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KING v. BD. OF COUNTY COMMI
Mark Leader's felony convictions made it a federal crime for him to possess a gun, see 18 U.S.C. § 922(g)(1) (2006), but an Indiana law-enforcement officer investigating Leazier for hunting deer illegally caught him shooting a 9mm pistol. The officer informed federal agents, and Leazier was prosecuted under § 922(g)(1). He pleaded guilty and was sentenced to 60 months' imprisonment, 10 months below the bottom of his guidelines range. Leazier filed a notice of appeal, but his appointed lawyer moves to withdraw because he cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Leazier has not responded to counsel's submission. See Cm. R. 51(b). We confine our review to the potential issues identified in counsel's facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). Counsel verified that Leazier does not want his guilty plea set aside and thus appropriately omits possible challenges to the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).
Counsel reports that he searched the record for possible challenges to Leazier's sentence and considers arguing that the district court erred in counting two of his prior convictions as felony crimes of violence, which yielded a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2). Leazier had objected that one of those convictions, for robbery, was reduced to misdemeanor theft, but, as counsel notes, Leazier withdrew that objection after reviewing the written judgment. He thus waived the objection, and so we agree with counsel that an appellate claim would be frivolous. See United States v. Venturella, 585 F.3d 1013, 1019 (7th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1547, 176 L.Ed.2d 139 (2010).
Counsel also considers arguing that Leazier's prison sentence is unreasonably long. But the prison term is below the guidelines range and thus is presumptively reasonable. See United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). No circumstance warrants disregarding that presumption here, so we agree with counsel that it would be frivolous to challenge the reasonableness of Leazier's sentence.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
Our research indicates that the doctrine enunciated in the Freese case has not been altered in Nebraska, and the case of Burkhardt v. Cihlar, 149 Neb. 712, 32 N.W.2d 197, cited by plaintiffs, is authority for the fact that an injunction will not there lie to prevent property owners from maintaining fences across a road since mandamus is a proper remedy.
In passing, it may be noted that statutes in existence at the time of the Freese decision included § 39-103, R.S.Neb.1943:
`The county board has a general supervision over the public roads of the county, with power to establish and maintain them as herein provided, and to see that the laws in relation to them are carried into effect.'
Similar in many respects to our § 24-5, and § 39-116, R.S.Neb.1943:
`After the road has been finally established, the plat of the road must be recorded and platted by the county surveyor in the road plat book of the county with a proper reference to the files in the county clerk's office where the papers relating to the same may be found. The county clerk must record the petition, damage claims, field notes, and all other papers relating to the road. The clerk must direct the road overseers to have the same opened and worked; but when crops have been planted or sowed before the road is finally established, the opening thereof shall be delayed until the crop is harvested.'
Although the provision in this statute regarding the opening and working of the road is perhaps more obligatory in nature than the corresponding provision in § 24-66, W.S.1957, the distinction is not of importance under these circumstances in view of the rule stated in People ex rel. Brokaw v. Commissioners of Highways, 130 Ill. 482, 22 N.E. 596, 598, 6 L.R.A. 161, and approved by this court in Burnham Hotel Co. v. City of Cheyenne, 30 Wyo. 458, 222 P. 1:
`* * * The word `may' in a statute will be construed to mean `shall' whenever the rights of the public or of third persons depend upon the exercise of the power of the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be exercised. * * *'
Since the Nebraska and Wyoming statutes are substantially similar in many respects, the doctrine enunciated in the Freese case is persuasive.
The contention which the board here makes that it does not know where the established road is fails to convince because the surveyor who purported to show the obscurities did not employ all of the recorded data. Moreover, the order of the trial court must be construed in the light of the undisputed rule applicable in situations relating to the maintenance of public highways, i.e., mandamus is recognized as a proper remedy to compel public officers to take care of and keep in repair public highways only when the exercise is so apparent and obvious that the refusal to act is the result of a determination not to discharge a plain duty. See 34 Am.Jur. Mandamus § 193; 55 C.J.S. Mandamus § 177; and Annotation, 46 A.L.R. 257. Thereunder, the obligation to work the road depends upon the exercise of sound discretion by the board, considering the best interests of Fremont County as a whole, taking into consideration the extent of the road's anticipated use, its importance in relation to other roads, the practicability of maintenance, and the availability of county finances for that purpose. Had the board which established the road in 1921 or any successor considered the highway impractical or without benefit to the public, there was clear authority for alteration or vacation, § 24-43, W.S.1957.
