Barlow Ranch, Limited Partnership v. Greencore Pipeline Company LLC ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 34OCTOBER TERM, A.D. 2012
March 19, 2013
BARLOW RANCH, LIMITED
PARTNERSHIP,
Appellant,
(Defendant),
v.
S-12-0038
GREENCORE PIPELINE COMPANY
LLC,
Appellee
(Plaintiff).
GREENCORE PIPELINE COMPANY,
LLC,
Appellant
(Plaintiff),
S-12-0039
v.
BARLOW RANCH, LIMITED
PARTNERSHIP,
Appellee
(Defendant).
Appeal from the District Court of Campbell County
The Honorable Keith G. Kautz, Judge
Representing Barlow Ranch, Limited Partnership:
Dan B. Riggs, Mistee L. Elliott and Amanda K. Roberts of Lonabaugh and Riggs,
LLP, Sheridan, Wyoming. Argument by Mr. Riggs and Ms. Elliott.
Representing Greencore Pipeline Company, LLC:
Jon T. Dyre of Crowley Fleck, PLLP, Billings, Montana; Timothy M. Stubson of
Crowley Fleck, PLLP, Casper, Wyoming. Argument by Messrs. Dyre and
Stubson.
Before KITE, C.J., and GOLDEN*, HILL, VOIGT, and BURKE, JJ.
*Justice Golden retired effective September 30, 2012.
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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.
[¶1] Greencore Pipeline Company, LLC (Greencore) filed an action seeking to condemn
easements across property owned by Barlow Ranch, Limited Partnership (Barlow) for a
pipeline to transport carbon dioxide (CO2). The parties reached an agreement on the
terms of possession and scope of the easements but asked the district court to determine
the amount that would justly compensate Barlow for the partial taking of its property.
[¶2] During a two day bench trial, Barlow presented evidence of prices paid for other
comparable pipeline easements to show the fair market value of Greencore’s easement
and the compensation due for the partial taking. Greencore argued that Barlow was only
entitled to a percentage of fee value and comparable easement sales should not be
considered in determining the appropriate amount of compensation for the condemned
easement. The district court concluded Wyoming statutes allowed consideration of
comparable sales in determining just compensation, but the easements Barlow presented
were not sufficiently comparable to be reliable evidence of the fair market value of
Greencore’s easement. Instead, it awarded compensation based upon the average of the
amounts Greencore had paid other landowners for easements for its CO2 pipeline.
Barlow appealed the district court’s order and Greencore cross appealed.
[¶3] In its appeal, Barlow claims the district court erred in concluding the easements it
relied upon were not valid comparables. Barlow also asserts the district court erred in
concluding annual payments for a condemned easement are not permissible under
Wyoming law. In its cross appeal, Greencore asserts the district court erred in
considering evidence of comparable easements in arriving at a damages award far in
excess of the fair market value of the land on which the easement is located. Greencore
further asserts the district court erred in not granting it the right to abandon the pipeline in
place.
[¶4] Addressing the issues in a different order than the parties present them, we conclude
the district court properly ruled that it could consider evidence of comparable easements
in determining just compensation. The court, however, erred in concluding Barlow’s
proffered easements were not the result of arms’ length transactions or sufficiently
comparable, while the other Greencore easements were. The district court also erred by
concluding annual payments are not allowed under Wyoming law, but correctly ruled that
the issue of whether Greencore may abandon the pipeline in place is not properly before
the court at this time. Affirmed in part and reversed and remanded in part.
ISSUES
[¶5] The issues presented in these consolidated cases are:
1
A. Did the district court err by concluding comparable easements were proper
evidence to establish the value of a partial taking of real property for a pipeline
easement?
B. Did the district court err when it ruled the easements offered by Barlow as
comparables were not the result of arms’ length transactions?
C. Did the district court err in concluding the pipeline easements offered by
Barlow were not comparable to the Greencore easement pursuant to Wyo. Stat. § 1-26-
704(a)(iii)(B) and (C) (LexisNexis 2011)?
D. Did the district court err in concluding annual payments for a condemned
easement are not permissible under Wyoming law?
E. Did the district court err when it refused to rule that Greencore was
entitled to abandon its pipeline in place when its need for it terminates?
FACTS
[¶6] Greencore is a Delaware limited liability company with its principal place of
business in Texas. It planned to build a twenty inch pipeline to transport CO2 from the
Lost Cabin Gas Plant in Fremont County, Wyoming to the Bell Creek Oil Field in
southeastern Montana. To construct and maintain the pipeline, Greencore needed a 100
foot construction and fifty foot permanent easement across property located in Campbell
County belonging to Barlow and others.
[¶7] Greencore was able to reach agreements with sixty-three other landowners to
purchase easements on their property, but could not agree with Barlow, Mitchel M.
Maycock and Dixie Lea Maycock, Trustees of the Mitchel M. Maycock Revocable Trust,
Mitchel M. Maycock and Dixie Lea Maycock, Trustees of the Dixie Lea Maycock
Revocable Trust, Joseph C. Maycock (collectively “Maycocks”) or Brown-Kennedy
Ranch Co. (B-K). Therefore, Greencore filed a complaint against those parties seeking
to have the portion of their properties across which the pipeline would run condemned
pursuant to Wyo. Stat. Ann. § 1-26-814 (LexisNexis 2011).1
1
Section 1-26-814 states:
Right of eminent domain granted; petroleum or other pipeline companies; purposes.
Whenever any utility or any petroleum or other pipeline company, authorized to do
business in this state, has not acquired by gift or purchase any land, real estate or claim
required for the construction, maintenance and operation of their facilities and
appurtenances or which may be affected by any operation connected with the
2
[¶8] In its complaint, Greencore asked the district court to set a hearing to determine its
right to condemn the easements, enter an order permitting it to have possession and use of
the property during the condemnation proceedings and determine an amount to be paid to
Barlow, Maycocks and B-K for the condemned property. In accordance with Wyo. Stat.
Ann. § 1-26-513(a) (LexisNexis 2011),2 Greencore also deposited with the district court
$136,323.83, which amount reflected the combined total of its final purchase offers to
Barlow, Maycocks and B-K.
[¶9] After Greencore filed its complaint, the parties entered into stipulations agreeing
that Greencore could properly obtain the easements by condemnation and granting
easements for the construction, operation and maintenance of the pipeline. The district
court entered orders pursuant to the parties’ stipulations. The parties’ agreements left
unresolved two issues: 1) the amount of compensation due the landowners for the taking,
and 2) whether Greencore was required to remove the pipeline or could abandon it in
place when it was no longer in use. The district court set those matters for trial. Prior to
trial, Greencore and B-K entered into a settlement agreement and the district court
dismissed B-K with prejudice pursuant to a stipulated motion.
[¶10] Also prior to trial, Barlow and Maycocks filed a designation of expert witnesses in
which they identified Robert Zabel, a certified general real estate appraiser, as one of
their expert witnesses. They attached to the designation a summary appraisal report Mr.
Zabel prepared in which he calculated a fair market value for the easement. The report
indicates Mr. Zabel relied in part on contracts Barlow and Maycocks negotiated for other
easements of comparable type, size and location on the same or similar property. He
stated that the use of comparable sales was a generally accepted appraisal technique. Mr.
Zabel concluded the fair market value of the Greencore easement was an initial payment
construction or maintenance of the same, the utility or company has the right of eminent
domain and may condemn the easement required by the utility or company.
2
Section 1-26-513(a) provides:
(a) At the time of commencing an eminent domain proceeding the condemnor shall
deposit in court an amount equal to the condemnor’s last offer of settlement prior to the
action. Upon motion of the condemnee and following a hearing if the amount originally
deposited is clearly inadequate, the court shall order the condemnor to make an additional
deposit. The clerk of court shall invest the deposit in any legal interest bearing
investment and interest earnings shall accrue to the account of the condemnor.
Greencore offered Barlow $42,603.66, Maycocks $23,702.09 and B-K $70,018.08.
3
of $25.00 per rod3 and an annual payment of $3.00 per rod with an annual consumer price
index (CPI) adjustment. 4
[¶11] Greencore subsequently filed a motion for partial summary judgment asking the
district court to rule as a matter of law that the only measure of damages in a
condemnation action for the partial taking of property is the difference between the value
of the property before and after the taking and that evidence of prices paid for
comparable easements was not admissible to show fair market value in the context of
partial takings. Alternatively, Greencore asked for a ruling that Barlow and Maycocks
were entitled only to a lump sum payment, not annual payments, and the lump sum
payment for an easement could not exceed the fair market value of a fee simple interest in
the property covered by the easement. Greencore attached to its summary judgment
memorandum the affidavit of Neal Hilston, a certified general real estate appraiser, in
which he opined that the fair market value for a fee simple interest in the property being
acquired for Greencore’s pipeline easement was $325 per acre.
[¶12] On the first day of trial, the district court denied Greencore’s summary judgment
motion, concluding that evidence of comparable sales was admissible but finding that
issues of material fact existed as to whether the other transactions were arms’ length
and/or comparable to the Greencore easement. The trial proceeded, and the district court
found the evidence Barlow and Maycock presented concerning other easements did not
establish that they were truly arms’ length or comparable to the Greencore easement.
The district court concluded the evidence Greencore presented showing that it paid an
average of $50 per rod to other landowners for its CO2 pipeline easement, including a
similarly situated landowner west of the Barlow and Maycock properties, established the
value of Greencore’s interest. The district court found the difference in value of the
Barlow property before and after the taking to be $9,189.00 and concluded the value of
the interest Greencore obtained from Barlow computed at $50 per rod was $43,034.00.
[¶13] The district court also held that an annual payment could not form part of the just
compensation in a condemnation action because “Wyoming law anticipates a valuation at
a specific date, not an unknown valuation dependent on the life of a gas field or pipeline.”
The court further concluded there was no evidence showing adverse impact from
abandonment of the pipeline in place but that removal would result in additional surface
disturbance. The court stated no evidence was presented to address the reasonableness of
3
A rod is 16.5 linear feet.
4
The Bureau of Labor Statistic defines CPI as “a measure of the average change over time in the prices
paid by urban consumers for a market basket of consumer goods and services.”
http://www.bls.gov/cpi/cpifaq.htm#Question_1. S o m e o f the easement agreements tied the annual
adjustment to the percentage of increase or decrease in the average weekly earnings of Crude Petroleum
and Gas Production Workers between the last calendar year and the previous calendar year.
4
removing the pipeline once it is abandoned and it was unable to rule on that issue until
the pipeline is abandoned. The district court entered judgment consistent with its
findings and conclusions and ordered Greencore to pay Barlow $43,034.00. Barlow
appealed and Greencore cross appealed.
STANDARD OF REVIEW
[¶14] The district court conducted a bench trial in this case.
Following a bench trial, this Court reviews a district
court’s findings and conclusions using a clearly erroneous
standard for the factual findings and a de novo standard for
the conclusions of law. Piroschak v. Whelan, 2005 WY 26, ¶
7, 106 P.3d 887, 890 (Wyo.2005)[.]
The factual findings of a judge are not entitled to the
limited review afforded a jury verdict. While the
findings are presumptively correct, the appellate court
may examine all of the properly admissible evidence
in the record. Due regard is given to the opportunity of
the trial judge to assess the credibility of the witnesses,
and our review does not entail re-weighing disputed
evidence. Findings of fact will not be set aside unless
they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed.
Piroschak, ¶ 7, 106 P.3d at 890. Findings may not be set aside
because we would have reached a different result. Harber v.
Jensen, 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo.2004).
Further,
we assume that the evidence of the prevailing party
below is true and give that party every reasonable
inference that can fairly and reasonably be drawn from
it. We do not substitute ourselves for the trial court as
a finder of facts; instead, we defer to those findings
unless they are unsupported by the record or erroneous
as a matter of law.
Id. (quotation marks omitted) (some citations omitted).
