Sowerwine v. Nielson

• Decision Date: 12 October 1983
• Docket Number: No. 83-36,83-36
• Citation: 671 P.2d 295
• Parties: Elbert O. SOWERWINE, Jr., Appellant (Defendant), v. Glenn E. NIELSON and Donald C. Schmalz, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 295

671 P.2d 295

Elbert O. SOWERWINE, Jr., Appellant (Defendant), v. Glenn E. NIELSON and Donald C. Schmalz, Appellees (Plaintiffs).

No. 83-36.

Supreme Court of Wyoming.

Oct. 12, 1983.

Elbert O. Sowerwine, Jr., pro se.

L.B. Cozzens, Billings, Mont., for appellees.

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

CARDINE, Justice.

This action involved a dispute over the correct location of the common boundary between Tract 54, owned by appellee (Nielson), and Tract 56, owned by appellant (Sowerwine). Appellee (Schmalz) was Neilson's lessee and sought damages. This appeal is from the judgment establishing the boundary as claimed by Nielson.

We will affirm.

Appellant, in his brief, states the issues as follows:

1. "Is the controlling boundary between the Sowerwine land and the Nielson land where the Plaintiffs [appellees] say it is or where the Defendant [appellant] says it is?"

2. "Were the Plaintiffs entitled to a Preliminary Injunction (which readily turned into a permanent injunction)?"

3. "Do either or both parties show actual, continuous use of the disputed property for at least the ten years minimum required by an Adverse Possession claim?"

4. "Were Defendant's rights to equal treatment maintained as guaranteed to every citizen under both the United States and Wyoming constitutions?"

FACTS

Appellant acquired title to Tract 56 by deed dated July 23, 1956. Mr. Dohse acquired possession of Tract 54 by contract for deed in 1958. He transferred his interest to Elsie Gibbs in 1964, and she conveyed Tract 54 to appellee Nielson in 1965. ¹ The correct location of the common boundary between Tracts 56 and 54 is in dispute. The North Fork of the Shoshone River runs in an east-west direction just north of what appellee claims is the correct boundary between the tracts. There was an old fence approximately 10 chains south of the river (one chain equals 66 feet). Mr. Dohse and all successive owners of Tract 54 testified that the fence was not a boundary fence, but separated irrigated land from non-irrigated grazing land. Appellant contended the fence marked the true common boundary between Tracts 54 and 56.

A fence may establish the boundary between tracts of land if it is acquiesced in and recognized by each party as the boundary for a period of more than ten years. However, a fence may also be kept only for convenience of the parties or to separate pastures or irrigated meadow from grazing land. A fence kept simply for convenience (as held by the court in this case) has no effect upon the true boundary between tracts of land. State v. Vanderkoppel, 45 Wyo. 432, 19 P.2d 955 (1933).

Appellant relied upon the call to the river in the original survey of this area to support his claim. Appellee relied upon the location of the original northeast and southwest corners of Section 14 in the resurvey to support his claim.

At the time of trial it was undisputed that appellant held title to resurvey Tract 56 (which, in the original survey, was described as NE 1/4 Section 14, T 52 N, R 104 W) and appellee ² held title to resurvey Tract 54 (which, in the original survey, was described as E 1/2 SE 1/4, SW 1/4 SE 1/4 Section 14, and NW 1/4 NE 1/4 of Section 23, T 52 N, R 104 W). The following drawing of the area is helpful.

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

Commencing in 1960, Mr. Dohse began grazing his horses in the area between the fence and river. He continued this use for the succeeding four years he owned Tract 54. Subsequent owners testified that they grazed livestock in this area until it was acquired by appellee in 1965. Appellee's foreman testified that he used the area for grazing livestock until it was leased in 1976 to Donald Schmalz who thereafter used it for the same purpose to the time of filing this case. All denied that appellant occupied or used the disputed area until 1977 and 1979, when lessees of appellant grazed livestock there.

Appellant testified that from the time he acquired Tract 56 in 1956, either he or his lessees occupied and possessed the disputed area exclusively and used it for grazing livestock. In 1977, appellant and his son began construction of a house south of the river. Prior to this, Appellee had thought he owned the area to the river. Now he employed a surveyor to locate the common boundary between Tracts 54 and 56. From this time until trial there were confrontations and difficulties between the parties. Appellee's lessee built a fence. Appellant tore it down. Appellant filed in a ditch of said lessee, tore out forms, left gates open and pushed livestock out of the area. This action then was commenced by appellee May 21, 1980.

