Wild Country Holdings v. WE Five

2025 UT App 54

THE UTAH COURT OF APPEALS

WILD COUNTRY HOLDINGS, LLC,
Appellant and Cross-appellee,
v.
WE FIVE, LLC,
Appellee and Cross-appellant.

Opinion
No. 20231150-CA
Filed April 24, 2025

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 230906348

J. Craig Smith, Lisa Watts Baskin, Jennie B. Garner,
Blake D. Miller, and Deborah R. Chandler,
Attorneys for Appellant
Ben T. Welch, Cameron J. Cutler, and
Benjamin J. Mills, Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 WE Five, LLC (WE Five) purchased real property on the
mountainside in unincorporated Salt Lake County, Utah, on a
private driveway known as Oberland Road. The property has no
access to water or sewer service. After WE Five was unable to
purchase an easement from neighboring property owners, Wild
Country Holdings, LLC (Wild Country) and the Lambert family
(the Lamberts), to install the equipment necessary to access these
services, WE Five filed a lawsuit against Wild Country and the
Lamberts seeking to obtain access to the land through eminent
domain and easement by necessity. Wild Country and the
Lamberts filed motions to dismiss, which the district court denied.
Wild Country v. WE Five

Wild Country appealed that decision. WE Five then filed a motion
for immediate occupancy, which the district court also denied.
WE Five appealed that decision, and this court consolidated the
appeals. At oral argument, both parties agreed that the district
court’s denial of the motion for immediate occupancy also
operated as a reconsideration and grant of the motions to dismiss.
However, we decline to adopt the parties’ interpretation of the
record. Because we hold that WE Five does not have the right to
exercise eminent domain, we reverse the district court’s denial of
Wild Country’s motion to dismiss, which makes our review of the
denial of the motion for immediate occupancy moot.

BACKGROUND 1

The Land at Issue

¶2 In 1998, the owners of a parcel of land (Original Parcel)
located in unincorporated Salt Lake County divided the Original
Parcel into multiple parcels. In 2019, one of these parcels was sold
to WE Five by warranty deed. Wild Country and the Lamberts
also own parcels 2 from the Original Parcel; their parcels are
located immediately to the west of the WE Five parcel. All of these
properties are located along Oberland Road, a private driveway.

¶3 When the Original Parcel was divided, the prior owners of
WE Five’s parcel were granted an express right-of-way easement

1. “Because this case comes to us on an interlocutory appeal, the
allegations we recite have not been tried and therefore remain
allegations. Accordingly, we recount the facts as alleged and in a
light most favorable to the ruling below.” State v. Willden, 2024 UT
37, n.2, 556 P.3d 69 (cleaned up).

2. Though Wild Country owns two distinct parcels, these parcels
appear to only have one street address and possess unity of title.
For ease of reading, we refer to the Wild Country properties as a
single property going forward.

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Wild Country v. WE Five

that allowed them to access the WE Five property by crossing
portions of Wild Country’s and the Lamberts’ properties along
Oberland Road. But the easement “does not include any right to
construct utilities across [Wild Country’s and the Lambert’s]
properties.”

¶4 It also appears that the parties did not have “direct access
to water or sewer lines at the time the Original Parcel was
severed.” The Wild Country property is still not connected and
uses a well for culinary water and a septic tank to dispose of
wastewater. The Lambert property is connected to both Sandy
City water and South Valley Sewer District (the Sewer District)
sewer. 3

Past Attempts to Obtain Sewer at Oberland Road Properties

¶5 Several years prior to WE Five purchasing its parcel, the
Sewer District completed a preliminary feasibility study and
easement research for Oberland Road but ultimately tabled the
project. A couple of years later, the Sewer District again
contemplated extending sewer lines to Oberland Road. It hired an
engineering firm, which determined that “it would be possible to
serve the area but very difficult to construct and potentially very
expensive.” Eventually, the Sewer District met with Sandy City,
which “expressed great interest” in switching from septic tanks to
sewer lines to protect the watershed. Ultimately, the Sewer
District got the necessary easements from residents and decided
to move forward with the project. But the Sandy City Fire
Department refused to issue a permit for the project due to lack of
secondary access during construction, and the project was
canceled.

3. South Valley Sewer District has since changed its name to
Jordan Basin Improvement District. For simplicity, we refer to it
as the Sewer District.

