Erick W. Esterholdt of the Erick W. Esterholdt Revocable Trust Dated August 6, 2009, v. Pacificorp, an Or. Corp.

• Decision Date: 22 May 2013
• Docket Number: No. S–12–0164.,S–12–0164.
• Parties: Erick W. ESTERHOLDT as Trustee of the Erick W. Esterholdt Revocable Trust dated August 6, 2009, and Jeanne M. Esterholdt as Trustee of the Jeanne M. Esterholdt Revocable Trust dated August 6, 2009, Appellants (Plaintiffs), v. PACIFICORP, an Oregon corporation, Appellee (Defendant), and Jason Thornock, Appellee (Intervenor).
• Court: Wyoming Supreme Court

301 P.3d 1086

Erick W. ESTERHOLDT as Trustee of the Erick W. Esterholdt Revocable Trust dated August 6, 2009, and Jeanne M. Esterholdt as Trustee of the Jeanne M. Esterholdt Revocable Trust dated August 6, 2009, Appellants (Plaintiffs),
v.
PACIFICORP, an Oregon corporation, Appellee (Defendant),
and
Jason Thornock, Appellee (Intervenor).

No. S–12–0164.

Supreme Court of Wyoming.

May 22, 2013.

[301 P.3d 1087]

Representing Appellants: Sharon M. Rose of The Rose Law Firm, P.C., Evanston, Wyoming.

Representing Appellee PacifiCorp: David G. Ditto of Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellee Jason Thornock: David M. Clark of Worrall & Greear, P.C., Worland, Wyoming.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

VOIGT, Justice.

[¶ 1] The effect of [the Marketable Title Act] on the recording act is astonishing.
Gary B. Conine & Daniel J. Morgan, The Wyoming Marketable Title Act—A Revision of Real Property Law, XVI Land & Water L.Rev. 181, 199 (1981).

[¶ 2] Via a partial summary judgment, the district court held that the Wyoming Marketable Title Act (the Act), Wyo. Stat. Ann. § 34–10–101 et seq. (LexisNexis 2011), validated PacifiCorp's pole line and utility easement across the Esterholdts' property. The Esterholdts had filed an action seeking to have the easement declared invalid because it emanated from a “wild deed.” ¹ Thornock intervened as a potential user of PacifiCorp's power line. Several issues were determined by the district court, but the only issues before this Court in this appeal are based upon the Act. We will affirm.

ISSUES

[¶ 3] 1. Can a “wild deed” be the “root of title” under the Act?

2. Is a “wild deed” an inherent defect in the chain of title?

FACTS ²

[¶ 4] The Esterholdts own certain property in Lincoln County, Wyoming. The property was conveyed by warranty deed in 1946 from Continental Live Stock Company to J.A. Reed, who is Jeanne Esterholdt's grandfather.³ In 1968, Reed conveyed the property to his daughter, Julianne Reed Biggane, and in 2006, the Biggane Trust transferred the property to the Esterholdts.

[¶ 5] Prior to Reed's transfer of the property to his daughter in 1968, a Pole Line Easement across the property was granted to PacifiCorp's predecessor in interest, Utah Power & Light Company. That easement was dated March 1, 1967, and was recorded on July 21, 1967. The controversial feature of the easement grant is that Reed signed it as President of Continental Live Stock Company, rather than in his personal capacity, at a time that Continental Live Stock Company had no interest in the underlying land.

STANDARD OF REVIEW

[¶ 6] Our standard for reviewing the grant of a motion for summary judgment is so well known that we need not repeat it here at length. Suffice it to say that there

[301 P.3d 1088]

are no disputed facts, with the issues being questions of statutory interpretation. “Statutory interpretation is a question of law; therefore, our standard of review is de novo.” Anderson Highway Signs & Supply, Inc. v. Close, 6 P.3d 123, 124 (Wyo.2000).

