Summary 2012 WY 49

Summary of Decision April 5, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  ECOSYSTEM RESOURCES, L.C. v. BROADBENT LAND & RESOURCES, LLC and SOUTH & JONES TIMBER COMPANY, INC.

Docket Number: S-11-0143

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465306

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff/Defendant):  Phillip William Lear of Lear & Lear, LLP, Salt Lake City, UT; James S. Lowrie; and Nathan D. Thomas of Jones Waldo Holbrook & McDonough, PC, Salt Lake City UT.  Argument presented by Mr. Lowrie.

Representing Appellee (Plaintiff/Defendant): Anna Reeves Olson and Weston W. Reeves of W.W. Reeves, Casper, WY; Mark W. Gifford of Gifford & Brinkerhoff, Casper, WY; and Clayton Thomas, Evanston, WY.  Argument presented by Mr. Gifford.

Date of Decision: April 5, 2012

Facts: This is the second time the present case has been appealed to this Court.  In the first appeal, the Court reversed a judgment on the pleadings and remanded for proceedings to examine the facts and circumstances surrounding Union Pacific’s reservations of timber in deeds from the early 1900s in order to determine the parties’ intent with regard to the duration of the timber estates.  Ecosystem Resources, LC v. Broadbent Land & Resources, LLC, 2007 WY 87, 158 P.3d 685 (Wyo. 2007) (Ecosystem I).  After a bench trial, the district court concluded “in using the term ‘timber,’ Union Pacific intended to reserve only those trees (1) in existence at the time of the grant and (2) of sufficient size to be suitable for use in construction.”  The district court also concluded from the facts and circumstances that the parties intended Union Pacific to have a reasonable time to harvest the timber from the encumbered properties.  It ruled that Union Pacific’s timber reservations had expired because the reserved timber was no longer located on the properties and, in any event, more than a reasonable time had passed.  The district court also ruled, in the alternative, that Broadbent had acquired title to the timber by adverse possession.  It, therefore, granted judgment in favor of the surface owner, Broadbent Land & Resources, LLC[1] and against the timber estate owner, Ecosystem Resources, L.C.

Issues: Ecosystem raised the following issues on appeal: Whether the trial court erred in concluding that the facts and circumstances surrounding the deeds at issue [dated] 1906, 1908 and 1909 indicate an intent of the parties to those deeds to limit the duration of the timber reservation set forth therein. Whether the trial court erred in finding that [Broadbent] had removed timber on disputed lands for a period sufficient to support a finding of adverse possession.

Broadbent offered a more detailed statement of the issues: Whether the district court’s finding that the facts and circumstances surrounding the execution of the timber deeds demonstrated an intent to limit the duration of the timber reservation to a reasonable time was clearly erroneous. Whether the district court’s finding that the timber reservations applied only to timber existing at the time of the deeds was clearly erroneous. Whether the district court erred in construing the deeds against the drafter. Whether the district court erred in considering the subsequent conduct of the parties. Whether the district court’s findings that Broadbent proved the elements of adverse possession [were] clearly erroneous.

Holdings:  Resolving Ecosystem’s appeal, the Court concluded that the district court properly ruled, on the evidence before it, that Union Pacific intended its reservation of “timber” to include only trees of a suitable size which existed on the subject properties at the time of the deeds.  The evidence presented at trial clearly established that such timber no longer exists on the properties.  Consequently, the Court affirmed the district court’s order granting judgment in favor of Broadbent.

Justice Hill delivered the opinion for the court.

Summary 2010 WY 168

Summary of Decision December 21, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Helm v. Clark

Citation: 2010 WY 168

Docket Number: S-10-0002

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

Appeal from the District Court of Lincoln County, The Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiffs): Joseph B. Bluemel of Bluemel Law Office, Kemmerer, Wyoming.

Representing Appellee (Defendants): Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming.

Date of Decision: December 21, 2010

Facts: This case involves a dispute between adjoining property owners in Lincoln County, Wyoming. Plaintiffs attempted to relocate a fence which for many years had separated their pasture from a pasture belonging to Defendant. The fence was south of the recorded property line. Defendant objected and claimed that he had acquired title to the property between the recorded boundary and the fence by adverse possession. After a bench trial, the district court quieted title to the property in Defendant. On appeal, the Plaintiffs claim the district court committed various errors in arriving at its decision.

Issues: Whether the district court’s findings of fact that Defendant had established a case for adverse possession were clearly erroneous or contrary to the great weight of the evidence when there was no evidence of “the definitive location, course or continuity of the fence” and “many facts material to proving adverse possession [were] absent or lacking;” the trial court specifically found Defendant “admitted the north-south fence on the east boundary of the area being adversely possessed until 1999 was a fence of convenience;” and the “evidence clearly shows the north-south fence on the east boundary of the property claimed to be adversely possessed was moved in 1999 or only eight years before this matter ensued.” Whether the district court erred by failing to rule that Defendant was estopped from arguing that the fence was a boundary fence because members of his family had admitted that the north-south fence on the east boundary of the property was a fence of convenience?

