Kudar v. Morgan
| Decision Date | 20 December 2022 |
| Docket Number | S-22-0041 |
| Parties | Joseph KUDAR, individually and as Trustee of the Joseph H. Kudar Revocable Trust under agreement dated June 13, 2003; Dorothy R. Kudar, individually and as Trustee of the Dorothy R. Kudar Revocable Trust under agreement dated June 13, 2003; Mary Kay Hatten and Lynn A. Hatten, Appellants (Defendants), v. Larry J. MORGAN, individually and as Trustee of the Larry J. Morgan Living Revocable Trust dated November 30, 1998, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellants: Matt Kim-Miller and Paula A. Fleck, Holland & Hart LLP, Jackson, Wyoming. Argument by Mr. Kim-Miller.
Representing Appellee: Mark D. Sullivan, Mark D. Sullivan, PC, Wilson, Wyoming. Argument by Mr. Sullivan.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Joseph and Dorothy Kudar (the Kudars) appeal from the district court's grant of summary judgment to Larry Morgan,1 on his claim of adverse possession of one-tenth of an acre of the Kudars’ property. The Kudars claim the district court relied on contradictory evidence regarding Mr. Morgan's hostile use of the property and whether that use was sufficient to put them on notice of an adverse possession claim. The Kudars also claim the district court misinterpreted evidence of permissive use under the doctrine of "neighborly accommodation." They assert these errors preclude summary judgment. We affirm.
[¶2] Did the district court err in finding there were no genuine issues of material fact calling Mr. Morgan's claim of adverse possession into question?
[¶3] The parties have been neighbors for decades. Mr. Morgan bought his lot in Teton County in 1990, and shortly thereafter built a home on Long View Lane. The Kudars bought the adjoining lot and home in 1991. Long View Lane is steep and twisted. The houses along the lane sit at different elevations on heavily wooded lots. The Kudars’ lot includes a steep, wooded hill. Their home and driveway are located at the bottom of its slope. Mr. Morgan's property is higher along the hill, and the hill continues up past his lot. Until 2016, neither the Kudars nor Mr. Morgan were certain as to the exact boundaries of their individual properties.
[¶4] In 1990, Mr. Morgan constructed a dirt driveway from Long View Lane to an area near his house on relatively level terrain where he later built a garage. It is undisputed that, from the outset, a portion of the driveway road was on the Kudars’ property. Mr. Morgan lined the edge of the driveway with railroad ties. He later built a small garage at the end of the driveway, and to the north of the driveway, he constructed a greenhouse and established a garden. Around 2001, he hauled in dirt and planted a line of spruce trees beyond the existing improvements. He, again, used railroad ties to establish a border on the north edge of the trees. By 2002 he had expanded, graveled, and blacktopped the driveway. In 2015 or 2016, he built a deck behind the greenhouse. All of these improvements encroached on the Kudars’ property.
[¶5] At his deposition, Mr. Morgan testified that when he first built the garage, he recalled Mr. Kudar "came up and asked [him] where our property line was." Mr. Morgan told Mr. Kudar that he didn't know. Nothing more was said. Mr. Kudar does not remember having that conversation.
[¶6] Mr. Kudar attested that before the trees had been planted—some time before 2003—he was walking with another neighbor on his property when they discovered a metal survey marker. Using the marker for reference, he eyeballed Mr. Morgan's improvements and determined they appeared to be on Mr. Morgan's side of the property line. In 2016, Mr. Kudar confronted Mr. Morgan after he saw Mr. Morgan clearing brush. Mr. Kudar believed the activity may have been occurring on his property. He told Mr. Morgan to stop throwing the cuttings onto his property below the area where Mr. Morgan was clearing.
[¶7] After this confrontation, Mr. Kudar called an engineering firm to survey the property. The 2016 survey revealed that the marker Mr. Kudar had discovered prior to 2003 had apparently been moved and did not reflect the actual boundary between the properties.2 The survey revealed that all of Mr. Morgan's improvements—the driveway, garage, greenhouse, garden, and trees—encroached on the Kudars’ property.
[¶8] On learning this, Mr. Kudar called in a complaint to Teton County asserting that Mr. Morgan's garage structure and driveway were built outside Mr. Morgan's property line. On August 30, 2016, a code compliance officer wrote to Mr. Morgan notifying him, among other things, that the driveway and garage were over his shared property line and would require an easement. Mr. Kudar was told the area would be "red flag[ged]," which Mr. Kudar understood to mean there is a problem with the property and no further construction or building could take place until the problem was resolved. In response, Mr. Morgan removed the deck and disassembled the greenhouse.
