Golden Spike Heritage Foundation v. Montgomery

OCR transcription for search; preserved printed pages are authoritative

2024 UT App 179
THE UTAH COURT OF APPEALS
GOLDEN SPIKE HERITAGE FOUNDATION, Appellant, V. CHAD MONTGOMERY, Appellee.
Opinion No. 20230377-CA Filed December 5, 2024
First District Court, Brigham City Department The Honorable Brandon J. Maynard No. 220100008
Zane S. Froerer and Nathan G. S. Jensen, Attorneys for Appellant
Barton H. Kunz II, Attorney for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.
LUTHY, Judge:
I1 Golden Spike Heritage Foundation (Golden Spike) sued Chad Montgomery, the Box Elder County Recorder/Surveyor (Montgomery),1 as well as various landowners. Golden Spike's suit sought to resolve title disputes between itself and the various
1. Although Montgomery was sued in his official capacity, we refer to him by name rather than by his title because Golden Spike's action is a petition for extraordinary relief "in the nature of mandamus" under rule 65B(d) of the Utah Rules of Civil Procedure, which form of action "is personal, in that it is directed against the particular officer rather than the office." Indian Village Trading Post, Inc. v. Bench, 929 P.2d 367, 370 (Utah Ct. App. 1996).

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landowners. It also alleged that Montgomery had failed to
perform his statutory duty to maintain accurate plat maps and
records and that he had refused to correct errors related to Golden
Spike’s 	interests 	that 	had 	been 	brought 	to 	his 	attention.
Accordingly, 	Golden 	Spike 	petitioned 	the 	district 	court 	for
extraordinary relief in the form of an order directing Montgomery
to perform his duties.
¶2 	The 	district 	court 	dismissed 	Golden 	Spike’s 	petition
against Montgomery with prejudice after determining that the
claims therein were barred by the requirement that a petitioner
for extraordinary relief show that “no other plain, speedy and
adequate remedy is available,” Utah R. Civ. P. 65B(a), and by the
statute immunizing county recorders from actions for injuries
caused by errors in tract indexes and other instruments, see Utah
Code § 17-21-6(5)(e). Golden Spike appeals this dismissal.
¶3 	We reverse the dismissal of Golden Spike’s claims for an
order directing Montgomery to accurately depict on the Box Elder
County (the County) ownership plats Golden Spike’s record title
to particular land. We affirm the dismissal of Golden Spike’s
claims for an order directing Montgomery to mitigate the legal
effects of an allegedly erroneous property description included in
a 1939 tax deed prepared by the then County recorder. And we
remand the matter for further proceedings consistent with this
opinion.
BACKGROUND2
The Railroad Right-of-Ways
¶4 	By an act of the United States Congress dated July 1, 1862,
the Union Pacific Railroad (Union Pacific) received fee title to a
2. Because we are reviewing a motion to dismiss, “we accept the
factual allegations in the [petition] as true and recite the facts
(continued…)

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400-foot-wide right-of-way3 running in a generally east-west
direction through parts of the County (the Railroad ROW), for the
purpose of completing the Transcontinental Railroad. At some
point thereafter, the Southern Pacific Transportation Company
(Southern Pacific) obtained title to the portion of the Railroad
ROW west of the north-south centerline of Section 30, Township
10 North, Range 3 West, Salt Lake Base and Meridian4 (the
Western ROW). Then in April 1992, Southern Pacific transferred
the 	Western 	ROW 	to 	the 	United 	States 	Bureau 	of 	Land
Management (the BLM) via a recorded quitclaim deed.
¶5 	Union Pacific retained title to the portion of the Railroad
ROW that runs east of the north-south centerline of Section 30 as
accordingly.” Pead v. Ephraim City, 2020 UT App 113, n.1, 473 P.3d
175, cert. denied, 481 P.3d 1042 (Utah 2021). We also take as true
the information contained in copies of various County ownership
plats attached to Golden Spike’s petition as exhibits to its expert’s
report. See generally Rawcliffe v. Anciaux, 2017 UT 72, ¶ 28 n.16, 416
P.3d 362 (explaining that when a document is attached to a
pleading it becomes “part of the pleading” and the court “may
review it on a motion to dismiss without converting the motion
into a motion for summary judgment”). We include at the end of
this opinion a copy of the plat most relevant to this appeal—the
one for Section 30, Township 10 North, Range 3 West, Salt Lake
Base and Meridian.
3. The term “right-of-way” ordinarily denotes an easement. See
Chournos v. D’Agnillo, 642 P.2d 710, 712 (Utah 1982) (adopting the
rule that when used in a conveyance, “the words ‘right of way’ . . .
denote an easement or servitude rather than an interest in fee
simple” unless the instrument “clearly indicates” otherwise). But
that is not the meaning intended here. As noted, Congress
conveyed the railroad right-of-way to Union Pacific in fee. See Act
of July 1, 1862, ch. 120, 12 Stat. 489.
4. The survey sections referenced in this opinion are all part of
Township 10 North, Range 3 West, Salt Lake Base and Meridian.

