40-26-103 through 40-26-109.

40-26-103 through 40-26-109.

(b) Except as provided in W.S. 34-1-156, any person who, in good faith, delivers or records any instrument pursuant to subsection (a) of this section shall be immune from civil liability. The immunity provided in this subsection shall not be available to any person who:

(i) Represents or attempts to represent that the restrictive covenants pertaining to paragraphs (a)(i) or (ii) of this section, which are void and unenforceable or prohibited by law, are valid and enforceable; or

(ii) Honors or exercises or attempts to honor or exercise restrictive covenants pertaining to paragraphs (a)(i) or (ii) of this section, which are void and unenforceable or prohibited by law.

34-1-155. Process for removing restrictive covenants in violation of law.

(a) In accordance with W.S. 34-1-154, a new instrument removing a restrictive covenant that is in violation of law may be recorded by filing the new instrument with the county clerk for the county in which the real property is located.  (b) A new instrument filed and recorded under this section shall contain all of the following:

(i) The title of the filed and recorded prior instrument to which the new instrument pertains;

(ii) The name and mailing address of the person filing and recording the new instrument;

(iii) The name and mailing address of any owner of record of the real property on whose behalf the new instrument is being filed;

(iv) The legal description of the real property subject to the provisions in violation of law as specified in W.S. 34-1-154(a);

(v) A clear reference to the provisions in the prior instrument that are in violation of law as specified in W.S. 34- 1-154(a) and have been stricken from the new instrument.

(c) Upon receiving a new instrument that complies with the requirements of subsection (b) of this section, the county clerk for the county in which the real property is located shall file and record the new instrument.

34-1-156. Civil action for removing enforceable covenants.

(a) Any person whose real property is subject to, or is benefitted by, a restrictive covenant that was removed under W.S. 34-1-155 and who believes the restrictive covenant is valid, may petition the court having jurisdiction over the property. The petition shall state the grounds upon which relief is requested, and shall be supported by the affidavit of the petitioner or his attorney setting forth a concise statement of the facts upon which the petition is based. The clerk of court shall assign a case number to the petition and obtain from the petitioner a filing fee of thirty-five dollars ($35.00). Upon the filing of the petition the following shall apply:

(i) The court may enter its order, which may be granted ex parte, directing the person who filed and recorded the instrument to appear before the court at a time no earlier than six (6) nor later than fifteen (15) days following the date of service of the petition, and order the person to show cause, if any, why the relief provided in this subsection should not be granted. Service under this section shall be made in accordance with the rules of civil procedure;

(ii) If, following a hearing on the matter the court determines that the restrictive covenant under subsection (a) of this section is valid and enforceable, the court shall issue an order so stating and awarding damages of up to one thousand dollars ($1,000.00) as determined by the court or actual damages, whichever is greater, costs and reasonable attorneys' fees to the petitioner to be paid by the person who filed and recorded the instrument;

(iii) If the court determines that the restrictive covenant is void and unenforceable, the court shall issue an order so stating and shall award costs and reasonable attorneys' fees to the person who filed and recorded the instrument to be paid by the petitioner.

34-1-157. Ownership of fossils and artifacts.

(a) The ownership of any fossil, artifact or non- fossilized animal remains discovered in the strata below the surface lands and waters of the state is vested in the owner of the surface estate, unless otherwise governed by W.S. 7-4-106.

(b) When used in any instrument, the term "minerals" does not include fossils, artifacts or non-fossilized animal remains.

(c) As used in this section:

(i) "Fossil" means any fossilized remains, traces or imprints of organisms, preserved in or on the earth's crust, that are of paleontological interest and that provide information about the history of life on earth, but does not include coal, oil, gas or other hydrocarbons;

(ii) "Artifact" means any material remains of past human life or human activities that are of archaeological interest.

34-1-158. Prescriptive easement for water conveyance.

(a) A prescriptive easement for a water conveyance may be established if a water user has used and maintained a water conveyance under a claim of right for a period of ten (10) years during which the use has been:  (i) Continuous and uninterrupted consistent with the historical and traditional use by the water user of the water conveyance system. A temporary change of use under W.S. 41-3-110 or a cessation of use, so long as the water rights are not abandoned under W.S. 41-3-401, shall not be deemed an interruption under this paragraph;

(ii) Open and notorious; and

(iii) Adverse.

(b) If a water user establishes paragraphs (a)(i) and (ii) of this section, there is a rebuttable presumption that the use has been adverse under paragraph (a)(iii).

