IN THE SUPREME COURT, STATE OF WYOMING

2022 WY 138

OCTOBER TERM, A.D. 2022

 November 3, 2022 

CRAIG COLTON, individually,

Appellant 

(Plaintiff), 

v. 

TOWN OF DUBOIS, 

Appellee 

(Defendant).

S-22-0078 

Appeal from the District Court of Fremont County

The Honorable Jason M. Conder, Judge

Representing Appellant:

Craig Colton, pro se. 

Representing Appellee:

Rick L. Sollars, Western Law Associates, P.C., Lander, Wyoming. 

Before FOX, C.J., KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ. 

BOOMGAARDEN, J., delivers the opinion of the Court; KAUTZ, J., files a specially 

concurring opinion. 

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, 

Wyoming 82002, of any typographical or other formal errors so that correction may be made before 

final publication in the permanent volume.
1

BOOMGAARDEN, Justice.

[¶1] Craig Colton filed a declaratory judgment action against the Town of Dubois 

seeking to reclaim 30.17 acres of real property the Town previously sought to condemn but

ultimately acquired through a settlement agreement with Mr. Colton. The parties filed 

cross-motions for summary judgment, and the district court entered judgment in favor of 

the Town. Mr. Colton challenges the district court’s decision on appeal. We affirm.

ISSUES

[¶2] The dispositive issue is:

1

Whether, in his settlement agreement with the Town, Mr. 

Colton waived any action he may have under Wyo. Stat. Ann.

§ 1-26-801(d) to reclaim the 30.17 acres.

FACTS

[¶3] In January 2008, Mr. Colton, Trustee of the Craig Colton Family Trust, dated 

December 13, 1995, and Trustee of the Irrevocable Trust for Milo Jet Colton, dated March 

24, 1999 (“the Trusts”), filed a complaint seeking a declaration of inverse condemnation 

under Wyo. Stat. Ann. § 1-26-516. The Trusts owned a 77-acre parcel of real property 

near the Dubois Municipal Airport and sought to prevent the Town from condemning any 

portion of the property. The Town filed an answer and a counterclaim seeking to condemn

35 acres of the Trusts’ property under the Wyoming Eminent Domain Act, Wyo. Stat. Ann. 

§ 1-26-501 et seq. The Town asserted its “Airport Master Plan” identified this property as 

necessary for the airport’s redevelopment.

[¶4] At the end of a bench trial in October 2009, the district court orally held the Town 

met its burden to establish condemnation and was entitled to take 30.17 acres of the Trusts’ 

property.2 The district court set the matter out 60 days for a hearing on compensation with

a final order to be issued subsequently.

[¶5] Prior to the compensation hearing, the parties entered settlement negotiations 

resulting in the Settlement Agreement Release and Covenants (“the settlement agreement”) 

1 Mr. Colton raises several issues for the first time on appeal, including negligent misrepresentation, breach 

of contract, and unconscionability. “[T]his Court will not consider an issue raised for the first time on 

appeal unless it is jurisdictional or of such fundamental nature that it must be considered.” Moses Inc. v. 

Moses, 2022 WY 57, ¶ 12, 509 P.3d 345, 350 (Wyo. 2022) (internal quotations and citation omitted). None 

of these issues are jurisdictional, and Mr. Colton has not shown they are fundamental. Consequently, we 

do not address them.

2 The exercise of a state’s power of eminent domain is commonly referred to as a “taking.” See Byrnes v. 

Johnson Cnty. Comm’rs, 2020 WY 6, ¶ 14, 455 P.3d 693, 698 (Wyo. 2020).
2

signed on January 14, 2010. Under its terms, the Town agreed to pay the Trusts, through 

Mr. Colton, a total of $229,430.86 for the 30.17 acres. The total amount represented the 

Town’s initial offer to Mr. Colton of $170,430.86 plus an additional $59,000. The 

settlement agreement also granted Mr. Colton road and utility easements over the 30.17 

acres. Ultimately, the settlement agreement was conditioned upon Mr. Colton delivering 

the deed to the property and the parties moving to dismiss the pending legal action with 

prejudice. It also contained several terms releasing the Town from all past, present, and 

future claims related to the disputed 30.17 acres.

