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EDWARD A. KING and JANICE C. KING v. BOARD OF COUNTY

November 30, 2010

EDWARD A. KING AND JANICE C. KING, APPELLANTS (PLAINTIFFS),
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF FREMONT, APPELLEE (DEFENDANT). HANSEN'S NORTH FORK RANCH, LLLP, APPELLANT (INTERVENING PLAINTIFF)
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF FREMONT, APPELLEE (DEFENDANT),



Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge Representing Appellants:

OCTOBER TERM, A.D. 2010

November 30, 2010

Jason A. Neville and Keith J. Dodson, Williams, Porter, Day & Neville, P.C., Casper, WY for Edward & Janice King; and Steven F. Freudenthal of Freudenthal, Salzburg & Bonds, Cheyenne, WY for Hanson's North Fork Ranch. Argument by Messrs. Freudenthal and Dodson.

Representing Appellees:

Jodi A. Darrough, Deputy Fremont County Attorney, Lander,WY.

Before KITE, C.J., and GOLDEN, HILL, VOIGT*, and BURKE, JJ.

*Chief Justice at time of oral argument.

HILL, J., delivers the opinion of the Court; BURKE, J., files an opinion concurring in part and dissenting in part, in which VOIGT, J., joins.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

HILL, Justice. [¶1] The Appellants in Case No. S-09-0227 are Edward A. and Janice C. King (Kings). They seek review of a partial summary judgment order, as well as a second order which then dismissed the remainder of the Kings' complaint. The Appellant in Case No. S-09-0228 is Hansen's North Fork Ranch (Hansen). Hansen was an intervening plaintiff in the proceedings below and its pleadings raised much the same issues as did the Kings. These appeals arise from the district court's determination of the status of a county road, known as "Bunker Road," which fell under the jurisdiction of the Appellee, Board of County Commissioners of the County of Fremont (Commission). The Kings alleged that the records concerning the existence of that road were not properly recorded or stored by Fremont County and, hence, Bunker Road had never been created as contemplated by the governing statutes. In addition, both Appellants contended the road had been vacated or abandoned. The district court determined that the Appellants were incorrect on both points. As a matter of undisputed fact and law, the district court held Bunker 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 by the Commission. We will affirm the district court's orders.

ISSUES

[¶2] The Kings raise these issues:

A. Whether the district court's April 23, 2008 entry of summary judgment to [the Commission] based upon its finding that Bunker Road was properly established in 1913 was in error. B. 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). C. Whether [Kings] were bona fide subsequent purchasers, and thus purchased their land without Bunker Road clouding the title.

The Commission's statement of the issues is the same as that presented by the Kings. However, in its brief the Commission also contends that neither the Kings nor Hansen may challenge the partial summary judgment order because neither filed a timely notice of appeal after the entry of that order. Both the Kings and Hansen contest that point in their reply briefs. Hansen's statement of the issues mirrors Issues A and B set out above by the Kings.

BACKGROUND INFORMATION AND PROCEEDINGS [¶3] The Kings filed their complaint on December 14, 2005, after their efforts to obtain a ruling from the Commission that Bunker Road had been abandoned or vacated had failed. The documentation prepared at the time Bunker Road was created satisfied the Commission that the statutory requirements for the creation of a road, such as Bunker Road (County Road 111), had been fulfilled. The Kings' claim that the creation of Bunker Road had not been perfected relied almost entirely on the circumstance that it was not "recorded" in a manner contemplated by Wyoming's "first in time, first in right" recording statute.

[¶4] In 1999, the Kings purchased property which Bunker Road burdened in a way that damaged their plan to subdivide it, and which had been unknown to them at the time of purchase, even though a traditional title search was completed. The Kings alleged that the information which described that road and its encroachment on the land that the Kings ultimately purchased was never "recorded" in the county clerk's office, although that documentation may have been filed there originally and may have been stored in the county courthouse for a time. However, the Kings averred that a county road map located in the county clerk's office did not show it as a county road. In addition, the Kings averred that the Commission had not created Bunker Road in the manner required by Wyoming law because a copy of the plat and notes of the survey were never filed in the "office of the county clerk." This allegation was supported in part by a letter dated February 18, 2000, from Fremont County Director of Planning Ray Price (Price) to Jim Freeman (Freeman), in which Price stated that the road would be "difficult or even impossible to find or even negotiate, except on foot." However, Price also indicated in that same letter that the road easement in question had "been established" and that he did "not have any evidence that this road easement was ever abandoned by Fremont County." In a memo dated April 24, 2002, from Price to the Commission, Price wrote:

