### IN THE SUPREME COURT, STATE OF WYOMING

201 3 W Y 34

OCTOBER TERM

, A.D. 201 2

M a r c h 1 9

, 2 0 1 3

B A R L O W R

A N C H

, L I M I T E D

P A R T N E R S H I P

,

A p p e l l a n t

, ( D e f e n d a n t )

,

v

.

G R E E N C O R E P I P E L I

N E C O M P A

N Y

L L C

,

A p p e l l e e ( P l a i n t i f f )

.

G R E E N C O R E P I P E L I

N E C O M P A

N Y

, L L C

,

A p p e l l a n t ( P l a i n t i f f )

,

v

.

B A R L O W R

A N C H

, L I M I T E D

P A R T N E R S H I P

,

A p p e l l e e ( D e f e n d a n t )

. S

- 12

- 0038

S

- 12

- 0039

Ap peal f rom the District Court of Campbell County

T he Honorable Keith G. Kautz , Judge

Representing Barlow Ranch, Limited Part n ership : D an B. Riggs, Mistee L. Elliott and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming. Argument by Mr. Riggs and Ms. Elliott.R e

p r e s e n t i n g G

r e e n c o r e P

i p e l i n e C o m p a n y , L L C : J o n T. Dyre of Crowley Fleck, PLLP, Billings, Montana; Timothy M. Stubson of Crowley Fleck, P LLP, Casper, Wyoming. Argument by M essrs. Dyre and

Stubson.

B e f o r e K I T E

, C

. J

. , a n d G O L D E N *

, H I L L

, V O I G T

, a n d B U R K E

, J J

.

* J u s t i c e G o l d

e n r e t i r e d e f f e c t i v e S e p t e m b e r 3 0

, 2 0 1 2

.

N O T I CE: This opinion is subject to formal revision before publication in Pacific Reporter Third.

R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e C l e r k o f t h e S u p r e m e C o u r t
, S u p r e m e C o u r t B u i l d i n g , C h e y e n n e , W

y o m i n g 8 2 0 0 2

, o f t y p o g r a p h i c a l o r o t h e r f

o r m a l e r r o r s s o c o r r e c t i o n m a y b e m a d e b e f o r e f i n a l p u b l i c a t i o n i n t h e p e r m a n e n t v o l

u m e

.1

K I T E

, C h i e f J u s t i c e

.

[¶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 (CO 2 ). The parties reached an agr eement 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 o f p r i c e s p a i d f o r o t h e r 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 easemen t 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 CO 2 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 distric t 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 Ba rlow’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.

I S S U E S

[¶ 5 ] The issues presented in these consolidated cases are:2

A

. D i d t h e d i s t r i c t c o u r t e r r b y c o n c l u d i n g c o m p a r a b l e e a s e m e n t s w e r e p r o p e r

e v i d e n c e t o e s t a

b l i s h t h e v a l u e o f a p a r t i a l t a k i n g o f r e a l p r o p e r t y f o r a p i p e l i n e

e a s e m e n t ?

B

. D i d t h e d i s t r i c t c o u r t e r r w h e n i t r u l e d t h e e a s e m e n t s o f

f e r e d b y B a r l o w a s

c o m p a r a b l e s w e r e n o t 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

. D i d t h e d i s t r i c t c o u r t e r r i n c o n c l u d i n g a n n u a l p a y m e n t s f o r a c o n d e m

n e d

e a s e m e n t a r e n o t p e r m

i s s i b l e u n d e r W

y o m i n g l a w ?

E

. D i d t h e d i s t r i c t c o u r t e r r w h e n i t r e f

u s e d t o r

u l e t h a t G r e e n c o r e w a s

e n t i t l e d t o a

b a n d o n i t s p i p e l i n e i n p l a c e w h e n i t s n e e d f

o r i t t e r m i n a t e s ?

F A C T S

[¶ 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 easemen t 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 an d Dixie Le a Maycock, Trustees of the Mitchel M. Maycock Revocable Trust, Mitchel M. Maycock and Dixie Le a Maycock, Trustees of the Dixie Le a Maycock Revocable Trust, Joseph C. Maycock (collectively “Maycocks”) or Brown

- Kennedy Ranch Co. (B

- K). Therefore, Greencore filed a complaint against those parties seeking

t o h a v e t h e p o r t i o n o f t h e i r p r o p e r t i e s a c r o s s w

h i c h t h e p i p e l i n e w o u l d r u n c o n d e m

n e d

p u r s u a n t t o W y o

. S t a t

. A n n

. § 1

- 2 6

- 8 1 4 ( L e x i s N e x i s 2 0 1 1 )

. 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 an d appurtenances or which may be affected by any operation connected with the3

[¶ 8 ] In its complaint, Greencore asked the distr ict 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 c ondemned property. In accordance with W y o

. S t a t

. Ann. § 1

- 26

- 513(a) (LexisNexis 2011)

, 2 G r e e n c o r e a l s o d e p o s i t e d w i t h t h e d i s t r i c t c o u r

t $ 1 3 6

, 3 2 3

. 8 3

, w

h i c h a m o u n t r e f

l e c t e d t h e c o m

b i n e d t o t a l o f i t s f

i n a l p u r c h a s e o f

f e r s t o B a r l o w , M a y c o c k s a n d 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 dis trict 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 a b a n d o n i t i n

p l a c e w h e n i t w a s n o l o n g

e r i n u s e

. T h e d i s t r i c t c o u r t s e t t h o s e m a t t e r s f

o r t r i a l

. P r i o r t o

t r i a l

, G r e e n c o r e a

n d B

- K e n

t e r e d i n t o a s e t t l e m e n t a g

r e e m e n t a n d t h e d i s t r i c t c o u r t
d i s m i s s e d B

- K w i t h p r e

j u d i c e p u r s u a

n t t o a s t i p u l a

t e d m o t i o n

.

[¶ 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 apprais al 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 si milar 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

c o n s t r u c t i o n o r m a i n t e n a

n c e o f t h e s a m e , t

h e u t i l i t y o r c o m p a

n y h a s t h e r i g h t o f e m i n e n t
d o m a i n a n d m a y c o n d e m n t

h e e a s e m e n t r e q u i r e d b y t h e u t i l i t y o r c o m p a

n y

.

2 Section 1

- 26

- 51 3(a) provides:

( a ) A t t h e t i m e o f c o m m e

n c i n g a n e m i n e n t d o m a i n p r

o c e e d i n g t

h e c o n d e m

n o r s h a l l deposit in court a

n 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 am ount 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 t he condemnor.

Greencore offered Barlow $42,603.66

, Maycocks $23,702.09 and B

- K $70,018.08.4

of $25.00 per rod 3 and an annual payment of $3.00 per rod with an annual consumer price index (CPI) adjustment. 4

[¶ 11 ] Greencore subsequently filed a motion for partial summary judgment asking the district court to rule as a matter of law that the only measure of damages in a

condemnation action for t he 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. Alterna tively, Greencore asked for a ruling that Barlow and Maycock s 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 f air 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 th ey 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 othe r 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 a nd 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.

[¶ 1 3 ] 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 show ing adverse impact from

abandonment o f 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 m e a s u r e o f t h e a v e r a g e c h a

n g e o v e r t i m e i n t

h e p r i c e s

p a i d b y u r b a

n c o n s u m e r s f o r a m a

r k e t b a s k e t o f c o n s u m e r g o o d s a

n d s e r v i c e s

. ” http://www.bls.gov/cpi/cpifaq.htm#Question _1 . Some of t

h e e a s e m e n t a g r e e m e n t s t i e d t h e a n n u a l

a d j u s t m e n t 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 t he previous calendar year.5

r e m o v i n g t h e p i p e l i n e o n c e i t i s a b a n d o n e d a n d i t w a s u n a b l e t o r

u l e o n t h a

t i s s u e u n t i l

t h e p i p e l i n e i s a b a

n d o n e d

. T h e d i s t r i c t c o u r t e n t e r e d j u d g

m e n t c o n s i s t e n t w i t h i t s f i n d i n g s a n d c o n c l u s i o n s a n d o r d e r e d G r e e n c o r e t o p a y B a r l o w $ 4 3

, 0 3 4

. 0 0

. B a r l o w

a p p e a l e d a n d G r e e n c o r e c r o s s a p p e a l e d

.

S T A N D A R D O F R E V I E W

[¶ 14 ] The district court conducted a bench trial in this case.

Following a bench trial , this Court reviews a district

court ’ s f i n d i n g s a n d c o n c l u s i o n s u s i n g a c l e a r l y e r r o n e o u s 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) [.]

T h e f a c t u a l f i n d i n g s o f a j u d g

e a r e n o t e n

t i t l e d t o t h e l i m i t e d r e v

i e w a f f o r d e d a j u r y v e r d i c t

. W h i l e t h e f i n d i n g s a r e p r e s u m

p t i v e l y c o r r e c t

, t h e a p p e l l a

t e c o u r t

m a y e x a m i n e a l l o f t h e p r o p e r l y a d m i s s i b l e e v i d e n c e i n t h e r e c o r d

. D u e r e g

a r d i s g i v e n t o t h e o p p o r

t u n i t y o f

t h e t r i a l j u d g

e t o a s s e s s t h e c r e d i b i l i t y o f t h e w i t n e s s e s ,

a n d o u r r e v

i e w d o e s n o t e n

t a i l r e

- w e i g

h i n g d i s p u t e d

e v i d e n c e

. F i n d i n g s o f f

a c t w i l l n o t b e s e t a s i d e u n l e s s

t h e y a r e c l e a r l y e r r o n e o u s

. A f i n d i n g i s c l e a r l y

e r r o n e o u s w

h e n , a l t h o u g

h t h e r e i s e v i d e n c e t o s u p p o r t
i t

, t h e r e v

i e w i n g c o u r t o n t h e e

n t i r e e v i d e n c e i s l e f

t

w i t h t h e d e f

i n i t e a n d f

i r m c o n v i c t i o n t h a t a m

i s t a k e h a s b e e n c o m m

i t t e d

.

