIMMY RAY GARSON; MOLLY JANE GARSON; SHAN BRIAN GARSON; and STRONG CREEK RANCH, INC., Appellees (Defendants).

          Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge.

          Representing Cindy A. Sharpe, George A. Logan, and Sybille Ranch, LLC: Mitchell H. Edwards of Nicholas & Tangeman, LLC, Laramie, Wyoming.

          Representing Judith Timchula, Trustee of the Judith Timchula Living Trust: M. Gregory Weisz of Pence and MacMillan, LLC, Cheyenne, Wyoming.

          Representing Strong Creek Ranch, Inc, Jack Garson, Aletha Garson, Jimmy Ray Garson, Molly Garson, and Shan Brian Garson: Donald P. Prehoda, Jr. and Aaron L. Tomisich of Prehoda, Edwards & Rampulla, LLC, Laramie, Wyoming. Argument by Mr. Prehoda.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          Boomgaarden, Justice.

         [¶1] Appellee, Judith Timchula, filed a complaint for establishment of a private road pursuant to Wyoming Statutes §§ 24-9-101 to -105.[1] With limited modification, the district court adopted the viewers and appraisers'[2] recommendations regarding the route, conditions and use restrictions, and damages. Appellants Cindy A. Sharpe, George A. Logan, and Sybille Ranch, LLC, appeal each ruling.[3] We affirm in part, reverse in part, and remand for further proceedings on damages.


         [¶2] Appellants raise three issues, which we rephrase as:

I. Did the court err in selecting "the most reasonable and convenient route" for the private road?
II. Did the court err when it did not impose use restrictions on the private road?
III. Did the court err in its award of damages?

         The Garsons focus on the route location and take no position on the remaining issues. Ms. Timchula focuses on use restrictions. She is willing to accept alternative routes and pay the damages ordered.


         The route

         [¶3] Ms. Timchula owns all of Section 21, Township 19 North, Range 72 West, 6th P.M., Albany County. In May 2017, she filed a complaint in the district court pursuant to Wyoming Statutes §§ 24-9-101 to -105 claiming that her property is without legally enforceable access. She proposed the court designate a route along an existing, unnamed, two-track road that is already subject to easements. That route would have crossed Sections 15 and 16. Ms. Sharpe and Mr. Logan own the southern portion, and Sybille Ranch, Inc. owns the northern portion of Section 15.[4] The State of Wyoming owns Section 16.

         [¶4] Ms. Sharpe and Mr. Logan answered the complaint and proposed an alternate route across "Gates Creek Ranch Road," a two-track road crossing Section 22. Jimmy Ray, Molly Jane, and Shan Brian Garson own the northern half of Section 22, while Jack and Aletha Garson own the southern half. Various parties have easements across Gates Creek Ranch Road.

         [¶5] In January 2018, the court held a "necessity" hearing and determined that Ms. Timchula satisfied the statutory requirements for establishment of a private road and that access to her property was necessary. That determination is not at issue. After the hearing, Ms. Timchula amended her complaint to propose a modified route located exclusively on Section 15 to avoid crossing the State's land on Section 16.

         [¶6] With input from the parties, the court appointed three viewers-Jim Hastings, Shane Cross, and Don Willis-to assess the proposed routes and submit recommendations to the court regarding the most "reasonable and convenient" route for the private road, any conditions and restrictions that should be placed on the private road, and damages. After receiving instructions from the court, including an instruction that the viewers were not legally permitted to propose a route that connected to or traversed State land, the viewers met on the lands in question in August 2018, to view Ms. Timchula's property and the proposed access routes. All persons interested in the case were invited to attend the site visit.

         [¶7] The court provided the viewers the following map of the proposed routes with their instructions:[5]

         (Image Omitted)

         [¶8] In their report, the viewers unanimously recommended the court designate a modified route-wherein the road would enter Ms. Sharpe and Mr. Logan's property at the same point proposed by Ms. Timchula. Then the route would course southwest on an existing road to the boundary line between Sections 15 and 16, as Ms. Timchula proposed. At that point, the route would turn south and course through Section 15, but would stop at the corner of Sections 15, 16, 21, and 22, unlike the route Ms. Timchula proposed. The route would then enter the extreme northwest portion of the Garson property on Section 22 and turn immediately west into Ms. Timchula's property. The viewers recommended this route because it provided the most convenient access to a public road and would require the least new construction and maintenance.