(c) The holder of a prescriptive easement for a water conveyance established as provided in subsections (a) and (b) may:

(i) File a notice describing the prescriptive easement consistent with the requirements of W.S. 34-1-141 in the office of the county clerk in which the prescriptive easement or a portion of the easement is located;

(ii) Access, use, maintain and repair the water conveyance located within the easement in accordance with law. Maintenance, as used in this section, shall include the right of the holder of the prescriptive easement to temporarily remove infrastructure in or spanning the water conveyance system provided that:

(A) Before the temporary removal for maintenance purposes of infrastructure that a landowner uses for ingress or egress, the holder of the prescriptive easement shall provide reasonable written notice given the extent and estimated time for maintenance but in no case shall notice be provided less than seventy-two (72) hours before any temporary removal;

(B) Any temporary removal of a landowner's infrastructure for the purpose of water conveyance system maintenance shall be reasonable and minimize any burden on the landowner. The holder of the prescriptive easement for a water conveyance shall replace the landowner's infrastructure in a timely manner in consultation with the landowner.

(d) As used in this section:  (i) "Water conveyance" means a man made canal, ditch, drain ditch or pipeline that conveys water for agricultural purposes including any appurtenant headgates and diversion structures;

(ii) "Water user" means a water user or the water user's predecessor who owns an adjudicated or valid unadjudicated water right being conveyed in a water conveyance.

(e) The width of a prescriptive easement for a water conveyance shall be based on the size of the water conveyance and the volume of water in the water conveyance system and shall:

(i) Be of a reasonable width sufficient to utilize equipment suitable for the operation and maintenance of the water conveyance;

(ii) Be from the center line of the water conveyance system but may vary from each side of the center line to reasonably facilitate the size of equipment, placement of dredge material and the topography that the water conveyance system traverses.

(f) The state engineer's office shall post to its website an informational document regarding legal aspects related to water conveyance easements. This document shall not constitute legal advice. All real estate transactions involving property through which a water conveyance passes through shall include notice of this document.

ARTICLE 2 - UNIFORM CONSERVATION EASEMENT ACT

34-1-201. Short title; definitions.

(a) This article shall be known and may be cited as the "Uniform Conservation Easement Act".

(b) As used in this article, unless the context requires otherwise:

(i) "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archeological or cultural aspects of real property;

(ii) "Holder" means:

(A) A governmental body empowered to hold an interest in real property under the laws of this state or the United States but does not include the Wyoming board of land commissioners after the effective date of 2008 House Enrolled Act 15; or

(B) A charitable corporation, charitable association or charitable trust, a primary purpose or power of which includes retaining or protecting the natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archeological or cultural aspects of real property.

(iii) "Third-party right of enforcement" means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder;

(iv) "This act" means W.S. 34-1-201 through 34-1-207.

34-1-202. Creation; conveyance; acceptance and duration.

(a) Except as otherwise provided in this article, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements. The provisions of W.S. 34-1-141 shall apply to this article.

(b) No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.

(c) Except as provided by W.S. 34-1-203(b), a conservation easement is unlimited in duration unless the instrument creating the easement provides otherwise.  (d) An interest in real property and any interest in minerals including any leasehold interests are not impaired in any way by a conservation easement unless the owners of those interests consent to the conservation easement.

(e) This act shall not alter the law of Wyoming regarding the primacy of the mineral estate and any easement created hereunder shall not limit the right of a mineral owner or his lessee to reasonable use of the surface for the purpose of mineral exploration and production unless the owners and lessees of the entire mineral estate and geologic sequestration right are a party to the conservation easement or consent to the conservation easement.

34-1-203. Judicial action; modification; termination.

(a) An action affecting a conservation easement may be brought by:

(i) An owner of an interest in the real property burdened by the conservation easement;

(ii) A holder of the conservation easement;

(iii) A person having third-party rights of enforcement, as named in the instrument creating the conservation easement.

(b) This article shall not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.

34-1-204. Validity.

(a) A conservation easement is valid even though:

(i) It is not appurtenant to an interest in real property;

(ii) It can be or has been assigned to another holder;

(iii) It is not of a character that has been recognized traditionally at common law;

(iv) It imposes a negative burden;  (v) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;

(vi) The benefit does not touch or concern the real property; or

(vii) There is no privity of estate or of contract.

34-1-205. Applicability.

(a) This article shall apply to any interest created after its effective date which complies with the requirements of this article, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement or otherwise.