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,

w e a s s u m e t h a t t h e e v

i d e n c e o f t h e p r e v

a i l i n g p a r t y b e l o w i s t r

u e a n d g i v e t h a t p a r t y e v

e r y r e a s o n a b l e i n f e r e n c e t h a t c a n f

a i r l y a n d r e a s o n a b l y b e d r a w n f r o m i t

. W e d o n o t s u

b s t i t u t e o u r s e l v e s f o r t h e t r i a l c o u r t a s

a f i n d e r o f f

a c t s ; i n s t e a d

, w e d e f

e r t o t h o s e f

i n d i n g s

u n l e s s t h e y a r e u n s u p p o r t e d b y t h e r e c o r d o r e r r o n e o u s

a s a m a t t e r o f l a w

.

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

. S

inclair v. City of Gillette

, 2012 WY 19, ¶ 8, 270 P.3d 644, 646 (Wyo. 2012). An incorrect appl ication 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 , 68 5

- 86 (Wyo. 2006); Jackson Hole Mountain Resort Corp. v. Alpenhof Lodge

Asso cs

., 2005 WY 46, ¶ 17, 109 P.3d 555, 561 (Wyo. 2005).

D I S C U S S I O N

1

. A d m i s s i b i l i t y o f E v i d e n c e o f C o m p a r a b l e E

a s e m e n t T

r a n s a c t i o n s

[¶ 1 5 ] We start with Greencore’s primary issue

— whether, as a matter of law, evidence of the price s 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

wou ld also resolve completely Barlow’s issue with regard to the comparability of the

easements.

[¶ 1 6 ] E m

i n e n t d o m a i n p r o c e e d i n g s a r e a u t h o r i z e d b y c o n s t i t u t i o n a l a n d s t a t u t o r y

p r o v i s i o n s a n d g

o v e r n e d p r o c e d

u r a l l y b y W

. R

. C

. P

. 7 1

. 1

. T h e t a k i n g o f p r i v a t e p r o p e r t y f o r p u b l i c o r p r i v

a t e u s e w i t h o u t d u e o r j u s t c o m p e n s a t i o n i s c o n s t i t u

t i o n a l l y p r o h i b i t e d

. W y o

. C o n s t

. a rt. 1, §§ 32

- 33; U

. S . Const. a mend. V . The focus of the present case is on how to properly determine due or just compen sation.

[¶ 1 7 ] The applicable portions of the Eminent Domain Act state:

§ 1

- 26

- 701. Compensation standards. ( a ) A n o w n e r o f p r o p e r

t y o r a n i n

t e r e s t i n p r o p e r t y t a k e n b y

e m i n e n t d o m a i n i s e n t i t l e d t o c o m p e n s a t i o n d e t e r m

i n e d u n d e r

t h e s t a n d a r d s p r e s c r i b e d b y W

. S

. 1

- 2 6

- 7 0 1 t h r o u g h 1

- 2 6

- 7 1 3

. ( b ) U n l e s s o t h e r w i s e p r o v i d e d b y l a w , t h e r i g h t t o

c o m p e n s a t i o n a c c r

u e s u p o n t

h e d a t e o f p o s s e s s i o n b y t h e

c o n d e m n o r

. ( c ) E x c e p t a s s p e c i f

i c a l l y p r o v i d e d b y W

. S

. 1

- 2 6

- 7 0 1

t h r o u g h 1

- 2 6

- 7 1 3

, c o m

p e n s a t i o n , d a m a g

e s , o r o t h e r r e l i e f t o

w h i c h a p e r s o n i s o t h e r w i s e e n t i t l e d u n d e r t h i s a c t o r o t

h e r l a w a r e n o t a f

f e c t e d

, b u t d

u p l i c a t i o n o f p a y

m e n t i s n o t

p e r m i t t e d

.7 § 1

- 2 6

- 7 0 2

. C o m p e n s a t i o n f o r t a k i n g

. ( a ) E x c e p t a s p r o v

i d e d i n s u b s e c t i o n ( b ) o f t h i s s e c t i o n , t

h e

m e a s u r e o f c o m

p e n s a t i o n f

o r a t a k i n g o f p r o p e r t y i s i t s f a i r

m a r k e t v a l u e d e t e r m

i n e d u n d e r W

. S

. 1

- 2 6

- 7 0 4 a s o f t h e d a t e

o f v a l u a t i o n

. ( b ) I f t h e r e i s a p a r t i a l t a k i n g o f p r o p e r t y , t h e m e a s u r e o f

c o m p e n s a t i o n i s t h e g

r e a t e r o f t h e v

a l u e o f t h e p r o p e r

t y r i g h t s

t a k e n o r t h e a m o u n t b y w h i c h t h e f

a i r m a r k e t v a l u e o f t h e

e n t i r e p r o p e r

t y i m m e d i a t e l y b e f

o r e t h e t a k i n g e x c e e d s t h e f a i r

m a r k e t v a l u e o f t h e r e m a i n d e r i m m e d i a t e l y a f t e r t h e t a k i n g

.

. . . .

§ 1

- 26

- 704. Fair market value defined

. ( a ) E x c e p t a s p r o v

i d e d i n s u b s e c t i o n (

b ) o f t h i s s e c t i o n : ( i ) T h e f a i r m a r k e t v

a l u e o f p r o p e r t y f

o r w h i c h t h e r e i s

a r e l e v a n t m a r k e t i s t h e p r i c e w

h i c h w o u l d b e a g

r e e d t o b y a n i n f o r m e d s e l l e r w

h o i s w i l l i n g b u t n o t o b l i g a t e d t o s e l l

, a

n d a n i n f o r m e d b u y e r w

h o i s w i l l i n g b u t n o t o b l i g a t e d t o b u y ; ( i i ) T h e f a i r m a r k e t v

a l u e o f p r o p e r t y f

o r w h i c h t h e r e i s

n o r e l e v a n t m a r k e t i s i t s v a l u e a s d e t e r m i n e d b y a n y m e t h o d

o f v a l u a t i o n t h a t i s j u s t a n d e q u i t a b l e ; ( i i i ) T h e d e t e r m

i n a t i o n o f f

a i r m a r k e t v

a l u e s h a l l u s e

g e n e r a l l y a c c e p t e d a p p r a i s a l t e c h n i q u e s a n d m a y i n c l u d e : ( A ) T h e v

a l u e d e t e r m

i n e d b y a p p r a i s a l o f t h e

p r o p e r t y p e r f o r m e d b y a c e r t i f

i e d a p p r a i s e r ; ( B ) T h e p r i c e p a i d f o r o t h e r c o m

p a r a b l e

e a s e m e n t s o r l e a s e s o f c o m p a r a b l e t y

p e , s i z e a n d l o c a t i o n o n

t h e s a m e o r s i m

i l a r p r o p e r t y ; ( C ) V a l u e s p a i d f

o r t r a n s a c t i o n s o f c o m

p a r a b l e

t y p e , s i z e a n d l o c a t i o n b y o t h e r c o m p a n i e s i n a r m s l e n g

t h

t r a n s a c t i o n s f

o r c o m p a r a b l e t r a n s a c t i o n s o n t h e s a m e o r similar property. 5

[¶1 8 ] In determining whether it is proper to consider evidence of comparable easement

sales in ascertain ing fair market value of a condemned easement under the above provisions, we apply our usual rules of statutory interpretation.

[ O u r ] p a r a m o u n t c o n s i d e r a t i o n i s t o d e t e r m i n e t h e l egislature’ s intent, which must be ascertained initially and

5 Subsection (a) ( iii) was added by legislative amendment in 2007.8 p r i m a r i l y f

r o m t h e w o r d s u s e d i n t h e s t a t u t e

. W e l o o k f

i r s t t o

t h e p l a i n a n d o r

d i n a r y m e a n i n g o f t h e w o r d s t o d e t e r m i n e i f

t h e s t a t u t e i s a m b i g u o u s

. A s t a t u t e i s c l e a r a n d u n a m b i g u o u s i f i t s w o r d i n g i s s u c h t h a t r e a s o n a b l e p e r s o n s a r e a b l e t o a g r e e

o n i t s m e a n i n g w i t h c o n s i s t e n c y a n d p r e d i c t a b i l i t y

. C o n v e r s e l y , a s t a t u t e i s a m

b i g u o u s i f i t i s f

o u n d t o b e v

a g u e

o r u n c e r t a i n a n d s u b j e c t t o v a r y i n g i n t e r

p r e t a t i o n s

.

Michael’ s Const r ., 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 t o 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

con strued 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 price s paid for comparable easements, to a part ial 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 grea ter 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.

[¶ 2 0 ] 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.” ( E mphasis

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.

[¶ 2 1 ] 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

. ” H a d9

t h e l e g i s l a t u r e i n t e n d e d s u b s e c t i o n ( a ) t o a p p l y o n l y t o c o m p l e t e t a k i n g s , w e p r e s u m e i t

w o u l d h a v

e s a i d s o

. S e e M

o r r i s v

. C M S O i l a n d G a s C

o

. , 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.”)

.

[¶ 2 2 ] 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 valu e 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.

