Hillard v. Marshall

• Citation: 888 P.2d 1255
• Decision Date: 30 January 1995
• Docket Number: No. 94-6,94-6
• Parties: Earl HILLARD, Appellant (Plaintiff), v. Gary R. MARSHALL; Thomas W. Dennison and Barbara W. Dennison, husband and wife, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 1255

888 P.2d 1255

Earl HILLARD, Appellant (Plaintiff), v. Gary R. MARSHALL; Thomas W. Dennison and Barbara W. Dennison, husband and wife, Appellees (Defendants).

No. 94-6.

Supreme Court of Wyoming.

Jan. 30, 1995.

Lawrence A. Yonkee and John G. Fenn of Yonkee & Toner, Sheridan, for appellant.

Greg L. Goddard and John P. LaBuda of Goddard, Perry & Vogel, Buffalo, for appellee Marshall.

Hayden F. Heaphy, Jr. of Burgess, Davis & Cannon, Sheridan, for appellees Dennison.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY and TAYLOR, JJ.

CARDINE, Justice, Retired.

This action concerns title to a nine-acre tract of land which was fenced in by the plaintiff's predecessor in interest. Earl Hillard (Hillard) appeals from the district court's denial of his claim of title to the nine acres by virtue of adverse possession and quieting title in the defendants, Thomas and Barbara Dennison.

Hillard presents four issues for our consideration:

1. Did the District Court err by denying Appellant a presumption that Appellant's possession of a nine (9) acre tract of land was adverse where Appellant actually occupied the tract under a mistaken belief as to the true boundary, for the period prescribed by law, openly, notoriously and exclusively, and in a manner plainly indicating that he acted as owner thereof?

2. Did the Court err by concluding that livestock grazing and fence maintenance are not uses which plainly indicate that Appellant acted as owner of the land in his possession?

3. Did the Court err by denying Appellant's claim of adverse possession for the reason that it was more convenient to maintain the fence in its location rather than on the deed line?

4. Did the District Court err by holding that a fourteen (14) acre tract was adversely possessed by Appellant while another nine (9) acre tract at a different location on the same place was not?

FACTS

This dispute centers around land that was originally owned by one person, Melissa Ray Schrater. The land in question is located near Buffalo, Wyoming and includes a portion of Johnson Creek. After World War I, Melissa Schrater split the land with her brother, Frank. Sometime in the early 1920s, a fence was built separating the two parcels. The location of the fence has never changed.

After Frank died in 1940, his widow, Eleanor, leased the land to others. In 1950, Hillard began leasing the land; in 1961, he purchased the land outright. Hillard irrigated portions of the land, growing at various times, oats, alfalfa, wheat and hay. He also pastured cattle on some sections.

Meanwhile, Melissa Schrater's land had ended up in the hands of Gary Marshall (Marshall), who bought it in 1991. Marshall subdivided the land and sold a tract to Thomas and Barbara Dennison (the Dennisons). Marshall had a survey of the property done which revealed that Hillard's fence line did not match the property line.

Relevant to this case are two tracts of land. The first is a 14.19-acre tract (the fourteen-acre tract) belonging to Marshall which was enclosed by Hillard's fence. The second is a separate 9.01-acre tract (the nine-acre tract) of the Dennisons which was also enclosed by Hillard's fence. ¹

The district court found that Hillard had grazed cattle, irrigated and hayed and leased portions of the fourteen-acre tract. The court concluded that Hillard had "occupied the * * * 14.19 acre tract of land for the period prescribed by law (more than 10 years), openly, notoriously, exclusively, and in a manner plainly indicating that he acted as owner thereof." After concluding that Marshall had failed to meet his burden of explaining Hillard's possession, the court quieted title in the fourteen-acre tract in Hillard.

The court, however, reached a different conclusion with regard to the nine-acre tract, which is adjacent to Johnson Creek. The court found that Hillard had used the tract for grazing and that the tract was not "usable for much else." The property line ran near Johnson Creek; and the terrain there contained brush, trees and was swampy. The court concluded that the fence was one of convenience, and therefore Hillard had failed to establish color of title. Title was quieted in the Dennisons.

Hillard now appeals the trial court's decision that he had failed to adversely possess the nine-acre tract of land.

