HOWARD L. WHITE and JOSLYN R. WHITE, Appellants (Plaintiffs),
HEATH S. WHEELER and TANYA D. WHEELER, Appellees (Defendants).
from the District Court of Albany County The Honorable Tory
R.A. Kricken, Judge
Representing Appellants: John D. Rawls, Attorney at Law,
Representing Appellees: M. Gregory Weisz of Pence and
MacMillan LLC, Laramie, Wyoming
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Heath and Tanya Wheeler (the Wheelers) and Howard and Joslyn
White (the Whites) are record owners of adjacent properties
in Albany County, south of Laramie, Wyoming. The Whites filed
a complaint against the Wheelers asserting a claim for
adverse possession based on the Whites' fencing and
grazing of livestock on an approximately eight-acre strip of
the Wheeler property. On cross-motions for summary judgment,
the district court entered summary judgment in favor of the
Wheelers, and the Whites appeal. Because genuine issues of
material fact precluded summary judgment in favor of either
party, we conclude the court erred in granting the Wheeler
motion. We therefore reverse and remand for proceedings
consistent with this opinion.
The Whites present a single issue on appeal, which they state
Should this Court, after conducting a de novo
review, reverse the granting of summary judgment in favor of
Appellees and remand for further proceedings?
Although the Whites frame the issue on appeal as a single
question, they claim and argue two errors: 1) that the
district court erred in denying them partial summary judgment
on their prima facie adverse possession claim; and
2) that the court erred in granting Wheelers summary
judgment. We therefore restate the issues as:
1. Did the district court err in denying the Whites'
motion for summary judgment on their prima facie
adverse possession claim?
2. Did the district court err in granting summary judgment to
the Wheelers on the Whites' prima facie adverse
possession claim and on the Wheelers' claim that the
Whites' use of the Wheeler property was permissive?
In December 1987, Howard and Joslyn White purchased the SW
¼ of Section 27, Township 15 North, Range 73 West, 6th
P.M., Albany County, Wyoming (hereinafter Section 27). In the
spring of 1988, the Whites built a fence along their
property's north property line. The fence (hereinafter
the 1988 fence) ran in a straight line starting at the
western edge of the property and continued for some distance
along the property's northern boundary line. Later in
1988, the Whites moved a manufactured home and utility
building onto their Section 27 property, and to protect those
buildings from their own grazing livestock, they built an
additional "compound fence."
About seven years later, in August 1995, the Whites purchased
the N.W. ¼ of Section 27. After that purchase, the
Whites owned the entire W ½ of Section 27, and the
1988 fence ceased being a boundary fence. About a year later,
in September 1996, the Whites purchased the E ½ of
Section 27, which left them with ownership of Section 27 in
its entirety. Less than a year later, in July 1997, the
Whites platted Section 27 into sixteen tracts and created
what is now known as the White Tracts.
The Whites platted the tracts and drew the tract boundaries
in such a manner that their home and utility building ended
up in Tract 16 and the 1988 fence ended up in Tract 10 (and
partially in Tract 12 to the east of Tract 10). The map below
shows the White Tracts and the platted boundary lines for the
sixteen tracts. The 1988 fence crosses Tract 10 from west to
east at the northern boundary line of Section 27's SW
The Whites retained Tract 16 and have been that tract's
only owners since they platted the White Tracts. The Whites
also retained Tract 10 for a number of years, until December
29, 2005, when they conveyed it by warranty deed to Jeffrey
and Lynette Morris. Tract 10 thereafter changed hands two
more times. On October 6, 2011, the Morrises conveyed Tract
10 by warranty deed to Michael and Kathleen Selmer and
Siddhartha and Carrie Murthy. The Selmers/Murthys then
conveyed the property by warranty deed to Heath and Tanya
Wheeler (the Wheelers) on January 9, 2013. The Wheelers
remain the present owners of Tract 10, and the 1988 fence
remains in Tract 10.
The present dispute between the Whites and the Wheelers began
in the spring of 2016 when Joslyn White found that horse
manure had been dumped along the south side of the 1988
fence, and that a gate at the west end of the fence had not
been properly closed. In response to those discoveries, Ms.
White placed chains and padlocks on the west gate on May 31,
On June 2, 2016, Heath Wheeler visited the White residence on
Tract 16 and informed Ms. White that he had staked the
property line between Tracts 10 and 16 and planned to
construct a fence on the true property line. On June 3, 2016,
a letter from the Whites' attorney objecting to the
Wheelers' plan to construct a new fence was
hand-delivered to the Wheelers. Attorneys for both parties
exchanged letters over the next several weeks, but the
parties were unable to resolve their disagreement over the
Wheelers' proposed fence.
On August 17, 2016, the Whites filed a complaint against the
Wheelers seeking to quiet title to the approximately
eight-acre portion of Tract 10 that lies between the 1988
fence and the northern boundary of Tract 16 in district
court. The complaint asserted three causes of action: 1)
adverse possession based on the Whites' fencing of the
property and grazing of livestock on the property; 2)
recognition and acquiescence, alleging the Wheelers and their
predecessors recognized the 1988 fence as the true property
boundary and acquiesced in that boundary; and 3) ejectment.
