*1 WY 154 King, Janice C. A. KING Edward (Plaintiffs),
Appellants
v. COMMISSIONERS COUNTY OF
BOARD FREMONT, OF the COUNTY OF (Defendant). Appellee LLLP., Ranch, Fork North
Hansen's (Intervening
Appellant
Plaintiff) Commissioners
Board Fremont, Appellee
County of
(Defendant). S-09-0227, S-09-0228.
Nos. Wyoming.
Supreme Court 30, 2010.
Nov.
474
sion. We will affirm the district or- court's ders.
ISSUES Kings [T2] The raise these issues: Representing Appellants: A. Jason Neville A. Whether the district April court's Dodson, Williams, Porter, Day and Keith J. entry summary judgment to [the Neville, P.C., & Casper, WY for Edward & Commission] based finding that King; Janice and Steven F. Freudenthal of properly Bunker Road was established in Freudenthal, Bonds, Salzburg Cheyenne, & inwas error. Argu- WY for Hanson's North Fork Ranch. B. Whether the district court ment Messrs. Freudenthal erred when and Dodson. it dismissed the case reliance on State Representing Appellees: Jodi A. Dar- Highway ex rel. State Commission v. rough, Deputy County Attorney, Fremont Meeker, Wyo. [75 (Wyo. 210] P.2d 603 Lander, WY. 1956). KITE, C.J., GOLDEN, HILL, Before C. [Kings] Whether were bona fide sub- *, BURKE, VOIGT and JJ. sequent purchasers, purchased and thus their land without Bunker clouding Road HILL, Justice. the title. Appellants The [T1] Case No. S-09- The Commission's statement of the issues is 0227 are Edward A. King and Janice C. the same as presented by that Kings. (Kings). They partial seek review of a sum- However, in its brief the Commission also mary order, judgment as well as a second Kings contends that neither the nor Hansen order which then dismissed the remainder of may challenge partial summary judgment Kings' complaint. Appellant The in Case order because timely neither filed a notice of S$-09-0228 No. is Hansen's North Fork appeal entry after the of that order. Both (Hansen). Ranch Hansen was an interven- Kings and Hansen point contest that ing plaintiff in proceedings below and its reply their briefs. Hansen's statement of the pleadings raised much the same issues as did issues mirrors Issues A and B set out above Kings. appeals These arise from the by Kings. district court's determination of the status of road, a county Road," known as "Bunker BACKGROUND INFORMATION jurisdiction fell under the Appel- AND PROCEEDINGS lee, County Board of Commissioners of the County (Commission). of Fremont Kings [T3] The filed complaint their Kings alleged that concerning records December after their efforts to the existence of that road properly were not ruling obtain a from the Commission that and, recorded or County stored Fremont Bunker Road had been abandoned or vacated hence, Bunker Road had never been created had failed. The prepared documentation contemplated by governing statutes. the time Bunker Road was created satisfied addition, In Appellants both contended the the Commission statutory require- road had been vacated or abandoned. The ments for the creation aof such as district court determined that Appellants (County 111), Bunker Road Road had been fulfilled. The Kings' claim that the creation were incorrect on points. both As a matter undisputed law, fact and the district court of Bunker perfected Road had not been re- held Bunker Road had been created and lied entirely almost on the cireumstance that further, that as a matter of law it still existed it was not "recorded" in a manner contem- because it had forthrightly not officially plated by Wyoming's time, "first first been vacated or abandoned the Commis- right" recording statute. * argument. Chief Justice at time of oral Kings purchased prop- The Board of County Commissioners Fremont, on October way in a Road burdened
erty which Bunker
it,
"upon
action to
took
determine
damaged
plan
their
to subdivide
examination of
records and testimo-
to them at the time
unknown
which had been
*3
1)
though a traditional title
ny
with Bunker Road that:
it
even
associated
purchase,
2)
road;
alleged
it
in
Kings
The
is a
is not
completed.
was
search
public interest
to vacate said Road and to
which described that
that the information
adopt
formally
to
a
to
decline
resolution
on the land
road and its encroachment
County
vacate and abandon the Fremont
ultimately purchased was never
Kings
Road known as Bunker Road." This action
office,
al-
in the
clerk's
"recorded"
unnecessary as Bunker Road was nev-
may have been
though that documentation
properly
County
as a
Road.
er
established
may have been
originally
there
filed
county courthouse for a time.
in the
stored
County
24. The Board of
Commissioners
However,
Kings
averred that a
County, Wyoming
prop
of Fremont
never
county clerk's office
map located in the
road
erly recorded Bunker Road as a
county road.
In addi-
not show it as a
did
highway pursuant
applicable
road or
law
tion,
Kings averred that the Commission
properly
pursuant
recorded
and roads not
Road in the manner
not created Bunker
had
pub
were considered vacated as
statute
copy
by Wyoming
Forbes,
law
a
required
because
Yeager
lic roads.
v.
