Summary 2008 WY 111

Summary of Decision issued September 23, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Cook v. Eddy

Citation: 2008 WY 111

Docket Number: S-07-0272

Appeal from the District Court of Niobrara County, the Honorable Keith G. Kautz, Judge.

Representing Appellant: James A. Eddington, Torrington, Wyoming.

Representing Appellee: Frank D. Peasley, Douglas, Wyoming.

Facts/Discussion: After a bench trial, the district court quieted title to approximately 40 acres of Cook’s land to Eddy. Cook appealed claiming the district court erred by ruling that Eddy had quieted title to the property by adverse possession. Eddy and Cook own adjoining mountainous properties in Niobrara County. The fence that separated their properties did not follow the east-west township line; it was north of the line and, accordingly, enclosed 40.44 acres of Cook’s land inside Eddy’s pasture. Eddy has used the property for grazing his cattle since he contracted to purchase his property in 1988.
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. Eddy testified he occupied the disputed land each year by allowing his cattle to graze it and using it to access another pasture. Cook attempted to meet his burden by establishing that Eddy’s use of the disputed property was permissive because the fence was built off line as a matter of convenience. The district court concluded the fence was a boundary fence and not a fence of convenience because there was an old path cleared along the correct boundary; the fence departed severely from the property boundary; the fence runs in three straight sections with only small deviations within those sections to accommodate trees or rocks; and in general the route of the fence is across as irregular terrain as the route of the correct boundary. The Court concluded that based on the record, the district court’s finding that the fence was a boundary fence rather than a fence of convenience was not clearly erroneous. Cook also argued that he asserted ownership by paying taxes on it, spraying for grasshoppers, leasing the mineral rights, and by cutting posts and poles and repairing the fence.

Holding: The record supported the district court’s determination that Eddy was entitled to a presumption that he adversely possessed the property.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/4rr6oh .

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