Powder Run at Deer Valley v. Black Diamond Lodge at Deer Valley

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 43
_________________________________________________________
THE UTAH COURT OF APPEALS
POWDER RUN AT DEER VALLEY OWNER ASSOCIATION,
Plaintiff and Appellant,
v.
BLACK DIAMOND LODGE AT DEER VALLEY ASSOCIATION OF UNIT
OWNERS AND PARK CITY MUNICIPAL CORPORATION,
Defendants and Appellees.
Opinion
No. 20120611-CA
Filed February 21, 2014
Third District Court, Silver Summit Department
The Honorable Keith A. Kelly
No. 100500783
Eric P. Lee and Kathleen E. McDonald,
Attorneys for Appellant
Laura S. Scott, Elizabeth A. Schulte, and Joseph E.
Tesch, Attorneys for Appellee Black Diamond
Lodge at Deer Valley Association of Unit Owners
Mark D. Harrington and Polly Samuels McLean,
Attorneys for Appellee Park City
Municipal Corporation
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGES JAMES Z. DAVIS and STEPHEN L. ROTH concurred.1
BENCH, Senior Judge:
¶1 This case involves a challenge to the dedication of an
easement as a public street in Park City. The easement crosses

Powder Run v. Black Diamond
2. In reviewing the district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in the
light most favorable to Powder Run, the nonmoving party. Orvis
v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
3. Two other entities joined Black Diamond in offering to dedicate
the easement. Because the other entities are not party to this suit,
we refer only to Black Diamond for convenience.
20120611-CA 2 2014 UT App 43
property owned by Powder Run at Deer Valley Owner Association
(Powder Run). Powder Run appeals the district court’s ruling that
the statute of limitations in Utah Code section 10-9a-801 bars its
quiet title action and declaratory judgment claim. See Utah Code
Ann. § 10-9a-801 (LexisNexis 2012). We affirm.
BACKGROUND2
¶2 In June 2001, Black Diamond Lodge at Deer Valley
Association of Unit Owners (Black Diamond) submitted a letter to
Park City Municipal Corporation (the City) offering to dedicate as
a public street a portion of a seventy-eight-foot-wide easement that
crossed Powder Run’s property. On the day of the public hearing,3
Powder Run submitted a letter to the City stating that it was “not
going to oppose” the dedication but requesting that the City defer
action while Powder Run considered its options. The City Council
acknowledged the request for delay at the hearing but proceeded
to consider the dedication. The City Council then adopted an
ordinance, published June 27, 2001, accepting the limited
dedication of a thirty-foot-wide portion of the easement as a public
street. Among other things, the ordinance required Black Diamond
to pave and maintain the public street.
¶3 In the fall of 2001, Black Diamond built a road across the
easement and had underground utilities installed within the
easement. In late 2002 or early 2003, Black Diamond had a
monument sign erected on the easement. Since late 2001, the public

Powder Run v. Black Diamond
4. The complaint also alleged trespass, but Powder Run later
stipulated that its trespass action was barred by the applicable
statute of limitations.
5. On appeal, the parties treat the district court’s ruling on the
City’s motion to dismiss as a ruling on a motion for summary
judgment. See Utah R. Civ. P. 12(b) (“If, on a motion . . . to dismiss
(continued...)
20120611-CA 3 2014 UT App 43
has used the road to access the Black Diamond Lodge and another
adjoining development.
¶4 On September 15, 2010, over nine years after the ordinance
became effective, Powder Run filed a complaint against Black
Diamond and the City. The complaint was styled as a quiet title
and declaratory judgment action. Powder Run alleged that Black4
Diamond and the City “claim a right or interest in the Easement
Parcel adverse to the rights and interests of [Powder Run].”
Powder Run later moved to amend the complaint by adding as
defendants the individual unit owners of the Black Diamond
Lodge. The City moved to dismiss the action and Black Diamond
moved for summary judgment, both on the basis of the thirty-day
statute of limitations in Utah Code section 10-9a-801(2)(a). The
district court granted the defendants’ motions and denied Powder
Run’s motion to amend as futile. Powder Run appeals.
ISSUES AND STANDARDS OF REVIEW
¶5 Powder Run contends that the statute of limitations in Utah
Code section 10-9a-801 does not bar its quiet title action and that
the district court therefore erred in granting summary judgment in
favor of Black Diamond and in dismissing the suit against the City.
In reviewing a grant of summary judgment, “[a]n appellate court
reviews a trial court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness.” Orvis v. Johnson, 2008
UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks
omitted).5