Plaintiffs did not plead that any road existed by prescription and specifically disclaimed any such position in the argument here. Therefore, the trial court did not purport to try title to any property but merely ordered the board to take steps regarding the road which had been established. Defendants' contentions regarding the error of the court in this regard are without merit. Likewise, defendants' argument that there was a failure to demand performance is invalid because the testimony is clear that plaintiffs at different times consulted with the board and requested action to be taken for the removal of the obstructions. This demand was sufficient.
From what we have said, it follows that the order of the trial court must be affirmed. Subsequent interpretations of such order shall be in accord with the views herein expressed.
[¶ 25] In the case Board of County Comm'rs v. White, 547 P.2d 1195, 1198-1201 (Wyo. 1976), we held:
The trial court was in error, however, in holding that appellant had `no legal or equitable right, title or interest' in or to the lands covered by that instrument entitled `Right-of-Way Easement' executed by Lee E. and Loretta Irene McQuay on June 23, 1965, and recorded in the office of the county clerk June 24, 1965, which conveyed an easement to Carbon County. Since the McQuays were the then owners of the lands across which this easement was granted, the Board of County Commissioners of Carbon County (having accepted and recorded the same) had no right or authority to reconvey this right-of-way or to surrender the public's right thereunder by virtue of the quitclaim deed dated June 4, 1968. It seems evident that the traveling public has a vested right to the use of public roads, and earlier this court recognized such right in the public and that a road could not be vacated except by official act of the board of county commissioners, Board of Com'rs of Sheridan County v. Patrick, 18 Wyo. 130, 104 P. 531, 532, rehearing denied [ 18 Wyo. 130] 107 P. 748. Although the board is given very general powers to manage and control county roads, § 24-5, W.S.1957, this must be exercised in a lawful manner and the statutes governing the actions of the board with reference thereto must be construed in pari materia. Section 24-43, W.S.1957, has since its enactment provided the procedure `for the establishment, vacation or alteration' of county roads, and the significant portion thereof is as follows:
`* * * The course and the point of termination of said road to be established, altered or vacated, as the case may be, and thereafter following out the provisions of article 2, chapter 52, Wyoming Revised Statutes, 1931, not inconsistent therewith.' (Emphasis supplied.)
Section 24-52, W.S.1957, C.1967, was included in Art. 2, Ch. 52 of the 1931 Revised Statutes therein mentioned and is the principal procedural statute contained therein. Although this section itself omits any reference to vacation, any such proposed vacation must proceed with proper notice to those interested, including the traveling public in this instance. This court has earlier suggested that the provisions of this section be utilized to alter or vacate such roads, Board of County Commissioners of County of Fremont v. State, Wyo., 369 P.2d 537, 542. In the instant case once there was a dedication to the public use by the McQuays' grant of an easement, its acceptance and recording by this board, and general use by the public, this road had been established.
We consider the case of Board of County Commissioners of County of Fremont v. State, Wyo., 369 P.2d 537, quite persuasive in this matter; and although it involved a mandamus application, in that case the court held that absent any proper vacation a writ would lie to compel the county commissioners to keep an established road open and remove from the right-of-way any fences or obstructions. There is, however, other abundant authority applicable to this case, as exemplified by the annotations appearing in 175 A.L.R. 760, and particularly pp. 762 and 765, which set out the rule as follows:
`While some limitations to its application are to be found, the rule appears to be quite general that where the procedure for the vacation, discontinuance or alteration of a public street or highway by direct action of public authorities is prescribed by statute, it is necessary to adhere to such procedure in order that the vacation or alteration may be effective; such a result may not be accomplished by contract (see infra, § 3) nor are the public authorities precluded by principles of estoppel from denying the termination of the existence, or alteration, of the public way in the absence of substantial compliance with the statutory procedure. This is evidenced by the many cases in which it is stated, either expressly or by strong implication, that such procedure is exclusive, or that it must be strictly followed.' (p. 762)
`Applying the rule that the procedure prescribed by statute for vacating, discontinuing, or relocating streets or highways must be substantially followed in order to terminate the existence, or change the route, of a public way, the courts in a number of cases have held or recognized that the execution of a contract or agreement contemplating such a termination or change was ineffectual to obtain such a result, where the statute had not been complied with.' (p. 765)
See also 39 C.J.S. Highways, §§ 117 and 118, pp. 1053-54.