5
Pennant Serv. Co. v. True Oil Co., LLC, 2011 WY 40, ¶ 7,
249 P.3d 698, 702–03 (Wyo.2011).
BJ Hough, LLC v. City of Cheyenne, 2012 WY 140, ¶ 8, 287 P.3d 761, 764-65 (Wyo.
2012) (some citations omitted). Statutory interpretation presents a question of law which
we review de novo. Sinclair v. City of Gillette, 2012 WY 19, ¶ 8, 270 P.3d 644, 646
(Wyo. 2012). An incorrect application of law can lead to errors in findings of ultimate
fact. See, e.g., Brown v. Arp and Hammond Hardware Corp., 2006 WY 107, ¶ 40, 141
P.3d 673, 685-86 (Wyo. 2006); Jackson Hole Mountain Resort Corp. v. Alpenhof Lodge
Assocs., 2005 WY 46, ¶ 17, 109 P.3d 555, 561 (Wyo. 2005).
DISCUSSION
1. Admissibility of Evidence of Comparable Easement Transactions
[¶15] We start with Greencore’s primary issue—whether, as a matter of law, evidence of
the prices paid for comparable easements is properly considered in determining the value
of a condemned pipeline easement. A ruling by this Court that evidence of comparable
easements is not admissible to establish the fair market value in partial takings cases
would also resolve completely Barlow’s issue with regard to the comparability of the
easements.
[¶16] Eminent domain proceedings are authorized by constitutional and statutory
provisions and governed procedurally by W.R.C.P. 71.1. The taking of private property
for public or private use without due or just compensation is constitutionally prohibited.
Wyo. Const. art. 1, §§ 32-33; U.S. Const. amend. V. The focus of the present case is on
how to properly determine due or just compensation.
[¶17] The applicable portions of the Eminent Domain Act state:
§ 1-26-701. Compensation standards.
(a) An owner of property or an interest in property taken by
eminent domain is entitled to compensation determined under
the standards prescribed by W.S. 1-26-701 through 1-26-713.
(b) Unless otherwise provided by law, the right to
compensation accrues upon the date of possession by the
condemnor.
(c) Except as specifically provided by W.S. 1-26-701
through 1-26-713, compensation, damages, or other relief to
which a person is otherwise entitled under this act or other
law are not affected, but duplication of payment is not
permitted.
6
§ 1-26-702. Compensation for taking.
(a) Except as provided in subsection (b) of this section, the
measure of compensation for a taking of property is its fair
market value determined under W.S. 1-26-704 as of the date
of valuation.
(b) If there is a partial taking of property, the measure of
compensation is the greater of the value of the property rights
taken or the amount by which the fair market value of the
entire property immediately before the taking exceeds the fair
market value of the remainder immediately after the taking.
....
§ 1-26-704. Fair market value defined.
(a) Except as provided in subsection (b) of this section:
(i) The fair market value of property for which there is
a relevant market is the price which would be agreed to by an
informed seller who is willing but not obligated to sell, and an
informed buyer who is willing but not obligated to buy;
(ii) The fair market value of property for which there is
no relevant market is its value as determined by any method
of valuation that is just and equitable;
(iii) The determination of fair market value shall use
generally accepted appraisal techniques and may include:
(A) The value determined by appraisal of the
property performed by a certified appraiser;
(B) The price paid for other comparable
easements or leases of comparable type, size and location on
the same or similar property;
(C) Values paid for transactions of comparable
type, size and location by other companies in arms length
transactions for comparable transactions on the same or
similar property.5
[¶18] In determining whether it is proper to consider evidence of comparable easement
sales in ascertaining fair market value of a condemned easement under the above
provisions, we apply our usual rules of statutory interpretation.
[Our] paramount consideration is to determine the
legislature’s intent, which must be ascertained initially and
5
Subsection (a)(iii) was added by legislative amendment in 2007.
7
primarily from the words used in the statute. We look first to
the plain and ordinary meaning of the words to determine if
the statute is ambiguous. A statute is clear and unambiguous
if its wording is such that reasonable persons are able to agree
on its meaning with consistency and predictability.
Conversely, a statute is ambiguous if it is found to be vague
or uncertain and subject to varying interpretations.
Michael’s Constr., Inc. v. Am. Nat’l Bank, 2012 WY 76, ¶ 12, 278 P.3d 701, 705 (Wyo.
2012), quoting Office of State Lands and Invs. v. Mule Shoe Ranch, Inc., 2011 WY 68, ¶
13, 252 P.3d 951, 954-55 (Wyo. 2011). The determination of whether a statute is clear or
ambiguous is a matter of law for the court. Id. When the language is clear, we give
effect to the ordinary and obvious meaning of the words employed by the legislature. Id.In ascertaining the meaning of a statutory provision, all statutes relating to the same
subject or having the same general purpose must be considered in pari materia and
construed in harmony. Id. We do not apply our rules of statutory construction unless a
statute is ambiguous. Vogel v. Onyx Acceptance Corp., 2011 WY 163, ¶ 24, 267 P.3d
1057, 1064 (Wyo. 2011).
[¶19] Greencore argues the district court misconstrued the statute when it applied the
definition of fair market value in § 1-26-704, which allows consideration of the prices
paid for comparable easements, to a partial taking. As reflected above, § 1-26-702(a)
provides that the measure of compensation for all takings of property under the Act is fair
market value as defined in § 1-26-704, “except as provided in subsection (b).” Subsection
(b) states the measure of compensation for a partial taking is the greater of the value of
the property taken or the diminution in value of the remaining property. Greencore reads
“except as provided in subsection (b)” to mean § 1-26-704’s definition of “fair market
value” applies only in cases of complete takings and not in the context of a partial taking.
[¶20] Considering all of the relevant statutes in pari materia as we are required to do, we
begin our analysis with § 1-26-701(a) which provides that “an owner of property or an
interest in property taken by eminent domain is entitled to compensation determined
under the standards prescribed by W.S. 1-26-701 through W.S. 1-26-713.” (Emphasis
added.) Pursuant to the clear language of that provision, compensation for a taking is
determined as prescribed by the entire act including § 1-26-704, which defines fair
market value. Nothing in the language of § 1-26-701, or for that matter § 1-26-704,
suggests that the definition of fair market value found in the Act applies only in the
context of complete takings and not to partial takings.
[¶21] Moving to the next provision, § 1-26-702(a) plainly states that compensation “for a
taking of property” is its fair market value as determined under § 1-26-704, “except as
provided in subsection (b).” Again, the language of § 1-26-702(a) does not suggest it
applies only to complete takings; rather, it plainly refers to “a taking of property.” Had
8
the legislature intended subsection (a) to apply only to complete takings, we presume it
would have said so. See Morris v. CMS Oil and Gas Co., 2010 WY 37, ¶ 28, 227 P.3d
325, 333 (Wyo. 2010) (stating “the omission of words from a statute is considered to be
an intentional act by the legislature and we will not read words into a statute when the
legislature has chosen not to include them.”).
[¶22] Section 1-26-702(b) provides that if there is a partial taking, the measure of
compensation is either the value of the property rights taken or the amount by which the
fair market value of the entire property is reduced by the taking, whichever is greater.
Nothing in that language suggests the legislature intended the definition of fair market
value found in § 1-26-704 to be inapplicable in the case of a partial taking. In fact, the
legislature’s use of the term “fair market value” in subsection (b) suggests the contrary.
[¶23] What distinguishes partial takings, and thus explains the phrase “except as
provided in subsection (b) of this section”, is that there are two alternative ways of
figuring compensation when there is a partial taking—the value of what is taken or the
decreased value of what remains after the taking. As stated in § 1-26-702(b), the greater
of those two amounts is the measure of compensation. Reading subsection (a) together
with subsection (b) in this way gives both provisions meaning.
[¶24] Reading the provisions this way also gives recognition to the fact that in some
cases a partial taking may not reduce the value of the remaining property, at least
according to some generally accepted appraisal techniques. By offering an alternative
method for measuring just compensation when there is a partial taking which does not
result in a reduction in value of the remaining property, the legislature assured a property
owner would at least receive compensation for the value of the land taken. See Uniform
Laws Annotated, Eminent Domain Code, § 1002, 13 U.L.A. 89, comment (2002). In
either case, however, the legislature provided only one method for determining value and
that method is found in §1-26-704.
[¶25] Were we to accept Greencore’s argument that § 1-26-704 does not apply to partial
takings, the terms “value” and “fair market value” in subsection (b) would be left
undefined. If fair market value is determined in accordance with § 1-26-704 only in the
case of a complete taking, then how are “value” and “fair market value” determined in
the case of a partial taking? Greencore provides no answer and we can conceive of no
reason the legislature would provide a method for determining value in one situation and
not the other.
[¶26] Greencore also contends the phrase “value of the property rights taken” in § 1-26-
702(b) means something other than fair market value. “Value” is defined as “1: a fair
return or equivalent in money, goods, or services for something exchanged; 2: the
monetary worth of a thing: MARKET PRICE.” Merriam-Webster’s Dictionary 547
(New Edition 2005). Giving the word “value” its plain and ordinary meaning, we are
9
persuaded the legislature intended it to mean fair market value. Again, ascribing a
different meaning to the word “value” as it is used in § 1-26-702(b) would require us to
conclude the legislature intended § 1-26-704’s definition of fair market value to be used
to determine value when an entire parcel is taken, but gave no guidance for determining
“value” when only part of a parcel is taken. We will not interpret statutory language to
reach an absurd result. Mule Shoe, ¶ 19, 252 P.3d at 956. Interpreting § 1-26-702 as
Greencore advocates would do just that.
[¶27] Greencore’s interpretation also raises questions concerning the legislature’s
amendment to § 1-26-704 to add subsections (a)(iii)(A), (B) and (C). The new provisions
require the use of generally accepted appraisal techniques in determining fair market
value and allow consideration of various factors, including “the price paid for other
comparable easements . . . of comparable type, size and location on the same or similar
property.” Section 1-26-704(a)(iii)(B). Nothing in the language of the amendment
suggests that it applies only in the context of complete takings and not to partial takings
and we can discern no reason the legislature would have intended the amendment to
apply only to complete takings. Why, for example, would it require the use of generally
accepted appraisal techniques to determine the value of a property in a complete taking
but not a partial taking? If it intended to allow consideration of the price paid for
comparable easements in the case of a complete taking, what possible rationale would
there be for not allowing consideration of the same evidence when only part of parcel is
taken? If the legislature intended the amendment to apply only to complete takings, how
did it intend the value to be determined when part of a property is taken? Greencore
provides no answers to these questions. We conclude § 1-26-704’s definition of fair
market value applies to both complete and partial takings.
[¶28] I n deciding the legislature intended fair market value to be the measure of
compensation whether all or only part of a property is taken, we note that we have found
no case, and Greencore has pointed us to none, in which the value of condemned property
has been measured other than by market value. Although the terminology varies (the
measure is sometimes stated as “fair market value,” “cash market value,” “fair cash
market value,” or “reasonable market value”), market value appears to be the most
frequently used standard for measuring just compensation, regardless of the label.
Coronado Oil Co. v. Grieves, 642 P.2d 423, 433 (Wyo. 1982).
[¶29] Even if we were to conclude the statutory language was ambiguous, we would
reach the same conclusion as to the legislature’s intent using our accepted rules of
statutory construction. Those rules include consideration of the “mischief the statute was
intended to cure, the historical setting surrounding its enactment, the public policy of the
state, the conclusions of law, and other prior and contemporaneous facts and
circumstances.” Vogel, ¶ 24, 267 P.3d at 1064.
10
[¶30] The rationale for adopting the Eminent Domain Act and subsequent amendments
has been stated as follows:
Impetus for the extensive changes came from increased use of
eminent domain proceedings by public utilities and energy
related industries, a void in the Wyoming eminent domain
law perceived by landowners as allowing abuse of eminent
domain by nongovernmental entities, and accelerating market
values of land, making one-time payments for compensation
less satisfactory.
