Loading...
HomeMy WebLinkAbout959774Jack D. Edwards, 6 -3 877 EDWARDS LAW OFFICE, P.C. PO Box 5345 Etna, WY 83118 (307) 883 -2222 jedwards@silverstar.com Attorney for Plaintiffs IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT IN AND FOR THE COUNTY OF LINCOLN, STATE OF WYOMING LUKE D. BROG, individually, and JENNIFER BROG, individually, Plaintiffs, and v. DARREN SUTHERLAND, Individually, ANY AND ALL OTHER PERSONS OR ENTITIES, ORDER UPON TRIAL THIS MATTER came before this Court for trial on Tuesday, April 12, 2011. The Plaintiffs were present and represented by counsel, Jack D. Edwards of EDWARDS Defendants. BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 1 of 8 CV- 2010 -60 -DC JilzJt 4 j MAY -4 2011 KENNETH D. RO^ERTS CLERK OF D 5T! ICT COURT 3rd JUDICIAL Ut::'. T rJCT LINCOLN COUNTY, STATE OF WYOMING 000350 RECEIVED 6/23/2011 at 12:34 PM RECEIVING 959774 BOOK: 768 PAGE: 350 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 2of8 LAW OFFICE, P.C. Defendant Darren Sutherland was present and represented by Kenneth S. Cohen, Cohen Law Office, P.C. By stipulation of the parties, Exhibits 1 -44 and Exhibits A -R T were admitted into evidence. Upon review of the stipulated facts and Exhibits, the Court was able to make a ruling on Plaintiff's Petition to Quiet the Easement, therefore, THE COURT, upon review of the stipulated facts, the Exhibits admitted into evidence and otherwise for good cause shown hereby makes the following findings of facts and conclusions of law as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over the parties and the subject matter herein pursuant to Article 5, 10 of the Wyoming Constitution and because the actions giving rise to this matter occurred in Lincoln County, Wyoming, and because Plaintiffs and Defendants resided in Lincoln County, Wyoming at all times relevant herein; 2. This Court is the proper venue for consideration for the matters that are the subject of this Complaint pursuant to W.S. 1- 5- 101(a) and 1 -5 -108 because the real property that is the subject of this matter is in Lincoln County, Wyoming. COMPLAINT TO QUIET EASEMENT 3. Plaintiffs are residents of Lincoln County, Wyoming, residing in Auburn, Wyoming. 4. Defendant recently moved to Portland, Oregon in February 2011. Prior to his move, Defendant was a resident of Lincoln County, Wyoming from 2004 to 2011, residing in Auburn, Wyoming. BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 3 of 8 000352 5. The parties were neighbors from May 2009 until February 2011, owning adjacent five acre parcels. Mr. Sutherland continues to own Lot 2 even though he lives in Oregon. 6. Plaintiffs own real property in Auburn, Lincoln County, Wyoming, more particularly described as follows: LOT 1 OF DOUBLE JC RANCHETTES I IN LINCOLN COUNTY, WYOMING AND AS INDICATED ON THAT WARRANTY DEED RECORDED IN BOOK 723PR, PAGE 831 AS DOCUMENT NO. 947391 IN THE LINCOLN COUNTY CLERK'S OFFICE, KEMMERER, WYOMING. This parcel is hereafter referenced as the `Grog Property (Exhibit 41) 7. Defendant Sutherland owns the property immediately to the East of the Brog Property in Auburn, Wyoming, more particularly described as follows: LOT 2 OF DOUBLE JC RANCHETTES I IN LINCOLN COUNTY, WYOMING AND AS INDICATED ON THAT QUITCLAIM DEED RECORDED ON FEBRUARY 25, 2011 IN BOOK 763, PAGE 85 AS DOCUMENT NO. 958267 IN THE LINCOLN COUNTY CLERK'S OFFICE, KEMMERER, WYOMING. This parcel is hereafter referenced as the "Sutherland Property 8. There exists a 30 foot easement between the Brog Property and the Sutherland Property, as indicated on the Plat of Double JC Ranchettes I, Lincoln County, Wyoming according to that plat filed July 22, 2003 in the Lincoln County Clerk's Office Plat No. 231 -B "the Easement (Exhibit 1) 9. For the length of the easement, (Approximately 380 feet) the 30 foot O003S3 Easement consists of the easternmost 15 feet of Plaintiffs' property and the westernmost 15 feet of Defendant's property. 10. The Plaintiff and Defendant had a 30' wide shared access easement. 11. A portion of Defendant's fence is within the Easement, as indicated on the Plat Map entitled Exhibit of Shared Access Easement Double JC Ranchettes I Lots 1 and 2 which was drafted and signed by Karl Scherbel, Licensed Surveyor, Afton, Wyoming. A portion of Plaintiffs' "Greenhouse" is also within the easement. (Exhibit 2) 12. Darren Sutherland, from time to time, parked his horse trailer on the Easement. 13. Brog requested that Sutherland not park his horse trailer within the Easement, believing that the Easement did not allow it. 14. Sutherland continued to park his horse trailer in the Easement, believing that it was allowed. 