Powder Run v. Black Diamond
5. (...continued)
for failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56 . . . .”).
We do likewise.
20120611-CA 4 2014 UT App 43
¶6 Powder Run also contends that given the district court’s
allegedly erroneous ruling on the statute of limitations issue, the
district court erred in denying, on the basis of futility, Powder
Run’s motion for leave to amend its complaint. While we review
for abuse of discretion a ruling on a motion for leave to amend a
pleading, we review a futility determination for correctness. Shah
v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 6, 314 P.3d
1079.
ANALYSIS
I. Statute of Limitations
¶7 Powder Run advances four arguments challenging the
district court’s ruling that its quiet title action was barred by section
10-9a-801. First, it argues that the statute, by its terms, does not
apply to this case. Second, Powder Run argues that regardless of
the limitations period in the statute, a void ordinance may be
challenged at any time. Third, Powder Run argues that its quiet
title action is a true quiet title action to which statutes of limitations
do not apply. Fourth, Powder Run argues that the statute of
limitations does not apply, because Powder Run is in actual
possession of the easement under a claim of ownership.
A. Applicability of the Statute
¶8 The Municipal Land Use, Development, and Management
Act (MLUDMA) places a thirty-day limit on challenges to
municipal land use decisions:

Powder Run v. Black Diamond
6. The statute also states, “If the municipality has complied with
[the notice provisions of] Section 10-9a-205, a challenge to the
enactment of a land use ordinance or general plan may not be filed
with the district court more than 30 days after the enactment.”
Utah Code Ann. § 10-9a-801(5) (LexisNexis 2012) (emphasis
added). Whichever thirty-day limit we apply, our conclusion
would be the same. Therefore, we apply the provision addressed
by the district court and the parties, and we need not determine
whether the ordinance in question qualifies as “a land use
ordinance.” See id. § 10-9a-103(24) (Supp. 2013) (defining “land use
ordinance” as “a planning, zoning, development, or subdivision
ordinance of the municipality, but . . . not includ[ing] the general
plan”).
20120611-CA 5 2014 UT App 43
Any person adversely affected by a final decision
made in the exercise of or in violation of the
provisions of this chapter may file a petition for
review of the decision with the district court within
30 days after the local land use decision is final.
Utah Code Ann. § 10-9a-801(2)(a) (LexisNexis 2012). “Based on
[MLUDMA’s] plain language, a party is affirmatively entitled to
judicial review of any final [municipal] land use decision whenever
(A) the decision adversely affects the party’s interests, (B) the
decision was made in the exercise of or in violation of provisions of
[MLUDMA], and (C) the party files a petition for review within
thirty days of the date the [municipality’s] decision is final.” Gillmor
v. Summit County, 2010 UT 69, ¶ 18, 246 P.3d 102 (interpreting a
parallel provision in the County Land Use, Development, and
Management Act (CLUDMA)).6
¶9 Powder Run does not argue that the ordinance is not a
“decision made in the exercise of or in violation of the provisions
of [MLUDMA].” See Utah Code Ann. § 10-9a-801(2)(a). Rather,
Powder Run argues that the statute should not apply to its suit
because it is not seeking “review” of the City’s decision to accept
the dedication. See id. As Powder Run has characterized its claim,

