Rutar Farms & Livestock, Inc. v. Fuss

• Decision Date: 04 October 1982
• Docket Number: No. 5684,5684
• Citation: 651 P.2d 1129
• Parties: RUTAR FARMS AND LIVESTOCK, INC., a Wyoming Corporation, and Rudolph J. Rutar, Appellants (Plaintiffs), v. Ronald D. FUSS and Margie D. Fuss, husband and wife, Appellees (Defendants), v. The STATE of Wyoming, acting Through the WYOMING GAME AND FISH COMMISSION, Appellee (Defendant and Third-Party Plaintiff), v. Leon EISENBARTH and Lillian Alma Eisenbarth, Appellees (Third-Party Defendants).
• Court: Wyoming Supreme Court

Page 1129

651 P.2d 1129

RUTAR FARMS AND LIVESTOCK, INC., a Wyoming Corporation, and Rudolph J. Rutar, Appellants (Plaintiffs), v. Ronald D. FUSS and Margie D. Fuss, husband and wife, Appellees (Defendants), v. The STATE of Wyoming, acting Through the WYOMING GAME AND FISH COMMISSION, Appellee (Defendant and Third-Party Plaintiff), v. Leon EISENBARTH and Lillian Alma Eisenbarth, Appellees (Third-Party Defendants).

No. 5684.

Supreme Court of Wyoming.

Oct. 4, 1982.

Frank J. Jones, Wheatland, for appellants.

Steve Graham of Jones & Graham Law Offices, Torrington, for appellees Fuss.

Thomas C. Bogus, Sr. Asst. Atty. Gen., Cheyenne, for appellee State of Wyoming, acting through the Wyoming Game and Fish Commission.

Stanley K. Hathaway and Richard J. Barrett of Hathaway, Speight & Kunz, Cheyenne, for appellees Eisenbarth.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY, and BROWN, JJ.

BROWN, Justice.

Appellants sued in the district court to quiet title to about 31 acres of land. Their theory of recovery was ownership by adverse possession. Appellees Fuss and the State of Wyoming are record titleholders of the disputed land. The trial judge entered judgment in favor of the record titleholders and quieted title in them. Appellants designate the issues as follows:

1. Did the plaintiffs and their predecessors in interest have actual, open, notorious, exclusive and hostile possession of the disputed lands under a claim of right for a period of ten consecutive years?

2. Were the trial court's Findings of Fact and Conclusions of Law incomplete and in error?

We will affirm.

A sketch of the area, although not to scale, may help.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The disputed land involves two adjoining tracts immediately north of the North Platte River. Appellees Fuss are the record titleholders of the SW1/4NE1/4, Section 32. Appellee State of Wyoming is the record titleholder of 17.58 acres of the SE1/4NE1/4, Section 32. Appellants are the record titleholders of the N1/2NE1/4 of Section 32, which land is immediately north of the disputed tracts. Appellants claim the northernmost 13.9 acres of the Fuss tract and the 17.58 acres of the State of Wyoming tract. The North Platte River flows easterly across the S1/2NE1/4 of Section 32, leaving a portion of the SW1/4NE1/4 and the SE1/4NE1/4 lying north of the river and a portion lying south of the river.

Rudolph Rutar acquired title to the N1/2NE1/4 of Section 32 in 1951. In 1979, he conveyed an undivided one-half interest in the property to his son, Rudolph J. Rutar who in turn conveyed this one-half interest to appellant Rutar Farms and Livestock, Inc., a family owned corporation. The senior Rutar has contracted to sell the remaining one-half interest to his son, Rudolph J. Rutar, the other appellant.

Appellees Fuss acquired title to one of the tracts in dispute in 1980, from Ronald D. Fuss' parents. Ronald Fuss' parents, John and Martha Fuss, acquired title to the land in August, 1974.

The State of Wyoming acquired title to the other disputed tract in 1979, from third-party defendants and appellees, Leon Eisenbarth and Lillian Alma Eisenbarth. The Eisenbarths acquired their title to this disputed tract in 1965.

This is a classic case to illustrate that adjoining landowners have little concern about boundary lines when the land is of negligible value, but that when the land becomes valuable, boundaries become important. The character of the disputed land may help explain the landowners' attitude toward the land before suit. Because of the river, the disputed land was inaccessible to appellees Fuss and Eisenbarth and their predecessors. The trial court determined that the highest and best use of the disputed land was a wildlife refuge. Boundaries became important to the parties after the Wyoming Game and Fish Commission purchased 17.58 acres from the Eisenbarths.

Other facts will be set out as necessary.

I

The elements of adverse possession consist of actual, open, notorious, exclusive and continuous possession of another's real property for the statutory period, which possession must be hostile, and under a claim of right or color of title. D. A. Shores v. D. L. Lindsey, Wyo., 591 P.2d 895 (1979).

