Jason John Thornock and Tracy Thornock v. Erick W. Esterholdt, as Trustee of the Erick W. Esterholdt Revocable Trust Dated August 6, 2009 and Jeanne M. Esterholdt, as Trustee of the Jeanne M. Esterholdt Revocable Trust Dated August 6, 2009 and John A. Reed, Iii, and Carolyn B. Reed and Union Pacific Railroad Company, a Delaware Corporation and Pacificorp, an Oregon Company and Richard Dayton and Roberts Ranch and Reed Land & Cattle Co., Llp and Nk Cook Ranch, Llc and Frederic C. Reed as Trustee of the Frederic C. Reed Revocable Trust

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 63
APRIL TERM, A.D. 2016
June 27, 2016
JASON JOHN THORNOCK and TRACY
THORNOCK,
Appellants
(Plaintiffs),
v.
ERICK W. ESTERHOLDT, as Trustee of
the Erick W. Esterholdt Revocable Trust
Dated August 6, 2009; and JEANNE M.
ESTERHOLDT, as Trustee of the Jeanne
M. Esterholdt Revocable Trust dated
S-15-0273
August 6, 2009; and JOHN A. REED, III,
and CAROLYN B. REED; and UNION
PACIFIC RAILROAD COMPANY, a
Delaware Corporation; and PACIFICORP,
an Oregon Company; and RICHARD
DAYTON; and ROBERTS RANCH; and
REED LAND & CATTLE CO., LLP; and
NK COOK RANCH, LLC; and
FREDERIC C. REED as Trustee of the
Frederic C. Reed Revocable Trust,
Appellees
(Defendants).
Appeal from the District Court of Lincoln County
The Honorable Joseph B. Bluemel, Judge
Representing Appellants:
David M. Clark of Greear Clark King, P.C., Worland, WY.
Representing Appellees Erick W. and Jeanne M. Esterholdt, John A. and Carolyn B.
Reed, III, Frederic C. Reed and Reed Land & Cattle Co., LLP:
Sharon M. Rose of The Rose Law Firm, PC, Evanston, WY.
Representing Appellees Union Pacific Railroad Company, Pacificorp, Richard Dayton,
Roberts Ranch and NK Cook Ranch, LLC:
No appearance.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] Jason and Tracy Thornock filed a complaint alleging their Lincoln County
property is landlocked and requesting establishment of a private road, naming as
defendants those neighboring landowners whose property might be affected by the road.
Following a bench trial, the district court ruled that Thornocks’ property is not
landlocked, and on that basis, the court denied the request to establish a private road. We
affirm.
ISSUES
[¶2] Thornocks present two issues on appeal, and they state those issues as:
A. Whether the Poison Creek Road, which is accessible
only to Thornocks and their invitees, is a public road for
purposes of W.S. § 24-9-101, et seq.
B. Whether the construction of a road across a natural
barrier connecting two parcels of land owned by Thornocks
would be unreasonably costly, given the evidence presented
with respect to the costs and feasibility of construction and
expected economic benefit to the parcel to be accessed.
[¶3] The Appellee landowners state the issues similarly and add the following
additional issue:
Whether a private road may be established to remedy
access difficulties related to barriers within the applicant's
own land.
FACTS
[¶4] In January 2008, Jason and Tracy Thornock purchased the Thornock Ranch from
Jason Thornock’s parents for $850,000.00. The ranch is located in Lincoln County,
Wyoming, west and northwest of the town of Cokeville, and consists of 2,665.49 acres of
fee land, as well as federal and state grazing leases for which the fee land is the base
property. A property appraisal done in 2007 just prior to Thornocks’ purchase of the
ranch valued the ranch at $2,100,000.00 and noted that access to the property “is
considered to be good.”
[¶5] Thornocks’ fee land generally consists of two larger parcels connected by a
narrow strip of land. The northern parcel is roughly 1,700 acres in size and the southern
parcel is somewhat smaller. The strip of fee land that connects the two parcels is a little
under one mile long and two hundred feet wide and connects the two parcels east of the
1
centerline of each parcel. The strip of land is bordered on the east by the Bear River and
on the west by federal land.
