Summary 2006 WY 136

Summary of Decision issued October 27, 2006

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Case Name: Seven Lakes Development Company, LLC and Kuhn v. Maxsons

Citation: 2006 WY 136

Docket Number: 06-6

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Appellants (Defendants): William L. Hiser, Kelly Neville Heck, and Lindsay Hoyt of Brown & Hiser LLC, Laramie, Wyoming. Argument by Mr. Hiser.

Representing Appellees (Plaintiffs): M. Gregory Weisz and Devon O’Connell Coleman of Pence and MacMillan LLC, Laramie, Wyoming. Argument by Mr. Weisz.

Issue: Whether the district court properly determined on summary judgment that Maxsons held a profit in Appellants’ land. Whether the district court erred when it found that the profit had not been abandoned by Maxsons or their predecessors in interest. Whether the district court erred when it found the profit had not been extinguished through adverse possession. Whether the district court erred when it found that the profit allows use of motorized vehicles by the Maxsons while exercising their rights under the profit. Whether the district court erred in its findings regarding the Maxsons’ right to enter adjacent lands from Appellants’ property while exercising their rights under the profit.

Holding: Appellants appeal the district court’s determination that Maxsons hold a profit a prendre to hunt and fish on Appellants’ land and that such profit had not been abandoned; had not been extinguished through adverse possession; allowed the use of motorized vehicles and allowed access to adjacent federal lands.
Standard of Review: Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. The findings of fact made by the district court will not be set aside unless clearly erroneous. The district court’s conclusions of law are not binding on the reviewing court and are reviewed de novo.
Legal Classification of the Maxsons’ interest in the Appellants’ lands: All parties agreed that whatever interest the Maxsons had was created by warranty deeds to the original purchasers of the Maxsons’ land. Licenses are distinguishable from servitudes, which are interests in land. A servitude is a general category that includes a variety of non-possessory interests in land, including easements and profits. The Restatement explains that profits are easements with rights to enter and use the land in the possession of another plus the right to remove something from the land. An easement or profit is normally irrevocable. The Maxsons currently own two parcels that were conveyed to their predecessors in interest in 1957 and 1958. The relevant language in the warranty deeds is nearly identical including this statement: “Hunting and fishing privileges are extended to all lands now owned by grantor, or hereafter acquired by grantor in said Sections 22 and 27,…” The parties disagree as to the meaning of the language in the deed. The Court noted that the (1) hunting and fishing “privileges” were created in a warranty deed for property in the Woodedge area; (2) the grant created a legally enforceable right to enter and take wildlife and fish from the land of the grantor; (3) no time was specified for the “privileges” to continue or at which they would automatically cease; (4) consideration was paid for the warranty deed, including all items listed as “Restrictive and Protective Covenants”; and (5) the only implied basis for revoking the privileges was if they were “commercialized.” The Court also noted that the “privileges” were designated as “Restrictive and Protective Covenants”, they run with the land and are binding on the person within the grantor’s and grantee’s line of title and that language in the deed contemplates that the heirs and assigns of the parties to the warranty deed could exercise and enforce the covenants. The Court stated that when read as a whole, the “covenants” in the warranty deeds evidence an intent to create a right in the grantees that was to run with the land, pass to the heirs and assigns of the grantees and was irrevocable unless commercialized. The Court stated that a large majority of courts and secondary sources treat hunting and fishing rights in the land of another as profits.
Abandonment: The Court reviewed the district court’s determination that the profit was not abandoned under the “clearly erroneous” standard of review. The Court reviewed the record and found a lack of evidence of intent to abandon the profit in the 1960’s, abundant evidence of exercise of the profit rights in the 1990’s and Appellant’s admission that hunting was being conducted but that no evidence had been presented that those individuals were members of the community. The Court was unable to conclude that the district court clearly erred when it determined that the profit was not abandoned.
Adverse Possession: In order to establish adverse possession, the claiming party must show actual, open, notorious, exclusive and continuous possession of another’s property which is hostile and under claim of right or color of title. After review of the record, the Court found that sufficient evidence supported the district court’s decision on the issue. Although the district court may have reached a different conclusion from the evidence, the Court’s standard of review requires them to affirm the decision unless clearly erroneous.
Use of Motorized Vehicles while Exercising Rights under Profit: Because the profit was not extinguished by adverse possession or abandonment, the Court had to ascertain whether the district court erred when it determined that the Maxsons could use motorized vehicles on the servient estates while exercising their rights under the profit. Intent is the touchstone of deed interpretation. When creating the profit, the grantor is free to restrict the right to usual methods at the time of the grant or to allow exercise of the profit to adapt to changing technologies and practices. The district court determined that the grantor, McKinley, intended to make a broad grant of a profit that allowed motorized vehicles to be used by the dominant estate holders while enjoying the profit. The Court agreed with the district court decision, stating that it had correctly weighed evidence outside of the warranty deeds.
Right to Enter Adjoining Public Lands: Both parties agree that the Maxsons may only enter the Appellants’ land in section 27 to exercise their rights to hunt and fish; they may not merely use the road over section 27 to reach and hunt on public lands. The Court agreed with the district court because according to the terms of the grant, there was no requirement that the dominant estate owner enter or exit the servient estate in a certain location or manner. The Court noted that all parties agreed that the Maxsons may not hunt on pubic lands and travel over Appellants’ property as the most direct route back to their parcels.

Affirmed.

C.J. Voigt delivered the order for the court.

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