Summary 2010 WY 138

Summary of Decision issued October 26, 2010

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Case Name: Bellis v. Kersey

Citation: 2010 WY 138

Docket Number: S-10-0013

URL: http://tinyurl.com/2aooar4

Appeal from the District Court of Platte County, Honorable John C. Brooks, Judge

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

Representing Appellees Ronny L. Kersey and Peggy J. Kersey (Plaintiffs): Gay Woodhouse of Woodhouse Roden, Cheyenne, Wyoming

Representing Appellees Benjamin H. Howard, Jr., Benjamin H. Howard, IV and Rocky Mountain Timberlands, Inc. (Defendants): William H. Vines of Wheatland, Wyoming.

Date of Decision: October 26, 2010

Facts: The Appellants were the plaintiffs in a quiet title and declaratory judgment action filed on April 4, 2006, against Torey S. Hanks and Julie B. Hanks [the Hanks subsequently sold their land to the General Education Foundation], Benjamin H. Howard, Jr. and Benjamin H. Howard IV, and Rocky Mountain Timberlands, Inc (RMT). The Hanks, Howards, and RMT filed an Answer denying the Appellant’s claims, but presented no counterclaims. Prior to the filing of that action, the Appellants were the defendants in an action filed by Appellees alleging trespass and seeking quiet title, injunctive relief, and ejectment. In their counterclaim against the Appellees, the Appellants asked that title be quieted in them. The district court consolidated the two cases because both disputes involved a contiguous area that had been under common ownership and the Appellant’s claim of ownership to the disputed area of each parcel was based on the same evidence in regard to adverse possession. After a bench trial, the district court concluded that the appellants had not proven ownership of the disputed land through adverse possession, ordered their ejectment from a portion thereof, to which portion title was also quieted in the record owners, and ordered the appellants to pay trespass damages and costs.

Issues: Whether the district court erred in ruling against the Appellants on their claim of adverse possession. Whether the district court erred in ordering the ejectment of the Appellants from the Appellees’ tract. Whether the district court erred in denying the Appellants’ quiet title claim, and in granting the Appellees’ quiet title claim. Whether the district court erred in granting trespass damages to the Appellees. Whether the district court erred in granting costs to the Appellees.

Holdings: The district court’s findings of fact are not clearly erroneous as they relate to the denial of the Appellants’ claim of adverse possession against the Appellees, as they relate to the grant of the Appellees’ claims of trespass and ejectment against the Appellants, or as they relate to the actual trespass damages awarded to the Appellees. Finding no error of law in any of those determinations, the district court is affirmed to that extent. The grant of the Appellees’ quiet title claim is reversed, however, because the Appellees did not prove that they were in possession of the disputed portion of their tract. In fact, they proved the opposite. The award to the Appellees of $1,500.00 as “nominal damages and to aid them in the cost of erecting a boundary fence” is reversed because there are no findings of fact in the record from which this Court can determine how much of the award is for nominal damages and how much is for fence construction, because the Appellees have not produced convincing precedent allowing the recovery of both actual and nominal damages, and because the Appellees did not plead the statutory cause of action for the sharing of the expense of construction of a partition fence. The award of costs to the Appellees is reversed because the certificate of costs was untimely.

Remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.