[¶6] An existing road known as Poison Creek Road connects Thornocks’ southern
parcel with County Road 207. Poison Creek Road begins at County Road 207 and
crosses two pieces of private property before entering Thornocks’ southern parcel.
Thornocks have easements on each of those properties, which allow them to use Poison
Creek Road to cross the properties for access to their southern parcel. Poison Creek Road
crosses Thornocks’ southern parcel heading in a northerly direction. It then exits
Thornocks’ southern parcel and crosses first about one-half mile of state land and then
about one mile of federal land before connecting with Thornocks’ northern parcel.
[¶7] Through their attorney, Thornocks contacted the Bureau of Land Management
(BLM) concerning any restrictions on the use of Poison Creek Road where it crosses
federal lands. The BLM advised Thornocks’ attorney: “As you already know,
landowners do have rights of ingress/egress. For any type of maintenance on the road a
formal right-of-way application for a right-of-way across public lands would be
required.” The BLM further advised that it considered Poison Creek Road where it
crosses federal lands to be open to the public for recreational use but any commercial use
would require an appropriate right-of-way or permit. Thornocks were advised the
restrictions and requirements for commercial use and maintenance of Poison Creek Road
where it crosses state lands would be similar to the federal requirements.
[¶8] In 2010, Thornocks installed a pivot irrigation system on their northern parcel, and
in 2012, they installed a second pivot on the northern parcel. The installation of the
pivots allowed Thornocks to grow hay on the northern parcel and increase grazing on that
parcel, which in turn created a need to access the northern parcel with heavy equipment,
including balers, swathers, and semitrailers. Contending that Poison Creek Road was not
a public road and was not adequate for the type of access Thornocks required for the
northern parcel after the pivot installations, and further contending that the terrain of the
strip of Thornock land connecting the two parcels made construction of a road on that
land impractical and unreasonably costly, Thornocks, on September 17, 2013, filed a
complaint in district court seeking establishment of a private road.
[¶9] On December 16, 2013, Thornocks filed an amended complaint naming as
defendants all landowners whose property might be affected by the requested private
road. On January 28, 2014, Defendants Erick W. Esterholdt and Jeanne M. Esterholdt
moved for summary judgment and requested that the district court rule as a matter of law
that a natural barrier occurring on a private road on applicant’s own land cannot be the
basis for a private road application. On February 18, 2014, the court held a hearing and
denied the motion after finding that there were disputed issues of fact concerning the
viability of a road on the strip of connecting land.
2
[¶10] On May 5, 2014, pursuant to the parties’ joint motion, the district court appointed
an expert to evaluate the costs associated with building a road on the strip of Thornock
land that connects their southern and northern parcels. On November 21, 2014, the
expert issued the report, which estimated the cost of such a road at $973,836.70. The
elevated cost of the road was owing to the steepness and difficulty of the terrain and the
proximity to the Bear River.
[¶11] On June 22, 2015, a bench trial was held on the question of whether Thornocks’
northern parcel was landlocked. On September 15, 2015, the district court issued its
Findings of Fact, Conclusions of Law, and Order on Landlock Hearing. The court
concluded that Thornocks had failed to establish the need for a private road because they
had not established that they were landlocked or that their access was substantially
inconvenient, and it denied their complaint for establishment of a private road. In
summarizing its ruling, the court explained:
The question of whether a private road is necessary
begins with a determination of whether the parcel of land has
an outlet or connection with a public road. W.S. § 24-9-
101(a). In this case, Thornocks’ northern parcel has a
connection with a public road on two fronts. First, the
characteristics of Poison Creek Road make it a public road.
Second, access to a public road could be built across the
natural barrier of the middle strip. The evidence did not
demonstrate that such a project would be unreasonably costly.
Because Thornocks’ northern parcel has access, it is not
landlocked.
[¶12] Thornocks filed a timely notice of appeal to this Court.
STANDARD OF REVIEW
[¶13] Our standard of review following a bench trial is as follows:
When reviewing a bench trial, this Court reviews the trial
court’s findings of fact for clear error and its conclusions of
law de novo. Moore v. Wolititch, 2015 WY 11, ¶ 9, 341 P.3d
421, 423 (Wyo.2015). Additionally,
[t]he 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
3
the trial judge to assess the credibility of the witnesses,
and our review does not entail reweighing 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.