(b) This article shall apply to any interest created before its effective date if it would have been enforceable had it been created after the effective date of this article unless retroactive application contravenes the constitution or laws of this state or the United States.

(c) This article does not invalidate any interest whether designated as a conservation or preservation easement, a covenant, equitable servitude, restriction, easement or other designation that is enforceable under any other law of this state.

34-1-206. Uniformity of application and construction.

This article shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to the subject of the article among the states enacting it.

34-1-207. Eminent domain; taxation.

(a) Conservation easements shall be subject to the state's power of eminent domain in the same manner as any other real property interest.

(b) The real property tax imposed upon real property subject to a conservation easement shall not be less than the amount of the ad valorem tax for the property had it been levied and assessed based upon the taxable value of agricultural land of similar productive use and value under W.S. 39-13-101(a)(iii) and 39-13-103(b)(x).  ARTICLE 3 - HISTORIC PRESERVATION RIGHTS

34-1-301. Definitions.

(a) As used in this article:

(i) "Historic preservation right" means a nonpossessory property right stated in the form of a restriction, easement, covenant or condition or, with or without limitation, in any other form in any deed, will, plat or in any other instrument executed by or on behalf of the owner, or in any condemnation order of taking, appropriate to preserving the significant physical character and visual characteristics of structures having architectural, historical or cultural significance, together with any associated real property, whether or not improved, as determined eligible to the national register of historic places by the Wyoming state historic preservation office;

(ii) "Owner" means any person possessing a fee simple title to real property and any person possessing any other interest in the property including a contract purchaser, a lessee and a tenant.

34-1-302. Conveyance; acceptance by grantee.

(a) An owner may convey a historic preservation right in real property to the state, any city, town, county, joint powers board or other political subdivision of the state or to a nonprofit corporation or trust whose primary purpose includes the preservation of buildings, structures or sites of historical, architectural or cultural significance.

(b) The conveyance of a historic preservation right pursuant to this section shall not take effect until the conveyance is accepted by the grantee. Acceptance of the right may be conditioned upon any requirements imposed by the grantee including compensation by the grantor for the management of the right.

(c) Any conveyance of a historic preservation right shall bind only the interest of the grantor. Any conveyance of a historic preservation right by a person with limited interest in the property shall only be valid to the extent it does not violate the provisions of the instrument under which such grantor holds his limited interest.  34-1-303. Historic preservation rights specified; release, transfer or assignment restricted.

(a) An instrument conveying or reserving a historic preservation right may require, prohibit, condition, limit or control any of the following with respect to the grantor or grantee:

(i) Access or public visitation;

(ii) Affirmative acts of alteration, restoration, rehabilitation, repair, maintenance, investigation, documentation, payment of taxes or compliance with law or local ordinance or resolution;

(iii) Conditions of operation or use;

(iv) Acts detrimental to preservation;

(v) Any other acts or uses relating to the preservation of structures or improvements or appurtenances.

(b) A historic preservation right:

(i) Includes any preservation restriction imposed by agency rule or regulation or by local ordinance or resolution and is not unenforceable because of lack of privity of estate or contract, lack of benefit to specific property or because of the benefit assigned;

(ii) Shall be enforced in accordance with its terms and transferred, recorded and indexed in the same manner as fee simple interests in real property subject only to limitations provided in this article;

(iii) May be transferred or assigned only to the state, any city, town, county, joint powers board or other political subdivision of the state or to a nonprofit corporation or trust;

(iv) Shall not affect a restriction, easement, covenant, third party right of enforcement or condition otherwise valid under law nor diminish the acquisition of real property and the historic preservation right by purchase, gift, grant, eminent domain or otherwise in accordance with law or the lawful use of the property for public purposes.  34-1-304. Enforcement by civil action.

The state, any city, town, county, joint powers board or other political subdivision of the state or any nonprofit corporation or trust holding a historic preservation right may enforce the right by initiating a civil action seeking injunctive relief, specific performance or damages.

ARTICLE 4 - Uniform Real Property Electronic Recording Act

34-1-401. Short title.

This act may be cited as the "Uniform Real Property Electronic Recording Act".

34-1-402. Definitions.

(a) As used in this act unless the context otherwise requires:

(i) "Document" means information that is:

(A) Inscribed on a tangible medium or that is stored in an electronic or other medium and retrievable in perceivable form; and

(B) Eligible to be recorded in the real property records maintained by the county clerk.

(ii) "Electronic" means as defined in W.S.