Craig Colton v. Town of Dubois

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 138OCTOBER TERM, A.D. 2022
November 3, 2022
CRAIG COLTON, individually,
Appellant
(Plaintiff),
v. S-22-0078
TOWN OF DUBOIS,
Appellee
(Defendant).
Appeal from the District Court of Fremont County
The Honorable Jason M. Conder, Judge
Representing Appellant:
Craig Colton, pro se.
Representing Appellee:
Rick L. Sollars, Western Law Associates, P.C., Lander, Wyoming.
Before FOX, C.J., KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
BOOMGAARDEN, J., delivers the opinion of the Court; KAUTZ, J., files a specially
concurring opinion.
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.
BOOMGAARDEN, Justice.
[¶1] Craig Colton filed a declaratory judgment action against the Town of Dubois
seeking to reclaim 30.17 acres of real property the Town previously sought to condemn but
ultimately acquired through a settlement agreement with Mr. Colton. The parties filed
cross-motions for summary judgment, and the district court entered judgment in favor of
the Town. Mr. Colton challenges the district court’s decision on appeal. We affirm.
ISSUES
[¶2] The dispositive issue is: 1
Whether, in his settlement agreement with the Town, Mr.
Colton waived any action he may have under Wyo. Stat. Ann.
§ 1-26-801(d) to reclaim the 30.17 acres.
FACTS
[¶3] In January 2008, Mr. Colton, Trustee of the Craig Colton Family Trust, dated
December 13, 1995, and Trustee of the Irrevocable Trust for Milo Jet Colton, dated March
24, 1999 (“the Trusts”), filed a complaint seeking a declaration of inverse condemnation
under Wyo. Stat. Ann. § 1-26-516. The Trusts owned a 77-acre parcel of real property
near the Dubois Municipal Airport and sought to prevent the Town from condemning any
portion of the property. The Town filed an answer and a counterclaim seeking to condemn
35 acres of the Trusts’ property under the Wyoming Eminent Domain Act, Wyo. Stat. Ann.
§ 1-26-501 et seq. The Town asserted its “Airport Master Plan” identified this property as
necessary for the airport’s redevelopment.
[¶4] At the end of a bench trial in October 2009, the district court orally held the Town
met its burden to establish condemnation and was entitled to take 30.17 acres of the Trusts’
property. 2 The district court set the matter out 60 days for a hearing on compensation with
a final order to be issued subsequently.
[¶5] Prior to the compensation hearing, the parties entered settlement negotiations
resulting in the Settlement Agreement Release and Covenants (“the settlement agreement”)
1
Mr. Colton raises several issues for the first time on appeal, including negligent misrepresentation, breach
of contract, and unconscionability. “[T]his Court will not consider an issue raised for the first time on
appeal unless it is jurisdictional or of such fundamental nature that it must be considered.” Moses Inc. v.
Moses, 2022 WY 57, ¶ 12, 509 P.3d 345, 350 (Wyo. 2022) (internal quotations and citation omitted). None
of these issues are jurisdictional, and Mr. Colton has not shown they are fundamental. Consequently, we
do not address them.
2
The exercise of a state’s power of eminent domain is commonly referred to as a “taking.” See Byrnes v.
Johnson Cnty. Comm’rs, 2020 WY 6, ¶ 14, 455 P.3d 693, 698 (Wyo. 2020).
1
signed on January 14, 2010. Under its terms, the Town agreed to pay the Trusts, through
Mr. Colton, a total of $229,430.86 for the 30.17 acres. The total amount represented the
Town’s initial offer to Mr. Colton of $170,430.86 plus an additional $59,000. The
settlement agreement also granted Mr. Colton road and utility easements over the 30.17
acres. Ultimately, the settlement agreement was conditioned upon Mr. Colton delivering
the deed to the property and the parties moving to dismiss the pending legal action with
prejudice. It also contained several terms releasing the Town from all past, present, and
future claims related to the disputed 30.17 acres.
[¶6] The same day the settlement agreement was signed, Mr. Colton signed a special
warranty deed conveying the 30.17 acres to the Town. The parties subsequently filed a
stipulated motion to dismiss. In February 2010, the district court entered an order
dismissing all the parties’ claims with prejudice.
[¶7] A little over 10 years later, in February 2020, Mr. Colton filed the current
declaratory judgment action seeking to reclaim the 30.17 acres he deeded to the Town. Mr.
