White v. Wheeler

• Decision Date: 14 December 2017
• Docket Number: S-17-0115
• Citation: 406 P.3d 1241
• Parties: Howard L. WHITE and Joslyn R. White, Appellants (Plaintiffs), v. Heath S. WHEELER and Tanya D. Wheeler, Appellees (Defendants).
• Court: Wyoming Supreme Court

406 P.3d 1241

Howard L. WHITE and Joslyn R. White, Appellants (Plaintiffs),

v.Heath S. WHEELER and Tanya D. Wheeler, Appellees (Defendants).

S-17-0115

Supreme Court of Wyoming.

December 14, 2017

Representing Appellants: John D. Rawls, Attorney at Law, Laramie, Wyoming

Representing Appellees: M. Gregory Weisz of Pence and MacMillan LLC, Laramie, Wyoming

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

DAVIS, Justice.

[¶1] Heath and Tanya Wheeler (the Wheelers) and Howard and Joslyn White (the Whites) are record owners of adjacent properties in Albany County, south of Laramie, Wyoming. The Whites filed a complaint against the Wheelers asserting a claim for adverse possession based on the Whites' fencing and grazing of livestock on an approximately eight-acre strip of the Wheeler property. On cross-motions for summary judgment, the district court entered summary judgment in favor of the Wheelers, and the Whites appeal. Because genuine issues of material fact precluded summary judgment in favor of either party, we conclude the court erred in granting the Wheeler motion. We therefore reverse and remand for proceedings consistent with this opinion.

ISSUE

[¶2] The Whites present a single issue on appeal, which they state as:

Should this Court, after conducting a de novo review, reverse the granting of summary judgment in favor of Appellees and remand for further proceedings?

[¶3] Although the Whites frame the issue on appeal as a single question, they claim and argue two errors: 1) that the district court erred in denying them partial summary judgment on their prima facie adverse possession claim; and 2) that the court erred in granting Wheelers summary judgment. We therefore restate the issues as:

1. Did the district court err in denying the Whites' motion for summary judgment on their prima facie adverse possession claim?

2. Did the district court err in granting summary judgment to the Wheelers on the Whites' prima facie adverse possession claim and on the Wheelers' claim that the Whites' use of the Wheeler property was permissive?

FACTS

[¶4] In December 1987, Howard and Joslyn White purchased the SW 1//4 of Section 27, Township 15 North, Range 73 West, 6th P.M., Albany County, Wyoming (hereinafter Section 27). In the spring of 1988, the Whites built a fence along their property's north property line. The fence (hereinafter the 1988 fence) ran in a straight line starting at the western edge of the property and continued for some distance along the property's northern boundary line. Later in 1988, the Whites moved a manufactured home and utility building onto their Section 27 property, and to protect those buildings from their own grazing livestock, they built an additional "compound fence."

[¶5] About seven years later, in August 1995, the Whites purchased the NW 1//4 of Section 27. After that purchase, the Whites owned the entire W 1//2 of Section 27, and the 1988 fence ceased being a boundary fence. About a year later, in September 1996, the Whites purchased the E 1//2 of Section 27, which left them with ownership of Section 27 in its entirety. Less than a year later, in July 1997, the Whites platted Section 27 into sixteen tracts and created what is now known as the White Tracts.

[¶6] The Whites platted the tracts and drew the tract boundaries in such a manner that their home and utility building ended up in Tract 16 and the 1988 fence ended up in Tract 10 (and partially in Tract 12 to the east of Tract 10). The map below shows the White Tracts and the platted boundary lines for the sixteen tracts. The 1988 fence crosses Tract 10 from west to east at the northern boundary line of Section 27's SW 1//4.

[¶7] The Whites retained Tract 16 and have been that tract's only owners since they platted the White Tracts. The Whites also retained Tract 10 for a number of years, until December 29, 2005, when they conveyed it by warranty deed to Jeffrey and Lynette Morris.

Tract 10 thereafter changed hands two more times. On October 6, 2011, the Morrises conveyed Tract 10 by warranty deed to Michael and Kathleen Selmer and Siddhartha and Carrie Murthy. The Selmers/Murthys then conveyed the property by warranty deed to Heath and Tanya Wheeler (the Wheelers) on January 9, 2013. The Wheelers remain the present owners of Tract 10, and the 1988 fence remains in Tract 10.

[¶8] The present dispute between the Whites and the Wheelers began in the spring of 2016 when Joslyn White found that horse manure had been dumped along the south side of the 1988 fence, and that a gate at the west end of the fence had not been properly closed. In response to those discoveries, Ms. White placed chains and padlocks on the west gate on May 31, 2016.

