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State court to hear Cody's Country case
By Carole Cloudwalker
This document was published online on Monday, November 26, 2007
The appeal of a district court case from Park County concerning a lot surrounded by Cody's Country Subdivision likely will be heard by the Wyoming Supreme Court next spring.
The appeal was filed by Eugene and Elizabeth Brumbaugh who several years ago purchased a one-acre lot that originally was part of the Skytel Country Estates Subdivision on the North Fork.
The lot in question first sold in the early 1970s and has passed through several owners, but never was developed.
It was part of a subdivision later vacated and revamped by Ribs Mickelson of Billings into Cody's Country Subdivision.
Mickelson's attorney, Tom Keegan of Cody, said the Skytel Country Subdivision was vacated and Mickelson redrew his new subdivision using circular lots of a quarter-acre each with “common area” between them.
Keegan said only about three of the original Skytel lots ever were sold, and just two remain.
Keegan said Brumbaughs are “claiming rights in (Cody's Country Subdivision) based on the old Skytel plat,” and seeking protection under covenants “that never existed” in connection with their property.
Some of the issues the Brumbaughs have raised, Keegan said, include:
€The right to hook up to a Cody's Country water system.
€Installing a septic system in the common area between lots.
€Installing utility easements to their lot through the common area.
€Development of a livestock facility on the common area in Cody's Country.
“We're also arguing about Mickelson's appointment (by the late Cecil Legg), as the architectural committee that would determine whether Brumbaughs' home plans are acceptable, Keegan said.
He added that the “livestock facility” never was intended to be built in the subdivision, but was originally planned to be the Flying L Skytel Ranch, which since has been sold to the Prince family and torn down.
Other issues in the case include Brumbughs' right to use existing roads - something Mickelson is not contesting - and the definition of fraud as it applies to written rights as opposed to “implied rights,” Keegan said
Brumbaugh “bought into land that basically didn't give him the rights he's asking for now, and he's trying to make a creative argument to obtain them,” Keegan said.
He said the case was originally heard by former Fifth Judicial District Judge Hunter Patrick, who never rendered a decision on it.
Keegan said when Steven Cranfill became district court judge after Patrick retired, the case again went to court.
Judge Cranfill's decision was favorable to Mickelson. It's that decision that is being appealed to the Wyoming Supreme Court by the Brumbaughs and their attorney Joey Darrah of Powell, who was unavailable this week to comment.
Keegan said there is no date set for hearing the appeal, though he expects it will not occur until at least next spring or summer.
In his decision letter Aug. 2, 2007, Cranfill stated that in 1971 a Declaration of Restrictive Covenant for Skytel Country Estates Subdivision was recorded in the county clerk's office.
Cranfill found that no individual ownership of common space between the circular lots was established, adding that the covenants are an express easement and not implied.
The judge ruled in favor of Mickelson Land Co. in the district court case, stating there are no existing rights to water, power or use of the buffer areas by Brumbaughs.
He agreed with Brumbaughs that the only right created by the plat concerns streets, and the court “finds that (the covenants) simply do not contain the rights plaintiff now claims.”
Brumbaughs' motion for summary judgment was denied by Cranfill.
The judge also ruled that fraud claims are not valid, and that vacation of a plat does not destroy any right or privilege of the plaintiff in the plat, but in this case the only right Brumbaughs have is use of a private road system linked to the Park County road system.
He also found that Brumbaughs' claim to rights and easements “is wholly unsupported by law or fact,” that Brumbaughs have demonstrated no right to a water permit or water right, that Mickelson Land Co. is entitled to vote on modification of covenants, and that Mickelson Land can be appointed to the Architectural Control Committee.
These findings are being appealed by the Brumbaughs to the state Supreme Court.
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