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White v. Wheeler

Supreme Court of Wyoming

December 14, 2017

HOWARD L. WHITE and JOSLYN R. WHITE, Appellants (Plaintiffs),
v.
HEATH S. WHEELER and TANYA D. WHEELER, Appellees (Defendants).

         Appeal from the District Court of Albany County The Honorable Tory R.A. Kricken, Judge

          Representing Appellants: John D. Rawls, Attorney at Law, Laramie, Wyoming

          Representing Appellees: M. Gregory Weisz of Pence and MacMillan LLC, Laramie, Wyoming

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, JUSTICE.

         [¶1] 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.

         ISSUE

         [¶2] The Whites present a single issue on appeal, which they state as:

Should this Court, after conducting a de novo review, reverse the granting of summary judgment in favor of Appellees and remand for further proceedings?

         [¶3] 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?

         FACTS

         [¶4] 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."

         [¶5] 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.

         [¶6] 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 ¼.

         (Image Omitted)

         [¶7] 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.

         [¶8] 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, 2016.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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 this litigation.
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).

         [¶13] On April 7, 2017, the Whites filed their timely notice of appeal to this Court.[1]

          STANDARD OF REVIEW

         [¶14] 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)).[2] Our review is as follows:

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).

         [¶15] 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).

         DISCUSSION

         [¶16] 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.

         I. Adverse Possession Elements and Presumptions

         [¶17] 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 [511] at 522 [(Wyo. 2014)].

Galiher v. Johnson, 2017 WY 31, ¶ 20, 391 P.3d 1101, 1106 (Wyo. 2017) (emphasis in original).

         [¶18] 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 adverse possession.

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)).

         II. Whites' Partial Summary Judgment Claim

         [¶19] 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.

         [¶20] "[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)).

         [¶21] 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 showing.

         A. Whites' Showing on Continuous and Exclusive Possession

         [¶22] 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).

         [¶23] 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 ...


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