dissenting.
I must dissent from the resolution of this case according to the majority opinion. In Bredthauer v. Christian, Spring, Seilbach and Assoc., 824 P.2d 560 (Wyo.1992) (Bredthauer I), we reversed a dismissal of this case based upon the claimed defense of the statute of limitations, Wyo.Stat. § 1-3-107 (1988), holding the plaintiffs were entitled to have an adjudication of their claims upon the merits. Subsequently, the defendants recognized they really meant to rely upon the statute of repose to defeat the plaintiffs’ claims, and they persuaded the trial court they were entitled to a dismissal for that reason. The statute invoked, Wyo. Stat. § 1-3-111 (1988) provides, in pertinent part (emphasis added):
(a) Unless the parties to the contract agree otherwise, no action to recover damages, whether in tort, contract, indemnity or otherwise, shall be brought more than ten (10) years after substantial completion of an improvement to real property, against any person constructing, altering or repairing the improvement, manufacturing or furnishing materials incorporated in the improvement, or performing or furnishing services in the design, planning, surveying, supervision, observation or management of construction, or administration of construction contracts for:
(i) Any deficiency in the design, planning, supervision, construction, surveying, manufacturing or supplying of materials or observation or management of construction.
In applying this statute to the facts of this case, the compelling questions for me are: What improvement? What construction?
There is no dispute the surveys in question were made of undeveloped real estate for the purposes of platting that real estate for a subdivision. Bredthauer I. More than fifty years ago, this court stated statutes of limitations are statutes of repose and are based on sound public policy, but the context may limit a term used in the statute. Board of Comm ’rs of Big Horn County v. Bench Canal Drainage Dish, 56 Wyo. 260, 108 P.2d 590 (1940). More recently we said:
Statutes of limitations are so construed that even if the ease seems to be one within the reason, if it be not mentioned in the statute, it is not deemed that the legislature thought it proper to apply such limitations. Roberts v. Roberts, 62 Wyo. 77, 91, 162 P.2d 117, 121 (1945), same case subsequent appeal 64 Wyo. 433, 196 P.2d 361 (1948), rehearing denied 64 Wyo. 455, 197 P.2d 697.
John Meier & Son v. Horse Creek Conservation Dish, 603 P.2d 1283, 1287 (Wyo.1979).
The term “surveying” is used in the context of “substantial completion of an improvement to real estate.” Another provision of the statute provides this definition:
As used in this act [§§ 1-3-110 through 1-3-113] “substantial completion” means the degree of completion at which the owner can utilize the improvement for the purpose for which it was intended.
Wyo.Stat. § 1-3-110 (1988).
The term “improvement” is not defined in the provisions relating to the statutes of limitations and repose, but it is defined in the statutes relating to liens in this way:
“Improve or improvement” means:
(A) Demolition, erection, alteration or repair of any property for its permanent benefit;
(B) Any work performed or material furnished for the permanent change of any real property; and
(C) Materials manufactured pursuant to contract.
Wyo.Stat. § 29 — 1—201(a)(iii) (1981) (emphasis added).
The surveys provided to the Bredthauers did not make any permanent change in this property nor was any permanent benefit afforded to the property. Logic dictates the surveys were detrimental to the property rather than beneficial. The issue confronting this court was correctly decided in Ciancio v. Serafini, 40 Colo.App. 168, *449574 P.2d 876, 877-78 (1977), the court saying: 1
We have found no case, and none has been called to our attention, which holds that a boundary survey alone constitutes an improvement. There is nothing in the complaint here, or in the agreed facts to indicate that the then owners who ordered the survey contemplated construction of a building. The survey shows on its face that it is a boundary survey only.
* * * * * *
We hold that a survey which is not part of an improvement or building project does not constitute an “improvement to real property” as that term is used in § 13-80-127, C.R.S.1973, and that actions accruing because of negligence in performing such surveys are not within the purview of that statute.
The statute relied upon by the appellees and the trial court to justify dismissal does not connote any surveying other than surveying accomplished in connection with some construction upon the property. A survey for purposes of a subdivision is not contemplated by, and it is not mentioned in, the statute. Even if one were to conclude that somehow a survey for a subdivision plat constitutes an improvement to the property within the context of the statute, it is impossible to determine how the statute has been triggered by substantial completion in this instance. The owner has been effectively prevented from utilizing the survey for the purpose for which it was intended. The majority opinion, by judicial fiat, has expanded the scope of the statute, and that prerogative should be left to the legislature.
I submit this court was right the first time in holding the Bredthauers were entitled to have their claims determined on their merits. Reliance upon the statute of repose in this factual situation is nothing more than sophistry, and it should not be countenanced by this court. The case should be reversed, and I would so hold.
. The statute in this case, Colo.Rev.Stat. § 13-80-127 (1973) provided:
All actions against any architect, contractor, engineer, or inspector brought to recover damages for injury to person or property caused by the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within two years after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than ten years after the substantial completion of the improvement to the property.