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Wild Country v. WE Five

WE Five Purchases Property at Oberland Road and Seeks to Develop It

¶6 When WE Five purchased its parcel, its manager, Dustin
Freckleton, began to make plans to develop at least one house on
the property. 4 An engineering firm hired by Freckleton expressed
concerns about developing the property and informed Freckleton
that to meet the constraints set by the Sandy City Fire Department,
the existing road, which was as narrow as twelve feet with 18.5%
grades in some areas, would need to be widened to twenty feet
and have the grades decreased to 10%. The engineering firm also
noted that these modifications would require excavating and
removing material and since there are few locations where the
material could be placed, “most of the material [would need to]
be hauled off site,” which could “create significant hardship for
the neighborhood” and “push the limits of what the
neighborhood would tolerate.”

¶7 Despite these concerns, Freckleton approached the Sewer
District about obtaining an easement to run a sewer line, and
entered into a Sewer Reimbursement Agreement (the
Reimbursement Agreement) with the Sewer District. The
Reimbursement Agreement provided that Freckleton would
“bear the total cost of constructing all sewer lines, manholes and
related facilities . . . required for the servicing of [WE Five’s] . . .
development,” and that the Sewer District would reimburse WE
Five up to $400,000 for the cost of installing the pipes after the
project was “completed, inspected, and approved by [the Sewer

4. There is a dispute among the parties about this point in both the
record and their briefing. Wild Country asserts that WE Five seeks
to develop at least three houses on the parcel, pointing to a
subdivision plan in the record. WE Five maintains Freckleton
wants to build only a house for himself. Ultimately, how many
houses WE Five plans to build on the parcel does not impact the
issues on appeal.

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Wild Country v. WE Five

District].” The Reimbursement Agreement was valid until July 15,
2024.

¶8 The Sandy City public utilities department also supported
Freckleton’s project, noting it “would extend and improve public
services for the neighborhood and benefit the greater public good
of Sandy” by improving “the ability to protect the neighborhood
and broader Sandy community from fire” and by “allow[ing] the
existing septic systems to be removed,” which would alleviate
risks of “groundwater contamination of the public drinking
water.” Though funding reimbursement would not currently be
available from Sandy City, its public utilities department
extended a “conditional commitment” for Freckleton “to seek
funding in future budgets” if he was able to obtain easements.

¶9 In 2023, WE Five’s counsel began contacting Wild Country
and the Lamberts in attempts to obtain easements over their
parcels to run water and sewer lines. After attempting to negotiate
for several months, WE Five informed Wild Country and the
Lamberts that it would seek to secure the easements through
eminent domain.

The Litigation

¶10 WE Five filed a lawsuit in district court against Wild
Country and the Lamberts seeking to take the easement through
eminent domain. 5 Wild Country and the Lamberts both filed
motions to dismiss the complaint. 6 In the motions, Wild Country
and the Lamberts argued that neither the Utah Constitution or
Utah statutes “authorize or contemplate condemnation by private

5. WE Five also brought an easement by necessity claim against
Wild Country and the Lamberts. That claim is not before us on
appeal and remains pending before the district court.

6. The Lamberts did not file a notice of appeal and the district
court’s denial of their motion to dismiss is therefore not before us.

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Wild Country v. WE Five

individuals or entities to advance their private development
purposes, even if those private uses could arguably achieve some
public benefit,” and that only Sandy City and the Sewer District
could exercise eminent domain to acquire the necessary
easements as the entities in charge of water and sewer service.

¶11 In response, WE Five argued that Utah’s statutes and case
law permit it “to pursue a private eminent domain action” and
that WE Five is a proper plaintiff under the statute because it “is
the entity in charge of the water and sewage pipes” as WE Five
would oversee and control installation of the pipes and the pipes
would be within WE Five’s easement.

¶12 After a hearing, the district court denied the motions to
dismiss on the grounds that WE Five had “alleged sufficient facts
and a legal basis to support a finding of easement by . . . eminent
domain.” Wild Country filed a petition for permission to file an
interlocutory appeal, which this court granted.

¶13 WE Five then filed a motion for immediate occupancy. WE
Five argued it met the two requirements necessary to prevail on
such a motion, because (1) it demonstrated a prima facie showing
of its right to condemn and (2) it had met the required elements
of establishing the value of the easement, the damages that would
arise from condemnation, and its “reasons for requiring a speedy
occupation.”