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well as through Sections 27‒29 and 33‒36 (the Eastern ROW) until
2000. In June 2000, Union Pacific transferred the Eastern ROW via
a 	recorded 	quitclaim 	deed 	to 	Golden 	Spike, 	“a 	non-profit
organization that has received approval and funding from the
United States Congress to build and operate an historical re-
creation of the Transcontinental Railroad as it once operated in
[the] 	County, 	using 	the 	land 	on 	which 	the 	historical
Transcontinental Railroad was originally built.”
The Disputed Acreage
¶6 	The Eastern ROW is bordered by various separately owned
parcels. In 1934, the owner of an adjacent parcel to the south of
the Eastern ROW as it crosses Section 30 (the Adjacent Parcel)
drafted a warranty deed for that parcel “with a description that
used imprecise terminology to exclude the Eastern ROW as a
remainder.” In 1939, the then County recorder prepared a tax
deed for the Adjacent Parcel “based on a misunderstanding” of
the imprecise terminology in the 1934 deed. As a result, the 1939
tax deed
called out a metes and bounds [description] for the
[Adjacent Parcel] on the mistaken assumption that
the southern boundary of the Eastern ROW was 50
feet south of the center line of [the] Eastern ROW—
possibly marked at that time by a fence—when the
correct southern boundary was 200 feet south of the
Eastern ROW center line (i.e., 150 feet south of the
50-foot line).
The 1939 deed “thus mistakenly failed to exclude the southern-
most 150 feet of the Eastern ROW.” At the time, this mistake “was
relatively benign” because the description was used “only to
describe ‘remainders’ (i.e., property to be excluded from a sale).”
However, in 1944, the same mistaken description was used in a
decree of distribution of a probate estate to convey the Adjacent
Parcel. Because of the mistaken description, the decree indicated

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a conveyance of the Adjacent Parcel as though it contained 150
feet’s worth of the Eastern ROW (the Disputed Acreage).
¶7 	Following 	the 	1944 	conveyance, 	the 	Adjacent 	Parcel,
including the Disputed Acreage, “was conveyed and subdivided
several more times until 2019.” In 2019 and thereafter, what was
left of the Adjacent Parcel, which still included the Disputed
Acreage, was conveyed several additional times and further
subdivided. On September 19, 2019, it was conveyed to Colton
Rasmussen. On September 27, 2019, Rasmussen conveyed it to
Rasmussen A&D LLC (the LLC). The LLC then subdivided the
Adjacent Parcel and on December 18, 2020, conveyed the resulting
western tract (including a corresponding portion of the Disputed
Acreage) to Jeremy Clyde Nelson. Finally, between September
2019 and April 2022, the LLC “subdivided and conveyed what
was left of its parcel until it was left with” only the eastern portion
of the Disputed Acreage. Thus, today, the western portion of the
Disputed Acreage is claimed by Nelson and the eastern portion of
the Disputed Acreage is claimed by the LLC, with Golden Spike
claiming an ownership interest in all of the Disputed Acreage
superior to both Nelson’s and the LLC’s interests.
The County Ownership Plats
¶8 	By statute, each county recorder in Utah is required to
“prepare and keep ownership plats drawn to a convenient scale,
which show the record owners of each tract of land in the county,
together with the dimensions of the tract.” Utah Code § 17-21-
21(1). The County’s ownership plats contain some but not all of
the current ownership and dimension information related to the
Western ROW, the Eastern ROW, and the Disputed Acreage.
¶9 	Specifically, the plat for Section 30 identifies the BLM as the
owner of both the Western ROW and the Eastern ROW on that
plat. The plats for Sections 27‒29 and 33‒36 do not indicate that
Golden Spike is the owner of the Eastern ROW across those plats.
Instead, the Eastern ROW is variously designated on those plats
as 	“OLD 	R.R. 	RIGHT-A-WAY,” 	“U.P. 	RR,” 	“C.P. 	RR,”

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“RAILROAD 	RIGHT 	OF 	WAY,” 	“C.P.RR 	RIGHT-A-WAY,”
“RAILROAD RIGHT-OF-WAY,” and “OLD C.P.RR RIGHT-A-
WAY.” The plat for Section 36 states that Santa Fe Pacific Realty
Corp is the owner of most of the Eastern ROW on that plat and
that Bear River Valley Co-op owns a narrow strip of the Eastern
ROW on that plat.
¶10 	Regarding dimensions, Golden Spike alleges that “[t]he
Eastern ROW is incorrectly depicted on the County plat maps as
having dimensions that vary from the 400-foot width expressly
provided by the [c]ongressional [right-of-way] [g]rant.” The plat
for the southwest quarter of Section 28 contains a line depicting
the center of the railway, but it contains no right-of-way lines and
no designation of the right-of-way’s width. The plat for the whole
of Section 28 includes right-of-way lines but no designation of the
width of the right-of-way, and the right-of-way may not be drawn
to a scale that reflects a 400-foot width. Golden Spike alleges that
the plat for Section 33 “should show a small section of the [Eastern
ROW] in the northeast corner but none is shown.” On the plat for
Section 34, the right-of-way “appears to be plotted at 400 feet
wide[,] but the labeling on the plat is difficult to read.” The plat
for Section 35 contains no designation of the width of the right-of-
way, but based on the scale at which it is depicted, it “appears to
be . . . approximately 80 to 100 feet wide.” The plat for Section 36
indicates that the Eastern ROW is “300 feet in total width.”
¶11 	As for the Disputed Acreage, the plat for Section 30
indicates that the western portion of the Disputed Acreage is
owned by Nelson with an assigned parcel number of 04-074-0020
and that the eastern portion is owned by the LLC with an assigned
parcel number of 04-074-0021. The plat for Section 30 contains
diagonal hash marks across the Disputed Acreage, along with a
notation that the Disputed Acreage is subject to a “CONFLICT.”
The Lawsuit
¶12 	At some point after recording its deed to the Eastern ROW
in June 2000, Golden Spike examined the County ownership plats