A case bearing considerable similarity to our instant problem is San Diego County v. California, Water Telephone Co., 30 Cal.2d 817, 186 P.2d 124, 175 A.L.R. 747, involving an action by the county to enjoin the flooding of a county road because of impounding of water in a reservoir. The defendant claimed, and it was a fact, that the county had entered into agreements with the defendant whereby the defendants granted temporary rights-of-way to the county for roads to circumvent the area to be flooded and the county waived any damages to it resulting from the flooding. The court, 186 P.2d at 128-129, determined that the cases are uniform that:
`* * * if the Legislature has provided a method by which a county or city may abandon or vacate roads, that method is exclusive. (Citing cases.) An analogous line of decisions holds that a municipality must follow the statutory procedure prescribed for the sale of public property, and an attempt to dispose of the property by contract will not be enforced. (Citing cases.) * * * Specifically, it has been held that an agreement by local officials to abandon, vacate, or sell a road is void. (Citing cases.)
The California court held that the county was not estopped by its agreements and the doctrine of estoppel cannot be invoked where the statutory procedure is the measure of the power to act, particularly where it would operate to defeat the effective operation of a policy adopted to protect the public. The various statutory procedures exist to protect citizens and taxpayers from the loss of its property.
Another case of interest is Ercanbrack v. Judd, Utah, 524 P.2d 595. There the county commissioners entered upon their records the fact that an established county road was abandoned and gave permission to a landowner to put up a notice that the road was closed. The landowner did so and placed a gate and lock to prevent access. Under very similar statutes that court summarized succinctly the rule, 524 P.2d at 597:
`Since there was no notice given to either the abutting landowners or the general public, the motion of the commissioner as approved was and is a nullity, and the public road will continue to be such until it is abandoned in accordance with the statutes.'
We hold that the agreements of June 4, 1968, and May 25, 1971, are null and void as an attempt to vacate an established county road by methods other than those by statute provided. We further hold that any deed to the McQuay lands, executed by the county commissioners to the appellees, is of no force and effect.
There is little force in appellant's last contention because the record definitely shows that when White in 1968 determined to build a reservoir which would flood certain portions of the road, a part of which at least lay within the boundaries of the right-of-way easement, he made a proposal to the board of commissioners that for a term of not to exceed four years or until Interstate 80 be constructed the county could build a road around the water which would extend over the then county road at a mutually agreeable location. The board accepted such proposal on June 4, 1968.
On May 25, 1971, in contemplation of the expiration of the earlier permission, Bryan White again submitted to the commissioners a proposal, reciting among other things that:
`* * * It is understood and agreed that said Interstate 80 has now been constructed and the heretofore right-of-way easement for road purposes has terminated. That by reason of said termination the undersigned, Bryan White, has closed said right-of-way and road to said public at large. That the undersigned Bryan White does hereby agree to reinstate said right-of-way easement for road purposes only across the hereinafter described lands until project SC-CSM-6-13 (McFadden-Arlington Road) in Carbon County, Wyoming, is completed or until January 1, 1974, whichever period of time is shorter. In consideration thereof, the undersigned, agrees to open said road forthwith so that Carbon County, Wyoming, can enter and make certain improvements to said road for the benefit of the traveling public. It is agreed upon the part of Carbon County, Wyoming, that any and all improvements to said road shall revert to and become the property of the land owner upon the termination of this right-of-way easement as described aforesaid. And it is further agreed that the instrument executed June 4, 1968 by the parties hereto is made a part hereof and a photo copy of the same is attached to this instrument. * * *'
It is upon this basis that appellant has asserted its third claim, which falls from its own weight by its clear recognition of the temporary status thereof and indicates quite the contrary to appellant's contentions. The temporary status of this arrangement was also recognized in the testimony of Korkow, a road supervisor employed by the Carbon County Road and Bridge Department. It is to be remembered, however, we do not find that these agreements in any manner operate to deprive the county of its claim and interest in and to the lands covered by the original McQuay easement for public use. We are unable to understand why appellant has since 1960 temporized in this matter and failed to complete any proper proceedings which would establish this as a public road. If the so-called McFadden-Arlington Road is necessary and should be established for the public use, the board of commissioners should proceed to institute and complete the necessary proceedings to effect that purpose. We hold the proceedings of 1960 and 1963 abandoned by the intervening conduct of the parties and the passage of time. Any claim of prescriptive right must be made in any new proceeding for the establishment of the road, as must the appellees' claim for damages.
