Galiher v. Johnson

• Citation: 432 P.3d 502
• Decision Date: 31 December 2018
• Docket Number: S-18-0116
• Parties: Louise J. GALIHER, Trustee of the Louise J. Galiher Trust, Appellant (Plaintiff), v. Dennis and Vicki JOHNSON, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

432 P.3d 502

Louise J. GALIHER, Trustee of the Louise J. Galiher Trust, Appellant (Plaintiff),

v.Dennis and Vicki JOHNSON, Appellees (Defendants).

S-18-0116

Supreme Court of Wyoming.

December 31, 2018

Representing Appellant: Anna Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing Appellees: Matthew E. Turner of Mullikin, Larson & Swift, LLC, Jackson, Wyoming.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

KAUTZ, Justice.

[¶1] This case is before the Court for a second time and involves a property dispute between Louise J. Galiher and her neighbors, Dennis and Vicki Johnson (hereinafter the Johnsons or Mr. Johnson). Following a bench trial, the district court entered a judgment vesting title to a portion of Ms. Galiher’s property in the Johnsons by adverse possession. Ms. Galiher appealed that decision, and this Court reversed and remanded for the district court to consider the totality of the evidence, including statements Mr. Johnson made claiming he had permission to use the property. On remand, the district court again concluded title to the disputed property had vested in the Johnsons. Ms. Galiher appeals that judgment, arguing the district court’s findings of fact were clearly erroneous, and the facts presented did not support a finding of adverse possession. We affirm.

ISSUES

[¶2] Ms. Galiher raises three issues in this appeal:

I. Whether the District Court’s specific findings of fact in paragraph[ ] Nos. 56, 58, 61 and 63 are inconsistent with the evidence, clearly erroneous, and are contrary to the weight of the evidence.

II. Whether the district court erred in finding that the Johnsons had established a prima facie case for adverse possession because when Mr. Johnson’s out-of-court statements are considered as true, it is clear that the Johnsons never possessed the property under a "claim of right."

III. Whether the district court erred when it refused to consider any evidence of a neighborly accommodation.

FACTS

[¶3] In Galiher v. Johnson , 2017 WY 31, 391 P.3d 1101 (Wyo. 2017) ( Galiher I ), we engaged in a thorough discussion of the relevant evidence provided during the bench trial in this matter. For consistency’s sake, we repeat those facts here:

The parties’ dispute relates to Lot 21 and Lot 23 of the High Country subdivision in Teton County near the town of Jackson, Wyoming. In 1977, Johnson’s wife Vicki and her former husband, Rick Hollingsworth, purchased a home situated on Lot 21. The couple divorced in 1984. Johnson met his wife in 1985 and married her the following year. In 1990, Hollingsworth conveyed his interest in the property to the Johnsons, who have continued to live there.

Lot 23 is directly south of Lot 21. Between 1978 and Galiher’s purchase in early March of 2013, the ownership of Lot 23 had changed eight times.

....

On April 15, 2013, Galiher received the report of a survey she had commissioned and set out to examine the boundaries of Lot 23. In the extreme northwestern corner of her property she discovered what appeared to be a scattering of junk covered in part by weeds that were three feet high, as well as evidence of vehicles parking on her property. She then phoned the county planning and development office about the process she would have to pursue to have the junk removed. That inquiry led Jennifer Anderson, the planning office’s code compliance officer, to send a letter to Johnson about the issue on April 22, 2013. Sometime after discussing the matter with Anderson, and telling her that prior owners had given him permission to use that corner of Lot 23, Johnson telephoned Galiher.

Johnson also informed Galiher that previous owners of Lot 23 had given his family permission to use that corner of her property for parking for a number of years, and he asked for permission to continue that use. He promised he would maintain it in a manner that was acceptable to her. Galiher denied him permission, but granted his request for forty-eight hours to remove his things. When Johnson then asked if guests could use it for overflow parking on those limited occasions when he was hosting a party, she told him she would have to think about it.

A week or more later,¹ Johnson called Galiher a second time and told her he was not going to remove his things from her property, and that he would continue to use it as he had been because he felt he had a right to be there. He did not tell her what prompted him to change his mind.