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and other land records and identified “various errors” and
approached Montgomery about them. Montgomery “refused to
engage in any . . . discussion” and would not “take any action to
correct [the] errors.” Thus, in January 2022, Golden Spike filed a
Complaint and Request for Writ of Mandamus (the Complaint) in
district court. Golden Spike named as defendants Montgomery,
Rasmussen, the LLC, and any unknown persons “who may claim
an interest in [Golden Spike’s] real property.” Golden Spike
alleged claims for quiet title (against all of the defendants),
slander of title (against Montgomery and Rasmussen), breach of
fiduciary duty (against Rasmussen), and a writ of mandamus
(against Montgomery).
The Motion to Dismiss and the New Petition
¶13 	In March 2022, Montgomery filed a motion to dismiss. He
sought dismissal of the slander of title claim against him because
Golden Spike had “not filed the notice of claim required by the
Governmental Immunity Act of Utah.” He sought dismissal of
Golden Spike’s mandamus claim on two grounds: first, that
“common-law mandamus claims like [Golden Spike’s] have been
abrogated” and, second, that Golden Spike “has other plain,
speedy, and adequate remedies.”
¶14 	In August 2022, before the court ruled on Montgomery’s
motion 	to 	dismiss, 	Golden 	Spike 	filed 	a 	new 	Petition 	for
Extraordinary Mandamus Relief (the New Petition). The parties
and the court agreed to construe the New Petition as a motion for
leave to amend the Complaint. Montgomery initially appeared to
waive 	any 	argument 	regarding 	the 	motion’s 	timeliness 	but
reserved the right to challenge the motion on the ground that the
New Petition could not survive a motion to dismiss and, thus, that
replacing 	the 	mandamus 	claim 	in 	the 	Complaint 	with 	the
mandamus claim in the New Petition would be futile. The court
then 	invited 	the 	parties 	to 	brief 	the 	issue 	of 	whether 	the
mandamus claim in the New Petition could survive a motion to
dismiss.

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20230377-CA 	8 	2024 UT App 179
¶15 	In the New Petition, Golden Spike indicated that it was
requesting extraordinary mandamus relief not under the common
law, but under rule 65B(d)(2)(B) of the Utah Rules of Civil
Procedure, which permits “[a]ppropriate relief . . . where [a] . . .
person has failed to perform an act required by law as a duty of
office.” In support of this request, Golden Spike again alleged
errors in the “County records relating to [its] title to the Eastern
ROW [that] were caused by [Montgomery] and his predecessors
in office failing to perform their official statutory dut[ies].”
Golden Spike again alleged that it had asked Montgomery “to
fulfill his statutory duty to correct the mistakes” but that he
“continued to refuse, demanding [instead] that [Golden Spike]
first bring a court order requiring him to do so.” Golden Spike
then identified the following “errors,” together with the corrective
orders it sought from the court:
Claim 1
ERROR: [Golden Spike’s] Vesting Deed . . . , by
which [Union Pacific] conveyed to [Golden Spike]
fee title to the Eastern ROW, is not reflected on the
current plat map. Specifically, the plats depicting
the entire Eastern ROW fail to identify [Golden
Spike] as the title holder or to assign a county Parcel
No. to the Eastern ROW. . . . CORRECTION:
[Montgomery] should correct this error by changing
the 	plat 	map 	(and 	all 	other 	County 	resources
required 	to 	reflect 	the 	true 	chain 	of 	title) 	to
accurately 	reflect 	[Golden 	Spike’s] 	title 	to 	the
Eastern 	ROW 	as identified 	in 	[Golden 	Spike’s]
Vesting Deed.
Claim 2
ERROR: The BLM’s Vesting Deed[,] . . . by which
[Union Pacific’s] successor conveyed to [the] BLM
fee 	title 	to 	the 	Western 	ROW[,] 	is 	incorrectly
reflected on the current plat map, which shows [the]

Golden Spike v. Montgomery
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BLM’s title to the Western ROW extending east of
the Section 30 center line into the Eastern ROW.
CORRECTION: [Montgomery] should correct this
error by changing the plat map (and all other
County resources required to reflect the true chain
of title) to accurately reflect [the] BLM’s title as
including only the Western ROW.
Claim 3
ERROR: The [1939 mistaken description of the
Adjacent Parcel] is an error resulting from the
internal practices of the [County] Recorder’s Office,
and 	all 	conveyances 	of 	title 	to 	the 	[Disputed]
Acreage have been void—without a connection to
the true root title held by [Union Pacific], clouding
[Golden 	Spike’s] 	title 	to 	the 	Eastern 	ROW.
CORRECTION: [Montgomery] should correct this
error by taking all action available to mitigate the
effects of the County’s contribution to [Golden
Spike’s] clouded title, including the following:
a. 	[Montgomery] should change the plat
map 	(and 	all 	other 	County 	resources
required to reflect the true chain of title)
to identify [Golden Spike] as holding title
to the [Disputed] Acreage.
b. 	[Montgomery] 	should 	take 	all 	steps
necessary 	to 	cause 	the 	[County]
Commission to retire Parcel No. 04-074-
0021 from the tax system.
c. 	[Montgomery] 	should 	take 	all 	steps
necessary to cause Parcel No. 04-074-0020
to be abandoned and/or retired.