Powder Run v. Black Diamond
20120611-CA 6 2014 UT App 43
it argues that because Black Diamond did not have any legal right
to dedicate the easement to the City, the district court should
“conclude that in fact no dedication occurred,” declare the
dedication void ab initio, and quiet title to the easement in Powder
Run.
¶10 Powder Run’s argument ignores the fact that the City
accepted the allegedly invalid dedication and passed an ordinance
making a portion of the easement a public street. In its complaint,
Powder Run acknowledges that the City, and not only Black
Diamond, “claims a right or interest in the Easement Parcel adverse
to the rights and interests of [Powder Run].” Powder Run asks for
an order quieting title in Powder Run and decreeing that Black
Diamond, the City, “and all persons or entities claiming by,
through or under them have no rights or interest in or to the
Easement Parcel.” Powder Run also alleges that it is entitled to a
“declaration establishing that the public dedication by Park City was
void ab initio, and that Black Diamond, its members, the public and
all persons or entities claiming by, through or under them have no
right to traverse or otherwise occupy the Easement Parcel.”
(Emphasis added.) We see no way to read Powder Run’s complaint
other than as a request for the district court to review the City’s
decision to accept the dedication of a portion of the easement as a
public street.
¶11 Powder Run also argues that the statute does not apply to
its suit because Powder Run is not “adversely affected” by the
City’s ordinance. See id. § 10-9a-801(2)(a). Powder Run argues that
because the dedication is invalid, it had no impact on Powder
Run’s property rights.
¶12 Regardless of the validity of Black Diamond’s offer to
dedicate, the City’s decision to accept that dedication adversely
affected Powder Run. The City enacted an ordinance making a
portion of the easement a public street. Black Diamond built a road
across that portion of the easement in 2001, and since that time, the
public has continually used that road to access the Black Diamond
Lodge and another adjacent development. As mentioned above,

Powder Run v. Black Diamond
20120611-CA 7 2014 UT App 43
Powder Run alleges in its complaint that the City claims a right
adverse to Powder Run. It asks the district court for a declaration
that those using the public street have no right to do so. Powder
Run’s complaint thus belies the argument that Powder Run is not
adversely affected by the ordinance.
B. Void Ordinance Exception
¶13 Next, Powder Run argues that statutes of limitations do not
apply to void ordinances. Powder Run relies on cases holding that
challenges to void judgments are not subject to time limitations.
See, e.g., Garcia v. Garcia, 712 P.2d 288, 290–91 (Utah 1986) (per
curiam). Powder Run argues that “[t]here is no meaningful
difference between the application of a time bar to the void
judgment of a district court and the void action of a municipal
body.”
¶14 Our supreme court was presented with a similar argument
in Gillmor v. Summit County, 2010 UT 69, 246 P.3d 102, but the court
did not resolve the issue. See id. ¶ 17. We need not determine
whether the rule governing void judgments applies to void
ordinances in general, because we conclude that section 10-9a-801
contemplates a limitation on the type of suit brought by Powder
Run in this case.
¶15 In addition to setting forth exhaustion requirements and
time limitations, section 10-9a-801 states that courts are limited to
determining “only whether or not the decision, ordinance, or
regulation is arbitrary, capricious, or illegal.” Utah Code Ann.
§ 10-9a-801(3)(a)(ii) (LexisNexis 2012). The statute further provides
that courts must “presume that a decision, ordinance, or regulation
made under the authority of this chapter is valid.” Id.
§ 10-9a-801(3)(a)(i). The statute then specifies ways in which
validity may be determined:
(b) A decision, ordinance, or regulation
involving the exercise of legislative discretion is valid
if it is reasonably debatable that the decision,

Powder Run v. Black Diamond
20120611-CA 8 2014 UT App 43
ordinance, or regulation promotes the purposes of
this chapter and is not otherwise illegal.
(c) A final decision of a land use authority or
an appeal authority is valid if the decision is
supported by substantial evidence in the record and
is not arbitrary, capricious, or illegal.
(d) A determination of illegality requires a
determination that the decision, ordinance, or
regulation violates a law, statute, or ordinance in
effect at the time the decision was made or the
ordinance or regulation adopted.
Id. § 10-9a-801(3).
¶16 Powder Run’s request for a “declaration establishing that
the public dedication by Park City was void ab initio” and an order
quieting title in Powder Run on that basis falls within the scope of
this statute. Powder Run is essentially arguing that the ordinance
is of no effect—that the City had no legal authority to declare the
easement a public road—because Black Diamond had no right to
offer the easement to the City. Arguing that the ordinance is void
and of no effect is a direct challenge to the validity of the ordinance.
Section 10-9a-801 governs challenges to the validity of a
municipality’s land use decisions, ordinances, and regulations.
Regardless of whether Powder Run would be able to successfully
overcome the presumption of validity under the standards in
subsection 10-9a-801(3), its challenge to the allegedly void
ordinance must satisfy the time limitations of section 10-9a-801. Cf.
Branting v. Salt Lake City, 153 P. 995, 1000–01 (Utah 1915) (applying
a statute of limitations to a claim asking a court “to declare certain
proceedings whereby a certain tax was assessed and levied against
[the plaintiff’s] property void and of no effect and to annul said
proceedings”); Gillmor v. Blue Ledge Corp., 2009 UT App 230, ¶ 24,
217 P.3d 723 (stating that under the statute of limitations governing
suits by the United States to vacate and annul land patents, “it is
irrelevant if the patent at issue is void” because “‘[i]f [the statute of
limitations] were confined to valid patents it would be almost or