The case is therefore remanded to the district court with directions to correct its finding that appellant has no right, title or claim in or to the lands and the road covered by the right-of-way easement executed by the McQuays and to enjoin the appellees from in any manner interfering with the public use thereof.
[¶ 26] Kings and Hansen participated in an effort to vacate Bunker Road, but that was unsuccessful. In addition, we have recognized that the filing of a plat and survey notes filed in the office of the county clerk serves to establish a county road, although that was perhaps only dicta in that case because the affected county was not a party. Kern v. Deerwood Ranch, 528 P.2d 910, 911-12 (Wyo. 1974).
[¶ 27] In 1987, the legislature enacted the following statutes on this subject:
§ 24-3-201. Purpose of procedure.
The legislature finds that due to inaccurate and inconsistent records, there exist roads which are seldom used, not maintained and are not identified as or believed by the public to be county roads but are, in fact, county roads. Recognizing the numerous difficulties resulting from the existence of such county roads, the legislature finds it in the best interest of the public to create a procedure to identify county roads, thereby altering and vacating these abandoned or unnecessary county roads without survey.
§ 24-3-202. Definitions.
(a) As used in this act:
(i) "Board" means the board of county commissioners of any county;
(ii) "This act" means W.S. 24-3-201 through 24-3-206.
§ 24-3-203. Board may identify county roads through specified procedure; resolution; terms; limited to not more than 1 per area.
(a) Notwithstanding W.S. 24-1-102 and 24-3-101 through 24-3-127, when it finds the public interest so requires, the board may initiate the identification procedure under this act for county roads in the county by adopting a resolution to which maps shall be incorporated by reference which shall indicate a general description of all county roads in the area described in the map which shall be unaffected by identification under the resolution. No county road shall be listed as unaffected by a resolution under this act unless it was established under other law. No map incorporated into the resolution shall describe an area of less than six hundred forty (640) acres.
(b) The board shall not adopt more than one (1) resolution identifying county roads under this act in any area of the county.
(c) No road shall be vacated or altered under this act if it is currently identified and maintained as a county road. The identification procedure under this act shall not be used to establish a county road which was not previously established under other law.
§ 24-3-204. Notice of identification to be published.
(a) Prior to adoption of a resolution identifying county roads in any area in the county, notice of the proposed identification shall be published for four (4) successive weeks in four (4) successive issues in a newspaper of general circulation in the county in substantially the following form:
NOTICE OF IDENTIFICATION OF COUNTY ROADS UNDER W.S. 24-3-201 THROUGH 24-3-206
TO WHOM IT MAY CONCERN: The Board of County Commissioners intends to identify county roads in the following areas of. . . . (name of county) county under the identification procedure contained in W.S. 24-3-201 through 24-3-206: (general description of areas described in the map, i.e. USGS Quad map, section, township, range, etc.)
The only county roads in the township which shall exist after this identification procedure are described as follows:
(Road name, road number or petition number)
All other county roads within the area identified in the map which are not described above shall be accordingly vacated upon adoption of the resolution for identification. All objections to or claims for damage by reason of this identification procedure shall be filed in writing with the county clerk of this county before 12:00 noon [12:00 p.m.] on the. . . . day of. . . . (not less than thirty (30) days after publication of the fourth notice) or the county roads will be vacated as indicated without reference to the objections or claims.
(b) The notice shall include a map of each area affected indicating the approximate location of county roads which shall exist after the proposed identification action.
§ 24-3-205. Objections and claims for damages; when filed; when barred; procedure for considering.
