Ellingsen v. Franklin County

• Court: Washington Supreme Court
• Writing for the Court: BRACHTENBACH; UTTER, DURHAM, ANDERSEN and GUY, JJ., and CALLOW; SMITH; DORE, C.J., and DOLLIVER
• Citation: Ellingsen v. Franklin County, 117 Wn.2d 24, 810 P.2d 910 (Wash. 1991)
• Decision Date: 23 May 1991
• Docket Number: No. 56580-5
• Parties: Carl ELLINGSEN and Virginia K. Ellingsen, husband and wife; James C. Ellingsen and Tekla B. Ellingsen, husband and wife; Donald A. Ellingsen and Leilani Ellingsen, husband and wife; Bruce A. Ellingsen and Kathleen E. Ellingsen, husband and wife, d/b/a Juniper Road Farms, a partnership, Petitioners, v. FRANKLIN COUNTY, Washington, a municipal corporation, Respondent.

Page 24

117 Wn.2d 24

810 P.2d 910

Carl ELLINGSEN and Virginia K. Ellingsen, husband and wife James C. Ellingsen and Tekla B. Ellingsen, husband and wife Donald A. Ellingsen and Leilani Ellingsen, husband and wife; Bruce A. Ellingsen and Kathleen E. Ellingsen, husband and wife, d/b/a Juniper Road Farms, a partnership, Petitioners, v. FRANKLIN COUNTY, Washington, a municipal corporation, Respondent.

No. 56580-5.

Supreme Court of Washington En Banc.

May 23, 1991.

Witherspoon, Kelley, Davenport & Toole, P.S., Robert H. Lamp, Spokane, Sonderman, Hames & Anderson, Carl G. Sonderman, Richland, for petitioners.

Dennis DeFelice, Franklin County Prosecutor, Robert A. Ellis, Deputy, Yakima, for respondent Franklin County.

Robert W. Sargeant, Seattle, amicus curiae for petitioners on behalf of Washington Land Title Ass'n.

BRACHTENBACH, Justice.

Plaintiff landowners sued Franklin County to quiet title against the County's claim of a road easement over their property. The County appealed the grant of summary judgment to plaintiffs quieting title free of the County's claim. The Court of Appeals reversed and remanded for trial. Ellingsen v. Franklin Cy., 55 Wash.App. 532, 778 P.2d 1072 (1989). We reverse the Court of Appeals and affirm the trial court judgment quieting plaintiffs' title free of Franklin County's claim of a road easement.

The issue is whether a conveyance of an easement gives constructive notice to a bona fide purchaser when that conveyance is "recorded and filed" in the county engineer's office, but is not recorded with the county auditor? The answer is that "recording and filing" in the county engineer's office does not give constructive notice.

The County's easement claim is based upon a 1908 petition to establish a road pursuant to Laws of 1895, ch. 50, §§ 2 and 6, at 82-83, now RCW 36.81.020-.090. That provides for a petition to the county commissioners and a resolution establishing the road after the procedural steps are completed. The County may require the petitioners to obtain deeds and waivers of damages from the affected landowners. RCW 36.81.030. The county commissioners established the road in question by a 1909 resolution. No instrument of conveyance or other evidence of the instrument was recorded with the county auditor under the general recording act, RCW 65.08.

The County's theory is that a statute governing the county engineer's office provides a separate recording system for conveyances of county roads. The statute in effect at the time of the 1908 petition for establishment of a road was based on Laws of 1907, ch. 160, § 4. The present statute is essentially the same so our reference is to RCW 36.80.040.

The office of county engineer shall be an office of record; the county road engineer shall record and file in his office, all matters concerning the public roads, highways, bridges, ditches, or other surveys of his county, with the original papers, documents, petitions, surveys, repairs, and other papers, in order to have the complete history of any such road, highway, bridge, ditch, or other survey; and shall number each construction or improvement project.

RCW 36.80.040.

Unless the county engineer's statute avoids the necessity of recording with the county auditor, a conveyance had to be recorded because a governmental entity is required to record appropriate documents. Lind v. Bellingham, 139 Wash. 143, 147, 245 P. 925 (1926).

The County argues that because the statute states that the office of the engineer "shall be an office of record", and that the engineer "shall record and file in his office, all matters concerning the public roads", it necessarily follows that there is constructive notice of documents "recorded and filed" therein. RCW 36.80.040.

