dissenting.
For almost one hundred years, the statutes of the State of Wyoming have provided for the establishment of a private road in favor of “[a]ny person whose land has no outlet to, nor connection with a public road, * * *.” Section 24-9-101, W.S.1977 (Cum.Supp.1990). In the course of that one hundred years, this court has considered the legal concept of a private way of necessity on at least five occasions. In none of these cases, contrary to the implication of the majority, has there been any suggestion of any constitutional antithesis with respect to the common-law way of necessity. This history is consistent with the legal fact that the common-law way of necessity is not a taking, while the constitutional provision is intended to authorize a taking; instead, it is a doctrine of an implied grant. Stated another way, the common-law way of necessity is a doctrine of conveyancing; *292it is not an aspect of the doctrine of eminent domain.
The majority asserts a holding in Snell v. Ruppert, 541 P.2d 1042 (Wyo.1975), that a “common law way of necessity is theoretically incompatible with Art I, § 32 of the Wyoming Constitution, * * (At 290). To ascribe such a holding to Snell is certainly overly bold, if not a clear mistake. To suggest, as the majority does, that “[i]t is unfortunate that subsequent decisions of this court failed to fully recognize the holding of Snell v. Ruppert,” (at 291) is simply wrong because there is no such holding. The only holding of Snell in this regard is that it was not necessary for the owner of the landlocked tract to first pursue the common-law way of necessity before invoking the statutory remedy. It is marginally acceptable for advocates to invoke selective reading of court opinions, but it is inappropriate for a court to treat its own precedents in that fashion.
This court consistently has ruled that the statutory right to have a private road established is an alternative remedy to. the common-law way of necessity for the owner of the landlocked tract. I do not perceive this case as one in which it is either appropriate or necessary to abolish legal precedent that is long standing and presumably has been accepted by the legislature. Because I have a serious question as to whether this case can be resolved according to the majority opinion, I dissent.
In McGuire v. McGuire, 608 P.2d 1278, 1288 (Wyo.1980), this court said:
“ * * * In McIlquham v. Anthony Wilkinson Live Stock Co., 1909, 18 Wyo. 53, 104 P. 20 [1909], this court implicitly found that the statute [the predecessor of Section 24-9-101, W.S.1977 (Cum.Supp.1990)] was an alternative remedy and it was not intended to supplant the common-law right of a grantee to a means of access to his land over the lands of his grantor.”
McGuire, in terms of its ratio decidendi, dealt with the application of the statute and the requirements incorporated in it for establishing a private road pursuant to it.
In a similar vein, in Snell, when confronted with a contention that Ruppert did not qualify for relief under the statute because he had available to him a common-law way of necessity, the court recognized Ruppert’s right to invoke the statute. The court said:
“The Snells contend that a condition precedent to proceeding under the statute is that Ruppert must first proceed in a civil action to enforce a common-law way of necessity across intervening lots of the subdivision. There is no such condition imposed by the statute. We cannot stretch, extend, enlarge nor amend what the legislature has clearly said.” Snell, 541 P.2d at 1046.
On the same page, however, at footnote 4, the alternative remedy concept was clearly articulated:
“By our holding here, we do not foreclose the possibility that a common-law way of necessity can be imposed in a proper case where the isolated landowner chooses that course. While not in point because it did not consider the statutory procedure and was a clear case against the granting of a way of necessity, McIlquham v. Anthony Wilkinson Live Stock Co., 1909, 18 Wyo. 53, 104 P. 20, does ponder the granting or denial of a common-law way of necessity.”
For the majority to conclude only that “[fjootnote 4 of the Snell opinion does detract from the clear language used in the body of the opinion” (at 290) is a classic understatement. This recognition of the alternative remedy is consistently maintained in Walton v. Dana, 609 P.2d 461 (Wyo.1980), and in Bush v. Duff, 754 P.2d 159 (Wyo.1988). In this latter case, the court said:
“Such a common-law way of necessity does not constitute a taking subject to constitutional restraints found in Art. 1, §§ 32 and 33 of the Constitution of the State of Wyoming because the common law presumes that the grant of ingress and egress from land conveyed by the owner of the servient estate was intended by the parties. Snell v. Ruppert, Wyo., 541 P.2d 1042 (1975); 3 R. Powell, The Law of Real Property, supra, Ch. 34, *29311410 at 61-68. The rule of the common law is that a way of necessity goes with the land constituting the dominant estate, and no payment of additional compensation is contemplated.” Bush, 754 P.2d at 163.
With this history in perspective, a critical evaluation of the rationale of the majority opinion is in order. The point of departure is the statement at page 289 of the majority opinion that:
“ * * * Opposed is a policy that recognizes that it is unfair or inequitable to permit a landlocked landowner to claim, without compensation, a way of necessity across the lands of his grantor which could have been provided for at the time of purchase and conveyance and which may have resulted in a reduced final cost of the land.”
The authority apparently cited for this novel comment is 2 Thompson on Real Property, §§ 362-368 (1980 Repl.). A careful reading of that text fails to disclose any basis for the statement articulated by the majority. In any event, it is clearly incompatible with the Wyoming precedent cited above.
There can be little doubt that this court has acknowledged the statutory recognition of the common-law way of necessity by the adoption of § 8-1-101, W.S.1977. Snell, 541 P.2d 1042. The majority now holds that the statutory adoption of this common-law remedy was repealed by implication by the adoption of § 24-1-109, W.S. 1977 (Cum.Supp.1990). In light of the continual recognition by this court of the proposition of alternative remedies, repeal by implication is highly suspect. It appears that the majority has misread the legislative intent in the same way that the precedents of this court have been misread and given a strained interpretation. Not only that, but the majority has abdicated the interpretation of Wyoming law to the federal judiciary.
I am satisfied that the court has usurped the prerogative of the legislature in this instance and has achieved a result by judicial legislation. This case can be resolved without that judicial legislation, and it should be. I agree that the Order Granting Motion for Summary Judgment must be reversed, but the case should be remanded for trial of genuine issues of material fact. Those issues of material fact relate to a determination of the prior events surrounding the effort to establish a private road under the statute. The legal issues then to be resolved would relate to the impact of that effort upon the common-law way of necessity. For example:
1. Is the doctrine of judicial estoppel applicable?
2. Has there been an election of remedies by Murray and Edwards?
3. Did that effort manifest a waiver or abandonment of the alternative remedy?
While I am satisfied that the summary judgment must be reversed, the correct resolution of this case is to remand it for trial. There is no justification, other than a legislative decision, to direct that the ease must be dismissed for lack of jurisdiction.