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Claim 4
ERROR: The Eastern ROW is incorrectly depicted
on the [County] plat maps as having dimensions
that 	vary 	from 	the 	continuous 	400-foot 	width
expressly provided in the [c]ongressional [right-of-
way] 	[g]rant. 	CORRECTION: 	[Montgomery]
should correct this error by revising the [County]
plat maps to reflect the correct dimensions of the
Eastern ROW.
¶16 	Montgomery submitted a supplemental memorandum in
which he argued that if the New Petition is viewed as an
amendment to the Complaint, because it was filed “without
stipulation or leave of [c]ourt” more than twenty-one days after
service of the Complaint and more than twenty-one days after
service of Montgomery’s motion to dismiss, it was “improper”
and “should be dismissed or struck.” See Utah R. Civ. P. 15(a)
(stating that “[a] party may amend its pleading once as a matter
of course within . . . 21 days after serving it” or within “21 days
after service of a motion under Rule 12(b)” and that “[i]n all other
cases, a party may amend its pleading only with the court’s
permission or the opposing party’s written consent”).
¶17 	Montgomery further argued that, even if deemed to be a
motion to amend the Complaint, the New Petition “would still fail
because it fails to show that other plain, speedy, and adequate
relief is unavailable.” He reasoned that the relevant question is
“whether there is some alternative way” for Golden Spike to
achieve its desired outcome and that Golden Spike’s “complaint
alleging quiet title and slander of title exposes two alternatives: If
[Golden Spike] prevails on either claim, the result will be an order
it can record, which the recorder will record and by law index.”
Montgomery argued that “[t]his alternative route to the same
remedy 	renders 	the 	extraordinary 	relief 	of 	mandamus
unavailable.” Finally, Montgomery contended that if the New
Petition is viewed as a motion to amend, it should be “denied as
futile” because the claim for extraordinary relief in the New

Golden Spike v. Montgomery
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Petition is barred by Utah Code section 17-21-6(5)(e), which states,
“A person may not bring an action against a recorder for injuries
or damages suffered as a result of information contained in an
instrument recorded in a tract index or other index that is required
by 	this 	section 	despite 	errors, 	omissions, 	or 	defects 	in 	the
instrument.”5
The District Court’s Order
¶18 	The district court held a hearing on Montgomery’s motion
to dismiss and the parties’ supplemental briefing. Then in March
2023, 	it 	issued 	an 	order 	granting 	Montgomery’s 	motion 	to
dismiss. The court dismissed Golden Spike’s slander of title claim
against Montgomery without prejudice, concluding that the court
lacked subject matter jurisdiction over the claim “because the
required notice of claim was not provided.” The court dismissed
Golden Spike’s claim for mandamus relief with prejudice. It
reasoned that “even if [Golden Spike’s] mandamus claim is
considered amended by the New Petition,” it must be dismissed
because (1) Golden Spike “fail[ed] to show that no other plain,
speedy, and adequate remedy is available” and (2) “the petition
for writ is prohibited by Utah Code section 17-21-6[].”As to the
first ground, the court agreed with Montgomery that a petitioner
for extraordinary relief has a pleading burden to “show[] that
there is no other plain, speedy, and adequate remedy available,”
and it determined that Golden Spike’s allegations did not meet
that burden. Regarding the second ground, the court explained,
“It appears to the court that [Golden Spike] brings its mandamus
claim to address an alleged injury[] and that it is therefore
prohibited under section 17-21-6[].”
5. When this matter was before the district court, this provision
was contained in Utah Code section 17-21-6(3)(e). See Utah Code
§ 17-21-6(3)(e) (2023). Because the language of this provision was
not altered when it was renumbered, we cite the current version
of the statute.

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¶19 	As to Montgomery’s argument that if the New Petition was
construed as an amendment to the Complaint it should be denied
on the additional ground that it was filed without stipulation or
leave of the court more than twenty-one days after service of the
Complaint and more than twenty-one days after service of
Montgomery’s 	motion 	to 	dismiss, 	the 	court 	stated 	that 	it
“reject[ed] 	Montgomery’s 	arguments 	regarding 	the 	New
Petition’s untimeliness and lack of leave or agreement.” But it also
did not affirmatively grant Golden Spike leave to amend the
Complaint.
¶20 	After the court granted Montgomery’s motion to dismiss,
Golden Spike sought and obtained an order certifying the district
court’s order of dismissal of its claims against Montgomery as
final pursuant to rule 54(b) of the Utah Rules of Civil Procedure,
which allowed Golden Spike to appeal that dismissal while still
pursuing its claims against the other defendants in the district
court. Golden Spike then filed a timely notice of appeal.
ISSUE AND STANDARD OF REVIEW
¶21 	On appeal, Golden Spike does not challenge the dismissal
of its slander of title claim against Montgomery. Nor does it
challenge the dismissal of its claim for mandamus relief as pled in
the Complaint. Instead, Golden Spike appeals the district court’s
decision to dismiss its mandamus claim even if that claim is
considered amended by the New Petition. Thus, for practical
purposes, Golden Spike appeals the dismissal of the mandamus
claim as pled in the New Petition. “Because a trial court’s grant or
denial of a motion to dismiss is a question of law, the standard of
review is correctness. This standard of review grants no deference
to the decision of the district court.” Moulding Invs., LLC v. Box
Elder County, 2024 UT App 23, ¶ 21, 545 P.3d 781 (cleaned up).

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ANALYSIS
¶22 	We begin by outlining the general framework for our
analysis. In its New Petition, Golden Spike alleges a list of “errors”
by Montgomery, together with a slate of corresponding mandates
that it asks to be issued to correct those errors. The alleged errors
and corresponding requested mandates can be divided into two
groups.
¶23 	The first group is related to Montgomery’s statutory duty
to “prepare and keep ownership plats drawn to a convenient
scale, which show the record owners of each tract of land in the
[C]ounty, together with the dimensions of the tract.” Utah Code
§ 17-21-21(1). Golden Spike alleges that Montgomery has failed to
comply with this duty of his office by not accurately depicting the
Eastern ROW and not accurately depicting Golden Spike’s record
title to the Eastern ROW on the County ownership plats. To
address these alleged errors, Golden Spike requests a set of
mandates directing Montgomery to correct the ownership plats so
that they accurately depict Golden Spike’s record title to the
Eastern ROW.
¶24 	The second group of alleged errors and corresponding
requested mandates is related to the notion that Montgomery has
a duty to correct errors in the instruments he records, particularly
if those errors are the product of action taken by a predecessor
County recorder. In this regard, Golden Spike asserts that the
allegedly erroneous legal description appearing in the 1939 tax
deed 	for 	the 	Adjacent 	Parcel 	“result[ed] 	from 	the 	internal
practices 	of 	the 	[County] 	Recorder’s 	Office” 	and 	that 	“all
[subsequent] conveyances of title to the [Disputed] Acreage have
been void—without a connection to the true root title held by
[Union Pacific], [thus] clouding [Golden Spike’s] title to the
Eastern ROW.” In connection with these allegations, Golden
Spike requests a set of mandates directing Montgomery to change
the ownership plats “and all other County resources required to
reflect the true chain of title” so that they depict no conflicting
claims to the Disputed Acreage.