Holdings: The district court’s findings of fact that Defendant had established a case for adverse possession was consistent with prior cases, supported by the record and are not clearly erroneous. Also, the district court correctly ruled the Defendants’ admission that a north-south fence on the east boundary separating different types of land was a fence of convenience, was not relevant to the present dispute and did not have any preclusive effect in the present case.

The Plaintiffs also contested the lack of evidence about the exact location of the fence and, accordingly, the disputed property. The trial evidence did not support the district court’s simple rectangular description. The failure to provide a proper legal description did not, however, undermine the district court’s ultimate finding that Defendant proved he adversely possessed the property and was entitled to have title quieted in him.

The Court held that the district court correctly ruled Defendant had proven his claim for adverse possession of the disputed tract; however, the district court’s decision as to the size and exact location of the disputed area was clearly erroneous. The Court affirmed in part, but reversed and remanded for a determination of the exact legal description of the adversely possessed property.

Chief Justice Kite delivered the opinion for the court.

Summary 2010 WY 138

Summary of Decision issued October 26, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

Summary 2010 WY 26

Summary of Decision issued March 8, 2010

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

Case Name: Braunstein v. Robinson Family Ltd. Partnership, LLP

Citation: 2010 WY 26

Docket Number: S-08-0115

Appeal from the District Court of Crook County, the Honorable John R. Perry, Judge.

Representing Appellant Braunstein: Paul J. Drew and Anita Ann Czapeczka of Drew Law Office, PC, Gillette, Wyoming.

Representing Appellee Robinson: Max Main of Bennett, Main & Gubbrud, PC, Belle Fourche, South Dakota.

Facts/Discussion: Braunstein appealed the district court’s order granting summary judgment to Robinson on its adverse possession complaint seeking title to Braunstein’s several parcels of land. The parties agree that Braunstein is the record owner of and has paid the property taxes assessed against the property and Robinson claims satisfaction of the several elements of adverse possession with respect to that property.

Affidavit of Alden C. Robinson: The paragraphs were only categorical assertions of ultimate facts without specific supporting facts. There were no specific facts informing the Court whether the fencing surrounded only the exterior of the Robinson family ranch lands within which is located the unfenced disputed property or whether Robinson separately enclosed the disputed property within a fence. There were also no specific facts about the acreage of the Robinson ranch lands, the ways in which the family members did not allow anyone else to use the disputed property, no specific facts concerning the type and number of livestock and where and how they were grazing on the disputed property. The Robinson’s claim to the property and their possession and use was subjective belief and opinion having no factual basis which is inadmissible. Statements about intent to include the disputed property in conveyances and about inadvertent omission of the property’s description were inadmissible self-serving subjective opinion. Failure to pay real estate taxes on the disputed property is a fact to be weighed along with the other circumstances in the case and intent is an inadmissible self-serving subjective opinion.
Affidavit of Justen T. Robinson: The affidavit was identical in most respects to the affidavit of Alden Robinson and was insufficient for the same reasons. Both failed to show an absence of genuine issues of material fact related to Robinson’s adverse possession claim.
Justen T. Robinson’s second affidavit: The affidavit did not contain enough factual content to have legal significance. It mentioned two appraisals but failed to note the name of the appraiser, there were no attached sworn or certified copes of the appraisals, and the affiant admitted that the disputed property was not included in the appraisals. This is another fact to be considered along with the failure to pay taxes or to include it in the title instruments to the family ranch lands which tends to weaken a claim of ownership by adverse possession.
Affidavit of Donald D. Zacher: The affidavit of the abstractor did not include the date on which he examined the title records. In addition, the documents attached were not sworn or certified copies as required by W.R.C.P. 56(e).
Quitclaim deed conveying the disputed property to Melvin and Elsie Braunstein: Robinson included the document in the summary judgment submissions but it was not a sworn or certified copy and no witness introduced it into the record.
Elsie Braunstein’s answers to plaintiff’s first interrogatories: The Court stated it found nothing in the answers that showed the absence of any genuine issue of material fact associated with the elements of Robinson’s adverse possession claim.
Robinson conveyances of the family ranch lands surrounding the property: The documents were not sworn or certified copies and no witness introduced them into the record.
Elsie Braunstein’s deposition: In Robinson’s memo in support of its summary judgment motion, there is only limited reference to Braunstein’s deposition. The Court reviewed the deposition testimony and found nothing that showed the absence of any genuine issue of material fact associated with the elements of Robinson’s adverse possession claim.