M. Micheli and M. Smith, The More Things Change, the More Things Stay the Same: A
Practitioner’s Guide to Recent Changes to Wyoming’s Eminent Domain Act, 8 Land &
Water L.Rev. No. 1, (2008), quoting R. Lang, Comment, Wyoming Eminent Domain Act:
Comment on the Act and Rule 71.1 of the Wyoming Rules of Civil Procedure, 18 Land &
Water L.Rev. 739, 739 (1983). Additionally, by adopting the Eminent Domain Act, the
legislature obviously intended to cure the mischief it perceived had resulted when just
compensation for condemned property was measured using only the before and after
value of the remaining property. See generally, L.U. Sheep Co. v. Bd. of County
Comm’rs of the County of Hot Springs, 790 P.2d 663 (Wyo. 1990); Section 1-26-702.
[¶31] At the time the Eminent Domain Act was adopted, there existed a number of court
decisions addressing the type of evidence that should be considered in determining just
compensation in condemnation actions. As these cases demonstrate, the law in Wyoming
has long been that evidence of sales of property comparable to the condemned property is
admissible to establish value. In State Highway Comm’n v. McNiff, 395 P.2d 29 (Wyo.
1964), this Court considered whether the district court erred in admitting evidence of
sales of subdivided property within city limits to demonstrate the fair market value of
condemned property which was outside the city and not subdivided. The Court
concluded the evidence was properly admitted. Id. at 31. In Routh v. State Highway
Comm’n, 402 P.2d 706 (Wyo. 1965), this Court reiterated the rule that evidence of sales
of similar property in the vicinity of condemned property is admissible to prove the value
of the property taken. Id. at 709.
[¶32] The Court in State Highway Comm’n v. Joe Miller Land Co., 467 P.2d 450 (Wyo.
1970), concluded the district court properly excluded evidence of the sale of allegedly
comparable property because an adequate foundation had not been laid for its admission.
Id. at 454. Implicit in the Court’s holding, however, is that evidence of comparable sales
is admissible when a proper foundation is laid. Accordingly, in Reed v. Wadsworth, 553
P.2d 1024 (Wyo. 1976), the Court upheld the admission of an appraisal based upon sales
of comparable land and reiterated that once a proper foundation is laid as to the similarity
of properties, courts “should consider all relevant evidence of market value, including
11
other sales of the same or similar property, which were transacted reasonably close in
time and distance and under comparable market conditions.” Id. at 1036.
[¶33] Although our case law makes clear that consideration of evidence of comparable
sales is appropriate in determining value in complete takings cases, the propriety of such
evidence in cases of partial takings was not as clear prior to the adoption of the Wyoming
Eminent Domain Act in 1981. Continental Pipe Line Co. v. Irwin Livestock Co., 625
P.2d 214 (Wyo. 1981), summarized a long line of cases dating back to 1934, reversed a
jury verdict that assessed damages based upon the price per rod and held the proper
measure of damages for a partial taking was the before and after value of the entire
parcel. Coronado, 642 P.2d 425, another case decided on the law that existed before the
adoption of the Eminent Domain Act, continued to apply the “before and after value of
the entire parcel” measure of damages. In Coronado, the Court reversed a jury award
based on “speculative” evidence intended to show the value of another easement in the
area because the award was not related to the before and after value of the entire parcel
and the proposed comparable easement did not reflect an arms’ length transaction. The
evidence in Continental and Coronado showed little change in the before and after
appraised values of the properties remaining after the takings.
[¶34] As originally enacted, the Eminent Domain Act included the current version of §
1-26-702(b) providing that, when there is a partial taking, the measure of compensation is
the greater of the value of the property rights taken or the amount by which the fair
market value of the entire property before exceeds the fair market value of the remainder
after the taking. The Act at that time defined fair market value as:
§ 1-26-704. Fair market value defined
(a) Except as provided in subsection (b) of this section:
(i) The fair market value of property for which there is a
relevant market is the price which would be agreed to by an
informed seller who is willing but not obligated to sell, and an
informed buyer who is willing but not obligated to buy;
(ii) The fair market value of property for which there is
no relevant market is its value as determined by any method
of valuation that is just and equitable[.]6
(Supp. 1982).
6
In 2007, the legislature added language requiring use of generally accepted appraisal techniques in
determining fair market value and allowing consideration of the price of comparable easements in making
the determination. See Paragraph 17, supra.
12
[¶35] This Court interpreted these provisions of the Eminent Domain Act in the context
of a county petition to condemn an existing private road for public use in L.U. Sheep Co.,
790 P.2d 663. The question before us was whether the district court had properly
instructed the jury on the measure of damages for a partial taking under the Wyoming
Eminent Domain Act. Citing § 1-26-702(b), we held:
[T]he landowner whose property is the subject of a partial
taking is entitled to prove not only the difference between the
fair market value of the property prior to the taking and the
fair market value of the remainder after the taking, under the
“before and after rule,” but he is also entitled to prove the
value of the property rights taken. The measure of
compensation is the greater of those alternative amounts.
Id. at 671.
[¶36] Citing § 1-26-704(a)(ii), we further held “the landowner may prove the fair market
value of the property taken by any method of valuation that is just and equitable if there
is no relevant market establishing the value.” Id. at 671-72. We said the “effect of [the]
statutory scheme is to permit the landowner to establish the appropriate amount of just
compensation for a partial taking by any rational method so long as he is able to
introduce competent evidence to that end.” Id. at 672. The L.U. Sheep Co. and other
private landowners had attempted to prove damages from the public use of the road as
provided in Wyo. Stat. Ann. § 1-26-706 (Supp. 1982).7 Because the district court had
instructed the jury only on the “before and after rule” and not in accordance with the
language of § 1-26-702(b) allowing a landowner to alternatively prove “the value of the
property rights taken,” we reversed and remanded the case for a new trial. In doing so,
we gave full effect to the new statute and specifically rejected prior precedent, including
Coronado, to the extent it was inconsistent with the legislative policy established in the
Eminent Domain Act. L.U. Sheep Co., 790 P.2d at 669-72. We concluded the legislature
had “implicitly abrogated earlier contrary decisions in the law of eminent domain.” Id. at
669.
7
Prior to 2007, § 1-26-706 provided:
Compensation to reflect project as planned
(a) If there is a partial taking of property, the fair market value of the remainder
on the valuation date shall reflect increases or decreases in value caused by the proposed
project including:
(i) Impairment of the use of his other property caused by the condemnation; and
(ii) The increase in damage to his property by the general public which could
reasonably be expected to occur as a result of the proposed actions of the condemnor;
(iii) Any work to be performed under an agreement between the parties.
13
[¶37] The legislature has had twenty-three years since we applied § 1-26-704 to a partial
taking in L.U. Sheep Co. to change the statute if our interpretation was contrary to
legislative intent. “If this Court had incorrectly interpreted the legislature’s intent,
‘legislative action to clarify the statutes and correct the court’s decision would seem a
likely result.’” Crago v. Bd. of County Comm’rs of Crook County, 2007 WY 158, ¶ 17,
168 P.3d 845, 854 (Wyo. 2007), quoting Albertson’s, Inc. v. City of Sheridan, 2001 WY
98 ¶ 21, 33 P.3d 161 (Wyo. 2001). The fact that the legislature has not acted to clarify
the statute or correct our interpretation of it in L.U Sheep Co. is especially persuasive in
this case because the legislature conducted a thorough review of the eminent domain
statutes in 2007 and revised them without affecting our holding in L.U. Sheep Co.
[¶38] While the law regarding the measure of damages for partial takings in eminent
domain was developing, the same issue was being considered in the context of private
roads under Wyo. Stat. Ann. §§ 24-9-101 through 104 (LexisNexis 2011). Originally,
those statutes provided no guidance on how damages were to be determined in that
context. In Lindt v. Murray, 895 P.2d 459 (Wyo. 1995), this Court held the measure of
damages for taking a private road was the difference in value of the entire parcel before
and the remaining land after the taking. The statute was ultimately revised consistent
with the holding in Lindt. 8
[¶39] It was in that context that we discussed § 1-26-702(b) in Mayland v. Flitner, 2001
WY 69, 28 P.3d 838 (Wyo. 2001), an action brought to have the county commission
establish a private road under §§ 24-9-101 through 104. Greencore argues Mayland
effectively overruled L.U. Sheep Co. and mandates that only the before and after values
of the remaining lands may be considered to establish the value of a partial taking.
Greencore misreads, expands, and then misapplies this Court’s opinion in Mayland to
arrive at its conclusion that § 1-26-702(b) cannot result in a value that is greater than the
before and after value of the entire property.
[¶40] The appraisers appointed by the county to calculate the damages caused by the
taking of Mayland’s property were given instructions agreed to by the parties. Those
8
At the time Lindt was decided, § 24-9-101 of the private road statutes provided only that the appraisers
were “to assess damages” resulting from the road; it did not specify a formula for assessing those
damages. Consistent with Lindt, the legislature amended § 24-9-101 of the private road statutes in 2000
by adding the following subsection:
(j) In determining any damages to be suffered by the owner or owners of the lands
through which the access shall be provided, the viewers and appraisers shall appraise the
value of the property before and after the road is in place. Damages also may include
reasonable compensation for any improvements on the lands over which any private road
is to be granted which were not paid for and will be used by the applicant.
14
instructions were a “blend” of eminent domain law, even though the eminent domain
statutes did not apply to private roads. The instructions specifically included the
language of § 1-26-702(b), informing the commission that the measure of damages was
the “greater of the value of the property rights taken or the amount by which the fair
market value of the entire property immediately before the taking exceeds the fair market
value of the remainder immediately after the taking.” Mayland, ¶ 32, 28 P.3d at 849.
The parties presented evidence of the before and after values of the property taken for the
private road as well as other damages to the remaining property. Id., ¶ 40, 28 P.3d at 852.
The instructions did not require a specific finding of the before and after values of the
remaining property and neither the appraisers nor the county commissioners made such a
finding. Id., ¶¶ 43-44, 28 P.3d at 852. Instead, in arriving at their valuation, the
commissioners and appraisers relied on Mr. Mayland’s per acre value of the property
taken and damages he alleged were caused to the remaining property. Id., ¶ 42, 28 P.3d
at 853. Mr. Mayland appealed, claiming the appraisers’ valuation was invalid because it
did not set out the before and after values of the remaining property as required in Lindt.
Id., ¶ 32, 28 P.3d at 849.
[¶41] On appeal, this Court concluded that additional findings were not required, the
parties had stipulated to the instructions, and the record supported the commission’s
decision. Id., ¶¶ 42-44, 28 P.3d at 853. In the course of reaching this result, we
discussed whether the measure of compensation under § 1-26-702(b) was the same as or
different than the measure of damages under § 24-9-101(j) of the private road statutes.
We suggested the measure of compensation under the two provisions was essentially the
same; that is, the measure of compensation under both enactments is the difference
between the value of the property before the taking and the value of the property
remaining after the taking. We noted the “value of the property rights taken” in the
eminent domain statute logically should be encompassed in a properly calculated “before
and after” damage appraisal. Implicit in this discussion is the fact that the “value of the
property taken” would be greater only if an appraiser found little difference in the before
and after value of the entire property. In that situation, the compensation must be at least
the value of the property actually taken. Id., ¶¶ 36-38, 28 P.3d at 851-52. That was not
the case in Mayland as both appraisers included the value of the property taken in the
before and after values of the remaining property. So, in that context, there was no
difference between the measure of damages under eminent domain statutes and the
private road statutes. Id., ¶ 40, 28 P.3d at 852.