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20230377-CA 	14 	2024 UT App 179
¶25 	In its ruling on Montgomery’s motion to dismiss, the
district court did not distinguish between the two groups of
alleged errors and requested mandates. In the analysis that
follows, we do. We first address Golden Spike’s first group of
alleged errors and requested mandates—the group aimed at
obtaining an accurate depiction on the County ownership plats of
Golden Spike’s record title to the Eastern ROW. As to this portion
of Golden Spike’s claim for extraordinary relief, we reverse the
decision of the district court and remand the matter for further
proceedings. We then address Golden Spike’s second group of
alleged 	errors 	and 	corresponding 	requested 	mandates—the
group aimed at, among other things, omitting the depiction of any
competing claims to the Disputed Acreage on the ownership plats
and, thus, apparently establishing Golden Spike as the sole legal
title holder to the Disputed Acreage. As to this portion of Golden
Spike’s claim for extraordinary relief, we affirm the decision of the
district court, although we do so on grounds different from those
relied on by the district court. See generally Bailey v. Bayles, 2002
UT 58, ¶ 20, 52 P.3d 1158 (“[A]n appellate court may affirm the
judgment appealed from if it is sustainable on any legal ground
or theory apparent on the record.”).
I. Mandates to Accurately Depict Golden Spike’s Record Title
¶26 	Golden Spike petitioned for extraordinary relief under rule
65B(d) of the Utah Rules of Civil Procedure. “[R]ule 65B(d) is the
equivalent of a common law petition for a writ of mandamus and
provides the equivalent remedy.” Hogs R Us v. Town of Fairfield,
2009 UT 21, ¶ 11, 207 P.3d 1221. “The common law writ of
mandamus was designed to compel a person to perform a legal
duty incumbent on him by virtue of his office or as required by
law.” Id. (cleaned up). A rule 65B(d) petitioner may receive relief
by establishing (1) that it is “aggrieved or [its] interests are
threatened” by a person’s “fail[ure] to perform an act required by
law as a duty of office” and (2) that “no other plain, speedy and
adequate remedy is available.” Utah R. Civ. P. 65B(a), (d).

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¶27 	Golden Spike alleges that it holds record title to the Eastern
ROW and that the whole of the Eastern ROW is 400 feet wide. It
further alleges that Montgomery is the County recorder and that,
by virtue of that office, he is required to “prepare and keep
ownership plats drawn to a convenient scale, which show the
record owners of each tract of land in the [C]ounty, together with
the dimensions of the tract.” Utah Code § 17-21-21(1). Golden
Spike then alleges that Montgomery has failed to comply with this
duty of his office by (1) not depicting Golden Spike’s record
ownership of the Eastern ROW in Sections 27‒30 and 33‒36 on the
County ownership plats, (2) incorrectly indicating on the plat for
Section 30 that the BLM is the record owner of the segment of the
Eastern ROW east of the north-south centerline of Section 30, and
(3) incorrectly depicting the width of 	the Eastern ROW as
something other than 400 feet wide in various locations on the
ownership 	plats. 	If 	proved, these 	allegations would 	plainly
establish that Montgomery has failed to perform ministerial acts
that are required of him as a duty of his office.
¶28 	The district court nevertheless concluded that for two
reasons Golden Spike may not seek extraordinary relief to compel
Montgomery to perform the duties of his office. First, the court
concluded that Golden Spike has not adequately alleged the lack
of 	another 	plain, 	speedy, 	and 	adequate 	remedy. 	Second, 	it
concluded that Golden Spike “brings its mandamus claim to
address an alleged injury, and that [the claim] is therefore
prohibited” 	by 	Utah 	law. 	See 	generally 	id. 	§ 	17-21-6(5)(e)
(prohibiting any “action against a recorder for injuries or damages
suffered as a result of information contained in an instrument
recorded in a tract index or other [required] index”). We hold that
these conclusions were in error when it comes to Montgomery’s
alleged failures to accurately depict on the ownership plats
Golden Spike’s record title to the Eastern ROW. We address each
of these conclusions in turn.