Conclusion: The Court found that most of the evidentiary materials submitted by Robinson in support of its summary judgment motion were legally insufficient under the requirements of W.R.C.P. 56 and summary judgment case law. It also failed to show the absence of genuine issues of material fact associated with the elements of the claim of adverse possession and because the issues raised important questions about the application of Wyoming’s “fence-out” doctrine in the context of an adverse possession claim, which questions require substantial factual development before they can be addressed, the Court reversed and remanded.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/y8uv2rw .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2010 WY 5

Summary of Decision issued January 14, 2010

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

Case Name: Hutchinson v. Taft

Citation: 2010 WY 5

Docket Number: S-09-0028, S-09-0067

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant in Case No. S-09-0028: Matthew H. Romsa, John M. Kuker and James M. Peterson of Romsa & Kuker, LLC, Cheyenne, Wyoming.

Representing Appellees in Case No. S-09-0028: James R. Salisbury of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming.

Facts/Discussion: Gerald D. Hutchinson’s predecessors in interest (the Hutchinsons) leased property owned by Josephine Taft. After leasing the property for about ten years, the Hutchinsons ceased making the lease payments but continued to use the property. When a trustee of the Tafts later listed the Taft property for sale, the Hutchinsons filed a claim to quiet title to the property in them on the theory of adverse possession.

Order granting motion on partial findings: A permissive user may change his possession into adverse title with a clear, positive, and continuous disclaimer and disavowal of the title of the true owner brought home to the latter’s knowledge. The Court stated that the Hutchinson’s claim failed noting the Tafts’ actions of entering into oil and gas leases on the property and selling a portion of the property to the State constituted overt acts of ownership inconsistent with the adverse possession claim.
Exhibit 9: On the day of trial, prior to opening statements, the Tafts objected to the Hutchinsons’ Exhibit 9 (Cara Taft’s and Leon Harney’s discovery responses.) The district court did not “rule” on the admissibility of Exhibit 9. Rather, upon hearing the motion, the district court deferred ruling and moved ahead with opening statements. The issue was not addressed again because the Hutchinsons rested their case without offering the exhibit. While it was apparent from the record that the Hutchinsons intended to offer the exhibit, the opportunity never arose because the district court granted judgment for the Tafts at the close of the Hutchinsons’ case.
Denial of motions to amend findings and for new trial: In denying the Hutchinsons’ post-trial motions, the district court found that the Hutchinsons had not presented sufficient evidence to show that what began as permissive use became hostile use. Implicit in the finding is the conclusion that neither the admission of Exhibit 9 nor Cara Taft’s anticipated testimony would have changed that result. It would not have satisfied the obligation to show a clear, positive, and continuous disavowal of the Tafts’ title to the property.

Conclusion: Given the evidence presented, the Court could not conclude the district court’s determination was unreasonable. The Hutchinsons’ use of the Taft parcel remained essentially the same from the time they rented it in 1961 to the time of trial. As occasions arose when they could have disavowed the Tafts’ ownership and asserted their own, the Hutchinsons did neither. In the face of division orders and royalty payments to the Tafts as owners of the property, the Hutchinsons did nothing; in the face of the State’s efforts to purchase a strip of the Taft property, the Hutchinsons did nothing. The Hutchinsons’ evidence was insufficient to establish adverse use. The district court did not abuse its discretion in denying the post-trial motions.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yk3m9m9 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 4

Summary of Decision issued January 22, 2009

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

Case Name: Shores v. Bucklin

Citation: 2009 WY 4

Docket Number: S-08-0033

Appeal from the District Court of Big Horn County, the Honorable Steven R. Cranfill, Judge.

Representing Appellant Shores: J. Craig Abraham, Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee Bucklin: Stephen L. Simonton, Stephen L. Simonton, PC, Cody, Wyoming.

Facts/Discussion: The Shores appealed from the district court’s order entering judgment in favor of the Bucklins quieting title to a parcel of land in Big Horn County. The court ruled that summary judgment was proper, in that the Shores did not have evidence to support a “color of title” theory. Also, there was not satisfaction of the 10-year period for adverse possession. Pursuant to the Wyoming Rules of Civil Procedure (W.R.A.P.), dismissal was proper as a sanction for failure to comply with the scheduling order.

The Shores argued on appeal that there were genuine issues of material fact which a jury should be allowed to determine. The Court has previously held that the party seeking judicial review of an administrative action must comply with the W.R.A.P. and when they fail to do so, the Court may refuse to consider the contentions; assess costs; dismiss the appeal; or affirm the lower court’s decision. The Shores failed to comply with applicable rules, including failure to provide any citation to the record; they also failed to provide relevant argument or legal authority to support their contentions. The Court summarily affirmed the decision of the district court.

Conclusion: Summary judgment in favor of the Bucklins was affirmed. The Shores were ordered to reimburse costs and attorney’s fees generated in the defense of the instant appeal.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/d6zruq .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 110

Summary of Decision issued July 17, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

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 .

Summary 2007 WY 44

Summary of Decision issued March 14, 2007

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance with a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

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 .