[¶ 2 3 ] 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.

[¶ 2 4 ] Reading the provisions this way also give s 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 the re 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 determin ing value and

that method is found in § 1

- 26

- 704.

[¶ 2 5 ] Were we to accept Greencore’s argument that § 1

- 26

- 704 does not apply to partial

t akings

, 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 s ituation and

not the other.

[¶ 2 6 ] 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: t h e monetary worth of a thing: MARKET PRICE.” Merriam

- Webster’s Dictionary 547 ( New Edition 2005)

. G i v i n g t h e w o r d “ v a l u e ” i t s p l a i n a n d o r d i n a r y m e a n i n g , w e a r e10

p e r s u a d e d t h e l e g

i s l a t u r e i n t e n d e d i t t o m e a n f a i r m a r k e t v

a l u e

. A g

a i n , a s c r i b i n g a different meaning to the word “value” as it is used in § 1

- 26

- 702 (b) would require us to

conclud e the le gislature 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

rea ch an absurd result. Mule Shoe, ¶ 19, 252 P.3d at 956. Interpreting § 1

- 26

- 702 as

Greencore advocates would do just that.

[¶ 2 7 ] 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 provision s 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 comparab le 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 th e 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? I f 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 legislat ure 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 applie s to both complete and partial takings.

[¶ 2 8 ] In d e c i d i ng 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 no ne, 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

f requently used standard for measuring just compensation, regardless of the label.

Coronado Oil Co. v. Grieves , 642 P.2d 423, 433 (Wyo. 198 2)

.

[¶ 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 stat ute 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.” Voge l

, ¶ 24, 267 P.3d at 1064.11

[ ¶ 3 0 ] T h e r a t i o n a l e f

o r a d o p t i n g t h e E m

i n e n t D o m a i n A c t a n d s u b s e q u e n t a m e n d m e n t s h a s b e e n s t a

t e d a s f o l l o w s :

I m p e t u s f o r t h e e x t e n s i v

e c h a n g e s c a m e f r o m i n c r e a s e d u s e o f

e m i n e n t d o m a i n p r o c e e d i n g s b y p u b l i c u t i l i t i e s a n d e n e r g y

r e l a t e d i n d

u s t r i e s , a v

o i d i n t h e W

y o m i n g e m i n e n t d o m a i n l a w p e r c e i v

e d b y l a n d o w

n e r s a s a l l o w i n g a b u s e o f e m i n e n t
d o m a i n b y n o n g

o v e r n m e n t a l e n t i t i e s , a n d a c c e l e r a t i n g m a r k e t

v a l u e s o f l a n d

, m a k i n g o n e

- t i m e p a y m e n t s f o r c o m p e n s a t i o n l e s s s a t i s f a c t o r y

.

M

. M i c h e l i a n d M

. S m

i t h

, T h e M o r e T h i n g s C h a n g e

, t h e 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 t he before and after value of the remaining property. See generally

, L.U. Sheep Co. v. Bd

. of County

Comm ’rs of the Co unty of Hot Springs , 790 P.2d 663 (Wyo. 1990) ; Section 1

- 26

- 702

.

[¶3 1 ] 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. I n 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.

[¶3 2 ] T he 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, i n 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 th at once a proper foundation is laid as to the similarity of properties, c o u r t s “ s h o u l d c o n s i d e r a l l r e l e v a n t e v i d e n c e o f m a r k e t v

a l u e , i n c l u d i n g12

o t h e r s a l e s o f t

h e s a m e o r s i m i l a r p r o p e r t y , w h i c h w e r e t r a n s a c t e d r e a s o n a b l y c l o s e i n

t i m e a n d d i s t a n c e a n d u

n d e r c o m p a r a b l e m a r k e t c o n d i t i o n s

. ” Id. at 1036.

[¶3 3 ] 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 W yoming

Eminent Domain Act in 1981. Continental Pipe L ine 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 a ss essed damages based upon the price per rod and held the pro per 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 an other ease ment 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 be f ore and after appraised values of the propert ies remaining after the taking s

.

[¶3 4 ] 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 rema inder after the taking. The Act at that time defined fair market value as:

§ 1

- 26

- 704. Fair market value defined

( a ) E x c e p t a s p r o v

i d e d i n s u b s e c t i o n (

b ) o f t h i s s e c t i o n : ( i ) T h e f a i r m a r k e t v

a l u e o f p r o p e r t y f

o r w h i c h t h e r e i s a

r e l e v a n t m a r k e t i s t h e p r i c e w h i c h w o u l d b e a g

r e e d t o b y a n i n f o r m e d s e l l e r w

h o i s w i l l i n g b u t n o t o b l i g a t e d t o s e l l

, a

n d a n i n f o r m e d b u y e r w

h o i s w i l l i n g b u t n o t o b l i g a t e d t o b u y ; ( i i ) T h e f a i r m a r k e t v

a l u e o f p r o p e r t y f

o r w h i c h t h e r e i s

n o r e l e v a n t m a r k e t i s i t s v a l u e a s d e t e r m i n e d b y a n y m e t h o d of valuation that is just and equitable[.] 6

( S u p p

. 1 9 8 2 )

.

6 I n 2007 , the legislature added l a n g u a g e r e q u i r i n g u s e o f g e n e r a l l y a c c e p t e d a p p r a i s a l t e c h n i q u e s i n d e t e r m i n i n g f

a i r m a r k e t v a l u e a

n d a l l o w i n g c o n s i d e

r a t i o n o f t h e p r i c e o f c o m p a

r a b l e e a s e m e n t s i n m a k i n g the determination. See Paragraph 17, supra.13

[ ¶ 3 5 ] T h i s C o u r t i n t e r

p r e t e d t h e s e p r o v i s i o n s o f t h e E m

i n e n t D o m a i n A c t i n t h e c o n t e x t

o f a c o u n t y p e t i t i o n t o c o n d e m n a n e x i s t i n g p r i v a t e r o a d f o r p u b l i c u s e i n L

. U

. S h e e p C o

. , 7 9 0 P

. 2 d 6 6 3

. T h e q u e s t i o n b e f o r e u s w a s w

h e t h e r t h e d i s t r i c t c o u r t h a d p r o p e r l y i n structed 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 ] h e l a n d o w

n e r w h o s e p r o p e r t y i s t h e s u b j e c t o f a p a r t i a l

t a k i n g i s e n t i t l e d t o p r o v

e n o t o n l y t

h e d i f f e r e n c e b e t w e e n t

h e f a i r m a r k e t v

a l u e o f t h e p r o p e r

t y p r i o r t o t

h e t a k i n g a n d t h e f air 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

c ompensation is the greater of those alternative amounts.

I d

. a t 6 7 1

.

[¶3 6 ] 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

- 7 2. 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. Shee p Co

. and other

p r i v a t e l a n d o w

n e r s h a d a t

t e m p t e d t o p r o v

e d a m a g e s f r o m t h e p u

b l i c u s e o f t h e r

o a d a s

p r o v i d e d i n 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 ac c ordance 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 rejec ted 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 provide d:

C o m p e n s a t i

o n t o r e f l e c t p r o j e c t a s p l

a n n e d

( a ) I f t h e r e i s a p a

r t i a l t a k i n g o f p r

o p e r t y , t h e f a i r m a r k e t v a l u e o f t

h e r e m a i n d e

r

o n t h e v a l u a t i o n d a t e s h a l l r e f l e c t i n c r e a s e s o r d e c r e a s e s i n v a l u e c a u s e d b y t h e p r o p o s e d

p r o j e c t i n c l u d i n g : ( i ) I m p a i r m e

n t o f t h e u s e o f h i s o t

h e r p r o p e r t y c a u s e d b y t h e c o n d e m

n a t i o n ; a n d ( ii) The increase in damage to his property by the general public which could

r e a s o n a b l y b e e x p e c t e d t o o c c

u r a s a r e s u l t o f t

h e p r o p o s e d a c t i o n s o f t

h e c o n d e m n o r ; ( i i i ) A n y w o r k t o b e p e r f o r m e d u n d e r a n a g r e e m e n t b e t

w e e n t h e p a r t i e s

.14

[¶3 7 ] 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 Albertso n ’ 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

.

[¶3 8 ] 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

. T h e s t a t u t e w a s u l t i m a t e l y r e v

i s e d c o n s i s t e n t

w i t h t h e h o l d i n g i n L i n d

t

. 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.

[¶4 0 ] The appraisers appoint e d 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

- 1 0 1 o f t h e p r i v a t e r

o a d s t a t u t e s p r o v i d e d o n l y t

h a t t h e a p p r a i s e r s were “to assess damages” resulting from the road; it did not specify a formula for assessin g 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 in clude 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

i n s t r u c t i o n s w e r e a “ b l e n d ” o f e m i n e n t d o m a i n l a w , e v e n t h o u g h t h e e m i n e n t d o m a i n

s t a t u t e s d i d n o t a p p l y t o p r i v a t e r o a d s

. T h e i n s t r

u c t i o n s s p e c i f

i c a l l y i n c l u d e d t

h e 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 a s 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. I nstead, 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 cause d 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.

[¶4 1 ] 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. I n 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

e minent 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 differenc e 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. I d., ¶¶ 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.