Powder Run v. Black Diamond
20120611-CA 9 2014 UT App 43
quite without use’” (quoting United States v. Chandler–Dunbar Water
Power Co., 209 U.S. 447, 450 (1908))).
C. True Quiet Title Exception
¶17 Powder Run further argues that the statute of limitations
does not apply to true quiet title actions and that its suit qualifies
as a true quiet title action.
¶18 Nearly a century ago, the Utah Supreme Court “established
the general rule that where ‘the action is purely one to remove a
cloud or to quiet the title [to real property], the statute of
limitations has no application.’” Bangerter v. Petty, 2009 UT 67, ¶ 12,
225 P.3d 874 (alteration in original) (quoting Branting v. Salt Lake
City, 153 P. 995, 1001 (Utah 1915)). However, the supreme court
qualified this general rule by holding that “‘all actions in which the
principal purpose is to obtain some affirmative relief . . . clearly
come within the [statute of limitations].’” Id. (alteration and
omission in original) (quoting Branting, 153 P. at 1001). The court
has clarified this standard as follows:
If the action is a true quiet title action, meaning an
action merely to “quiet an existing title against an
adverse or hostile claim of another,” then the statute
of limitations will not bar the claim. However, “[i]f
the party’s claim for quiet title relief can be granted
only if the party succeeds on another claim, then the
statute of limitations applicable to the other claim
will also apply to the quiet title claim.”
Id. (alteration in original) (quoting In re Hoopiiaina Trust, 2006 UT
53, ¶¶ 26–27, 144 P.3d 1129). Thus, to determine whether the
statute of limitations applies, “a court must examine the relief
sought” and “assess on what basis the party would be entitled to
have title quieted.” Hoopiiaina Trust, 2006 UT 53, ¶ 27.
¶19 We conclude that Powder Run’s suit does not qualify as a
true quiet title action. As mentioned above, Powder Run seeks an

Powder Run v. Black Diamond
20120611-CA 10 2014 UT App 43
order quieting title as against Black Diamond and the City.
However, the basis of Powder Run’s claim is its argument that the
ordinance is void. Powder Run thus could not succeed on its quiet
title claim without first striking down the ordinance. Therefore,
Powder Run’s “claim for quiet title relief can be granted only if [it]
succeeds on another claim”—its claim for review of the validity of
the City’s land use decision. See id.
¶20 This conclusion is illustrated by the cases addressing the true
quiet title exception. In Branting v. Salt Lake City, 153 P. 995 (Utah
1915), a plaintiff filed an action asking the court to annul municipal
ordinances and proceedings approving the construction of a sewer
and levying a special tax on abutting property. Id. at 996. Our
supreme court rejected the plaintiff’s argument that his challenge
to the tax was a quiet title action to which no statute of limitations
applied. Id. at 1000–01. The court acknowledged that the tax
constituted a lien but stated that the validity of the tax did not
depend on the validity of a competing claim of title—the city never
asserted title or questioned the soundness of the plaintiff’s title. Id.
at 1000. Rather, the court stated, the validity of the tax “depends
entirely upon whether the proceedings of [the city] by which it
undertook to assess and levy the same are legal or illegal.” Id. “The
relief that [the plaintiff] sought by bringing the action was to have
those proceedings declared illegal.” Id. Because the action was
“commenced for the purpose of invoking the aid of a court of
equity to declare certain proceedings whereby a certain tax was
assessed and levied against [the plaintiff’s] property void and of no
effect and to annul said proceedings,” the statute of limitations
applied. Id. at 1000–01.
¶21 Although Powder Run alleges that the City claims an
interest in the easement adverse to Powder Run’s interest, the basis
of the relief sought by Powder Run is essentially the same as that
sought in Branting. Powder Run is asking the court to “declare [the
ordinance] void and of no effect,” and success in Powder Run’s
quiet title action depends entirely upon the validity of the
ordinance. See id.