(a) If the board initiates identification of county roads under this act, the board shall establish a date not less than thirty (30) days after the fourth notice is published, by which all objections to and claims for damages by reason of the identification shall be filed with the county clerk.
(b) Objections to or claims for damages by reason of identification under this act filed after 12:00 noon [12:00 p.m.] on the date established in subsection (a) of this section shall not be considered by the board and are deemed waived.
(c) If claims for damage are filed under this section, the claims shall be considered in the same manner as provided under W.S. 24-3-114 through 24-3-121.
§ 24-3-206. Effect of identification.
If the board identifies roads under this act, the roads designated as county roads in the identification action shall be the only county roads within the area identified and all other county roads within the area identified are accordingly altered or vacated. The board shall direct the county clerk to and the county clerk shall record the identification as an entry in the abstract of lands books as if it were a conveyance of rights from the county to the lands affected. Roads identified as county roads under this act, shall not be county roads unless the county has a valid title or recorded easement to the right-of-way.
Wyo. Stat. §§ 24-3-201 through 206 (Michie 1987). Also see Yeager v. Forbes, 2003 WY 134, ¶¶ 31-32, 78 P.3d 241, 255 (Wyo. 2003).
[¶ 28] The statutes recited above authorize a county to remedy a problem such as the one that has arisen here. However, these statutes do not mandate action on the part of counties and are not determinative of the issues raised herein. The existing statutes, as well as our cases interpreting them over the years, track closely with common law principles that have long played a key role in issues such as this. Two of the most important of those are: "Once a road, always a road;" and, where a road is created by a statutory procedure such as that in play here, such a road cannot be abandoned, vacated, or disestablished without there being clear action on the part of the governmental entity that created the road to vacate, abandon, or disestablish it. See generally 39 Am.Jur.2d Highways, Streets, and Bridges §§ 148-189 (2008).
[¶ 29] For these reasons, we conclude that the district court was correct that there was no genuine issue of material fact as to whether Bunker Road had been created. In addition, we agree with the district court that Bunker Road has not been vacated, abandoned, or disestablished by Fremont County and, therefore, it is still a county road as a matter of law.
CONCLUSION
[¶ 30] The district court's partial summary judgment order is affirmed. The district court's order dismissing the further claims of the Kings and Hansen is also affirmed.
BURKE, Justice, concurring in part and dissenting in part, with whom VOIGT, Justice, joins.
[¶ 31] I respectfully dissent from that part of the majority's decision affirming the dismissal of the Kings' and Hansen's claims. Like the majority, I agree with the district court's decision to grant summary judgment to the Kings and Hansen on the question of whether the easement for Bunker Road was of public record, and to set for trial the question of whether they were bona fide purchasers for value without notice of the Bunker Road easement. I disagree, however, with the district court's subsequent decision to dismiss their claims in reliance on State Highway Comm'n v. Meeker, 75 Wyo. 210, 294 P.2d 603 (Wyo. 1956).
[¶ 32] Mr. Meeker challenged the county's ownership of a highway right-of-way across his property on the basis that there was "no instrument of record in the office of the county clerk showing the highway." Id. at 215, 294 P.2d at 604. The right-of-way had been acquired through eminent domain, however, and the Court found "no statute which required the transfer of title by eminent domain to be recorded" in the public record. Id. at 218, 294 P.2d at 605. The Court said that "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." Id. "Hence," the Court wrote, "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." Id. Because Bunker Road had been established through eminent domain, the district court applied the ruling of the Meeker case and dismissed the Kings' and Hansen's claims.
[¶ 33] Meeker detours from a long line of Wyoming cases emphasizing that county road easements must be placed on the public record. George W. Condon Co. v. Board of County Comm'rs of Natrona County, 56 Wyo. 38, 54, 103 P.2d 401, 407 (1940) (statute "indicates a policy that roads should be shown on the records"); Nixon v. Edwards, 72 Wyo. 274, 293, 264 P.2d 287, 294 (1953) (Statutes dating from 1877, 1886, 1919, and 1921, all demonstrate "how thoroughly the legislature was convinced that all rural public roads should be shown on the public records."); Rocky Mountain Sheep Co. v. Board of County Comm'rs of Carbon County, 73 Wyo. 11, 269 P.2d 314 (1954); Ruby v. Schuett, 360 P.2d 170 (Wyo. 1961); Kern v. Deerwood Ranch, 528 P.2d 910 (Wyo. 1974); Yeager v. Forbes, 2003 WY 134, 78 P.3d 241 (Wyo. 2003). Each of these cases is factually distinguishable from the case before us now, but taken together, they establish that the Wyoming Legislature and this Court have consistently, with the exception of Meeker, said that county roads must be placed on the public record.
