Shores v. Lindsey

Decision Date03 May 1979
Docket NumberNo. 5000,5000
Citation591 P.2d 895
PartiesD. A. SHORES and Kathleen Shores, husband and wife, Appellants (Defendants below), v. D. L. LINDSEY and Rose M. Lindsey, husband and wife, Appellees (Plaintiffs below). *
CourtWyoming Supreme Court

Christian S. Hinckley, of Hinckley & Hinckley, Basin, for appellants.

Otis W. Beach, of Wolfe, Griffith & Beach, P.C., Fort Collins, Colo., for appellees.


ROONEY, Justice.

Appellees-plaintiffs instituted an action against appellants-defendants for recovery of a strip of land for which they held record title but which was enclosed by a fence with adjacent land of defendants. Defendants assert ownership through adverse possession. Following a trial to the court, judgment was entered for plaintiffs. We will reverse.

The primary assignment of error is that the court's failure to make a finding of fact as to the location and significance of the existing fence line resulted in certain errors in the findings of fact and conclusions of law with regard to the degree of occupancy and use required to satisfy the elements of actual and continuous possession necessary to establish adverse possession.

The facts are generally undisputed. Plaintiffs are record owners of Lot 9, Section 28, Township 24 North, Range 63 West, 6th P.M., in Big Horn County, having acquired it in 1961. Defendants are record owners of adjacent Lot 3, having acquired it December 11, 1962. They took possession of it January 15, 1963. Lot 3 is immediately north of Lot 9. An old-type heavy buffalo-double-barbed wire fence parallels the boundary line between the two lots and was approximately 200 feet from that line on plaintiffs' lot. It, therefore, enclosed about 6.6 acres of plaintiffs' Lot 9 with defendants' Lot 3. A highway underpass joined Lot 3 with other lands of defendants.

The parties are agreed that the fence line had been in its present location for at least 40 years preceding the date this litigation was commenced, and that it was existing at the time they acquired their respective lots. Defendants believed that the fence line represented the true boundary between the lots. Plaintiffs, however, were advised shortly after their acquisition that the fence line was off "between ten and twelve feet" but made no mention of the matter to defendants until 1972. The true location of the fence line was determined by a licensed survey in 1976.

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 is hostile and under a claim of right or color of title. City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 910, 97 A.L.R. 1 (1929); and Bryant v. Cadle, 18 Wyo. 64, 104 P. 23 (1909), modified on rehearing, 18 Wyo. 95, 106 P. 687 (1910). The elements must exist for at least ten years prior to the commencement of an action affecting title to or possession of the property. Section 1-3-103, W.S.1977. The findings of fact and conclusions of law indicate that the district court denied defendants' adverse possession claim because of the lack of exclusivity and continuity of use. As the case is postured, there is no dispute that the other elemental requirements were satisfied.

Other than with reference to the fence, defendants' position is predicated upon three activities that were conducted in connection with the disputed strip from 1963 to the filing of this suit on October 8, 1976: (1) a farming operation in 1963 and 1964; (2) the pasturage of cattle in every year from 1964 to 1976; and (3) the erection of and construction of a roping arena and corrals on a portion of the strip in 1972. The findings and conclusions of the court indicate that it considered the farming operation and the erection of the corrals and roping pens to satisfy the requirements of adverse possession but decided that the evidence relating to the pasturage of cattle in the interim did not establish exclusive and continuous occupancy of the premises. In this regard, the findings of fact stated:

"11. The strongest of all of the Defendants' claims rests with the grazing of cattle on the land in question, said cattle having access to that land from an underpass through the highway on Defendants' land to Plaintiffs' land. As counsel know, the Court did examine the premises in question so is familiar with the type of pasture that was available to the cattle during the period of time in question.

"12. That the pasturage by the cattle belonging to the Defendants on the subject property was disconnected in the period of occupancy in that from the Court's view of the premises, the only time in which the cattle could graze on the land in question would be during the growing season, which, of course, is short in duration in Wyoming.