[¶9] On June 2, 2016, Heath Wheeler visited the White residence on Tract 16 and informed Ms. White that he had staked the property line between Tracts 10 and 16 and planned to construct a fence on the true property line. On June 3, 2016, a letter from the Whites' attorney objecting to the Wheelers' plan to construct a new fence was hand-delivered to the Wheelers. Attorneys for both parties exchanged letters over the next several weeks, but the parties were unable to resolve their disagreement over the Wheelers' proposed fence.

[¶10] On August 17, 2016, the Whites filed a complaint against the Wheelers seeking to quiet title to the approximately eight-acre portion of Tract 10 that lies between the 1988 fence and the northern boundary of Tract 16 in district court. The complaint asserted three causes of action: 1) adverse possession based on the Whites' fencing of the property and grazing of livestock on the property; 2) recognition and acquiescence, alleging the Wheelers and their predecessors recognized the 1988 fence as the true property boundary and acquiesced in that boundary; and 3) ejectment. On August 30, 2016, the Wheelers filed their answer, which included affirmative defenses.

[¶11] The Whites filed a motion for summary judgment or partial summary judgment on February 2, 2017. On February 21, 2017, the Wheelers filed an opposition to the Whites' motion. With respect to the Whites' adverse possession claim, the Wheelers asserted the Whites' supporting affidavits made "only broad, unspecified and conclusory assertions of ultimate fact," and were insufficient to support a prima facie showing of adverse possession. They further asserted that genuine issues of material fact precluded summary judgment, pointing to affidavits submitted in opposition to the Whites' motion. Finally, the Wheelers requested that the district court enter summary judgment in their favor, asserting that the Whites' use of the disputed property was permissive and that they failed to show hostility in their use of the property.

[¶12] On March 6, 2017, the Whites filed a reply in support of their summary judgment motion, together with rebuttal affidavits. On March 10, 2017, the district court entered an order denying the Whites' motion for summary judgment and granting summary judgment in favor of the Wheelers. The court explained, in part:

29. Until 2016, there was no hostility regarding the disputed strip of land. The Whites utilized the disputed strip of land for grazing; the Wheelers (and their predecessors) knew of this innocuous use, and had no objections thereto. They simply were being good neighbors. There was no indication, until the 2016 dispute arose, that the Whites intended to deprive the Wheelers permanently of their ownership of this acreage. No flag was unfurled indicating an invasion was at hand. Once some indicia of hostility and notoriety arose, the Wheelers took action to preserve their ownership, leading to this litigation.

30. The Whites have failed to set forth a prima facie case that they used the disputed strip of land on Tract 10 in an open, hostile, notorious, exclusive, and continuous manner, under claim of right or color of title, for ten years or more.

31. Judgment as a matter of law, in favor of [Wheelers], is warranted, as to the claim of adverse possession. As a result, summary judgment also is warranted, in favor of the Wheelers, with regard to the Whites' claim for Recovery of Realty (Ejectment).

[¶13] On April 7, 2017, the Whites filed their timely notice of appeal to this Court.¹

STANDARD OF REVIEW

[¶14] When, as here, a case is fully resolved by the grant and denial of cross-motions for summary judgment, "both the grant and the denial of the motions for a summary judgment are subject to appeal." Hurst v. Metro. Prop. and Cas. Ins. Co., 2017 WY 104, ¶ 8, 401 P.3d 891, 895 (Wyo. 2017) (quoting Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo. 2011) ).² Our review is as follows:

We review a district court's order granting summary judgment de novo and afford no deference to the district court's ruling. Thornock v. PacifiCorp, 2016 WY 93, ¶ 10, 379 P.3d 175, 179 (Wyo. 2016). This Court reviews the same materials and uses the same legal standard as the district court. Id. The record is assessed from the vantage point most favorable to the party opposing the motion ..., and we give a party opposing summary judgment the benefit of all favorable inferences that may fairly be drawn from the record. Id. A material fact is one that would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Id.

The Tavern, LLC v. Town of Alpine, 2017 WY 56, ¶ 46, 395 P.3d 167, 178-79 (Wyo. 2017).

[¶15] Additionally, with respect to adverse possession claims in particular, we have recognized they are "peculiarly factual in nature," and that because they are so fact-sensitive, "appellate review of a grant of summary judgment is subject to more exacting scrutiny." Braunstein v. Robinson Family Ltd. P'ship, 2010 WY 26, ¶ 19, 226 P.3d 826, 835 (Wyo. 2010).

DISCUSSION

[¶16] We begin our review with a brief discussion of adverse possession generally, including the elements of a claimant's prima facie claim and the shifting burdens of proof called for by our law. W...