Appellants contended at trial and on appeal that title to the disputed lands vested in them not later than March, 1961, ten years after their possession. They also state in their brief that they and their predecessors have had actual possession of the disputed tracts since at least 1941, and they bring to our attention the law of "tacking" in adverse possession cases. ¹ Appellants have, however, made no showing that tacking applies to this case, and apparently do not seriously contend that a period of adverse possession by their predecessor in title should be tacked on to a period of adverse possession by them. In any event, appellants failed to prove that their predecessor in title adversely possessed the disputed land. Mr. Mort, a witness for appellants, gave testimony regarding the use made by Mr. Dupertuis, appellants' predecessor in title of the disputed land:

"Q. Did you observe cattle on that land [disputed land]?

"A. He was a pony man, (Mr. Dupertius) not cattle.

"Q. Horses then. Did he have livestock on that land and use it for grazing purposes?

"A. Yes, sir.

"Q. And do you know how often he used it?

"A. No, sir.

"Q. You did see livestock over there. Was it every year, every other year, or do you really know?

"A. I couldn't say on the land. It was poor enough land even if they was in there they might not be down there for a year or so."

This evidence does not show any of the elements in support of adverse possession by appellants' predecessor in title. Appellants must therefore rely on their own asserted possession after March, 1951, to prove adverse possession.

Appellants tried to show that the existence of a fence along the river and the nonexistence of a boundary fence, together with the fact that their cattle grazed on the disputed tracts, constituted open and notorious intent to adversely possess the disputed tracts. The most glaring deficiencies in appellants' proofs are the elements of notorious, exclusive and hostile possession under a claim of right, elements which are interrelated and will be discussed together.

There was much testimony about several fences, but we think only two fences were significant. One fence was on a line dividing the S1/2NE1/4 from the N1/2NE1/4 (point A to point B on sketch). This fence would divide appellants' land of record from appellees' land of record. The other fence roughly paralled the North Platte River on the southern border of the disputed tracts.

There was a sharp conflict in testimony regarding the existence and quality of the two fences. In cases depending heavily upon resolution of conflicts in the evidence, we favor the evidence of the prevailing party and presume specific findings to be correct unless clearly erroneous or against the great weight of the evidence. Mountain Fuel Supply Company v. Central Engineering & Equipment Company, Wyo., 611 P.2d 863 (1980). With respect to the fence dividing the N1/2NE1/4 from the S1/2NE1/4, the trial judge found:

"12. Beginning in 1955, Mr. Shain observed a fence extending easterly [sic] from the Northeast corner of the S1/2NE1/4 of Section 32 along the northern boundary of the S1/2NE1/4 of Section 32 which was in sufficient repair and condition so as to prevent the crossing of the fence on horseback. During those occasions on which his cattle strayed into the S1/2NE1/4 of Section 32, Mr. Shain was forced to use a gate in the fence line on the northern boundary of the SE1/4NE1/4 of Section 32 in order to retrieve his cattle.

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* * *

"14. On at least two occasions since 1965, Leon Eisenbarth observed the remnants of a fence beginning at the Northeast corner of the SE1/4NE1/4 of Section 32 and extending several hundred feet along the northern boundary line of said quarter section."

In Finding Number 12 the trial judge found "a fence extending easterly from the northeast corner (Point B in sketch) of S1/2NE1/4 of Section 32 along the northern boundary of S1/2NE1/4 of Section 32." The trial judge should have said westerly instead of easterly. This correction is consistent with the witnesses' testimony.

Mr. Shain owned land north and east of the disputed tracts. He had lived in the area since 1955 and was familiar with the disputed tracts and other lands of parties. Mr. Shain testified several times that there was a fence from Point A to Point B, which would have been the fence dividing the N1/2NE1/4 from the S1/2NE1/4. (See sketch). The following excerpt from Mr. Shain's testimony is illustrative:

"Q. You didn't see any fence from A to B, though?

"A. Oh, yes, I went through the gate.

"Q. There was a fence from point A to point B on the half section line?

"A. Yes.

"Q. That's your testimony?

"A. Yes.

"Q. A to C to B?

"A. There was a fence from this point B to as far as I ever got over that way because we could never ride a horse through any of that to go to the cattle except coming through the gate."

Mr. Shain also testified that the fence was in reasonably good repair. Some testimony was produced tending to impeach Mr. Shain's testimony. However, the weight to be given a witness' testimony and his credibility is for the trier of fact to determine, not this court. This Court must defer to the opportunity of the trial court to judge the credibility of the witnesses and may not set aside the trial court's findings even if it might have reached a different result. Shores v. Lindsey, supra.

Concerning the other significant fence, the trial judge found:

"15. Since at least 1941, a fence or the remnants of a fence, in various states of ill repair, has been situated along a jagged line roughly parallel to the North Platte River in the S1/2NE1/4 of Section 32."

Testifying concerning the area paralleling the north bank of the river,...