Davis v. Chadwick

• Decision Date: 18 October 2002
• Citation: 2002 WY 157,55 P.3d 1267
• Parties: W. Tom DAVIS, Trustee of the Doyle F. Child Family Living Revocable Trust dated June 1, 1992, Appellant (Plaintiff), v. Russell CHADWICK, a single man, Alan Chadwick and Denise Chadwick, husband and wife, Appellees (Defendants).
• Court: Wyoming Supreme Court

55 P.3d 1267

2002 WY 157

W. Tom DAVIS, Trustee of the Doyle F. Child Family Living Revocable Trust dated June 1, 1992, Appellant (Plaintiff), v. Russell CHADWICK, a single man, Alan Chadwick and Denise Chadwick, husband and wife, Appellees (Defendants).

No. 02-2.

Supreme Court of Wyoming.

October 18, 2002.

Ted C. Frome of Afton, Wyoming, Representing Appellant. Argument by Mr. Frome.

John D. Bowers of Bowers Law Office, P.C., Afton, Wyoming, Representing Appellees. Argument by Mr. Bowers.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] W. Tom Davis (Appellant), as trustee of the Doyle F. Child Family Living Revocable Trust, appeals an order of the district court quieting title in approximately .36 acres in Russell, Alan, and Denise Chadwick (Appellees). The land in dispute has been enclosed with Appellees' land since the initial construction of a fence on the property over 50 years ago. The district court rejected Appellant's claim that the fence was one of convenience and quieted title in Appellees on the basis of adverse possession. After carefully reviewing the record, we affirm.

ISSUES

[¶ 2] Appellant sets forth two issues in his brief:

Issue No. 1:

Did the Defendants prove all of the elements of adverse possession where they rely on grazing to establish their claim?

Issue No. 2:

Did the trial court err when it determined the fence was not a fence of convenience?

Appellees rephrase the issues slightly:

ISSUE NO. 1:

Was there sufficient evidence presented at trial for the court to find that the Defendants have proven all of the elements of adverse possession regarding the disputed property?

ISSUE NO. 2:

Was there sufficient evidence for the trial court to find that the fence separating the disputed property was not a fence of convenience?

FACTS

[¶ 3] This is a dispute over the ownership of land located in the Town of Afton. The parties are adjoining landowners. The area in controversy has been enclosed with lands owned by the Appellees and their predecessors in interest since the fence was initially constructed over 50 years ago. Appellant has paid taxes on all the property contained within his deed, which includes the contested parcel. Historically, the parties have allowed the Town of Afton to temporarily remove the fence along the disputed area during the winter months. The Town uses the property as a recreational area for winter sports including skiing, snowmobiling, and sledding.

[¶ 4] The discrepancy between the fence line and the property line came to light in August of 1997 when Appellant commissioned a survey. The fence is about 429 feet in length and runs in a straight line. It is 23 feet west of the survey line on the north and 49½ feet west of that line on the south end. The fence is located on relatively flat ground that gradually increases in elevation from north to south. Constructing a fence on the survey line would be slightly more difficult and expensive due to a hill that rises steeply east of the fence line. The fence, as it existed, resulted in about .36 acres of Appellant's property being enclosed within Appellees' land. Until the survey, the parties had assumed the fence was on the true property line.

[¶ 5] The existing fence line continues south beyond the property boundary between the parties and separates Appellees' land from those of other owners. The fence runs in a straight line from the disputed property over a hill with an incline even steeper than the hill to the east of the disputed property. This fence also does not follow the true property line.

[¶ 6] Appellant filed an action to quiet title in the disputed property. The Appellees countered with a claim for adverse possession.² The matter proceeded to a bench trial before the district court. Appellant contended that the fence was one of convenience, and that Appellees' adverse possession claim should fail because their possession of the disputed land was not exclusive in light of the Town's use during the winter months. Appellees denied the fence was one of convenience and asserted that the elements of adverse possession had been met. They provided evidence that the disputed property had been used for the grazing of cattle and/or horses since at least 1957³ whenever vegetation and moisture conditions allowed. [¶ 7] The district court concluded that Appellees had met their burden and demonstrated adverse possession of the disputed area. The court found that allowing the Town of Afton to use the property during the winter months did not negate the exclusivity element because the Town was acting as the Appellees' agent. The court also concluded that Appellant had failed to negate the showing of adverse possession by a showing that the fence was one of convenience. Specifically, the court noted that the fence ran in a straight line past the disputed area up a steep grade on a hill and was not on the true property line separating Appellees' land from the other adjoining owners. The court also noted that all of the parties believed that the fence was the true boundary until the survey. Based on these facts, the district court concluded that the fence was not one of convenience and quieted title to the disputed parcel in Appellees. Appellant now challenges that ruling before us.