[¶6] The same day the settlement agreement was signed, Mr. Colton signed a special 

warranty deed conveying the 30.17 acres to the Town. The parties subsequently filed a

stipulated motion to dismiss. In February 2010, the district court entered an order

dismissing all the parties’ claims with prejudice.

[¶7] A little over 10 years later, in February 2020, Mr. Colton filed the current 

declaratory judgment action seeking to reclaim the 30.17 acres he deeded to the Town. Mr. 

Colton contended the Town failed to make substantial use of the property during the 

preceding 10 years and therefore he was entitled to relief under Wyo. Stat. Ann. § 1-26-

801(d), which provides:

If a public entity acquires property in fee simple title under this 

chapter but fails to make substantial use of the property for a 

period of ten (10) years, there is a presumption that the property 

is no longer needed for a public purpose and the previous 

owner or his successor may apply to the court to request that 

the property be returned to the previous owner or his successor 

upon repayment of the amount originally received for the 

property in the condemnation action. A public entity may rebut 

the presumption created under this subsection by showing 

good cause for the delay in using the property.

Wyo. Stat. Ann. § 1-26-801(d) (LexisNexis 2021).

[¶8] In November 2020, the Town moved for summary judgment3 on two grounds. First, 

the Town argued Mr. Colton expressly waived any future claims related to the 30.17 acres 

under the settlement agreement. Second, the Town argued it did not acquire the property

as a taking under the Wyoming Eminent Domain Act because the parties stipulated to 

3 The Town first responded to Mr. Colton’s complaint with a motion to dismiss for lack of subject matter 

jurisdiction asserting Mr. Colton lacked standing because he had not participated in the previous action in 

his individual capacity. The district court denied the Town’s motion to dismiss finding Mr. Colton was 

inextricably intertwined with the Trusts and the ownership of the property. The district court found Mr. 

Colton was a qualified successor of the property under Wyo. Stat. Ann. § 1-26-801(d).
3

dismissal of the condemnation action with prejudice, and Mr. Colton conveyed the property 

through a special warranty deed. Mr. Colton filed a cross-motion for summary judgment.

[¶9] The district court held a hearing on the motions. Its order granted summary 

judgment to the Town and denied Mr. Colton’s motion as moot. Mr. Colton timely 

appealed the district court’s order.

STANDARD OF REVIEW

[¶10] “Wyoming Rule of Civil Procedure (W.R.C.P.) 56(a) authorizes summary judgment 

when ‘the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.’” Dellos Farms Inc. v. Sec. State Bank, 

2022 WY 107, ¶ 7, 516 P.3d 846, 848 (Wyo. 2022) (quoting W.R.C.P. 56(a)). We review 

a district court’s order granting summary judgment de novo. Forbes v. Forbes, 2022 WY 

59, ¶ 30, 509 P.3d 888, 896 (Wyo. 2022) (citing Matter of Phyllis v. McDill Revocable Tr., 

2022 WY 40, ¶ 16, 506 P.3d 753, 759 (Wyo. 2022)). When reviewing a grant of summary 

judgment:

We . . . afford no deference to the district court’s ruling. This 

Court reviews the same materials and uses the same legal 

standard as the district court. The record is assessed from the 

vantage point most favorable to the party opposing the motion 

. . . , and we give a party opposing summary judgment the 

benefit of all favorable inferences that may fairly be drawn 

from the record. A material fact is one that would have the 

effect of establishing or refuting an essential element of the 

cause of action or defense asserted by the parties.

Spence v. Sloan, 2022 WY 96, ¶ 22, 515 P.3d 572, 579 (Wyo. 2022) (internal citations 

omitted) (quoting Miller v. Sweetwater Cnty. Sch. Dist. # 1, 2021 WY 134, ¶ 13, 500 P.3d 

242, 246 (Wyo. 2021)).

