Summary 2006 WY 80

Summary of Decision issued June 30, 2006

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Case Name: Murdock v. Zier

Citation: 2006 WY 80

Docket Number: 05-231

Appeal from the District Court of Park County, the Honorable Bruce B. Waters, Judge.

Representing Appellants (Defendants): Thomas P. Keegan of Bormuth Law Associates, L.C., Cody, Wyoming;* Scott Kolpitcke of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming. Argument by Mr. Kolpitcke.

Representing Appellee (Plaintiff): Matthew D. Winslow of Winslow Law Firm, P.C., Cody, Wyoming; ** Laurence W. Stinson of Bonner Stinson, P.C., Powell, Wyoming. Argument by Mr. Stinson.

* Order Allowing Substitution of Counsel entered January 4, 2006
** Order Allowing Substitution of Counsel entered December 28, 2005

Issue: Whether the district court erred in finding that the offer to purchase the property and the Appellee’s recognition of superior title interrupted any period of adverse possession and negated the necessary elements of intent or claim of right. Whether the burden shifting framework set forth in Hillard v. Marshall abrogates long-established Wyoming law that hostile intent under claim of right or color of title is a required element to prove adverse possession. Whether Rule 408 of the Wyoming Rules of Evidence is applicable to the offer to purchase where there was no actual dispute and there was no claim of right. Whether the Appellee has failed to present a prima facie case, thus entitling the Appellants to summary judgment and a decree of ejectment and writ of possession.

Holding: Zier and Murdocks own adjoining tracts of land. Because of a mistaken property boundary line, Zier is in possession of, and has continuously used, a parcel of land to which the Murdocks possess title. Zier brought an action to quiet title in himself, claiming title through adverse possession. The district court granted summary judgment on Zier’s petition to quiet title. The Murdocks appeal.
When a motion for summary judgment is before the Court, assuming there is a complete record, the Court has the same duty and materials as does the district court and must follow the same standards. Pursuant to W.C.R.P. 56, summary judgment can be granted only when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Questions of application of the law are considered de novo.
Adverse Possession: Title to land is obtained through adverse possession if possession is “actual, open, notorious, exclusive and continuous for the statutory period, hostile, and under color of title or claim of right.” Possession is hostile when the possessor holds and claims property as his own whether by mistake or willfully. The statutory period in Wyoming is ten years.
The district court found that Zier should prevail on his adverse possession claim for the period running from 1991 to 2004. Zier’s offer to purchase in 1998 did not nullify the years of adverse possession which took place in the instant case. Because of its holding that Zier adversely possessed the disputed parcel from 1991 to 2004, it expressly declined to address Zier’s argument that he be allowed to tack his adverse possession with that of his predecessors in interest. The Court agreed that there was no issue of material fact and Zier was entitled to judgment as a matter of law but arrived at that decision by use of the doctrine of “tacking”. He acquired title by tacking his period of adverse possession with that of his immediate predecessors in interest. The record chain of title to Tract 11 establishes privity between Zier and his predecessors in interest back to 1938. Each owner of the tract put the subsequent owner in actual physical possession of the disputed parcel. The remaining question was whether Zier’s predecessors in interest adversely possessed the disputed parcel. The undisputed testimony establishes that from at least 1982 forward, the successive owners of Tract 11 used the disputed parcel openly, notoriously, exclusively and in a manner plainly indicating that they were acting as owner thereof. It was not permissive use and was done under a claim of right, meeting all requisite elements of adverse possession. Once the elements are met, the possessor is vested with a fully new and distinct title and no judicial action is necessary. Zier’s offer to purchase title to the disputed parcel in 1998 after the mistaken boundary line was discovered had no effect on his vested title. In light of the Court’s determination that title vested in Zier in 1992, the Court did not need to further address the issues raised by the Murdocks.

J. Golden delivered the opinion for the Court.

Affirmed.

Link to the case: http://tinyurl.com/m4jvt .