partially concurring and partially dissenting.
I concur only with the majority order remanding this case to the district court. I dissent from the action taken by the majority of the court in addressing the issue of whether or not appellant had authority to take appellees’ private property on the record before us. The issue was not properly placed before us, and it is too important to be considered in an uninformed fashion. The case should have been returned to make necessary findings of fact, to establish proper jurisdiction and to enter a proper order. We have returned other cases to the trial courts for such purposes. Often the issue itself is resolved when such is done. Other times, additional issues accompany it on appeal so that the case can be disposed of in one appeal, rather than in a piecemeal fashion.
In this instance, the trial court proceeding was so confusing and inadequate as to indicate the need for guidance in connection with this matter. As indicated later herein, the failure to include an adequate description in the complaint was jurisdictional. Before the trial court — or our court — should consider substantive matters, there should be jurisdiction. Also as indicated later, the “judgment” appealed from is difficult to identify or define. If it is a “summary judgment,” it should be given only if there is no genuine issue of a material fact. The facts set out in § 1 — 26-401(d), W.S.1977, which are a prerequisite for the authority to take under that section (the one in which the majority found such authority), were definitely in issue and were argued to the court. If the “judgment” appealed from is a dismissal, it recites only that it is a dismissal of the complaint. The cause not being dismissed and the dismissal not being “with prejudice,” it was not an appealable order. Rule 71.1(k)(4), W.R.C.P.; Mark v. Groff, 9th Cir. 1975, 521 F.2d 1376; Budde v. Ling-Temco-Vought, Inc., 10th Cir. 1975, 511 F.2d 1033.
Speaking metaphorically, the failure to follow the procedures set forth by this court in Rule 71.1, W.R.C.P. for eminent domain actions has resulted in a derailment of the process which can be rectified only by putting it back on the track at the point of derailment so that it can continue to its *417proper destination, and an effort to uproot the destination itself and move it back to the point of derailment in an effort to correct the situation is not only unproductive, but is encouragement for future derailments with accompanying injuries. We are remiss in accepting and acting on issues which are not properly formed and presented to us pursuant to our own rules. Here, the majority of the court is doing more than rendering an advisory opinion on less than fully developed facts, it is establishing a precedent which can only result in a mishmash for future eminent domain proceedings.
Before addressing and detailing the failure to here follow the protective and orderly procedure established for eminent domain actions, I make two general observations:
First, although the taking of one’s private property for public use, and even for private use where beneficial to the public, is constitutionally recognized as proper and necessary, Art. I, § 32, Wyoming Constitution, we cannot overlook the importance of private ownership of property in the maintenance of the capitalistic system under which this country operates. Indeed, such ownership is one of the fundamental differences between our democracy and communism. Although federal and eastern corporate ownership, as distinguished from local and family unit ownership, of Wyoming real property may have already “steamrolled” to a point wherein it is inevitable, and although full-scale development and utilization of the minerals and other natural resources of our state may be desirable and necessary, these ends should be attained within the scope of law and with full recognition of property and constitutional rights of others.
Second, the procedure for an eminent domain action, as set forth in Rule 71.1 W.R. C.P.,1 is essentially a two-phase procedure. Such two-phase procedure is historical and usual in eminent domain actions.2 The first phase is a determination of the regularity of the proceedings. It is a determination of: (1) the power or authority or right to make the appropriation; (2) the proper purpose or use for which the appropriation is made; (3) the availability or subjectivity of the property for the appropriation; (4) the quantum and interest or the estate to be acquired by the appropriation; (5) the necessity for the appropriation;3 and (6) the identification or location of the property to be appropriated. The second phase is a determination of the amount to be paid for the appropriation, including the amount to be paid for the consequential damages resulting therefrom. See Rule 71.1, W.R. C.P.; 29A C.J.S. Eminent Domain §§ 267 et seq.; 27 Am.Jur.2d Eminent Domain, *418§§ 375 et seq. We are here concerned only with the first phase.
