Ferguson v. Ferguson

• Decision Date: 09 July 1987
• Docket Number: No. 86-160,86-160
• Citation: 739 P.2d 754
• Parties: Walter Chester FERGUSON, Jr., Appellant (Defendant), v. Martin Wesley FERGUSON, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 754

739 P.2d 754

Walter Chester FERGUSON, Jr., Appellant (Defendant), v. Martin Wesley FERGUSON, Appellee (Plaintiff).

No. 86-160.

Supreme Court of Wyoming.

July 9, 1987.

Frederic C. Reed, Cheyenne, for appellant.

John W. Pattno, Cheyenne, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

The primary legal problem in this case is whether the district court was justified in entering a partial summary judgment against a cotenant on the ground that as a matter of law the record foreclosed his claim of adverse possession against the other cotenants, a brother and a sister. The other issues in the case then were tried to the court, and claims of error are asserted charging that the trial court should not have granted a motion to strike the appellant's jury demand and that the judgment of the trial court was opposite from what it should have been according to the weight of the evidence. The trial court correctly applied the law in granting the partial summary judgment; the jury demand properly was stricken in this instance; and the weight of the evidence does not require a different conclusion than the one reached by the trial court. The judgment of the trial court is affirmed in all respects.

In the appellant's brief, the issues in this case are stated to be:

"1. Whether the trial court erred in granting partial summary judgment as to appellant's third cause of action upon his counterclaim for quiet title by adverse possession.

"2. Whether the trial court erred in granting appellee's motion to strike appellant's jury demand.

"3. Whether the judgment of the trial court was contrary to the weight of the evidence requiring reversal and retrial."

The appellee agrees that the issues are those set forth in the appellant's brief.

The setting for this case is Laramie County, and the scenario involves a family ranching enterprise. The subject matter of the case is 1,300 acres of land deeded by the paternal grandmother of the parties to her grandchildren, Martin, Walter, Jr., Bergetta and another sister who sold her interest in the property to the parties' father, Walter, Sr., in 1944. The land was transferred to the grandchildren instead of their father, Walter, Sr., because of financial difficulties that the father had at the time. The hope was to protect this property from the father's creditors.

Even though the record title was in the name of the grandchildren, Walter, Sr., exercised control over the land, using it as a part of his ranch from 1934 to 1954. In 1954, a corporation, known as Walter Ferguson & Sons, Inc., was formed by Walter, Sr., with his children, Martin, Walter, Jr., and Bergetta. The assets of the corporation consisted of two ranches, one comprising 8,885 acres and the other 4,435 acres. In 1956, a third ranch was purchased which encompassed 9,289 acres. Walter, Sr., owned 48% of the stock in this corporation; Martin and Walter, Jr., each had 25% of the stock; and Bergetta had 2%. The land in dispute never was transferred to the corporation. Although it was operated as part of the corporation's land, it remained in the names of Martin, Walter, Jr., and Bergetta.

In 1963, Martin needed money to finance a divorce action which then was pending. Walter, Sr., Walter, Jr., and Bergetta agreed to allow Martin to mortgage the disputed land provided that he would pay the taxes on it and would pay the debt which the mortgage secured. Later in the year, Walter, Sr., died, and he left his interest in the land and his stock in the corporation to Martin, Walter, Jr., and Bergetta. Martin and Walter, Jr., then owned 41.5% of the stock in the corporation each, while Bergetta's interest was 17%.

The two brothers and the sister continued to operate the ranch as a unit until 1966 when they disagreed with respect to the management of this enterprise. They concluded to resolve their differences by splitting up the corporation. Consultation with an attorney and an accountant led the three to decide to operate the enterprise as three separate ranches under one corporate name for five years in order to effect a "spin off" for federal income tax purposes. In December of 1971, when the five-year period had elapsed, Martin, Walter, Jr., and Bergetta executed an agreement pursuant to which the ranching enterprise, except for the 1,300 acres in dispute, was divided into three separate ranches, one for each of the parties. The divided ranch lands then were held by the respective parties in their individual names, unlike the 1,300 acres in dispute. The agreement did not treat with the 1,300 acres of land.