2003 WY
¶
[255].
survey
were never
plat
and notes
county clerk." This
filed in the "officeof the
Upon
al-
25.
information
belief
supported
part by
a letter
allegation was
leged
years
that sometime between the
18, 2000,
February
from Fremont
dated
County
and 1998 the Fremont
Com-
Ray
Planning
Price
County Director of
County
missioners authorized the Fremont
(Price)
(Freeman),
Freeman
to Jim
Superintendent
place signs along
Road
be "difficult
that the road would
Price stated
indicating that
Bunker Road
the road had
negotiate,
impossible to find or even
or even
designated
abandon[ed]
been
and was so
However, Price also indicat-
exeept on foot."
by posted signs indicating the road was
in that same letter that the road easement
ed
to traffic....
closed
had
established" and that
question
"been
upon
Wyoming Supreme
26. Based
that this road
"not have
evidence
he did
Forbes,
ruling Yeager
Court
WY
abandoned
Fremont
easement was ever
to the Commission's interest in Bunker Road. of Bunker Road
Creation
DISCUSSION
[112]
The
district
court
issued its
partial summary judgment
April
order
Timely
Appeal
Was Notice of
as to Partial
subject
partial summary
2008. The
Summary Judgment
judgment was limited to whether or not the
requires
[110] WRAP.
2.01
that a no-
Commission's actions
1912-13 were suffi
appeal
days
tice
be
from
filed within 30
ciently
compliance
governing
with
statutes
entry
"appealable
order." W.R.AP.
actually
as to have
created Bunker Road.
so
provides:
1.05
Kings
pro
that the
The
and Hansen contend
and, therefore,
appealable
An
order is:
cess was flawed
Bunker Road
The
review facts because a road was never built on
was created.
standard of
never
question,
tract of
land
the Colorado Su-
applied is this:
to be
perfected,
that a
in the officeof the
and Hansen
Wilson
are found
quired to be assembled
judgment as a matter of law.
when there
2004WY
2004). Summary judgment
point most
the motion
of all the favorable
rial fact and the
[Whe
¶ 12,
fairly
§§ 2518-2581. Section 2528
*5
survey
examine
v. Bd.
153P.3d
The statutes
although the
151,¶ 8,
drawn.
contend that
favorable to the
and record of the road "be filed
are no
Wyoming Compiled
the record from the
give
moving party
genuine
Castleberry v.
inferences which
Comm'rs,
documentation
(Wyo.2007).
clerk." The
effect at that time
by
this
party
issues of mate
party
step
Id.
is entitled to
appropriate
the benefit
governing
2007 WY
opposing
requires
Statutes
was not
vantage
Phelan,
Kings
(Wyo.
re-
book in the office of the
preme
respect
but
not
highway,
notice to
petition
adequate
puted parcel of
required to be
The district court concluded that the
Bunker
property they
to the
are bona fide
stant case is limited to that noted above.
Based
cluded that
governmental entity's
Kings
entirety of that
Commission's
Court concludedthat
on that
significance
to issues such as those raised
Road,
bona
but it did not
to dedicate the
and Hansen had actual notice of
incorporated plat
subsequent purchasers
now own that
fide
tried;
case,
land.
remaining
subsequent purchasers
(2)
interest
case is instructive with
the district court con-
to wit:
whether or not
Id.,
provide
respect
interest
tract
issues would be
placing
in
817 P.2d at
(1)
Bunker Road.
in the road
constructive
as a
whether or
be
to the in-
clerk was
the road
the dis-
subject
Wyo-
here,
they
possession
was in the
of Fremont
statutes
ming Legislature
require
also intended to
arose,
County at the time this action
as well
recording of the Bunker Road Petition in
in
as at all times
the interim between 1913
compliance
Wyoming Recording
with the
However,
present day.
it
is not
"However,
Act.
failure to do so did not void
disputed
grantor/grantee
index did
establish(ed]
Road, especially
Bunker
provide
examining property
not
those
titles
regard
in
parties
to the
the initial road
Further,
about
information
road.
proceedings
they had actual
because
notice of
inquired
a title examiner
of a
unless
the road." The district court indicated that
employee
clerk
about the existence and actu-
complicated
this case was
because it was
pertaining
al location of the records
unclear if Bunker Road was ever established
roads,
particular par-
Moreover,
a
ground.
then whether
not
on the
while there was
cel of land was burdened
evidence that at least a faint "track" of Bunk-
ground
would not be evident.