Turning then to the failure to create a proper record upon which we can act, the cause of which was occasioned by non-compliance with the directions of Rule 71.1, W.R.C.P., the errors are in two areas:
1. LACK OF SUFFICIENT DESCRIPTION IN COMPLAINT.
Rule 71.1(c)(2), W.R.C.P., provides in part:
« *. * * complaint shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and as to each separate piece of property, a designation of the defendants who have been joined as owners thereof of some interest therein, together with their residences, if known, and whether the plaintiff demands immediate possession or desires to continue in possession. * * * ” (Emphasis supplied.)
In its complaint, appellant recites the ownership by appellees Grieves of the SW ¼, Sec. 17; S ½, Sec. 18; NE ¼, Sec. 19; and NW ¼, Sec. 20, T. 42 N., R. 64 W., 6th P.M. and S ½, Sec. 13 and N ½, Sec. 24, T. 42 N., R. 65 W., 6th P.M.; and by appel-lees Graham and Neal and Hazel Reisland of SE ¼, Sec. 14; NE ¼ NE ¼, Sec. 23, and NW ¼ NW ¼, Sec. 24, T. 42 N., R. 65 W., 6th P.M., all in Weston County. It then alleges:
“6- There are roads located on the property described in paragraphs four and five which are used by oil producers and connect with Weston County Road No. 5. These roads cross, touch or are in very close proximity to the leases and property described in paragraph two of this complaint. It is not possible to provide a description of the roads because of their winding character. Plaintiff will introduce exhibits to demonstrate the locations.”
The complaint contains no further or other description of the property to be taken. The last sentence in paragraph 6 of the complaint, supra, is a direct rejection of the requirement of Rule 71.1(c)(2) that a description of the property be set forth in the complaint. It would possibly be sufficient to attach a map-to-scale as an exhibit to the complaint, but to make the condemnees speculate as to whether the taking would be 100 square feet or 25,000,000 square feet until confronted with the specifics at the hearing is not sufficient. The purpose of the requirement is two fold. One, it allows preparation for a consideration by the court and by the condemnees of the issues of proper purpose, subjectivity of property, quantum and necessity for the appropriation; and second, it provides the con-demnees with an opportunity to assess the damages to be occasioned by the taking so that an intelligent decision can be made concerning the necessity of filing an answer and so that potential witnesses can be obtained to assess the damages occasioned by the taking. County of Orange v. Metropolitan Transportation Authority, 71 Misc.2d 691, 337 N.Y.S.2d 178 (1971); Monongahela Power Co. v. Shackelford, 137 W.Va. 441, 73 S.E.2d 809 (1952); 27 Am. Jur.2d Eminent Domain, § 396; 6A Nichols on Eminent Domain, § 27.23 (1976). Unless the exact property to be taken and its location is known to such witnesses, they cannot begin their appraisal. Many times the con-demnee settles out of court before the hearing when he receives the results of the appraisals made by his witnesses.
In this instance, the map introduced at the hearing, on its face, seems to indicate the existence of access without condemnation to all of appellant’s leases except the one in the SW ¼ SE ¼, Sec. 13, T. 42 N., R. 65 W., 6th P.M. It would seem, therefore, that access to this one area is the only access necessary to be obtained by condemnation, and it could be obtained by condemnation of the Grieves’ property without that of the other appellees, or vice versa. If the map had been made an exhibit to the complaint, appellees could have prepared their evidence relative to the necessity of the *419taking along those lines. Without this information, they could not do so.4
“ * * * Indeed, there is nothing more obviously essential to a petitioner’s case than a sufficient description of that which it proposes to acquire. It cannot put on the defendant the burden of determining what or how much it requires to accomplish its purpose. * * * ” 27 Am.Jur.2d Eminent Domain, § 396, p. 274 (1966).