Id. (quoting Miner v. Jesse & Grace, LLC, 2014 WY 17, ¶ 17,
317 P.3d 1124, 1131 (Wyo.2014)). “‘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.’” Id., ¶ 10, 341 P.3d at 423
(quoting Miner, ¶ 17, 317 P.3d at 1131).
Wimer v. Cook, 2016 WY 29, ¶ 9, 369 P.3d 210, 215 (Wyo. 2016).
DISCUSSION
[¶14] Thornocks contend that the district court erred in ruling that their northern parcel
is not landlocked and that they had not therefore made the required showing of necessity
to support their private road complaint. In so arguing, they challenge the court’s finding
that Poison Creek Road is a public road as well as the court’s finding that construction of
a road on the strip of Thornock land connecting their two parcels is not unreasonably
costly. Because we find that the court’s conclusions regarding Poison Creek Road are
supported by both the law and the record, we uphold the district court’s ruling.
A. Legal Framework Governing Private Road Application
[¶15] Wyoming’s private road statute was enacted to ensure that a landowner who
otherwise has no access to his property is able to use his land for productive purposes.
Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 289 (Wyo. 1991) (quoting 2 Thompson
on Real Property §§ 362–368 (1980 Repl.)); see also Hulse v. First Am. Title Co., 2001
WY 95, ¶ 33, 33 P.3d 122, 133 (Wyo. 2001) (private road statute serves “public policy
against landlocking property and rendering it useless.”). The statute outlines the
circumstances under which a private road will be considered and the information required
to support a private road complaint, providing in relevant part:
(a) Any person whose land has no outlet to, nor
connection with a public road, may commence an action in
district court in any county in which any part of the land is
located for a private road leading from his land to some
convenient public road. The plaintiff shall join as defendants
4
the owners of record, owners of recorded easements and
rights of way and any lessee, mortgagee or occupant of the
land over which any proposed road would cross. The
complaint shall contain a short and plain statement of:
(i) The legal description of the land owned by the
plaintiff to which access is sought and a statement that all or
some of the land is located within the county;
(ii) A specific statement as to why the land has no
legally enforceable access, other than a waterway, and
whether the land is surrounded on all sides by land owned by
another person or persons or a natural or man-made barrier
making access unreasonably costly;
(iii) A description of the plaintiff’s efforts to purchase
a legally enforceable access to a public road;
(iv) A description sufficient to identify the general
location of any access routes proposed by the plaintiff;
(v) The legal description of all land over which any
proposed access routes would cross; and
(vi) A statement as to whether any actions of the
plaintiff or any person with the consent and knowledge of the
plaintiff, caused the plaintiff’s land to lose or to not have any
legally enforceable access.
Wyo. Stat. Ann. § 24-9-101(a) (LexisNexis 2015).
[¶16] The private road statute is intended to provide “a readily available, economically
affordable, and time efficient method to obtain a means of access to property.” In re
Gallagher, 2011 WY 112, ¶ 15, 256 P.3d 522, 525 (Wyo. 2011) (quoting Martens v.
Johnson County Board of Comm’rs, 954 P.2d 375, 380 (Wyo. 1998)). The taking of
property for a private road is, however, constitutionally restricted, and any private road
applicant must make a threshold showing that the road is a necessity. Reidy v. Stratton
Sheep Co., 2006 WY 69, ¶ 11, 135 P.3d 598, 604 (Wyo. 2006); see also Price v.
Hutchinson, 2014 WY 162, ¶ 28, 340 P.3d 1002, 1011 (Wyo. 2014) (quoting Crago v.
Bd. of County Comm’rs, 2007 WY 158, ¶ 17, 168 P.3d 845, 854 (Wyo. 2007)) (“Wyo.
Const. Art. I, § 32 mandates that in order to constitutionally justify a private
condemnation of property, there must be necessity.”).
5
[¶17] To establish the requisite necessity, a private road applicant must show that his
property is landlocked, that is that the property “has no legally enforceable means of
access to a public road.” Altaffer v. Cross, 2013 WY 79, ¶ 9, 304 P.3d 932, 935 (Wyo.