¶14 Wild Country and the Lamberts argued in response that
WE Five had not demonstrated it had the authority to exercise
eminent domain power, because it would not be the entity “in
charge of public use” as required by statute and because the
relevant statutes do not grant private entities eminent domain
power for their private use. Wild Country and the Lamberts also
argued that WE Five failed to show that “a speedy occupation”
would be required.

¶15 The district court denied the motion on the ground that the
eminent domain statute “does not apply in this case,” and

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Wild Country v. WE Five

therefore the court did not “reach the issue of whether immediate
occupancy [was] appropriate.” This ruling was inconsistent with
the district court’s ruling denying the motions to dismiss, both of
which were based on the same argument that WE Five lacked
eminent domain power. WE Five filed a petition for permission to
file an interlocutory appeal, which this court also granted. The
appeals were consolidated, and we address both in this opinion.

ISSUES AND STANDARDS OF REVIEW

¶16 Wild Country contends that the district court erred in
denying its motion to dismiss. “Because a [district] court’s grant
or denial of a motion to dismiss is a question of law, the standard
of review is correctness, with no deference to the court’s
decision.” Vittoria v. Provo City, 2024 UT App 99, ¶ 5, 554 P.3d 1133
(cleaned up).

¶17 On cross-appeal, WE Five asserts that the district court
abused its discretion in denying the motion for immediate
occupancy. A grant or denial of a motion for immediate
occupancy is “within the sound discretion of the [district] court,
reversible only because of obvious abuse thereof.” Utah County v.
Ivie, 2006 UT 33, ¶ 7, 137 P.3d 797 (cleaned up).

ANALYSIS

¶18 As an initial matter, both parties agreed at oral argument
that, in denying the motion for immediate occupancy, the district
court effectively reconsidered and reversed its decision on the
motions to dismiss and granted them. We do not see it that way.
While we acknowledge that the district court’s denial of the
motion for immediate occupancy may have had practical
implications for the litigation of the eminent domain claim, there
is nothing in the record to evidence that the district court
reconsidered its denial of the motions to dismiss or that it granted
the motions to dismiss. We therefore treat the appeals as they

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Wild Country v. WE Five

were originally presented: Wild Country appeals the denial of its
motion to dismiss, and WE Five appeals the denial of its motion
for immediate occupancy.

I. Motion to Dismiss

¶19 In denying the motion to dismiss, the district court
concluded that WE Five alleged both sufficient facts and a legal
basis to support that Utah Code sections 78B-6-501 to -522 (the
Eminent Domain Statutes) granted it eminent domain authority.
“A district court’s interpretation of a statute is a question of law,
which we review for correctness.” Graham v. Albertson’s LLC, 2020
UT 15, ¶ 9, 462 P.3d 367 (cleaned up).

¶20 “When faced with a question of statutory interpretation,
our primary goal is to evince the true intent and purpose of the
legislature. The best evidence of the legislature’s intent is the plain
language of the statute itself.” Marion Energy, Inc. v. KFJ Ranch
P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (cleaned up). When we
interpret a statute, “we assume, absent a contrary indication, that
the legislature used each term advisedly according to its ordinary
and usually accepted meaning” and presume “all omissions to be
purposeful.” Id. (cleaned up). In the context of eminent domain
authority specifically, “we strictly construe any ambiguity in
language purporting to grant the power of eminent domain in
favor of the property owner and against the condemning party.”
Id. ¶ 31. Following this guidance from our supreme court, we
hold, for reasons discussed below, that the Eminent Domain
Statutes do not confer upon WE Five the right to condemn the
property at issue here.

A. The Meaning of Public Use

¶21 Section 78B-6-501(2) of the Eminent Domain Statutes, titled
“Eminent domain—Uses for which right may be exercised—
Limitations on eminent domain” provides that

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Wild Country v. WE Five

the right of eminent domain may be exercised on
behalf of the following public uses: . . . pipes for
conducting water or sewage, including to or from a
development, for the use of the inhabitants of any
county, city, or town; . . . [and] sewage service for . .
. a city, a town, or any settlement of not fewer than
10 families . . . .

Utah Code § 78B-6-501(2)(c)(ii), (2)(i)(i). WE Five argues that the
plain language of this statute establishes that installing pipes is a
public use because “pipes for conducting water or sewage” is
enumerated separately from “sewage service.” At oral argument,
WE Five reiterated this point and further suggested that installing
pipes without any promise from Sandy City or the Sewer District
that they would ever use the pipes would still be a valid public
use. In WE Five’s view, as long as the right to use the pipes has
been offered to the public, WE Five will have met the criteria of
section 78B-5-501.