The contention that the description in the complaint was as specific as possible because permission to enter for making of surveys, etc. was denied to appellant by appellees is not well founded or plausible inasmuch as a simple application to the court for an order granting authority to enter for such purposes undoubtedly would have resulted in such an order.5
The citations contained in the majority opinion, upon which it relies to conclude the adequacy of the description in this matter, actually contradict such conclusion. The references to 12 Wright & Miller, Federal Practice and Procedure: Civil § 3044, p. 101 (1973), and 7 Moore’s Federal Practice, ¶ 71A.40[4], p. 359 (1979), are to restatements therein of the language of the rule itself, i. e., “a description of the property sufficient for its identification” is required in the complaint. Wright & Miller, supra, makes reference to Official Form 29 as illustrative of a complaint form in a condemnation action. ■ That form provides in part:
“5. The property so to be taken is (here set forth a description of the property sufficient for its identification) or (described in Exhibit A hereto attached and made a part hereof).” 12 Wright & Miller, supra, Appendix A, p. 331.
As previously indicated, the description in the complaint does not meet this criteria and is not “sufficient for * * * identification” of the property.
The quotation in the majority opinion from 6A Nichols on Eminent Domain, § 27.23, pp. 27-37 to 27-39 (1976) is again a contradiction of the determination made by the majority of the court in this respect. Language in it, such as the following, reflects the complete inadequacy of the description in the complaint:
“ ‘ * * * The description in the complaint should be such that no difficulty will arise in framing the judgment by reference to such description without repeating it.’ ” (An obvious impossibility in this case.)
.On the theory that the proceedings operate as a deed to transfer title, some authorities hold that the land should be described with as much certainty as would be necessary in a conveyance. Others hold sufficient a description from which a surveyor or someone familiar with the locality might locate the tract. * * * (The description in the complaint is insufficient under either theory.) “ ‘Although it has been said that the description must be definite enough so that the land can be ascertained without extrinsic evidence, it will usually be considered sufficient, although some investigation outside the description itself is necessary. Thus, if the allegations in the complaint together with a map make an intelligible description, it is sufficient. The map need not be physically attached, for it may be included by reference to a recorded map open to the defendant’s inspection. But whether the map or plan is physically attached to the petition or not, the description must incorporate it by reference or the court will not take notice of it. * * * ’ ” (Emphasis supplied.) (The “outside investigation” must have a specific starting place, which is completely lacking in the complaint.)
*420The examples given in the quoted material from Nichols of sufficient “general allegations”; of designation by “square number” if all property within the square is included; metes and bounds with “definite and certain termini”; use of word “about” as non-impairment of certainty of description — none of these approach the generality of the description used in this complaint.
Additionally, it is said at § 26.112, pp. 26-48.1 — 26-56 of 6 Nichols on Eminent Domain, that:
“The petition must contain an accurate description of the land sought to be taken, so that the extent of the claim will appear on the record. In the absence of an opportunity to amend the petition, failure in this respect will invalidate the proceeding. This description should be as accurate as is required in the case of a deed of land. At any rate it must be such that a surveyor could locate the parcel described without the aid of extrinsic evidence. * * * ” (Emphasis supplied.)
and at § 26.1123, p. 26-65:
“Inasmuch as a petition containing the allegations required by law is the foundation upon which rests the jurisdiction of the court to entertain condemnation proceedings, insufficiency in the description of the land renders the entire proceeding void. * * * ” (Emphasis supplied.)
Of course, an amended complaint can be used to cure a description defect, Rule 71.-1(f), W.R.C.P., but the requirement of an adequate description in the complaint is a common-sense requirement and should be recognized as essential. The requirement for such is so basic to a condemnation proceeding as to be jurisdictional.
“It is a jurisdictional requirement that the land sought to be taken be described in the petition with such accuracy, and certainty as will enable it to be identified. * * *” 29A C.J.S. Eminent Domain § 259, p. 1105 (1965).
