State ex rel. State Highway Commission v. Meeker

• Decision Date: 13 March 1956
• Docket Number: No. 2715,2715
• Parties: STATE of Wyoming ex rel. STATE HIGHWAY COMMISSION of Wyoming, Plaintiff and Appellant, v. Stanley MEEKER, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 603

294 P.2d 603

75 Wyo. 210

STATE of Wyoming ex rel. STATE HIGHWAY COMMISSION of Wyoming, Plaintiff and Appellant, v. Stanley MEEKER, Defendant and Respondent.

No. 2715.

Supreme Court of Wyoming.

March 13, 1956.

George F. Guy, Atty. Gen., Robert H. McPhillamey, Deputy Atty. Gen., Robert L. Duncan, Sp. Asst. Atty. Gen., for appellant.

Jones & Jones, Wheatland, for respondent.

BLUME, Chief Justice.

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 which, omitting the heading and subscription, is as follows:

'It is hereby agreed and stipulated by and between the parties hereto, acting by and through their respective counsel as follows:

'I

'That on, to wit, June 7, 1950, the Board of County Commissioners of Laramie County, Wyoming, completed a condemnation proceeding to establish a right of way for the State of Wyoming for a highway presently known as Project No. I-FI-233(11), after having theretofore complied in all respects with the then existing provisions of the laws of the State of Wyoming, providing for the establishment of a road, over, upon and across the following described premises:

'All that portion of the E 1/2 E 1/2 of Section 2, T. 19 N., R. 67 W. of the 6th P.M., bounded by parallel lines 300 feet apart, being 150 feet on each side when measured at right angles to the following described center line of highway, and by the prolongation of said parallel lines to the legal boundaries of the above described lands, and by those portions of the legal boundaries intercepted between said parallel lines as prolonged:

'Beginning at a point on the south boundary of said Section 2 from which the southeast corner thereof bears S. 88~ 57' E. a distance of 1123.0 feet; thence N. 16~ 45' E. a distance of 3897.1 feet to a point on the east boundary of said Section 2 from which the northeast corner thereof bears due north a distance of 1568.5 feet.

'Said parcel of land containing 26.8 acres, more or less.

'II

'That on said date, to wit, June 7, 1950, and at all times during and pending the condemnation proceedings hereinabove referred to, one, Nell Fowler was the record title holder of the above described premises, and that the said Nell Fowler did file a claim for damages in the said condemnation proceedings and was subsequently awarded damages in the amount of $1,652.00 by the appraisers appointed in said condemnation proceedings, and said amount was thereafter paid in full to the then record title holder, Nell Fowler, Chugwater, Wyoming.

'III

'That the said road over, upon and across the above described premises was platted in the County Road Book of Laramie County, Wyoming, by placing a plat of said road in said County Road Book with notations recorded thereon of the proceedings of said Board of County Commissioners of Laramie County, Wyoming, in relation to the location and establishment of said road, all in compliance with and as provided for by Section 48-322, Wyoming Compiled Statutes, 1945.'

I. Counsel for the defendant in attemption 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 any portion thereof, whose conveyance shall be first duly recorded.'

66-124. 'The term 'conveyance,' as used in this Act (§§ 66-101-66-134), shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, alienated, mortgaged, or assigned, or by which the title to any real estate may be affected in law or in equity, except wills, leases for a term not exceeding three (3) years, executory contracts for the sale or purchase of lands, and certificates which show that the purchaser has paid the consideration and is entitled to a deed for the lands, and contain a promise or agreement to furnish said deed at some future time.'

The transfer of title by eminent domain is not a conveyance within the meaning of the sections above mentioned. It is a transfer of title in invitum, that is to say, against the consent of the owner. At common law in England, there was no system of registration or recording, and the rule between claimants of the same title was found in the maxim 'prior in tempore potior est in jure,' which means, he who is first in time has the better right. 45 Am.Jur. 435; 23 R.C.L. 170; 2 Merrill on Notice § 921. That is still the law except as abrogated by statute. Thus it is said in 2 Merrill on Notice § 921 as follows:

'So thoroughly has the recording office entered into our legal system that lawyers and judges alike tend to refer to notice by record as though it were a common law principal without reference to the statutes upon which it rests. Yet because the foundation is statutory, and because difference in phraseology may involve variance in interpretation and application, we need to remember constantly that the necessity for recordation, as well as its effect, is a creature of ordinance, and that without the command of our omnisapient representatives in legislature assembled no one is required to place his title upon record in order to preserve it. In a number of instances statutes which merely authorize or permit the recording of particular instruments have been construed not to make such recording essential to the protection of property interests arising thereunder.'

Numerous cases are cited. So it is said in 45 Am.Jur. § 155, p. 515:

'The failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers and encumbrancers.'

That rule is applicable in the case at bar. Until 1953 we had no statute which required the transfer of title by eminent do main to be recorded in the ordinary and regular books of record kept for the transfer of property by conveyances. Hence it is quite clear that the title the State acquired under the condemnation proceedings in 1950 is valid and good against any subsequent purchaser of the same property. The former owner of that property then had nothing further to convey. The trial court herein decided this case immediately after the end of the trial without looking up the authorities and apparently held that the transfer of title under eminent domain proceedings which has not been recorded in the regular and ordinary books kept for the purpose is void as against subsequent innocent purchasers for value. That, as we have seen above, clearly is not the law.

II. We reach the same result by considering this case from other standpoints. The right of eminent domain is an inherent, sovereign power, and can be exercised by the legislature in any manner it sees fit, subject only to the constitutional provision that compensation must be made to the owner. 1 Lewis Eminent Domain § 367. The exercise of that power is, in a case like that before us, legislative in character. 29 C.J.S., Eminent Domain, § 87, p. 878. The legislature itself may exercise that power assuming that no constitutional provisions forbid it to do so directly. 29 C.J.S., Eminent Domain, § 88, p. 880. It may delegate the power as it has done in the case at bar. 29 C.J.S., Eminent Domain, § 89, p. 881. If the legislature had itself condemned the right of way in question, every one including subsequent innocent purchasers would have been compelled to take notice thereof. There is no valid reason why that same rule should not apply to the agent of the legislature. Ample provision for notice has been made. According to § 48-316, W.C.S.1945, notice of the proposed exercise of eminent domain is given to all persons who have or claim to have...