The original survey was conducted in 1883. In establishing the common boundary between Sections 13 and 14, the surveyor's field notes show that he commenced at the southeast corner of Section 14, traversed "bench land" 30 chains to "bottom land"; at 40 chains the 1/4 corner was set; at 57 chains he crossed the North Fork of the Shoshone River (then called Stinking Water River); at 70 chains he crossed an east-west road; at 80 chains he set the northeast corner of Section 14.

Because of some rather large errors in the 1883 survey, a resurvey of the area was undertaken in 1908. The resurveyor found the original 1883 survey northeast corner and southwest corner of Section 14. He was unable to find the southeast corner of Section 14. Therefore, he began the resurvey from the southwest corner of Section 14, proceeded 80 chains east, and being unable to find the southeast corner, he set a stone marker at point 2 (southeast corner), Tract 54 (see drawing), then proceeded north, but was unable to find the 1/4 corner; he continued in a northerly direction and found the 1883 survey northeast corner of Section 14. From this northeast corner, he surveyed back on a line south on the common line between Sections 13 and 14 setting corner 6, Lot 55; corner 2 of Tract 56 which is also corner 1 of Tract 54; corner 5 of Lot 55, and then tied into the southeast corner of Section 14 (see drawing, supra). The resurvey was intended to establish the claims of settlers on the land as they existed at that time. It was standard practice to consult those who claimed or were occupying the land, offer an opportunity to object or suggest, and then, considering all objections and suggestions, the U.S. Surveyor General would approve or disapprove the resurvey plat. In this case the resurvey plat was approved on October 28, 1910.

Three surveyors testified; two for appellee and one for appellant. All agreed that the resurveyor followed proper procedure in starting from a known corner and proceeding as he did. All agreed that the call to the river should be considered but was not the determining factor. All agreed that the 1/4 corner and boundary between Tracts 54 and 56 as located by appellee was in the correct location according to the resurvey. Appellant contends that the resurvey is in error because the river is 47 chains north of the resurvey southeast corner of Section 14 when, according to the 1883 original survey field notes, it is shown as 57 chains north of this corner.

Appellant is a registered professional engineer. Both he and the surveyor he employed were allowed to testify fully and put their theory before the court. In essence, that theory was that their survey which began at a point 57 chains south of the river, which is approximately ten chains south of the resurvey southeast corner of Section 14, was correct because they located what they considered bottom land at 30 chains; the river at 57 chains, and what in their opinion had once been a road at 70 chains. However, the northeast corner of Section 14 occurs at 90 chains or 10 chains too far north. Appellant was of the opinion that the surveyor had made a mistake in locating the northeast corner of Section 14 ten chains too far north.

One of appellee's surveyors testified that, starting at the northeast corner of Section 14 and surveying back, the North Fork Road was 10 chains from the northeast corner; corners 5 and 6 of Lot 55 were in correct position; bottom land appeared 30 chains from the southeast corner; the southeast corner was 80 chains from the northeast corner; that all of the calls were correct, with the exception of the call to the river, which was 47 chains north of the southeast corner of Section 14. He was of the opinion that the surveyor in the 1883 survey had made a mistake of 10 chains or that the river had moved from its 1883 location.

All three surveyors testified that during the 100-year period following 1883 the river had moved, appellant's own surveyor testifying as follows:

"Q. So it is within the realm of possibility that the river moved six hundred to six hundred and fifty feet, and that would explain the discrepancy that we have of the location of the river?

"A. That could, yes.

"Q. Okay. But you don't--you do not know whether that river moved or not, do you?

"A. I don't know that--how much the river may have moved. It appeared that it had moved some."

Appellant himself testified the river had not moved but was in the same place as in 1883, and that the call to the river (a natural monument) must control. If the river moved, or if the original surveyor made a ten chain error in locating the river, then all calls in the resurvey are consistent. If the river did not move and there was no error in locating the river, then the original northeast and southwest corners and all other monuments must be moved 10 chains to accommodate the river as a natural monument.

I IS THE CONTROLLING BOUNDARY BETWEEN THE SOWERWINE LAND AND THE NIELSON LAND WHERE PLAINTIFFS SAY IT IS OR WHERE THE DEFENDANT SAYS IT IS?

The question stated above is as expressed by appellant in his pro se brief. To answer the question, we must determine whether we should accept the river (a natural monument) as most reliable and move all corners to conform to the call to...