Helm v. Clark

• Decision Date: 21 December 2010
• Docket Number: No. S-10-0002.,S-10-0002.
• Citation: 2010 WY 168,244 P.3d 1052
• Parties: Dave T. HELM and Van E. Helm, Appellants (Plaintiffs), v. Ken CLARK, Trustee, or his successor in trust, under the Ken Clark Living Trust dated March 28, 2006, Appellee (Defendant).
• Court: Wyoming Supreme Court

244 P.3d 1052

2010 WY 168

Dave T. HELM and Van E. Helm, Appellants (Plaintiffs),

v.Ken CLARK, Trustee, or his successor in trust, under the Ken Clark Living Trust dated March 28, 2006, Appellee (Defendant).

No. S-10-0002.

Supreme Court of Wyoming.

Dec. 21, 2010.

Representing Appellants: Joseph B. Bluemel of Bluemel Law Office, Kemmerer, Wyoming.

Representing Appellee: Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming.

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

KITE, Chief Justice.

[¶ 1] This case involves a dispute between adjoining property owners in Lincoln County, Wyoming. David T. Helm and Van E. Helm (the Helms) attempted to relocate a fence which for many years had separated their pasture from a pasture belonging to Ken Clark, Trustee of the Ken Clark Living Trust. The fence was south of the recorded property line between the Helms' property and Mr. Clark's property. Mr. Clark objected and claimed that he had acquired title to the property between the recorded boundary and the fence by adverse possession. After a bench trial, the district court quieted title to the property in Mr. Clark. On appeal, the Helms claim the district court committed various errors in arriving at its decision.

[¶ 2] We conclude the district court correctly ruled that Mr. Clark had proven his claim for adverse possession of the disputed tract; however, the district court's decision as to the size and exact location of the disputed area is clearly erroneous. Therefore, we affirm in part, but reverse and remand for a determination of the exact legal description of the adversely possessed property.

ISSUES

[¶ 3] The Helms' statement of the issues is repetitive, so we rephrase the issues as follows:

1. Whether the district court's findings of fact that Mr. Clark had established a case for adverse possession¹ were clearly erroneous or contrary to the great weight of the evidence when:

a. There was no evidence of "the definitive location, course or continuity of the fence" and "many facts material to proving adverse possession [were] absent or lacking;"

b. The trial court specifically found Mr. Clark "admitted the north-south fence on the east boundary of the area being adversely possessed until 1999 was a fence of convenience;" and

c. The "evidence clearly shows the north-south fence on the east boundary of the property claimed to be adversely possessed was moved in 1999 or only eight years before this matter ensued."

2. Did the district court err by failing to rule that Mr. Clark was estopped from arguing that the Clark/Helm fence was a boundary fence because members of his family had admitted that the north-south fence on theeast boundary of the property was a fence of convenience?

Mr. Clark's statement of the issues is more general.

FACTS

[¶ 4] In this section, we will set out only the basic facts underlying the dispute. More details will be provided as necessary to analyze the specific legal issues in the "Discussion" section of this opinion. Mr. Clark and the Helms own adjoining agricultural properties in the NE 1/4 of Section 12, Township 30 North, Range 119 West, 6th P.M., in Lincoln County, Wyoming. The properties have been in the Clark and Helm families since the 1920s. Mr. Clark's property is north of the Helms' and their respective deeds indicate that the sixteenth section line dividing the NE 1/4 and the SE 1/4 of the NE 1/4 of Section 12 forms their property line, i.e., Mr. Clark owns the NE 1/4 NE 1/4 and the Helms own the SE 1/4 NE 1/4. A fence between the properties was built long ago and is south of the actual property line, meaning that part of the Helms' property is fenced in with Mr. Clark's property.²

[¶ 5] The Helms decided to move the fence to place it on the property line. Mr. Clark objected, and the Helms filed an ejectment action on October 25, 2007. Mr. Clark counterclaimed alleging that he had acquired title to the property north of the fence by adverse possession. The district court held a bench trial and ruled that Mr. Clark had proven the elements of adverse possession and the Helms had not provided a sufficient explanation to establish that Mr. Clark's use was permissive. Consequently, the trial court quieted title in Mr. Clark. The Helms appealed.