STANDARD OF REVIEW

[¶ 8] When a trial court has made express findings of fact and conclusions of law in a bench trial, we review the factual determinations under the clearly erroneous standard and the legal conclusions de novo. State v. Campbell County School District, 2001 WY 19, ¶ 41, 19 P.3d 518, ¶ 41 (Wyo. 2001) (quoting Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999)). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Campbell County School District, ¶ 41 (citing Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993)). In the alternative: "[A] determination that a finding is against the great weight of the evidence means a finding will be set aside even if supported by substantial evidence." Id.

DISCUSSION

[¶ 9] In Hillard v. Marshall, 888 P.2d 1255 (Wyo.1995), we set out in detail the legal framework of adverse possession and fences of convenience:

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. Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129, 1132 (Wyo.1982); City of Rock Springs v. Sturm, 39 Wyo. 494, 502, 273 P. 908, 910 (1929). Possession must be for the statutory period, ten years. W.S. 1-3-103(1988); Connaghan v. Eighty-Eight Oil Co., 750 P.2d 1321, 1323 (Wyo.1988); Doenz v. Garber, 665 P.2d 932, 935 (Wyo.1983). 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. Meyer v. Ellis, 411 P.2d 338, 342 (Wyo.1966) (quoting City of Rock Springs v. Sturm, 39 Wyo. at 517, 273 P. at 915-16). However, if a claimant's use of the property is shown to be permissive, then he cannot acquire title by adverse possession. Ellis, 411 P.2d at 344 (quoting Johnson v. Szumowicz, 63 Wyo. 211, 228-29, 179 P.2d 1012, 1017 (Wyo. 1947)).

In some circumstances, enclosing land in a fence is sufficient to "raise the `flag' of an adverse claimant." Ellis, 411 P.2d at 343; Doenz, 665 P.2d at 936 (presence of fence and continuing farm operations put record landowners on notice of adverse claim). The pasturing of animals within a substantial enclosure is sufficient to establish the elements of adverse possession. Farella v. Rumney, 649 P.2d 185, 186-87 (Wyo.1982) (quoting Shores v. Lindsey, 591 P.2d 895, 902 (Wyo.1979)). However, a fence kept only for the convenience of the parties or to separate pastures or irrigated meadows from grazing lands has no effect on the true boundary between tracts. Sowerwine v. Nielson, 671 P.2d 295, 297 (Wyo.1983); State v. Vanderkoppel, 45 Wyo. 432, 439, 19 P.2d 955, 957 (Wyo.1933) ....

... [In] the context of adverse possession, a presumption arises in favor of the claimant when a prima facie case has been made, requiring a conclusion in favor of adverse possession absent explanation. Similarly, it could be said that a presumption in favor of the record title holder exists, unless and until the adverse claimant makes out his prima facie case, because the initial burden of proof is on the party claiming adverse possession. Sowerwine, 671 P.2d at 302; Miller v. Bell, 764 P.2d 389, 390 (Colo.App.1988) ("An initial presumption favors the record title holder as against the adverse possession claimant."); Accord Gonthier v. Horne, 576 A.2d 745 (Me.1990); Miceli v. Foley, 83 Md. App. 541, 575 A.2d 1249 (1990). Once the adverse possession claimant has made out his prima facie case, and absent any explanatory circumstances to the contrary, the burden shifts to the opposing party to produce evidence contrary to the presumption. Sturm, 39 Wyo. at 517, 273 P. at 915-16; Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364, 368 (Wyo.1989); accord Szombathy v. Shell Oil Co., 676 S.W.2d 15, 18 (Mo.App.1984).

888 P.2d at 1258-60; see also Hovendick v. Ruby, 10 P.3d 1119, 1122-23 (Wyo.2000) and Kimball v. Turner, 993 P.2d 303, 305-06 (Wyo.1999).

[¶ 10] Appellant begins by challenging the district court's conclusion that Appellees had established adverse possession. First, Appellant claims that the trial court adopted an improper legal standard in its findings and conclusions by not including the requirements that the grazing on the disputed tract was for the entire growing season and within a substantial...