It is this flaw that is
er Road could be found on the
for
distance,
mainstay
Appellants'
it
contentions most of its
had been fenced over
basis,
places,
places,
in
in
herein and on that
it is contended that
it had been washed out
it
by vegetation
places,
was blocked
a well-
the road should be declared not to have ever
course,
building
head was in its
and a
had
respect
come into existence.
to this
With
matter,
placed along
been
its course
that Bunker
particular
so
the district court conclud-
into,
"However,
disappeared
re-emerged
Road
and then
physical
ed thus:
it
is not
of,
building.
on the other end
location of these records that create the ulti-
providing
mate issue
they
were made of record for
constructive
this case but whether or not
notice."
purposes
with the district court
[115]
cireumstances
However,
set
based
out
on the
above,
there were no
totality
we
agree
genuine issues of material fact as to whether
signifi
The district court relied in
[T14]
Bunker
Road had been created
the first
part
cant
on the case of Lakewood v. Mavro
instance.
matis,
(Colo.1991)
deciding
grant partial favor of Actual Notice-Bona Fide Purchasers validity, respect the Commissionwith ab initio, of Bunker Road. Although On August the Com present to dismiss on the basis case differs from the case on the mission filed motion created, plaintiff duly it court. The that onee a road has been case has through formal va only extinguished perfected appeal can has been ar- trial, Prior to a the dis proceedings. cation gued in this court. A motion to dismiss ruling in previous trict court reconsidered filed, appeal plaintiff but the Highway rel. State light of the case State ex appellant complied with our order in con- Meeker, Wyo. Comm'n therewith, nection so we shall not consider (1956) added), (emphasis wherein this 603-8 it further. Court held as follows: case, parties the trial of the At en- brought the State of This is an action stipulation.... [Stipulation tered into a Wyoming the relation of the State omitted.] Highway Wyoming Commission as plaintiff Stanley against Meeker as defen- enjoin interfering attempt- I. Counsel for the defendant
dant to the latter from right way highway purposes ing uphold judgment for with its of the trial 66-119, provisions §§ over lands hereinafter mentioned. court relies on the 66-124, W.0.$.1945, reading as follows: The Board of Commissioners of County, Wyoming, at the behest Laramie 'Every conveyance 66-119. of real es- Commission, Highway pro- State state, made, tate within this hereafter 48-308, W.C0.S8.1945, vided com- which shall not be required recorded as proceedings to ac- menced condemnation law, void, against any shall be way quire right highway purposes subsequent purchaser purchasers over the lands hereinafter mentioned. good faith for a valuable consider- proceedings These condemnation were ation of the same real estate or Damages completed on June thereof, portion conveyance whose *6 $1,652 paid the amount were to Nell of duly be first recorded. Fowler, property. of the the then owner 'conveyance,/ 66-124. 'The term Highway The State Commission did not (§§ 66-101-66-134), used in this Act immediately possession right take of the of every shall be construed to embrace in- way acquired, thus but did let a contract writing by any in strument which estate highway for the construction of a over and created, or interest in real estate is along acquired right way of in Decem- alienated, mortgaged, assigned, by or immediately ber 1953 and thereafter may which the title to real estate highway construction of the com- wills, in equity, exeept affected in law or at menced and the time of the trial of this (8) exceeding leases for a term not three substantially completed. case was years, executory contracts for the sale or Defendant claims to be the owner of the lands, purchase of and certificates which right way land over which the of runs and purchaser paid that show has bought per that he land for acre $25.25 consideration and is entitled to a deed in 1952. He all claims he went over the lands, promise contain land, an prepared had abstract of title agreement furnish said deed some any right way which did not show of over future time.' land; any signs that he did not notice by The transfer of title eminent domain any purported highway; that he did not conveyance meaning is not a within the Wyo- know of the interest of the State of the sections above It mentioned. is ming acquired reason of the condemna- invitum, say, in transfer of title is to proceedings tion and found no instrument against the consent of the owner. At com- of record in the office of the clerk showing highway. The case was tried in England, system mon law there was no registration recording, and the rule jury. to the court without a After the trial case, claimants of the in between same title was the court found favor of the against plaintiff 'prior tempore pot- found in the maxim in defendant Meeker and means, injunction jure, temporary but left foree the ior est he who is during appeal right. theretofore Am. issued first time has the better 45 485; 170; 2 proceedings RCL. Merrill on nent domain Jur. which has not regular ordinary been recorded in the except § 921. That is still the law Notice abrogated by statute. Thus it said in kept purpose is books for the is void as § 2 Merrill on Notice 921 as follows: against subsequent purchasers innocent That, above, for value. as we have seen thoroughly recording has the office 'So clearly is not the law. system legal into our that law- entered yers judges alike tend to refer to II. We reach the same result con- though notice record as it were a sidering standpoints. this case from other principal common law without reference right The of eminent domain an inher- upon to the statutes which it rests. Yet ent, sovereign power, and can be exercised statutory, because the foundation is legislature fit, manner it sees may phraseology because difference in subject only to provision the constitutional interpretation involve variance compensation must be made to the application, we need to remember con- § owner. 1 Lewis Eminent Domain 867. stantly necessity for recorda- is, power The exercise of that in a case like tion, effect, as well as its is a creature of us, legislative that before in character. ordinance, and that without the com- C.J.S., Domain, § p. Eminent 878. omnisapient representatives mand of our legislature itself exercise that legislature assembled no one is re- power assuming that no pro- constitutional quired place his title record visions directly. forbid to do so preserve it. In a order to number of C.J.S., Domain, § p. Eminent 880. It merely instances statutes which author- may delegate power as it has done in permit recording particular ize or C.J.S., the case at bar. 29 Eminent Do- instruments have been construed not to main, 89, p. legislature If had recording make such essential to the right way itself ques- condemned the protection property arising interests tion, everyone including subsequent inno- thereunder. purchasers cent would have been com- Numerous cases are cited. So it is said pelled to take notice thereof. There is no 155,p. in 45 515: Am.Jur. why valid reason that same rule should not 'The failure to record an instrument apply agent legislature. Am- *7 required which is not to be recorded ple provision for notice has been made. does not affect or vitiate the instrument 48-816, W.0.8.1945, According §to notice anyone, only as to and it is valid not proposed of the exercise of eminent do- thereto, parties between the but also given main persons is to all who have subsequent purchasers and encumbrane- claim to have an interest the land. The ers? meetings of the board of commis- 27-807, § public. sioners are W.C0.8.1945. applicable
That
rule is
the case at bar.