[¶4 2 ] 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. T h e C o u r t a l s o16

m e n t i o n e d t

h a t a p p l y i n g d i f

f e r e n t s t a n d a r d s i n p r i v

a t e r o a d c a s e s a n d e m

i n e n t d o m a i n

c a s e s c o u l d r a i s e c o n s t i t u t i o n a l q u e s t ions and that all of the standards must be measured

b y t h e s t a t e c o n s t i t u t i o n a l p r o v i s o t h a t “ d

u e ” a n d “ j u s t ” c o m p e n s a t i o n m

u s t b e p a i d f

o r

t h e t a k i n g o f p r i v

a t e p r o p e r t y

. I

d., ¶ 40, 28 P.3d at 852; Art. 1, §§ 32, 33

[¶4 3 ] 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.

M ayland 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

subst antial 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 cou nty’s decision

was entered Feb ruary 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.

[¶4 4 ] 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 noth ing 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.

[¶4 5 ] The historical context in which the Eminent Domain Act and i ts 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 amend ments, show s the legislature specifically deliberat ed 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 D e b a t e o n H o u s e B i l l 0 1 2 4

, 5 9 t h L e g

. G e n

. S e s s

. , J a n u a r y 2 4

, 2 0 0 7

, a f t e r n o o n s e s s i o n

. h t t p : / / l e g i s w e b

. s t a t e

. w

y

. u s / 2 0 0 7 / a u d i o / A

u d i o M e n u / A u d i o M e n u

. a s p x

. W

h i l e t h e i n t e n t o f

i n d i v i d u a l l e g i s l a t o r s c a n n o t b e c o n s i d e r e d a s r e f l e c t i n g t h e i n t e n

t o f t h e l e g

i s l a t u r e a s a

w h o l e , t h e f

a c t t h a t t h e m a t t e r w a s d e b a t e d a n d t h e f i n a l l e g i s l a t i o n i n c l u d e d t h e r e l e v a n t
l a n g u a g e d o e s p r o v i d e e v i d e n c e o f t h e l e g i s l a t i v e i n t e n t

. S e e

, e

. g

. , K e n n e d y O i l 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 o n the plain language of the statute or the rules of statutory construction,

we arrive at the same conclusion

— t h e l e g i s l a t u r e i n t e n d e d t

h e d e f i n i t i o n o f f

a i r m a r k e t17

v a l u e i n § 1

- 2 6

- 7 0 4 t o a p p l y i n a l l t a k i n g s c a s e s , i n c l u d i n g p a r t i a l t a k i n g s f o r p i p e l i n e

e a s e m e n t s

.

[¶4 6 ] 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

Easement s 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 easeme nt 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 A p p r a i s a l o f 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 (2 000). 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.

[¶4 7 ] 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 ea sement s . 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 c ondemned pipeline easement in El Paso Field Services Co. v. Montoya Sheep & Cattle Co., 77 P.3d 279, 281 (N.M. Ct. App. 2003).

[¶4 8 ] Similarly, some other state courts allow the use of comparable easements in valuing pipeline easements in condemnation c ases. 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 t hey were comparable. In Bauer v. Lavaca

Navidad River Authority, 704 S.W.2d 107, 109

- 10 (Tex. Ct. App. 198 5 ), 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 meth od of determining value in Atkinson v. Seminole Pipeline Co., 1998 WL 193363 (Tex. Ct. App. 1998) (not designated for publication). See also

,18

T e x a s E l e c t r i c S e r v i c e C o

. v

. L i n e b e

r y

, 3 2 7 S

. W

. 2 d 6 5 7

, 6 6 5 ( T e x

. C t

. A p p

. 1 9 5 9 ) ( r e c o g n i z i n g a d m i s s i b i l i t y o f o t h e r p i p e l i n e e a s e m e n t s a l e s t o e s t a b l i s h m a r k e t v

a l u e o f

e a s e m e n t t a k e n p r

o v i d e d t h e y m e e t t h e t e s t o f c o m p a r a b i l i t y )

. I

n E x x o n P i p e l i n e C o

. v

. Z w a h r

, 8 8 S

. W

. 3 d 6 2 3

, 6 3 0 ( T e x

. 2 0 0 2 )

, t h e T e x a s S u p r e m e C o u r t r e c o g n i z e d t h e B a u e

r h o l d i n g w

h i c h a l l o w e d e v i d e n c e o f c o m p a r a b l e p i p e l i n e e a s e m e n t s a l e s i n c o n d e m n a t i o n

v a l u a t i o n c a s e s w

h e n a s e p a r a t e e c o n o m

i c u n i t i s e s t a b l i s h e d b u

t h e l d t h a t s u c h e v i d e n c e was not appropriate in that case bec ause the Zwahrs’ expert improperly included enhancement from the current project in his e valuation.

[¶ 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. C ourts should not “usurp t he 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). I t 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 ( W y o

. 2 0 1 2 )

. We must, therefore, apply the statute as written. 9

[¶5 0 ] 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 th e fair

market value of the condemned interest.

2

. Arms’ Length Nature and Comparability of Easement Transactions

[¶ 5 1 ] 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 co m parable 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 addit ion, 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 c omparable, but Greencore’s easements were

9 Greencore’s expert appraiser, Neal Hilston, recounted criticisms similar to those e x p r e s s e d b y t

h e 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

c o m p a r a b l e

. B a r l o w a s s e r t s t h e d i s t r i c t c o u r t m i s c o n s t r u e d t h e r e l e v

a n t s t a t u t o r y l a n g u a g e i n c o n c l u d i n g i t s p r o p o s e d e a s e m e n t t r a n s a c t i o n s w e r e n o t c o m p a r a b l e , e r r e d a s a matter of law by reading it as requiring other easements to be of the same “style” 10 as Greencore’s easement and improperly determined the transactions were not arms’ length

.

[¶5 2 ] 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 prelimi nary matter we observe that the district court made some errors of law and this seems to have tainted its factual findings.

A

. P r o f f e r e d E a s e

m e n t s

[¶ 5 3 ] 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 addr ess 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

.

[¶5 4 ] Barlow’s proffered easements can be summarized as:

E x h

. N o

. P a r t i e s D a t e S i z e I n i t i a l

P a y m e n t

T e r m s A

n n u a l /

S u b s e q u e n t

P a y m e n t A d d i t i o n a l

I n f o r m a t i o n

D

- 1 B a r l o w

/

T h u n d e r C r e e k 4 / 1 7 / 0 2 1 0 0 f o o t

c o n s t r u c t i o n

e a s e m e n t /

5 0 f o o t

p e r m a n e n t

e a s e m e n t
1 6 i n c h

p i p e l i n e $ 1 5 p e r

r o d $ 7

. 5 0 p e r r o d

a n n u a l T r a v

e r s e s
B a r l o w

p r o p e r t y

w i t h o u t

c o n n e c t i n g

t o f a c i l i t i e s

D

- 2 B a r l o w

/

B e a r P a w 7 / 2 5 / 0 2 1 0 0 f o o t

c o n s t r u c t i o n

e a s e m e n t / 5 0

f o o t

p e r m a n e n t

e a s e m e n t $ 1 5 p e r

r o d $ 7

. 5 0 p e r r o d

w i t h C P I

a d j u s t m e n t C o n n e c t s t o

a n o t h e r pipeline on

Barlow’s
property

10 The district court misquoted § 1

- 26

- 7 0 4 ( a ) ( i i i ) ( B ) i n i t s d e c i s i o n l e t t e r b y r e p l a c i n g t

h e w o r d “ s i z e ” with “style.”20 1 6 i n c h

p i p e l i n e
D

- 3 B a r l o w

/

O p t i g a s 2 / 1 7 / 0 3 1 0 0 f o o t

c o n s t r u c t i o n

e a s e m e n t / 5 0

f o o t

p e r m a n e n t

e a s e m e n t 1 6

i n c h p i p e l i n e $ 1 5 p e r

r o d

i n i t i a l $ 7

. 5 0 p e r r o d

w i t h C P I

a d j u s t m e n t C o n n e c t s t o

r e c e i p t p o i n

t

o n B a r l o w

p r o p e r t y

D

- 4 B a r l o w

/

W e s t e r n G a s 1 2 / 6 / 0 4 7 5 f o o t

c o n s t r u c t i o n

e a s e m e n t / 3 0

f o o t

p e r m a n e n t

e a s e m e n t 1 2

i n c h p i p e l i n e $ 2 5 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m R e n e w a b l e a t

s a m e r a t e w i t h

C P I a d j u s t m e n t
f o r a d d i t i o n a l

1 0 y e a r t e r m s C o n n e c t s

w i t h f a c i l i t y

o n B a r l o w

p r o p e r t y

D

- 5 B a r l o w

/

B e a r P a w 3 / 2 1 / 0 5 1 0 0 f o o t

c o n s t r u c t i o n

e a s e m e n t /

5 0 f o o t

p e r m a n e n t

e a s e m e n t 1 6

i n c h p i p e l i n e $ 1 5 p e r

r o d $ 7

. 5 0 p e r r o d

a n n u a l w i t h

C P I a d j u s t m e n t C o n n e c t s t o

r e c e i p t p o i n

t

o n B a r l o w

p r o p e r t y

.