DISCUSSION

[¶11] Mr. Colton asserts summary judgment is inappropriate because there is a dispute of

material fact related to whether the Town acquired the 30.17 acres under the Wyoming 

Eminent Domain Act, as is necessary to maintain an action under Wyo. Stat. Ann. § 1-26-

801(d). Even though he signed a special warranty deed and the eminent domain 

proceedings were dismissed with prejudice, Mr. Colton contends the settlement 

agreement’s clear and unambiguous references to the term “taking” reflect the Town

nevertheless acquired the property through eminent domain. The Town asserts the 30.17 

acres was acquired by purchase under the settlement agreement, through which Mr. Colton

clearly waived any future claims related to the property. Though Mr. Colton quotes the 
4

waiver provisions of the settlement agreement, he does not directly address the waiver issue 

on appeal. We find the waiver issue to be dispositive.

[¶12] “[T]he question of waiver is often one of fact[.]” Skaf v. Wyo. Cardiopulmonary 

Services, P.C., 2021 WY 105, ¶ 13, 495 P.3d 887, 892 (Wyo. 2021) (quoting Verheydt v. 

Verheydt, 2013 WY 25, ¶ 21, 295 P.3d 1245, 1250 (Wyo. 2013)). However, “when the 

facts and circumstances relating to the subject are admitted or clearly established, waiver 

becomes a question of law which we consider de novo.” Id. (quoting Verheydt, ¶ 21, 295 

P.3d at 1250). This Court has “defined waiver as the intentional relinquishment of a known 

right that must be manifested in some unequivocal manner.” Id. ¶ 14, 495 P.3d at 893 

(footnote omitted) (quoting Jensen v. Fremont Motors Cody, Inc., 2002 WY 173, ¶ 16, 58 

P.3d 322, 327 (Wyo. 2002)). “[T]he three elements of waiver are: 1) an existing right; 

2) knowledge of that right; and 3) an intent to relinquish it.” Id. (quoting Jensen, ¶ 16, 58 

P.3d at 327). Where, as here, the waiver involves a statutory right, we also must consider 

whether the waiver would affect public policy or public interest. Id. ¶ 16, 495 P.3d at 893 

(citing Borman v. Sweetwater Cnty. Sch. Dist. No. 2, 627 P.2d 1364, 1368 (Wyo. 1981)).

[¶13] We first consider whether Mr. Colton has a statutory right under Wyo. Stat. Ann. 

§ 1-26-801(d). Skaf, ¶ 14, 495 P.3d at 893. If the Town acquired the property under the 

Wyoming Eminent Domain Act, Mr. Colton would have a statutory right to apply to 

reclaim the property if he qualified as the previous owner or a successor and if the Town 

failed to make substantial use of the property for 10 years. Because it does not impact our 

ultimate conclusion, we infer to Mr. Colton’s benefit that the Town acquired the property 

under the Act. The Town does not dispute Mr. Colton is the previous owner and the Town 

failed to use the property for airport development. The district court found Mr. Colton was 

a qualified successor of the property under Wyo. Stat. Ann. § 1-26-801(d). Mr. Colton 

therefore has an existing statutory right, the nature of which we more fully describe below,

see infra ¶¶ 20–21.

[¶14] The second element requires that Mr. Colton knew of his opportunity to reclaim the 

property under Wyo. Stat. Ann. § 1-26-801(d) at the time he signed the settlement 

agreement. Skaf, ¶ 14, 495 P.3d at 893. The current version of subsection (d) became 

effective in July 2007. 2007 Wyo. Sess. Laws ch. 139, §§ 2, 3 (H.B. 124). Mr. Colton 

filed his complaint against the Town in January 2008 and signed the settlement agreement 

on January 14, 2010. The provisions of the Wyoming Eminent Domain Act, which include