proceedings
Until 1953 we had no statute which re-
Notice of the
of the board of
quired
published.
title
eminent
commissioners must be
transfer of
27-821,
ordinary
presume
domain to be recorded in the
W.C.S.1945. We
regular
kept
books
has been done in
record
trans-
the case
bar. The
of
by conveyances.
property
right
way
surveyed
Hence it
of
is
land
fer of
quite
purpose.
is
clear that
the title the State ac-
entered for that
Viewers are
quired
proceed-
appointed
damages
pre-
under the condemmation
to assess the
sumably
upon
assessing
enter
the land
ings
good against any
in 1950 is valid and
subsequent purchaser
proper-
posses-
the same
land. Defendant Meeker was
of
ty.
property
question
The former owner of that
sion of the land in
as lessee dur-
nothing
convey.
ing
then had
further
all of
The
the time the eminent domain
proceedings
taking place
trial court herein decided this case immedi-
were
and must
ately after
the end of the trial without
have had notice thereof or at least he is
looking up
apparently
presumed
the authorities and
It
to have had notice thereof.
said
18Am.Jur. 956:
held
the transfer of title under emi-
are as conclusive as to
taking
actual
records
jurisdictions
'In some
them as to Mrs. Sanders.
pub-
land for certain
of
or condemnation
by the vote
purposes
be effected
lie
County,
Okanogan
In Horton v.
98 Wash.
administrative
of some
resolution
479,
626,
482,
P.
it seems that one
board."
one Patterson owned certain
Storch and
right way
They gave
lands.
of
C.J.S., Counties,
868,
p.
it is
In 20
county.
county accepted
lands to the
The
said:
grant
proceeded
to establish a
usually required
'County
are
boards
and Patterson
road. Thereafter Storch
proceedings
keep a
of
their
record
* *
conveyed the land to the ad. Thereafter
proceedings are matters
* Their
electors,
conveyed the land to
Storch and Patterson
are
public record of which
of
saying anything
plaintiffs
without
to have notice."
presumed
right
way for a road. The
about
Detroit,
City
195 Mich.
In Collins v.
ownership
court held that the
for road was
the court stated:
161 N.W.
subsequent
paramount
to the
sale to
legisla-
supervisors is the
'The board of
plaintiffs. The court
that connection
body
county,
proceed-
and its
tive
stated as follows:
ings
record of which
are matter
binding
'Have these dedications become
presumed to have no-
the electors are
plaintiffs
who have become the
Hartwell,
Speed
People
]
rel.
[ex
tice.
strip
owners of the
of land
controver-
483
1919
Wyo.
Sess.
Laws,
ch.
112, 1,§
minds is
* * *
simple
and crucial
* *
*:
§
2518as follows:
amended
thereby implying
Where
Road 2127"
the establishment was invalid for uncer
Defined.
2513. Public Roads
Section
tainty.
given
No consideration will be
to
lst, 1922,
January
and after
all roads
On
this contention since defendants are bound
highways,
shall be
which
within
State
by
pleadings.
their
ex rel. Tibbals v.
State
or
be declared
law to be
have been
District Court
Ninth Judicial Dist.
national, state,
county roads
territorial or
County, Wyo. 417,
42
Fremont
295
duty
highways.
It shall be the
for
916;
Powell,
Nugent
Wyo. 173,
P.
v.
4
33
Commissioners,
several Boards of
23,
199,
17;
Rep.
