Lyman v. Childs

• Decision Date: 14 February 2023
• Docket Number: S-22-0183
• Citation: 2023 WY 16
• Parties: DWIGHT LYMAN and BETTY L. LYMAN, as individuals and as Trustees of the Dwight Lyman Living Trust dated November 11, 2016, and Trustees of the Betty L. Lyman Living Trust dated November 11, 2016, Appellants (Plaintiffs), v. ROBERT B. CHILDS, individually and as Trustee of the Robert B. Childs Living Trust dated April 4, 2012, Appellee (Defendant).
• Court: Wyoming Supreme Court

2023 WY 16

DWIGHT LYMAN and BETTY L. LYMAN, as individuals and as Trustees of the Dwight Lyman Living Trust dated November 11, 2016, and Trustees of the Betty L. Lyman Living Trust dated November 11, 2016, Appellants (Plaintiffs), v. ROBERT B. CHILDS, individually and as Trustee of the Robert B. Childs Living Trust dated April 4, 2012, Appellee (Defendant).

No. S-22-0183

Supreme Court of Wyoming

February 14, 2023

Appeal from the District Court of Johnson County The Honorable William J. Edelman, Judge

Representing Appellants: Mitchell H. Edwards, Nicholas &amp Tangeman, LLC, Laramie, Wyoming; Marshall E. Keller, Keller Law Firm, P.C., Thermopolis, Wyoming. Argument by Mr Edwards.

Representing Appellee: Jay A. Gilbertz, Yonkee & Toner, LLP, Sheridan, Wyoming.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

FOX CHIEF JUSTICE

[¶1] Dwight and Betty Lyman filed an adverse possession claim to approximately 100 acres of their northern neighbor's deeded property in the Bighorn Mountains. Since the 1950s, the Lymans' fence has enclosed portions of Mr. Childs' deeded property within the Lymans' property. The district court found the fence was a fence of convenience and the Lymans did not adversely possess the disputed property because their use was presumptively permissive. The Lymans appealed, and we affirm.

ISSUES

[¶2] There are four issues on appeal:

1. Was the district court's finding that the fence enclosing portions of Mr. Childs' deeded property was a fence of convenience clearly erroneous?

2. Did the district court err in ejecting the Lymans from the disputed parcels?

3. Did the district court err in determining the Lymans trespassed on the disputed parcels?

4. Did the district court abuse its discretion by allowing opinion testimony from a lay witness pursuant to Wyoming Rule of Evidence 701?

FACTS

[¶3] This dispute arose over a fence dividing two neighbors, the Lymans to the south and Mr. Childs to the north. The Lymans' fence enclosed roughly 100 acres of land deeded to Mr. Childs and his predecessors.

[¶4] Blaine Lyman, the uncle of Appellant Dwight Lyman, first acquired the Lyman property, 640 acres that sits south of the fence line in dispute, in 1931. In 1950, Blaine Lyman and his wife Blanche sold the property to Alton and Arthenia Lund (Lunds) but retained the right to use a one-room cabin on the property. Sometime thereafter, the Lunds passed the property to Violet Lund, who conveyed the property to the Appellants, Dwight and Betty Lyman (Lymans), in August 1993 via warranty deed. She also conveyed the SE¼SW¼ of Section 3 (Parcel 1) to the Lymans via quitclaim deed (see Fig. 1). The Lunds had never acquired Parcel 1 by deed but claimed an interest "under a claim of adverse possession due to the existence of a fence line around said property for numerous years." The Lymans recorded the warranty deed for the deeded property and a contract for deed that stated the Lunds would convey Parcel 1 to the Lymans upon full payment. The Lymans never recorded the quitclaim deed for Parcel 1.

Fig. 1: Parcel Number Map

(Image Omitted)

Fig. 1. Parcels 1, 3, 4, 5, and 7 are the disputed parcels deeded to Mr. Childs but fenced into the Lymans' property. Parcel 7 is identified by the arrow. The parcel numbers were assigned at trial to provide clarity and are not historically significant.

[¶5] Mr. Childs' property was first acquired by Edwin Burritt in 1931 and the property changed hands multiple times before it was conveyed via warranty deed to Jack and Barbara Marton in 1993. Jack Marton conveyed the property in October 2010, to Golden Trout, LLC, which was owned by the Weinhandls.^[1] The Weinhandls eventually sold the property to Mr. Childs in July 2019.