“ * * * Failure in this respect is a violation of substantive due process and will vitiate the proceedings. [Citations.]” Housing Authority v. Atlantic City Exposition, Inc., 62 N.J. 322, 301 A.2d 441, 444 (1973). See United States v. 5.324 Acres of Land, D.C.S.D.Cal., 79 F.Supp. 748 (1948); 6 Nichols on Eminent Domain § 26.1123, p. 26-65.
And see quotations from 6 Nichols on Eminent Domain, supra. Historically, an adequate description in the complaint has been required.6
The complaint does not contain the required description. But then appellant’s own words in the complaint recognize a disregard for the specific requirement of Rule 71.1, W.R.C.P. Appellant there said “it is not possible to provide a description.” It was possible. Other condemnors provide adequate descriptions under far more difficult conditions.
2. IMPROPRIETY OF THE HEARING PROCEDURE.
One of the obvious improprieties of the hearing procedure was the failure to address the omission of a proper description in the complaint. The trial court should have so ruled and either allowed the appellant sufficient time in which to file an amended complaint with the necessary description or the complaint should have been dismissed without prejudice. If necessary, it should have issued the order, previously referred to, for entry by appellant on appellees’ land for necessary surveys. With the parties before the court, appellees’ consent to entry for such purpose was a probability. Amendments of complaints are authorized by subsection (f) of Rule 71.1, W.R.C.P., “[w]ith the leave of court * * * as many times as desired.” It sets forth the necessity and method for service and notice of the amendment. Dismissal of the complaint “for good cause shown" is authorized by subsection (k)(3) of Rule 71.1, W.R.C.P., *421and the fact that such can be without prejudice is recited in subsection (k)(4) of that rule.
The trial court indicated its recognition of the defect in description in the “summary judgment,” but this defect should have been rectified, or at least the opportunity to rectify it should have been offered, before an appealable order or judgment was entered.
It should be here noted that the inadequacy of the description in the complaint was not rectified by the evidence produced at the hearing. Entirely aside from the specific requirement of the rule for adequate description in the complaint and from the impossible position in which it placed the appellees with respect to preparation of their case, the only effort at the hearing to supply a specific description was the introduction into evidence of an aerial photographic map with some of the roads on it highlighted. Some of the highlighted roads were represented to be the property to be taken. Perhaps a surveyor could establish a line by reference to the map. But there is no evidence at all as to the width of the proposed right-of-way — whether 25 feet or 500 feet if the taking be under §§ 1-26-301, et seq., W.S.1977, or whether 25 feet or 100 feet if the taking be under §§ 1-26-401, et seq., W.S.1977.7 Without that factor, the amount of land to be taken cannot be determined. A usual description of a right-of-way is “x feet on each side of a center line running as follows.” Then is set forth the starting point, the course, and direction of the center line, and the terminus.
But, beyond the description issue, the hearing was defective in other ways. Its purpose was to resolve the first phase of the eminent domain action — to determine the regularity of the proceedings. It got off the track on this purpose and ended up with an improper “summary judgment.”
In addition to the treatment of the description matter, it would serve little purpose here to detail the incidents in this case relative to the five other determinations to be made concerning the regularity of the proceedings. But in summary:
1. Arguments were made relative to the power or authority or right to make the appropriation. The trial court ruled that appellant lacked the same. The majority opinion finds otherwise. I believe we do not have sufficient facts8 before us to resolve the issue, and a resolution of it would be piecemeal in any event. I will address the piecemeal aspect later.
2. The trial court ruled that the purpose was improper since a mine haul road was not pertinent to appellant’s oil and gas activities. Again the majority opinion is otherwise. I believe the factual inquiry must go further and that evidence is necessary to establish the actual use to be made of the road. Although the determination of public use is for the legislature, the application of the facts in the case before the courts to the public use as defined and intended by the legislature is a judicial function.