D

- 6 B a r l o w

/

T h u n d e r C r e e k 8 / 1 / 0 5 8 0 f o o t

c o n s t r u c t i o n 4 0 f o o t

p e r m a n e n t

e a s e m e n t 1 6

i n c h p i p e l i n e $ 1 5 p e r

r o d $ 7

. 5 0 p e r r o d

a n n u a l R

u n s

p a r a l l e l t o D

- 1

D

- 7 B a r l o w

/

W e s t e r n G a s 9 / 8 / 0 5 7 5 f o o t

c o n s t r u c t i o n 3 0 f o o t

p e r m a n e n t
1 2 i n c h

p i p e l i n e $ 2 5 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m R e n e w a b l e a t

s a m e r a t e w i t h

C P I a d j u s t m e n t
f o r a d d i t i o n a l

1 0 y e a r t e r m s R

u n s

p a r a l l e l t o D

- 4

D

- 8 B a r l o w

/

F o r t U n i o n 5 / 2 3 / 0 7 p e r m a n e n t

e a s e m e n t o f

t w o 5 0 f o o t

s t r i p s o f

l a n d t w o 2 4

i n c h

p i p e l i n e s $ 5 0 p e r

r o d p l u s $ 2 0 p e r

r o d

c o n s u l t

i n g f e e f o r l o s s

o f B a r l o w

t e s t i f i e d t h a t

a n n u a l p a y m e n t

c a l c u l a t e d w i t h

t w o s i t e l e a s e s

a n d w a s $ 8

. 7 5

w i t h C P I

a d j u s t m e n t

. C o n n e c t s t o

f a c i l i t y o n
B a r l o w

p r o p e r t y21 g razing 11

D

- 9 B a r l o w

/

W e s t e r n G a s 5 / 2 3 / 0 7 7 5 f o o t

c o n s t r u c t i o n 3 0 f o o t

p e r m a n e n t

t h r e e 1 2

i n c h

p i p e l i n e s $ 2 5 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m R e n e w a b l e a t

s a m e r a t e w i t h

C P I a d j u s t m e n t
f o r 1 0 y e a r

t e r m s C o n n e c t s t o

f a c i l i t i e s o n
B a r l o w

p r o p e r t y

D

- 1 0 B a r l o w

/

W e s t e r n G a s 2 / 2 7 / 0 8 7 5 f o o t

c o n s t r u c t i o n 3 0 f o o t

p e r m a n e n t

t h r e e 1 2

i n c h

p i p e l i n e s $ 2 5 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m R e n e w a b l e a t

s a m e r a t e w i t h

C P I a d j u s t m e n t
f o r 1 0 y e a r

t e r m s C o n

n e c t s t o f a c i l i t i e s o n
B a r l o w

p r o p e r t y

D

- 1 1 B a r l o w

/

W e s t e r n G a s 3 / 1 8 / 0 9 1 3 5 f o o t

c o n s t r u c t i o n 1 0 0 f o o t

p e r m a n e n t

t w o 2 4 i n c h

p i p e l i n e s $ 3 0 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m s

w h i c h

i n c l u d e d $ 5 p e r

r o d f o r l o s s o f

g r a z i n g

. R e n e w a b l e a t

$ 2 5 p e r r o d

w i t h C P I

a d j u s t m e n t f

o r 1 0 y e a r t e r m s C o n n e c t s t o

f a c i l i t i e s o n
B a r l o w

p r o p e r t y

D

- 1 2 B a r l o w

/

T h u n d e r C r e e k 4 / 2 0 / 1 1 6 0 f o o t

c o n s t r u c t i o n

e a s e m e n t / 3 0

f o o t

p e r m a n e n t

e a s e m e n t 3

i n c h p i p e l i n e $ 1 5 p e r

r o d $ 7

. 5 0 p e r r o d

a n n u a l w i t h

C P I a d j u s t m e n t C o n n e c t s

e x i s t i n g

p i p e l i n e t o

w e l l s o n
B a r l o w

p r o p e r t y

E

- 1

E

- 2 M a y c o c k

/

C M S 6 / 1 5 / 9 9 7 5 f o o t

c o n s t r u c t i o n

e a s e m e n t / 5 0

f o o t

p e r m a n e n t
2 4 i n c h $ 2 5 p e r

r o d f o r i n i t i a l 1 5

y e a r

t e r m R e n e w a b l e f

o r 3 a d d i t i o n a l 1 5

y e a r t e r m s a t

r a t e s w h i c h

d e c r e a s e b y $ 5

. 0 0 p e r r o d T r a v

e r s e s M a y c o c k

p r o p e r t y , paralleling

Greencore’s

e a s e m e n t

11 Mr. Barlow testified that on a “per pipeline” basis, the consideration was $ 2 5 p e r r o d i n i t i a l l y p l u s $ 1 0 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 p i p e l i n e f o r e a c h t e r m f

o r s o m e d i s t a n c e
E

- 3

E

- 4 M a y c o c k

/

W e s t e r n G a s 4 / 2 9 / 0 4 5 0 f o o t

c o n s t r u c t i o n 2 0 f o o t

p e r m a n e n t

e a s e m e n t 1 6

i n c h

p i p e l i n e

. $ 2 5 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m R e n e w a b l e f

o r

a d d i t i o n a l 1 0

y e a r t e r m s f

o r $ 2 5 p e r r o d

w i t h C P I

a d j u s t m e n t T r a v

e r s e s
M a y c o c k

p r o p e r t y , p a r a l l e l i n g E

- 1 a n d E

- 2
and

Greencore’s

easement

E

- 5

E

- 6 M a y c o c k

/

W e s t e r n G a s 6 / 6 / 0 8 8 5 f o o t

c o n s t r u c t i o n 2 0 f o o t

p e r m a n e n t

e a s e m e n t 1 6

i n c h p i p e l i n e $ 2 5 p e r

r o d f o r i n i t i a l 1 0

y e a r

t e r m R e n e w a b l e f

o r

a d d i t i o n a l 1 0

y e a r t e r m s f

o r $ 2 5 p e r r o d

w i t h C P I

a d j u s t m e n t N e g

o t i a t e d

w i t h a r o a d

e a s e m e n t

w h i c h

r e q u i r e d a n

a n n u a l

p a y m e n t

F

- 4 N i s s e l i u s R a n c h /

O p t i g a s 1 1 / 1 8 / 0 8 7 0 f o o t

c o n s t r u c t i o n 3 0 f o o t

p e r m a n e n t

e a s e m e n t f

o r

a 6 i n c h

p i p e l i n e $ 2 0 p e r

r o d $ 1 0 p e r r

o d

w i t h C P I

a d j u s t m e n t

e v e r y t h r e e

y e a r s C o n n e c t s t o

a n o t h e r

p i p e l i n e

F

- 5 M a n k i n /

T h u n d e r C r e e k 8 / 2 / 0 5 8 0 f o o t

c o n s t r u c t i o n 4 0 f o o t

p e r m a n e n t

e a s e m e n t $ 1 5 p e r

r o d $ 7

. 5 0 p e r r o d

a n n u a l P i p e l i n e

crosses landowner’s
property

F

- 6 T L E R a n c h /

T h u n d e r C r e e k 9 / 1 9 / 1 1 7 5 f o o t

c o n s t r u c t i o n 2 5 f o o t

p e r m a n e n t

e a s e m e n t

p l a s t i c

p i p e l i n e $ 2 5 p e r

r o d $ 5

. 0 0 p e r r o d

a n n u a l C o n n e c t s

well on

landowners’
property.

B

. Arms’ Length

[¶ 55 ] The district court rejected Barlow’s pro posed 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 [ 1 7 ] b

. T h e e v i d e n c e t h a t w a s p r e s e n t e d o n t h e

c i r c u m s t a n c e s s u r r o u n d i n g t h e p r i c e p a i d b y t h e g a s

c o m p a n i e s f o r p i p e l i n e e a s e m e n t s r a i s e s s e r i o u s i s s u e s

r e g a r d i n g c o m

p a r a b i l i t y

. F o r e x a m

p l e , e a s e m e n t s D

- 7

, D

- 8

, D

- 9

, D

- 1 0 a n d D

- 1 1 g

r a n t e d b y B a r l o w R a n c h w e r e f o r t h e

e x p a n s i o n o f e x i s t i n g g a s p i p e l i n e f a c i l i t i e s o n B a r l o w R a n c h

p r o p e r t y

. T o e x p a n d i t s f a c i l i t i e s o n B a r l o w R a n c h p r o p e r t y , WGR Resources had no option but to acquire property from Barlow Ranch. Therefore, this was not an arm’s length

transa ction under Coronado Oil Co. v. Grieves, 642 P.2d 423, 433 (Wyo. 1982). Other easements relied upon by

D efendants 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

. T h e p r i c e s p a i d b y [ W e s t e r n G a s ] t o B a r l o w R a n c h f o r e a s e m e n t s a f

t e r M a y o f 2 0 0 4 ( E a s e m e n t s D

- 4

, D

- 7

, D

- 9

, D

- 1 0 a n d D

- 1 1 ) a r e b a s e d o n a s e t t l e m e n t a g r e e m e n t

r e a c h e d m

i d

- t r i a l i n a c o n d e m

n a t i o n a c t i o n b y W G R

R e s o u r c e s a g

a i n s t B a r l o w R a n c h

. T h e a m o u n t p a i d t o s e t t l e a

c o n d e m n a t i o n a c t i o n i s n o t f

a i r m a r k e t v

a l u e a n d i s n o t

a d m i s s i b l e

. C

o l o r a d o I n t e r s t a t e G a s C

o

. v

. U n i t a D e v e l o p m e n t C o

. , 3 6 4 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

. T h e e v i d e n c e s h o w e d t h a t t h e p r i c e s p a i d b y t h e

g a s p i p e l i n e c o m

p a n i e s i n c l u d e d a p r e m i u m t o a v

o i d

c o n d e m n a t i o n a n d t o k e e p a g

o o d w o r k i n g r e l a t i o n s h i p w i t h

t h e D e f e n d a n t s f

o r b o t h t

h e o p e r a t i o n o f t h e i r e x i s t i n g f a c i l i t i e s a n d f

o r p o s s i b l e f

u t u r e a c q u i s i t i o n s

.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 ) T h e f a i r m a r k e t v

a l u e o f p r o p e r t y f

o r w h i c h t h e r e i s

a r e l e v a n t m a r k e t i s t h e p r i c e w

h i c h w o u l d b e a g

r e e d t o b y a n i n f o r m e d s e l l e r w

h o i s w i l l i n g b u t n o t o b l i g a t e d t o s e l l

, a

n d a n i n f o r m e d b u y e r w

h o i s w i l l i n g b u t n o t o b l i g a t e d t o b u y [

. ]

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 manne r with full knowledge of existing law. S tatutes, 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

Const r . 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

Emin ent Domain, Ch. CT21, § 21.02 [5] (Matthew Bender, 3 rd ed

. ). N e v e r t h e l e s s ,

“ [a] bsent any showing to the contrary, there is a presumption that the sale was an ‘arm’s

length’ transaction and not under compulsion.” Joe Miller Land Co., 467 P.2d at 455

- 56.