On August 30, 2016, the Wheelers filed their answer, which
included affirmative defenses.
The Whites filed a motion for summary judgment or partial
summary judgment on February 2, 2017. On February 21, 2017,
the Wheelers filed an opposition to the Whites' motion.
With respect to the Whites' adverse possession claim, the
Wheelers asserted the Whites' supporting affidavits made
"only broad, unspecified and conclusory assertions of
ultimate fact, " and were insufficient to support a
prima facie showing of adverse possession. They
further asserted that genuine issues of material fact
precluded summary judgment, pointing to affidavits submitted
in opposition to the Whites' motion. Finally, the
Wheelers requested that the district court enter summary
judgment in their favor, asserting that the Whites' use
of the disputed property was permissive and that they failed
to show hostility in their use of the property.
On March 6, 2017, the Whites filed a reply in support of
their summary judgment motion, together with rebuttal
affidavits. On March 10, 2017, the district court entered an
order denying the Whites' motion for summary judgment and
granting summary judgment in favor of the Wheelers. The court
explained, in part:
29. Until 2016, there was no hostility regarding the disputed
strip of land. The Whites utilized the disputed strip of land
for grazing; the Wheelers (and their predecessors) knew of
this innocuous use, and had no objections thereto. They
simply were being good neighbors. There was no indication,
until the 2016 dispute arose, that the Whites intended to
deprive the Wheelers permanently of their ownership of this
acreage. No flag was unfurled indicating an invasion was at
hand. Once some indicia of hostility and notoriety arose, the
Wheelers took action to preserve their ownership, leading to
30. The Whites have failed to set forth a prima
facie case that they used the disputed strip of land on
Tract 10 in an open, hostile, notorious, exclusive, and
continuous manner, under claim of right or color of title,
for ten years or more.
31. Judgment as a matter of law, in favor of [Wheelers], is
warranted, as to the claim of adverse possession. As a
result, summary judgment also is warranted, in favor of the
Wheelers, with regard to the Whites' claim for Recovery
of Realty (Ejectment).
On April 7, 2017, the Whites filed their timely notice of
appeal to this Court.
STANDARD OF REVIEW
When, as here, a case is fully resolved by the grant and
denial of cross-motions for summary judgment, "both the
grant and the denial of the motions for a summary judgment
are subject to appeal." Hurst v. Metro. Prop. and
Cas. Ins. Co., 2017 WY 104, ¶ 8, 401 P.3d 891, 895
(Wyo. 2017) (quoting Lindsey v. Harriet, 2011 WY 80,
¶ 18, 255 P.3d 873, 880 (Wyo. 2011)). Our review is as
We review a district court's order granting summary
judgment de novo and afford no deference to the
district court's ruling. Thornock v. PacifiCorp,
2016 WY 93, ¶ 10, 379 P.3d 175, 179 (Wyo. 2016). This
Court reviews the same materials and uses the same legal
standard as the district court. Id. The record is
assessed from the vantage point most favorable to the party
opposing the motion . . ., and we give a party opposing
summary judgment the benefit of all favorable inferences that
may fairly be drawn from the record. Id. A material
fact is one that would have the effect of establishing or
refuting an essential element of the cause of action or
defense asserted by the parties. Id.
The Tavern, LLC v. Town of Alpine, 2017 WY 56,
¶ 46, 395 P.3d 167, 178-79 (Wyo. 2017).
Additionally, with respect to adverse possession claims in
particular, we have recognized they are "peculiarly
factual in nature, " and that because they are so
fact-sensitive, "appellate review of a grant of summary
judgment is subject to more exacting scrutiny."
Braunstein v. Robinson Family Ltd. P'ship, 2010
WY 26, ¶ 19, 226 P.3d 826, 835 (Wyo. 2010).
We begin our review with a brief discussion of adverse
possession generally, including the elements of a
claimant's prima facie claim and the shifting
burdens of proof called for by our law. We will then turn to
the Whites' claim that the district court erred in
denying them partial summary judgment on their prima
facie claim. Last, we will address the Whites'
assertion that the court erred in granting summary judgment
to the Wheelers on the Whites' prima facie claim
and on the Wheelers' permissive use claim.
Adverse Possession Elements and Presumptions
Adverse possession claims are not favored in the law,
Braunstein, ¶ 19, 226 P.3d at 836, and "a
presumption in favor of the record title holder exists,
unless and until the adverse claimant makes out his prima
facie case." Hillard v. Marshall, 888 P.2d
1255, 1259 (Wyo. 1995). The elements an adverse possession
claimant must prove to make the required prima facie
showing are well established in our precedent.
One claiming that he has adversely possessed the land of
another for the ten-year period set out in Wyo. Stat. Ann.