“The final determination of whether a use or purpose is within the limits of legislative discretion is a judicial function; thus it is for the courts to decide whether a given use is a public use. * * ” *422Reel v. City of Freeport, 61 Ill.App.2d 448, 209 N.E.2d 675, 678 (1965); Kessler v. City of Indianapolis, 199 Ind. 420, 157 N.E. 547 (1927); Colorado Central Power Co. v. City of Englewood, 10th Cir. 1937, 89 F.2d 233.
The scrutiny should be more intense in making the determination of a public purpose when the eminent domain power is delegated to private entities than when used by governmental bodies.9 As said in Baycol, Inc. v. Downtown Development Authority, Fla., 315 So.2d 451, 455 (1975):
“The power of eminent domain is one of the most harsh proceedings known to the law. Consequently, when the sovereign delegates this power to a political unity or agency, a strict construction must be given against the agency asserting the power. The burden is on the condemning authority to establish a public purpose and reasonable necessity for the taking.” [Footnotes omitted.]
3. The subjectivity or availability of the property for appropriation is not pertinent to this case since the appropriation does not involve property of the United States, or property in which there is a conflict between more than one entity with eminent domain powers, or property already devoted to public use.
4. While not addressed at the hearing, the interest to be condemned seems to be a right-of-way easement and not a fee interest. The quantum to be taken is related in this instance to the description which, as previously noted, is not sufficient to designate the quantum.
5. The necessity of the taking as well as the quantum is largely within the discretion of the condemnor. But the taking must not be for more than that required for the purpose or public use. To do so would be a denial of due process of law. (City of Carlsbad v. Ballard, 71 N.M. 397, 378 P.2d 814 (1963); Knappen v. Division of Administration, State Department of Transportation, Fla.App., 352 So.2d 885 (1977).) Arguments were made to the trial court concerning the necessity for the taking, but the evidence thereto was not specific and was very limited. The trial court did not rule thereon — nor could it without an adequate description. In this connection, it is noted that eminent domain power may not be exercised to obtain a right-of-way to a piece of property if the condemnor has a reasonably adequate way otherwise than over the lands of the condemnee. McGowin Investment Company v. Johnstone, 54 Ala.App. 194, 306 So.2d 286 (1974); and see McIlquham v. Anthony Wilkinson Live Stock Co., 18 Wyo. 53, 104 P. 20 (1909), wherein the court said at page 22:
“ * * * It is at least well settled that where a party has one way by which he can reach a public highway, and which affords him reasonable facilities for possessing, using and enjoying his own premises, he is not entitled to another way as a way of necessity. * * * ”
Section l-26-401(d), W.S.1977, part of the statutory procedure which the majority of the court holds to be applicable in this case, is specific in this requirement.10
As already noted, the trial court should have first addressed the adequacy of the complaint (including the presence of a description), authorizing an amendment thereof or dismissing it without prejudice until it complied with the requirements of Rule 71.-1(c), W.R.C.P. Such action is authorized and implied by subsection (e) of Rute 71.1, W.R.C.P., wherein it is stated that the court “shall hear proofs and allegations of all parties interested touching the regularity of the proceeding.”
Thereafter, the court should have held the hearing required by subsection (e) of *423Rule 71.1, W.R.C.P., and considered the five itemized incidents relative to the regularity of the proceedings. In condemnation proceedings, rulings should be made on three of such incidents in every instance: Proper purpose, quantum and interest, and availability or subjectivity of the property. The other two incidents, (1) power, authority or right to take, and (2) the necessity therefor are considered as established and contest thereon waived unless the issues are raised in an answer. Subsection (d)(3) of Rule 71.1, W.R.C.P. The answers in this case raised both of these issues. The findings and conclusions with respect thereto should have been set forth in the order or judgment issued on this phase of the action. One reason for determination of all issues in the one order is to prevent multiple appeals — such as can occur in this case should the trial court find against appellant on another of the first phase incidents when the matter is next before it. For example, the trial court could find that there is not a necessity for a right-of-way, and the case could again be on appeal for resolution of the propriety of that finding.
