Koontz v. Town of Superior

Decision Date15 December 1987
Docket NumberNo. 87-25,87-25
Citation746 P.2d 1264
PartiesIra E. KOONTZ and Velma A. Koontz, Appellants (Defendants), v. TOWN OF SUPERIOR, Appellee (Plaintiff).
CourtWyoming Supreme Court

Jay Dee Schaefer of Schaefer & Newcomer, Laramie, for appellants.

Edward F. Hess of Dill & Hess, Jackson, for appellee.

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

CARDINE, Justice.

This appeal is from a summary judgment granting the town of Superior title by adverse possession to a street crossing two lots and isolating a third lot. Appellants contend (1) that as a matter of law, Wyoming municipalities cannot obtain by adverse possession an easement or title to private property for the purpose of establishing a public roadway, and (2) that it was error to grant summary judgment when issues of material fact must be determined.

We modify and affirm.

The town of Superior was organized in 1911. At some time thereafter, the Original Plat of the town of Superior was filed showing Division Street platted south of Lot 22, Block 12. Division Street is an extension of County Road 419, the historic road to Reliance and Winton, Wyoming. Ira and Velma Koontz, appellants, purchased fee title to Lots 20, 21 and 22, Block 12 in the Original Plat of the town of Superior in 1979. In 1980, as a result of a dispute with the town, not at issue here, appellants discovered that Division Street was located on Lots 20 and 21 instead of its On October 9, 1984, the town filed suit seeking a judicial declaration that it had acquired a prescriptive easement to the portions of the lots crossed by the road. Appellants counterclaimed, asking the town to vacate Division Street where it crossed their property. Throughout the litigation, the parties alluded to the alternative theories of adverse possession and common-law dedication in addition to the prescriptive easement theory. The district court held, after receiving briefs, that the town had acquired title by adverse possession and estopped appellants from asserting ownership. On appeal, this court held that the district court erred by deciding the case on briefs absent a motion for judgment or stipulation of facts. Koontz v. Town of South Superior, Wyo., 716 P.2d 358 (1986). On remand, the district court, following the filing of additional material, granted the town's motion for summary judgment. The property owners again appeal.

platted location south of Lot 22. Appellee claims that Division Street has existed in its present location since at least 1952, and possibly prior to the town's incorporation in 1911, and the street has been traveled continuously and in an open, notorious and adverse manner by the general public since at least 1952 and until 1984 when the Koontzes blocked passage with a mobile home.

Appellants claim that summary judgment should not have been granted because of the presence of issues of material fact and because summary judgment is incorrect as a matter of law. Summary judgment is only appropriate on a dual finding that there is no genuine issue of material fact and that the prevailing party is entitled to judgment as a matter of law. Hurst v. State, Wyo., 698 P.2d 1130 (1985). A fact is material if it would establish or refute one of the essential elements of a cause of action or defense asserted by either party. Schepps v. Howe, Wyo., 665 P.2d 504 (1983). The party requesting summary judgment has the burden of showing there are no issues of material fact and that he is entitled to judgement as a matter of law. Hyatt v. Big Horn School District No. 4, Wyo., 636 P.2d 525 (1981); Schepps v. Howe, supra. If the movant has adequately supported his motion for summary judgment, the opposing party must respond with competent evidence that there are genuine issues of material fact. Schepps v. Howe, supra; Hyatt v. Big Horn School District No. 4, supra. The record on appeal must be viewed in a light most favorable to the party opposing the motion, giving him all favorable inferences drawn from facts in the record. Schepps v. Howe, supra; Sanders v. Lidle, Wyo., 674 P.2d 1291 (1984). If summary judgment is sustainable on any legal ground appearing in the record, it must be sustained. Hurst v. State, supra.

ADVERSE POSSESSION OR PRESCRIPTION BY A MUNICIPALITY

Appellants first contend that Wyoming municipalities lack authority to obtain private property for use as roadways through adverse possession or prescription. We have not heretofore directly addressed this question. In Town of Glenrock v. Abadie, 71 Wyo. 414, 259 P.2d 766 (1953), we implied that towns had the ability to acquire title to property through adverse possession. In Amick v. Elwood, 77 Wyo. 269, 314 P.2d 944 (1957), we suggested that a town can maintain a quiet title action and described the ability of a town council to purchase, receive or sell property by saying, "[t]he power granted is broad and comprehensive." Id. at 946. In Barrett v. Town of Guernsey, Wyo., 652 P.2d 395 (1982), we held that a previous quiet title action in which a city was allowed to obtain title by adverse possession was res judicata. Town of the City of Newcastle v. Toomey, 78 Wyo. 432, 329 P.2d 264, 76 A.L.R.2d 525 (1958), supports the premise that municipalities may acquire roadways by prescription. In all of these cases, we have suggested adverse possession or prescription as a legitimate method for a municipality to obtain title to real property. We now affirm that a municipality may, in appropriate circumstances, acquire real property by adverse possession or prescription.

