Gray v. Fitzhugh, No. 4815

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GUTHRIE; RAPER
Citation576 P.2d 88
Decision Date17 March 1978
Docket NumberNo. 4815
PartiesWilliam S. GRAY and Robert J. Gray, Appellants (Plaintiffs below), v. Gordon M. FITZHUGH and Mary C. Fitzhugh, Appellees (Defendants below).

Page 88

576 P.2d 88
William S. GRAY and Robert J. Gray, Appellants (Plaintiffs below),
v.
Gordon M. FITZHUGH and Mary C. Fitzhugh, Appellees (Defendants below).
No. 4815.
Supreme Court of Wyoming.
March 17, 1978.

Page 89

J. Patrick Hand, Hand, Hand & Hand, Douglas, signed the brief and also appeared in oral argument with Robert J. Reese, senior law student, University of Wyoming, Laramie, on behalf of the appellants (plaintiffs below).

Frank J. Jones, Wheatland, signed the brief and appeared in oral argument on behalf of the appellees (defendants below).

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

In this case, plaintiffs-appellants appeal from the denial by the district court of their claim for damages as well as their request for establishment of easements or title by adverse possession to certain lands owned of record by defendants-appellees. We shall affirm.

The controversy arose when defendants initiated construction of a pond and recreational development on one of three tracts of land located in the SW 1/4 SW 1/4 of Section 35, Township 31 North, Range 69 West of the 6th P.M., Converse County, Wyoming. All three tracts are traversed by irrigation laterals used by plaintiffs to irrigate adjoining land about which there is no dispute. Following an ex parte hearing, a temporary restraining order was issued prohibiting defendants from interfering with the ditches on the land in question. At a subsequent hearing, a preliminary injunction was issued, prohibiting further interference until questions of title and claims of adverse possession and prescriptive easements had been settled.

At trial, four years later, it was established, through direct testimony, as well as reference to the transcript of the preliminary injunction hearing (made a part of the record by stipulation), 1 that for about as long as anyone could remember, the tracts in question had been used by plaintiffs for grazing and hay operations. Additionally, it was further established that record title to the tracts, along with other large areas, had been acquired by the defendants in 1958 from a Mrs. Stemler, and that at least as concerned the period of defendants' ownership, the plaintiffs' use of the lands had been by permission, based on an unwritten "neighborly" agreement for exchange of use of certain lands separated from their respective owners' major holdings by a closely-paralleling railroad-highway corridor. Plaintiffs were permitted use of certain of defendants' land east of the corridor in exchange for use by defendants of certain lands of plaintiffs west of the corridor.

Based on these findings, the district court held that the plaintiffs had not sustained their burden of showing adverse hostile use sufficient to create either ownership of easements or title by adverse possession, while defendants had shown the use to be permissive. Plaintiffs assert such findings were erroneous.

We hardly need to repeat the standing appellate rule that on appeal, we examine the evidence in a case resolved by trial in a light most favorable to the prevailing party and resolve all conflicts in evidence for the appellee. P and M Cattle Company v. Holler, Wyo.1977, 559 P.2d 1019; Appeal

Page 90

and Error, West's Wyoming Digest k931(1) and 989. We do so, however, because the plaintiffs, in their appeal, depend upon our taking a different view of the evidence than the trial judge. We frankly have no difficulty at all with the trial court's judgment because the preponderance of the evidence so strongly favors the defendants and any judgment contrary to that entered would have presented to us a genuine problem.

In order to establish title through adverse possession of real...

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43 practice notes
  • Nehring v. Russell, No. 4831
    • United States
    • United States State Supreme Court of Wyoming
    • July 7, 1978
    ...evidence presented in favor of appellee and drawing therefrom every fair and reasonable inference available, Gray v. Fitzhugh, Wyo.1978, 576 P.2d 88; West's Wyoming Digest, Appeal and Error, k931(1) and 989, the record on appeal reflects sufficient substantial evidence to support the trial ......
  • Finley v. Kesling, No. 81-945
    • United States
    • Illinois Appellate Court
    • March 18, 1982
    ...of judicial estoppel is a rule which estops a party from playing "fast and loose" with the court (Gray v. Fitzhugh (Wyo.1978), 576 P.2d 88; Citizens Bank v. C & H Construction & Paving Co., Inc. (App.1976), 89 N.M. 360, 552 P.2d 796, cert. den. 90 N.M. 7, 558 P.2d [105 Ill......
  • Tri-State Generation and Transmission Ass'n, Inc. v. Shoshone River Power, Inc., TRI-STATE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 5, 1989
    ...against Shoshone in this action. See Amfac Mechanical Supply Co. v. Federer, 645 P.2d 73, 79 (Wyo.1982); Gray v. Fitzhugh, Page 1364 576 P.2d 88, 91 (Wyo.1978). The perceived rejection of judicial estoppel in United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986), which is ......
  • Paternity of SDM, Matter of, No. C-93-5
    • United States
    • United States State Supreme Court of Wyoming
    • October 10, 1994
    ...Matter of Parental Rights of ARW, 716 P.2d 353, 356 (Wyo.1986); Snell v. Ruppert, 582 P.2d 916, 918 (Wyo.1978); Gray v. Fitzhugh, 576 P.2d 88, 91 (Wyo.1978); Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976); Hatten Realty Co. v. Baylies, 42 Wyo. 69, 89-93, 290 P. 561, 566-68 (1930). In Hatten......
  • Request a trial to view additional results
43 cases
  • Nehring v. Russell, No. 4831
    • United States
    • United States State Supreme Court of Wyoming
    • July 7, 1978
    ...evidence presented in favor of appellee and drawing therefrom every fair and reasonable inference available, Gray v. Fitzhugh, Wyo.1978, 576 P.2d 88; West's Wyoming Digest, Appeal and Error, k931(1) and 989, the record on appeal reflects sufficient substantial evidence to support the trial ......
  • Finley v. Kesling, No. 81-945
    • United States
    • Illinois Appellate Court
    • March 18, 1982
    ...of judicial estoppel is a rule which estops a party from playing "fast and loose" with the court (Gray v. Fitzhugh (Wyo.1978), 576 P.2d 88; Citizens Bank v. C & H Construction & Paving Co., Inc. (App.1976), 89 N.M. 360, 552 P.2d 796, cert. den. 90 N.M. 7, 558 P.2d [105 Ill......
  • Tri-State Generation and Transmission Ass'n, Inc. v. Shoshone River Power, Inc., TRI-STATE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 5, 1989
    ...against Shoshone in this action. See Amfac Mechanical Supply Co. v. Federer, 645 P.2d 73, 79 (Wyo.1982); Gray v. Fitzhugh, Page 1364 576 P.2d 88, 91 (Wyo.1978). The perceived rejection of judicial estoppel in United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986), which is ......
  • Paternity of SDM, Matter of, No. C-93-5
    • United States
    • United States State Supreme Court of Wyoming
    • October 10, 1994
    ...Matter of Parental Rights of ARW, 716 P.2d 353, 356 (Wyo.1986); Snell v. Ruppert, 582 P.2d 916, 918 (Wyo.1978); Gray v. Fitzhugh, 576 P.2d 88, 91 (Wyo.1978); Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976); Hatten Realty Co. v. Baylies, 42 Wyo. 69, 89-93, 290 P. 561, 566-68 (1930). In Hatten......
  • Request a trial to view additional results

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