Powder Run v. Black Diamond
20120611-CA 11 2014 UT App 43
¶22 In Davidsen v. Salt Lake City, 81 P.2d 374 (Utah 1938), a
plaintiff delivered to the city a deed for a strip of land. Id. at 374.
The plaintiff later asked the district court to set aside the deed for
fraud and to quiet title in him. Id. at 376. Our supreme court held
that the suit was barred by the statute of limitations. Id. at 377. The
court acknowledged that the request to quiet title and to cancel the
deed for fraud were two separate claims, but it stated that relief on
the quiet title action depended on success on the fraud claim:
“unless his right to have the deed cancelled is established he is not
entitled to have his title quieted nor to have judgment for
possession of the property.” Id. at 376–77. The court concluded that
because “his relief in each case depends . . . upon the cancellation
of a deed for fraud or mistake, he must bring his action within the
period provided by law for an action based upon that ground.” Id.
at 377.
¶23 Again, despite Powder Run’s attempts to characterize its
action otherwise, this suit involves a challenge to the validity of the
ordinance. See supra ¶ 16. As with Davidsen, Powder Run’s success
on its quiet title action depends on the validity of the ordinance.
Unless its right to have the ordinance set aside is established, it is
not entitled to have title quieted in its favor.
¶24 In re Hoopiiaina Trust, 2006 UT 53, 144 P.3d 1129, provides
further illustration. In Hoopiiaina Trust, a settlor placed real
property in two irrevocable trusts for the benefit of the plaintiffs,
but over twenty years later, he devised some of that same property
by will to the defendants. Id. ¶¶ 1, 3, 6–7, 10. The personal
representative of the estate distributed the property under the
terms of the will and also conveyed other property covered by the
trust to herself. Id. ¶ 10. When the plaintiffs discovered the trust
documents, they requested an order quieting title to the trust
property. Id. ¶¶ 7–11, 13. The supreme court held that the suit
presented a true quiet title action that was not barred by the statute
of limitations. Id. ¶¶ 32–33. The court explained that because the
settlor had no ability to devise what he did not own and the
personal representative had no basis to claim an ownership interest

Powder Run v. Black Diamond
20120611-CA 12 2014 UT App 43
in the trust property, the defendants had “nothing more than an
adverse claim” to the trust property, backed up by “no more than
a wild deed.” Id. Because it was unnecessary to rule in the
plaintiffs’ favor “on any other legal issue” in order to quiet title, no
statute of limitations applied. Id.
¶25 Powder Run argues that its quiet title action is like that in
Hoopiiaina Trust. It argues that Black Diamond had no ability to
dedicate the easement to the City and that Black Diamond’s offer
is “directly analogous to the giving of a wild deed.” It argues,
therefore, that Black Diamond’s offer and the City’s acceptance of
that dedication are nothing more than adverse claims.
¶26 We acknowledge some similarities between Hoopiiaina Trust
and the present case. However, we distinguish this case because of
the legislative action following Black Diamond’s allegedly
ineffective offer to dedicate the easement to the City. Even if Black
Diamond’s offer were directly analogous to a wild deed, it was
followed by the adoption of an ordinance making a portion of the
easement a public street. Whatever interest Black Diamond had in
the easement before adoption of the ordinance, its interest and the
City’s interest are now based in an ordinance that Powder Run
seeks to invalidate. Because that ordinance also affects Powder
Run’s interest, Powder Run’s quiet title action against Black
Diamond and the City cannot succeed unless the court first
determines that the ordinance is invalid. See Church v. Meadow
Springs Ranch Corp., 659 P.2d 1045, 1048–49 (Utah 1983) (“To
succeed in an action to quiet title to real estate, a plaintiff must
prevail on the strength of his own claim to title and not on the
weakness of a defendant’s title or even its total lack of title.”);
Department of Soc. Servs. v. Santiago, 590 P.2d 335, 337–38 (Utah
1979) (stating that as an element of a quiet title action, a plaintiff
must establish “entitlement to possession”). Therefore, the statute
of limitations governing challenges to the City’s land use decision
applies to Powder Run’s quiet title action. See Hoopiiaina Trust, 2006
UT 53, ¶ 27.