[¶58 ] It is well settled that prices paid in condemnation actions or under actual threat of

condemnatio n 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

r e a s o n o f i n

j u r i e s t h e r e t o

. I

t w o u l d b e e q

u a l l y u n w i s e , u n

j u s t25 a n d i m p o l i t i c t o m a k e i t i m

p o s s i b l e f

o r a c o r p o r a t i o n w

h i c h

h a s t a k e n l a n d b y e m

i n e n t d o m a i n t o c o m

p r o m i s e t h e c l a i m s of one owner without furnishing evidence against itself in the

cases of all others who had similar claims. * * *’

I d

. a t 6 5 9

, q u o t i n g 4 N i c h o l s , E m i n e n t D o m a i n , p

. 7 1 ( 3 d e d

. )

. H o w e v e r , t h e m e r e f

a c t

t h a t p r o p e r t y i s p u r c h a s e d b y o n e v e s t e d w i t h t h e p o w e r o f e m i n e n t d o m a i n d o e s n o t

p r e c l u d e a d m

i s s i o n o f e v i d e n c e r e g

a r d i n g t h e s a l e , p r o v

i d e d t h e t r a n s a c t i o n w a s f a i r

. F r a n g o s

, 4 8 7 P

. 2 d a t 8 0 6

. C o n s e q u e n t l y , j u s t b e c a u s e c o n d e m n a t i o n w a s a n o p t i o n f

o r

t h e b u y e r d o e s n o t m e a n t h e t r a n s a c t i o n w a s i n h e r e n t l y u n f a i r o r n e c e s s a r i l y p r e c l u d e

a d m i s s i o n o f e v

i d e n c e o f t h e s a l e

.

[¶ 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 easem ents 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 G rieves’ land so the producer had “no recourse but to pay the demanded price or resort to condemnation. It was obliged to buy. That is not a willing

seller, willing

- buyer atmosphere within the rule. It is an agreement reached under threat

of condemnation .” Coronado, 642 P.2d at 4 39

- 40.

[¶ 6 0] 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.

[¶ 6 1] 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 “impli citly 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

c h o s e n b y t

h e p r o j e c t d e v e l o p e r a n d i t w i l l o f

t e n c o n n e c t t o a f

a c i l i t y o r a n o t

h e r26

p i p e l i n e

— that is the nature of the business. The location of pipelines, therefore , will be

d r i v e n b y e c o n o m

i c s , i n t h a t t h e d e v

e l o p e r w i l l c h o o s e t h e m o s t c o s t e f f e c t i v e r o u t e a n d

, in that regard, will make a determination that the location is “required.” 12 Wh en 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 mos t mineral development easements

w o u l d b e e x c l u d e d a s c o m p a r a b l e s , i n d i r e c t c o n

t r a d i c t i o n o f t h e s t a

t u t o r y d i r e c t i v

e t o u s e comparable easements to establish fair market value. 13 W e c o n c l u d e t h e l e g i s l a t u r e ’ s i n t e n t w a s t o u s e t

h e m a r k e t f

o r c o m p a r a b l e e a s e m e n t s a s a t o o l t o d e t e r m i n e f a i r m a r k e t 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.

[¶ 6 2] 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 distri ct 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.

[¶6 3] In Paragraph 17 (c) , t he distr ict court also ruled that easements D

- 4, D

- 7, D

- 9, D

10 and D

- 11 between Western Gas and Barlow were not appropriate comparables because they were executed subsequent to an easement given in settlement of a 2004 condemnation action between the parties. The district court ruled that all of those

easements w ere tainted by the condemnation.

[¶6 4] 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 r equires 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 Gr eencore pipeline easements were placed in “required” locations.

13 W e r e c o g n i z e t

h a t o u r d e c i s i o n c o n f

l i c t s w i t h s t a t e m e n t s i n t

h e M i c h e l i a n d S m i t h l a w r e v i e w a

r t i c l e d i s c u s s e d a

b o v e

. T h e y s t a t e d t

h a t a s a l e o f a

n e a s e m e n t w h i c h w a s n e c e s s a r y f o r a l a r g e r 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, T h e M o r e T h i n g s C h a n g e

, t h e M o r e T h i n g s S t a y t h e S a m e : A Practitioner’s Guide to Recent Changes to Wy oming’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

s a l e

. I t d o e s n o t s t a t e t

h a t a l l s u b s e q u e n t t r a n s a c t i o n s b e t w e e n p a r t i e s w h o w e r e

p r e v i o u s l y i n v

o l v e d i n a c o n d e m

n a t i o n a c t i o n a r e l i k e w i s e d i s q u a l i f i e d a s c o m

p a r a b l e

t r a n s a c t i o n s

. I

n d e e d

, i f t h a

t w e r e t h e r u l e , c o m p a n i e s w o u l d b e i n c l i n e d t o p u r s u e

c o n d e m n a t i o n a n d t

h a t c e r t a i n l y i s n o t t

h e i n t e n t o f t h e E m

i n e n t D o m a i n A c t w

h i c h

e n c o u r a g e s p r i v a t e n e g o t i a t i o n s a n d a g

r e e m e n t s

.

[¶65] Because an incorrect application of law can lead to errors in findings of ultimate

f act, the district court’s legal error infected its ultimate factual findings. See, e.g

., Brow n, ¶ 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

c ompensation 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

eas e ment had diff

erent 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 th e 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.

[¶6 7 ] 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 distric t court to cate gorically 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

.

[¶6 8 ] In Paragraph 17(d), the district court concluded Barl ow’s proposed comparabl es were not the result of arms’ length transactions because the gas companies paid Barlow a28

“ p r e m i u m ” t o m a k e i t e a s i e r t o w o r k w i t h h i m i n t h e f u t u r e

. 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.” Th ese are factual finding s and we, therefore, apply our clearly erroneous standard of review.

[¶6 9 ] The district court did not identify any particular easements or testimony when it

m ade its findi ngs 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

. L o o k i n g s p e c i f i c a l l y a t t h e

e a s e m e n t s m e n t i o n e d b y t h e d i s t r i c t c o u r t i n P a r a g r a p h 1 7 ( b )

, a s w e m e n t i o n e d e a r l i e r , M r

. B a r l o w t e s t i f

i e d t h e r e w a s n o t h r e a t o f c o n d e m n a t i o n d u r i n g t h e n e g

o t i a t i o n s f

o r t h e
D

- 7 e a s e m e n t

. 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 specifical ly about the D

- 9 easement. He stated his general rule for negotiations was “[w]hen you work for companies, you want to get the pipeline right

- of

way for the most inexpensive price you possibly can.” He said that before he started a negotiation he looked at what his company and other companies had paid for other similar easements and came up with “a range of potential pricing that was acceptable, because you always want to try to negotiate the best deal for t he 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 Bar low.

[¶ 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 negotia ted 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

. W e r e t h e r e a n y t h r e a t s o f c o n d e m n a t i o n i n

c o n n e c t i o n w i t h t h i s ?

A

. No, there weren’t.

. . . . Q

. W e r e t h e r e a n y n e g o t i a t i o n s o v

e r t h i s e a s e m e n t
f o r a g r e a t e r o r l e s s e r s u m o n t h e p a r t o f e i t h e r p a r t y ?29 A

. N o , t h e r e w e r e n o t

. I f e l t t h a t w a s w

h a t t h e

m a r k e t w a s ; a n d w

h e n [ t h e T h u

n d e r C r e e k r e p r e s e n t a t i v e ] 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

. S o , b a s i c a l l y , t h e a m o u n t t h a t T h u n d e r C r e e k

o f f e r e d w a s t h e a m o u n t B a r l o w R a n c h a c c e p t e d ; a n d t h e

p a r t i e s d i s c u s s e d t h i s d u r i n g t h e c o u r s e o f n e g o t i a t i o n s

. A

. Yes, that’s correct. Q

. W a s i t f

r e e l y n e g o t i a t e d i n y o u r o p i n i o n ?

A

. Y e s , i t w a s

.

[¶ 71 ] Daniel Werth, a Thunder Creek representative, testified th e 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 Thund er Creek had never used that option. He testified , in general, that Thunder Creek preferred not to use

condemnation because it “d oes 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 ne gotiated for right

- of

ways” by the company’s right

- of

- way agents and represented the “going rate” for “easements of this type.”

[¶ 72 ] Exhibits F

- 4 and F

- 6 involved other landowners. Exhibit F

- 4 was a pipeline easement granted by Nisselius Ranch t o 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 p aying 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 “wil ling 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 pipel ine 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 c ounteroffers 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

[ ¶ 7 4 ] D e s p i t e t h i s u n c o n t r o v e r t e d e v i d e n c e , t h e d i s t r i c t c o u r t c o n c l u d ed 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 rep resentatives acknowledged the desire to

m aintain 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 ver y 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 co mpanies paid a “premium” to “placate” Mr. Barlow were clearly erroneous and do not support its decision to reject the easements as comparables.