§ 1-26-801(d), were the primary basis for the parties’ claims throughout the dispute leading 

to the settlement agreement. Therefore, Mr. Colton knew of the right afforded by § 1-26-

801(d) at the time he signed the settlement agreement. See e.g., Borman, 627 P.2d at 1373 

(stating “as a general rule contracting parties are presumed to have had in mind all existing 

laws relating to contracts”); 17 Am. Jur. 2d Contracts § 228 (Aug. 2022 Update) (“As a 

broad principle, the law in force at the time a contractual transaction is consummated and 

made effectual determines the contract’s validity and effect.”).
5

[¶15] The third element necessary to establish waiver on summary judgment requires

there to be no dispute of material fact that Mr. Colton intended to relinquish his opportunity

to pursue a claim under Wyo. Stat. Ann. § 1-26-801(d). Skaf, ¶ 14, 495 P.3d at 893. To 

determine whether this element is satisfied, we must interpret the parties’ settlement 

agreement, de novo, using the same principles we apply when interpreting contracts. 

Kappes v. Rhodes, 2022 WY 82, ¶ 18, 512 P.3d 31, 36 (Wyo. 2022) (“A settlement 

agreement is a contract, and it is subject to the same legal principles as those which apply 

to any contract.” (quoting Matter of Est. of McCormick, 926 P.2d 360, 362 (Wyo. 1996))); 

TEP Rocky Mountain LLC v. Rec. TJ Ranch Ltd. P’ship, 2022 WY 105, ¶ 37, 516 P.3d

459, 472 (Wyo. 2022) (“We interpret unambiguous contracts as a matter of law.” (quoting 

Ecocards v. Tekstir, Inc., 2020 WY 38, ¶ 18, 459 P.3d 1111, 1118 (Wyo. 2020))).

[¶16] Our aim when interpreting contracts “is to determine the intent of the contracting 

parties.” Holding v. Luckinbill, 2022 WY 10, ¶ 14, 503 P.3d 12, 17 (Wyo. 2022). “When 

the provisions in the contract are clear and unambiguous, the court looks only to the ‘four 

corners’ of the document in arriving at the intent of the parties.” TEP Rocky Mountain 

LLC, ¶ 45, 516 P.3d at 474 (quoting Thornock v. PacifiCorp, 2016 WY 93, ¶ 13, 379 P.3d 

175, 180 (Wyo. 2016)). We use an objective approach when interpreting contracts, thus

rendering the parties’ subjective intent irrelevant. Schell v. Scallon, 2019 WY 11, ¶ 16, 

433 P.3d 879, 885 (Wyo. 2019) (citing Claman v. Popp, 2012 WY 92, ¶ 27, 279 P.3d 1003, 

1013 (Wyo. 2012)). Further, we hold fast to the principle that “[t]he parties are free to 

incorporate within their agreement whatever lawful terms they desire, and we are not at 

liberty, under the guise of judicial construction, to rewrite the agreement.” Pennaco 

Energy, Inc. v. KD Co., LLC, 2015 WY 152, ¶ 25, 363 P.3d 18, 26 (Wyo. 2015) (quoting 

Davidson Land Co., LLC v. Davidson, 2011 WY 29, ¶ 14, 247 P.3d 67, 71 (Wyo. 2011)).

[¶17] Neither party claims the waiver provisions in the settlement agreement are 

ambiguous. We conclude they are clear and unambiguous. Those provisions state:

PURPOSE OF SETTLEMENT

The purpose of this Settlement Agreement is to settle 

and resolve, and the parties hereto have agreed to settle and 

resolve, fully and finally, the issue of compensation to be paid 

Colton by Dubois for the taking of the 30.17 acres and for all 

claims, demands and actions of Colton against Dubois, arising 

out of or in any way related to the issue of taking by Dubois 

and for all matters related to the subdivision application filed 

by Colton, as well as any and all other claims, whether asserted 

or not in the State Court action, and whether known or 

unknown, that any of the parties to this settlement agreement 

may have as against the other now, or may have in the future 

arising out of or in any way related to the above taking and 
6

subdivision application, including State Court actions or 

Federal Court action.

