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James Henry and Barbara Henry, Husband and Wife v. George Borushko and Lucille Borushko

July 31, 2012

JAMES HENRY AND BARBARA HENRY, HUSBAND AND WIFE, APPELLANTS (PLAINTIFFS),
v.
GEORGE BORUSHKO AND LUCILLE BORUSHKO, HUSBAND AND WIFE, APPELLEES (DEFENDANTS).



Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellants, James and Barbara Henry, and Appellees, George and Lucille Borushko, own adjoining properties in Fremont County, Wyoming. An irrigation canal separates the properties. In 2009, a dispute developed over the boundary between their properties. The Borushkos asserted that the boundary was the centerline of the irrigation canal. The Henrys claimed that it was at the fence along the north bank of the canal. Litigation ensued. The district court ruled in favor of the Borushkos. The Henrys appealed. We will affirm.

ISSUE

[¶2] The issue is whether the deed to the Borushkos' property should be interpreted to establish the property boundary at the centerline of the canal or along the fence on the north bank of the canal. A secondary issue, raised by the Borushkos, is whether there was reasonable cause for this appeal.

FACTS

[¶3] The facts related here are necessarily brief. The bench trial held by the district court was not reported, so none of the witnesses' testimony or the parties' arguments is available to us on appeal. Pursuant to W.R.A.P. 3.03, the district court provided an order settling a statement of the evidence. It lists the witnesses who testified, but reveals nothing about their testimony. It lists the trial exhibits accepted into evidence. From these documents, particularly the deeds conveying the property, we glean this information.

[¶4] In 1977, the Henrys conveyed to the Mortensens:

All lands lying North of Midvale Irrigation District Pavillion Main Lateral which lie within and are portions of the S1/2 NW1/4 , Section 14, Township 3 North, Range 2 East, Wind River Meridian, Fremont County, Wyoming; all lands lying North of the Midvale Irrigation District Pavillion Main Lateral which lie within and are portions of the SE1/4 NE1/4 , Section 15, Township 3 North, Range 2 East, Wind River Meridian, Fremont county [sic], Wyoming; all containing

40.1 acres more or less.

The Henrys retained the property south of and adjacent to the conveyed property, and still own it. In 1995, the Mortensens conveyed their property to the Borushkos, using a functionally identical description of the property.

[ΒΆ5] In 2009, a dispute developed between the Henrys and the Borushkos about the precise location of the property line, the Borushkos claiming it is at the centerline of the canal and the Henrys claiming it is along the north bank of the canal. Following a bench trial, the district court ...


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