B

. S t a t u t o r y C o m p a r a b i l i t y F a c t o r s

[¶ 75 ] Section s 1

- 26

- 704(a) (iii) (B) and (C) set out parame ters for using other easements as comparables to determine fair market value:

( i i i ) T h e d e t e r m i n a t i o n o f f a i r m a r k e t v a l u e s h a l l u s e g e n e r a l l y

a c c e p t e d a

p p r a i s a l t e c h n i q

u e s a n d m a y i n c l u d e :

. . . . ( B ) T h e p r i c e p a i d f

o r o t h e r c o m

p a r a b l e e a s e m e n t s o r l e a s e s o f c o m

p a r a b l e t y

p e , s i z e a n d l o c a t i o n o n t h e s a m e o r

s i m i l a r p r o p e r

t y ; ( C ) V a l u e s p a i d f

o r t r a n s a c t i o n s o f c o m

p a r a b l e t y

p e , s i z e

a n d l o c a t i o n b y o t h e r c o m p a n i e s i n a r m s l e n g

t h t r a n s a c t i o n s f o r c o m p a r a b l e t r a n s a c t i o n s o n t h e s a m e o r s i m i l a r p r o p e r t y

.

[¶7 6 ] 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

. M ichael ’ s Constr.

, ¶ 12,

27 8 P.3d at 705

. T he 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

the ir impacts on the propert ies they burden to determine if they are of a comparable “type

. ” This analysis could, therefore, consider the purpose of the easement s ; the construction methods and materials used, in this case, in the pipelines; the term of the

easement s , i.e., whether perpetual or lim ited; and any other evidence which comes to bear

o n w h e t h e r t h e t w o e a s e m e n t s a n d t h e i r c o r r e s p o n d i n g p i p e l i n e s h a v e s i m i l a r31

c h a r a c t e r i s t i c s

. The “ size ” of the two pipeline easements must be compared in terms of the diameter of the pipelines and the lengt hs 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 Const r

. , ¶ 37, 271 P.3d at 418, w e 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 mark et conditions.” Reed

, 553 P.2d a

t 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 iss ue. “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.” 7 A N i c h o l s on Eminent Domain, Chap. G13, § G13.02[2] (Matthew Be nder, 3 rd ed.). V a l u e m u s t b e determined by “making adjustment s f or prices of those [comparables] that are more similar or dissimilar to condemned property.” Frangos, 487 P.2d at 807.

[¶7 8 ] The district court concluded the proffered easements were not comparable to Greencore’s easement for the following reasons:

1 0

. 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 lif

e 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 establis h 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 N i c h o l s32

o n E m i n e n t Domain , Ch. 12, § 12.0 3 (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 (194 9 ) (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 4 32 (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 t h e p r o p e r t y t o G r e e n c o r e , t h e 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

. S e c t i o n 1

- 2 6

- 7 0 4 ( a ) ( i i i ) ( B ) r e q u i r e s t h a t t h e

e a s e m e n t s r e l i e d u

p o n a r e o f a c o m

p a r a b l e t y

p e

. T h e C o u r

t
f i n d s t h a t t

h e e a s e m e n t s r e l i e d u p o n b y D e f e n d a n t s a r e a l l

h i g h p r e s s u r e g

a s p i p e l i n e s w

h i c h c o n t a i n f

l a m m a b l e

m a t e r i a l s

. . . .

T h e G r e e n c o r e p i p e l i n e i s 2 3 2 m i l e s l o n g , c a r r i e s

c a r b o n d i o x i d e , w

h i c h i s a w a s t e p r o d u c t

, a n d d o e s n o t

c o n n e c t t o a

n y of the facilities on Defendants’ property.

. . .

. . . .

[ ¶81 ] T he 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 pi peline 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 a p p e a l

, a l t h o u g h i n a s l i g h t l y d i f f e r e n t w a y :

[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 th e ranchland acquired by Greencore. Instead, this analysis focused on the economic benefit s and other gains to

c o m p a n i e s w h o a c q

u i r e d t h e l a n d

, n o t t h e l o s s o f r a

n c h l a n d s u f f e r e d b y B a

r l o w

.33

t h e s a m e c o m

p a n i e s u s i n g t h e s a m e t y

p e s o f c o n s t r

u c t i o n t e c h

n i q u e s

. P h o t o g

r a p h s w h i c h

w e r e a d m i t t e d i n t o e v

i d e n c e s h o w e d t

h e l i n e s w e r e s i m

i l a r

. M r

. M a y c o c k a n d a n o t h e r

a r e a l a n d o w

n e r , J o h n M a n k i n , a l s o t e s t i f i e d t h a t t h e G r e e n c o r e p i p e l i n e w a s s i m i l a r i n

c o n s t r u c t i o n t o t h e n a t

u r a l g a s p i p e l i n e s o n t h e i r p r

o p e r t i e s

.

[¶8 2 ] Without elaboration, the district court also mentioned that natural gas is

f lammable, 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 o n 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 c arrying 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 dangero us 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 annu al payments and renewal options) the prices paid per rod for the

CO2 eas ements , 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 affec t the value of the

easem ents. 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

[¶8 3 ] 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 cross es private and state lands and the

remainder crosses federal lands. Greencore was able to obtain easements from sixty

three of the sixty

- six landowners the pipeline crosses and paid an average of $50 per rod with no annual payment. Barney Brooks, a representative of Greencore’s parent company, testified that the range paid by Greencore was $25 to $75 per rod, 16 w i t h t h e

m a j o r i t y f a l l i n g b e t w e e n $ 4 9 a n d $ 5 5 p e r r o d

. W i t h o n e e x c e p t i o n ( t h e M a n k i n

e a s e m e n t )

, w e a r e n o t d i r e c t e d t o d e t a i l e d e v i d e n c e a b o u

t t h e o t h e r G r e e n c o r e e a s e m e n t s

a n d t h e l a n d s t h e y c r o s s e d

. M r

. B r o o k s t e s t i f i e d :

15 Carbon dioxide is considered natural gas for excise taxation purposes. Amoco Prod. Co. v. State, 7 5 1

P

. 2 d 3 7 9

, 3 8 3 ( W y o

. 1 9 8 8 )

.

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

othe r property that Greencore acquired in Wyoming?

A

. I n respect to terrain or

– Q

. Y e s , a n d t y

p e o f p r o p e r t y

. A

. Y e s , i t i s , c o r r e c t

. Q

. Y e s t e r d a y , M r

. M a n k i n t e s t i f i e d

, a n d h e m e n t i o n e d

t h a t G r e e n c o r e a c q u i r e d a n e a s e m e n t f r o m h i m

. D o y o u

r e c a l l t h a t t e s t i m o n y ?

A

. Y e s

. Q

. A n d d o y o u r e c a l l w

h a t G r e e n c o r e p a i d M r

. M a n k i n f o r h i s e a s e m e n t [ ] ?

A

. A s I r e c a l l

, w e p a i d h i m $ 3 5 p e r r o d

. Q

. N o a n n u a

l p a y m e n t s [ ? ]

A

. N o a n n u a

l p a y m e n t

.

M r

. B r o o k s l a t e r s t a t e d

, i n r e s p o n s e t o a q u e s t i o n f r o m t h e j u d g

e a b o u t t h e s i m i l a r i t i e s 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.”

[¶8 4 ] 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 b e 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. I nstead, 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.

[¶8 5 ] 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 . R e m a nd is required for application of

the c orrect principles

.35

3

. P e r m i s s i b i l i t y U n d e r W y o m i n g L a w o f A n n u a l P

a y m e n t s f o r a C o n d e m n e d

E a s e m e n t

[¶8 6 ] 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 anticip ates 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 require s a fixed lump sum award.

[¶8 7 ] 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

ma r ket 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.

[¶8 8 ] Section 1

- 26

- 704 provides methods for determining fair ma rket value, with subsection (a)(iii)(B) specifically allowing consideration of the “price paid for other comparable easement s 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 y early 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 f ixed lump sum, the implication is that annual payments could be considered by the court in determining appropriate compensation.

[¶8 9 ] 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.”

