September 18, 1956
Error to the District Court, Hot Springs County, Wyoming, Honorable Donald J. Harkins, Judge.
For the plaintiffs in error the cause was submitted upon the brief of O'Mahoney Gorrell of Worland, Wyoming, and oral argument by Mr. Frank B. O'Mahoney.
For the defendant in error the cause was submitted upon the brief and also oral argument of Chester Ingle, County and Prosecuting Attorney of Hot Springs County, Thermopolis, Wyoming.
Heard before Blume, C.J. and Harnsberger and Parker, J.J.
In the several cases passed upon by this Supreme Court, the important decisions have arisen in collateral attacks upon the proceedings. From the decision in Miller v. Hagie, 59 Wyo. 383, 140 P.2d 746, it would appear that irregularities which occur in the eminent domain proceedings are matters to be litigated upon appeal to the District Court. If such be the case then the District Court possesses the power to set aside the proceeding of the condemner even when the irregularities are not jurisdictional in character. Plaintiffs in error are entitled to be compensated for the damage resulting by the inability to make full use of all the land not taken. The cost of restoring the remaining land to usable condition is an element to be considered. Amer. Jur. Vol. 18, 910. The Board of County Commissioners themselves placed the latest market value upon the lands in the immediate vicinity, and any award to the Harris interest should have been according to those values. 18 A.J. 875. From the beginning the proceedings inaugurated by defendant in error were faulty, without jurisdiction and fraught with irregularities. It is felt that such proceedings as were conducted cannot receive the approval of the courts. If these proceedings as pursued are found to satisfy the requirements of the legislature, see Rocky Mountain Sheep Co. v. Board of County Commissioners, 269 P.2d 314, then there will be no safeguards to protect the landowner from arbitrary proceedings in eminent domain.POINTS OF COUNSEL FOR DEFENDANT IN ERROR
What is an error or irregularity as distinguished from an illegality, a mandatory or jurisdictional requirement, is not always easy to determine. It depends somewhat on the importance which is by statute attached to a particular step in the whole scheme of proceedings. Generally speaking, provisions only which are enacted for the special benefit of interested parties should in a proceeding of this kind be construed as mandatory and jurisdictional. North Laramie Land Co. v. Hoffman, (Wyo.) 219 P. 561. It is contended that, as it does not appear that a copy of the published notice was sent by registered mail to the defendant as directed by this statute it is contended that, as it does not appear that a copy of the published notice was sent by registered mail to the defendant as directed by this statute, the board of county commissioners of Natrona County obtained no jurisdiction to establish the road as against the defendant. It is to be observed that, before the legislatve session of 1913, the law quoted above made no provision whatsoever for mailing a notice to anyone claiming an interest in land over which a proposed road was to be located. Full compliance with a statute which requires publication or posting of the notices of the intended location of a highway only has been held, by the overwhelming weight of authority, to confer jurisdiction to act upon the body vested with authority to lay out the road. Cottman v. Lochner, (Wyo.) 278 P. 71. Ratification may be express or implied. 15 C.J. 554; 44 C.J. 122. It relates back to and is in effect the equivalent of previous authorization. 44 C.J. 122. It has been stated that ratification of an unwarranted exercise of authority by an agent of a municipal body requires, if strictly applied, that the officer vested with the power approve the action of the subordinate, but this may be either express or implied from the acts, words or conduct of the body empowered to act which reasonably shows the intention. George W. Condon Co. v. Board of County Commissioners, (Wyo.) 103 P.2d 401. Defects and irregularities in proceedings for the assessment of compensation may be waived by failing to present timely objections thereto. 29 C.J.S. 1347. Where jurisdiction has once attached, subsequent irregularities do not, as a rule, invalidate the proceedings unless prejudice has resulted to the party complaining 39 C.J.S. 1009.
This is an appeal by Dora Belle Harris, individually and as administratrix of the estate of Isaac Harris, deceased, and Irma Reed and Beula Spence, plaintiffs in error, from an order of the district court of Hot Springs county, Wyoming, relating to a public road which partially runs through the lands of the plaintiffs in error. On January 10, 1956, plaintiffs in error, through their attorney, duly filed their brief on appeal, but failed to file an abstract of the record required by rule 37 of this court. On June 8, 1956, a motion to dismiss the proceeding in error was thereupon filed by the respondent on account of such failure. Counsel for plaintiffs in error thereupon and on July 12, 1956, filed a motion to permit the abstract of the record to be filed now and gave his sickness as an excuse for not filing it on time, although he admits that he had a partner to whom the matter might have been referred. Since counsel for plaintiffs in error was able to prepare his brief and look up the authorities cited by him, we cannot, we think, accept the excuse offered for not filing the abstract of the record in time and must sustain the motion to dismiss.