DISCUSSION

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. Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129, 1132 (Wyo.1982); City of Rock Springs v. Sturm, 39 Wyo. 494, 502, 273 P. 908, 910 (1929). Possession must be for the statutory period, ten years. W.S. 1-3-103 (1988); Connaghan v. Eighty-Eight Oil Co., 750 P.2d 1321, 1323 (Wyo.1988); Doenz v. Garber, 665 P.2d 932, 935 (Wyo.1983)- In some circumstances, enclosing land in a fence is sufficient to "raise the 'flag' of an adverse claimant." Ellis, 411 P.2d at 343; Doenz, 665 P.2d at 936 (presence of fence and continuing farm operations put record landowners on notice of adverse claim). The pasturing of animals within a substantial enclosure is sufficient to establish the elements of adverse possession. Farella v. Rumney, 649 P.2d 185, 186-87 (Wyo.1982) (quoting Shores v. Lindsey, 591 P.2d 895, 902 (Wyo.1979)). However, a fence kept only for the convenience of the parties or to separate pastures or irrigated meadows from grazing lands has no effect on the true boundary between tracts. Sowerwine v. Nielson, 671 P.2d 295, 297 (Wyo.1983); State v. Vanderkoppel, 45 Wyo. 432, 439, 19 P.2d 955, 957 (Wyo.1933).

                .  Where 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.  Meyer v. Ellis, 411 P.2d 338, 342 (Wyo.1966) (quoting City of Rock Springs v. Sturm, 39 Wyo. at 517, 273 P. at 915-16).   However, if a claimant's use of the property is shown to be permissive, then he cannot acquire title by adverse possession.  Ellis, 411 P.2d at 344 (citing Johnson v. Szumowicz, 63 Wyo. 211, 228-29, 179 P.2d 1012, 1017 (Wyo.1947))
                

Hillard's argument is that the trial court improperly denied him the presumption to which he was entitled. Hillard claims that he established the elements of adverse possession: he occupied the land in a hostile manner and under color of title (by his predecessor's fencing in the tract) in an actual, open, notorious, exclusive and continuous manner and by utilizing the property for what it was best suited--grazing.

Hillard also argues that the evidence that the topography dictated the location of the fence does not clearly prove a permissive use. Hillard asserts that the only evidence that the fence was one of convenience was the testimony of a surveyor who described the lay of the land and concluded that the fence was placed off of the property line because of the topography. Hillard claims that the burden was on the Dennisons to prove that the "topography dictated the fence location to such a degree that it was obvious that an agreement was made between the adjoining owners." Hillard surmises that if he had been properly accorded the presumption, the Dennisons' evidence was not enough to overcome that presumption.

A presumption is a required conclusion in the absence of explanation. See 1 C. Mueller & L. Kirkpatrick, Federal Evidence § 66 (2nd ed. 1994). The concept of a presumption of adverse possession in favor of the claiming party was first articulated by Justice Blume in Sturm:

[W]hen a man has occupied a piece of ground, though under a mistaken belief as to the true boundary, for the period prescribed by law openly, notoriously, exclusively and in a manner plainly indicating that he acted as owner thereof, the presumption should be, in the absence of explanatory circumstances showing the contrary, that he occupied the land adversely and under a claim of right, casting the burden of explaining such possession upon the person who disputes his right.

39 Wyo. at 517, 273 P. at 915-16. Thus, in the context of adverse possession, a presumption arises in favor of the claimant when a prima facie case has been made, requiring a conclusion in favor of adverse possession absent explanation. Similarly, it could be said that a presumption in favor of the record title holder exists, unless and until the adverse claimant makes out his prima facie case, because the initial burden of proof is on the party claiming adverse possession. Sowerwine, 671 P.2d at 302; Miller v. Bell, 764 P.2d 389, 390 (Colo.App.1988) ("An initial presumption favors the record title holder as against the adverse possession claimant."); Accord Gonthier v. Horne, 576 A.2d 745 (Me.1990); Miceli v. Foley, 83 Md.App. 541, 575 A.2d 1249 (1990). Once the adverse possession claimant has made out his prima facie case, and absent any explanatory circumstances to the contrary, the burden shifts to the opposing party to produce evidence contrary The district court could have arrived at its decision through one of two routes. First, it could have concluded that Hillard had not made a prima facie case because the convenience fence was an explanatory circumstance to the contrary; or, second, it could have found that Hillard had made out a prima facie case and that he was entitled to a presumption but concluded that the evidence that the fence was one of convenience had rebutted the presumption. The record is devoid of any indication by which of these means the trial court did arrive at its decision.

to the presumption. Sturm, 39 Wyo. at 517, 273 P. at 915-16; Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364, 368 (Wyo.1989); accord Szombathy v. Shell Oil Co., 676 S.W.2d 15, 18 (Mo.App.1984).

We conclude that it does not matter...