Bunker Road has not been used by the general public or maintained by Fremont County for quite some time. However, the road can be found on the ground and could be traveled. Sometime within the last five to seven years a new access road was constructed by private individuals in a location that, over much of its route, uses the old county road right-of-way. Mr. Freeman has been denied permission to use the portion of the new access road between the place where it leaves Baldwin Creek Road and where it connects with the old right-of-way of Bunker Road. I believe that Mr. [Sam] Dunlap and Mr. Freeman will ask that Bunker Road be reopened.

[¶5] The Kings' complaint continued: 23. The Board of County Commissioners of the County of Fremont, on October 4, 2005, took action to determine that "upon examination of public records and testimony associated with Bunker Road that: 1) it is a county road; and 2) it is not in the public interest to vacate said Road and to decline to adopt a resolution to formally vacate and abandon the Fremont County Road known as Bunker Road." This action was unnecessary as Bunker Road was never properly established as a County Road.

24. The Board of County Commissioners of Fremont County, Wyoming never properly recorded Bunker Road as a public road or highway pursuant to applicable law and roads not properly recorded pursuant to statute were considered vacated as public roads. Yeager v. Forbes, 2003 WY 134, ¶ 32, 78 P.3d 241, [255].

25. Upon information and belief it is alleged that sometime between the years of 1987 and 1993 the Fremont County Commissioners authorized the Fremont County Road Superintendent to place signs along Bunker Road indicating that the road had been abandon[ed] and was so designated by posted signs indicating the road was closed to traffic..

26. Based upon the Wyoming Supreme Court ruling in Yeager v. Forbes, 2003 WY 134, 78 P.3d 241 there is no public road or highway along this track referred to as Bunker Road.

27. A controversy exists between [Kings] and the [Commission] concerning whether Bunker Road is a public road. [Kings] believe [] that the Yeager decision and the application of the applicable law to this controversy clearly demonstrate that Bunker Road is not a county road.

28. A justifiable controversy exists between [Kings] and [the Commission], and such controversy is of a kind and nature as to be adjudicated in a declaratory judgment action. Bunker Road is not a public road of any kind, and [the Commission] has no right to prevent [Kings] from denying access to the use of Bunker Road as [they] deem [] appropriate to protect [their] property.

[¶6] On February 13, 2006, Hansen filed its motion to intervene. Hansen's complaint is, more or less, identical to that of the Kings, except for the description of the lands affected. Hansen asserted a "special interest" in the outcome of this matter because, of the approximate two-mile length of Bunker Road, one-half of that length is located on Hansen's land.

[¶7] The Commission answered both complaints generally denying the allegations of those complaints and asserting a variety of defenses, including that if the district court were to grant the relief on the bases asserted by the Kings and Hansen, then it would ".eventually necessitate the Court also declaring all other county roads established according to the proper statutory procedure invalid as well."

[¶8] On June 15, 2007, Kings and Hansen filed a consolidated motion for summary judgment, as well as a memorandum in support of that motion. The Commission also filed a motion for summary judgment, as well as a response to Kings' and Hansen's competing motions for summary judgment.

[¶9] In an order entered of record on April 23, 2008, the district court denied Kings' and Hansen's motions for a summary judgment in part, and granted the Commission's motion for summary judgment in part. The district court concluded that, as a matter of law, Bunker Road was duly established in 1913 by the Commission pursuant to its statutory authority. The district court described the remaining two issues to be tried as:

(1) whether or not the Appellants had actual notice of Bunker Road, and (2) whether or not they are bona fide purchasers of the property they now own which may be subject to the Commission's interest in Bunker Road.

DISCUSSION

Was Notice of Appeal Timely as to Partial Summary Judgment [¶10] W.R.A.P 2.01 requires that a notice of appeal be filed within 30 days from entry of the "appealable order." W.R.A.P. 1.05 provides:

An appealable order is: (a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment; or (b) An order affecting a substantial right made in a special proceeding; or (c) An order made upon a summary application in an action after judgment; or (d) An order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a)(4) and (5), Wyo. R. Civ. P.; if an appeal is taken from such an order, the judgment shall remain final and in effect for the purposes of appeal by another party; or (e) Interlocutory orders and decrees of the district courts which: (1) Grant, continue, or modify injunctions, or dissolve injunctions, or refuse to dissolve or modify injunctions; or (2) Appoint receivers, or issue orders to wind up receiverships, or to take steps to accomplish the purposes thereof, such as directing sales or other disposition of property. (See Rule 13 for additional guidance on review of interlocutory orders.)