Golden Spike v. Montgomery
20230377-CA 	16 	2024 UT App 179
A. 	Plain, Speedy, and Adequate Remedy
¶29 	As to whether Golden Spike has another plain, speedy, and
adequate remedy for Montgomery’s alleged failure to fulfill the
identified duties of his office, our supreme court has long held
that a petition for extraordinary relief in the nature of mandamus
is an appropriate mechanism to compel an officer to perform a
non-discretionary ministerial duty. See, e.g., Hogs R Us, 2009 UT
21, ¶ 11 (“A citizen can seek extraordinary relief to compel an
officer or town officials to perform a duty, a ministerial act or an
administrative act, about which it would have no discretion . . . .”
(cleaned up)); Rose v. Plymouth Town, 173 P.2d 285, 286 (Utah 1946)
(same). We therefore begin with the assumption that when a
petitioner has pled that a public official has failed to perform a
non-discretionary, ministerial duty of his or her office—as Golden
Spike has pled here—the petitioner has no other plain, speedy, or
adequate remedy than to ask the district court to issue a mandate
to the official to perform the duty.
¶30 	Montgomery cites Ogden City v. Adam, 635 P.2d 70 (Utah
1981) 	(per 	curiam), 	for 	the 	proposition 	that 	a 	declaratory
judgment 	action 	provides an 	alternative 	plain, 	speedy, 	and
adequate remedy for compelling a public official to fulfill his or
her statutory duties. In Adam, Ogden City and Weber County had
created a joint building authority “for the purpose of acquiring
the Ben Lomond Hotel and readying it for occupancy as business
offices,” and they approved a bond issue for that purpose. Id. at
71. The city and county “intend[ed] to partially occupy, along
with other tenants, the proposed office building, and to pay
monthly 	rental 	therefor” 	out 	of 	“their 	respective 	general
obligation funds.” Id. However, the city recorder and county clerk
believed that the leases and bond issue were unconstitutional, and
they therefore refused to affix the city and county seals on the
leases. See id. The city and its mayor, the county and the chair of
its board of commissioners, and the building authority and its
president (who was also the chair of the county’s board of
commissioners) petitioned the Utah Supreme Court for “an
extraordinary writ compelling [the city recorder and the county

Golden Spike v. Montgomery
20230377-CA 	17 	2024 UT App 179
clerk] to attest to and affix the seal of Ogden City . . . and Weber
County . . . to [the] lease agreements.” Id. The supreme court
denied the petition on the following grounds:
An extraordinary writ will issue only where no
other plain, speedy and adequate remedy exists. In
the instant case, no such showing has been made.
No facts are stated which reflect the necessity for
immediate relief, nor has there been a showing of
irreparable harm or loss by anyone. Further, it has
not been demonstrated that the remedies available
at law are less than adequate. On the contrary, it
appears that the remedy afforded at law under the
Declaratory Judgment Act is not only adequate, but
appropriate as well, since it would accommodate a
trial and the determination of facts should such
issues arise during the course of the proceedings.
Id. at 71‒72 (cleaned up). Montgomery contends that Adam
requires a holding here that Golden Spike has failed “to plead
adequate facts” to show that it has no other plain, speedy, and
adequate remedy than an extraordinary writ because Golden
Spike could instead pursue a declaratory judgment action against
Montgomery. However, Adam is distinguishable.
¶31 	First, the petition in Adam was filed in the supreme court,
a venue that generally “is not equipped . . . to take evidence.” State
v. Larocco, 649 P.2d 2, 3 (Utah 1982) (per curiam). The Adam court
relied on this fact when it noted that a declaratory judgment
action in district court “would accommodate a trial and the
determination of facts.” 635 P.2d at 72. Here, instead of filing its
petition for extraordinary relief in an appellate court pursuant to
rule 19 of the Utah Rules of Appellate Procedure, Golden Spike
filed its petition in the district court—which is amply equipped to
take evidence and make factual findings—pursuant to rule 65B of
the Utah Rules of Civil Procedure.

Golden Spike v. Montgomery
20230377-CA 	18 	2024 UT App 179
¶32 	Additionally, the substantive issue in Adam was whether a
bond and certain leases were constitutional. In contrast, Golden
Spike’s petition—at least as to the first group of alleged errors and
requested mandates—alleges no constitutional issue but, rather,
the simple failure of a public official to perform his undisputed
statutory duty. And in response to those allegations, Montgomery
asserts no constitutional barrier to his compliance 	with his
statutory duty.
¶33 	Were we to hold that in the circumstances of this case a
declaratory 	judgment 	action 	provides 	a 	plain, 	speedy, 	and
adequate alternative to a rule 65B(d) petition and therefore
precludes such a petition, we would render rule 65B(d) a practical
nullity for obtaining the precise type of relief it has long been
understood to afford. For these reasons, we conclude that Adam is
distinguishable on the grounds noted and that by pleading
Montgomery’s simple failure to perform an undisputed, non-
discretionary, ministerial duty of his office, Golden Spike has
adequately demonstrated the lack of another plain, speedy, and
adequate remedy.
B. 	Prohibition on Actions Against a Recorder for Injuries
¶34 	The district court also concluded that Golden Spike’s
petition is prohibited by Utah Code section 17-21-6(5)(e), which
states that “[a] person may not bring an action against a recorder
for injuries or damages suffered as a result of information
contained in an instrument recorded in a tract index or other
index that is required by this section despite errors, omissions, or
defects in the instrument.” The court’s reasoning on this point is
not extensive, as it stated only, “The court is not persuaded that
[Golden Spike] does not bring its action for an injury. It appears
to the court that [Golden Spike] brings its mandamus claim to
address an alleged injury, and that [the claim] is therefore
prohibited under section 17-21-6[].”
¶35 	But 	at 	least 	as 	to 	Montgomery’s 	alleged 	failure 	to
accurately depict Golden Spike’s record title to the Eastern ROW