[¶42] In what was clearly dicta, this Court discussed the jurisprudence governing
damages in private road and eminent domain cases and suggested they were similar, and
that § 1-26-702(b), adopted in 1981, appeared to be an attempt by the legislature to
codify what some courts had called “severance damages.” We cited various authorities
for the proposition that the term “severance damages” included both the value of the land
taken and the diminution in value of the remaining land after the taking. Id., ¶¶ 36-37, 28
P.3d at 851. On its face, that is precisely what § 1-26-702(b) provides. The Court also
15
mentioned that applying different standards in private road cases and eminent domain
cases could raise constitutional questions and that all of the standards must be measured
by the state constitutional proviso that “due” and “just” compensation must be paid for
the taking of private property. Id., ¶ 40, 28 P.3d at 852; Art. 1, §§ 32, 33
[¶43] In considering the precedential value of Mayland, it is important to note the Court
was deciding the legality of a county commission’s private road decision pursuant to the
Wyoming Administrative Procedure Act. Among other administrative law issues, Mr.
Mayland contended the county commissioners’ order had failed to include findings of the
before and after value of his remaining property and, therefore, the order had to be
remanded for such a finding. The Court reviewed the record and concluded that
substantial evidence supported the commissioners’ conclusion regarding damages which
were more than the per acre value of the land taken for the private road. In concluding
that the omission of specific before and after numbers was not fatal to the commission’s
decision, the Court found that the instructions, which were agreed to by Mayland, did not
require such findings, and the viewers could make reasonable inferences regarding those
values from the evidence presented. Id., ¶¶ 42-43, 28 P.3d at 853. The county’s decision
was entered February 1, 2000, before the private road statutes were amended to provide a
statutory standard for damages, but after Lindt was decided which established a before
and after standard for valuation in private road cases. Id., ¶ 9, 28 P.3d at 842.
[¶44] A careful reading of Mayland confirms that it did not overrule L.U. Sheep Co. or
hold that damages in a partial taking case are limited to the difference between the before
and after values of the remaining property. There is nothing in Mayland which prohibits
the court from considering the value of the property taken as directed in § 1-26-702(b) or
from using the definition of fair market value under § 1-26-704 in valuing that
condemned property interest.
[¶45] The historical context in which the Eminent Domain Act and its 2007 amendments
were adopted establishes that § 1-26-704’s definition of fair market value applies in
partial takings cases. A review of the legislative history, including the floor debate on the
2007 amendments, shows the legislature specifically deliberated on the issue of whether
the price paid for comparable easements should be considered in determining fair market
value in partial takings cases and chose language stating that it should be. See Debate on
House Bill 0124, 59th Leg. Gen. Sess., January 24, 2007, afternoon session.
http://legisweb.state.wy.us/2007/audio/AudioMenu/AudioMenu.aspx. While the intent of
individual legislators cannot be considered as reflecting the intent of the legislature as a
whole, the fact that the matter was debated and the final legislation included the relevant
language does provide evidence of the legislative intent. See, e.g., Kennedy Oil v. Dep’t
of Revenue, 2008 WY 154, ¶¶ 21-22, 205 P.3d 999, 1006 (Wyo. 2008), citing Greenwalt
v. Ram Rest. Corp. of Wyo., 2003 WY 77, ¶ 52, 71 P.3d 717, 735 (Wyo. 2003). Thus,
whether we rely on the plain language of the statute or the rules of statutory construction,
we arrive at the same conclusion—the legislature intended the definition of fair market
16
value in § 1-26-704 to apply in all takings cases, including partial takings for pipeline
easements.
[¶46] We recognize there have been scholarly opinions that question the use of
comparable sales of other easements as an appropriate method of valuing easements in
condemnation cases. For example, Albert N. Allen’s article entitled The Appraisal of
Easements in Vol. 48, No. 6, Right of Way Magazine 40 (Nov/Dec. 2001) opines that
other easement transactions should not be used in appraising the impact on the burdened
property, contending that such data is unreliable because easements are not economic
units in and of themselves; easement sales introduce project influence into the before
valuation; easement transactions are complex making comparison difficult; and easement
transactions do not involve willing buyers and sellers. Id. at 44-45. It has also been
suggested that valuation of easements is an inherently difficult task and there is no truly
adequate means of accomplishing it. See Wayne C. Lusvardi, The Appraisal of
Easements Under the State Rule Separating Fact from Fiction, Right of Way Magazine,
15 (July/Aug 1996); Comment, Judicial Battles Between Pipeline Companies and
Landowners: It’s not Necessarily Who Wins But By How Much, 37 Hous. L. Rev. 125(2000). We must assume the legislature was fully aware of these concerns and yet chose
to allow the price paid for “comparable easements” to be considered in the determination
of fair market value.
[¶47] While § 1-26-704 may appear to contain unique statutory language, it is not
without some precedent. New Mexico statutes pertaining to the acquisition of natural gas
or petroleum gathering line easements specifically provide for the use of “the cost of
acquisition or any contract to acquire comparable easements” in calculating the market
value of the property taken for easements. N.M.S.A. § 70-3A-5(B). A New Mexico
court of appeals applied the statute and recognized the propriety of using evidence of
comparable easements to establish the value of a condemned pipeline easement in El
Paso Field Services Co. v. Montoya Sheep & Cattle Co., 77 P.3d 279, 281 (N.M. Ct.
App. 2003).
[¶48] Similarly, some other state courts allow the use of comparable easements in
valuing pipeline easements in condemnation cases. A Tennessee court of appeals held in
Water Authority of Dickson County v. Hooper, 2010 WL 1712968 (Tenn. Ct. App. 2010),
that evidence of sales of other easements was admissible for the purpose of determining a
condemned easement’s value, provided they were comparable. In Bauer v. Lavaca-
Navidad River Authority, 704 S.W.2d 107, 109-10 (Tex. Ct. App. 1985), a Texas court of
appeals held evidence of recent easement sales was admissible on the issue of the market
value of a condemned pipeline easement as long as the proposed comparables met three
tests: “(1) reasonable similarity; (2) not too remote in time and distance; and (3) not
compulsory, but free and open.” The use of comparable pipeline easement sales was also
identified as an appropriate method of determining value in Atkinson v. Seminole Pipeline
Co., 1998 WL 193363 (Tex. Ct. App. 1998) (not designated for publication). See also,
17
Texas Electric Service Co. v. Linebery, 327 S.W.2d 657, 665 (Tex. Ct. App. 1959)
(recognizing admissibility of other pipeline easement sales to establish market value of
easement taken provided they meet the test of comparability). In Exxon Pipeline Co. v.
Zwahr, 88 S.W.3d 623, 630 (Tex. 2002), the Texas Supreme Court recognized the Bauer
holding which allowed evidence of comparable pipeline easement sales in condemnation
valuation cases when a separate economic unit is established but held that such evidence
was not appropriate in that case because the Zwahrs’ expert improperly included
enhancement from the current project in his evaluation.
[¶49] Wyoming’s legislature grappled with the issue of how best to value condemned
easements when it amended the Eminent Domain Act in 2007 and made a specific policy
choice to allow the use of comparable sales of easements as a tool. Courts should not
“usurp the power of the legislature by deciding what should have been said.” Hede v.
Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo. 2005). It is not this Court’s
prerogative to ignore the legislature’s policy decision. See City of Cheyenne v. Bd. of
County Comm’rs of the County of Laramie, 2012 WY 156, ¶ 18, 290 P.3d 1057, 1062
(Wyo. 2012). We must, therefore, apply the statute as written.9
[¶50] The district court correctly concluded § 1-26-704 was applicable in determining
the value of Greencore’s easement. We consider next the question of whether the district
court erred when it rejected Barlow’s evidence of other pipeline sales to establish the fair
market value of the condemned interest.
2. Arms’ Length Nature and Comparability of Easement Transactions
[¶51] At trial, in an effort to prove the fair market value of the property taken for
Greencore’s easement, Barlow introduced evidence showing that between 2002 and 2011
it granted twelve other pipeline easements across its property to various companies. The
trial evidence also included easements granted by other landowners on property in the
area. Barlow claimed those easements were of comparable type, size and location to the
Greencore easement and were, therefore, evidence of the condemned easement’s fair
market value under § 1-26-704(a)(iii)(B) and (C), which allow use of the “price paid for
other comparable easements or leases of comparable type, size and location on the same
or similar property” and “values paid for transactions of comparable type, size and
location by other companies in arms length transactions for comparable transactions on
the same or similar property.” In addition, Greencore introduced evidence of what it had
paid for easements for its pipeline on other properties. The district court concluded the
other easements Barlow relied upon to show the fair market value of Greencore’s
easement were not arms’ length or comparable, but Greencore’s easements were
9
Greencore’s expert appraiser, Neal Hilston, recounted criticisms similar to those expressed by the
various articles in rejecting comparable easement sales as a means to calculate the fair market value of the
Greencore easement over Barlow’s property. For the same reasons that it would be improper for this
Court to ignore the legislative directive, it was improper for Mr. Hilston to do so.
18
comparable. Barlow asserts the district court misconstrued the relevant statutory
language in concluding its proposed easement transactions were not comparable, erred as
a matter of law by reading it as requiring other easements to be of the same “style” 10 as
Greencore’s easement and improperly determined the transactions were not arms’ length.
[¶52] Before we analyze the specific aspects of the district court’s decision, it is
worthwhile to reiterate the standard of review we set out in Paragraph 14, supra.
Because the district court held a bench trial, its factual findings are not disturbed unless
they are clearly erroneous. With regard to questions of law, however, our review is de
novo. As a preliminary matter we observe that the district court made some errors of law
and this seems to have tainted its factual findings.
A. Proffered Easements
[¶53] The district court concluded, for various reasons found throughout its decision, the
easements presented by Barlow were not arms’ length or sufficiently comparable. It did
not, however, individually evaluate many of the proposed comparables. We will address
the district court’s findings and conclusions regarding the easements it considered, but
note that each proposed easement transaction should have been evaluated to determine
whether it was appropriate evidence of fair market value.
[¶54] Barlow’s proffered easements can be summarized as:
Exh. Parties Date Size Initial Annual/ Additional
No. Payment Subsequent Information
Terms Payment
D-1 Barlow/ 4/17/02 100 foot $15 per $7.50 per rod Traverses
Thunder construction rod annual Barlow
Creek easement/ property
50 foot without
permanent connecting
easement to facilities
16 inch
pipeline
D-2 Barlow/ 7/25/02 100 foot $15 per $7.50 per rod Connects to
Bear Paw construction rod with CPI another
easement/50 adjustment pipeline on
foot Barlow’s
permanent property
easement
10
The district court misquoted § 1-26-704(a)(iii)(B) in its decision letter by replacing the word “size”
with “style.”
19
16 inch
pipeline
D-3 Barlow/ 2/17/03 100 foot $15 per $7.50 per rod Connects to
Optigas construction rod with CPI receipt point
easement/50 initial adjustment on Barlow
foot property
permanent
easement 16
inch pipeline
D-4 Barlow/ 12/6/04 75 foot $25 per Renewable at Connects
Western Gas construction rod for same rate with with facility
easement/30 initial 10 CPI adjustment on Barlow
foot year for additional property
permanent term 10 year terms
easement 12
inch pipeline
D-5 Barlow/ 3/21/05 100 foot $15 per $7.50 per rod Connects to
Bear Paw construction rod annual with receipt point
easement/ CPI adjustment on Barlow
50 foot property.
permanent
easement 16
inch pipeline
D-6 Barlow/ 8/1/05 80 foot $15 per $7.50 per rod Runs
Thunder construction rod annual parallel to
Creek 40 foot D-1
permanent
easement 16
inch pipeline
D-7 Barlow/ 9/8/05 75 foot $25 per Renewable at Runs
Western Gas construction rod for same rate with parallel to
30 foot initial 10 CPI adjustment D-4
permanent year for additional
12 inch term 10 year terms
pipeline
D-8 Barlow/ 5/23/07 permanent $50 per Barlow Connects to
Fort Union easement of rod plus testified that facility on
two 50 foot $20 per annual payment Barlow
strips of rod calculated with property
land two 24 consult- two site leases
inch ing fee and was $8.75
pipelines for loss with CPI
of adjustment.
