Doenz v. Garber, 83-31

• Decision Date: 20 June 1983
• Docket Number: No. 83-31,83-31
• Citation: 665 P.2d 932
• Parties: William J. DOENZ and Herbert A. Doenz, Appellants (Defendants), v. Victor GARBER and Phyllis M. Garber, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 932

665 P.2d 932

William J. DOENZ and Herbert A. Doenz, Appellants (Defendants), v. Victor GARBER and Phyllis M. Garber, Appellees (Plaintiffs).

No. 83-31.

Supreme Court of Wyoming.

June 20, 1983.

Frank C. Richter, Billings, Mont., signed the briefs and appeared in oral argument on behalf of appellants.

Rex O. Arney of Redle, Yonkee & Arney, Sheridan, signed the brief and appeared in oral argument on behalf of appellees.

Before ROONEY, C.J., and RAPER ^*, THOMAS, ROSE and BROWN, JJ.

RAPER, Justice, Retired.

The genesis of this appeal is an action brought by plaintiffs (appellees) to quiet title in 3.01 acres of land claimed by adverse possession as against defendants (appellants) for over ten years. The trial court, after making findings of fact and conclusions of law, entered judgment for the appellees but required them, at their expense, to replace the fence removed by appellants before appellees asserted their claim. Appellees do not appeal that part of the judgment.

The issues, as presented by the appellants, are:

1. "Whether the appellees have been in actual, open, notorious, exclusive and continuous possession of the real property in question for a period of ten (10) years, which possession is hostile and under a claim of right or color of title."

2. "Whether the appellees have met the burden of proof as to each of the elements of adverse possession."

3. "Whether the court erred in its finding that the appellees have shown that the period of adverse possession was for the requisite ten (10) years."

4. "Whether the court erred by not requiring appellees to prove that any period of adverse possession by their predecessor should be tacked on to the period of adverse possession claimed by appellants."

5. "Whether the appellees possessed the requisite intent to assert an adverse claim against the true owners, the appellants."

6. "Whether appellees' failure to pay taxes weakened the claim of adverse possession sufficiently to disallow it."

7. "Whether appellees' acceptance of the movement of the fence indicates that they did not possess the land with the intent required in order to establish a claim of adverse possession."

8. "Whether the evidence supports the finding that the appellees did not agree to the movement of the fence by their acquiescence to the movement."

Appellees frame the issues differently:

1. "Whether the trial court correctly held that the Garbers [appellees] established the necessary elements of adverse possession to the tract of land in dispute."

2. "Whether the trial court properly held that the Garbers [appellees] possessed the disputed tract for the statutory period of ten years."

3. "Whether the movement of fences by Doenz [appellants] onto the adversely possessed tract held by Garbers [appellees] defeated the adverse possession claim."

4. "Whether the trial court committed reversible error in excluding from its consideration the payment of property taxes by Doenz [appellants]."

We prefer the shorter version of appellees, but within our treatment on that basis will cover, as appropriate, points raised in appellants' statement of issues.

We will affirm.

In order to more readily follow a narrative of the facts, a sketch of the fence location and disputed ground will be helpful:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The appellees acquired the land marked Garber by warranty deed dated March 19, 1971, later recorded on December 30, 1971. They had leased the land up to that time since 1965. The fence in question served as part of an enclosure of about eighty acres used by appellees as a pasture. The east-west fence is about one half mile long and the north-south fence about one quarter mile long. The enclosed area, which was irrigated in part, was used to graze cattle and produce hay. The appellants, in connection with a transfer of title to lands between them, employed a surveyor to locate their lands on the ground. As a result of the survey the deed line established that the fence line which had been in place for some sixty years encroached upon the lands of appellants by some twenty to thirty feet. Appellants had never used the lands south and east of the old fence.