"13. That the claimed pasturage by the Defendants was also casual and incidental and of a sporadic nature by reason of the very nature of the times when the cattle could graze. Throughout the entire period of time, there were times when they were on the Plaintiffs' property and there were times when they were not and were on their own property, thus such grazing would become if not sporadic very widely scattered. For this reason the Court is of the opinion that the acts of the Defendants' cattle do not come within the provisions contemplated by the Strum (sic) case as neither exclusiveness nor continuous possession have been established herein and, thus, the claim of adverse possession fails in this area."

The legal conclusions drawn from these findings restate the legal principles applied in findings nos. 12 and 13.

Defendants argue that even though the findings correctly determined that their cattle had grazed on the disputed tract, finding no. 12 was erroneous because it confused the duration of use with the possessory use necessary to establish an adverse claim. It is further argued in an apparent reference to finding no. 13 that no mention was made of undisputed evidence showing that: (1) the cattle had relatively free access to defendants' lots on both sides of the highway; and (2) the acreage was enclosed with Lot 3 by the existing fence line, which defendants believed to have represented the true southern boundary of Lot 3. Addressing the latter omission, it is contended that the failure to find on this material issue resulted in an erroneous conclusion as to the use and occupancy necessary to establish exclusive and continuous possession. 1

When the specific findings of fact are made by the trial court on evidentiary matters, they are presumed to be correct, and an appellate court will not disturb them unless they are clearly erroneous or against the great weight of the evidence. Whitefoot v. Hanover Ins. Co., Wyo., 561 P.2d 717, 720 (1977); and Willis v. Asbury Transportation Co., Wyo., 386 P.2d 934, 937 (1963). The review standard recognizes that deference must be given to the opportunity of the trial court to judge the credibility of the witnesses, and that a reviewing court will not set aside the court's findings merely because it might have reached a different result. United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); and United States v. Yellow Cab Co., 338 U.S. 338, 341-342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). However, the presumption of correctness will be overcome if the reviewing court on the entire evidence is left with a definite and firm conviction that a finding is mistaken. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); and United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Findings of fact of the trial judge can also lose the insulation of the clearly erroneous standard if they are induced by an erroneous view of the law, United States v. United States Gypsum Co., supra, 333 U.S. at 394; and United States v. Richberg, 5th Cir., 398 F.2d 523 (1968), or contain factual and legal conclusions that reflect the application of an improper legal standard. In either event, such findings, like conclusions of law, are not binding on an appellate court. As stated by the court in Cordovan Associates, Inc. v. Dayton Rubber Company, 6th Cir., 290 F.2d 858, 860 (1961):

" * * * (N)ot all findings labeled as findings of fact are binding on an appellate court. Where a finding designated as a finding of fact is not in reality a finding of fact, but is a conclusion of law or a mixed finding of fact and conclusion of law, it is not binding on the appellate court. (Citations.) Where a finding is of an ultimate fact in the making of which is involved the application of legal principles, it is subject to review. (Citations.)"

Finding no. 11 does reflect a determination that pasturage of livestock was a reasonable use for which the disputed 6.6 acres was suitable. The court, however, made an erroneous legal conclusion in finding no. 12 that pasturage during the growing season apparently was not of sufficient duration to establish continuous occupancy of the premises. In Brumagim v. Bradshaw, 39 Cal. 24, 46 (1870), the Supreme Court of California provided an apt explanation of the dominion and control necessary to establish actual occupation in adverse possession cases:

" * * * The general principle which underlies all this class of cases is, that the acts of dominion must be adapted to the particular land, its condition, locality and appropriate use. The philosophy of the rule is, that by such acts the party proclaims to the public that he asserts an exclusive ownership over the land, and the acts which he performs are in harmony with his claim of title. * * * "

A person who rests his claim of adverse possession on the grazing of livestock on the land in question is not required to continuously pasture the herd...

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