Timberland Resources Inc. v. Vaug

No. 87-90
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
TIMBERLAND RESOURCES, INC.,
a Washington corporation,
Plaintiff and Appellant,
-vs-
DIXIE A. VAUGHT, Clerk and Recorder
of Sanders County, Montana; CLAUDE I.
BURLINGAME, County Attorney, and
SANDERS COUNTY, MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas Law Firm; S. Charles Sprinkle, Libby, Montana
For Respondent:
Recht & Greef; John D. Greef, Hamilton, Montana
Submitted on Briefs: April 30, 1987
Decided: June 23, 1987
Filed:JIjN 2 , 887
*I
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a summary judgment of the
District Court of the Twentieth Judicial District in and for
Sanders County, Montana. The District Court concluded that
Sanders County was estopped from refusing to record certain
deeds although descriptions to the parcels of land did not
meet the requirement of S 76-3-401, MCA, for aliquot part
descriptions. The court required the parcels in question to
be surveyed on resale before the resale deed could be
recorded, however. The court also granted summary judgment
in favor of Sanders County, concluding Timberland was not
entitled to recover damages. Timberland appeals the
condition precedent to recordation of certain deeds and the
summary judgment in favor of Sanders County. We uphold in
part and reverse and remand in part.
The facts are undisputed. In the spring of 1978,
Timberland Resources purchased and began the resale of
contiguous parcels of property, each in excess of twenty
acres, located in Sections 22, 23, and 27 of Township 24
north, Range 32 west, Sanders County, Montana. The parcels
were purchased from Trout Creek Land Company. Quitclaim
deeds from Trout Creek, as grantor, to Timberland, as a
grantee were recorded in 1978 and 1979 in the office of the
Sanders County Clerk and Recorder for each of thirty-five
tracts. By January 1981, thirty-three of these tracts had
been sold by Timberland and a Notice of Purchaser's Interest
for each of the sales was accepted and recorded by the Clerk
and Recorder.
In January 1981, the Sanders County Attorney took the
position that many of the parcels in question had been
recorded in violation of the Montana Subdivision and Platting
Act. An Attorney General's Opinion was sought regarding the
meaning of "aliquot part" in 5 76-3-401, MCA. The county
advised Timberland that when deeds for the remaining parcels
were presented for recording at the completion of the
contract term for which the Notices were recorded, those
tracts which did not meet the requirements of $ 76-3-401,
MCA, would not be recorded without a survey.
Timberland appeals this part of the District Court's
order as well as the summary judgment in favor of Sanders
County denying Timberland any damages that may have resulted
from recision of various earlier contracts. The Court will
consider the following issues:
1. The meaning of "one-thirty-second or larger aliquot
parts of a United States government section," within the
context of 5 76-3-401, MCA;
2. whether Sanders County is estopped from bringing an
action to enjoin future transfers of the parcels in question;
and
3. whether Sanders County is liable to Timberland for
damages because of its refusal to record deeds to the parcels
in question.
The statute in question, S 76-3-401, MCA, provides:
Survey requirements for lands other than
subdivisions. All divisions of land for
sale other than a subdivision after July
1, 1974, into parcels which cannot be
described as one-thirty-second or larger
aliquot parts of a United States
government section or a United States
government lot must be surveyed by or
under the supervision of a registered
land surveyor.
This Court has said:
The requirement of $ 76-3-401, MCA, can
be satisfied if the parcel contains not
less than 20 acres and is an aliquot part
of a government section or lot and if it
is divisible into aliquot parts of a
government section or lot and the parcel
is physically contiguous, even though the
aliquot parts may be located in more than
one government section or lot.
McCarthy v. Timberland Resources (Mont. 1985), 712 P.2d 1292,
1293, 42 St.Rep. 2016, 2018. In other words, so long as the
land in question is not less than twenty contiguous acres and
can be described with reference to United States government
sections it complies with § 76-3-401, MCA.