20
grazing11
D-9 Barlow/ 5/23/07 75 foot $25 per Renewable at Connects to
Western Gas construction rod for same rate with facilities on
30 foot initial 10 CPI adjustment Barlow
permanent year for 10 year property
three 12 term terms
inch
pipelines
D-10 Barlow/ 2/27/08 75 foot $25 per Renewable at Connects to
Western Gas construction rod for same rate with facilities on
30 foot initial 10 CPI adjustment Barlow
permanent year for 10 year property
three 12 term terms
inch
pipelines
D-11 Barlow/ 3/18/09 135 foot $30 per Renewable at Connects to
Western Gas construction rod for $25 per rod facilities on
100 foot initial 10 with CPI Barlow
permanent year adjustment for property
two 24 inch terms 10 year terms
pipelines which
included
$5 per
rod for
loss of
grazing.
D-12 Barlow/ 4/20/11 60 foot $15 per $7.50 per rod Connects
Thunder construction rod annual with existing
Creek easement/30 CPI adjustment pipeline to
foot wells on
permanent Barlow
easement 3 property
inch pipeline
E-1 Maycock/ 6/15/99 75 foot $25 per Renewable for Traverses
E-2 CMS construction rod for 3 additional 15 Maycock
easement/50 initial 15 year terms at property,
foot year rates which paralleling
permanent term decrease by Greencore’s
24 inch $5.00 per rod easement
11
Mr. Barlow testified that on a “per pipeline” basis, the consideration was $25 per rod initially plus $10
per rod for consulting/grazing fees. He also stated that the annual payment was negotiated with other site
leases and “equated to $8.75 per rod per year for this pipeline.”
21
pipeline for each term for some
distance
E-3 Maycock/ 4/29/04 50 foot $25 per Renewable for Traverses
E-4 Western Gas construction rod for additional 10 Maycock
20 foot initial 10 year terms for property,
permanent year $25 per rod paralleling
easement 16 term with CPI E-1 and E-2
inch adjustment and
pipeline. Greencore’s
easement
E-5 Maycock/ 6/6/08 85 foot $25 per Renewable for Negotiated
E-6 Western Gas construction rod for additional 10 with a road
20 foot initial 10 year terms for easement
permanent year $25 per rod which
easement 16 term with CPI required an
inch pipeline adjustment annual
payment
F-4 Nisselius 11/18/08 70 foot $20 per $10 per rod Connects to
Ranch/ construction rod with CPI another
Optigas 30 foot adjustment pipeline
permanent every three
easement for years
a 6 inch
pipeline
F-5 Mankin/ 8/2/05 80 foot $15 per $7.50 per rod Pipeline
Thunder construction rod annual crosses
Creek 40 foot landowner’s
permanent property
easement
F-6 TLE Ranch/ 9/19/11 75 foot $25 per $5.00 per rod Connects
Thunder construction rod annual well on
Creek 25 foot landowners’
permanent property.
easement
plastic
pipeline
B. Arms’ Length
[¶55] The district court rejected Barlow’s proposed comparable easement transactions,
ruling that they were not the result of arms-length or pressure-free negotiations. The
district court individually discussed some, but not all, of the proffered easements in its
Findings of Fact and Conclusions of Law:
22
[17]b. The evidence that was presented on the
circumstances surrounding the price paid by the gas
companies for pipeline easements raises serious issues
regarding comparability. For example, easements D-7, D-8,
D-9, D-10 and D-11 granted by Barlow Ranch were for the
expansion of existing gas pipeline facilities on Barlow Ranch
property. To expand its facilities on Barlow Ranch property,
WGR Resources had no option but to acquire property from
Barlow Ranch. Therefore, this was not an arm’s length
transaction under Coronado Oil Co. v. Grieves, 642 P.2d 423,
433 (Wyo. 1982). Other easements relied upon by
Defendants involved gas companies acquiring easements
needed for access to gas production. For example, easement
D-12 between WGR Asset Holding Company and Barlow
Ranch, easement F-4 granted by Nissileus Ranch to Optigas,
and easement F-6 granted by TLE Ranch, Inc. to Thunder
Creek Gas Services, connected to production on the grantor’s
property. Once the well site was selected, the gas companies
had no option but to obtain easements from Barlow Ranch,
Nissileus and TLE. Therefore, these were not arm’s length
transactions.
c. The prices paid by [Western Gas] to Barlow
Ranch for easements after May of 2004 (Easements D-4, D-7,
D-9, D-10 and D-11) are based on a settlement agreement
reached mid-trial in a condemnation action by WGR
Resources against Barlow Ranch. The amount paid to settle a
condemnation action is not fair market value and is not
admissible. Colorado Interstate Gas Co. v. Unita
Development Co., 364 P.2d 655 (Wyo. 1961). Mr. Barlow’s
testimony that the settlement amount was based on the price
[Western Gas] paid Maycock Trusts for a similar easement
does not change the fact that the settlement agreement clearly
stated that the parties’ motivation for agreeing to that price
was the desire to settle the lawsuit and avoid attorney fees.
Exhibit 9. That settlement, and presumably that motivation,
set the price for all subsequent easements between [Western
Gas] and Barlow Ranch.
d. The evidence showed that the prices paid by the
gas pipeline companies included a premium to avoid
condemnation and to keep a good working relationship with
the Defendants for both the operation of their existing
facilities and for possible future acquisitions.
23
[¶56] Section 1-26-704 incorporates the principle that fair market value and comparable
sales must be based upon arms’ length transactions between willing buyers and willing
sellers. Section 1-26-704(a)(i) states:
(i) The fair market value of property for which there is
a relevant market is the price which would be agreed to by an
informed seller who is willing but not obligated to sell, and an
informed buyer who is willing but not obligated to buy[.]
Similarly, § 1-26-704(a)(iii)(C) states: “Values paid for transactions of comparable type,
size and location by other companies in arms length transactions for comparable
transactions on the same or similar property.”
[¶57] The legislature is presumed to act in a thoughtful and rational manner with full
knowledge of existing law. Statutes, therefore, are “to be construed in harmony with the
existing law, and as part of an overall and uniform system of jurisprudence” so long as
the statutory language does not indicate the legislature intended a change. See Redco
Constr. v. Profile Prop., LLC, 2012 WY 24, ¶ 37, 271 P.3d 408, 418 (Wyo. 2012)
(citations omitted). The willing buyer/willing seller and arms’ length concepts are
longstanding parts of our jurisprudence See Grommet v. Newman, 2009 WY 150, ¶ 52,
220 P.3d 795, 815 (Wyo. 2009); Mule Shoe, ¶ 20, 252 P.3d at 956. A transaction is not
arms’ length if there is “compulsion either on the part of the seller who is obliged to act
or on the part of the purchaser, who for personal reasons or necessities, is compelled to
pay a higher price than an ordinary purchaser would be willing to pay.” 5 Nichols on
Eminent Domain, Ch. CT21, § 21.02[5] (Matthew Bender, 3rd ed.). Nevertheless,
“[a]bsent any showing to the contrary, there is a presumption that the sale was an ‘arm’s-
length’ transaction and not under compulsion.” Joe Miller Land Co., 467 P.2d at 455-56.
[¶58] It is well settled that prices paid in condemnation actions or under actual threat of
condemnation are not proper comparable sales because they are not arms’ length
transactions. See, e.g., City of Cheyenne v. Frangos, 487 P.2d 804, 805-06 (Wyo. 1971);
Colorado Interstate Gas Co., 364 P.2d at 659. This Court recited the following reasons
for the rule against allowing such evidence:
‘* * * The rights of an owner to recover just compensation
for the taking of his land are not to be measured by the
generosity, necessity, estimated advantage, or fear or dislike
of litigation which may have induced others to part with the
title to their real estate, or to relinquish claims for damages by
reason of injuries thereto. It would be equally unwise, unjust
24
and impolitic to make it impossible for a corporation which
has taken land by eminent domain to compromise the claims
of one owner without furnishing evidence against itself in the
cases of all others who had similar claims. * * *’
Id. at 659, quoting 4 Nichols, Eminent Domain, p. 71 (3d ed.). However, the mere fact
that property is purchased by one vested with the power of eminent domain does not
preclude admission of evidence regarding the sale, provided the transaction was fair.
Frangos, 487 P.2d at 806. Consequently, just because condemnation was an option for
the buyer does not mean the transaction was inherently unfair or necessarily preclude
admission of evidence of the sale.
[¶59] Relying on Coronado, the district court seemed to conclude as a matter of law in
Paragraph 17(b) that the simple fact the pipelines had to connect to facilities on the
landowners’ properties meant the sales were not arms’ length because they did not
involve a willing buyer. Instead, the district court concluded, the buyers were compelled
to purchase the easements because of the location of other facilities. Coronado involved
the condemnation of a road across Grieves’ property by Coronado, an oil company.
Coronado, 642 P.2d at 426. Coronado claimed the district court erred by admitting an
access agreement between Grieves and another producer as evidence to establish the
amount of just compensation and this Court agreed. We noted that the only access to the
drilling site was across Grieves’ land so the producer had “no recourse but to pay the
demanded price or resort to condemnation. It was obliged to buy. That is not a willing-
seller, willing-buyer atmosphere within the rule. It is an agreement reached under threat
of condemnation.” Coronado, 642 P.2d at 439-40.
[¶60] For two reasons, we conclude the district court in the present case placed too much
emphasis on the required location factor referenced in Coronado. First, the comparable
sale offered in Coronado was made “under threat of condemnation” and apparently
resulted in an inflated price. As we stated earlier, prices paid in condemnation actions or
under actual threat of condemnation are not admissible as comparable sales. Frangos,
487 P.2d at 805-06; Colorado Interstate Gas Co., 364 P.2d at 659. The Coronado
decision specifically states that the rejected easement was made under threat of
condemnation, thus falling within the general rule.
[¶61] The second reason we reject Coronado’s statement that a sale is not arms’ length
when the easement is placed in a “required” location is the case was decided on the law
existing prior to the adoption of the Eminent Domain Act. As we recognized in L.U.
Sheep Co., 790 P.2d at 669, the Eminent Domain Act “implicitly abrogated earlier
contrary decisions in the law of eminent domain.” In 2007, the legislature specifically
authorized consideration of comparable easements in valuing partial takings. Section 1-
26-704(a)(iii)(B) and (C). In the context of pipeline easements, the pipeline route is
chosen by the project developer and it will often connect to a facility or another
25
pipeline—that is the nature of the business. The location of pipelines, therefore, will be
driven by economics, in that the developer will choose the most cost effective route and,
in that regard, will make a determination that the location is “required.”12 When the
legislature mandated that only arms’ length transactions be considered as comparables, it
did so with an understanding of how the mineral industry designs projects and uses the
power of eminent domain. We do not believe the legislature intended that a proposed
easement be rejected as an appropriate comparable simply because it is part of a larger
project or the location chosen by the company was the most expeditious, shortest or most
cost effective. If that were true, the project developer would possess nearly unlimited
power to determine the location was “required” and most mineral development easements
would be excluded as comparables, in direct contradiction of the statutory directive to use
comparable easements to establish fair market value.13 We conclude the legislature’s
intent was to use the market for comparable easements as a tool to determine fair market
value in pipeline condemnation cases. In order to give effect to that intent, we reject
Coronado’s statement that a transaction is not arms’ length simply because the project
developer “requires” the easement be placed in a certain location.
[¶62] We conclude, therefore, the district court erred as a matter of law by ruling that the
transactions referenced in Paragraph 17(b) were not arms’ length because they were
placed in “required” locations. The district court also erred by categorically rejecting the
easements across Maycocks’ property as comparables on the basis that they were not
arms’ length transactions because “most” of them were in required locations.