3.

RELEASE

Colton hereby releases Dubois from any and all claims, 

demands, actions or causes of action, whether known or 

unknown, arising from or related in any way to the above 

described taking, the procedures of the same, the subdivision 

application and the procedures of the [sic], and from any and 

all claims, demands, actions or causes of action, whether 

known or unknown, arising from or related in any way to any 

allegations set forth in the State Court action.

4.

RELEASE VALID REGARDLESS OF FUTURE 

DISCOVERY OF NEW OR DIFFERENT FACTS

The parties acknowledge that they or their attorneys 

may discover facts different from or in addition to the facts that

they now know or believe to be true with respect to the taking 

and subdivision application, and/or matters alleged in the State 

Court Action. Notwithstanding this acknowledgement, Colton 

and Dubois hereby do, fully, finally, absolutely and forever 

settle any and all claims, disputes and differences that now 

exist, may exist in the future, or have existed between them, 

with respect to the taking and the subdivision application.

[¶18] The stated purpose of the settlement agreement is to resolve any claims the parties 

“may have in the future arising out of or in any way related to the above taking[.]” This 

purpose is further reflected in the terms of the settlement agreement. In multiple sections 

Mr. Colton agreed to release the Town from “any and all” claims. The settlement 

agreement also definitively states “Colton and Dubois hereby do, fully, finally, absolutely 

and forever settle any and all claims, disputes and differences that now exist, [and] may 

exist in the future . . . with respect to the taking[.]” The release provisions are broad but

nonetheless unequivocal in expressing Mr. Colton’s intent to waive “any and all” future 

claims, “related in any way” to the condemnation action, which would include any claims

he had pursuant to Wyo. Stat. Ann. § 1-26-801(d). See Moayedi v. Interstate 35/Chisam 

Rd., L.P., 438 S.W.3d 1, 8 (Tex. 2014) (“Just because the waiver is all encompassing does 

not mean that it is unclear or vague.”). Thus, the settlement agreement undisputedly 

manifests the intent necessary to satisfy the third element of waiver.
7

[¶19] Though there is no dispute of material fact that all three elements of waiver are 

present, our analysis is not complete. We still must determine whether a waiver of Mr. 

Colton’s statutory right under Wyo. Stat. Ann. § 1-26-801(d) affects public policy or public 

interest. “As a general rule a person may waive a statutory or constitutional right enacted 

for the benefit of that person, if that right does not affect public policy or public interest.”

Skaf, ¶ 16, 495 P.3d at 893 (quoting Borman, 627 P.2d at 1368); see also Blondeau v. 

Baltierra, 252 A.3d 317, 346 (Conn. 2020) (“[O]nly the party who benefits from or is 

protected by the right may waive that right. . . . Parties may not waive statutory rights 

[when] a question of public policy is involved. Likewise, a law established for a public 

reason cannot be waived or circumvented by a private act or agreement.” (citation 

omitted)). Because statutes often address public policy or are established to protect the 

public, waivers of statutory rights are not favored. Skaf, ¶ 16, 495 P.3d at 893 (citing 

Jensen, ¶ 22, 58 P.3d at 328).

[¶20] Expressions of specific public policy generally arise “from well-established 

legislative, judicial, or administrative mandate.” Id. ¶ 24, 495 P.3d at 895 (quoting Dynan 

v. Rocky Mountain Fed. Sav. & Loan, 792 P.2d 631, 640 (Wyo. 1990)). Wyo. Stat. Ann. 

§ 1-26-801 specifically mandates the State, counties, and municipal corporations have 

authority to condemn private property for a “public purpose.” Accordingly, the public 

policy or interest served by § 1-26-801 is the acquisition, possession, occupation, and 

enjoyment of private land by a public entity where the public interest and necessity so 

require. See Wyo. Stat. Ann. § 1-26-801(c) (LexisNexis 2021); see also Wyo. Stat. Ann. 

