Smithson v. Lindzey

• Decision Date: 28 January 2021
• Docket Number: S-20-0117
• Parties: Scott B. SMITHSON and Elena A. Morozova, Appellants (Plaintiffs), v. Frederick G. LINDZEY and Stephanie D. Lindzey, Appellees (Defendants).
• Court: Wyoming Supreme Court

479 P.3d 759

Scott B. SMITHSON and Elena A. Morozova, Appellants (Plaintiffs),

v.Frederick G. LINDZEY and Stephanie D. Lindzey, Appellees (Defendants).

S-20-0117

Supreme Court of Wyoming.

January 28, 2021

Representing Appellants: Mitchell Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Edwards.

Representing Appellees: David McCarthy, David McCarthy, P.C., Rawlins, Wyoming. Argument by Mr. McCarthy.

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

FOX, Justice.

[¶1] Frederick and Stephanie Lindzey's predecessors conveyed the right to fish in the Little Laramie River to the predecessors of Scott Smithson and Elena Morozova (the Smithsons), who contend they continue to hold that right because it is a servitude appurtenant to the land. The Lindzeys, owners of the servient estate, disagree, and have placed fences and "No Trespassing" and "No Fishing" signs on the property line. The Smithsons filed suit for declaratory judgment affirming the right and for an injunction preventing the Lindzeys from interfering with it. On cross-motions for summary judgment, the district court found in favor of the Lindzeys, declared any right to fish was a license that ended when the original grantees sold their interest in the land, and denied injunctive relief. We reverse and remand.

ISSUE

[¶2] Did the 1965 Warranty Deed grant fishing rights to the original grantees only, or did it grant a servitude appurtenant to the Smithson's land?

FACTS

[¶3] The Smithsons own land in Albany County, between Millbrook Road and the Little Laramie River. The northwest property line meanders ten feet from the river (see Fig. 1). The Lindzeys own the adjacent tract which includes the river and ten feet of bank on the Smithson side.

Fig. 1 : The Smithson property[¶4] Margaret May and Peggy Jo Foreman conveyed a portion of their land to Charles and Hanna Groathouse in 1965. The warranty deed included this language:

The intention of this deed is that the westerly boundary line of the tract hereby conveyed shall be 10 feet from the right bank of the Little Laramie River and none of the rights grantors have in said River, except as hereinafter mentioned, are being conveyed.

* * *

Grantors specifically grant to grantees fishing rights along the right bank of the Little Laramie River adjacent to the tract hereby conveyed but such rights shall not be exclusive.

After several interim conveyances, Scott Smithson purchased the property in 1996 and conveyed it to himself and Elena Morozova in 2016. Each of the warranty deeds in the Smithsons' chain of title state the conveyances include appurtenances thereto. In 1989, Peggy Jo Foreman granted the Lindzeys their property. That warranty deed provides the conveyance is "SUBJECT TO: reservations, restrictions, easements, agreements, covenants and rights of way of record and taxes for 1989 and subsequent years."

[¶5] The Lindzeys informed the Smithsons that they would like to purchase the Smithson property if they offered it for sale. When the Smithsons decided to sell, they offered it to the Lindzeys, but the parties could not agree on a price. Soon after, the Lindzeys installed a fence along the property line with a "No Trespass" sign facing the Smithsons' bay window. The Lindzeys then installed additional posts along the property line with "No Fishing" and "No Trespassing" signs.

[¶6] In April 2019, the Smithsons filed suit against the Lindzeys. The Smithsons asked the district court to declare the fishing rights along the bank of the Little Laramie River adjacent to their property were appurtenant rights that benefit and run with their land, and encumber and burden the Lindzey property. They also asked the court to enjoin the Lindzeys from interfering with their ability to exercise and enjoy the fishing rights conferred by the 1965 deed, and to order the Lindzeys to remove barricade fences and posts with "No Fishing" and "No Trespassing" signs.

[¶7] The parties filed cross-motions for summary judgment, and the district court granted summary judgment to the Lindzeys, declaring the deed "created only a revocable license or personal servitude in the 1965 grantees to fish alongside the Little Laramie River, and that said fishing rights were not intended to be transferable. Therefore, such fishing rights ceased to exist when the Groathouses divested themselves of their interest in the Smithson Property." The district court denied the Smithsons' claims for declaratory judgment and for injunctive relief. The Smithsons appealed. We reverse and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

[¶8] Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Seven Lakes Dev. Co., L.L.C. v. Maxson , 2006 WY 136, ¶ 7, 144 P.3d 1239, 1244 (Wyo. 2006) ; W.R.C.P. 56(a). We review summary judgment de novo, affording no deference to the district court's ruling, using the same materials and following the same standards as the district court. We examine the record from the vantage point most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which may fairly be drawn from the record. Gayhart Tr. of Tiphany L. Gayhart Living Tr. dated Oct. 1, 2008 v. Corsi , 2020 WY 58, ¶ 11, 462 P.3d 904, 908 (Wyo. 2020) ; Pennaco Energy, Inc. v. KD Co. LLC , 2015 WY 152, ¶ 14, 363 P.3d 18, 22 (Wyo. 2015).