P.
20 LRA.
62 Am. St.
counties,
respective
prior
to
within their
Bancroft,
Pleading, §
1
and see
Code
429.
date,
to determine what
said
if
Moreover, even where a defense contains
now or
travelled but not
roads
heretofore
respecting
both an admission and a denial
officially established and re-
heretofore
prevail,
the same fact the admission will
corded,
necessary
important
are
Felton,
370,
Wyo.
76
roads,
Strom
302 P.2d
permanent
public use as
and to
recorded,
such roads to be
need
cause
if
out,
laid
established and recorded and
be
argue
The defendants
that before a writ
aforesaid,
be
all roads recorded as
will
a
of mandamus
lie
relator must show a
high-
highways. No other roads shall be
legal right
entitled,
clear
to which he is
ways
lawfully
and until
established
unless
which is withheld or threatened to be with
authority.
[Emphasis
as such
official
him,
from
held
and that
there is
corre
added.]
sponding duty
part
respon
perform,
duty
only
The records of Bunker Road
dent
can
[¥23]
which
be
right,
manner mandated
were maintained
enforced
means of the
and cite
Eventually,
Copenhav
statutes.
the "recorded"
ex rel. R.R.
& v.
these
State
Crow Co.
er,
1,
594,
county
Wyo.
respect
documents with
roads were
64
184 P.2d
and State ex
Schnitger, Wyo.
rel. Sullivan v.
county planning
moved to the
office and later
county roads/transportation depart
They urge
P. 698.
will
mandamus
not
generally
granted
to coerce discretion
However,
ment.
at all times the records
inquiry
ary
upon
part
were available to the
had
been
action
of a
official
require
legal right
clerk or to
made about them
or board or
Moreover,
county departments.
complete, citing
coun
other
is not clear or
State ex rel.
roads,
above,
Ellis,
ty
Wyo.
as noted
cannot be vacated
Patten v.
259 P.
Van
except by
They say
although
official action of the
com
be established or
Cihlar,
hardt v.
149 Neb.
32 N.W.2d
act,
of this
which shall
provisions
the
by plaintiffs,
authority
cited
for the
lands,
through,
on enclosed
the
pass
injunction
fact that an
will not there lie to
overseer,
officer,
proper
other
prevent property
maintaining
owners from
owner, agent
occupant
give
the
fences across
road since mandamus is a
lands,
writing
in
to re-
of such
notice
proper remedy.
thereon,
if
move the fences
and
passing, may
In
be noted that statutes
owner,
occupant shall not
agent or
move
in existence at
the time of the Freese
fence,
days thereafter,
thirty
his
within
89-108,
§
decision included
R.S.Neb.1948:
may
proper
removed
the
the same
be
general
'The
board has a
supervi-
officer,
worked;
opened
and the road
and
county,
sion over the
roads of the
pay
and such owner shall forfeit and
power
to establish and maintain
day
twenty
for each
he shall
dollars
provided,
them as herein
and to see that
permit
to remain after
his fence
said
the laws in relation to them are carried
necessary
thirty days,
pay
and shall
all
into effect."
removal,
cost of
to be collected
the
officer,
proper
competent
in
court of
many
24-5,
respects
$
Similar
to our
389-116,
jurisdiction,
and
R.S.Neb.1948:
for the use and benefit of
general county road fund.
the
finally
'After the road has been
estab-
Plaintiffs contend that
the board's obli
lished,
plat
of the road must be
gation under
this section was clear and
platted by
recorded and
sur-
definite, especially
light
previ
in the
of its
veyor
plat
the road
book of the
recognition
ous
of the existence of the
proper
with a
reference to the files in
road,
neighboring
and cite
case from the
pa-
clerk's office where the
jurisdiction
Nebraska,
State
ex rel.
pers relating
to the same
be found.
Freese,
147, 22
Draper v.
147 Neb.
N.W.2d
clerk
peti-
must record the
persons sought
that case certain
tion,
claims,
damage
notes,
field
all
county commissioners,
against
mandamus
papers relating
other
to the road. The
requiring
reopen
repair
them to
clerk must direct the road
overseers
public highway.
certain
The evidence dis
worked;
opened
have the same
but
seventy years
closed that
previously
some
crops
planted
when
have been
or sowed
steps
had been taken to
establish
established,
finally
before the road is
that no work had
done on it
been
opening
delayed
thereof shall be
until
expense,
vacated,
although it had not been
crop
is harvested."
beginning
and that
from the
there had
Although
provision
in this statute
been some travel
a trail
some
regarding
opening
working
of the
places varied from
location
of the road
perhaps
obligatory
road is
more
in nature
petition
as laid out. The
was dismissed
corresponding provision
than the
24-
trial
appeal
supreme
court and on
66, W.98.1957,the distinction is not of im
court
prop
reversed and directed
portance under
these
circumstances
parties
er
proceed
open
and work the
in People
view
the rule stated
ex rel.
road to
public.
make it usable
Al
Highways,
Brokaw v. Commissioners of
though
aspects
importance
other
were of
596,598,
130 Ill.
22 N.E.
6 L.R.A.
decision,
significantly
the court
stat
approved by
this court in Burnham
generally
ed that
recog
mandamus was
City
Cheyenme, Wyo.