Section 76-3-402(3), MCA, provides that "division of
sections into aliquot parts ... shall conform to United
States bureau of land management instructions . . . "
Sanders County argues that because Timberland proposes a
twenty acre parcel which lies in two government sections, it
is described by a different scheme than the bureau of land
management instructions, and thus is not an aliquot part
which can be filed without a survey. We reject this argument
for two reasons, however. The crux of the issue is whether
the property is identifiable. "[Dleeds ... must contain an
adequate description of the property to be conveyed." In re
Estate of Verbeek (Wash 1970), 467 P.2d 178, 186; Sparks v.
Douglas County (Wash 1985), 695 P.2d 588, 589.
First, as clearly stated in McCarthy, supra, the
aliquot parts may be located in one or more sections. The
parcel in question lies in two government sections, and does
not conform to the standard shape of a twenty acre aliquot
part. Nonetheless, it can be described with reference to
United States government sections. The description of the
land has not changed since it was divided by Trout Creek,
quitclaimed to Timberland, and the quitclaim deeds were duly
recorded. Division of this land into parcels pursuant to
S 7 0 - 3 - 4 0 1 , MCA, occurred at that time.
"Division of land" means the segregation
of one or more parcels of land from a
larger tract held in single or undivided
ownership by transferring or contracting
to transfer title to or possession of a
portion of the tract or properly filing a
certificate of survey or subdivision plat
establishing the identity of the
segregated parcels pursuant to this
chapter.
Section 76-3-103 (3), MCA. Nor are the parcels subdivisions.
"'Subdivision' means a division of land or land so divided
which creates one or more parcels containing less than 20
acres ... in order that ... the parcels may be sold,
... " Section 76-3-103 (15), MCA.
Second, subsequent transfer of the property did not
meet any exceptions which would cause it to require a survey,
thus precluding the Clerk and Recorder from recording it.
Section 76-3-302, MCA. At the time Trout Creek quitclaimed
the property to Timberland and it was properly recorded,
S 7-4-2613, MCA, the requirements of S 76-3-401, MCA, were
met.
The Court is reluctant to apply the doctrine of
equitable estoppel to governmental entities as a matter of
policy. In general, its application will be looked on with
disfavor and the doctrine will be applied only in exceptional
circumstances or where there is manifest injustice. See
Chennault v. Sager (Mont. 1980), 610 P.2d 173, 176, 37
St.Rep. 857, 860. We agree with the District Court that, "it
would be a manifest injustice ... to require ... a
survey." Sanders County did not require a survey before
accepting notices of real estate contracts for recording. It
cannot now require one prior to accepting for recording a
deed bearing the same description as the Notice. It is too
late for the buyer and the seller to include the costs of a
survey in negotiating the contract sales price. For these
reasons and because we determine Timberland is not in
violation of § 76-3-401, MCA, Sanders County is estopped from
bringing an action to enjoin future transfers of the parcels
in question.
The county is directed to accept and record deeds for
the parcels in question, where the size of the parcel is
twenty acres or more, where the Notice of Purchaser's
Interest for the parcel was accepted and recorded, and the
parcel can be described with reference to United States
government sections. A survey of those parcels on resale is
not necessary in order for the resale deed to be recorded.
We uphold the District Court in its determination that
Timberland is not entitled to damages. In the McCarthy case,
supra, we allowed McCarthy to rescind his contract with
Timberland because Timberland could not deliver marketable
title to McCarthy due to refusal of the Clerk and Recorder to
record the deed. We did not address the legality of the
Clerk and Recorder's action. Clearly, however, among
Timberland's alternatives was to proceed with a survey, or to
bring an action to compel Sanders County to accept the
description. Timberland had the means to preclude rescission
actions, but took no steps toward this end until this action.
It would be unreasonable to award damages under these
circumstances. Thus, Sanders County is entitled to summary
judgment.
We remand this case to the District Court for action
consistent wit.h this opinion.
We concur:
L
ustices