[¶6] The two properties are mountainous, heavily forested in areas, and primarily used for ranching and recreational purposes. The fence in dispute was erected in the 1950s by Blaine Lyman and has not moved since Dwight Lyman first observed it in the 1950s. It is a sheep-tight fence that consists of mesh wire on the bottom and two barbed wires on top. The fence does not follow the exact deeded boundary of the properties, instead it meanders through forested areas and generally avoids large changes in elevation. The Lymans assert this fence was built to be a boundary between the properties and they adversely possessed Parcels 1, 3, 4, 5, and 7. Mr. Childs contends the fence was built for convenience, which defeats the adverse possession claim.

[¶7] In 2018, individuals were hunting with the Lymans' permission on Parcel 5, via a rough road. The Weinhandls' hunters blocked the road with tree trunks to stop the Lymans' hunters from accessing the property. A dispute arose and Wyoming Game and Fish was called, but the dispute ended without trespassing citations being issued. Mr. Weinhandl and Mr. Lyman eventually met to discuss a trespassing agreement which allowed the Lymans and their hunters to use the access road through Parcel 5 to Parcel 1 which abutted public land. Mr. Lyman became agitated and quickly ended the meeting, saying his lawyer would review the agreement, but did not contend that he did not need permission to access the disputed lands. He never followed up on the issue.

[¶8] Another dispute arose after Mr. Childs acquired the property. Mr. Childs installed a gate on the fence that allowed easier access to Parcel 1 from the north side of the fence. He later found the gate chained and locked, and called the sheriff's department, which instructed him to cut the lock. A year later and just after this lawsuit was filed, Mr. Childs found the gate locked again, this time with a cable and bolts, along with a note from the Lymans' counsel telling Mr. Childs to stay off the disputed lands.

[¶9] Just prior to this dispute, Mr. Childs hired Rob Kay to fence the western boundary of Parcel 1, which was the deeded boundary between the Lymans' property and Mr. Childs' property. But the Lymans prohibited Mr. Kay from completing his fencing work by filing suit in June 2020 and requesting the district court quiet title in the disputed lands. The district court rejected their claims, finding the fence was built for convenience and the Lymans failed to meet their heightened burden of actual notice to Mr. Childs of their hostile use of the land. The Lymans appealed.

STANDARD OF REVIEW

[¶10] When reviewing a district court's decision following a bench trial, we use the following standard of review:

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. 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. The district court's conclusions of law are reviewed de novo.

Fuger v. Wagoner, 2020 WY 154, ¶ 8, 478 P.3d 176, 181 (Wyo. 2020) (quoting Mattheis Co. v. Town of Jackson, 2019 WY 78, ¶ 18, 444 P.3d 1268, 1275 (Wyo. 2019)).

DISCUSSION

I. The district court's finding the disputed fence was a fence of convenience was not clearly erroneous.

A. Prima Facie Case for Adverse Possession

[¶11] The Lymans make two main arguments regarding their adverse possession claim. First, they argue that they have established a prima facie case for adverse possession and Mr. Childs did not rebut their claim. Second, they argue that even if the fence was a fence of convenience, they sufficiently raised their flag of hostile use and overcame the presumption of permissive use.

[¶12] An adverse possession claim creates several shifting presumptions. See O'Hare v. Hulme, 2020 WY 31 ¶ 20, 458 P.3d 1225, 1234 (Wyo. 2020); Hillard v. Marshall, 888 P.2d 1255, 1259-60 (Wyo. 1995). A presumption of ownership first rests with the record title 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, 450 P.3d 222, 228 (Wyo. 2019)). To establish a prima facie case, the claimant must demonstrate for a period of ten years, "actual, open, notorious, exclusive and continuous possession of the disputed parcel which is hostile and under claim of right or color of title." Kudar, 2022 WY 159, ¶ 15, 521 P.3d at 993 (quoting Graybill v. Lampman, 2014 WY 100, ¶ 27, 332 P.3d 511, 519 (Wyo. 2014)); see also Wyo. Stat. Ann. § 1-3-103 (2021). An adverse claimant must have "occupied the land for the statutory period, in a manner plainly indicating that he has acted as the owner thereof . . . ." Galiher, 2018 WY 145, ¶ 15, 432 P.3d at 510 (quoting Helm v. Clark, 2010 WY 168, ¶ 8, 244 P.3d 1052, 1057 (Wyo. 2010)). Once a prima facie showing is made, the adverse claimant is entitled to a presumption of adverse possession and the burden shifts to the record title owner to explain or rebut the claim by showing the use was permissive. Kudar, 2022 WY 159, ¶ 16, 521 P.3d at 993 (citing Little...