DISCUSSION

[¶ 7] Before we analyze the Act, a little background about the statutory process for the recording of land conveyances is necessary. First, it is clear that land conveyances are to be recorded only in the office of the county clerk in the county where the conveyed land lies. Wyo. Stat. Ann. § 34–1–118 (LexisNexis 2011). Upon recording, the county clerk is to endorse thereon “the day and hour on which it was filed for record.” Wyo. Stat. Ann. § 34–1–119 (LexisNexis 2011). The failure to record a conveyance makes that conveyance void as against subsequent good faith purchasers who record their own conveyances. Wyo. Stat. Ann. § 34–1–120 (LexisNexis 2011). This most important feature of the recording act—recording as notice to subsequent purchasers—is detailed in Wyo. Stat. Ann. § 34–1–121(a) (LexisNexis 2011):

(a) Each and every deed, mortgage, instrument or conveyance touching any interest in lands, made and recorded, according to the provisions of this chapter, shall be notice to and take precedence of any subsequent purchaser or purchasers from the time of the delivery of any instrument at the office of the county clerk, for record.

[¶ 8] This Court has described Wyoming's recording act as a “race-notice statute.” Condos v. Trapp, 717 P.2d 827, 831–32 (Wyo.1986), different result reached at Condos v. Trapp, 739 P.2d 749 (Wyo.1987). Roughly translated, what that means is that the first person to record his or her deed, whatever the date of the deed, owns the land. It is not a deed's signing, or its delivery, but its recording that gives others notice of its existence. To that extent, race-notice means that the first one to the courthouse wins. This is the legal theory—the foundation of the recording act—that is so profoundly affected by the Act.

[¶ 9] With that introduction, we will quote at length the most pertinent parts of the Act:

§

34–10–101

. Definitions.

(a) As used in this act:

(i) “Marketable record title” means a title of record, as indicated in W.S. 34–10–103 which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in W.S. 34–10–105; [ (emphasis added) ]

....

(v) “Root of title” means that conveyance or other title transaction in the chain of title of a person, purporting to create the interest claimed by the person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty (40) years prior to the time when marketability is being determined. The effective date of the “root of title” is the date on which it was recorded[.] [ (Emphasis added.) ]

§ 34–10–102. Purpose.

This act shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title as described in W.S. 34–10–103, subject only to such limitations as appear in W.S. 34–10–104.⁴ [ (Emphasis added.) ]

§

34–10–103

. Effect of unbroken chain of title; marketable record title.

Any person having the legal capacity to own land in this state, who has an unbroken chain of title of record to any interest in land for forty (40) years or more, shall be deemed to have a marketable record title to such interest subject only to the matters stated in W.S. 34–10–104. A person shall be deemed to have such an unbroken chain of title when the official public

[301 P.3d 1089]

records disclose a conveyance or other title transaction of record not less than forty (40) years at the time the marketability is to be determined, which conveyance or other title transaction purports to create the interest, either in the person claiming the interest, or some other person from whom, by one (1) or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest, so long as nothing appears of record, in either case, purporting to divest the claimant of his purported interest. [ (Emphasis added.) ]

§

34–10–104

. Effect of unbroken chain of title; exceptions.

(a) Marketable record title is subject to:

(i) All interests and defects which are inherent in the chain of record title. However, a general reference in the chain, to easements, use restrictions or other interests created prior to the root of title is not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest; [ (emphasis added) ]

(ii) All interests preserved by the filing of proper notice or by possession by the same owner continuously for a period of forty (40) years or more, in accordance with W.S. 34–10–106;

(iii) The rights of any person arising from prescriptive use or period of adverse possession or user which was in whole or in part subsequent to the effective date of the root of title;

(iv) Any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record is started. However, the recording does not revive or give validity to any interest which has been extinguished prior to the time of the recording by the operation of W.S. 34–10–105;

(v) The exceptions stated in W.S. 34–10–108(a) as to rights of reversioners in leases, as to apparent easements and interests in the nature of easements, as to water rights, as to...