Colton contended the Town failed to make substantial use of the property during the
preceding 10 years and therefore he was entitled to relief under Wyo. Stat. Ann. § 1-26-
801(d), which provides:
If a public entity acquires property in fee simple title under this
chapter but fails to make substantial use of the property for a
period of ten (10) years, there is a presumption that the property
is no longer needed for a public purpose and the previous
owner or his successor may apply to the court to request that
the property be returned to the previous owner or his successor
upon repayment of the amount originally received for the
property in the condemnation action. A public entity may rebut
the presumption created under this subsection by showing
good cause for the delay in using the property.
Wyo. Stat. Ann. § 1-26-801(d) (LexisNexis 2021).
[¶8] In November 2020, the Town moved for summary judgment 3 on two grounds. First,
the Town argued Mr. Colton expressly waived any future claims related to the 30.17 acres
under the settlement agreement. Second, the Town argued it did not acquire the property
as a taking under the Wyoming Eminent Domain Act because the parties stipulated to
3
The Town first responded to Mr. Colton’s complaint with a motion to dismiss for lack of subject matter
jurisdiction asserting Mr. Colton lacked standing because he had not participated in the previous action in
his individual capacity. The district court denied the Town’s motion to dismiss finding Mr. Colton was
inextricably intertwined with the Trusts and the ownership of the property. The district court found Mr.
Colton was a qualified successor of the property under Wyo. Stat. Ann. § 1-26-801(d).
2
dismissal of the condemnation action with prejudice, and Mr. Colton conveyed the property
through a special warranty deed. Mr. Colton filed a cross-motion for summary judgment.
[¶9] The district court held a hearing on the motions. Its order granted summary
judgment to the Town and denied Mr. Colton’s motion as moot. Mr. Colton timely
appealed the district court’s order.
STANDARD OF REVIEW
[¶10] “Wyoming Rule of Civil Procedure (W.R.C.P.) 56(a) authorizes summary judgment
when ‘the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Dellos Farms Inc. v. Sec. State Bank,
2022 WY 107, ¶ 7, 516 P.3d 846, 848 (Wyo. 2022) (quoting W.R.C.P. 56(a)). We review
a district court’s order granting summary judgment de novo. Forbes v. Forbes, 2022 WY
59, ¶ 30, 509 P.3d 888, 896 (Wyo. 2022) (citing Matter of Phyllis v. McDill Revocable Tr.,
2022 WY 40, ¶ 16, 506 P.3d 753, 759 (Wyo. 2022)). When reviewing a grant of summary
judgment:
We . . . afford no deference to the district court’s ruling. This
Court reviews the same materials and uses the same legal
standard as the district court. The record is assessed from the
vantage point most favorable to the party opposing the motion
. . . , and we give a party opposing summary judgment the
benefit of all favorable inferences that may fairly be drawn
from the record. A material fact is one that would have the
effect of establishing or refuting an essential element of the
cause of action or defense asserted by the parties.
Spence v. Sloan, 2022 WY 96, ¶ 22, 515 P.3d 572, 579 (Wyo. 2022) (internal citations
omitted) (quoting Miller v. Sweetwater Cnty. Sch. Dist. # 1, 2021 WY 134, ¶ 13, 500 P.3d
242, 246 (Wyo. 2021)).
DISCUSSION
[¶11] Mr. Colton asserts summary judgment is inappropriate because there is a dispute of
material fact related to whether the Town acquired the 30.17 acres under the Wyoming
Eminent Domain Act, as is necessary to maintain an action under Wyo. Stat. Ann. § 1-26-
801(d). Even though he signed a special warranty deed and the eminent domain
proceedings were dismissed with prejudice, Mr. Colton contends the settlement
agreement’s clear and unambiguous references to the term “taking” reflect the Town
nevertheless acquired the property through eminent domain. The Town asserts the 30.17
acres was acquired by purchase under the settlement agreement, through which Mr. Colton
clearly waived any future claims related to the property. Though Mr. Colton quotes the
3
waiver provisions of the settlement agreement, he does not directly address the waiver issue
on appeal. We find the waiver issue to be dispositive.
[¶12] “[T]he question of waiver is often one of fact[.]” Skaf v. Wyo. Cardiopulmonary
Services, P.C., 2021 WY 105, ¶ 13, 495 P.3d 887, 892 (Wyo. 2021) (quoting Verheydt v.
