Kimball v. Turner

• Decision Date: 17 December 1999
• Docket Number: No. 98-165.,98-165.
• Parties: George C. KIMBALL and Beverly T. Kimball, Appellants (Plaintiffs), v. Lowell H. TURNER and Opal H. Turner, Appellees (Defendants).
• Court: Wyoming Supreme Court

993 P.2d 303

George C. KIMBALL and Beverly T. Kimball, Appellants (Plaintiffs), v. Lowell H. TURNER and Opal H. Turner, Appellees (Defendants).

No. 98-165.

Supreme Court of Wyoming.

December 17, 1999.

Representing Appellants: Joseph B. Bluemel, Kemmerer, WY.

Representing Appellees: Gerald L. Goulding, Afton, WY.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

LEHMAN, Chief Justice.

The descendants of Rawsel Turner (Rawsel) are quarreling over 7.3 acres of family ground. Although the 7.3 acre parcel was homesteaded by Rawsel's son, Deloss Turner, it is enclosed within a fence erected by Rawsel. Rawsel's successors in interest sought to quiet title in the property by adverse possession or, in the alternative, asserted that the property boundary had been altered by recognition and acquiescence. The district court rejected both theories, finding that the fence was not a boundary fence, but one of convenience. Because we conclude that the district court's finding is not clearly erroneous, we affirm.

ISSUES

Appellants present four issues for our review:

1. Whether the Court committed error in granting the Plaintiffs only part of the disputed property.

2. Whether the Court committed error in finding that Plaintiffs did not meet the requirements to establish a boundary by implied acquiescence.

3. Whether the Court committed error in finding that the Plaintiffs did not fulfill the requirements for adverse possession.

4. Whether the Court committed error in finding that the fence in question was a fence of convenience.

Appellees accept the first three issues as stated by the appellants, but rephrase the fourth issue in this manner:

Whether the trial court committed error in finding "that the facts and circumstances of this case are not equivalent to an express agreement to make the fence the boundary line."

FACTS

In 1915, Rawsel Turner received a United States patent to 78 acres in Lincoln County near Bedford. Sometime between 1915 and 1920, Rawsel erected a fence in the vicinity of the southern boundary of his property. Actually, the fence was located beyond the southern boundary of Rawsel's land, and it enclosed approximately 7.3 acres of land which was then owned by the United States Forest Service. In 1929, Rawsel's son, Deloss Turner, received a patent to the Forest Service land immediately south of Rawsel's. Since this time, the fence has been maintained in the same location.

Over the years, the Rawsel and Deloss properties were passed down among the Turners. Rawsel's land was eventually conveyed to his son Clifford Turner. Clifford and his wife Ruth have, in turn, passed it on to their children. In 1983, Clifford and Ruth deeded an acre of land in the southwest corner of their property to their daughter Carol Lucy Downes. Believing the fence to constitute the southern boundary, Mrs. Downes and her husband placed their home on the now disputed property. The appellants in this case, Beverly Kimball (Clifford and Ruth Turner's oldest daughter) and her husband George are fee owners of a majority of the parcel homesteaded by Rawsel.

In the meantime, Deloss' land was also passed down through the generations. The appellees, Lowell Turner (Deloss' son) and his wife Opal currently own most of the land homesteaded by Deloss. When Lowell and Opal decided to convey parcels to their children for them to build on, a survey was required. At this time, around 1992, the surveyor noticed the fence was not located on the property boundary. Other surveys followed, and the parties eventually learned that the fence enclosed 7.391 acres of largely undeveloped land located within Lowell and Opal Turner's property description. The property in question is partially forested and rises steeply to the east.

When Lowell and his son Kory Turner began erecting a fence on the true property line, the Kimballs and Carol Downes instituted this action. They first requested, and were granted, a restraining order. At the same time, the Kimballs and Downes sought to quiet title to the disputed 7.3 acres, claiming the property by adverse possession. In the alternative, they claimed that the fence had altered the boundary under the doctrine of recognition and acquiescence. After a bench trial, the district court rejected both theories as they relate to the Kimballs, finding that the fence constitutes a fence of convenience. However, the district court ruled in favor of Downes and quieted title to one acre of the disputed parcel in her. The remainder of the disputed property was quieted in Lowell and Opal Turner, the appellees. The Kimballs timely appeal.

