Meyer v. Ellis

• Decision Date: 01 March 1966
• Docket Number: No. 3439,3439
• Citation: 411 P.2d 338
• Parties: John MEYER and Goldie Meyer, a/k/a Mrs. John Meyer, Appellants (Defendants below), v. Robert ELLIS, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 338

411 P.2d 338

John MEYER and Goldie Meyer, a/k/a Mrs. John Meyer, Appellants (Defendants below), v. Robert ELLIS, Appellee (Plaintiff below).

No. 3439.

Supreme Court of Wyoming.

March 1, 1966.

Byron Hirst, Hirst, Applegate & Thomas, Cheyenne, for appellants.

W. A. Smith, Smith, & Harnsberger, Lander, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff Robert Ellis commenced an action against the defendants John Meyer and Goldie Meyer, husband and wife, for a determination of the respective rights of the parties to a triangular tract of land located in the SE 1/4 SW 1/4 of Section 28, Township 34 North, Range 100 West, 6th Principal Meridian, Fremont County, Wyoming. The complaint in substance alleges that plaintiff was fee simple owner of the tract; that plaintiff was in actual possession thereof; and that the defendants claimed an interest therein adverse to the plaintiff. Other allegations disclosed that plaintiff's claim was based on adverse possession. Although the complaint is couched in the form prescribed by our rules for an action to quiet title, Form 16, W.R.C.P., that was not the relief requested. The relief sought was that the defendants be enjoined from asserting any claim to the premises adverse to the plaintiff.

In answer to the complaint the defendants admitted that they claimed an interest in the land; denied the remaining allegations of the complaint; alleged that plaintiff was estopped to claim ownership; and by way of counterclaim affirmatively alleged ownership and asked that they be restored to possession or in the alternative that their title be quieted against the plaintiff. Other issues were raised by the pleadings which are not material here. The case was tried to the court sitting without a jury. Judgment was entered reciting among other things that plaintiff was 'the owner of and entitled to the exclusive possession' of the premises involved and that defendants be 'permanently enjoined from asserting any claim' to the premises 'adverse to the Plaintiff.'

Defendants have appealed, asserting that the trial court erred in several respects.

Inasmuch as the errors claimed relate principally to the ultimate finding of the court 'that W. H. Ellis [plaintiff's grandfather] and his successors in interest have been in the sole, exclusive, open, notorious, adverse and continuous possession of the lands in question since W. H. Ellis took possession of said property in 1918,' it is appropriate first to refer to evidence pertinent to the finding. Such evidence is largely undisputed.

The defendants acquired record title to the SE 1/4 SW 1/4 above described on July 18, 1960. The plaintiff, on or about May 5, 1960, acquired record title from his grandfather, W. H. Ellis, to lands adjoining the defendants' forty on the north and on the east. The grandfather's deed to plaintiff described the lands conveyed in keeping with the government's subdivisional survey, and the tract here in dispute was not described or mentioned in any way. The tract materialized from a rather fortuitious circumstance. Sometime prior to the year 1918 the county constructed a road which ran diagonally across the northeast part of the forty above described. Also at some time prior to the year 1918--the exact date is not shown in the record and no one seemed to know the date--a barbed wire fence was constructed more or less parallel to the county road on its northeast side. While there was some reference to this fence in the testimony as being a 'county fence' or 'a road boundary fence,' the record does not show who built it. C. E. Spurlock, Jr., a licensed engineer and surveyor, who made the survey in 1964 showing the location of the road, the county right of way, and the fence in question, simply described it as an 'existing fence' located outside of the right of way. As a result of the construction of the road and the construction of the fencing the tract became isolated from the remaining portion of the defendants' property. It contained approximately six acres. The outer boundary lines of the triangular tract may be appropriately described as consisting of a north portion of the east section line of the said forty; the east portion of the north section line of said forty; and the diagonal fence line on the northeast side of the county road. There were no divisional fences located on the north or east section lines of the tract and none have since been constructed. However, the fence line on the northeast side of the road and as extended through the southern portion of the SW 1/4 SE 1/4 of said Section 28 to the east tied in with a barbed wire fence marking the outer boundaries of the remainder of the Ellis property. In the year 1920 the grandfather attached woven wire to the fences described. From that time on the grandfather or the plaintiff utilized the disputed tract of land along with portions of their other lands lying north and east of the county road for the purposes of grazing livestock. So far as the record shows the resulting enclosure was sufficiently substantial to keep the grandfather's livestock in and the livestock of others out. It appears that the grazing of livestock was the only purpose for which the disputed tract was suitable. Subsequent to 1920 all of the fences were maintained by the grandfather or the plaintiff. Other than the placing of the woven wire on the fence representing the northeast boundary of the disputed tract, no improvements were ever made or placed thereon.

