Summary of Decision November 30, 2010

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Case Name: King v. Board of County Commissioners of the County of Fremont

Citation: 2010 WY 154

Docket Number: S-09-0227, S-09-0228

URL: http://tinyurl.com/2ue3tkh

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Plaintiffs and Intervening Plaintiff): Jason A. Neville and Keith J. Dodson, Williams, Porter, Day & Neville, Casper, WY for Edward & Janice King; and Steven F. Freudenthal of Freudenthal, Salzburg & Bonds, Cheyenne, WY for Hanson’s North Fork Ranch.

Representing Appellee (Defendant): Jodi A. Darrough, Deputy Fremont County Attorney, Lander, WY.

Date of Decision: November 30, 2010

Facts: These appeals arise from the district court’s determination of the status of a county road which fell under the jurisdiction of the Appellee. The Appellants alleged that the records concerning the existence of that road were not properly recorded or stored by Fremont County and, hence, the road had never been created as contemplated by the governing statutes. In addition, Appellants contended the road had been vacated or abandoned. As a matter of undisputed fact and law, the district court held the road had been created and further, that as a matter of law it still existed because it had not forthrightly and officially been vacated or abandoned.


Issues: Whether Appellants filed a timely notice of appeal after the entry of the partial summary judgment order. Whether the district court’s entry of summary judgment based upon its finding that the road was properly established was in error. Whether the district court erred when it dismissed the case in reliance on State ex rel. State Highway Commission v. Meeker, 294 P.2d 603 (Wyo. 1956). Whether Appellants were bona fide subsequent purchasers, and thus purchased their land without the road clouding their title. Whether Appellants filed a timely notice of appeal after the entry of that order.

Holdings: W.R.C.P. 54(b) allows a district court to certify orders that adjudicate fewer than all claims upon an express determination that there is no just reason for delay and upon the express direction for the entry of judgment. No such determination was sought or granted in this case. However, Appellants were not required to appeal the partial summary judgment until the remaining issues were decided.

The statutes in effect when the road was created are found in Wyoming Compiled Statutes 1910, §§ 2513-2531. Section 2523 requires that a survey and record of the road “be filed in the office of the county clerk.” The Appellants contend that this step was not perfected, although the documentation required to be assembled by the governing statutes was in the possession of Fremont County at the time this action arose, as well as at all times in the interim between 1913 and the present day. However, it is not disputed that the grantor/grantee index did not provide those examining property titles any information about the road. Further, unless a title examiner inquired of a county clerk employee about the existence and actual location of the records pertaining to county roads, then whether or not a particular parcel of land was burdened by a county road would not be evident. It is this flaw that is the mainstay of the Appellants’ contentions herein and on that basis, it is contended that the road should be declared not to have ever come into existence.

It is not the physical location of these records that create the ultimate issue in this case but whether or not they were made of record for purposes of providing constructive notice. The district court relied in significant part on the case of Lakewood v. Mavromatis, 817 P.2d 90 (Colo. 1991) in deciding to grant a partial summary judgment in favor of the Commission with respect to the validity, ab initio, of the road. Although that case differs from the present case on the facts because a road was never built on the tract of land in question, the Colorado Supreme Court concluded that placing the road petition and incorporated plat in the road book in the office of the county clerk was adequate to dedicate the tract as a public highway, but it did not provide constructive notice to bona fide subsequent purchasers of the governmental entity’s interest in the disputed parcel of land. Based on that case, the district court concluded that the remaining issues would be required to be tried; to wit: (1) whether or not Appellants had actual notice of the road and (2) whether or not they are bona fide subsequent purchasers of the property they now own that may be subject to the Commission’s interest in the road. The district court concluded that the Wyoming Legislature also intended to require the recording of the road petition in compliance with the Wyoming Recording Act. However, failure to do so did not void the established road, especially with regard to the parties in the initial road proceedings because they had actual notice of the road. The district court indicated that this case was complicated because it was unclear if the road was ever established on the ground. Moreover, while there was evidence that at least a faint “track” of the road could be found on the ground for most of its distance, it had been fenced over in places, it had been washed out in places, it was blocked by vegetation in places, a wellhead was in its course, and a building had been placed along its course so that it disappeared into, and then re-emerged on the other end of, the building.
However, based on the totality of the circumstances, the district court will be affirmed in its decision that there were no genuine issues of material fact as to whether the road had been created in the first instance.

The Appellee Commission subsequently filed a motion to dismiss on the basis that once a county road has been created, it can only be extinguished through formal vacation proceedings. Prior to a trial, the district court reconsidered its previous ruling in light of the case State ex rel. State Highway Comm’n v. Meeker, 294 P.2d 603 (Wyo. 1956). The failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers and encumbrancers. Until 1953 Wyoming had no statute which required the transfer of title by eminent domain to be recorded in the ordinary and regular books of record kept for the transfer of property by conveyances. Based on that case, the wording of the statutes in place in 1913, the fact that the road had never been “formally vacated,” and the circumstance that the County Road Book gave constructive notice of the road had inquiry been made of the county clerk, the district court held that the motion to dismiss should be granted.