STANDARD OF REVIEW

Whether a fence is a boundary fence or merely one of convenience is a question of fact. Hillard v. Marshall, 888 P.2d 1255, 1260 (Wyo.1995). This court will not set aside a district court's findings of fact unless the findings are clearly erroneous or contrary to the great weight of the evidence. Id.; Sowerwine v. Nielson, 671 P.2d 295, 301 (Wyo.1983); Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo.1998). When reviewing the record, we keep in mind the following principles:

The judge who presided at the trial heard and saw the witnesses. He is in the best position to determine questions of credibility and weigh and judge the evidence, both expert and non-expert. Thus, on appeal, it is a firmly established and oft-stated rule that we must accept the evidence of the successful party as true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference that may fairly and reasonably be drawn from it.

Hillard v. Marshall, 888 P.2d at 1260 (quoting Sowerwine v. Nielson, 671 P.2d at 301). We review a district court's conclusions of law de novo. Stansbury v. Heiduck, 961 P.2d at 978

.

DISCUSSION

Adverse Possession

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. Stansbury v. Heiduck, 961 P.2d at 979; Hillard v. Marshall, 888 P.2d at 1258; Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129, 1132 (Wyo.1982). Possession must be for the statutory period, ten years. Wyo. Stat. Ann. § 1-3-103 (Lexis 1999); Hillard v. Marshall, 888 P.2d at 1258; Connaghan v. Eighty-Eight Oil Co., 750 P.2d 1321, 1323 (Wyo.1988). Where 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. Hillard v. Marshall, 888 P.2d at 1259; Meyer v. Ellis, 411 P.2d 338, 342 (Wyo.1966); City of Rock Springs v. Sturm, 39 Wyo. 494, 517, 273 P. 908, 915-16 (1929). However, if a claimant's use of the property is shown to be permissive, he cannot acquire title by adverse possession. Hillard v. Marshall, 888 P.2d at 1259; Meyer v. Ellis, 411 P.2d at 344.

In some circumstances, enclosing land in a fence is sufficient to "raise the flag" of an adverse claimant. Meyer v. Ellis, 411 P.2d at 343; Doenz v. Garber, 665 P.2d 932, 936 (Wyo.1983); Hillard v. Marshall, 888 P.2d at 1259. However, a fence kept simply for convenience has no effect upon the true boundary between tracts of land. Sowerwine v. Nielson, 671 P.2d at 297; Hillard v. Marshall, 888 P.2d at 1260. This is so because a fence of convenience creates a permissive use, and a permissive user

cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter's knowledge; there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile.

Hillard v. Marshall, 888 P.2d at 1261 (quoting Stewart v. Childress, 269 Ala. 87, 111 So.2d 8, 13 (1959)).

After a bench trial, the district court found that the fence erected by Rawsel was a fence of convenience and ruled that the Kimballs had not established their claim for adverse possession.² In making its ruling, the district court could have followed either of two routes. Hillard v. Marshall, 888 P.2d at 1260. First, it could have concluded that the Kimballs had not made a prima facie case of adverse possession because the convenience fence was an explanatory circumstance to the contrary; or, second, it could have found that the Kimballs had made out a prima facie case but concluded that the evidence that the fence was one of convenience rebutted the presumption of adverse possession. Although the record does not reveal which of these means the trial court employed to arrive at its decision, it does not matter. Under either scenario, the district court's decision would stand; if the evidence that the fence was one of convenience is sufficient to establish that fact in the first place, then it is sufficient to rebut the presumption. Hillard v. Marshall, 888 P.2d at 1260. Thus, the question for this court is whether the district court's finding of a convenience fence is clearly erroneous. We conclude it is not.

The district court summarized its findings in this fashion:

[T]he physical appearance of the fence . . . clearly demonstrates that it could not have been constructed as a boundary fence. To call the structure a fence is generous. It consists of 3 wires meandering between trees, bushes, and fence posts in an irregular fashion. It appears from the physical appearance that someone walked in the east-west direction stringing barbwire from tree to tree, placing fence posts when trees or bushes were not available. The irregular course of the fence clearly

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