Summary 2007 WY 110

Summary of Decision issued July 17, 2007

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Case Name: Addison v. Dallarosa-Handrich

Citation: 2007 WY 110

Docket Number: 06-274

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellants (Plaintiffs): Frank J. Jones, Wheatland, Wyoming.

Representing Appellee (Defendants): M. Gregory Weisz of Pence and MacMillan, Laramie, Wyoming.

Date of Decision: July 17, 2007

Issue: Whether Appellants acquired title to the land by adverse possession or whether the district court properly quieted title to the disputed property in the Appellees.

Facts/Discussion: 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. Possession must be for the statutory period, ten years. When there is no clear showing to the contrary, a person who has occupied the land for the statutory period, in a manner plainly indicating that he has acted as the owner thereof, is entitled to a presumption of adverse possession; and the burden shifts to the opposing party to explain such possession. However, if a claimant's use of the property is shown to be permissive, then he cannot acquire title by adverse possession.
In some circumstances, enclosing land within a fence is sufficient to “raise the flag” of adverse possession. However, a fence kept simply for convenience has no effect upon the true boundary between tracts of land because, unlike a boundary fence, a fence of convenience gives rise to permissive use and permissive use will not support a claim for adverse possession. Ordinarily, the question of whether a fence is one of convenience or delineates a boundary is one of fact.
In the present case, the Appellees presented evidence showing that the fence was in poor shape and in places consisted only of posts and no wire, leaving the disputed parcel accessible to cattle from the property to the south. Thus, the disputed parcel was not enclosed in a manner putting the Appellees on notice of the adverse claim. The Appellees further presented evidence that the fence did not follow a straight section line but followed the topography of the area, zig-zagging around the bottom of a rough, rocky hill, rather than going in a straight line over the hill.
Evidence was also presented in the present case showing that originally the fence separated two pastures, both owned by a single ranch. The pasture to the south was used for calving and when the calves reached a certain age they were moved to the north pasture. This evidence clearly showed that for the first one hundred years of its existence the fence was not intended to delineate a boundary line between properties.
Thus, the evidence showing the gaps in and irregular course of the fence and the lack of any indication that the fence was intended to mark or follow a section line was sufficient to support the district court’s conclusion that the fence was one of convenience.
The district court also addressed the Appellants’ claim that the fence was converted to a boundary fence under the doctrine of recognition and acquiescence when they were sold the land in 1987. The doctrine has been said to apply where the true boundary line is uncertain or disputed and the respective property owners recognize and acquiesce in a different boundary line and occupy the land on either side of that line as though it was their land for at least ten years under facts and circumstances equivalent to an express agreement. The district court found the doctrine inapplicable to the Appellants’ claim, concluding the true boundary was not disputed or necessarily uncertain, and the assumption the fence followed that boundary was incorrect.

Holdings: The district court’s conclusions were not clearly erroneous. Moreover, the district court’s finding that the fence was one of convenience precludes both the adverse possession claim as well as the claim that the boundary had been altered by recognition and acquiescence.

Affirmed.

J. Kite delivered the opinion for the court.

Link: http://tinyurl.com/2gu9je .