Verheydt, 2013 WY 25, ¶ 21, 295 P.3d 1245, 1250 (Wyo. 2013)). However, “when the
facts and circumstances relating to the subject are admitted or clearly established, waiver
becomes a question of law which we consider de novo.” Id. (quoting Verheydt, ¶ 21, 295
P.3d at 1250). This Court has “defined waiver as the intentional relinquishment of a known
right that must be manifested in some unequivocal manner.” Id. ¶ 14, 495 P.3d at 893
(footnote omitted) (quoting Jensen v. Fremont Motors Cody, Inc., 2002 WY 173, ¶ 16, 58
P.3d 322, 327 (Wyo. 2002)). “[T]he three elements of waiver are: 1) an existing right;
2) knowledge of that right; and 3) an intent to relinquish it.” Id. (quoting Jensen, ¶ 16, 58
P.3d at 327). Where, as here, the waiver involves a statutory right, we also must consider
whether the waiver would affect public policy or public interest. Id. ¶ 16, 495 P.3d at 893
(citing Borman v. Sweetwater Cnty. Sch. Dist. No. 2, 627 P.2d 1364, 1368 (Wyo. 1981)).
[¶13] We first consider whether Mr. Colton has a statutory right under Wyo. Stat. Ann.
§ 1-26-801(d). Skaf, ¶ 14, 495 P.3d at 893. If the Town acquired the property under the
Wyoming Eminent Domain Act, Mr. Colton would have a statutory right to apply to
reclaim the property if he qualified as the previous owner or a successor and if the Town
failed to make substantial use of the property for 10 years. Because it does not impact our
ultimate conclusion, we infer to Mr. Colton’s benefit that the Town acquired the property
under the Act. The Town does not dispute Mr. Colton is the previous owner and the Town
failed to use the property for airport development. The district court found Mr. Colton was
a qualified successor of the property under Wyo. Stat. Ann. § 1-26-801(d). Mr. Colton
therefore has an existing statutory right, the nature of which we more fully describe below,
see infra ¶¶ 20–21.
[¶14] The second element requires that Mr. Colton knew of his opportunity to reclaim the
property under Wyo. Stat. Ann. § 1-26-801(d) at the time he signed the settlement
agreement. Skaf, ¶ 14, 495 P.3d at 893. The current version of subsection (d) became
effective in July 2007. 2007 Wyo. Sess. Laws ch. 139, §§ 2, 3 (H.B. 124). Mr. Colton
filed his complaint against the Town in January 2008 and signed the settlement agreement
on January 14, 2010. The provisions of the Wyoming Eminent Domain Act, which include
§ 1-26-801(d), were the primary basis for the parties’ claims throughout the dispute leading
to the settlement agreement. Therefore, Mr. Colton knew of the right afforded by § 1-26-
801(d) at the time he signed the settlement agreement. See e.g., Borman, 627 P.2d at 1373
(stating “as a general rule contracting parties are presumed to have had in mind all existing
laws relating to contracts”); 17 Am. Jur. 2d Contracts § 228 (Aug. 2022 Update) (“As a
broad principle, the law in force at the time a contractual transaction is consummated and
made effectual determines the contract’s validity and effect.”).
4
[¶15] The third element necessary to establish waiver on summary judgment requires
there to be no dispute of material fact that Mr. Colton intended to relinquish his opportunity
to pursue a claim under Wyo. Stat. Ann. § 1-26-801(d). Skaf, ¶ 14, 495 P.3d at 893. To
determine whether this element is satisfied, we must interpret the parties’ settlement
agreement, de novo, using the same principles we apply when interpreting contracts.
Kappes v. Rhodes, 2022 WY 82, ¶ 18, 512 P.3d 31, 36 (Wyo. 2022) (“A settlement
agreement is a contract, and it is subject to the same legal principles as those which apply
to any contract.” (quoting Matter of Est. of McCormick, 926 P.2d 360, 362 (Wyo. 1996)));
TEP Rocky Mountain LLC v. Rec. TJ Ranch Ltd. P’ship, 2022 WY 105, ¶ 37, 516 P.3d
459, 472 (Wyo. 2022) (“We interpret unambiguous contracts as a matter of law.” (quoting
Ecocards v. Tekstir, Inc., 2020 WY 38, ¶ 18, 459 P.3d 1111, 1118 (Wyo. 2020))).