¶22 We disagree with WE Five’s reading of section 501. Though
subsection 501(2)(c)(ii) specifically mentions pipes, the rest of the
phrase includes the words “for the use of the inhabitants of any
county, city, or town.” The only way for such pipes to be used by
inhabitants is if water and sewage are provided through the pipes.
Otherwise, there would be pipes in the ground that inhabitants
would be unable to use, which defeats the purpose of a public use.
Additionally, WE Five points to subsection 501(2)(i)(i), which sets
forth “sewage service” as a public use—as evidence that the
legislature intended pipes to be a public use distinct from service
provided through those pipes. However, there is no similar
enumeration for water in subsection 501(2) outside of the mining
context, which is a wholly separate use. If the legislature intended
pipes and water service to be two distinct uses, then it would have
enumerated a similar provision for water service, and it did not.
Instead, it seems that the legislature imposed additional
conditions on when sewage is considered a public use that it has
not imposed on water service.

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Wild Country v. WE Five

¶23 Further, our supreme court has stated that “it is a public
use within the meaning of the law when the taking is for a use that
will promote the public interest, and which use tends to develop
the great natural resources of the commonwealth.” Nash v. Clark,
75 P. 371, 373 (Utah 1904). Though installing pipes is part of
developing our state’s natural resources, burying pipes alone
does not develop resources to promote the public interest. The
pipes at issue here will be used solely by WE Five. And where the
pipes will not be connected to the water service provided by
Sandy City or the sewer service provided by the Sewer Service, it
does not necessarily follow that they promote the public interest
as a whole without something more.

¶24 At oral argument, WE Five pointed us to Hawaii Housing
Authority v. Midkiff, 467 U.S 229 (1984), to support its exercise of
eminent domain for a private purpose. 7 WE Five relies on Midkiff’s
statements that the fact “that property taken outright by eminent
domain is transferred in the first instance to private beneficiaries
does not condemn that taking as having only a private purpose”
and that the Court “long ago rejected any literal requirement that
condemned property be put into use for the general public . . . in
order for it to constitute a public use.” 467 U.S. at 243–44 (cleaned
up). WE Five notes the United States Supreme Court emphasized
that whether a use is a public use turns on the takings purpose,
not its mechanics. Id. at 244. However, WE Five takes this
language out of context. Midkiff was dealing with the Hawaii
Land Reform Act. Id. at 233. This act was passed after the Hawaii
Legislature discovered that seventy-two private landowners

7. Although oral argument was the first time WE Five presented
both Hawaii Housing Authority v. Midkiff, 467 U.S 229 (1984) and
Berman v. Parker, 348 U.S. 26 (1954), discussed infra ¶ 33, “we
recognize that parties have no obligation to preserve citation to
legal authority, and that parties are generally allowed to
supplement an argument with new cases that they did not raise
in the district court.” True v. Utah Dep’t of Transp., 2018 UT App
86, ¶ 41, 427 P.3d 338 (cleaned up).

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Wild Country v. WE Five

owned 47% of the land in Hawaii and the federal and state
governments owned 49% of the land. Id. To remedy the negative
impacts of this concentrated land ownership on Hawaii’s real
estate market, including inflated land prices, the act “created a
mechanism for condemning residential tracts and for transferring
ownership of the condemned fees simple to existing lessees.” Id.
In finding Hawaii’s act constitutional, the Court explained,

What in its immediate aspect is only a private
transaction may be raised by its class or character to
a public affair. As the unique way titles were held in
Hawaii skewed the land market, exercise of the
power of eminent domain was justified. The Act
advances its purposes without the State’s taking
actual possession of the land. In such cases,
government does not itself have to use property to
legitimate the taking; it is only the taking’s purpose,
and not its mechanics, that must pass scrutiny under
the Public Use Clause.

Id. at 244 (cleaned up).