DISCUSSION

[¶9] The district court determined the 1965 warranty deed created a revocable license or personal servitude in the Groathouses, which the grantors did not intend to be transferrable, and therefore ended when the Groathouses sold the land. The Smithsons claim the warranty deed created a profit, appurtenant to the land, which transferred to them automatically when they purchased their land. Before we construe the deed to determine what type of interest it created, we summarize the relevant privileges and interests in land.

[¶10] "A license is a privilege to do certain acts of a temporary character on the land of another which is revocable at the will of a licensor unless a definite time has been specified, or unless it is coupled with an interest." Seven Lakes , 2006 WY 136, ¶ 11, 144 P.3d at 1245 (quoting Sammons v. Am. Auto. Ass'n , 912 P.2d 1103, 1105 (Wyo. 1996) (citation omitted)). A license is not an interest in the land, but means the possessor is not a trespasser when he enters the grantor's land. Seven Lakes , 2006 WY 136, ¶ 11, 144 P.3d at 1245 (citing Sammons , 912 P.2d at 1105 ). A license may be created orally, in writing, or by implication "from the acts of the parties, from their relations, and from usage and custom." Seven Lakes , 2006 WY 136, ¶ 11, 144 P.3d at 1245 (quoting Sammons , 912 P.2d at 1105 (citation omitted)). "[A] license is revocable at will." Seven Lakes , 2006 WY 136, ¶ 14, 144 P.3d at 1246 (quoting Restatement (Third) of Prop.: Servitudes § 2.2 cmt. h (2000)).

[¶11] A servitude is distinct from a license because it is an interest in land. Seven Lakes , 2006 WY 136, ¶¶ 11-12, 144 P.3d at 1245-46. A servitude is normally irrevocable unless "the right to revoke is expressly reserved and properly exercised." Id. at ¶ 14, 144 P.3d at 1246 (quoting Restatement (Third) of Prop.: Servitudes § 2.2 cmt. h). Easements and profits a prendre (profits) are servitudes. Id. at ¶ 12, 144 P.3d at 1245 ; Restatement (Third) of Prop.: Servitudes § 1.1(2). An easement entitles the holder to the use or enjoyment of another's property. Seven Lakes , 2006 WY 136, ¶ 12, 144 P.3d at 1245 (citing Hasvold v. Park Cnty. Sch. Dist. No. 6 , 2002 WY 65, ¶ 13, 45 P.3d 635, 638 (Wyo. 2002) ). A profit is an "easement plus": it allows the holder to enter another's land and remove from it "the fruits not yet carried away." Seven Lakes , 2006 WY 136, ¶ 12, 144 P.3d at 1245 (citing Restatement (Third) of Prop.: Servitudes § 1.2 cmt. e; 25 Am. Jur. 2d Easements and Licenses § 3 (2004) ). We have held that hunting and fishing rights in the land of another are profits. Seven Lakes , 2006 WY 136, ¶ 20, 144 P.3d at 1248 (citing 25 Am. Jur. 2d Easements and Licenses § 3 ; 28A C.J.S. Easements § 9 ; L.S. Tellier, Annotation, Right Created by Private Grant or Reservation to Hunt or Fish on Another's Land , 49 A.L.R.2d 1395 (1956) and citations therein); see also Restatement (Third) of Prop.: Servitudes § 1.2 Reporter's Note: Hunting and Fishing Rights Are Profits .

[¶12] "We interpret a warranty deed like a contract from specific language of the deed, and begin by looking at the instrument itself." Seven Lakes , 2006 WY 136, ¶ 10, 144 P.3d at 1245 (quoting Gilstrap v. June Eisele Warren Tr. , 2005 WY 21, ¶ 12, 106 P.3d 858, 862 (Wyo. 2005) (quotation marks and citation omitted)). We look first at the terms of the deed, giving them their plain and ordinary meaning: "that meaning which the language would convey to reasonable persons at the time and place of its use." Seven Lakes , 2006 WY 136, ¶ 10, 144 P.3d at 1245 (quoting Gilstrap , 2005 WY 21, ¶ 12, 106 P.3d at 862 (alteration and quotation marks omitted)). When the terms are clear and unambiguous, this Court looks within the "four corners" of the document to arrive at the intent of the parties. Seven Lakes , 2006 WY 136, ¶ 10, 144 P.3d at 1245 (citing Gilstrap , 2005 WY 21, ¶ 12, 106 P.3d at 862 ). However, "even if a contract is unambiguous, we can examine evidence of the circumstances surrounding the execution of the deed to arrive at the parties' intent." Leeks Canyon Ranch, LLC v. Callahan River Ranch, LLC , 2014 WY 62, ¶ 14, 327 P.3d 732, 738 (Wyo. 2014) (quoting Ecosystem Res., L.C. v. Broadbent Land & Res., L.L.C. , 2007 WY 87, ¶ 10, 158 P.3d 685, 688 (Wyo. 2007) ). The parties agree the language in the 1965 Warranty Deed is unambiguous, but they disagree on its meaning. Mere disagreement about the meaning of language in a deed does not necessarily mean that the deed is ambiguous. Seven Lakes , 2006...