[¶16] Our aim when interpreting contracts “is to determine the intent of the contracting
parties.” Holding v. Luckinbill, 2022 WY 10, ¶ 14, 503 P.3d 12, 17 (Wyo. 2022). “When
the provisions in the contract are clear and unambiguous, the court looks only to the ‘four
corners’ of the document in arriving at the intent of the parties.” TEP Rocky Mountain
LLC, ¶ 45, 516 P.3d at 474 (quoting Thornock v. PacifiCorp, 2016 WY 93, ¶ 13, 379 P.3d
175, 180 (Wyo. 2016)). We use an objective approach when interpreting contracts, thus
rendering the parties’ subjective intent irrelevant. Schell v. Scallon, 2019 WY 11, ¶ 16,
433 P.3d 879, 885 (Wyo. 2019) (citing Claman v. Popp, 2012 WY 92, ¶ 27, 279 P.3d 1003,
1013 (Wyo. 2012)). Further, we hold fast to the principle that “[t]he parties are free to
incorporate within their agreement whatever lawful terms they desire, and we are not at
liberty, under the guise of judicial construction, to rewrite the agreement.” Pennaco
Energy, Inc. v. KD Co., LLC, 2015 WY 152, ¶ 25, 363 P.3d 18, 26 (Wyo. 2015) (quoting
Davidson Land Co., LLC v. Davidson, 2011 WY 29, ¶ 14, 247 P.3d 67, 71 (Wyo. 2011)).
[¶17] Neither party claims the waiver provisions in the settlement agreement are
ambiguous. We conclude they are clear and unambiguous. Those provisions state:
PURPOSE OF SETTLEMENT
The purpose of this Settlement Agreement is to settle
and resolve, and the parties hereto have agreed to settle and
resolve, fully and finally, the issue of compensation to be paid
Colton by Dubois for the taking of the 30.17 acres and for all
claims, demands and actions of Colton against Dubois, arising
out of or in any way related to the issue of taking by Dubois
and for all matters related to the subdivision application filed
by Colton, as well as any and all other claims, whether asserted
or not in the State Court action, and whether known or
unknown, that any of the parties to this settlement agreement
may have as against the other now, or may have in the future
arising out of or in any way related to the above taking and
5
subdivision application, including State Court actions or
Federal Court action.
3.
RELEASE
Colton hereby releases Dubois from any and all claims,
demands, actions or causes of action, whether known or
unknown, arising from or related in any way to the above
described taking, the procedures of the same, the subdivision
application and the procedures of the [sic], and from any and
all claims, demands, actions or causes of action, whether
known or unknown, arising from or related in any way to any
allegations set forth in the State Court action.
4.
RELEASE VALID REGARDLESS OF FUTURE
DISCOVERY OF NEW OR DIFFERENT FACTS
The parties acknowledge that they or their attorneys
may discover facts different from or in addition to the facts that
they now know or believe to be true with respect to the taking
and subdivision application, and/or matters alleged in the State
Court Action. Notwithstanding this acknowledgement, Colton
and Dubois hereby do, fully, finally, absolutely and forever
settle any and all claims, disputes and differences that now
exist, may exist in the future, or have existed between them,
with respect to the taking and the subdivision application.
[¶18] The stated purpose of the settlement agreement is to resolve any claims the parties
“may have in the future arising out of or in any way related to the above taking[.]” This
purpose is further reflected in the terms of the settlement agreement. In multiple sections
Mr. Colton agreed to release the Town from “any and all” claims. The settlement
agreement also definitively states “Colton and Dubois hereby do, fully, finally, absolutely
and forever settle any and all claims, disputes and differences that now exist, [and] may
exist in the future . . . with respect to the taking[.]” The release provisions are broad but
nonetheless unequivocal in expressing Mr. Colton’s intent to waive “any and all” future
claims, “related in any way” to the condemnation action, which would include any claims
he had pursuant to Wyo. Stat. Ann. § 1-26-801(d). See Moayedi v. Interstate 35/Chisam
Rd., L.P., 438 S.W.3d 1, 8 (Tex. 2014) (“Just because the waiver is all encompassing does
not mean that it is unclear or vague.”). Thus, the settlement agreement undisputedly
manifests the intent necessary to satisfy the third element of waiver.
6
[¶19] Though there is no dispute of material fact that all three elements of waiver are
present, our analysis is not complete. We still must determine whether a waiver of Mr.
Colton’s statutory right under Wyo. Stat. Ann. § 1-26-801(d) affects public policy or public
interest. “As a general rule a person may waive a statutory or constitutional right enacted
for the benefit of that person, if that right does not affect public policy or public interest.”
Skaf, ¶ 16, 495 P.3d at 893 (quoting Borman, 627 P.2d at 1368); see also Blondeau v.