In this case, we end up without a description from which the necessity, the availability and the quantum of taking can be determined. We end up with a “summary judgment,” which is an anachronism since Rule 71.1, W.R.C.P., sets forth a procedure wherein the resulting order or judgment on the first phase of the action is not of a summary nature.
Additionally, although subsection (a) of Rule 71.1, W.R.C.P., provides that the Wyoming Rules of Civil Procedure shall govern the procedure for condemnation “except as otherwise provided in this rule,” and although Rule 56, W.R.C.P., authorizes summary judgments under proper conditions, Rule 56 also provides that the motion for a summary judgment “shall be served at least 10 days before the time fixed for the hearing.” The motion was not made in this instance until during the hearing itself.11
The occurrences, and the sequence thereof, at the hearing in this case were unusual. The complaint listed the authority for the taking to be that provided by §§ 1-26-401 through 1-26-404, W.S.1977. At the outset of the hearing, appellant’s motion was considered whereby it sought to amend the complaint by adding §§ 1-26-301 through 1-26-303, W.S.1977, as authority for the taking. Appellees opposed the motion and contended that they should be allowed time to amend their answers if it were granted. The question as to whether or not § 1-26-401, W.S.1977, gave authority to appellant for the action was discussed, and the trial court ruled that it did not and that he would dismiss the complaint for this reason. The trial court then granted appellant’s motion to amend its complaint to include §§ 1-26-301 through 1-26-303, W.S.1977, as authority for the taking. Appellees then moved for a summary judgment with reference to such. The trial court received evidence on the motion and heard argument on it. The trial court then granted the motion for a summary judgment on the lack of authority to take in §§ 1-26-301 through 1-26-303, W.S.1977. Appellant then moved to have the evidence submitted with reference to the summary judgment be made “part of the order relative to 1-26 — 401.” The motion was opposed by appellees Graham and Reislands. The trial court then “reconsidered” its ruling on the motion to dismiss and granted the motion. It stated that “[t]he court’s ruling will remain the same on that motion. And the court will grant the summary judgment as stated.” The judgment itself reads:
“IT IS HEREBY ORDERED that defendants’ motion for summary judgment against plaintiff be, and it hereby is, granted, and that summary judgment be entered in favor of defendants and against plaintiff, and that plaintiff’s Amended Complaint be dismissed.”
If this was a dismissal of the complaint, it was not a dismissal of the cause — and *424therefore not appealable (see supra), and it does not “otherwise provide” and was therefore without prejudice — pursuant to Rule 71.1(k)(4), W.R.C.P., which provides that “[ejxcept as otherwise provided in the notice, or stipulation of dismissal or order of the court, any dismissal is without prejudice,” (emphasis supplied).
If it was a “summary judgment,” it was on a motion made without timely notice. Nor was it a motion to dismiss turned into a motion for summary judgment on receipt of evidence since the complaint was already dismissed.
CONCLUSION
The complaint did not contain a sufficient description. This fact is admitted in the complaint. The court so found. The face of the complaint so reflects since the width of the right-of-way and its termini and course are not set forth. The omission is jurisdictional and invalidates the proceedings.
Eminent domain proceedings are controlled by Rule 71.1, W.R.C.P. The proceedings are special proceedings. The first phase of the proceedings (the hearing) was incomplete and inadequate. The lack of proper description should have been corrected. The necessity for the taking and the quantum should have been determined. If the taking were to be under § 1 — 26—401, W.S.1977 (as the majority opinion indicated it should be), findings should have been made relative to the existence of another available reasonable and practical way, and to the economic feasibility of the mining operation.12 All of the first phase matters should have been considered and acted upon to avoid piecemeal appeals, and the order should have been entered accordingly.
For all or any one of the several foregoing reasons, this matter should be remanded to the district court with directions to set a date for filing of an amended complaint and for additional proceedings in accordance with this dissenting opinion.