[¶11] 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, and the Kings and Hansen were not required to appeal the partial summary judgment until the remaining issues were decided. Thus, we will consider both issues raised by the Appellants.

Creation of Bunker Road [¶12] The district court issued its partial summary judgment order on April 23, 2008. The subject of the partial summary judgment was limited to whether or not the Commission's actions in 1912-13 were sufficiently in compliance with governing statutes so as to have actually created Bunker Road. The Kings and Hansen contend that the process was flawed and, therefore, Bunker Road never was created. The standard of review to be applied is this:

[W]e examine the record from the vantage point most favorable to the party opposing the motion and give that party the benefit of all the favorable inferences which may be fairly drawn. Castleberry v. Phelan, 2004 WY 151, ¶ 8, 101 P.3d 460, 462 (Wyo. 2004). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. Wilson v. Bd. of County Comm'rs, 2007 WY 42, ¶ 12, 153 P.3d 917, 922 (Wyo. 2007).

[¶13] The statutes in effect at that time 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 Kings and Hansen 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. With respect to this particular matter, the district court concluded thus: "However, 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."

[¶14] 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 Bunker 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. Id., 817 P.2d at 98. The entirety of that case is instructive with respect to issues such as those raised here, but its significance with respect to the instant case is limited to that noted above. Based on that case, the district court concluded that the remaining issues would be required to be tried; to wit: (1) whether or not Kings and Hansen had actual notice of Bunker 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 Bunker Road. The district court concluded that the Wyoming Legislature also intended to require the recording of the Bunker Road Petition in compliance with the Wyoming Recording Act. "However, failure to do so did not void the establish[ed] Bunker 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 Bunker Road was ever established on the ground. Moreover, while there was evidence that at least a faint "track" of Bunker 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 Bunker Road disappeared into, and then re-emerged on the other end of, the building.

[¶15] However, based on the totality of the circumstances set out above, we agree with the district court that there were no genuine issues of material fact as to whether Bunker Road had been created in the first instance. Actual Notice -- Bona Fide Purchasers

[¶16] On August 18, 2009, the Commission 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 603-8 (Wyo. 1956) (emphasis added), wherein this Court held as follows:

This is an action brought by the State of Wyoming on the relation of the State Highway Commission of Wyoming as plaintiff against Stanley Meeker as defendant to enjoin the latter from interfering with its right of way for highway purposes over lands hereinafter mentioned.

The Board of County Commissioners of Laramie County, Wyoming, at the behest of the State Highway Commission, as provided by § 48-303, W.C.S.1945, commenced condemnation proceedings to acquire a right of way for highway purposes over the lands hereinafter mentioned. These condemnation proceedings were completed on June 7, 1950. Damages in the amount of $1,652 were paid to Nell Fowler, the then owner of the property. The State Highway Commission did not immediately take possession of the right of way thus acquired, but did let a contract for the construction of a highway over and along the acquired right of way in December 1953 and immediately thereafter the construction of the highway was commenced and at the time of the trial of this case was substantially completed.

Defendant claims to be the owner of the land over which the right of way runs and that he bought the land for $25.25 per acre in 1952. He claims he went all over the land, had an abstract of title prepared which did not show any right of way over the land; that he did not notice any signs of any purported highway; that he did not know of the interest of the State of Wyoming acquired by reason of the condemnation proceedings and found no instrument of record in the office of the county clerk showing the highway. The case was tried to the court without a jury. After the trial of the case, the court found in favor of the defendant Meeker and against the plaintiff but left in force the temporary injunction theretofore issued during the appeal of the case to this court. The plaintiff has duly perfected the appeal and it has been argued in this court. A motion to dismiss the appeal was filed, but the plaintiff and appellant complied with our order in connection therewith, so we shall not consider it further.

At the trial of the case, the parties entered into a stipulation.. [Stipulation omitted.]

I. Counsel for the defendant in attempting to uphold the judgment of the trial court relies on the provisions of §§ 66-119, 66-124, W.C.S.1945, reading as follows:

66-119. 'Every conveyance of real estate within this state, hereafter made, which shall not be recorded as required by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate or ...


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