§ 1-26-504(a) (LexisNexis 2021). The section then concludes by stating that if a public 

entity “fails to make substantial use of the [condemned] property for a period of ten (10) 

years,” the previous owner (or successor) of the property, who was paid fair market value 

for the property by the public entity, “may apply to the court to request that the property 

be returned to the previous owner or his successor upon repayment of the amount originally 

received for the property in the condemnation action.” Wyo. Stat. Ann. §§ 1-26-801(d), 1-

26-702 (LexisNexis 2021) (addressing compensation for a taking).

[¶21] Section 1-26-801(d) is not self-executing. Rather, it provides a previous property 

owner (or successor) the opportunity to apply to reclaim property when the public’s interest 

in acquiring the property has not been realized. As such, § 1-26-801(d) expressly operates

to the benefit of the previous owner (or successor) at their discretion under terms that 

continue to protect the broader public interest served by granting condemnation authority 

to public entities. Section 1-26-801(d) protects the broader public interest by requiring the 

passage of 10 years without public use, and by allowing a public entity to “rebut the 

presumption created under this subsection by showing good cause for the delay in using 

the property.” Wyo. Stat. Ann. § 1-26-801(d). Under this statutory scenario, whether Mr. 

Colton waives his statutory opportunity to reclaim the 30.17 acres does not affect the public 

interest served by the legislature’s grant of condemnation authority to designated public 

entities.
8

[¶22] As we have often noted, public policy or interest is also served when we recognize 

an individual’s right to freely contract, including the freedom to settle and waive claims 

when the parties so intend. Hassler v. Circle C. Res., 2022 WY 28, ¶ 12, 505 P.3d 169, 

173 (Wyo. 2022) (“Competent parties have the right to freely contract.” (citation omitted));

Finely Res., Inc. v. EP Energy E&P Co., L.P., 2019 WY 65, ¶ 24, 443 P.3d 838, 846–47 

(Wyo. 2019) (noting “[t]he right of private contract is no small part of the liberty of the 

citizen” (quoting Nuhome Invs., LLC v. Weller, 2003 WY 171, ¶ 8, 81 P.3d 940, 944 (Wyo. 

2003))). We do not lightly interfere with this liberty. Hassler, ¶ 12, 505 P.3d at 173; Finely 

Res., Inc., ¶ 24, 443 P.3d at 846.

[¶23] The language of the Wyoming Eminent Domain Act’s good-faith negotiation 

requirement acknowledges this principle, the purpose of which “is to encourage parties to 

resolve disputes by agreement, thus preventing needless condemnation proceedings and 

expenses.” EOG Res., Inc. v. Floyd C. Reno & Sons, Inc., 2020 WY 95, ¶ 20, 468 P.3d 

667, 673–74 (Wyo. 2020) (citing Nichols on Eminent Domain, Ch. 24, § 24.13[1][a], at 

24–155 (Matthew Bender, 3rd ed.)); see Wyo. Stat. Ann. §§ 1-26-509 to -511.

[¶24] For example, § 1-26-509(b)(vii) provides that, in a condemnor’s attempt to acquire 

property by purchase, the parties may contract with respect to “[a]ny other terms or 

conditions deemed appropriate by either of the parties.” Wyo. Stat. Ann. § 1-26-509(b)(vii)

(LexisNexis 2021). Wyo. Stat. Ann. § 1-26-511(a) further allows a property owner to 

waive the condemnor’s good-faith requirement if it is “waived by written agreement 

between the property owner and the condemnor[.]” Wyo. Stat. Ann. § 1-26-511(a) 

(LexisNexis 2021). We do not see how Mr. Colton’s waiver of any right he has under § 1-

26-801(d) would contravene this statutory language or the public policy behind the 

Wyoming Eminent Domain Act. Cf. Outfront Media, LLC v. City of Sandy Springs, 356 