¶25 The case before us is wholly different. Here, we are not
dealing with a comprehensive statutory scheme where private
beneficiaries were taking title to property to break up a “land
oligopoly.” See id. at 242. Instead, we are dealing with an entity
seeking to install pipes for its sole benefit. The Court in Midkiff
made clear that a “purely private taking could not withstand the
scrutiny of the public use requirement; it would serve no
legitimate purpose of the government and would thus be void.”
Id. at 245. Allowing WE Five to exercise eminent domain authority
would be a “purely private taking” and “benefit a particular class
of identifiable individuals,” and this is not a permitted public use.
See id. Additionally, Midkiff dealt with a specific, legislative
scheme, not the general eminent domain power. Our legislature
has not passed such a scheme here that would apply to WE Five.
Therefore, we find Midkiff inapplicable.

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Wild Country v. WE Five

¶26 Finally, we are also unpersuaded by WE Five’s statement
at oral argument that the act of installing pipes in the ground that
might possibly be used by Sandy City or the Sewer District on
some unknown future occasion would constitute public use as
opposed to private use. We see no limiting principle to the
position espoused by WE Five. If the court were to adopt WE
Five’s argument that the mere possibility of any potential future
use by a local municipality or sewer district qualifies private
condemnation as a public use, it would open eminent domain
powers to unlimited use and possible (if not likely) abuse.

¶27 Thus, we conclude that the mere installation of pipes is not
a public use under the Eminent Domain Statutes.

B. The Person in Charge of Public Use

¶28 WE Five directs us to the use of the word “person” in
section 78B-6-507 of the Eminent Domain Statutes, which
provides that the plaintiff in the eminent domain complaint
should be “the corporation, association, commission or person in
charge of the public use for which the property is sought.”
(Emphasis added.) It argues that the legislature thus intended for
private parties, like WE Five, to exercise eminent domain. We
disagree with WE Five’s reading of section 507.

¶29 In some cases, eminent domain authority is granted
expressly by either Utah’s constitution or the legislature. See Utah
Const. art. XI, § 5 (“The power to be conferred upon the cities by
this section shall include the following: . . . To furnish all local
public services, to purchase, hire, construct, own, maintain and
operate, or lease, public utilities local in extent and use; to acquire
by condemnation, or otherwise, within or without the corporate
limits, property necessary for any such purposes . . . .); see also
Utah Code § 17D-1-103(2) (“A special service district may:
(a) exercise the power of eminent domain possessed by the county
or municipality that creates the special service district . . . .”). In
other instances, eminent domain authority can exist when an
entity or individual condemns land for a public use they will

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Wild Country v. WE Five

oversee. See Utah Code § 78B-6-501(2)(h) (stating that
“telecommunications, electric light and electric power lines, sites
for electric light and power plants, or sites for the transmission of
broadcast signals from a station licensed by the Federal
Communications Commission . . . and that provides emergency
broadcast services” are public uses); see also Williams v. Hyrum
Gibbons & Sons Co., 602 P.2d 684, 686 (Utah 1979) (noting that “the
legislature has delegated its power of eminent domain to public
utilities for certain uses”).

¶30 Though the word “person” as used in section 507 can apply
to private entities, such a person must also be “in charge of the
public use” to have eminent domain power. See Utah Code § 78B-
6-507. Here, even assuming that the mere installation of the pipes
alone qualified as a public use, WE Five would not be “in charge”
of any public use as contemplated by the Eminent Domain
Statutes.

¶31 In Salt Lake City Corp. v. Evans Development Group, LLC, 2016
UT 15, 369 P.3d 1263, our supreme court held that the Eminent
Domain Statutes “require that it is the condemnor that must
maintain ownership of the property and be in charge of the public
use—not a third party.” Id. ¶ 14. There, Salt Lake City entered into
an agreement with Rocky Mountain Power where Salt Lake City
would condemn a property on behalf of Rocky Mountain Power
and then transfer it to Rocky Mountain Power to provide services.
Id. ¶ 4. Our supreme court determined that Salt Lake City did not
have the power to condemn the property in that instance, even
though providing electricity to the public was a public use,
because Rocky Mountain Power “would own the property and be
in charge of the public use.” Id. ¶ 14. The court emphasized the
importance of the “in charge” requirement, explaining that the
condemnor “must be in charge of the property and the use to
which the property will be applied, so that if the condemnor fails
to follow proper statutory procedures, the condemnee will have
recourse against the condemnor.” Id. ¶ 21.

