IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 34

OCTOBER TERM, A.D. 2012

March 19, 2013

BARLOW RANCH, LIMITED

PARTNERSHIP,

Appellant,

(Defendant),

v.

GREENCORE PIPELINE COMPANY

LLC,

Appellee

(Plaintiff).

GREENCORE PIPELINE COMPANY,

LLC,

Appellant

(Plaintiff),

v.

BARLOW RANCH, LIMITED

PARTNERSHIP,

Appellee

(Defendant).

S-12-0038

S-12-0039

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.
1

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:
2

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 
3

[¶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. 
4

of $25.00 per rod3and 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. Some of 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. 
5

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).
6

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.
7

§ 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.
8

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
9

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
10

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] In 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. 
11

[¶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
12

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. 
13

[¶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.
14

[¶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.
15

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
16

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, 59

th

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
17

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. LavacaNavidad 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,
18

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. 
19

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” 10as 

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.

No.

Parties Date Size Initial

Payment

Terms

Annual/

Subsequent

Payment

Additional

Information

D-1 Barlow/

Thunder

Creek

4/17/02 100 foot

construction

easement/

50 foot

permanent

easement

16 inch

pipeline

$15 per

rod

$7.50 per rod

annual

Traverses

Barlow

property

without

connecting

to facilities

D-2 Barlow/

Bear Paw

7/25/02 100 foot

construction

easement/50

foot

permanent

easement

$15 per

rod

$7.50 per rod

with CPI

adjustment

Connects to

another

pipeline on 

Barlow’s 

property

 

10 The district court misquoted § 1-26-704(a)(iii)(B) in its decision letter by replacing the word “size”

with “style.” 
20

16 inch

pipeline

D-3 Barlow/

Optigas

2/17/03 100 foot

construction

easement/50

foot

permanent

easement 16

inch pipeline

$15 per

rod

initial

$7.50 per rod

with CPI

adjustment

Connects to

receipt point

on Barlow

property

D-4 Barlow/

Western Gas

12/6/04 75 foot

construction

easement/30

foot

permanent

easement 12

inch pipeline

$25 per

rod for

initial 10

year

term

Renewable at

same rate with

CPI adjustment

for additional

10 year terms

Connects

with facility

on Barlow

property

D-5 Barlow/

Bear Paw

3/21/05 100 foot

construction

easement/

50 foot

permanent

easement 16

inch pipeline

$15 per

rod

$7.50 per rod

annual with

CPI adjustment

Connects to

receipt point

on Barlow

property.

D-6 Barlow/

Thunder

Creek

8/1/05 80 foot

construction

40 foot

permanent

easement 16

inch pipeline

$15 per

rod

$7.50 per rod

annual

Runs

parallel to

D-1

D-7 Barlow/

Western Gas

9/8/05 75 foot

construction

30 foot

permanent

12 inch

pipeline

$25 per

rod for

initial 10

year

term

Renewable at

same rate with

CPI adjustment

for additional

10 year terms

Runs

parallel to

D-4

D-8 Barlow/

Fort Union

5/23/07 permanent

easement of

two 50 foot

strips of

land two 24

inch

pipelines

$50 per

rod plus

$20 per

rod

consulting fee

for loss

of

Barlow

testified that

annual payment

calculated with

two site leases

and was $8.75

with CPI

adjustment.

Connects to

facility on

Barlow

property
21

grazing11

D-9 Barlow/

Western Gas

5/23/07 75 foot

construction

30 foot

permanent

three 12

inch

pipelines

$25 per

rod for

initial 10

year

term

Renewable at

same rate with

CPI adjustment

for 10 year

terms

Connects to

facilities on

Barlow

property

D-10 Barlow/

Western Gas

2/27/08 75 foot

construction

30 foot

permanent

three 12

inch

pipelines

$25 per

rod for

initial 10

year

term

Renewable at

same rate with

CPI adjustment

for 10 year

terms

Connects to

facilities on

Barlow

property

D-11 Barlow/

Western Gas

3/18/09 135 foot

construction

100 foot

permanent

two 24 inch

pipelines

$30 per

rod for

initial 10

year

terms

which

included

$5 per

rod for

loss of

grazing.

Renewable at

$25 per rod

with CPI

adjustment for

10 year terms

Connects to

facilities on

Barlow

property

D-12 Barlow/

Thunder

Creek

4/20/11 60 foot

construction

easement/30

foot

permanent

easement 3

inch pipeline

$15 per

rod

$7.50 per rod

annual with

CPI adjustment

Connects

existing

pipeline to

wells on

Barlow

property

E-1

E-2

Maycock/

CMS

6/15/99 75 foot

construction

easement/50

foot

permanent

24 inch

$25 per

rod for

initial 15

year

term

Renewable for

3 additional 15

year terms at

rates which

decrease by

$5.00 per rod

Traverses

Maycock

property,

paralleling 

Greencore’s 

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.” 
22

pipeline for each term for some

distance

E-3

E-4

Maycock/

Western Gas

4/29/04 50 foot

construction

20 foot

permanent

easement 16

inch

pipeline.

$25 per

rod for

initial 10

year

term

Renewable for

additional 10

year terms for

$25 per rod

with CPI

adjustment

Traverses

Maycock

property,

paralleling

E-1 and E-2

and 

Greencore’s 

easement 

E-5

E-6

Maycock/

Western Gas

6/6/08 85 foot

construction

20 foot

permanent

easement 16

inch pipeline

$25 per

rod for

initial 10

year

term

Renewable for

additional 10

year terms for

$25 per rod

with CPI

adjustment

Negotiated

with a road

easement

which

required an

annual

payment

F-4 Nisselius

Ranch/

Optigas

11/18/08 70 foot

construction

30 foot

permanent

easement for

a 6 inch

pipeline

$20 per

rod

$10 per rod

with CPI

adjustment

every three

years

Connects to

another

pipeline

F-5 Mankin/

Thunder

Creek

8/2/05 80 foot

construction

40 foot

permanent

easement

$15 per

rod

$7.50 per rod

annual

Pipeline

crosses 

landowner’s 

property

F-6 TLE Ranch/

Thunder

Creek

9/19/11 75 foot

construction

25 foot

permanent

easement

plastic

pipeline

$25 per

rod

$5.00 per rod

annual

Connects

well on 

landowners’ 

property.

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: 
23

[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.
24

[¶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’slength’ 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
25

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 willingseller, 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
26

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, D10 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. 
27

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 
28

“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-ofway 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?
29

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-ofways” 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. 
30

[¶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
31

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
32

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—the value of 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 

analysis focused on the economic benefits and other gains to 

companies who acquired the land, not the loss of ranchland suffered by Barlow.

 
33

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 sixtythree 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,16with 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.” 
34

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. 
35

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.” 
36

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. Stat. Ann. § 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.
37

[¶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 

time of prices paid for goods and services. 

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
38

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.
39

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.
40

[¶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. 
41

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.