         [¶9] After a bench trial, the court determined that the Viewers' Route represented the "most reasonable and convenient" route for the private road. The court explained that it evaluated the testimony of the viewers and the parties, some of which conflicted. It found the viewers credible and more reliable than the interested landowners. In the court's assessment, all of the routes could require construction and repair work or pose a risk of difficult travel at times due to weather and moisture conditions. It found no evidence to warrant it rejecting or modifying the Viewers' Route. It also found that route to be the most consistent with the private road statutes, which state that access "shall be along section and boundary lines whenever practical."

         Conditions and use restrictions

         [¶10] In the district court proceedings, Appellants argued that Ms. Timchula should be restricted from using the private road for subdivision of her property and she should be required to use the road for agricultural and residential purposes only. The viewers did not recommend these restrictions. At trial, they explained why. Mr. Hastings noted "that none of the other users of that right-of-way ha[d] the same type of restrictions." He and the other viewers felt such restrictions might diminish Ms. Timchula's property value without due process. Mr. Cross noted that Ms. Timchula requested "use of her property not be restricted to simply agriculture or residential" purposes. He expressed concern that the restrictions would limit Ms. Timchula's ability to use some of her land. Mr. Willis testified that he felt it was not up to them as viewers, or him as a lay person without any legal training, to take away Ms. Timchula's property rights.

         [¶11] The court declined to impose the requested restrictions for multiple reasons. First, the defendants did not offer "sufficient evidence as to why such conditions should be imposed" or which "cause[d] the Court to deem" it appropriate to impose such conditions and restrictions. Second, the defendants' property was not subject to such conditions and restrictions. Third, Ms. Sharpe and Mr. Logan's property and the Garson's property were "already subject to unconditional ingress/egress easements for the benefit of Antelope [Springs Land and Cattle Company], Rollston M. Frangopoulus, Trustee of the Gates Creek Trust, the John Roger Dodds Trust, and the Carol A. McKee Living Trust." Those easements did not contain the restrictions the defendants sought to impose on Ms. Timchula. Finally, "one or more" viewers testified that they considered the defendants' requests and found them inappropriate.


         [¶12] The district court instructed the viewers on how to assess damages. The instruction quoted the damages provision from the private road statutes and addressed how to assess the fair market value of property. The viewers recommended that Ms. Timchula pay $25 per rod[6] to Sybille Ranch, LLC, $25 per rod to Ms. Sharpe and Mr. Logan, and $500 total to Jimmy Ray, Molly Jane, and Shan Brian Garson. In their report, the viewers explained that to assess damages, they "evaluated 25 sales in Albany County and neighboring counties" and determined that the fair market value of the property over which the private road would cross was $1, 000 per acre. They reviewed two easements which sold for $4.50[7]and $110 per rod and "found six easements for non-exclusive 30-foot private roads that sold for $25 per rod." "D[ue] to the wide range of values in nearby properties" and easements, they decided to rely on "arms['] length neg[otiations] by parties negotiating similar easements in [Albany] County" to determine damages.

         [¶13] At trial, Ms. Timchula's counsel expressed concern that the viewers may not have properly assessed damages and asked each viewer to explain how they had arrived at the recommended damages. Their testimony generally established that the baseline amount that the State charges for an easement over its land is $25 per rod.

         [¶14] Mr. Hastings explained that the damages recommendation was "a complex decision." They viewed many property sales. "[I]t seemed reasonable to actually look at what had been paid for similar types of easements and it was easiest from that standpoint to draw from the information" the State supplied to them. They considered the "before and after" test to establish damages but did not report such values. They could not agree on those values and ultimately felt that it was more appropriate to use the $25 per rod figure.

         [¶15] Mr. Cross initially testified that the viewers used the "before and after" analysis, noting that the court's instructions identified the "before and after" analysis, as well as an arm's length negotiation instruction. When the viewers talked with the parties' counsel, one side told them they should use the "before and after" approach while the other said they should use both. Mr. Cross thought the "before and after" analysis was a component of the $25 per rod analysis.

         [¶16] Mr. Willis testified that they reached the $25 per rod amount a couple of ways. When asked whether they utilized a "before and after" analysis, he responded that he "didn't know where you would come up with a figure for before and after on the pieces of the properties that were already -- had easements and traffic on them." He thought that damages could have been a little higher for the new road that they proposed along the west side of Section 16, but they could not find anything to justify a higher amount. The State easements in Albany County within the last 15 to 20 years ...

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