B a r l o w m a i n t a i n s t h i s p r o v i s i o n e s s e n t i a l l y a u t

h o r i z e s a n n u a

l p a y m e n t s a n d i n d i c a t e s a

t o t a l l u m p s u m p a y m e n t n e e d n o t b e f i x e d a t t h e c o n c lusion of the condemnation action. 17

17 Barlow’s expert witness testified that lump sum a m o u n t s a r e n o t r e q

u i r e d b y g e n e r a l l y a c c e p t e d accounting practices. He s aid 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

G r e e n c o r e a r g

u e s t h i s p r o v i s i o n d o e s n o t s u p p o r t o n

- g o i n g a n n u a l p a y

m e n t s b e c a u s e t h e

c o n c e p t s o f a m o r t i z a t i o n a n d i n s t a l l m e n t p a y m e n t s a r e b a s e d o n t h e f

i x e d a m o u n t t

h a t i s

s i m p l y p a i d o v

e r t i m e

. W

h i l e w e a g

r e e t h a t a m o r t i z e d o r i n s t a l l m e n t p a y m e n t s a r e 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

- 2 6

- 5 0 9 ( L e x i s N exis 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 c o n d e m

n o r s h a l l m a k e r e a s o n a b l e a n d d i l i g e n t

e f f o r t s t o a c q

u i r e p r o p e r t y b y g

o o d f a i t h n e g o t i a t i o n

. ( b ) I n a t t e m p t i n g t o a c q u i r e t h e p r o p e r t y b y p u r c h a s e

u n d e r W

. S

. 1

- 2 6

- 5 1 0

, 18 t h e c o n d e m n o r , a c t i n g w i t h i n t h e

s c o p e o f i t s p o w e r s a n d t o t h e e x t e n t n o t o t h e r w i s e f

o r b i d d e n b y l a w , s h a l l n e g

o t i a t e i n g

o o d f a i t h a n d m a y c o n t r a c t w i t h

r e s p e c t t o : ( i ) A n y e l e m e n t o f v

a l u a t i o n o r d a m a g

e s r e c o g n i z e d

b y l a w a s r e l e v

a n t t o t h e a m o u n t o f j u s t c o m p e n s a t i o n

p a y a b l e f o r t h e p r o p e r t y ; ( i i ) T h e e x t e n t

, t e r m o r n a t u r e o f t h e p r o p e r t y i n t e r e s t o r o t

h e r r i g h t t o b e a c q u i r e d ;

. . . . ( v

i ) T h e t i m e a n d m e t h o d o f p a y m e n t o f a g r e e d

c o m p e n s a t i o n o r o t

h e r a m o u n

t s a u t h o r i z e d b y l a w ; a n d ( v i i ) A n y o t h e r t e r m s o r c o n d i t i o n s d e e m e d

a p p r o p r i a t e b y e i t h e r o f t h e p a r t i e s

.

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

- 2 6

- 509(b) through (e) are prima facie evidence of “good faith” by the condemnor unde r subsection (a) of this section.37

[ ¶ 9 1 ] S u b s e c t i o n s ( b ) ( v i ) a n d ( v

i i ) g i v e t h e p a r t i e s t h e o p t i o n o f n e g o t i a t i n g a n d

c o n t r a c t i n g f

or 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

c ompensation which can be negotiated by a potential condemnor and a condemnee could

include a wide variety of measures, including annual or on

- g oing 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.

[¶9 2 ] 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 commenc ed.” 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

re ad 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.

h t t p : / / w w w

. b l s

. g o v / c p i / c p i f a q

. h t m # Q u e s t i o n

_ 1

. T h e u s e o f a n a n n u a l p a y m e n t w i t h a C P I a d j u s t m e n t r e c o g

n i z e s t h e t i m e v

a l u e o f m o n e y

. I f a n a n n u a l p a y m e n t i s a l l o w e d

, t

h e

c o n d e m n o r w i l l n o t b e p a y i n g t h e f u l l v a l u e o f t h e e a s e m e n t u p f r o n t a n d w i l l

, t h e r e f

o r e , b e a b l e t o e n

j o y t h e b e n e f

i t o f t h o s e f

u n d s

. T h e C P I a d

j u s t m e n t s i m

p l y e q u a l i z e s t h e d o l l a r v a l u e o v e r t i m e t o p r o v

i d e f u l l c o m p e n s a t i o n t o t

h e l a n d o w n e r

. A l t h o u g h t h e

a m o u n t will change over time, its parameters will be f i x ed at the time of the

c o n d e m n a t i o n a w a r d

.

[¶9 3 ] Section 1

- 26

- 513 (a) requires the condemnor to deposit

, at the time of commencing an eminent domain proceeding , “ a n a m o u n t e q u a l t o t h e c o n d e m

n o r ’ s l a s t o f

f e r o f 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 pay m ents 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 w ith 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 sec urity during the course of the condemnation proceeding. The fact that the legislature did not provide specific guidance to calculate a correct

d e p o s i t w h e n a r e c u r r i n g p a y

m e n t i s o f

f e r e d d o e s n o t m a n d a t e a

n i n t e r p r e t a t i o n t h a t s u c h38

p a y m e n t i s n e v e r a l l o w e d

. W h i l e d e p o s i t i n g t h e c o r r e c t a m o u n t m a y r e q u i r e s o m e

e s t i m a t i o n a s t o t h e u s e f

u l l i f e o f t h e e a s e m e n t

, t h e p r o v i s i o n d o e s n o t e x

p r e s s l y p r o h i b i t

t h e u s e o f a n n u a

l p a y m e n t s a s p a r t o f a j u s t c o m p e n s a t i o n a w a r d

.

[¶9 4 ] 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 s tatutes 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

P ro cedure , 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

c ould continue as long as the authorized use is made of the condemned property. See

K ennedy Oil, ¶ 22, 205 P.3d at 1006 (recognizing legislative committee reports a s proper evidence of legislative intent).

[¶96] The district court erred by concluding as a matter of law that annual payments are

n o t a l l o w e d b y W

y o m i n g s t a t u t e s

. 19 T h i s r u l i n g d o e s n o t

, h o w e v

e r , e n d t h e i n q u i r y

. T h e

r e c o r d c o n t a i n s e v

i d e n c e o f t r a n s a c t i o n s i n v o l v i n g a n n u a l p a y

m e n t s a n d t r a n s a c t i o n s t h a t
d o n o t

. O n r e m a n d

, t

h e d i s t r i c t c o u r t w i l l n e e d t o e v a l u a t e t h e e v

i d e n c e t o d e t e r m

i n e

w h e t h e r a n n u a l p a y m e n t s a r e j u s t i f

i e d i n t h i s c a s e

.

4

. Greencore’s E

ntitlement to A bandon P ipeline in P lace

[¶9 7 ] 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 rec laim 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 O b v i o u s l y , i f w e a

r e i n c o r r e c t i n t h i s a n a l y s i s , t h e l e g i s l a t u r e c a n a m e n d t

h e s t a t u t e t o e x p r e s s l y p r o h i b i t

a n n u a l o r p e r i o d i c p a

y m e n t s a n d r e q u i r e o n l y l u m p s

u m a w a r d s

.39

a n d t h a t s t a t u

t e c a n n o t b e a p p l i e d u n

t i l t h e p i p e l i n e i s a c t u a l l y a b a n d o n e d

. S e c t i o n 1

- 2 6

- 7 1 4 s t a t e s :

( a ) A c o n d e m n o r w h o a c q u i r e s a p r o p e r t y r i g h t o r i n t e r e s t o f l e s s t h a n f

e e s i m p l e t i t l e i n a n y l a n d s h a l l b e

r e s p o n s i b l e f

o r r e c l a m a t i o n o n s u c h l a n d a n d f o r r e s t o r a t i o n

o f t h e l a n d a n d a n y i m

p r o v e m e n t s t h e r e o n

. T h e r e c l a m a t i o n

a n d r e s t o r a

t i o n s h a l l r e t

u r n t h e p r o p e r t y a n d i m p r o v e m e n t s t o

t h e c o n d i t i o n e x i s t i n g p r i o r t o t h e c o n d e m n a t i o n t o t h e e x t e n

t

t h a t r e a s o n a b l y c a n b e a c c o m p l i s h e d

.

[¶9 8 ] 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, ease m ents 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 Licen ses § 94 (2004)

.

[¶9 9 ] 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:

U p o n a b a n d o n m e n t

, n o n

u s e f o r a p e r i o d o f t e n ( 1 0 )

y e a r s , o r t r a n s f

e r o r a t t e m p t e d t r a n s f e r t o a u s e w

h e r e t h e

t r a n s f e r e e c o u l d n o t h a v

e c o n d e m

n e d f o r t h e n e w u s e , o r

w h e r e t h e n e w u s e i s n o t i d e n t i c a l t o t h e o r i g i n a l u s e a n d n e w d a m a g e s t o t h e l a n d o w

n e r w h o s e p r o p e r t y w a s c o n d e m n e d

f o r t h e o r i g

i n a l u s e w i l l o c c u r , a n y e a s e m e n t a u t h o r i z e d u n d e r

t h i s a c t t e r m

i n a t e s

.

C o n s i s t e n t w i t h t h e s t a t u t e , t h e e a s e m e n t g

i v e n b y B a r l o w t o G r e e n c o r e i n t h i s c a s e

s p e c i f i c a l l y s t a t e s t h a t i t s h a l l t e r m i n a t e u p o n t h e h a

p p e n i n g o f v a r i o u s c o n d i t i o n s , i n c l u d i n g a b a n d o n m e n t

.

[¶ 100 ] Section 1

- 26

- 714 (a) directly addresses the reclamation responsi bility of a condemnor who has acquired less than a fee simple title in the property and states it

“shall b e responsible for reclamation on such land and f or restoration of that land[.]” The statutory provision also states that property shall be returned t o 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 i s perpetual.40

[ ¶ 1 0 1 ] 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 ret urn 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 imposi ng 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 condem n or’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

determination s 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.

C O N C L U S I O N

[¶1 03 ] 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

Barlo w’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 distr ict 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

ca lculation 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 a n 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 rem ainder 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

a n d t h e G r e e n c o r e e a s e m e n t

. A s w e s t a t e d i n F r a n g o s

, f a i r m a r k e t v

a l u e b a s e d on comparable sales is determined by “making adjustment s f or prices of those [comparables] that are more similar or dissimilar to condemned property.” Frangos, 487 P.2d at 807.

[¶10 4 ] 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

p ayments 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 prop erly concluded the issue of whether Greencore has to remove the pipeline upon abandonment and termination of the easement is not yet ripe for consideration.

[¶10 5 ] A f

firmed in part and reversed and remanded in part for additional proceedings

consistent w ith this opinion.