Walter, Jr., in the litigation, asserted that the three made an oral agreement that he would obtain sole title to the 1,300 acres at some future time when Martin had paid off the mortgage. Martin and Bergetta denied any such oral agreement. During the period from the corporate dissolution until the partition action was commenced, Walter, Jr., used the 1,300 acres for grazing his cattle, fenced the land, paid expenses attributable to it, and conducted some farming operations on it all as a part of the operation of his ranch unit. As he had agreed to do, Martin continued to pay the taxes until 1985 when the mortgage was satisfied.

In March of 1985, Martin and Bergetta then brought this action to partition the 1,300 acres. Walter, Jr., answered the partition action alleging affirmative defenses of estoppel, unjust enrichment and breach of the oral contract. In his answer, he filed a counterclaim for specific performance of the oral contract and demanded a jury trial on the issues raised in his counterclaim. During the pendency of the action, Bergetta transferred her interest in this land to Walter, Jr., and she no longer was a party to the proceedings. Martin filed a motion for summary judgment which the trial court granted in part, concluding that the record could not justify a claim of adverse possession by Walter, Jr., as a matter of law. With respect to the balance of the issues, the trial court found them primarily equitable in nature and therefore granted Martin's motion to strike Walter, Jr.,'s demand for a jury trial. The case then was assigned to another judge for trial on the remaining issues. After trial, the judge found that there was no oral contract to assign the land to Walter, Jr., and he partitioned the disputed property, granting Walter, Jr., the appellant, two-thirds of the property, and Martin, the appellee, one-third of the property. This appeal then is taken from the summary judgment and the ultimate judgment entered by the trial court.

The trial court properly granted the partial summary judgment on the issue of adverse possession by Walter, Jr. There was no genuine issue of any material fact, and Martin was entitled to judgment as a matter of law. The record discloses that Walter, Jr., used the land for the purpose of grazing his cattle, put up fences for that purpose, conducted some farming operations on the land from which he received the profits and treated the land as a part of his ranch. The record also discloses an agreement by the parties pursuant to which Martin used land that Walter, Jr., received as a product of the corporate dissolution for grazing cattle, and the quid pro quo was the use of the 1,300 acres by Walter, Jr. Martin paid the taxes on the 1,300 acres until 1985, and he maintained it as security for a mortgage with the permission of Walter, Jr., and Bergetta. The record is silent with respect to any manifestation on the part of Walter, Jr., that he intended to possess the disputed land adversely to the interests of his brother and sister.

In order to establish a claim of adverse possession, the claimant must demonstrate "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." Farella v. Rumney, Wyo., 649 P.2d 185, 186 (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). In addition, we have said that an intent to assert an adverse claim is necessary to establish title by adverse possession. Gray v. Fitzhugh, Wyo., 576 P.2d 88 (1978); Bryant v. Cadle, 18 Wyo. 64, 104 P. 23 (1909), reh. denied 18 Wyo. 95, 106 P. 687 (1910). The intent to assert an adverse claim must be established by objective evidence, that is there must be objective indications of an intent to adversely possess the land of another. Testimony as to the claimant's subjective intent does not suffice. City of Rock Springs v. Sturm, supra.

The requirement of objective evidence to assert an adverse claim makes it very difficult for a cotenant to establish adverse possession against another cotenant. In Osborn v. Warner, Wyo., 694 P.2d 730, 733 (1985), we said:

" '[M]ere possession and use of the entire property by one cotenant is not an ouster, nor is his possession adverse, so long as the other cotenants remain voluntarily out of possession, and are not kept out of possession by the acts of the possessor-tenant.' (Footnotes omitted.) II American Law of Property § 6.13 (1952), pp. 52-54. See Hackett v. Linch, 57 Wyo. 289, 116 P.2d 868 (1941)."

Walter, Jr., relies on Petrusic v. Carson, Wyo., 496 P.2d 70, 71-72 (1972), in which this court recited the facts as follows:

" * * * Plaintiff Carson has had possession of the land known as the Buck place since 1930, paying all taxes, maintaining all fences around it and subsequently enclosing it within his pastures and fields, cultivating various acreages of it and raising livestock thereon; in 1944 he quieted title to the 'sheriff's mortgage' in an action against Barnes Brothers of Minnesota, et al.; executed various oil and gas leases involving the property since 1945; received all rents and profits from the land since 1930, leasing portions of it--beginning probably in 1930; and in 1938 when a highway...