Farella v. Rumney, 5665

• Decision Date: 23 July 1982
• Docket Number: No. 5665,5665
• Citation: 649 P.2d 185
• Parties: Angelo FARELLA and Tony J. Farella, Appellants (Defendants), v. Raymond J. RUMNEY and Betty Anna Rumney, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 185

649 P.2d 185

Angelo FARELLA and Tony J. Farella, Appellants (Defendants), v. Raymond J. RUMNEY and Betty Anna Rumney, Appellees (Plaintiffs).

No. 5665.

Supreme Court of Wyoming.

July 23, 1982.

Gordon W. Schukei of Whitley & Schukei, Newcastle, for appellants.

Richard J. Macy and Alan Jay Harper (argued) of Macy & Harper, Sundance, for appellees.

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

ROONEY, Justice.

Appellees-plaintiffs brought an action against appellants-defendants to quiet title to a piece of property for which they, appellees, hold record title. Appellants counterclaimed, asserting ownership to a portion of that property by adverse possession. Following a trial to the court, judgment was entered for appellees. On appeal, appellants contend, in effect, that they established the necessary elements of adverse possession and that the trial court erred in denying their counterclaim.

We do not agree with this contention and accordingly affirm.

Appellants and appellees own adjoining land in the northwest quarter of Section 29, Township 46 North, Range 61 West of the 6th P.M., in Weston County. Appellants are the record owners of the north half of that quarter section. Appellees are the record owners of the south half of that quarter section. Both appellants and appellees trace their ownership to a common owner who divided and sold the land in 1959. The area in dispute is summer livestock grazing land in the south half of the quarter section, adjacent to the north half of it, and land owned, according to the record, by appellees with the eastern, southern and western boundaries partially marked by two fences and a canyon rim. The diagram attached as Appendix provides a graphic representation of the area, the shaded portion being the area in dispute.

The bulk of the testimony at trial concerned the use of the area in dispute and, more specifically, whether or not the two fences and canyon rim enclosed that area. Appellants' and appellees' evidence conflicted on these points. However, both appellants and appellees testified that they or their predecessors in interest had used the area in dispute during the summer grazing seasons since 1959.

Our review of the evidence is governed by the following standards:

" * * * (W)hen a claim such as adverse possession, which is peculiarly factual in nature, is questioned on appeal, the decision of the trial court, because of its proximity to the witnesses and evidence involved, should be given considerable deference:

" 'And in a case such as this where the evidence is conflicting or when there is evidence to sustain the trial court's finding, this court will not interfere with that finding unless it is clearly erroneous or so totally against the evidence or great weight thereof as to be manifestly wrong.' Alexander v. Kadolph, supra, 562 P.2d at 314." Snell v. Ruppert, Wyo., 582 P.2d 916, 917 (1978).

We accept as true the evidence of the successful party, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give the evidence of the successful party every favorable inference which may fairly and reasonably be drawn therefrom. Johnson v. Aetna Casualty and Surety Company of Hartford, Wyo., 630 P.2d 514, 515 (1981); Madrid v. Norton, Wyo., 596 P.2d 1108, 1117 (1979).

The elements of adverse possession consist of actual, open, notorious, exclusive, and continuous possession of another's real property for the statutory period, which possession is hostile and under a claim of right or color of title. Shores v. Lindsey, Wyo., 591 P.2d 895, 898 (1979); and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 910, 97 A.L.R. 1 (1929). These elements must exist for at least ten years prior to the commencement of an action affecting title to or possession of the property. Section 1-3-103, W.S.1977. The adverse claimant has the burden of proving the existence of these elements for the statutory period. Shores, supra, 591 P.2d at 901-902.

In Shores, supra, we recognized the legal principle that the pasturing of livestock during the growing season within a substantial enclosure can be sufficient to establish the...