2013); see also Crago, ¶ 6, 168 P.3d at 849 (quoting Pine Bar Ranch, LLC v. Luther,
2007 WY 35, ¶ 9, 152 P.3d 1062, 1066 (Wyo. 2007)) (“[O]nce a landowner has proved
that he has no ‘legally enforceable means by which he can gain access' to a public road,
then he has demonstrated the ‘necessity’ for a private road.”). We have clarified that the
requirement of a legally enforceable outlet or connection to a public road is relevant only
if the applicant’s property does not have direct access to a public road.
The “legally enforceable” inquiry is relevant only in
determining whether a person has such a connection with, or
outlet to, a public road. See, e.g., McGuire, 608 P.2d at 1286;
Reaves v. Riley, 782 P.2d 1136 (Wyo.1989). However, if a
landowner has direct access to a “public road” under our
statute, the question of legal enforceability is irrelevant and a
private road is not necessary.
Reidy, ¶ 24, 135 P.3d at 607.
[¶18] The necessity inquiry does not end with a finding of access to a public road. The
convenience of using that available public road is also a factor in determining the
necessity of a private road. Reidy, ¶ 27, 135 P.3d at 608. We have explained, however,
that the inconvenience that must be shown to prove necessity despite public road access
must be substantial:
The convenience factor must, however, be applied
judiciously. Wyo. Const. Art. I, § 32 mandates that in order to
constitutionally justify a private condemnation of property,
there must be necessity. Consequently, the inconvenience
which would justify a private taking must be substantial. In
fact, it must be so substantial it is functionally equivalent to
necessity. Our case law bears this out. We have never
approved a private road simply on the basis that it would be
more convenient to the applicant than another already
existing means of access. Rather, only when the record
contains evidence showing the alternative access is obviously
impractical and unreasonable has this Court approved the
creation of a private road under the statutes.
Price, ¶ 28, 340 P.3d at 1011-12 (quoting Crago, ¶ 17, 168 P.3d at 854) (emphasis in
original).
6
[¶19] From the private road statute and our cases interpreting that statute, we draw the
following framework to determine whether a private road applicant has established the
necessity of a private road:
1) Does the private road applicant’s property have direct access to a public
road or a legally enforceable connection with or outlet to a public road?
2) Does that public road provide convenient and reasonable access to the
applicant’s property?
[¶20] If both questions are answered in the affirmative, the private road applicant has
failed to establish the necessity of the requested private road. We turn then to our review
of the district court’s findings in regard to each of these questions.
B. Application of Legal Framework
[¶21] The district court found that Poison Creek Road is a public road, and it concluded
that because Thornocks’ northern parcel has direct access to Poison Creek Road, the
northern parcel is not landlocked. Thornocks do not dispute that their northern parcel has
direct access to Poison Creek Road. What they do dispute is the finding that Poison
Creek Road is a public road and the conclusion that Poison Creek Road provides them
the type of access to their northern parcel to which they are entitled. The determinations
we must make then are: 1) whether the record supports the district court’s conclusion that
Poison Creek Road is a public road; and 2) whether Poison Creek Road provides
Thornocks’ adequate access to their northern parcel.
Poison Creek Road as Public Road
[¶22] We have defined a public road as “one that the public generally—not merely a
portion of the public—is privileged to use.” Reidy, ¶ 13, 135 P.3d at 605 (quoting
McGuire v. McGuire, 608 P.2d 1278, 1288 (Wyo. 1980)). We have further held, as a
matter of law, that “a road over federal lands may be considered a public road within the
meaning of our private road statutes, provided the characteristics of the road indicate it is
available to the general public.” Id., ¶ 19, 135 P.3d at 606.