Powder Run v. Black Diamond
20120611-CA 13 2014 UT App 43
D. Actual Possession Exception
¶27 Finally, Powder Run argues that the statute of limitations
does not apply to a party in actual possession under a claim of
ownership.
¶28 In Bangerter v. Petty, 2009 UT 67, 225 P.3d 874, the Utah
Supreme Court held that even if a plaintiff seeking to quiet title
does not qualify under the true quiet title exception, a statute of
limitations may be inapplicable on the basis of actual possession. Id.
¶¶ 14, 16. The court held that “the statute of limitations does not
bar an individual or entity from bringing an action to quiet title to
real property when that individual or entity is (1) in actual
possession of property and (2) under a claim of ownership.” Id.
¶ 16. The court explained the policies behind this exception as
follows:
“In many instances one in possession would not
know of dormant adverse claims of persons not in
possession. Moreover, even if . . . the party in
possession knows of such a potential claimant, there
is no reason to put him to the expense and
inconvenience of litigation until such a claim is
pressed against him.”
Id. (omission in original) (quoting Muktarian v. Barmby, 407 P.2d
659, 661 (Cal. 1965) (en banc)).
¶29 We conclude that Powder Run is not in actual possession of
that portion of the easement dedicated as a public street. Black
Diamond installed underground utilities and a monument sign on
the easement. It built a road that the public has used to access the
Black Diamond Lodge and another adjoining development since
late 2001. This cannot qualify as actual possession by Powder Run.
See id. (suggesting that actual possession must be “‘undisturbed’”
(quoting Mayer v. L&B Real Estate, 185 P.3d 43, 46 (Cal. 2008))).
Concluding otherwise would not serve the purposes of the
exception. Powder Run was aware of the offer to dedicate and

Powder Run v. Black Diamond
20120611-CA 14 2014 UT App 43
participated in the public hearing by submitting a letter stating that
it would not oppose the action but would like the City to delay
action to allow Powder Run to further consider its options. Thus,
Powder Run had notice of the adoption of the ordinance, Black
Diamond’s construction of the road, and the public’s use of the
easement. These competing claims cannot be characterized as
“dormant adverse claims of persons not in possession.” See id.
(citation and internal quotation marks omitted).
¶30 In sum, Powder Run’s suit falls within the purview of
section 10-9a-801, and none of the exceptions asserted by Powder
Run apply to this case.
II. Denial of Motion for Leave to Amend
¶31 Finally, Powder Run contends that the district court erred in
denying it leave to amend its complaint to add as defendants the
unit owners of the Black Diamond Lodge. The basis for the district
court’s denial was that given its ruling on the statute of limitations
issue, any motion to amend would be futile. Powder Run’s
challenge to the district court’s futility determination assumes that
the district court erred in its ruling on the statute of limitations
issue. Because we affirm the district court’s ruling on the statute of
limitations issue, and because Powder Run makes no argument
independent of that ruling in challenging the district court’s denial
of its motion for leave to amend, we affirm the district court’s
decision.
CONCLUSION
¶32 By its terms, Utah Code section 10-9a-801 applies to Powder
Run’s quiet title action, which challenges the validity of a municipal
ordinance. Powder Run’s characterization of the ordinance as void
does not save Powder Run’s claims from the statute of limitations.
Because success on Powder Run’s quiet title action depends on a
successful challenge to the validity of the ordinance, Powder Run’s
suit does not qualify as a true quiet title action to which no statute

Powder Run v. Black Diamond
20120611-CA 15 2014 UT App 43
of limitations applies. Furthermore, Powder Run is not in actual
possession of that portion of the easement dedicated as a public
street. Therefore, the district court properly determined that
Powder Run’s suit was barred because it was not filed within the
thirty-day limit set forth in section 10-9a-801. Given this conclusion,
Powder Run’s motion for leave to amend its complaint would have
been futile.
¶33 Affirmed.