Following trial, the district judge made findings of fact, paraphrased: that appellees had occupied said enclosure for more than ten years prior to the commencement of the legal proceedings; that between September 1981, and March 1982, appellants built a new fence on the true legal boundary and that there was disputed testimony that appellees' son, David Garber, had agreed to the relocation of the fence; and that appellees became aware of the fence relocation and did not object until the east-west portion of the fence was completed and the posts for the north-south fence had been put in. The court's conclusions of law are paraphrased: that appellees acquired fee simple ownership to the disputed tract by solely and exclusively possessing it for more than ten years and the possession was open, notorious, adverse and hostile to the appellants; that appellants had no claim in said tract of land; and that appellees were entitled to move the new fences back to their original fence lines at their own expense.

Other facts will be set out as necessary in disposition of the issues.

I

Were the necessary elements of adverse possession present? The elements of adverse possession consist of actual, open, notorious, exclusive and continuous possession of another's real property for the statutory period of ten years ¹ under a claim of right or color of title. Rutar Farms and Livestock, Inc. v. Fuss, Wyo., 651 P.2d 1129 (1982); Farella v. Rumney, Wyo., 649 P.2d 185 (1982); Shores v. Lindsey, Wyo., 591 P.2d 895 (1979); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929). If the other elements exist, it is the policy of the law to give the adverse possessor a title when an action to recover lands is barred by the statute of limitations; the possessor is vested with a fully new and distinct title. Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 136 A.L.R. 770, reh. denied 113 P.2d 963 (1941).

There is no question but that appellees actually, openly, notoriously and exclusively occupied the land between the fence line and the deed line. They used it to graze cattle and for hay which was cut. It had never been so used by appellants, nor had any question about the boundary ever before been raised, though neighbors of appellees for many years.

II

Did the appellees possess the disputed area for ten years? The appellants contend that while appellees received a deed to the lands on March 19, 1971, it was not recorded until December 30, 1971; so, therefore, adverse possession could not start until the latter date. Prior to the expiration of ten years after the recording, appellants had built their new fence on the east-west deed line, had downed the old fence, and the new posts were up on the north-south line. The survey was undertaken prior to March 1981. Appellants were informed of the discrepancy by the surveyor in March 1981. Appellants started new fence construction in September 1981, less than ten years after the deed was recorded. Appellants add to that the further fact that the court action, appellees' first recognizable objection, was not started until April 1982, after appellants claim they had stopped the ten-year continuity of appellees' possession by reentry. Appellants rely on § 34-1-120, W.S.1977:

"Every conveyance of real estate within this state, hereafter made, which shall not be recorded as required by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate or any portion thereof, whose conveyance shall be first duly recorded."

Appellants' position is that there must be some notice to the owner that adverse possession has begun, citing McKnight v. Basilides, 19 Wash.2d 391, 143 P.2d 307 (1943), and that recording of the deed is the required notice. That case involved adverse possession as between co-tenants and also held that an ouster of one tenant-in-common by his co-tenant requires stronger and more convincing evidence than is necessary to sustain the ordinary claim of adverse possession. The court went on to recognize with respect to co-tenants a rule that there must be actual notice or the hostile character of possession must be so manifest, open, and notorious that notice is presumed. No recording statute was involved in McKnight. The case is not on point.

In Near v. Casto, Wyo., 613 P.2d 577 (1980), this court held that where the land under dispute was within the fence line of the adverse possession claimants who had exercised dominion over it by leasing for ranching and oil and gas and conducting their own ranching operations, and who believed they possessed the land to the fence line for more than ten years, all the essential elements of adverse possession were present. In Shores v. Lindsey, supra, this court recognized that pasturing of livestock during the grazing season is continuous dominion and control. The rule was reiterated in Farella v. Rumney, supra.

The appellants have overlooked the language of the rule as being in the alternative, "color of title or claim of right." Appellants look only at the "color of title." A color-of-title situation would be one in which there was a void deed. Knight v. Boner, Wyo., 459 P.2d 205, 207 (1969), defined "color of title" as an instrument which has a semblance or appearance of title but is not title in fact or law. However that may be, a claim of right is sufficient in this state for the purpose of initiating adverse possession; and a deed, even void on its face, is a color of title sufficient to constitute a claim of color of title. Bruch v. Benedict, 62 Wyo. 213, 165 P.2d 561 (1946).

Even though § 34-1-120, W.S.1977, is a notice statute, it is intended to void another's conveyance of...