[¶63] In Paragraph 17(c), the district court also ruled that easements D-4, D-7, D-9, D-
10 and D-11 between Western Gas and Barlow were not appropriate comparables
because they were executed subsequent to an easement given in settlement of a 2004
condemnation action between the parties. The district court ruled that all of those
easements were tainted by the condemnation.
[¶64] The district court erred as a matter of law in concluding that all the transactions
between the parties after a condemnation action were not arms’ length. To reiterate, the
rule requires actual condemnation or threat of condemnation to bar use as a comparable
12
In fact, the other Greencore pipeline easements which the district court relied upon in valuing the
easement across Barlow’s property were part of the larger Greencore pipeline project, and the company
chose its route so that it would follow existing pipelines. As such, it could be argued the other Greencore
pipeline easements were placed in “required” locations.
13
We recognize that our decision conflicts with statements in the Micheli and Smith law review article
discussed above. They stated that a sale of an easement which was necessary for a larger project involves
a compelled buyer and, therefore, was not arms’ length and could not be used to establish fair market
value. M. Micheli and M. Smith, The More Things Change, the More Things Stay the Same: A
Practitioner’s Guide to Recent Changes to Wyoming’s Eminent Domain Act, 8 Wyo. L. Rev. 1, 15
(2008). The only authority they rely upon is Coronado, which we have explained does not support that
interpretation.
26
sale. It does not state that all subsequent transactions between parties who were
previously involved in a condemnation action are likewise disqualified as comparable
transactions. Indeed, if that were the rule, companies would be inclined to pursue
condemnation and that certainly is not the intent of the Eminent Domain Act which
encourages private negotiations and agreements.
[¶65] Because an incorrect application of law can lead to errors in findings of ultimate
fact, the district court’s legal error infected its ultimate factual findings. See, e.g., Brown,
¶ 40, 141 P.3d at 685-86; Jackson Hole Mountain Resort Corp., ¶ 17, 109 P.3d at 561.
The record does not support a finding that the later Western Gas easements offered by
Barlow were the result of condemnation actions or under actual threat of condemnation.
The easement given in settlement of Western Gas’s condemnation action was not offered
as a comparable sale by Barlow, although the settlement agreement and easement were
presented by Greencore as Plaintiff’s Exhibit 9. The easement was for a seventy-five
foot construction/thirty foot permanent easement for a twelve inch pipeline and the
compensation was $25 per rod for ten years, renewable for additional ten year periods for
$25 per rod plus a CPI adjustment.
[¶66] The easements included in the district court’s ruling were given in 2004, 2005,
2007, 2008 and 2009 by Barlow to Western Gas. The district court concluded the
condemnation action had determined the price for each because the later easements
provided the same compensation as the condemned easement. However, the D-11
easement had different consideration than the others, specifying $30 per rod for the initial
10 year term, which included $5.00 for loss of grazing. In addition, both Western Gas
and Mr. Barlow testified there was no condemnation or threat of condemnation involved
with the later easements. Mr. Barlow stated that the amounts paid by Western Gas
subsequent to the condemnation were the same as the settlement amount but were based
upon what Western Gas had paid Maycock for a similar easement in April 2004, which
was prior to the easement given in settlement of the condemnation action.
[¶67] Furthermore, Mr. Barlow testified that he agreed to less compensation for the D-9
easement than another company had paid for the D-8 easement given on the same date
because he felt the price paid by Western Gas for D-9 “was the market” and “a fair
price.” Western Gas’s representative, Ronald Lightley, testified similarly, describing the
negotiations as normal and stating that, although he was aware of a prior condemnation
action involving Western Gas and Barlow, he did not pay any attention to it. Given the
uncontradicted evidence indicating the transactions were fairly negotiated, it was
improper for the district court to categorically reject all of the easements given by Barlow
to Western Gas after the 2004 condemnation action on the grounds they were not arms’
length transactions.
[¶68] In Paragraph 17(d), the district court concluded Barlow’s proposed comparables
were not the result of arms’ length transactions because the gas companies paid Barlow a
27
“premium” to make it easier to work with him in the future. The court also stated in
Paragraph 6 of its decision that some of the easements “were negotiated in an effort to
placate Mr. Barlow so future dealings with him would go more smoothly.” These are
factual findings and we, therefore, apply our clearly erroneous standard of review.
[¶69] The district court did not identify any particular easements or testimony when it
made its findings that the companies paid a “premium” to “placate” Mr. Barlow. Mr.
Barlow testified that the D-1 through D-12 easements were all freely negotiated, and we
are not directed to any evidence showing otherwise. Looking specifically at the
easements mentioned by the district court in Paragraph 17(b), as we mentioned earlier,
Mr. Barlow testified there was no threat of condemnation during the negotiations for the
D-7 easement. He also stated he did not ask for “more money from Western Gas because
of the location of the pipeline.” In fact, the agreed upon price was Western Gas’s initial
offer. As we noted above, Mr. Barlow stated the D-8 and D-9 easements were freely
negotiated with no threat of condemnation and he felt the consideration for the D-9
easement “was the market” and “a fair price.” Mr. Lightley negotiated the D-9 easement
for Western Gas. He testified in general about how he approached negotiations with
landowners and specifically about the D-9 easement. He stated his general rule for
negotiations was “[w]hen you work for companies, you want to get the pipeline right-of-
way for the most inexpensive price you possibly can.” He said that before he started a
negotiation he looked at what his company and other companies had paid for other
similar easements and came up with “a range of potential pricing that was acceptable,
because you always want to try to negotiate the best deal for the company.” Mr. Lightley
testified that generally if negotiations were not successful, the company could change the
route but he had always been successful in his negotiations. He stated that he never used
condemnation as a “tool . . . to force a price or to negotiate with” and had never been
involved in a condemnation action. Mr. Lightley testified that, although he was aware of
a prior condemnation action involving Western Gas and Barlow, he did not pay any
attention to it in his negotiations with Barlow.
[¶70] Mr. Lightley also testified the negotiation for the D-10 easement was “regular”
and “what we thought the value was.” He discussed the price with company management
and “it was offered and it was accepted.” Mr. Barlow testified he negotiated the D-11
easement with Mr. Lightley and it was freely negotiated with no threats of condemnation.
Mr. Barlow provided the following testimony regarding the negotiations with Thunder
Creek for the D-12 Easement:
Q. Were there any threats of condemnation in
connection with this?
A. No, there weren’t.
....
Q. Were there any negotiations over this easement
for a greater or lesser sum on the part of either party?
28
A. No, there were not. I felt that was what the
market was; and when [the Thunder Creek representative]
came to me, we discussed it; and we had previous agreements
with this company; and that’s where I felt the market was;
and so that’s what we agreed to.
Q. So, basically, the amount that Thunder Creek
offered was the amount Barlow Ranch accepted; and the
parties discussed this during the course of negotiations.
A. Yes, that’s correct.
Q. Was it freely negotiated in your opinion?
A. Yes, it was.
[¶71] Daniel Werth, a Thunder Creek representative, testified the pipeline associated
with Exhibit D-12 had to cross Barlow property and, consequently, the company’s
options were limited to negotiating with Barlow, condemnation or not doing the project.
However, he stated that condemnation was not threatened and Thunder Creek had never
used that option. He testified, in general, that Thunder Creek preferred not to use
condemnation because it “does not promote well-being with Thunder Creek in the
community,” and, because Thunder Creek might have future dealings with the
community, it wanted to “keep the peace.” He also stated that the amounts paid by
Thunder Creek for easements represented values “currently being negotiated for right-of-
ways” by the company’s right-of-way agents and represented the “going rate” for
“easements of this type.”
[¶72] Exhibits F-4 and F-6 involved other landowners. Exhibit F-4 was a pipeline
easement granted by Nisselius Ranch to Optigas. Lee Conley, a representative of
Optigas, testified by deposition at the trial and stated the price paid for that easement
“was based on our experience and past precedence that we understood were set by other
companies and for what we had been paying for the rest of our acreages in the this area,
or the rest of our right[s]-of-way in this area.” Although he testified that condemnation
was an option for Optigas, he was confident that it would not be necessary. When asked
if Optigas would be “willing to pay a little bit more to keep the peace,” he stated, “I think
we tried to pay market value, but – but we do try to maintain relationships to keep the
peace.” He clarified that what he meant by market value was the “going rate” for
comparable pipeline easements.
[¶73] Exhibit F-6 was a pipeline right of way granted by TLE Ranch to Thunder Creek.
Thomas Edwards, the owner of TLE Ranch, testified at the trial that there was no threat
of condemnation and the F-6 easement was freely negotiated. He described the offers
and counteroffers made by the parties in arriving at the final amount. Thunder Creek
representative, Mr. Werth, confirmed Mr. Edwards’ testimony regarding Exhibit F-6,
stating there was no threat of condemnation.
29
[¶74] Despite this uncontroverted evidence, the district court concluded the easements
were not arms’ length because the companies paid a “premium” to Mr. Barlow to
“placate” and keep a good relationship with him. The evidence described above does not
support those conclusions. The company representatives acknowledged the desire to
maintain an amicable relationship with landowners; however, we are not directed to any
evidence showing that a “premium” was paid to avoid condemnation or to placate Mr.
Barlow or other landowners. Moreover, the very fact that the companies were acquiring
easements across others’ properties means the parties will have an ongoing relationship
as they will be utilizing different estates in the same property. A universal rule that such
a relationship negates the arms’ length nature of the sale would essentially nullify the
statute which allows evidence of comparable easements on the same or similar property.
We conclude, therefore, the district court’s findings that the transactions were not arms’
length because the companies paid a “premium” to “placate” Mr. Barlow were clearly
erroneous and do not support its decision to reject the easements as comparables.
B. Statutory Comparability Factors
[¶75] Sections 1-26-704(a)(iii)(B) and (C) set out parameters for using other easements
as comparables to determine fair market value:
(iii)The determination of fair market value shall use generally
accepted appraisal techniques and may include:
....
(B) The price paid for other comparable easements or
leases of comparable type, size and location on the same or
similar property;
(C) Values paid for transactions of comparable type, size
and location by other companies in arms length transactions
for comparable transactions on the same or similar property.
[¶76] The legislature identified factors to be considered in determining whether an
easement or lease is comparable to the condemned easement by specifying “comparable
type, size and location on the same or similar property.” Id. Under our rules of statutory
interpretation, we start with the plain language of the statute. Michael’s Constr., ¶ 12,
278 P.3d at 705. The term “type” is defined as: “a class, kind or group set apart by
common characteristics.” Merriam-Webster’s Dictionary 531 (New Edition 2005).
Employing that definition, the district court was required to evaluate the similarities and
dissimilarities of the condemned easement and the proposed comparable easements and
their impacts on the properties they burden to determine if they are of a comparable
“type.” This analysis could, therefore, consider the purpose of the easements; the
construction methods and materials used, in this case, in the pipelines; the term of the
easements, i.e., whether perpetual or limited; and any other evidence which comes to bear
on whether the two easements and their corresponding pipelines have similar
30
characteristics. The “size” of the two pipeline easements must be compared in terms of
the diameter of the pipelines and the lengths and widths of both the construction and
permanent easements. The easements must also be compared in terms of “location on the
same or similar property.” Thus, the nature and uses of the lands burdened by both the
proposed comparable and the condemned easement must be evaluated.
[¶77] In light of our rule that, if possible, we construe statutes in harmony with the
existing law, see Redco Constr., ¶ 37, 271 P.3d at 418, we presume the legislature
amended § 1-26-704(a) with full knowledge of this Court’s decisions holding admissible
evidence of “other sales of the same or similar property, which were transacted
reasonably close in time and distance and under comparable market conditions.” Reed,
553 P.2d at 1036. We likewise presume the legislature amended the provision with
knowledge of this Court’s statements that no general rule exists as to the degree of
similarity required between other property and the property at issue. “It is axiomatic that
comparable sales are not and never can be ‘identical’ to the subject property, since no
property can physically be in the exact same location as another property.” 7A Nichols
on Eminent Domain, Chap. G13, § G13.02[2] (Matthew Bender, 3rd ed.). Value must be
determined by “making adjustments for prices of those [comparables] that are more
similar or dissimilar to condemned property.” Frangos, 487 P.2d at 807.