Hotel
Co.
proper remedy
compel
nized as the
pub
458,
485
refers,
meaning
gument that there was a failure to
and such is its
demand
which
performance
is invalidbecause the testimo-
public
the
interests
in all cases where
concerned,
public
or a
rights
and
are
ny
plaintiffs
is clear that
at different times
officers,
duty
imposed upon public
and
requested
consulted with the board and
persons
third
have a claim
public
the
or
action to be taken for the removal of the
power
be exer-
jure
de
that
This demand was
obstructions.
sufficient.
* * **
cised.
said,
From what we have
it follows that
Wyoming
stat-
Since the Nebraska
the order of the trial court must be af-
substantially
many
re-
utes are
similar
Subsequent
interpretations
firmed.
of
spects,
doctrine
enunciated
such order shall be
accord with the
persuasive.
Freese case is
expressed.
views herein
the board here
The contention which
whole, taking into consideration the extent
makes that
trial court must
parent and obvious that
is the result of
to take care
recorded
road
best
highways,
Mandamus
established road is fails to
tions
highways
cause the
Thereunder,
discharge
discretion
§
proper
177;
obscurities
relating
interests
depends
undisputed
data.
remedy
only
surveyor
ie.,
§
it does
plain
Annotation,
of and
to
198;
mandamus is
when the
of Fremont
Moreover,
did not
the maintenance of
be construed in the
a determination not
obligation
rule
duty.
board,
who
the exercise
compel public
keep
not
applicable in situa-
purported
C.J.S.
employ all of the
the refusal to act
exercise is so
know
See 84 Am.Jur.
the order of the
considering
recognized
County
to work the
repair
convince be-
A.L.R. 257.
Mandamus
where the
to show
officers
sound
as a
light
ap-
Comm'rs v.
(Wyo.1976), we held:
to surrender
holding
lands across which this
28, 1965,
the lands covered
tled
authority
ers of Carbon
equitable right,
Lee E. and Loretta Irene
McQuays were the then owners of the
an easement
granted, the Board of
The trial court was in
virtue of the
'Right-of-Way
recorded the
clerk June
It
and recorded
White,
the case Board
seems evident
reconvey
to Carbon
appellant
quitelaim
title or interest'
County (having accepted
public's
24, 1965,
same)
Easement' executed
that instrument enti
County
County.
error, however,
had 'no
right
McQuay
had
deed dated June
the office of the
right-of-way
easement
Commission
no
of
thereunder
the travel
1198-1201
Since the
conveyed
legal
right
on June
County
or to
or
ing public
right
use of
has
vested
use,
anticipated
impor-
its
road's
roads,
recog
court
earlier this
roads,
practi-
tance in relation to other
right
nized such
in the
and that a
maintenance,
availability
cability of
and the
except by
road could not be vacated
official
purpose.
finances for that
Had
commissioners,
act of the board of
the board which established the road
Board
Com'rs
Sheridan
any
high-
1921 or
successor considered
Patrick,
Wyo.
104 P.
way impractical or without benefit
authority
rehearing
Wyo.