Golden Spike v. Montgomery
20230377-CA 	19 	2024 UT App 179
on the County ownership plats, Golden Spike identifies no injury
as a result of Montgomery’s alleged failures. Most notably,
Golden Spike does not claim that Montgomery’s alleged failure to
accurately depict Golden Spike’s record title has resulted in a
cloud on that title or a loss of Golden Spike’s legal title. In fact, in
his arguments to the district court, Montgomery essentially
acknowledged that a claim for extraordinary relief based on a
recorder’s simple failure to comply with a ministerial duty,
without more, is not a claim for injury. After articulating his
section 17-21-6(5)(e) argument, Montgomery conceded that if
Golden Spike were to obtain an order quieting title to the
Disputed Acreage in Golden Spike and “Montgomery refused to
record or index the order or quieting deed”—in other words, if all
that Montgomery did was fail to comply with his ministerial
duties—then a petition for extraordinary relief “might . . . ripen”
and would not be prohibited by section 17-21-6(5)(e). We agree
and hold that an action that alleges nothing more than that a
county recorder has not accurately depicted on the county’s
ownership plats the record title memorialized in a recorded
instrument is not an action for injuries or damages and is therefore
not barred by the cited statute.
C. 	Conclusion
¶36 	For the foregoing reasons, we reverse the district court’s
dismissal of Golden Spike’s petition for extraordinary relief to the
extent 	that 	it 	seeks 	the 	following 	relief 	in 	response 	to 	its
allegations 	that 	Montgomery 	has 	not 	caused 	the 	County
ownership plats to accurately depict the dimensions of the
Eastern ROW and Golden Spike’s record title to it:
• 	an order directing Montgomery to accurately depict on the
County ownership plats Golden Spike’s record title to the
Eastern ROW as identified in Golden Spike’s vesting deed;
• 	an order directing Montgomery to change the County
ownership plats to accurately reflect the BLM’s record title
to only the Western ROW; and

Golden Spike v. Montgomery
20230377-CA 	20 	2024 UT App 179
• 	an order directing Montgomery to change the County
ownership plats to accurately reflect the record width of
the Eastern ROW.6
II. Mandates to Confirm Golden Spike’s Legal Title
¶37 	We now address the portion of Golden Spike’s petition that
rests on the allegation that the County recorder in 1939 employed
an erroneous legal description in a tax deed and the assertion that
Montgomery has a duty to mitigate the legal effects of that alleged
error.
¶38 	In 	its 	petition, 	Golden 	Spike 	alleges 	that 	as 	County
recorder, Montgomery “is custodian of all recorded documents
and records required by law to be recorded” in the County. Utah
Code § 17-21-1(1). It alleges that as the custodian, Montgomery is
required to “protect[] . . . recorded documents and records in [his]
custody.” Id. § 17-21-1(2)(a). And it alleges that Montgomery is
required to “keep a tract index” that “shows a true chain of title
to each tract or parcel.” Id. § 17-21-6(1)(f), (5)(a). From these
statutory duties, Golden Spike extrapolates that Montgomery has
6. We do not hold that every page of a plat book over which a
right-of-way or other parcel passes must contain a dimensional
notation and indication of ownership, so long as the involved
plats taken together clearly and accurately convey the required
information. We likewise decline to impose a standard that allows
for extraordinary relief on the basis that parcel boundaries—
particularly those on hand-drawn plats—are not drawn with
absolute precision and perfectly to scale. If the plats employ “a
convenient scale” and discernably “show the record owners of
each tract of land in the county, together with the dimensions of
the tract,” Utah Code § 17-21-21(1), the recorder has complied
with the statutory mandate. We leave for the district court to
determine whether that standard has been met with regard to the
County plats depicting the Eastern ROW and Golden Spike’s
record title to it.

Golden Spike v. Montgomery
20230377-CA 	21 	2024 UT App 179
the further duty to “maintain and protect the accuracy of the
[recorded] records” themselves.
¶39 	Based 	on 	that 	asserted 	duty, 	Golden 	Spike 	requests
extraordinary 	relief 	in 	the 	form 	of 	mandates 	directing
Montgomery to “correct” the allegedly erroneous inclusion in the
1939 tax deed for the Adjacent Parcel by the then County recorder
by “taking all action available to mitigate the effects of the
County’s contribution to [Golden Spike’s] clouded title.” Of
course, 	the 	perpetuation 	of 	that 	allegedly 	erroneous 	legal
description has resulted in Nelson holding record title to the
western portion of the Disputed Acreage (with an assigned parcel
number of 04-074-0020) and the LLC holding record title to the
eastern portion of the Disputed Acreage (with an assigned parcel
number of 04-074-0021). Thus, Golden Spike specifically asks that
Montgomery be mandated to (1) change, in addition to the plat
map, “all other County resources required to reflect the true chain
of title . . . to identify [Golden Spike] as holding title to the
[Disputed] Acreage,” (2) “take all steps necessary to cause the
[County] Commission to retire Parcel No. 04-074-0021 from the
tax system,” and (3) “take all steps necessary to cause Parcel No.
04-074-0020 to be abandoned and/or retired.” This relief is not
available to Golden Spike under rule 65B(d).
¶40 	As to the first of these requested mandates, it is not clear
what Golden Spike means when it asks that Montgomery be
mandated to change “all other County resources required to
reflect the true chain of title . . . to identify [Golden Spike] as
holding title to the [Disputed] Acreage.” To the extent that Golden
Spike may be requesting a mandate for Montgomery to change
the 	contents 	of 	the 	1939 	tax 	deed 	or 	any 	other 	recorded
instrument, we observe that after “accept[ing] . . . an instrument
entitled to be recorded, [a] recorder may not . . . alter, change,
obliterate, or insert any new matter in any instrument of record.”
Id. § 17-21-17(1)(a). Because this prohibition is unequivocal, it
applies even if the recorder prepared the recorded instrument in
the 	first 	place. 	See 	id. 	It 	also 	applies even 	if 	the 	recorded