It is generally held that a government body can acquire title to land by adverse possession. Annotation, Acquisition of Title to Land by Adverse Possession by State or Other Governmental Unit or Agency, 18 A.L.R.3d 678 (1968); 7 R. Powell and P. Rohan, Powell on Real Property § 1015 at 91-72 (1987). It is also generally held that the public may acquire a right to use land for highways by prescription. 4 H. Tiffany, Law of Real Property § 1211 (1975); 2 G. Thompson, Thompson on Real Property § 342 at 208-209 (1980). Appellants argue, however, that municipalities may only exercise those powers expressly granted them by statute or those which may be reasonably implied from statutes. Whipps v. Town of Greybull, 56 Wyo. 355, 109 P.2d 805, 146 A.L.R. 596 (1941). Appellants contend that because the legislature has expressly given municipalities the power to acquire property for roads and streets through eminent domain, § 1-26-801, W.S.1977 (Cum.Supp.1987) and statutory dedication, §§ 34-12-101 to 34-12-115, W.S.1977, those two means are exclusive. We disagree.

It is well established that statutes providing means by which lands may be dedicated to public uses are not exclusive. Graff v. City of Casper, 73 Wyo. 486, 281 P.2d 685, 52 A.L.R.2d 254 (1955); 26 C.J.S., Dedication, § 3 (1956). With respect to the exclusivity of the eminent domain statutes, § 1-26-503, W.S.1977 (Cum.Supp.1987) provides:

"(a) Nothing in this act requires that the power of eminent domain be exercised to acquire property. Whether property necessary for public use is to be acquired by purchase, other means or by eminent domain is a decision left to the discretion of the person authorized to acquire the property.

"(b) Subject to any other statute relating to the acquisition of property, any person or public entity authorized to acquire property for a particular use by eminent domain may also acquire the property for the use by grant, purchase, lease, gift, devise, contract or other means."

We are aware of no statute which precludes a municipality from acquiring property through adverse possession or prescription, and we hold that municipalities may acquire property by those means.

ADVERSE POSSESSION

In its complaint, appellee sought a judicial declaration that it had acquired an easement by prescription. Alternatively, appellee argued that it obtained an easement through common-law dedication. When addressing the prescriptive easement theory, the parties and the district court applied the legal principles regarding adverse possession. Ultimately, in its order entering summary judgment, the trial court concluded that appellee had "acquired title by adverse possession" in the disputed lands.

While the requirements for establishing a prescriptive easement are similar to those for adverse possession, there is a fundamental difference between the two doctrines:

"Adverse possession denotes title acquired by the manner of possession, while a prescriptive easement is a nonexclusive right acquired by the manner of use." 2 G. Thompson, Thompson on Real Property § 340 at 191 (1980).

"The chief distinction is that in adverse possession the claimant occupies or possesses the disseisee's land, whereas in prescription he makes some easement-like use of it. As with adverse possession, if the prescriptive acts continue for the period of the statute of limitations, the prescriber acquires rights that correspond to the nature of use. Possession being the right carried by an estate, adverse possession creates an estate. Use being the right carried by an easement, adverse use creates an easement." R. Cunningham, W. Stoebuck, D. Whitman, Law of Property § 8.7 at 451 (1984).

The record contains little mention of the distinction between the two doctrines. The distinction is important, however, in determining the extent of the property right acquired by appellee. While appellee's evidence demonstrates a manner of use consistent with the establishment of a prescriptive easement, appellee has not shown

that it adversely occupied or possessed the property. Thus, we cannot affirm the trial court's conclusion that appellee acquired fee title to the disputed property.

PRESCRIPTION

In order to acquire a prescriptive easement, the party asserting the existence of the easement carries the burden of proving adverse use, under color of title or claim of right, such as to put the owner of the servient estate on...

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