City of Lakewood v. Mavromatis, 90SC67

Decision Date16 September 1991
Docket NumberNo. 90SC67,90SC67
Citation817 P.2d 90
PartiesCITY OF LAKEWOOD, a Municipal Corporation of the State of Colorado, Petitioner, v. William MAVROMATIS, sometimes known as Billy Wilson; and United Bank of Denver, as Trustee for the Estate of Joel Barron, Respondents.
CourtColorado Supreme Court

Gorsuch, Kirgis, Campbell, Walker and Grover, Malcolm M. Murray, Jolene Ver Steeg, Denver, for petitioner.

Notarianni & Notarianni, Aldo G. Notarianni, Denver, for respondents.

Larry E. Lawler, Lakewood, for respondent William Mavromatis.

Veto & Scott, Diane S. Freed, Lakewood, for respondent United Bank of Denver, as Trustee for Estate of Joel Barron.

Don K. Deford, Garfield County Atty., Glenwood Springs, Marion A. Brewer, Gen. Counsel Colorado Counties, Inc., Denver, for amicus curiae Colorado Counties, Inc.

Geoffrey T. Wilson, Gen. Counsel Colorado Mun. League, Denver, for amicus curiae Colorado Mun. League.

Carpenter & Klatskin, P.C., Willis Carpenter, Denver, for amicus curiae Land Title Ass'n of Colorado.

Justice LOHR delivered the Opinion of the Court.

This case involves a dispute between the City of Lakewood ("City") and the respondents, William Mavromatis, a.k.a. Billy Wilson, and the United Bank of Denver as trustee for the estate of Joel Barron (collectively, "landowners") 1 over title to a thirty-foot strip of land along the north side of West Alameda Avenue near Wadsworth Boulevard (the "Tally Ho strip"). 2 The City's claim to the Tally Ho strip is based on a "road petition" pursuant to which the strip was statutorily dedicated as a public highway long before the landowners received a deed to the disputed property. The Jefferson County District Court granted summary judgment for the landowners on the issue of ownership, holding that the landowners acquired the strip in good faith and for value without actual knowledge or constructive notice of the document upon which the City based its claim and therefore were entitled to the protection of Colorado's recording act. 3 The Colorado Court of Appeals affirmed. City of Lakewood v. Mavromatis, 786 P.2d 493 (Colo.App.1989). We granted certiorari to determine whether the manner in which the road petition was deposited and maintained in the county records placed subsequent purchasers on constructive notice of that instrument. We conclude that road petitions are subject to Colorado's recording act, that the road petition at issue was not recorded in the county records within the meaning of that act, and that subsequent purchasers were not placed on constructive notice of the contents of the road petition. We therefore affirm the judgment of the Colorado Court of Appeals.

I.

In 1888, owners of lands including the Tally Ho strip executed a road petition requesting establishment of a public highway through lands that included the Tally Ho strip and giving a right-of-way through such lands to Jefferson County, pursuant to a statutory dedication procedure set forth in § 2972, G.S. (1883). A plat of the proposed road accompanied and was made part of the petition. The board of county commissioners declared the road to be a public highway by endorsement on the petition.

The county clerk placed the petition in a "road book" kept for the specific purpose of maintaining plats showing the location of lands acquired for public highways, and endorsed on the road petition that it was "[f]iled in the office of the County Clerk April 2d, 1888." It was not filed or recorded elsewhere in records maintained in the office of the county clerk and recorder. It was not entered in the reception book or assigned a reception number and was not entered in the grantor and grantee indices. 4 Although the road petition contains a printed sentence that contemplates entry of the date the petition was filed for record, followed by a blank for the signature of the recorder, this portion of the form was not completed. 5 At the time of the commencement of the present proceedings, the road book was maintained in a vault in the basement of the Jefferson County Courthouse and its contents were available to the public on microfilm. The record does not establish where the road book was kept in earlier times. Microfilm was not an available technology when the petition was first received by the county clerk. The City has succeeded to the interests of Jefferson County under the road petition by a series of instruments that we need not detail.