Ga.App. 405, 418, 847 S.E.2d 597, 610 (Ga. Ct. App. 2020) (allowing lessees to waive 

their “right to just and adequate compensation in any type of condemnation proceedings, 

which assignment or waiver we will enforce”); Fibreglas Fabricators, Inc. v. Kylberg, 799 

P.2d 371, 375 (Colo. 1990) (stating “it is well established that a lessee may forego his or 

her right to compensation—and permit the landlord to receive all the condemnation 

proceeds—where the lease agreement contains a legally adequate ‘condemnation clause’

or ‘automatic termination clause’”).

CONCLUSION

[¶25] Because we can conclude as a matter of law the settlement agreement satisfies the 

three elements of waiver and does not contravene the public policy behind the Wyoming

Eminent Domain Act, the Town is entitled to judgment as a matter of law. The district 

court did not err in granting summary judgment in favor of the Town. Affirmed.
9 

KAUTZ, Justice, specially concurring. 

[¶26] I concur in the result of the majority opinion and in the determination that the 

settlement language waived the right to reclaim the property under Wyo. Stat. Ann. § 1-

26-801(d) (LexisNexis 2021). However, when determining whether the waiver of Mr. 

Colton’s interest is contrary to public policy, I find it necessary to focus on the specific 

public policy established by § 1-26-801(d). 

[¶27] “It is a long-standing axiom of contract law that a contract provision is void if the 

interest in enforcing the provision is clearly outweighed by a contrary public policy.” In 

re Village Homes of Colo., Inc., 405 B.R. 479, 483 (Bankr. D. Colo. 2009) (citing Mason 

v. Orthodontic Ctrs. of Colo., Inc., 516 F.Supp.2d 1205, 1212 (D. Colo. 2007), and FDIC 

v. Am. Cas. Co., 843 P.2d 1285, 1290 (Colo. 1992)). “[A] statutory right conferred on a 

private party, but affecting the public interest, may not be waived or released if such waiver 

or release contravenes the statutory policy.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 

704, 65 S.Ct. 895, 900–01, 89 L.Ed. 1296 (1945). A waiver of a statutory right is 

unenforceable on grounds of public policy only if “the interest in its enforcement is clearly 

outweighed in the circumstances by a public policy against enforcement.” Restatement 

(Second) of Contracts §178 (1981). The obvious purpose of the rule voiding waivers of 

statutory rights is to protect the interest of the public in that statutory right, rather than the 

interest of the individual contracting party. It is necessary, then, to determine the interest 

of the public in § 1-26-801(d), rather than the interest of the public in the entire Wyoming 

Eminent Domain Act, Wyo. Stat. Ann. §§ 1-26-501 through 1-26-817 (LexisNexis 2021). 

[¶28] Section 1-26-801(d) establishes a policy that governmental entities in Wyoming 

may not proclaim private property is necessary for a public use, take that property using 

condemnation proceedings, and then not put that property to any public use for a period of 

ten years. The statute enforces this policy by permitting the previous owner (or successor) 

to reacquire the property, even though the government obtained the property “in fee simple 

title.” Section 1-26-801(d). Although the statute creates a strong public policy against 

governmental entities taking property through condemnation and then “banking” or not 

using the property, it does not automatically revert the unused property to the previous 

owner. Instead, § 1-26-801(d) gives the prior owner the option of requesting return of the 

property. This statutory approach to enforcement of the policy requiring condemnors to 

put the condemned property to public use gives the prior owner a choice to enforce the 

policy or not. Similarly, a prior owner who settles the issue of condemnation has the choice 

of waiving enforcement of the policy when the settlement is reached. 

[¶29] The language of § 1-26-801(d) does not prohibit waiver of the public policy that the 

statute establishes and enforces. Because a prior owner has the option of waiving the 

interest after ten years, the public policy of § 1-26-801(d) does not conflict with a waiver 

of the reacquisition right when the condemnation action is settled.