Baltierra, 252 A.3d 317, 346 (Conn. 2020) (“[O]nly the party who benefits from or is
protected by the right may waive that right. . . . Parties may not waive statutory rights
[when] a question of public policy is involved. Likewise, a law established for a public
reason cannot be waived or circumvented by a private act or agreement.” (citation
omitted)). Because statutes often address public policy or are established to protect the
public, waivers of statutory rights are not favored. Skaf, ¶ 16, 495 P.3d at 893 (citing
Jensen, ¶ 22, 58 P.3d at 328).
[¶20] Expressions of specific public policy generally arise “from well-established
legislative, judicial, or administrative mandate.” Id. ¶ 24, 495 P.3d at 895 (quoting Dynan
v. Rocky Mountain Fed. Sav. & Loan, 792 P.2d 631, 640 (Wyo. 1990)). Wyo. Stat. Ann.
§ 1-26-801 specifically mandates the State, counties, and municipal corporations have
authority to condemn private property for a “public purpose.” Accordingly, the public
policy or interest served by § 1-26-801 is the acquisition, possession, occupation, and
enjoyment of private land by a public entity where the public interest and necessity so
require. See Wyo. Stat. Ann. § 1-26-801(c) (LexisNexis 2021); see also Wyo. Stat. Ann.
§ 1-26-504(a) (LexisNexis 2021). The section then concludes by stating that if a public
entity “fails to make substantial use of the [condemned] property for a period of ten (10)
years,” the previous owner (or successor) of the property, who was paid fair market value
for the property by the public entity, “may apply to the court to request that the property
be returned to the previous owner or his successor upon repayment of the amount originally
received for the property in the condemnation action.” Wyo. Stat. Ann. §§ 1-26-801(d), 1-
26-702 (LexisNexis 2021) (addressing compensation for a taking).
[¶21] Section 1-26-801(d) is not self-executing. Rather, it provides a previous property
owner (or successor) the opportunity to apply to reclaim property when the public’s interest
in acquiring the property has not been realized. As such, § 1-26-801(d) expressly operates
to the benefit of the previous owner (or successor) at their discretion under terms that
continue to protect the broader public interest served by granting condemnation authority
to public entities. Section 1-26-801(d) protects the broader public interest by requiring the
passage of 10 years without public use, and by allowing a public entity to “rebut the
presumption created under this subsection by showing good cause for the delay in using
the property.” Wyo. Stat. Ann. § 1-26-801(d). Under this statutory scenario, whether Mr.
Colton waives his statutory opportunity to reclaim the 30.17 acres does not affect the public
interest served by the legislature’s grant of condemnation authority to designated public
entities.
7
[¶22] As we have often noted, public policy or interest is also served when we recognize
an individual’s right to freely contract, including the freedom to settle and waive claims
when the parties so intend. Hassler v. Circle C. Res., 2022 WY 28, ¶ 12, 505 P.3d 169,
173 (Wyo. 2022) (“Competent parties have the right to freely contract.” (citation omitted));
Finely Res., Inc. v. EP Energy E&P Co., L.P., 2019 WY 65, ¶ 24, 443 P.3d 838, 846–47
(Wyo. 2019) (noting “[t]he right of private contract is no small part of the liberty of the
citizen” (quoting Nuhome Invs., LLC v. Weller, 2003 WY 171, ¶ 8, 81 P.3d 940, 944 (Wyo.
2003))). We do not lightly interfere with this liberty. Hassler, ¶ 12, 505 P.3d at 173; Finely
Res., Inc., ¶ 24, 443 P.3d at 846.
[¶23] The language of the Wyoming Eminent Domain Act’s good-faith negotiation
requirement acknowledges this principle, the purpose of which “is to encourage parties to
resolve disputes by agreement, thus preventing needless condemnation proceedings and
expenses.” EOG Res., Inc. v. Floyd C. Reno & Sons, Inc., 2020 WY 95, ¶ 20, 468 P.3d
667, 673–74 (Wyo. 2020) (citing Nichols on Eminent Domain, Ch. 24, § 24.13[1][a], at
24–155 (Matthew Bender, 3rd ed.)); see Wyo. Stat. Ann. §§ 1-26-509 to -511.