[¶ 34] This policy extends not to county roads only, but to all real property conveyances. "Public policy requires that subsequent purchasers be able to rely on the title shown in public records." Grose v. Sauvageau, 942 P.2d 398, 403 (Wyo. 1997). Applying Meeker to the case at hand, however, means that neither the Kings nor Hansen can rely on their title as shown in the Fremont County Clerk's property records. That seriously undermines "the purpose of our recording statutes, which entitle one to rely on public records and determine whether or not a certain property is subject to liens, prior encumbrances or other outstanding claims." Wyoming Dep't of Revenue Taxation-Excise Tax Div. v. First Wyoming Bank, N.A.-Kemmerer, 718 P.2d 31, 35 (Wyo. 1986).
[¶ 35] The Court in Meeker indicated that the proceedings of the Board of County Commissioners gave Mr. Meeker constructive notice of the Commissioners' decision to acquire the highway right-of-way. As stated in a droll but persuasive argument offered by Hansen, if the ruling in Meeker is controlling in this case, then
every conveyance of land would have to be accompanied by a review of all proceedings of the county commissioners back to 1890. With the greatest respect to the important and critical functions performed by each board of county commissioners, the inordinate cost and agonizing boredom of such an exercise is readily apparent.
[¶ 36] Because of its anomalous nature and impracticable result, the decision in Meeker should be limited to its peculiar facts. By the time of trial in the Meeker case, "construction of the highway was commenced and . . . substantially completed." Meeker, 75 Wyo. at 214, 294 P.2d at 604. That is not true of Bunker Road. In addition, Mr. Meeker "was in possession of the land in question as lessee during all of the time the eminent domain proceedings were taking place and must have had notice thereof." Id. at 219, 294 P.2d at 606. Hansen and the Kings were not in possession of the land in question in 1913 when the County Commissioners undertook to establish Bunker Road.
[¶ 37] More significantly, Meeker is distinguishable on legal grounds. That decision rested on the Court's finding "no statute which required the transfer of title by eminent domain to be recorded" in the public record. Id. at 218, 294 P.2d at 605. In the case before us now, there is at least one statute requiring the Bunker Road easement to be recorded. In 1919, the Wyoming Legislature enacted this statute:
On and after January 1st, 1922, all roads within this State shall be highways, which have been or may be declared by law to be national, state, territorial or county roads or highways. It shall be the duty of the several Boards of County Commissioners, within their respective counties, prior to said date, to determine what if any such roads now or heretofore travelled but not heretofore officially established and recorded, are necessary or important for the public use as permanent roads, and to cause such roads to be recorded, or if need be laid out, established and recorded, and all roads recorded as aforesaid, shall be highways. No other roads shall be highways unless and until lawfully established as such by official authority.
1919 Wyo. Sess. Laws ch. 112, § 1. In 1921, this statute was amended to change the deadline date to January 1, 1924. 1921 Wyo. Sess. Laws ch. 100, § 1. With that alteration, the statute remains in effect today. Wyo. Stat. Ann. § 24-1-101(a) (LexisNexis 2009). The County Commissioners undertook to establish Bunker Road in 1913, but failed to record it. This statute imposed upon them the duty of rectifying that failure. Notably, this statute makes no distinction between roads acquired by eminent domain and those acquired by other means. Because this statute required the Bunker Road easement to be recorded, the ruling in Meeker is not controlling here.
The Meeker decision does not discuss this statute.
[¶ 38] Accordingly, I would reverse the district court's decision to dismiss the claims raised by the Kings and Hansen. I would remand to the district court with instructions to proceed to trial on the question of whether the Kings and Hansen are bona fide subsequent purchasers for value who took title to their properties without notice of the Bunker Road easement.
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