Appeal from the District Court of Big Horn County. The Honorable Robert E. Skar, Judge.
For Wyo-Ben, Inc., Appellant: Randy L. Royal of Randy L. Royal, P.C., Greybull, Wyoming.
For M-I, LLC, Appellant: Steven F. Freudenthal of Freudenthal & Bonds, P.C., Cheyenne, Wyoming.
For Boyd J. Van Fleet, Appellee: S. Joseph Darrah of Darrah Law Office, P.C., Powell, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] Boyd Van Fleet owns a parcel of real property in the Potato Ridge area of Big Horn County, Wyoming. The property is approximately five miles east of Greybull. A road crosses a corner of his parcel, and a dispute arose with Appellants Wyo-Ben, Inc. and M-I, LLC, d/b/a M-I Swaco concerning their ownership and right to use that portion of the road in conjunction with bentonite mining operations. The district court found that Appellants failed to prove their claims for adverse possession and prescriptive easement, and that Van Fleet owns the land where the road traverses his property free of any right for them to use it. We affirm.
[¶2] Appellants raise a number of interrelated issues, which can be refined into the following dispositive questions:
1. Did the district court err in determining that Appellants did not meet their burden of proving the elements of their claim for adverse possession?
2. Did the district court err in determining that Appellants did not meet their burden of proving the elements of their claim for prescriptive easement?
[¶3] The State of Wyoming issued a gentleman by the name of D.K. Jones a patent for the property involved in this case in 1955. A couple of decades passed before he and his wife (who was on the title by that time) entered into a mining lease which covered their property and some neighboring lands with Wyo-Ben on November 1, 1970. This conveyance is known as the Jones-Manning lease.
[¶4] The lease allowed Wyo-Ben to mine bentonite from the subject property " together
with the right to construct all buildings, and to make all excavations, openings, roads and other improvements or alterations upon the leased premises, which are or may become necessary or suitable for the mining, storing and removing of Bentonite from said premises and the processing thereof." The term of the lease was " until October 31, 1973, and so long thereafter as Bentonite may be mined, produced or marketed from said premises."
[¶5] Wyo-Ben established a bentonite mine pit on the lease, and it also constructed a road to access the lease and haul the bentonite it mined to its processing plant. Mining was brief, however, as Wyo-Ben apparently ceased operations on the property by August of 1973. Wyo-Ben would have stopped paying royalty on the bentonite it mined at this point, but neither party to the lease took any action to terminate it as a matter of record after mining stopped.
[¶6] Soon thereafter, and prior to October 31, 1973, the mine pit was reclaimed by backfilling it. As a result, the then-existing road was wiped out in the area of the pit. Wyo-Ben then rebuilt the road over or near the backfilled pit in order to haul bentonite from claims lying beyond the property to the south, which would not have been permitted by the Jones-Manning lease. Wyo-Ben did not acquire a new easement over what is now Van Fleet's property, and from what the record tells us, it did not ask permission to continue to use the road. At the time of trial in this case, this road was Wyo-Ben's sole access to its mining claims south of Van Fleet's property, at least for trucks large enough to haul bentonite in commercially reasonable quantities.
[¶7] The road is referred to locally as " the haul road." It begins at a turnoff on U.S. Highway 14 east of Greybull and meanders southeast through state, federal and private lands, including 767.5 linear feet of Van Fleet's property. This portion of the road is approximately a mile from the highway. Wyo-Ben has historically used thirteen miles of the road. At Van Fleet's property, it is about 56 feet wide, and it is in relatively the same condition and location today as it was in the 1970s. The following aerial photograph illustrates the road as it crosses Van Fleet's property.
[¶8] Wyo-Ben utilizes a contractor to remove overburden and transport bentonite from its leases or claims to its processing plant. The contractor's trucks are not marked as belonging to Wyo-Ben; instead, they bear the contractor's name and/or logo. It would therefore not have been possible for an observer to tell that the trucks were operating on Wyo-Ben's behalf. These " haul trucks" are and historically have been large tractor-trailer-pup rigs.
[¶9] The trucks make up to 100 round trips per day, meaning that they would pass through Van Fleet's property up to 200 times a day, at least at times. Van Fleet claims that the volume of truck traffic has increased in recent years, and that trucks have passed as often as every two minutes. He and a person living on his property testified that the operation generates a great deal of noise and dust, and that it disturbs his sleep if hauling continues into the night.
[¶10] The contractor grades and maintains the road as needed, at Wyo-Ben's expense. It also sprinkles water on the road to keep the dust down. Wyo-Ben pays for culverts and cattle guards, and for their repair, maintenance, and replacement. The cattle guards are a convenience for Wyo-Ben's haul contractor, because otherwise they would have to stop their trucks to ...