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Wild Country v. WE Five

¶32 This case is similar to Evans. Though WE Five would be the
condemnor, it would not be the provider of the public use—water
and sewer services to the WE Five property. Thus, WE Five would
be a third party condemnor and the condemnees, Wild Country
and the Lamberts, would not have recourse against WE Five if it
did not follow the procedures outlined in the Eminent Domain
Statutes. Sandy City or the Sewer District could have properly
condemned the property because they would be operating “pipes
for conducting water or sewage,” which are valid public uses
under the Eminent Domain Statutes, and they would be in charge
of these uses. Utah Code § 78B-6-501(c)(ii). But here, in line with
our supreme court’s guidance in Evans, we cannot conclude that
by installing pipes alone, WE Five would be “in charge of . . . the
use to which the property will be applied.” 2016 UT 15, ¶ 21.

¶33 At oral argument, WE Five pointed to Berman v. Parker, 348
U.S. 26 (1954), in support of its position. In Berman, the U.S.
Supreme Court sought to determine the constitutionality of the
District of Columbia Redevelopment Act of 1945. Id. at 28.
Congress had determined there was a need to improve
substandard housing and blighted areas that were “injurious to
the public health, safety, morals, and welfare” and passed an act
that created the District of Columbia Redevelopment Land
Agency and granted the agency the power “to acquire and
assemble, by eminent domain and otherwise, real property for the
redevelopment of the blighted territory in the District of
Columbia and the prevention, reduction, or elimination of
blighting factors or causes of blight.” Id. (cleaned up). The
National Capital Planning Commission would create a land use
plan, which would be subject to public comment. Id. Once
adopted, the Commission would certify the plan to the Agency,
which would then “acquire and assemble the real property”
through eminent domain. Id. at 30. When it obtained the land, the
Agency could then transfer it to other public agencies for public
purposes or lease or sell the land to redevelopment companies,
partnerships, or individuals, with “preference . . . to be given to
private enterprise over public agencies.” Id. The U.S Supreme

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Wild Country v. WE Five

Court concluded the act was constitutional, stating that the
“concept of the public welfare is broad and inclusive” and that
“[o]nce an object is within the authority of Congress, the means
by which it will be attained is also for Congress to determine,”
including private redevelopment. Id. at 33.

¶34 This case is factually different. Though the U.S. Supreme
Court may have determined that such a scheme is proper under
the federal constitution, our legislature has determined that for
eminent domain to be proper in the State of Utah, the condemning
entity must also be the one in charge of the public use. In other
words, if an act similar to the District of Columbia Redevelopment
Act was passed in Utah, the condemning entities would
necessarily be the ones responsible for redeveloping parcels of
land unless the act contained an exception to the contrary.

¶35 Therefore, because installing pipes is not a public use and
WE Five would not be in charge of the public use of operating the
water and sewer pipes, Wild Country’s motion to dismiss should
have been granted, and we thus reverse.

II. Motion for Immediate Occupancy

¶36 During eminent domain proceedings, a plaintiff can file a
motion for immediate occupancy, which allows the plaintiff to
“(i) occupy the premises sought to be condemned pending the
action, including appeal; and (ii) to do whatever work on the
premises that is required.” Utah Code § 78B-6-510(1)(a). Because
we conclude that the Eminent Domain Statutes do not convey the
right of eminent domain to WE Five and that the motion to
dismiss should have been granted, whether the district court
should have granted the motion for immediate occupancy is now
moot. See Behar v. Johnson, 2024 UT App 129, ¶ 19, 557 P.3d 607
(“An issue on appeal is considered moot when the requested
judicial relief cannot affect the rights of the litigants. . . . And once
an issue is moot, we lack the power to address the underlying
merits or issue what would amount to an advisory opinion.”
(cleaned up)); Smith v. Kirkland, 2017 UT App 16, ¶ 32, 392 P.3d

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Wild Country v. WE Five

847 (holding that because the court reversed the district court’s
grant of summary judgment, review of a rule 60(b) motion was
moot). We therefore do not address this issue.

CONCLUSION

¶37 The Eminent Domain Statutes do not confer upon WE Five
the right to exercise eminent domain authority. Therefore, we
reverse the district court’s denial of Wild Country’s motion to
dismiss WE Five’s eminent domain claim and remand the matter
to the district court for dismissal of this claim and for such other
proceedings as may now be appropriate. 8

8. WE Five’s eminent domain claim against the Lamberts and WE
Five’s claim against both Wild County and the Lamberts for an
easement of necessity remain pending before the district court. See
supra notes 5, 6.

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