The record further discloses that none of defendants' predecessors in interest ever made use of the tract or objected to its use by the Ellises. The defendants offered some evidence tending to show that this circumstance may have resulted from a mutual understanding between the grandfather and a predecessor of the defendants, and we shall say more about this later. Neither was there a dispute concerning the location of the boundaries of the defendants' property and the adjoining Ellis property until early in May 1964. At that time a question as to ownership of the tract came up and the defendants caused a survey to be made. From the survey it was ascertained that the fence line on the southwest of the triangular tract was inside the boundaries of the premises described in the defendants' deed and it was then that the defendant John Meyer went upon the disputed tract, removed the top wire of the southwest fence line, and undertook to lay it upon the section lines. Just how extensive Meyer's effort was is not disclosed by the record. In any event, that act precipitated the controversy here. Perhaps we should also mention that there was no testimony to the effect that the grandfather ever advised defendants' predecessors that he was claiming the property as his own or that plaintiff ever advised anyone that he was claiming ownership of the property until the filing of his complaint herein. Plaintiff testified that he had made no effort to ascertain the boundaries of his grandfather's land but had assumed that the disputed tract was within those boundaries.

The parties also agree that the defendants or their predecessors have always paid the taxes levied upon the disputed tract.

The foregoing recital of the evidence will be augmented where necessary in discussing the several contentions of the defendants.

The principal contention of the defendants is that plaintiff failed to prove that he had acquired ownership of the disputed tract by adverse possession, upon which he wholly relied. To the extent the contention is directed at the determination of the trial court that plaintiff was the 'owner' of the premises and 'entitled to the exclusive possession' thereof against the world, we are inclined to agree. Plaintiff proved no title or such right in himself by adverse possession or otherwise. There being no evidence to support the finding and conclusion of the trial court on this phase of the case, the judgment in that respect was erroneous.

Defendants argue that such a result was compelled for the reason plaintiff could not 'tack' upon the adverse possession of his grandfather. We have, of course, recognized the doctrine of tacking. Bryant v. Cadle, 18 Wyo. 64, 104 P. 23, 27, modified on rehearing 106 P. 687. Whether we went so far in Tissino v. Mavrakis, 67 Wyo. 560, 228 P.2d 106, 116, as to hold--as some authorities do--that resort to the doctrine could not be had unless the premises involved were mentioned in the deed or conveyance to the claimant, we need not decide. As we view the record in the instant case the doctrine has no application. The doctrine was engrafted upon the general principles of the law of adverse possession for the purpose of meeting the requirement of 'continuous' possession for the statutory period. Du Val v. Miller, 208 Or. 176, 300 P.2d 416, 419, 420; Rohner v. Neville, 230 Or. 31, 365 P.2d 614, 618, rehearing denied 368 P.2d 391; El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 376 P.2d 528, 533. If, as the trial court found, the grandfather long prior to the year 1960 acquired title to the disputed tract by adverse possession, such title became vested and was good against the world, including the predecessors of the defendants. Bentley v. Jenne, 33 Wyo. 1, 236 P. 509, 512; Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 573, 576, 136 A.L.R. 770, rehearing denied 113 P.2d 963. 'Tacking' could not aid or detract from that title and such title could be divested only by a conveyance, by descent or by operation of law. Du Val v. Miller, supra; El Cerrito, Inc. v. Ryndak, supra.

Thus, putting aside for the moment the question of the conclusion of the trial court as to the grandfather's title, our concern with respect to plaintiff's alleged ownership, as indicated, was whether or not the grandfather had conveyed his interest by the deed delivered to plaintiff in 1960. The conclusion that he did not seems...