[¶23] The portion of Poison Creek Road at issue crosses state and federal lands before
entering Thornocks’ northern parcel so the question is whether the road’s characteristics
indicate it is available to the general public. The BLM has categorized the portion of
Poison Creek Road that crosses the federal lands between Thornocks’ southern and
northern parcels as a two-track road that is not maintained by the BLM but which exists
and is open to the public for casual or recreational use. The record contains no similar
categorization from the State of Wyoming concerning the specific state lands and road in
question, but Wyoming’s state land rules do specify that state lands and roads on those
lands are open to the public for casual recreational use, unless the lands or roads are
7
closed by order of the State Board of Land Commissioners. Rules and Regulations, Bd.
of Land Comm’rs, Ch. 13, §§ 3-5 (April 28, 1993). The record contains no evidence that
the Board of Land Commissioners has ordered closure of Poison Creek Road or the state
lands it crosses. It would appear then that Poison Creek Road, as it runs between
Thornocks’ southern and northern parcels, is a public road—that is, “one that the public
generally—not merely a portion of the public—is privileged to use.” Reidy, ¶ 13, 135
P.3d at 605.1
[¶24] Thornocks offer two arguments against this conclusion. First, they argue Poison
Creek Road is not a public road as it runs between their two parcels because they control
access to the road and only allow individuals who obtain permission from them to use the
road. Because Thornocks control access to the road, they contend the road is not one that
the public generally is privileged to use. The district court rejected this argument, and we
must agree.
[¶25] A road may be public over portions of its course and private over other portions of
its course, and the private portions do not change the character of the public portions. See
Miller v. Bradley, 4 P.3d 882, 889 (Wyo. 2000) (acknowledging road in question was
private in parts but concluding portion to which applicant sought connection was public
road). The record is clear that the BLM and the State consider Poison Creek Road, as it
runs between Thornocks’ two parcels, to be a public road, open for use by the public
generally rather than merely by a portion of the public. This is not altered by the fact that
Thornocks control access to the road. Moreover, Thornocks themselves have unfettered
access to Poison Creek Road between their two parcels. Thus, while Thornocks’
gatekeeping actions may, as a practical matter, change who in fact uses Poison Creek
Road between their parcels, their actions do not change the public character of the road or
Thornocks’ own ability to use it as a public road.2
[¶26] Thornocks next argue that Poison Creek Road is not available to the public
generally because recreational users are allowed to use the road, while commercial users
are restricted. This is a creative argument, but we again must reject it.
1
Thornocks asserted in their briefing to this Court that the State of Wyoming does not consider Poison
Creek Road a public road, but they provide no record citation to support this assertion and we were
unable to find any such indication in our review of the record.
2
It is also worth noting that a factor the private road statute requires a court to consider in determining
necessity is the extent to which the applicant’s own actions contributed to the loss of access. See Wyo.
Stat. Ann. § 24-9-101(a) (requiring disclosure of any actions of road applicant that caused the applicant’s
loss of access). Thus, if an applicant’s own behavior were to change the public character of an access
road, this would seem to do little to enhance a showing of necessity given that the applicant then would
have caused his own landlocking.
8
[¶27] Neither the BLM nor the State bars any member of the public from using Poison
Creek Road. What the governing agencies restrict is not who uses the road, but rather the
manner in which the road is used. We are not persuaded that conditions or restrictions on
the manner in which the public is permitted to use a public road alters the public
character of the road. Thornocks cite no authority to support this proposition, and in our
own decisions, our determination of whether a road is public has focused on who is
allowed to use the road, not on the manner in which they are allowed to use the road. For
example, in Pine Bar Ranch, we found the access road in question was not a public road
based on the limited class of individuals allowed to use the road.
Unlike the “voluminous testimony and documentary
evidence” presented in Reidy indicating the road was open to
the general public, the evidence presented in this case
indicates that the use of the Surrell Creek Road was limited to
employees, former employees, and family members of the
LHart Ranch.
Pine Bar Ranch, ¶ 15, 152 P.3d at 1069; see also Wagstaff v. Sublette County Bd. of
County Comm’rs, 2002 WY 123, ¶ 17, 53 P.3d 79, 83-84 (Wyo. 2002) (holding dirt track
did not constitute public road because “no evidence was presented that the public
generally has the privilege to traverse the unimproved dirt tracks on the State and BLM
land involved.”).
[¶28] While the conditions and restrictions the BLM and State have placed on the use of
Poison Creek Road do not affect the road’s status as a public road, they are relevant to the
question of whether the access the road provides is adequate. We turn then to that part of
our analysis.