denied
expiration permission, of the earlier again submitted to the commission- White held that the The California court proposal, reciting among things other ers agreements estopped not that: estoppel cannot be invoked doctrine of ‘ * n * n understood and agreed meas- statutory procedure is the where said Interstate 80 has now been con- act, particularly where power ure of right-of-way structed and the heretofore operate to defeat the effective it would purposes easement for road has termi- adopted protect the policy operation of nated. That reason of said termi- statutory procedures public. The various *14 White, undersigned, Bryan the nation taxpayers protect citizens and exist to right-of-way has closed said and road to property. of its from the loss public large. at That the under- said interest is Erccmbrack Another case of signed Bryan hereby agree White does Judd, Utah, 524 P.2d There the 595. right-of-way to reinstate said easement county upon entered their commissioners only purposes for road across the here- county that an established records the fact project inafter described lands until SC- gave permission and road was abandoned Road) (McFadden-Arlington CSM-6-13 put up a notice that the to a landowner County, Wyoming, complet- in Carbon is The landowner did so road was closed. January 1, ed or until whichever placed gate prevent a and lock to and period of time is In consider- shorter. very that access. Under similar statutes thereof, undersigned, agrees ation the rule, succinctly court summarized the open said road forthwith so that Carbon P.2d at 597: County, Wyoming, can enter and make given there no notice to ei- ‘Since was improvements certain to said road for gen- abutting ther the landowners or the traveling public. the benefit of the It is public, eral the motion of the commis- agreed upon part County, the of Carbon nullity, and a approved sioner Wyoming, any improve- all and public road will continue to be and the road ments to said shall revert such until it is abandoned accordance property become the of the land owner statutes.’ upon right-of-way termination of this agreements of June We hold that the easement as described aforesaid. And May null and void are agreed is further the instrument attempt an to vacate an established by parties executed June county by other than those road methods photo a part hereto is made a hereof and provided. further hold that by statute We copy of the same is attached to this ’ * * * lands, McQuay any executed deed to the instrument. county appel- by the commissioners to appellant It is this basis that has lees, is of no force and effect. claim, from asserted its third which falls appellant’s There is little force last weight by recognition its own its clear definitely because the record contention temporary status thereof and indi- that when White 1968 determined shows quite contrary appellant’s cates a which would flood cer- to build reservoir temporary status of this contentions. road, part of which at portions tain arrangement recognized was also lay the boundaries of the Korkow, least within testimony supervisor road easement, proposal right-of-way he made a employed the Carbon Road that for a the board of commissioners Bridge Department. It is to be re- years however, until membered, of not to exceed four term we do not find operate agreements Interstate 80 be constructed manner these claim and deprive build a road around the water which of its could over the then interest in and to the lands covered would extend McQuay for mutually agreeable original location. The board easement why unable to understand use. We are accepted proposal June (i) appellant temporized has since 1960 "Board" means the board of complete any this matter failed to any county; commissioners of proper proceedings which would establish (i) "This act" means W.S. 24-8-201 as a road. If the so-called through 24-8-206. McFadden-Arlington necessary Road is identify county 24-3-208. Board be should established through specified procedure; roads reso- use, the board of commissioners should lution; terms; limited to not more than proceed complete to institute and the nee- per1 area. essary proceedings purpose. to effect that (a) Notwithstanding W.S. 24-1-102 and proceedings We hold the of 1960and 1963 24-3-127, through 24-8-101 when it finds intervening abandoned conduct of requires, interest so the board parties passage Any of time. may initiate the procedure identification prescriptive right claim of must be made under this act for roads in the proceeding new for the establish- county by adopting a resolution to which ment appellees' as must maps incorporated shall reference damages. claim for general description indicate The case is therefore remanded to the *15 county of all roads in the area described in district court with to directions correct its map the by which shall be unaffected iden- finding appellant right, has no title or tification county under the resolution. No claim in or to the lands and the road road by shall be listed as unaffected right-of-way covered the easement exe- resolution under this act unless it was es- McQuays cuted enjoin and to tablished map under other law. No incor- appellees any from in interfering manner porated into the resolution shall describe with the use thereof. (640) an area of less than forty six hundred Kings participated [T26] and Hansen acres. Road, an effort to vacate Bunker but (b) The board shall not adopt more than addition, was unsuccessful. In we have rec- (1) one identifying county resolution roads ognized filing plat survey of a under this act in county. area of the notes filed in county the office of the clerk (c) No road shall be vacated or altered county serves to establish a although under this act if it currently identified perhaps only that was dicta in that case county and maintained as a road. The county because the party. affected was not a procedure identification Ranch, under Kern this act v. Deerwood 528 P.2d 911- shall not be county used to establish a (Wyo.1974). following tence of such merous fact, county rate and inconsistent tained and are not identified as or believed roads which are seldom [127] The 24-3-201. legislature statutes on this difficulties roads. to be county roads, Purpose finds that due to inaccu- resulting county legislature Recognizing records, subject: used, roads but procedure. from the exis- enacted the there exist legislature not main- the nu- are, tion shall be newspaper identifying county county sive weeks in four county, notice of other law. § 24-3-204. Notice of identification (a) Prior