On May 11, 2013, Galiher saw that Johnson was still occupying her property, asked her friend Mary Martin to drive out to serve as a witness, and requested that a deputy sheriff be sent to the scene. While Galiher spoke to the deputy, Martin recognized Johnson as an old acquaintance from days when they both worked as department heads for Teton County. Consequently, she went to speak with him.

When Martin asked what he was doing, Johnson replied that he was getting his "stuff cleaned off this property" because his neighbor was upset. He also informed Martin that previous owners of the property had given him permission to use this small corner of it, and that he was really upset the new owner was not being similarly neighborly.

On May 24, 2013, Galiher sued to quiet title to Lot 23, alleging that the Johnsons’ use of the disputed portion of her property had been permissive. The Johnsons filed an answer and counterclaim seeking to quiet title to the disputed parcel based upon adverse possession on July 16. On June 20, 2014, they filed a motion for summary judgment, which the district court denied on December 1, 2014. The court concluded that contested issues of material fact existed with respect to whether [the] Johnsons’ use of the disputed property was sufficiently open, notorious, exclusive, and hostile, and whether use of the property was permissive. A bench trial was thereafter held on July 28, 2015.

At the trial, Hollingsworth testified that when he and his then wife purchased the house on Lot 21, there were two retaining walls, the southern ends of which later were found to intrude slightly onto lot 23. After two to three years of living there, he converted the garage on the southern end of the house into a family room and built a new garage and driveway on the northern end of the home. He believed that from that time until his divorce his family parked exclusively in the new garage and driveway. However, on occasions when they hosted numerous guests, some would park in the disputed area when the old driveway was full.

Johnson testified that use of the disputed area increased somewhat after he married Hollingsworth’s ex-wife. Each of them had a private vehicle and an employer-provided work vehicle. During winters, the slope of the northern driveway sometimes made it impractical to park there, so vehicles that could not be stored in the garage were parked in the disputed area. Their parking needs increased after 1988 due first to their children reaching driving age, and later to the Johnsons’ decision to take in renters after the children moved out, as well as the periodic return of some of the children and their families to live in the home.

Johnson also testified that he placed other items on the disputed property to the east of the area used for parking. He kept construction materials there during remodeling work from 2000 to 2003, and he parked a pop-up camper there for five years. During the remodeling, he moved a small portable shed that he previously kept close to his house onto the disputed area, and he placed a short portable wooden boardwalk there. Neither of those items was secured to the ground.

....

Until Galiher had her property surveyed and her property lines marked, Johnson did not know where Lot 21 ended and Lot 23 began, and he thought that her predecessors in interest permitted his use of the disputed area out of a sense of reasonable neighborly accommodation.² He recognized all along that his various neighbors owned much of the land he was using for parking, and until his first conversation with Galiher, he had taken no steps to assert his [ ] ownership over any part of Lot 23.

On March 17, 2016, the district court issued its decision, in which it concluded the Johnsons had proven their adverse possession claim. The court identified the central question to be whether, in light of Johnson’s satisfaction of his burden of producing evidence indicative of adverse possession, Galiher sufficiently rebutted that proof with evidence that Johnson’s use of the disputed property was permissive or otherwise not hostile to Galiher’s ownership.

Paragraph 9 in the "Findings and Conclusions" portion of the district court’s decision recites:

Defendants’ subjective intent or any other property owner’s subjective intent is irrelevant in proving or disproving adverse possession. As such, the Court will only rely on the admissible objective evidence and testimony presented at trial in considering Defendants’ intent to establish adverse possession.

The court found that between 1977 and 1984, and between 1986 and 2013, neither the Hollingsworths nor the Johnsons asked for or received permission from any owner of Lot 23 to use the disputed property. Finding that Galiher had not shown by admissible evidence that such use was permissive or a neighborly accommodation, the court determined the Johnsons had adversely possessed the property since 1986 and therefore acquired title to it in 1996.

Galiher I , ¶¶ 4-17, 391 P.3d at 1102-06.

[¶4] Ms. Galiher appealed the decision, and this Court concluded the district court erred when it refused to consider Mr. Johnson’s statements that he had permission from Ms. Galiher’s predecessors to use the property. Id ., ¶ 30, 391 P.3d at 1107-08. Consequently, we reversed and remanded so the district court could "consider the statements together with the other testimony and evidence in the record." Id .

[¶5] On remand the parties agreed that no additional testimony or evidence was necessary. They submitted further briefing and...