Adequacy of Access Provided by Poison Creek Road
[¶29] Thornocks installed pivot irrigation on their northern parcel in 2010 and 2012 and
have since then used the property for haying, grazing, and recreational purposes, which
are the same uses they intend for the property in the future. During the June 22, 2015
evidentiary hearing on this matter, Jason Thornock testified that he had used Poison
Creek Road to access the northern parcel. When asked if he had also used Poison Creek
Road to access the northern parcel with heavy equipment and to remove hay during the
three to four years the property had been put to that use, Mr. Thornock repeatedly
invoked his Fifth Amendment right to remain silent. Based on Mr. Thornock’s
invocation of his right to remain silent, the district court made the following finding,
which Thornocks do not contest on appeal:
This Court infers from his silence that Thornock has
used the Poison Creek Road across state and BLM parcels for
9
commercial purposes. This Court is persuaded by Baxter v.
Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47
L. Ed. 2d 810 (1976), that it may properly draw adverse
inferences in a civil action when a party invokes the Fifth
Amendment and refuses to answer questions.
[¶30] It is against this backdrop that we consider the district court’s conclusion that
Poison Creek Road provides Thornocks reasonable and convenient access to their
northern parcel. Specifically, the court concluded:
The Poison Creek Road is conducive to the productive
use of the property. If Thornock desires to use a semi to haul
cattle across the state and federal land that he has the
exclusive permits to graze livestock on, it is reasonable that
this Court require him to seek the appropriate permits rather
than create a private road across the neighbor’s land for that
convenience. Thornock must pursue the legal permits for the
commercial purposes he seeks when he clearly already has
access. The road, which is difficult to travel in the winter, is
never closed by BLM. * * *
Thornock testified that he did not prefer access on the
Poison Creek Road because such access would affect the
marketability of his land. In other words, a title insurance
company will not insure title on land with access across
public land. Thornock’s interest in obtaining a more
convenient access or in obtaining title insurance to make the
northern parcel more marketable does not outweigh the
interest of the neighboring landowners to maintain property
free from intrusion. The purpose of the private road statute is
to create accessibility; it is not to create or improve
marketability of land. Thornock’s preference is not the same
as a demonstration of substantial inconvenience.3
[¶31] Thornocks contend that the district court erred in concluding that Poison Creek
Road provided adequate access to their northern parcel because the access they are
entitled to is a legally enforceable right of access that is appurtenant to their property and
Poison Creek Road does not provide them with that type of access. They further contend
3
Thornocks asserted in the statement of facts portion of their brief that the condition of Poison Creek
Road in the winter makes it unsuitable for their intended use of the northern parcel. They did not,
however, develop this assertion into a necessity argument or even discuss the road’s seasonal condition in
their argument on necessity. We therefore need not address the winter condition of the road further, and
for that reason, we omitted the district court’s discussion of Poison Creek Road’s winter condition from
this quoted portion of the court’s order.
10
that they are not required to obtain a commercial use permit in lieu of seeking a private
road and if we were to uphold the district court’s decision, it would require that we
overturn our decision in Voss v. Albany County Comm’rs, 2003 WY 94, 74 P.3d 714
(Wyo. 2003). We disagree.
[¶32] In Reidy, we addressed arguments similar to those made by Thornocks. The road
applicant in that case, Stratton Sheep Co., contended that a forest service road that
adjoined its property did not provide legally adequate access to their property. Reidy,
¶ 23, 135 P.3d at 607. Relying on our holding in Voss, Stratton contended that the access
it was entitled to under the private road statute is access that constitutes a legally
enforceable right appurtenant to its property. Id. We rejected the argument, explaining:
Stratton contends FS 807 is not a public road because
it could be closed at some time in the future, and the access
provided by the road, therefore, is not “legally enforceable”
under the statute. The board’s decision letter indicates it
followed a similar rationale, stating: “[t]here is no legally
enforceable right to use the Forest Road 807 by any member
of the public according to the evidence.” It appears this
reasoning stems from a misreading of our opinion in Voss to
the effect that the right to use a public road on federal land
must be “legally enforceable.” In Voss, we concluded a
personal thirty year right-of-way grant/temporary use permit
over BLM land was not “legally enforceable access” to the
public road in question—a county road. Voss, ¶ 13, 74 P.3d at
719. By its terms, the grant terminated after thirty years and,
although it was renewable at that time, renewal was not
guaranteed. Furthermore, the permit was personal and did not
“pass automatically upon conveyance of the property.” Id.