published. was not substantially published previously general adoption (4) roads in successive proposed for four circulation in the established under of a resolution following area in the (4) issues identifica- succes- form: NOTICE OF IDENTIFICATION OF finds it in the best interest of the procedure COUNTY ROADS UNDER W.S. 24-3- create identify county roads, thereby altering 201 THROUGH 24-3-206 vacating these unnecessary county abandoned or roads TO WHOM IT MAY CONCERN: The survey. without Board of Commissioners intends § 24-3-202. Definitions. identify county roads in following (a) (name As used this act: .... county) county areas of If the board identifies roads under this procedure con- identification under act, county designated the roads roads through 24-3- 24-8-201 tained W.S. only action be the in the identification areas de- description of (general 206: Quadmap, county roads within the area identified and map, ie. in the USGS scribed county within the area iden- all other roads etc.) section, range, township, accordingly tified are altered or vacated. township county in the only roads county direct the clerk to The board shall after this identification exist which shall county clerk shall record the iden- as follows: are described procedure entry in tification as an the abstract of (Road name, petition road number conveyance as if it were a lands books number) county rights from the to the lands affect- county un- ed. Roads identified as roads county within the area All other roads act, der this shall not be roads map which are not de- identified unless the has a valid title or re- accordingly vacat- above shall be seribed right-of-way. corded easement resolution for upon adoption of the ed (Michie objections to or All Wyo. through §§ identification. Stat. 24-8-201 of this damage reason claims 1987). Forbes, Yeager v. Also see 2003 WY filed in 134, ¶¶ 31-82, procedure shall be (Wyo.2008). identification writing notice) ed as indicated without *16 objections (b) (30) days The notice .... before day after claims. 12:00 noon publication .... county clerk of this (not roads will be include a reference to the less than [12:00 of the fourth p.m.] on map of vacat- thirty these statutes do not mandate action on the the issues raised herein. The utes, the one that has arisen here. thorize a part of counties and are not determinative of over the well. years, The statutes recited above au our track remedy cases closely interpreting problem existing However, common such as them stat indicating approxi- affected each area principles long played key law have county roads which shall role issues such as this. Two of the most mate location of ac- important always proposed of those are: "Onee a after the identification exist and, tion. road;" where a is created filed board and are deemed waived. by reason of identification for damages; cedure for shail county roads under ed, by shall be section shall date established (30) § 24-3-205. (c) (a) (b) damages days after 12:00 noon [12:00 establish a date not less If If the board initiates identification Objections to or claims for which all filed with the claims after the when considering. not be considered Objections reason of the identification filed; when in subsection objections to and claims fourth notice is damage this and claims for act, are filed under under this act clerk. barred; pro- p.m.] on the than the board (a) damages publish, by the of this thirty was whether Am.Jur.2d here, matter of law. that the district court was and, therefore, doned, Bunker addition, don, entity clear action on cated, statutory procedure §§ 148-189 [429] no or disestablish such a road cannot be that created the road or disestablished genuine Road has not Bunker Road had been created. we For disestablished Highways, (2008). agree these it is still issue of material with the district part such as that reasons, it. Streets, been without See correct that there Fremont abandoned, vacated, governmental vacate, we conclude generally there fact as to court that road as a Bridges County aban- being aban play va 39 CONCLUSION section, the claims shall be considered W.S. 24-3-114 in the same manner as through 24-8-121. provided under mary judgment order is affirmed. [130] The district court's partial sum- dis- dismissing the further trict court's order Effect of identification. 24-3-206. 490 Kings policy and Hansen is also af- "indicates a
claims of the
roads
should be
firmed.
records");
Edwards,
on the
shown
Nixon v.
(1953)
Wyo.
72
264 P.2d
294
BURKE, Justice, concurring
part
(Statutes
1877, 1886, 1919,
dating from
VOIGT,
dissenting part,
with whom
1921, all
thoroughly
demonstrate "how
Justice, joins.
legislature
was convinced that all rural
State
whether the easement for Bunker Road was
purchasers
er,
Bunker Road easement.
sion
court's decision to
part of the
question
Like the
dismissal of the
[131]
with the district court's
Highway
Kings
dismiss their claims
majority,
of whether
I
record,
majority's
for value without notice of the
respectfully
and Hansen on the
Comm'n v.
Kings' and Hansen's
grant summary judgment
and to set for trial
I
agree
they
decision
dissent
I disagree,
Meeker,
with the district
subsequent
were bona fide
affirming
reliance on
question
from that
howev
claims.
Wyo.
deci
Wyoming Legislature
but
public record.
Deerwood
Schuett,
Wyo.
said that
consistently,
roads should be
distinguishable
(Wyo.2003).
ords."); Rocky
Yeager County
taken
which the transfer of title emi-
nent domain to be recorded" in the
record.
Id.
case before us there is at least one requiring
statute the Bunker Road easement
to be recorded.
Wyoming
Leg-
islature enacted this statute:
have been or be declared law to be national, state, territorial or roads Wyoming, rel., STATE of ex WYOMING highways. It shall duty be the of the WORKERS' SAFETY AND COMPEN- several County Commissioners, Boards of DIVISION, Appellee SATION (Respon- respective counties, within their prior to dent). date, said determine what if *18 No. S-10-0098. roads now or heretofore travelled but not officially heretofore established and re- Supreme Court of Wyoming. corded, necessary are important for the roads, permanent use as and to Dec. recorded, cause such roads to be ifor need out, recorded, be laid established and aforesaid,
all roads recorded as shall be
highways. No other high- roads shall be
ways lawfully unless and until established authority. official Wyo. Sess. Laws ch. 1. In
this statute change was amended to
deadline January date to Wyo. 1924. 1921 alteration,
Sess. Laws ch. 1. With that
1. The Meeker decision does not discuss this stat- ute.