[¶78] The district court concluded the proffered easements were not comparable to
Greencore’s easement for the following reasons:
10. All of the easements the Defendants presented
as “comparable” to the easements obtained in this case were
for natural gas pipelines. The evidence did not establish that
the anticipated life and usefulness of natural gas pipelines and
production is similar to the proposed carbon dioxide pipeline
in this case. To the contrary, the evidence showed that the
anticipated life and production of gas in coal bed methane
fields is substantially less than what is anticipated for the
carbon dioxide pipeline in this case. Those shorter
anticipated terms make “annual” or “renewal” payment terms
inapplicable in determining the value of the interest being
taken in this case. The evidence did not establish that the
economics of natural gas production were comparable to the
economics of enhanced oil recovery through carbon dioxide
injection.
[¶79] Instead of evaluating the proposed comparables using the statutory factors, the
district court compared the economics of Greencore’s business with the economics of the
methane gas production business. The law is well established that the value of property
taken is determined by the loss to the owner not the gain to the taker. See, e.g., 4 Nichols
31
on Eminent Domain, Ch. 12, § 12.03 (Matthew Bender, 3rd. ed). “The just compensation
to which an owner is entitled when his property is taken by eminent domain is regarded
in law from the point of view of the owner and not the condemnor. In other words, just
compensation in the constitutional sense is what the owner has lost, not what the
condemnor has gained.” Id. See also, Kimball Laundry Co. v. United States, 338 U.S. 1,
5, 69 S.Ct. 1434, 1437-38, 93 L.Ed. 1765 (1949) (holding “gain to the taker . . . may be
wholly unrelated to the deprivation imposed upon the owner, [therefore] it must . . . be
rejected as a measure of public obligation to requite for that deprivation”); Coronado,
642 P.2d at 432 (holding damages in condemnation actions are “to be paid for the
property taken or damaged”). When the district court referred to the economics of
Greencore’s business as compared to the natural gas business, it clearly employed an
improper point of reference—t h e v a l u e o f the property to Greencore, the
condemnor/taker.14 That was an error of law.
[¶80] It appears that the district court did attempt to evaluate the proposed comparables
on the basis of “type” in Paragraph 17(a) of its decision:
a. Section 1-26-704(a)(iii)(B) requires that the
easements relied upon are of a comparable type. The Court
finds that the easements relied upon by Defendants are all
high pressure gas pipelines which contain flammable
materials. . . .
The Greencore pipeline is 232 miles long, carries
carbon dioxide, which is a waste product, and does not
connect to any of the facilities on Defendants’ property. . . .
....
[¶81] The record does not support the district court’s conclusion that CO2 and natural
gas pipelines are not comparable in terms of type. The trial evidence established that the
natural gas and carbon dioxide pipelines were essentially the same. Mr. Barlow testified
he had witnessed the installation of natural gas pipelines and Greencore’s carbon dioxide
pipeline on his property. They were all high pressure steel lines and were constructed by
14
Greencore seems to concede this error in its reply brief in its cross appeal, although in a slightly
different way:
[T]he Trial Court focused on the difference between Greencore’s use of the land it
acquired and the gas companies’ use of the land they acquired. This analysis has nothing
to do with fair market value of the ranchland acquired by Greencore. Instead, this
a n a l y s i s f o c u s e d o n t h e e c o n o m i c b e n e f i ts and other gains to
companies who acquired the land, not the loss of ranchland suffered by Barlow.
32
the same companies using the same types of construction techniques. Photographs which
were admitted into evidence showed the lines were similar. Mr. Maycock and another
area landowner, John Mankin, also testified that the Greencore pipeline was similar in
construction to the natural gas pipelines on their properties.
[¶82] Without elaboration, the district court also mentioned that natural gas is
flammable, while carbon dioxide is not. There is authority for looking at safety risks and
their effect on the value of the property in valuing pipeline easements. See, e.g.,
Hoekstra v. Guardian Pipeline, LLC, 726 N.W.2d 648, 655-56 (Wis. Ct. App. 2006);
Fanning v. Mapco, Inc., 181 N.W.2d 190, 197 (Iowa 1970). Although we make no
determination on whether such evidence would have been proper in this case, if such
evidence were developed it could possibly fall within the determination of whether
pipelines carrying different materials were comparable in terms of type. However, other
than a brief mention that carbon dioxide is not flammable or hazardous by one of
Greencore’s witnesses, we are directed to no evidence that a natural gas pipeline is more
dangerous or any associated danger was somehow factored into the compensation paid
for the proposed comparables. In addition, the evidence demonstrated that (without
taking into account annual payments and renewal options) the prices paid per rod for the
CO2 easements, which averaged $50 per rod, were actually higher than the prices paid
for the natural gas easements offered as comparables. This indicates that the particular
gas conveyed and any associated safety concerns did not affect the value of the
easements. Consequently, on this record, there was no basis for distinguishing between
the pipelines on the basis of the product transported and the district court’s finding that
Barlow’s proposed natural gas pipeline easements were not comparable to Greencore’s
CO2 easement on that basis was clearly erroneous.15
[¶83] We turn now to the easements the district court did find to be comparable and used
to establish value in this case—Greencore’s other easements. The Greencore carbon
dioxide pipeline is 232 miles long; 141 miles of it crosses private and state lands and the
remainder crosses federal lands. Greencore was able to obtain easements from sixty-
three of the sixty-six landowners the pipeline crosses and paid an average of $50 per rod
with no annual payment. Barney Brooks, a representative of Greencore’s parent
company, testified that the range paid by Greencore was $25 to $75 per rod,16 with the
majority falling between $49 and $55 per rod. With one exception (the Mankin
easement), we are not directed to detailed evidence about the other Greencore easements
and the lands they crossed. Mr. Brooks testified:
15
Carbon dioxide is considered natural gas for excise taxation purposes. Amoco Prod. Co. v. State, 751
P.2d 379, 383 (Wyo. 1988).
16
Interestingly, Mr. Brooks explained that the higher amounts were paid by Greencore when they
“reached a point where it was moving toward condemnation; so we paid a higher – negotiated a higher
fixed lump sum to these landowners.”
33
Q. Is the defendant’s property generally the same as the
other property that Greencore acquired in Wyoming?
A. In respect to terrain or –
Q. Yes, and type of property.
A. Yes, it is, correct.
Q. Yesterday, Mr. Mankin testified, and he mentioned
that Greencore acquired an easement from him. Do you
recall that testimony?
A. Yes.
Q. And do you recall what Greencore paid Mr. Mankin
for his easement[]?
A. As I recall, we paid him $35 per rod.
Q. No annual payments[?]
A. No annual payment.
Mr. Brooks later stated, in response to a question from the judge about the similarities
and dissimilarities between the other properties crossed by the Greencore pipeline and
Barlow’s property, that “[i]t appears to be the same use in the area of general farm land.”
In response to the judge’s prompting, he corrected himself and described the land as
“ranch land.”
[¶84] The district court relied on the average price Greencore paid for its other
easements in awarding Barlow compensation of $50 per rod with no annual payment.
The district court’s methodology was improper as a matter of law. Other than the
Mankin easement, we are not directed to any evidence of the specific similarities and
dissimilarities between the condemned easement and the other easements crossed by the
Greencore pipeline. Mr. Brooks’ general statement that the lands were similar was not
sufficient given the total length of the pipeline and the potential diversity of the land it
crosses. To rely on comparable easements under § 1-26-704(a)(iii)(B), the easements
need to be compared in terms of type, size and location. We also note that using an
average of other comparables is not a proper way of calculating fair market value.
Frangos, 487 P.2d at 807. Instead, fair market value based on comparable sales is
determined by “making adjustment for prices of those [comparables] that are more
similar or dissimilar to condemned property.” Id. More information was provided
regarding the Greencore easement on Mankin’s property. Mr. Mankin testified that his
property was directly east of Barlow’s property and was similar in nature. On remand,
the district court may consider whether the Mankin/Greencore easement was a proper
comparable under the statute.
[¶85] In summary, we conclude the district court applied incorrect legal principles and
committed clear error in rejecting Barlow’s proffered easements and accepting the
average Greencore paid for its other easements. Remand is required for application of
the correct principles.
34
3. Permissibility Under Wyoming Law of Annual Payments for a Condemned
Easement
[¶86] Many of the easements offered into evidence by Barlow as comparables included
an initial payment and subsequent annual payments, some of which included a CPI
adjustment, or terms allowing renewal of the easement with similar adjustments. The
district court ruled, as a matter of law, “[a]nnual payments for a condemned easement are
not provided for in Wyoming’s statutes. Wyoming law anticipates a valuation at a
specific date, not an unknown valuation dependent on the life of a gas field or a pipeline.”
Barlow argues the district court erred by ruling that Wyoming law does not permit annual
payments, while Greencore maintains the law requires a fixed lump sum award.
[¶87] Wyoming statutes do not directly address whether annual payments are allowed;
however, looking at various sections of the Eminent Domain Act and considering them in
pari materi in accordance with our statutory interpretation rules provides insight into
whether the legislature intended that annual payments be allowed. As we have explained,
the overarching intent of the Act is to provide just compensation, as reflected by fair
market value, to the condemned landowner. Section 1-26-702. That goal is, therefore,
the touchstone we must utilize in determining whether the statutes contemplate allowing
annual payments.
[¶88] Section 1-26-704 provides methods for determining fair market value, with
subsection (a)(iii)(B) specifically allowing consideration of the “price paid for other
comparable easements or leases.” Leases are, of course, paid on an on-going basis during
a term. See, e.g., Laramie Citizens for Good Government v. City of Laramie, 617 P.2d
474, 479 (Wyo. 1980) (noting one of the factors in determining whether a transaction is a
lease is the inclusion of a provision for cancellation of the lease by the lessee at its option
at yearly intervals, or the converse provision that the term is for one year with yearly
renewal options). Because leases are specifically listed as appropriate comparables and
are generally paid based on the actual time the property is leased rather than a fixed lump
sum, the implication is that annual payments could be considered by the court in
determining appropriate compensation.
[¶89] Wyo. Stat. Ann. § 1-26-514(b) (LexisNexis 2011) provides: “The court in
determining due compensation may authorize a lump-sum payment or an annual
installment or amortization payment to continue throughout the term of the easement.”
Barlow maintains this provision essentially authorizes annual payments and indicates a
total lump sum payment need not be fixed at the conclusion of the condemnation action.17
17
Barlow’s expert witness testified that lump sum amounts are not required by generally accepted
accounting practices. He said that value can be “stated in any terms that are of a financial nature,” which
may include “an initial payment per rod and then periodic payments for the life of the pipeline, with
periodic CPI adjustments.”
35
Greencore argues this provision does not support on-going annual payments because the
concepts of amortization and installment payments are based on the fixed amount that is
simply paid over time. While we agree that amortized or installment payments are often
based upon a total lump sum amount, § 1-26-514(b) specifically states that the payment
can “continue throughout the term of the easement.” With a perpetual easement that does
not end until abandoned, the total number of years the easement will be used would have
to be known in order to amortize or calculate installments and, given that the period could
vary depending upon the condemnor’s actual use, the provision suggests annual payments
could be allowed without setting a fixed amount.
[¶90] Wyo. S t a t . A n n . § 1-26-509 (LexisNexis 2011) gives parameters for the
condemnor to engage in required good faith negotiations with the landowner prior to
filing a condemnation action and provides in relevant part:
(a) A condemnor shall make reasonable and diligent
efforts to acquire property by good faith negotiation.
