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Towe Farms, Inc. v. Corbett

Supreme Court of Montana

May 30, 2017

TOWE FARMS, INC., and MIDSTATE LAND CORPORATION, Plaintiffs and Appellants,
v.
LINDA CORBETT, Clerk and Recorder of Custer County, Montana, Defendant and Appellee.

          Submitted on Briefs: March 29, 2017

         APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DV 06-62 Honorable Michael B. Hayworth, Presiding Judge

          For Appellants: Thomas E. Towe, Towe, Ball, Mackey, Sommerfeld, Turner, PLLP, Billings, Montana

          For Appellee: Tara Depuy, Attorney at Law, PLLC, Livingston, Montana, Susan B. Swimley, Attorney and Counselor at Law, Bozeman, Montana

          OPINION

          Laurie McKinnon, Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Towe Farms, Inc. (Towe) appeals the Sixteenth Judicial District Court's grant of summary judgment in favor of Custer County's Clerk and Recorder Linda Corbett (Corbett) on two issues:

1. Whether the existence of unrecorded aerial photographs, taken in 1974 and marked to show 40-acre parcels, sufficed to create a "grandfathered" subdivision prior to the enactment of the Montana Subdivision and Platting Act (MSPA) in 1973, and the act's subsequent amendment in 1974.
2.Whether an agreement for the sale of a large tract of land (the Bloch Agreement), which described the tract in terms of smaller parcels and contemplated the future sale of the smaller parcels, constituted a division of land that created segregated parcels sufficient to create a grandfathered subdivision under the MSPA.

         ¶3 We affirm the District Court's ruling.

         ¶4 We review de novo a district court's grant of summary judgment, to determine whether the movant established both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. The district court's findings of fact are reviewed for clear error and its conclusions of law for correctness. LaMere v. Farmers Ins. Exch., 2011 MT 272, ¶ 13, 362 Mont. 379, 265 P.3d 617. Here, neither party presents any genuine issue of material fact. We thus review the District Court's legal conclusions to determine whether they are correct.

         ¶5 The MSPA regulates the creation of subdivisions in order to "promote the public health, safety, and general welfare. . . ." Section 11-3860, RCM (1973). Corbett refused to record certain deeds of sale because the transactions, which were sales of 40-acre parcels, failed to comply with the provisions of the MSPA. Towe argues that the deeds should be recorded because the tract from which the sales are derived is exempt from MSPA regulations as a "grandfathered" subdivision. The basis for Towe's argument is that the 40-acre parcels were larger than what the MSPA regulations covered, either in 1973 when the MSPA regulated 10-acre or less parcels, or after 1974, but prior to 1993, when the MSPA regulated 20-acre parcels. Not until 1993 did the MSPA expand to regulate all parcels less than 160 acres. Since Corbett's contention that the deeds should not be recorded is premised on the fact that they arise from sales of 40-acre parcels, and are thus subject to the MSPA's current regulation of parcels less than 160 acres, Towe's compliance with or exemption from earlier iterations of the law would potentially "grandfather" in the sales for recording, without the need to engage in the MSPA's subdivision review process. Towe's arguments are misplaced, however, as the transactions on which it relies to circumvent the current MSPA provisions are still deficient under prior versions of the statute.

         ¶6 Towe first asserts that in 1974, a surveyor by the name of Compton created aerial photographs of Sun Dial Ranch and drew lines on them denoting 40-acre tracts. Towe argues that we should now consider these marked photographs to be a subdivision of land already in existence prior to the passage of the MSPA, and thus "grandfathered" in and exempt from its provisions. Like the District Court, we will not examine the sufficiency of these photographs to determine whether they constitute a division of land because it is undisputed that neither these photographs nor a concordant certificate of survey were ever recorded. The MSPA, adopted nearly one year prior to these aerial photographs, provided that, "all division of real property made after June 30, 1973 . . . the boundaries or area of which cannot be determined without a survey or trigonometric calculation, must be surveyed by or under the supervision of a registered surveyor; and a certificate of survey . . . must be completed by the surveyor and filed by him in the office of the county clerk and recorder of the county in which the real property lies." Section 11-3862(1), RCM (1973). Under the plain language of § 11-3862(1), RCM (1973), we will not give legal effect to the surveying of a parcel absent evidence of a certificate of survey having been recorded.

         ¶7 Towe then argues that if the Compton survey does not exempt the tract from the MSPA and validate the deeds for recording, the Bloch Agreement will. We disagree, concluding as the District Court did that the Bloch Agreement suffers from similar statutory shortcomings. Although the agreement was signed and properly recorded on December 7, 1984, prior to the MSPA being amended in 1993 to cover the transfer of parcels less than 160 acres, the agreement is nonetheless not a contract for the sale of land that created a division of land with segregated parcels sufficient to meet the definition of "subdivision" under the MSPA. Under the relevant portions of the MSPA in effect in 1984, § 76-3-103(3), MCA (1983), a "[d]ivision 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 a portion of the tract[;]" and a "subdivision" is defined as "a division of land or land so divided which creates one or more parcels containing less than 20 acres[.]" Section 76-3-103(15), MCA (1983). By Towe's admission, the Bloch Agreement did not create parcels containing ...


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