Moreover an examination of the record herein has convinced us that no injustice will result from dismissing the appeal. The board of commissioners of Hot Springs county, Wyoming, on May 6, 1953, adopted a resolution to establish the so-called Lucerne-Black Mountain road, giving the course and its termini, stating the public interest requires the establishment of the road which in part runs through the land of Isaac Harris. A notice by the county clerk of the location of the road was duly published for three consecutive weeks in a newspaper of the county, the notice giving the location of the road with its course and termini, calling on landowners to file their claims for damages and stating the location and width of the road were shown on the map in the office of the county clerk of Hot Springs county. The map sought to be introduced in evidence, but for some reason which we do not understand, it was not admitted. It shows the width of the road to be 150 feet. The county clerk of Hot Springs county testified regarding it as follows: "It has been with me since the proposed road — since they brought it in to be presented so the people could come in and make their objections." On May 25, 1953, Isaac Harris filed his claim for damages in the sum of $13,000. Appraisers were duly appointed who awarded Harris damages in the sum of $450. Thereupon on August 6, 1953, Harris appealed from the amount of the award, filing a bond in that connection. Thereafter Isaac Harris died and on motion Dora Belle Harris, individually and as administratrix of the estate of Isaac Harris, deceased, Irma Reed and Beula Spence, were substituted as parties in the case. In the meantime the road was being constructed, and judging from the record, at great expense. By May 1954, as the record shows, 62 1/2% of the road had been constructed and as stated on the oral hearing of this case, nearly all of it or substantially all of it had been constructed by the end of that year. On January 25, 1955, Dora Belle Harris filed her so-called specifications of error in connection with the appeal to the district court, and then for the first time set forth that the proceedings of the board of county commisioners were so defective as to amount to lack of jurisdiction to establish the road. The district court held the establishment of the road to be necessary; that the proceedings were valid, and allowed the plaintiff in error damages in the amount of $1453, which counsel for defendant in error contends is too much, and which, in view of the conflicting testimony, is, we think, sufficiently liberal. From this judgment the plaintiffs in error have appealed to this court.
There are a number of inexcusable irregularities in the establishment of the road. But by filing a claim for damages all irregularities were waived. 39 C.J.S. § 76, p. 1009; 29 C.J.S. § 314, p. 1347. Plaintiffs in error claim, as already stated, that the resolution establishing the road did not state the width of it and that this is jurisdictional. We are cited to Latourette v. County Court of Clackamas County, 121 Or. 323, 255 P. 330, where it was held that the width of the road should at least be shown on a map on file. The notice of the location of the road referred to the width of the road, in that it referred to a map, which, though apparently not marked as filed, was actually on file in the office of the county clerk of Hot Springs county. Assuming that the resolution of the board of commissioners should have stated the width of the road, and that what was actually done was irregular, we doubt that in view of the facts herein, the board was without jurisdiction. Moreover the claim of want of jurisdiction was not made for about 20 months after the adoption of the resolution to establish the road. In the meantime the county and State Highway Department expended large amounts of money and the construction of the road is completed. It would seem to be clear that under these circumstances the plaintiffs in error should be held to have acquiesced in the construction of the road and are confined to the recovery of damages. This is substantially the holding in Ward v. City of Monrovia, Cal.App., 100 P.2d 836, 841, 16 Cal.2d 815, 108 P.2d 425; Dickinson v. Brown-Crummer Inv. Co., CCA Okla., 137 F.2d 615; Vinson v. Oklahoma City, 179 Okla. 590, 66 P.2d 933; City of Seminole v. Fields, 172 Okla. 167, 43 P.2d 64; St. Louis S.F.R. Co. Mann, 79 Okla. 160, 192 P. 231, and numerous cases cited. See also Decennial Digest under Eminent Domain § 280. No good purpose would be subserved by compelling the county to again commence proper condemnation proceedings, especially in view of the finding of the court that the road is necessary.
The appeal is dismissed.