Instead, the grant was assignable only upon approval by the
BLM. Id. Because it was obviously a personal right-of-way,
we did not directly address the issue of whether the access
road over BLM property in Voss was a public road.
The “legally enforceable” inquiry is relevant only in
determining whether a person has such a connection with, or
outlet to, a public road. See, e.g., McGuire, 608 P.2d at 1286;
Reaves v. Riley, 782 P.2d 1136 (Wyo.1989). However, if a
landowner has direct access to a “public road” under our
statute, the question of legal enforceability is irrelevant and a
private road is not necessary. Although we did not directly
address this principle in Voss, we did recognize the
underlying goal of the private road statute is to provide access
11
to the public road system. Voss, ¶ 32, 74 P.3d at 723–24. See
also, Miller v. Bradley, 4 P.3d 882, 889 (Wyo.2000);
Dunning v. Ankney, 936 P.2d 61, 64 (Wyo.1997). Because
the record in this case demonstrates FS 807 is open to, and
used by, the general public, it is distinguishable from Voss.
No right of way is required to use FS 807 and, since it is open
to the general public, there is no question about transferability
of the right to use the road.
In determining FS 807 could not be considered a
public road under our case law, the board misinterpreted our
precedent. This Court has never held a road on federal
property cannot be a public road under the private road
statute. In fact, we held just the opposite in McGuire, which
has never been overruled. To be completely clear, we hold, as
a matter of law, roads over federal lands may be considered
public roads under our private road statutes. Of course, the
individual characteristics of each road will determine its
status. In this case, when the correct rule of law is applied to
the essentially undisputed facts, it is clear FS 807 is a public
road. We conclude the board erred when it failed to
recognize FS 807 as a public road and ruled that Stratton had
proven necessity because its access via FS 807 was not
“legally enforceable.”
Reidy, ¶¶ 23-25, 135 P.3d at 607-08.
[¶33] The facts in the case before us are similar. As discussed earlier, Poison Creek
Road is a public road and Thornocks are not required to use an outlet or connection to
access it because their northern parcel adjoins and has direct access to the road. As in
Reidy, the fact that Thornocks’ right to use Poison Creek Road is not a legally
enforceable right appurtenant to their property does not change the adequacy of the
access it provides to their northern parcel.
[¶34] The fact that Thornocks must obtain a permit to lawfully use Poison Creek Road
for commercial purposes likewise does not affect the adequacy of the access provided by
the road. Thornocks have access to the road, and they presented no evidence that
obtaining the commercial permit imposes a substantial burden on them or is “obviously
impractical and unreasonable.” Price, ¶ 28, 340 P.3d at 1012. In fact, Jason Thornock
testified that his father used the same process to obtain commercial access and the right to
improve a road over other federal property in the county.
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[¶35] Finally, we agree with the district court that the negative effect on Thornocks’
property values of having public road access to their property rather than legally
enforceable access is irrelevant to the question of necessity under the private road statute.
The statute is “an expression of public policy against landlocking property and rendering
it useless.” Crago, ¶ 17, 168 P.3d at 855 (quoting Hulse, ¶ 33, 33 P.3d at 133). The
statute allows the taking of private property to protect against landlocking, not to improve
the marketability of the road applicant’s land.
[¶36] Because we uphold the district court’s ruling on the basis that Thornocks have
access to their northern parcel via a public road, we need not address the court’s finding
that construction of a road on the strip of land connecting Thornocks’ southern and
northern parcels would not be unreasonably costly. We likewise need not address the
Appellees’ additional issue of whether a natural barrier can be one that exists on the
private road applicant’s own land.
CONCLUSION
[¶37] The record shows that Thornocks have direct access to their northern parcel via a
public road that provides access that is both convenient and reasonable. The district court
therefore correctly ruled that Thornocks’ northern parcel is not landlocked and that they
failed to establish the necessity for a private road. Affirmed.
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