[¶24] For example, § 1-26-509(b)(vii) provides that, in a condemnor’s attempt to acquire
property by purchase, the parties may contract with respect to “[a]ny other terms or
conditions deemed appropriate by either of the parties.” Wyo. Stat. Ann. § 1-26-509(b)(vii)
(LexisNexis 2021). Wyo. Stat. Ann. § 1-26-511(a) further allows a property owner to
waive the condemnor’s good-faith requirement if it is “waived by written agreement
between the property owner and the condemnor[.]” Wyo. Stat. Ann. § 1-26-511(a)
(LexisNexis 2021). We do not see how Mr. Colton’s waiver of any right he has under § 1-
26-801(d) would contravene this statutory language or the public policy behind the
Wyoming Eminent Domain Act. Cf. Outfront Media, LLC v. City of Sandy Springs, 356
Ga.App. 405, 418, 847 S.E.2d 597, 610 (Ga. Ct. App. 2020) (allowing lessees to waive
their “right to just and adequate compensation in any type of condemnation proceedings,
which assignment or waiver we will enforce”); Fibreglas Fabricators, Inc. v. Kylberg, 799
P.2d 371, 375 (Colo. 1990) (stating “it is well established that a lessee may forego his or
her right to compensation—and permit the landlord to receive all the condemnation
proceeds—where the lease agreement contains a legally adequate ‘condemnation clause’
or ‘automatic termination clause’”).
CONCLUSION
[¶25] Because we can conclude as a matter of law the settlement agreement satisfies the
three elements of waiver and does not contravene the public policy behind the Wyoming
Eminent Domain Act, the Town is entitled to judgment as a matter of law. The district
court did not err in granting summary judgment in favor of the Town. Affirmed.
8
KAUTZ, Justice, specially concurring.
[¶26] I concur in the result of the majority opinion and in the determination that the
settlement language waived the right to reclaim the property under Wyo. Stat. Ann. § 1-
26-801(d) (LexisNexis 2021). However, when determining whether the waiver of Mr.
Colton’s interest is contrary to public policy, I find it necessary to focus on the specific
public policy established by § 1-26-801(d).
[¶27] “It is a long-standing axiom of contract law that a contract provision is void if the
interest in enforcing the provision is clearly outweighed by a contrary public policy.” In
re Village Homes of Colo., Inc., 405 B.R. 479, 483 (Bankr. D. Colo. 2009) (citing Mason
v. Orthodontic Ctrs. of Colo., Inc., 516 F.Supp.2d 1205, 1212 (D. Colo. 2007), and FDIC
v. Am. Cas. Co., 843 P.2d 1285, 1290 (Colo. 1992)). “[A] statutory right conferred on a
private party, but affecting the public interest, may not be waived or released if such waiver
or release contravenes the statutory policy.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697,
704, 65 S.Ct. 895, 900–01, 89 L.Ed. 1296 (1945). A waiver of a statutory right is
unenforceable on grounds of public policy only if “the interest in its enforcement is clearly
outweighed in the circumstances by a public policy against enforcement.” Restatement
(Second) of Contracts §178 (1981). The obvious purpose of the rule voiding waivers of
statutory rights is to protect the interest of the public in that statutory right, rather than the
interest of the individual contracting party. It is necessary, then, to determine the interest
of the public in § 1-26-801(d), rather than the interest of the public in the entire Wyoming
Eminent Domain Act, Wyo. Stat. Ann. §§ 1-26-501 through 1-26-817 (LexisNexis 2021).
[¶28] Section 1-26-801(d) establishes a policy that governmental entities in Wyoming
may not proclaim private property is necessary for a public use, take that property using
condemnation proceedings, and then not put that property to any public use for a period of
ten years. The statute enforces this policy by permitting the previous owner (or successor)
to reacquire the property, even though the government obtained the property “in fee simple
title.” Section 1-26-801(d). Although the statute creates a strong public policy against
governmental entities taking property through condemnation and then “banking” or not
using the property, it does not automatically revert the unused property to the previous
owner. Instead, § 1-26-801(d) gives the prior owner the option of requesting return of the
property. This statutory approach to enforcement of the policy requiring condemnors to
put the condemned property to public use gives the prior owner a choice to enforce the
policy or not. Similarly, a prior owner who settles the issue of condemnation has the choice
of waiving enforcement of the policy when the settlement is reached.
[¶29] The language of § 1-26-801(d) does not prohibit waiver of the public policy that the
statute establishes and enforces. Because a prior owner has the option of waiving the
interest after ten years, the public policy of § 1-26-801(d) does not conflict with a waiver
of the reacquisition right when the condemnation action is settled.
9