West Alameda Avenue was built at least as early as 1901 across a thirty-foot wide strip of land lying south of and adjoining the Tally Ho strip. The land on which the roadway was built was included in the road petition by which a public highway was created through the Tally Ho strip. This roadway, however, did not occupy any part of the Tally Ho strip before the landowners acquired that property.

The landowners 6 purchased property that included the Tally Ho strip in 1972. In 1986, as part of a plan to widen West Alameda Avenue, the City filed a "Petition in Condemnation" pursuant to section 38-1-105(5), 16A C.R.S. (1982), in Jefferson County District Court seeking a determination of interests in the Tally Ho strip 7 and condemnation of any interests held by the landowners, who were named as defendants. 8 The City took the position that it was the owner 9 of the strip but sought to perfect its title by adjudication or condemnation against claims asserted by the defendants.

The landowners defended on the basis that they acquired title as subsequent bona fide purchasers without notice of the road petition or the claim of the City or its predecessors. They therefore asserted that they took title free from any rights asserted by the City by reason of the protective provisions of Colorado's recording act in effect at the time of execution of the road petition. See § 215, G.S. (1883). 10 The parties filed cross-motions for summary judgment on the issue of ownership of the Tally Ho strip.

The district court found as undisputed facts that the landowners purchased the Tally Ho strip in 1972 in good faith, for value, and without actual notice of a claim by the City or its predecessors in interest. The court held that placing the road petition in the road book did not constitute recording of the document within the meaning of the applicable Colorado recording act, § 215, G.S. (1883). As a result, the court held, the landowners were not put on constructive notice of the road petition by reason of its appearance in the road book. Under the provisions of the 1883 recording act, therefore, the landowners acquired the Tally Ho strip free from any claim by the City. 11 Thereafter, the district court conducted condemnation proceedings and entered final judgment condemning the Tally Ho strip and awarding the landowners just compensation. The City appealed on the issue of ownership, and the Colorado Court of Appeals affirmed. City of Lakewood v. Mavromatis, 786 P.2d 493.

On certiorari review, the City does not contend that the landowners had actual knowledge of the road petition at the time they acquired the Tally Ho strip. The issue before us is whether the landowners had constructive notice of the City's claim at that time. The City bases its constructive notice argument on three grounds. First, it argues that based on the rationale of South Creek Assoc. v. Bixby & Assoc., Inc., 781 P.2d 1027 (Colo.1989), it was not necessary to record the road petition pursuant to the recording act in order to give constructive notice of the creation of a public highway under the statutory dedication procedure. Alternatively, the City contends that the recording requirements in the statute pursuant to which the road petition was executed and accepted supplant the requirements of the recording act and that recording in the road book pursuant to the then-applicable road petition statutes was effective to give constructive notice to third persons. Finally, the City contends that delivery of the road petition to the clerk and recorder was adequate to comply with the recording act notwithstanding that the road petition was not entered in the reception book or the grantor and grantee indices. We are not persuaded by any of the City's arguments.

II.

We consider first the City's argument that the statute providing for creation of public highways by road petition contains its own requirements for recording and that compliance with that statute obviates the necessity to follow recording act procedures in order to give constructive notice of the road petition to subsequent purchasers. We conclude that public highways can be created under the road petition procedure without compliance with the recording act but that such compliance is required to give constructive notice of public highway rights to third persons. We next consider the City's contention that the requirements of the recording act were satisfied. We hold that delivery of the road petition to the county clerk for entry in the road book did not in itself constitute compliance with the applicable recording act in absence of adherence to the requisite procedures, including indexing the instrument in the grantor and grantee indices. In reaching these conclusions we first review the policies of the recording acts and the procedures adopted to implement them, then consider the relevant statutes providing for creation of public highways by petition and the provisions of the applicable recording act, and finally construe the pertinent acts together to resolve the issues presented by this case.

A.

Recording acts have been adopted for purposes including the protection of subsequent purchasers of real property against the risk of prior secret and unknown instruments affecting title to that property. Grynberg v. City of Northglenn, 739 P.2d 230, 238 (Colo.1987); Page v. Fees-Krey, Inc., 617 P.2d 1188, 1192-93 and n. 7 (Colo.1980); Carmack v. Place, 188 Colo. 303, 306, 535 P.2d 197, 199 (1975). "Very...

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