. Rule 71.1(e), W.R.C.P., provides for a hearing at which the judge shall:
“ * * * require evidence that notice of hearing has been given as provided in this rule, and shall hear and determine the questions of the plaintiff’s right to make the appropriation, plaintiff’s inability to agree with the owner, the necessity for the appropriation, and shall hear proofs and allegations of all parties interested touching the regularity of the proceeding. * * * ”
Rule 71.1(h) and (j) provide for ascertainment of proper compensation by court appointed appraisers or by a jury after trial.
. Statutory proceedings with the two-phase procedure prior to Rule 71.1, W.R.C.P.: Section 1-767, W.S.1957, relative to taking by railroad companies; § 1-743, W.S.1957, relative to taking by the state, counties, and municipalities, and § 1-744, W.S.1957, relative to taking by school districts, both adopting the procedure for taking set forth in § 1-767, W.S.1957. Section 1-793, W.S.1957, relative to taking by road, ditch, telegraph, telephone, and petroleum or other pipeline companies. Section 37-64.7, W.S.1957, 1975 Cum.Supp., relative to taking by Wyoming Natural Gas Pipeline Authority and adopting the procedure for taking set forth in § 1-793, W.S.1957. Section 1-799, W.S.1957, relative to ways of necessity for reservoirs, drains, flumes, ditches, canals, electric power transmission lines, railroad trackage, sidings, spur tracks, tramways and mine truck haul roads. Section 24-6, W.S. 1957, relative to highways.
.The taking of a right-of-way pursuant to eminent domain authorization and proceedings should not be confused with an action to enforce a common-law way of necessity, which is sustained when a conveyance of a tract of land is made and access between it and the outside world is only by means of a way over the land retained by the grantor.
. As indicated, ante, the map was not sufficient in description in other respects, even if it had been annexed to the complaint.
. Sections 1-26-401, et seq., W.S.1977 (the authority for the taking set forth in the complaint) and §§ 1-26-301, et seq., W.S.1977 (the authority for the taking set forth in the amendment to the complaint) each provide for prior entry upon the lands to make “surveys for planning” and for “preliminary surveys and examinations.”
. Section 1-767, W.S. 1957, setting forth the procedures most commonly used for condemnation prior to adoption of Rule 71.1, W.R.C.P., required the complaint to include “a specific description of each parcel of property, interest or right sought to be taken or injuriously affected.”
. Subsection (d) of § 1-26^01, W.S.1977, provides:
“A way of necessity for a mine truck haul road shall not be granted except where no other reasonable and practicable way is available. The petitioner for a mine truck haul road way of necessity shall show that his petition is made in good faith, that no other reasonable and practical way is available and that the mining operation is economically feasible. The way of necessity may not exceed in area that which is actually necessary for the haul road, and in no case shall it exceed one hundred (100) feet in total width.”
. The majority opinion recites that there is no genuine issue as to material facts. I believe that there are material factual issues to be resolved, such as the extent of the taking, the necessity for it, the existence of a public service aspect, the actual use to be made of the right-of-way, the exact purpose for the road, and the practicality and feasibility of its use as a mine haul road. A material fact under §§ 1-26-401, et seq., W.S.1977, proceedings is whether or not the operation is economically feasible. See footnote 7.
. The legislative intent and attitude in this respect is exemplified in § 30-1-130, W.S.1977 (S.L. of Wyo. 1967, Ch. 244, § 2), which concerned the delegating of eminent domain powers to mining companies for underground rights-of-way. It provides that appropriations under such powers require a showing of “good faith and that the right-of-way easement is necessary to continue the practical and economical development of a commercially feasible mining operation then being conducted.”
. See footnote 7.
. This type of situation could not occur under Rule 71A of the Federal Rules of Civil Procedure inasmuch as subsection (e) of that rule provides that in addition to the answer, “[n]o other pleading or motion asserting any additional defense or objection shall be allowed.”
. See footnote 7.