15. The Lincoln County Sheriff's Office was contacted on two occasions regarding this dispute between Brog and Sutherland. 16. That the language of the Easement was indicated on Exhibit 1. 17. That the language of the Easement is as follows: "that a right of ingress and egress over and across the shared access as shown on this plat is hereby granted to the owners of Lot 1 and Lot 2." and "Thirty (30) foot shared access easement appurtenant to Lot 1 and Lot 2" 18. That the Easement is clearly defined in writing and as illustrated on the Plat BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 4 of 8 BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 5 of 8 000354 Map marked as Exhibit 1. 19. In light of the circumstances, the language of the Easement is clear and unambiguous. 20. The language of the Easement does not allow for parking or the placement of a fence or any other structures within the Easement. 21. Since the Easement is an access easement, its primary function is for ingress and egress; travel to and from the appurtenant residential properties. 22. This Court, can, however, describe reasonable use of the access easement. 23. Being that the primary function is for ingress and egress, some functions secondary to ingress and egress are implied. R.C.R., Inc. v. Deline, 2008 WY 96, 23, 190 P.3d 140, 154 (Wyo. 2008) citing 4 Powell on Real Property, 34.12 (2007- 2008). 24. Functions secondary to ingress and egress include, momentary parking in order to unload items from a vehicle, for example. In such an event, a person should only use the Easement for the duration of time needed to serve the secondary function and no longer. 25. Another secondary function of the Easement would be to momentarily park to unload horses. In such an event, a person upon stopping the stop the truck and trailer should unload the horses and equipment, then move the truck and trailer off the Easement. 26. Another secondary function of the Easement could be to momentarily park a vehicle on the side of the easement because of a flat tire. In such an event, the duration 00035 e• of parking could be longer than amount of time necessary to unload horses but should only be long enough to remove the tire, have it repaired and reinstallation of the tire. Thereafter, the vehicle should be moved off of the easement. 27. Secondary functions of the easement do not include overnight parking or storage of vehicles. NOW THEREFORE, IT IS HEREBY ADJUDGED, ORDERED AND DECREED as follows: 1. Plaintiff's Complaint to Quiet the Easement is hereby GRANTED. 2. That on or before August 1, 2011 the Defendant shall remove his fence from the Easement and that the Plaintiff shall remove any encroachment of his Greenhouse within the Easement. BATTERY CLAIMS 3. The Court also finds that the Parties each stipulated to and moved to dismiss their battery claims. Said motion is GRANTED. IT IS SO ORDERED. DATED: this of .aq 2011. E NIS L. SAT 1 ERSON ISTRICT JUDGE STATE OF WYOMING BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 6 of 8 COUNTY OF LINCOLN 83. 1, Kenneth D. Roberts, Clerk of the Thud Judicial District Court within and foresail county and in the State of foresaid, do hereby certify the foregoing to be a fuk true, and complete copy. SIGNED 71;(2 Approved as to form: Attorney for Plaintiffs Jack D. Edwards, 6 -3877 EDWARDS LAW OFFICE, P.C. P.O. Box 5345 Etna, WY 83118 jedwards@silverstar.com Kenneth S. Cohen, 5 -1270 Cohen Law Office, P.C. P.O. Box 2467 Jackson, WY 83001 (307) 733 -4946 Attorney for Darren Sutherland BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 7 of 8 0003 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Order Upon Trial was delivered to the following individual(s) in the form and by the method indicated on April 2011. ORIGINAL TO: Kenneth S. Cohen Cohen Law Office, P.C. P.O. Box 2467 Jackson, WY 83001 E -mail: ken@kcohenlaw.com Attorney for Defendant Darren Sutherland DUPLICATE ORIGINAL TO: Hon. Dennis L. Sanderson PO Box 2077 Evanston, WY 82931 -2077 COPY TO: Lincoln County District Court PO Box 510 Kemmerer, WY 83101 EDWARDS BROG v. SUTHERLAND CV- 2010 -60 -DC ORDER UPON TRIAL Page 8 of 8 x U.S. Mail Fed Ex Fax Hand Delivered x Other: E -Mail x U.S. Mail Fed Ex Fax Hand Delivered Other: E -Mail x U.S. Mail Fed Ex Fax Hand Delivered Other: E -Mail AW OFFICE, P.0 000357 Jack D. Edwards Edwards Law Office, P.C. P.O. Box 5345 Etna, WY 83118 Kenneth S. Cohen Cohen Law Office, P.C. P.O. Box 2467 Jackson, WY 83001 Certificate of Service I, Emily Dyson, Deputy Clerk of Court, Lincoln County, Wyoming, herby certify that I served true correct copies of the foregoing document by First Class U.S. Mail on the 6th day of May, 2011, to the following: By: 000358