§ 1-3-103 (LexisNexis 2015) must show that his use of
the land was actual, open, notorious, exclusive, and
continuous, and that it was hostile and pursuant to a claim
of right or color of title. Hillard v. Marshall, 888
P.2d 1255, 1258 (Wyo. 1995); Turner v. Floyd C. Reno
& Sons, Inc., 769 P.2d 364, 368 (Wyo. 1989). A
hostile possession or use is one that amounts to an assertion
of ownership adverse to that of the record owner. It must be
so incompatible with or so in defiance of the rights of the
true owner that an ordinarily prudent owner would be on clear
notice that his ownership is in jeopardy, that the claimant
intends to possess the property as his own, and that
the owner should take some action to protect his title.
Graybill [v. Lampman, 2014 WY 100');">2014 WY 100, ] ¶
36, 332 P.3d  at 522 [(Wyo. 2014)].
Galiher v. Johnson, 2017 WY 31, ¶ 20, 391 P.3d
1101, 1106 (Wyo. 2017) (emphasis in original).
Once an adverse possession claimant makes the required
prima facie showing, the presumption shifts to one
in favor of the adverse possession claimant.
When there is no clear showing to the contrary, a person who
has occupied the land for the statutory period, in a manner
plainly indicating that he has acted as the owner thereof, is
entitled to a presumption of adverse possession; and the
burden shifts to the opposing party to explain such
possession. However, if a claimant's use of the property
is shown to be permissive, then he cannot acquire title by
Osuch v. Gunnels, 2017 WY 49, ¶ 10, 393 P.3d
898, 901 (Wyo. 2017) (quoting Helm v. Clark, 2010 WY
168, ¶ 8, 244 P.3d 1052, 1057 (Wyo. 2010)).
Whites' Partial Summary Judgment Claim
The Whites contend that no genuine issues of material fact
exist on their prima facie adverse possession claim,
and that the district court thus erred in denying them
partial summary judgment on that claim. In particular, the
Whites assert they were required to show no more than that
they enclosed the disputed land with a fence and grazed
livestock on the land to establish a presumption of adverse
possession. We disagree and find no error in the district
court's denial of the Whites' motion.
"[E]nclosing land in a fence may be sufficient to
'raise the flag' of an adverse claim, and '[t]he
pasturing of animals within a substantial enclosure is
sufficient to establish the elements of adverse
possession.'" Helm, ¶ 10, 244 P.3d at
1058 (quoting Hillard, 888 P.2d at 1259). Our Court
has recognized, however, that "mere possession is not a
sufficient basis for claim of title by adverse
possession." Rutar Farms & Livestock, Inc. v.
Fuss, 651 P.2d 1129, 1134 (Wyo. 1982) (quoting 3 Am.
Jur. 2d Adverse Possession § 12 (1962)). An
adverse possession claimant must not only raise the flag of
adverse possession, but must "keep it flying, so that
the owner may see, if he will, that an enemy has invaded his
domains, and planted the standard of conquest."
Wyo-Ben, Inc. v. Van Fleet, 2015 WY 146, ¶ 22,
361 P.3d 852, 859 (Wyo. 2015) (quoting Ruby River Canyon
Ranch, Ltd. v. Flynn, 2015 WY 74, ¶ 10, 350 P.3d
748, 752 (Wyo. 2015)).
In other words, an adverse possession claimant whose claim is
based on fencing and grazing of the disputed property must
still establish that his use of the property was open,
notorious, exclusive, continuous, and hostile.
Hillard, 888 P.2d at 1258; Rutar, 651 P.2d
at 1133. The question on review then is whether the Whites,
as the summary judgment movants, established that no genuine
issues of material fact existed with respect to this required
Whites' Showing on Continuous and Exclusive
In the case of a grazing-based adverse possession claim, the
claimant may establish continuous possession by showing that
land suitable for grazing was "occupied and used for
that purpose in each year during the full period of the
growing season." Shores v. Lindsey, 591 P.2d
895, 902 (Wyo. 1979). We have explained:
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 throughout the entire year.
Continuous dominion and control is proven when land suitable
for grazing and pasturage is occupied and used in such manner
during the full period of the growing season.
Shores, 591 P.2d at 900 (citations omitted); see
also Davis v. Chadwick, 2002 WY 157, ¶ 11, 55 P.3d
1267, 1271 (Wyo. 2002).
As to the element of exclusive possession, we have said that
"'exclusive' for purposes of adverse possession
does not mean absolutely exclusive, but only such use as
would be expected of an owner under the circumstances."
Graybill v. Lampman, 2014 WY 100');">2014 WY 100, ¶ 33, 332
P.3d 511, 521 (Wyo. 2014). For this element, we must consider
the presence on the disputed property of individuals other
than the adverse claimant and the significance of that
presence in relation to the claimant's exclusive dominion
over the property. See Cook v. Eddy, 2008 WY 111,
¶ 25, 193 ...