Dale S. Kirkham and Bodell S. Kirkham v‪.‬

The issue presented on appeal is whether the trial court abused its discretion in dismissing, sua sponte, the above entitled action with prejudice because neither party took any affirmative action in the case for a period of 21 months. The facts relevant to this appeal are as follows: Plaintiffs-appellants instituted this private condemnation action on September 21, 1972, to condemn a right-of-way across certain lands owned by defendants-respondents. A trial on the matter was set for June 4, 1975, but on that date the trial court refused to hold a trial until it had an opportunity to view the land at issue and counsel for respondents submitted additional information on the four routes providing access to appellants' allegedly land-locked property. The trial court and the parties agreed to view the proposed routes on July 1, 1975, and the trial Judge stated that he would set a time for trial after that date, if a trial was still necessary. The record does not reveal whether the July 1 meeting took place. On August 27, 1975, appellants moved to amend their complaint because the description of the proposed route to be condemned was erroneous. The motion was denied September 15, 1975.[Footnote 1] Thereafter, neither party took any action in the matter for a period of approximately twenty-one months.