The heart of the controversy in this case lies in the tension between Wyoming’s long-standing “unrecorded conveyance” statute and those statutes that deal with the creation of county roads. The records of the road in question were maintained in the manner mandated by these statutes. Eventually, the “recorded” documents with respect to county roads were moved to the county planning office and later to the county roads/transportation department. However, at all times the records were available to the public had inquiry been made about them to the county clerk or to other county departments. Moreover, county roads, cannot be vacated except by official action of the county commissioners of a county. Appellants participated in an effort to vacate the road, but that was unsuccessful. Wyo. Stat. 24-3-201 et seq. authorize a county to remedy a problem such as the one that has arisen in the present action. However, these statutes do not mandate action on the part of counties and are not determinative of the issues raised herein. The existing statutes, as well as the cases interpreting them over the years, track closely with common law principles that have long played a key role in issues such as this. Two of the most important of those are: “Once a road, always a road;” and, where a road is created by a statutory procedure such as that in play here, such a road cannot be abandoned, vacated, or disestablished without there being clear action on the part of the governmental entity that created the road to vacate, abandon, or disestablish it. For these reasons, the district court was correct that there was no genuine issue of material fact as to whether the road had been created. In addition, the road has not been vacated, abandoned, or disestablished by Fremont County and, therefore, it is still a county road as a matter of law.

The district court’s partial summary judgment order is affirmed. The district court’s order dismissing the further claims of Appellants is also affirmed.

J. Hill delivered the opinion for the court.

J. Burke files an opinion concurring in part and dissenting in part, in which J. Voigt joins. I respectfully dissent from that part of the majority’s decision affirming the dismissal of the Appellants’ claims in reliance on State Highway Comm’n v. Meeker, 75 Wyo. 210, 294 P.2d 603 (Wyo. 1956). Mr. Meeker challenged the county’s ownership of a highway right-of-way across his property on the basis that there was “no instrument of record in the office of the county clerk showing the highway.” The right-of-way had been acquired through eminent domain, however, and the Court found “no statute which required the transfer of title by eminent domain to be recorded” in the public record. The Court said that “failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers.” “Hence,” the Court wrote, “it is quite clear that the title the State acquired under the condemnation proceedings in 1950 is valid and good against any subsequent purchaser of the same property.” However, Meeker detours from a long line of Wyoming cases emphasizing that county road easements must be placed on the public record. These cases establish that the Wyoming Legislature and the Court have consistently, with the exception of Meeker, said that county roads must be placed on the public record.

This policy extends not to county roads only, but to all real property conveyances. “Public policy requires that subsequent purchasers be able to rely on the title shown in public records.” Applying Meeker to the case at hand, however, means that the Appellants cannot rely on their title as shown in the Fremont County Clerk’s property records. That seriously undermines “the purpose of our recording statutes, which entitle one to rely on public records and determine whether or not a certain property is subject to liens, prior encumbrances or other outstanding claims.

The Court in Meeker indicated that the proceedings of the Board of County Commissioners gave Mr. Meeker constructive notice of the Commissioners’ decision to acquire the highway right-of-way. As stated in a droll but persuasive argument offered by Appellants in the present action, if the ruling in Meeker is controlling in this case, then every conveyance of land would have to be accompanied by a review of all proceedings of the county commissioners back to 1890.

Because of its anomalous nature and impracticable result, the decision in Meeker should be limited to its peculiar facts. By the time of trial in the Meeker case, “construction of the highway was commenced and substantially completed. That is not true of the road in the present action. In addition, Mr. Meeker “was in possession of the land in question as lessee during all of the time the eminent domain proceedings were taking place and must have had notice thereof.” Appellants were not in possession of the land in question in 1913 when the County Commissioners undertook to establish the road.

More significantly, Meeker is distinguishable on legal grounds. That decision rested on the Court’s finding “no statute which required the transfer of title by eminent domain to be recorded” in the public record. In the current case, there is at least one statute requiring the road easement to be recorded. In 1919, the Wyoming Legislature enacted a statute requiring Boards of County Commissioners, within their respective counties determine what if any such roads now or heretofore travelled but not heretofore officially established and recorded, are necessary or important for the public use as permanent roads, and to cause such roads to be recorded, or if need be laid out, established and recorded, and all roads recorded as aforesaid, shall be highways. No other roads shall be highways unless and until lawfully established as such by official authority. The County Commissioners of Fremont County undertook to establish the road in question, but failed to record it. This statute imposed upon them the duty of rectifying that failure. Notably, this statute makes no distinction between roads acquired by eminent domain and those acquired by other means. Because this statute required the easement in question to be recorded, the ruling in Meeker is not controlling here.

Accordingly, the district court’s decision to dismiss the claims raised by the Appellants should be reversed and remanded to the district court with instructions to proceed to trial on the question of whether the Appellants are bona fide subsequent purchasers for value who took title to their properties without notice of the road easement.