Summary 2007 WY 44

Summary of Decision issued March 14, 2007

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Case Name: Gillett v. Michael and Pamela White

Citation: 2007 WY 44

Docket Number: 06-144

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

Representing Appellant (Defendant): Tony S. Lopez, Laramie, Wyoming.

Representing Appellee (Plaintiff): Mason F. Skiles of Skiles & Associates, LLC, Laramie, Wyoming.

Issue: Whether the district court properly granted summary judgment quieting title to the strip of land in the Whites.

Facts/Discussion: Gillett appealed from an order granting summary judgment to the Whites on their complaint to have title to a strip of land quieted in them on the basis of adverse possession. Gillett claimed summary judgment was improper because a genuine issue of material fact existed as to whether the fence separating the strip of land from her property was a fence of convenience; the requisite ten year period for adverse possession was not met; and adverse possession can be used only as an affirmative defense, not an affirmative claim as the Whites used it.
Standard of Review: When reviewing an order granting summary judgment, the Court considers the record de novo. The review is governed by W.R.C.P. 56 (c).
Gillett cited Northern Pacific Railway Co. v. United States as support for her claim that adverse possession is available only as an affirmative defense. The Court stated Gillett misunderstood Northern and that Wyoming has long recognized that a claim of adverse possession is available to either party in a quiet title action.
Next, the Court considered whether the fence separating the properties was one of convenience. The Court considered the factors necessary to establish adverse possession. The Whites presented evidence the fence was in its present position when they purchased the property in 1988 as it was at the time of the prior purchase by the Confers in 1983. In addition, the Whites provided Mr. Confer’s affidavit stating that when he and his wife purchased the property, they agreed the fence line represented the boundary between the two parcels. The presentation of the evidence by the Whites, established a presumption of adverse possession and the burden shifted to Gillett to present evidence showing the Whites’ possession was not actual, open, notorious, exclusive or continuous for ten years, hostile or under color of title. Other than two statements of unsubstantiated beliefs, Gillett failed to present sufficient evidence showing the fence was one of convenience to rebut the presumption of adverse possession. Gillett also claimed the requisite ten year period began when she and her former husband purchased the land in 1997. The Court stated the argument was without merit.

Holding: The Whites showed they purchased the property in 1988 and used the portion inside the fence actually, openly, notoriously, exclusively and continuously from that point on. The Whites also showed that prior to their purchase of the property, the previous owners, the Confers, had similarly used the strip of land. Under the doctrine of “tacking,” when there is privity between persons successively and continuously in possession holding adversely to the true title, the successive periods of occupation may be united to make up the time prescribed by statute. Tacking the Whites’ period of adverse possession with that of their immediate predecessors in interest, the evidence established the disputed strip of land was used adversely from 1983. Thus, the ten year period was satisfied in 1993. The district court’s order granting summary judgment for and quieting title in the Whites on their claim for adverse possession was affirmed.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2d3xhl .