STANDARD OF REVIEW

[¶ 6] We review a district court's decision following a bench trial by utilizing the following standards:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. 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.

Mullinnix LLC v. HKB Royalty Trust, 2006 WY 14, ¶ 12, 126 P.3d 909, 916 (Wyo.2006) (citations omitted). See also, Addison v. Dallarosa-Handrich, 2007 WY 110, ¶ 8, 161 P.3d 1089, 1091 (Wyo.2007).

Cook v. Eddy, 2008 WY 111, ¶ 6, 193 P.3d 705, 708 (Wyo.2008). In considering a trial court's factual findings,

we assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law.

Id., quoting, Mullinnix, ¶ 12, 126 P.3d at 916 (citations omitted). The district court's conclusions of law are reviewed de novo. Id.

DISCUSSION

[¶ 7] The Helms initially filed an action to have Mr. Clark ejected from their property pursuant to Wyo. Stat. Ann. § 1-32-202 (LexisNexis 2009).³ They claimed that they held legal title to the property to the sixteenthsection line and Mr. Clark was unlawfully denying them possession. Mr. Clark asserted that he had been in possession of the property north of the fence for more than ten years and the Helms were barred from recovering the property under Wyo. Stat. Ann. § 1-3-103 (LexisNexis 2009). ⁴ He counterclaimed to have title to the property north of the fence quieted in him on the basis of adverse possession. Wyo. Stat. Ann. § 1-32-201 (LexisNexis 2009).⁵

[¶ 8] " '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.' " Addison v. Dallarosa-Handrich, 2007 WY 110, ¶ 11, 161 P.3d 1089, 1091 (Wyo.2007), quoting Gillett v. White, 2007 WY 44, ¶ 15, 153 P.3d 911, 915 (Wyo.2007). See also, Cook, ¶ 7, 193 P.3d at 708. Our test for adverse possession imposes shifting burdens upon the parties.

When 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. However, if a claimant's use of the property is shown to be permissive, then he cannot acquire title by adverse possession.

Addison, ¶ 11, 161 P.3d at 1091-92, quoting Gillett, ¶ 15, 153 P.3d at 915 (citation omitted).

Cook, ¶ 7, 193 P.3d at 708.

A. Prima Facie Case for Adverse Possession

[¶ 9] The district court ruled that Mr. Clark had established a prima facie case of adverse possession and shifted the burden to the Helms to explain the possession. On appeal, the Helms make a cursory attempt to show the district court incorrectly determined that Mr. Clark had established a prima facie case for adverse possession. They assert the district court failed to give proper weight to the facts that they paid taxes on the disputed property and Mr. Clark and his predecessors had executed title instruments affecting their deeded property but had not executed any such instruments affecting the disputed area. In certain cases, each of these factors may be important in determining whether possession is adverse. See, e.g., Braunstein v. Robinson Family Limited Partnership, LLP, 2010 WY 26, ¶ 18, 226 P.3d 826, 833-34 (Wyo.2010). However, as the district court recognized, the fact that Mr. Clark had not paid taxes on the property is typical when a case involves use to a fence line. See, e.g., Cook, ¶ 22, 193 P.3d at 712; Doenz v. Garber, 665 P.2d 932, 937 (Wyo.1983). The claimant's failure to execute title instruments affecting the disputed property also is not unusual in fence line adverse possession cases. Id. Although these facts weigh against a finding of adverse possession, they are not necessarily determinative. Id.

[¶ 10] The district court considered all of the evidence and found Mr. Clark had established a prima facie case of adverse possession because the disputed area had been enclosed by a fence with Mr. Clark's property for a very long time, Mr. Clark had used the disputed property for grazing livestock during that time, and the Helms were aware of the discrepancy between the fence and the true boundary. The district court'sdecision is consistent with prior cases where we have stated that enclosing land in a fence may be sufficient to "raise the flag" of an adverse claim, and "[t]he pasturing of animals within a substantial enclosure is sufficient to establish the elements of adverse possession." Hillard v. Marshall, 888 P.2d 1255, 1259 (Wyo.1995).

[¶ 11] In many respects, this case is similar to Cook, ¶ 18, 193 P.3d at 711, where we held that the district court properly ruled the claimant had established a prima facie case of adverse possession to the fence line by showing exclusive possession of the property for the statutory period. There, we...