There are several reasons why RCW 36.80.040, and its predecessors, do not give constructive notice. First, the statute does not provide that it is intended to give constructive notice. In the absence of such declaration there is no constructive notice. State v. Wingett, 136 Kan. 436, 442, 16 P.2d 486 (1932) quotes the general rule from 46 C.J. 550: " 'The matter of constructive notice from the record is entirely a creation of statute, and no record will operate to give constructive notice unless such effect has been given to it by some statutory provision.' " Likewise, Adams v. Baker, 24 Nev. 162, 168, 51 P. 252 (1897), holds that "[t]he matter of constructive notice is entirely a creature of the statute." ¹

When the Legislature intends that a record give constructive notice it can and does do so in plain terms. The general recording statute in effect at the time of establishment of this road provided that when a document is filed with the county auditor it "shall be notice to the world." Laws of 1897, ch. 5, § 1. Any such intent is totally absent from RCW 36.80.040.

Second, the statute itself contains a statement of its purpose. It requires recording and filing of various documents, even repair orders "in order to have a complete history of any such road, highway, bridge, ditch, or other survey...." RCW 36.80.040. There is no hint of notice to the public.

Third, the fact that the statute provides that the county engineer's office is an office of record does not evidence an intent to provide constructive notice. "A record may be a public record for one purpose and not for another." MacEwan v. Holm, 226 Or. 27, 36, 359 P.2d 413 (1961).

There is good reason to designate the engineer's office as one of record without any implication of constructive notice. At the time of enactment of the engineer's statute, it was the law that the records of a public official were not open to public inspection unless those records were identified by statute as public records. State ex rel. Cook v. Reed, 36 Wash. 638, 640, 79 P. 306 (1905). In a young and largely undeveloped state it is obvious there would be a public interest in having to have access to the engineer's surveys and locations of roads, bridges and ditches.

Our research has disclosed a case remarkably similar. In an inverse condemnation action, State v. Anderson, 241 Ind. 184, 170 N.E.2d 812 (1960), the State claimed an easement for a highway. The landowner claimed it had no constructive notice because the conveyance of the easement to the State was not recorded in the county recorder's office. The State asserted that a statute required the filing of such highway easements only with the state highway commission. The court held that the granting of an easement was within the general recording act requiring the recording of conveyances. Further the court held the purpose of recording acts was to provide a place and method whereby one can ascertain the state of title to real property. "The purpose of the statute applies with no less force to transaction with the state than with individuals." Anderson, at 190, 170 N.E.2d 812.

This court, like the Indiana court in the cited case, has long recognized the clear need for, and purpose of the general recording act. RCW 65.08.

From the beginning, we have held without deviation that a bona fide purchaser of real property may rely upon the record title. In Beckmann v. Ward, 174 Wash. 326, 24 P. (2d) 1091 [ (1933) ], we cited a number of cases, and we have since affirmed that principle on numerous occasions...."

Cunningham v. Norwegian Lutheran Church, 28 Wash.2d 953, 956, 184 P.2d 834 (1947).

Likewise, Kroetch v. Hinnenkamp, 171 Wash. 518, 521-22, 18 P.2d 491 (1933):

It is important that a purchaser of real property ... may rely upon a title which the record shows to be in his grantor, and that he is not required, in the absence of notice [not here present] ... to make inquiry as to the status of the title outside of that shown by the recorded conveyances and the payment of taxes.

(Italics ours.) This clear rule started with Ritchie v. Griffiths, 1 Wash. 429, 25 P. 341 (1890). The origin and history of the recording acts of the various states, including Washington, can be found in 1 R. Patton, Titles § 6 (2d ed. 1957) and 6A R. Powell, Real Property p 904 at 82-8 (1987).

If it were held that a document is constructive notice of its content because it is designated a public record or because the office in which it is filed is an office of record, the consequences would be disastrous to the stability and certainty heretofore provided by recording with the county auditor and the grantor-grantee index required by RCW 65.04. This prediction of chaos is a natural consequence of reading RCW 42.17 which makes an all-inclusive definition of "public record". RCW 42.17.020(26). Such public record is every writing containing information relating to the conduct of government or the performance of any governmental or proprietary function. Such public records must be available for public inspection, with few exceptions. RCW 42.17.260.

The records which are declared to be public records are those of defined state and local agencies including: (1) every state (a) office, (b) department, (c) division, (d) bureau, (e) board, (f) commission, or (g) other state agency, and (2) every local agency, i.e., every (a) county, (b) city, (c) town, (d) municipal corporation, (e) quasi-municipal corporation, or (f) special purpose district or (g) other local public agency. RCW 42.17.020(1).

Under the County's theory all records of these multiple, scattered public offices would impart constructive notice of everything contained in those records because, like the engineer's office, those are public records in public offices. The County acknowledges that RCW 42.17 now governs public records. Brief of Appellant, at 17. To import constructive notice from every piece of paper or computer file in every government office, from the smallest hamlet to the largest state agency, would wreak havoc with the land title system. As a matter of fact, it would render impossible a meaningful title search.

Next we note that the recording statute in effect at the time of...