Golden Spike v. Montgomery
20230377-CA 	22 	2024 UT App 179
instrument 	contains 	a 	description 	that 	is 	traceable 	to 	an
instrument prepared by the recorder. See id.
¶41 	Moreover, 	a 	county 	recorder’s 	duties 	do 	not 	include
making determinations of legal title, and a county’s ownership
plats are not determinative of who holds legal title. A county
recorder’s duty is to maintain the instruments purporting to
transfer or otherwise affect legal title that have been submitted to
the recorder’s office, see id. § 17-21-1, and to then “prepare and
keep ownership plats . . . which show the record owners of each
tract,” id. § 17-21-21 (emphasis added). The authority to determine
the legal owner in the event of conflicting claims of record title is
given to the courts. See id. § 78B-6-1301 (“A person may bring [a
civil] action against another person to determine rights, interests,
or claims to . . . real property.”); id. § 78A-5-102(1) (“Except as
otherwise provided by the Utah Constitution or by statute, the
district court has original jurisdiction in all matters civil . . . .”).
Thus, where more than one person has recorded an instrument
purporting to grant a currently controlling, present interest to the
same tract of land, until a judicial decree resolving the conflict has
been recorded, it is the recorder’s duty to maintain an ownership
plat that shows the conflicting claims.
¶42 	Golden Spike’s own allegations (and the plat for Section 30)
confirm that Montgomery is complying with his statutory duty to
show conflicting claims of record title to the Disputed Acreage by
noting on the plat for Section 30 a “CONFLICT” between Nelson
and the LLC on the one hand and the holder of record title to the
Eastern ROW on the other. Given the current state of the public
record, Golden Spike simply is not entitled to an order mandating
Montgomery to remove any indication of Nelson’s and the LLC’s
record titles to the Disputed Acreage. Just the opposite is true:
Montgomery’s duty is to show the conflicting claims on the
affected plat until a judicial decree resolving the conflict is
recorded. This is true regardless of whether the relief Golden
Spike requests is sought through a declaratory judgment action or
a petition for extraordinary relief.

Golden Spike v. Montgomery
20230377-CA 	23 	2024 UT App 179
¶43 	Finally, 	Golden 	Spike 	has 	cited 	no 	authority 	for 	or
otherwise adequately briefed its implicit argument that a county
recorder has either the duty or the authority to retire particular
parcels from a county’s tax system or to cause county officials
with authority over the tax system to retire or abandon a parcel.
¶44 	For the foregoing reasons, we affirm the district court’s
dismissal of Golden Spike’s petition for extraordinary relief to the
extent that it seeks the following relief in response to its allegation
that Montgomery has a duty to mitigate the effects of the allegedly
erroneous property description included in the 1939 tax deed for
the Adjacent Property by the then County recorder:
• 	an order directing Montgomery to change the ownership
plats (and all other County resources required to reflect the
true chain of title) to identify only Golden Spike as holding
title to the Disputed Acreage;
• 	an order directing Montgomery to take all steps necessary
to cause the County Commission to retire Parcel No. 04-
074-0021 from the tax system; and
• 	an order directing Montgomery to take all steps necessary
to cause Parcel No. 04-074-0020 to be abandoned and/or
retired.7
7. Broadly speaking, Golden Spike’s goal with the underlying
litigation plainly appears to be to clear its title to the Disputed
Acreage. And because courts are given the authority to quiet title
when there are conflicting claims to a particular parcel, a quiet
title action provides Golden Spike with a plain, speedy, and
adequate avenue for pursuing that broad objective. Thus, the
district court’s dismissal of Golden Spike’s petition on the ground
that Golden Spike has another plain, speedy, and adequate
remedy 	for 	obtaining 	the 	relief 	it 	seeks 	is 	somewhat
understandable. 	However, 	Golden 	Spike’s 	petition 	for
(continued…)

Golden Spike v. Montgomery
20230377-CA 	24 	2024 UT App 179
CONCLUSION
¶45 	We reverse the district court’s dismissal of Golden Spike’s
petition for extraordinary relief to the extent that it seeks an order
directing 	Montgomery 	to 	accurately 	depict 	on 	the 	County
ownership plats Golden Spike’s record title to the Eastern ROW.
We affirm the district court’s dismissal of Golden Spike’s petition
for extraordinary relief to the extent that it seeks an order
directing Montgomery to mitigate the legal effects of the allegedly
erroneous property description included in the 1939 tax deed for
the Adjacent Property. And we remand the matter to the district
court for further proceedings consistent with this opinion.8
mandamus relief does not seek a judicial determination that it
holds sole legal title to the Disputed Acreage; instead, it seeks an
order compelling Montgomery to alter ownership plats and other
County records to eliminate all other parties’ record claims to the
Disputed Acreage. And that is relief to which Golden Spike is not
entitled, regardless of whether it is sought through quiet title or
mandamus proceedings. For this reason, we do not resolve this
appeal on the ground that Golden Spike has another plain,
speedy, and adequate remedy for obtaining the relief it seeks.
8. To the extent that the district court deferred ruling on whether
the New Petition when viewed as a motion to amend the
Complaint should be granted, such a decision may now be made
in the first instance by the district court as part of its further
proceedings.

SECTION_30_TOWNSHIP ION RANGE 3 W_S.L.B.&M.
Book 4 Page_ 74
N
W-
THIS OWNERSHIP PLAT IS FOR REFERENCE PURPOSES ONLY. NO LIABILITY IS ASSUMED FOR ACCURACY OR VARIATIONS WITH THE ACTUAL SURVEY.
SCALE I".400'
PREFIX 04-074 TAX UNIT 05
MAP NUMBER: 04-074
PAGE 3
C
VESTA
FERRY
CLYCE W NELSON ETUX
0001
0004
0003
149.00A
2
USA
JEREMY CANTE PAGE 73 NELSON
PAGE 4
59.50
10021 09146
LLC
1
FLYING MULE SHOE RANCH
0008 96.15
159-42 A
4-
JACOB CHAZLES NELSON ETAL
JEREMY
DDI7
NELSON
7
0014
ODIS
254CM.
30,04 AC
PAGE 3
8