(b) In attempting to acquire the property by purchase
under W.S. 1-26-510,18 the condemnor, acting within the
scope of its powers and to the extent not otherwise forbidden
by law, shall negotiate in good faith and may contract with
respect to:
(i) Any element of valuation or damages recognized
by law as relevant to the amount of just compensation
payable for the property;
(ii) The extent, term or nature of the property
interest or other right to be acquired;
....
(vi) The time and method of payment of agreed
compensation or other amounts authorized by law; and
(vii) Any other terms or conditions deemed
appropriate by either of the parties.
18
Wyo. Stat. Ann. § 1-26-510 (LexisNexis 2011) states:
(a) Except as provided in W.S. 1-26-511, an action to condemn property may not
be maintained over timely objection by the condemnee unless the condemnor made a
good faith effort to acquire the property by purchase before commencing the action. A
condemnee may not object to the good faith of the condemnor if the condemnee has
failed to respond to an initial written offer as provided in W.S. 1-26-509(c)(iii)(E) and the
condemnor has met the requirements of W.S. 1-26-509(c).
(b) Negotiations conducted in substantial compliance with W.S. 1-26-509(b)
through (e) are prima facie evidence of “good faith” by the condemnor under subsection
(a) of this section.
36
[¶91] Subsections (b)(vi) and (vii) give the parties the option of negotiating and
contracting for the “time and method of payment of agreed compensation” and on “[a]ny
other terms or conditions deemed appropriate” by them, while subsections (b)(i) and (ii)
allow the parties to negotiate and contract on “any element of valuation or damages
recognized by law as relevant to the amount of just compensation payable for the
property” and specifically reference the “extent, term or nature” of the interest being
acquired by the proposed condemnor. These provisions all indicate that the
compensation which can be negotiated by a potential condemnor and a condemnee could
include a wide variety of measures, including annual or on-going payments during the
actual term of the easement. Given that broad authority, it would stand to reason that in
determining compensation when good faith negotiations are not successful, the district
court could award on-going payments if the evidence supported it.
[¶92] On the other hand, Wyo. Stat. Ann. § 1-26-703 (LexisNexis 2011) provides that
the date of valuation of condemned property is “the date upon which the condemnation
action was commenced.” Greencore maintains this provision requires a one-time lump
sum payment. The provision does not, however, state that; it simply provides that the
valuation must be made on a date certain. If the valuation includes an on-going payment
as valued on the statutory date, then it would meet that requirement. Similarly, we do not
read that section as prohibiting a consumer price index adjustment. The CPI adjustment
is based on the United States Bureau of Labor Statistic’s calculation of the change over
t i m e o f p r i c e s p a i d f o r g o o d s a n d s e r v i c e s .
http://www.bls.gov/cpi/cpifaq.htm#Question_1. The use of an annual payment with a
CPI adjustment recognizes the time value of money. If an annual payment is allowed, the
condemnor will not be paying the full value of the easement up front and will, therefore,
be able to enjoy the benefit of those funds. The CPI adjustment simply equalizes the
dollar value over time to provide full compensation to the landowner. Although the
amount will change over time, its parameters will be fixed at the time of the
condemnation award.
[¶93] Section 1-26-513(a) requires the condemnor to deposit, at the time of commencing
an eminent domain proceeding, “an amount equal to the condemnor’s last offer of
settlement prior to the action.” Greencore argues that such deposit would be impossible
if the negotiations included an annual payment because the length of the easement term
and the total of the annual payments which will be due are not known. See also,
W.R.C.P. 71.1(l) (addressing deposit of “any money or bond required by law as a
condition to the exercise of the power of eminent domain”). We agree that this provision
works better with a fixed sum than with an annual payment provision. However, the
provision also contemplates that the amount can be adjusted as necessary. Section 1-26-
513(a). Moreover, § 1-26-513 does not pertain to the calculation of fair market value and
is simply meant to provide security during the course of the condemnation proceeding.
The fact that the legislature did not provide specific guidance to calculate a correct
deposit when a recurring payment is offered does not mandate an interpretation that such
37
payment is never allowed. While depositing the correct amount may require some
estimation as to the useful life of the easement, the provision does not expressly prohibit
the use of annual payments as part of a just compensation award.
[¶94] Considering the clear language of the many provisions of the Eminent Domain Act
together, we conclude the legislature did not expressly limit awards in condemnation
actions to lump sum amounts or prohibit annual payments. The language indicates the
court has broad authority to tailor damages to fulfill the Act’s overall intent to provide
just compensation, based on fair market value, to the condemned property owner.
[¶95] We would reach the same result if we concluded the statutes are ambiguous and
applied rules of statutory construction, including looking at the historical context of the
Eminent Domain Act and legislative history. As we mentioned earlier, part of the
impetus for adopting the Eminent Domain Act was the fact that one-time payments as
compensation for takings were not satisfactory. R. Lang, Comment, Wyoming Eminent
Domain Act: Comment on the Act and Rule 71.1 of the Wyoming Rules of Civil
Procedure, 18 Land & Water L.Rev. 739, 739 (1983). The historical setting of the act,
therefore, confirms that annual payments are allowed. In addition, the legislative history
indicates the legislature did not intend to prohibit annual payments. Report No. 1,
Eminent Domain Study, Joint Judiciary Interim Committee (April 1979) which was
prepared in advance of initial adoption of the Eminent Domain Act, indicates that just
compensation could include lump sum payments and annual, lease-type payments which
could continue as long as the authorized use is made of the condemned property. See
Kennedy Oil, ¶ 22, 205 P.3d at 1006 (recognizing legislative committee reports as proper
evidence of legislative intent).
[¶96] The district court erred by concluding as a matter of law that annual payments are
not allowed by Wyoming statutes. 19 This ruling does not, however, end the inquiry. The
record contains evidence of transactions involving annual payments and transactions that
do not. On remand, the district court will need to evaluate the evidence to determine
whether annual payments are justified in this case.
4. Greencore’s Entitlement to Abandon Pipeline in Place
[¶97] Greencore requested that, as part of the perpetual easement granted in the
condemnation action, it be allowed to abandon the pipeline in place when it is finished
using the easement. Barlow insisted that Greencore be ordered to remove the pipeline
and reclaim and restore the condemned property at the time of abandonment. The district
court ruled that Wyo. Stat. Ann. § 1-26-714 (LexisNexis 2011) governs the removal issue
19
Obviously, if we are incorrect in this analysis, the legislature can amend the statute to expressly prohibit
annual or periodic payments and require only lump sum awards.
38
and that statute cannot be applied until the pipeline is actually abandoned. Section 1-26-
714 states:
(a) A condemnor who acquires a property right or
interest of less than fee simple title in any land shall be
responsible for reclamation on such land and for restoration
of the land and any improvements thereon. The reclamation
and restoration shall return the property and improvements to
the condition existing prior to the condemnation to the extent
that reasonably can be accomplished.
[¶98] Greencore insists that, because it is condemning a perpetual easement, it should be
allowed to abandon the pipeline in place and cites Bridle Bit Ranch Co. v. Basin Elec.
Power Co-op., 2005 WY 108, ¶¶ 52-54, 118 P.3d 996, 1016 (Wyo. 2005), as authority.
In Bridle Bit, we stated: “As a general rule, easements may be perpetual, or for an
indefinite duration, or for so long as they are needed for their intended purpose or so long
as the necessity continues.” Id., ¶ 53, 118 P.3d at 1016, citing 4 Powell on Real Property
§ 34.19, at 34–179—34–184 (2001); 25 Am.Jur.2d Easements and Licenses § 94 (2004).
[¶99] We have no trouble agreeing that a perpetual easement may be condemned.
Nevertheless, that does not mean a perpetual easement cannot be abandoned. Wyo. Stat.
Ann. § 1-26-515 (LexisNexis 2011) states:
Upon abandonment, nonuse for a period of ten (10)
years, or transfer or attempted transfer to a use where the
transferee could not have condemned for the new use, or
where the new use is not identical to the original use and new
damages to the landowner whose property was condemned
for the original use will occur, any easement authorized under
this act terminates.
Consistent with the statute, the easement given by Barlow to Greencore in this case
specifically states that it shall terminate upon the happening of various conditions,
including abandonment.
[¶100] Section 1-26-714(a) directly addresses the reclamation responsibility of a
condemnor who has acquired less than a fee simple title in the property and states it
“shall be responsible for reclamation on such land and for restoration of that land[.]” The
statutory provision also states that property shall be returned to the “condition existing
prior to the condemnation to the extent that reasonably can be accomplished.” There is
no indication in the statutory language that the reclamation responsibility does not apply
if the easement granted is perpetual.
39
[¶101] Greencore also argues that § 1-26-714 only applies if the pipeline is removed and
does not prohibit the condemnor from leaving the pipeline in place. That interpretation
of the statute does not take into account the language requiring the condemnor to return
the property and improvements to “the condition existing prior to the condemnation.”
(emphasis added). The condition existing prior to the condemnation was no pipeline
under the ground on the landowner’s property. Greencore also argues that by imposing a
removal requirement, the condemnation award is unfairly inflated to greater than the
value of the underlying property and the property interest taken. Greencore’s
interpretation ignores § 1-26-714(d) which allows the condemnor and condemnee to
agree “to compensation in lieu of the obligations provided in [the reclamation and
restoration] section.” That provision clearly indicates the compensation for reclamation
is separate from, and in addition to, the compensation for the taking.20
[¶102] As the district court recognized, however, the condemnor’s reclamation
responsibility is limited to what is “reasonable.” Greencore contemplates that the
pipeline will be in use for many years and, thus, what will be reasonable at the time of
abandonment is not known at this time. At the time of abandonment, it may be
determined that it is unreasonable to require removal at all; measures short of removal are
sufficient to reclaim the property; or removal and full reclamation is required. Those
determinations simply cannot be made presently. The district court properly ruled that
the issue of whether removal of the pipeline at the time of abandonment will be required
is not appropriate for judicial consideration at this time.
CONCLUSION
[¶103] Wyoming law specifically provides for use of comparable sales of easements to
determine the fair market value of a condemned easement. The district court, however,
applied incorrect legal standards and committed clear error when it concluded none of
Barlow’s proposed easement transactions were comparable. The district court did not
follow the proper methodology in determining whether the transactions were arms’
length or the other easements were of comparable type, size and location. On remand,
the district court should analyze the proffered easements to determine whether they are
comparable under the appropriate standards. The analysis may consider the comparables
as substantive evidence of fair market value and/or as a basis for Barlow’s appraiser’s
calculation of fair market value. In determining the fair market value, the district court
will need to address the similarities and differences between the individual comparables
20
Section 1-26-706 (a) states that the increase or decrease in value to the remainder resulting from an
agreement as to any reclamation work is to be included in the fair market value determination: “If there is
a partial taking of property, the fair market value of the remainder on the valuation date shall reflect
increases or decreases in value caused by the proposed project including: . . . (iii) Any work to be
performed under an agreement between the parties or pursuant to W.S. 1-26-714.” The change in value
of the remaining property is different from the cost of the reclamation itself.
40
and the Greencore easement. As we stated in Frangos, fair market value based on
comparable sales is determined by “making adjustments for prices of those [comparables]
that are more similar or dissimilar to condemned property.” Frangos, 487 P.2d at 807.
[¶104] The district court also incorrectly concluded, as a matter of law, that an annual
payment cannot form part of the just compensation in easement condemnation cases. On
remand, the district court must conduct a factual analysis to determine whether annual
payments are appropriate in this case. Once the proper analysis is done, the resulting
award may be higher or lower than the original award of a one-time lump sum in the
amount of the average Greencore paid for its other easements. The district court properly
concluded the issue of whether Greencore has to remove the pipeline upon abandonment
and termination of the easement is not yet ripe for consideration.
[¶105] Affirmed in part and reversed and remanded in part for additional proceedings
consistent with this opinion.
41