[¶9] After the 2016 complaint, Mr. Morgan and Mr. Kudar had several discussions where Mr. Morgan offered to buy title or an easement for the continued use of the disputed property. Mr. Kudar rejected all offers. Negotiations ended when, in the fall of 2020, Mr. Kudar placed fence posts in the blacktopped driveway along the newly surveyed property line. The fence posts prevented Mr. Morgan's use of the driveway. When Mr. Morgan discovered the posts, he "gave up trying to buy the dirt" and obtained his own survey. The Kudars had the property resurveyed to confirm the boundaries.
[¶10] Mr. Morgan filed a Complaint requesting a declaratory judgment quieting title of the disputed land to Mr. Morgan based on adverse possession. He later filed a Motion for Summary Judgment, and the Kudars filed a cross Motion for Summary Judgment. The district court granted summary judgment in favor of Mr. Morgan on December 28, 2021.3 The Kudars appeal.
[¶11] Our standard of review on motions for summary judgment is well established.
Woodward v. Valvoda , 2021 WY 5, ¶¶ 12–13, 478 P.3d 1189, 1196 (Wyo. 2021) (citations omitted).
[¶12] The Kudars claim that Mr. Morgan cannot show adverse possession because there is, at a minimum, a factual question as to whether Mr. Morgan's use of the property was permissive under the theory of neighborly accommodation.
[¶13] We start with a brief review of adverse possession and the shifting burdens of proof imposed by law. We then review Mr. Morgan's prima facie case of adverse possession and finally, the Kudars’ assertion that Mr. Morgan's use was permissive. White v. Wheeler , 2017 WY 146, ¶ 16, 406 P.3d 1241, 1246 (Wyo. 2017).
[¶14] Adverse possession claims are not favored in the law, and "a presumption in favor of the record title holder" exists, unless and until the adverse claimant makes out his prima facie case. Little Med. Creek Ranch, Inc. v. D'Elia , 2019 WY 103, ¶ 18, 450 P.3d 222, 228 (Wyo. 2019) (quoting Braunstein v. Robinson Fam. Ltd. P'ship LLP , 2010 WY 26, ¶ 17, 226 P.3d 826, 833 (Wyo. 2010) (quoting Hillard v. Marshall , 888 P.2d 1255, 1261 (Wyo. 1995) )).
[¶15] To establish adverse possession, the claimant "must show actual, open, notorious, exclusive and continuous possession of the disputed parcel which is hostile and under claim of right or color of title." Graybill v. Lampman , 2014 WY 100, ¶ 27, 332 P.3d 511, 519 (Wyo. 2014) (citing Helm v. Clark , 2010 WY 168, ¶ 8, 244 P.3d 1052, 1057 (Wyo. 2010) ). This possession must continue for the statutory period of ten years set out in Wyo. Stat. Ann. § 1-3-103.
[¶16] "The test for adverse possession ... imposes shifting burdens upon the parties." Graybill , ¶ 27, 332 P.3d at 519–20. Once a claimant makes the required prima facie showing, the presumption shifts to one in favor of the adverse possession claimant, Little Med. Creek Ranch , ¶ 18, 450 P.3d at 228, and "the burden shifts back to the record title holder who must produce evidence contrary to the presumption by showing that the claimant's possession was permissive." Id. (quoting Braunstein , ¶ 17, 226 P.3d at 833 ). "If the title holder can do that, then it becomes a question of weight and credibility to be determined by the trier of fact." Little Med. Creek Ranch , ¶ 18, 450 P.3d at 228 (quoting Braunstein , ¶ 17, 226 P.3d at 833 ); Graybill , ¶ 27, 332 P.3d at 520.
[¶17] The requirement of actual possession does not depend on any particular act or use. Actual possession depends on the character of the land and the use which can reasonably be made of it. Graybill , ¶ 28, 332 P.3d at 520 (citing Davis v. Chadwick , 2002 WY 157, ¶ 11, 55 P.3d...
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... ... holder unless and until the adverse claimant makes out his ... prima facie case of adverse possession. Kudar v ... Morgan , 2022 WY 159, ¶ 14, 521 P.3d 988, 993 (Wyo ... 2022) (citing Little Med. Creek Ranch, Inc. v ... D'Elia, 2019 WY 103, ¶ 18, ... ...