Cook v. Eddy

2008 WY 111, 193 P.3d 705, 2008 Wyo. LEXIS 116, 2008 WL 4299273
CourtWyoming Supreme Court
DecidedSeptember 23, 2008
DocketS-07-0272
StatusPublished
Cited by20 cases

This text of 2008 WY 111 (Cook v. Eddy) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Eddy, 2008 WY 111, 193 P.3d 705, 2008 Wyo. LEXIS 116, 2008 WL 4299273 (Wyo. 2008).

Opinion

KITE, Justice.

[T1] After a bench trial, the district court quieted title to approximately 40 acres of Edmond A. Cook's land to Ivan Eddy. Mr. Cook appeals, claiming the district court erred by ruling that Mr. Eddy had acquired title to the property by adverse possession.

[12] We affirm.

ISSUES

[13] Mr. Cook presents the following issues on appeal:

1. Were the trial court's findings of fact, specifically that the fence was not a fence of convenience, clearly erroneous or contrary to the great weight of the evidence?
2. Did the trial court [err] in concluding that each and every element of adverse possession was proved by Appellee?

Mr. Eddy's statement of the issues is substantially the same.

FACTS

[14] Mr. Eddy and Mr. Cook own adjoining mountainous properties in Niobrara County. The boundary between their properties was the township line between Town *708 ships 83 and 34 North, Range 62 West. The fence that separated the properties did not follow the east-west township line; it was north of the line and, accordingly, enclosed 40.44 acres of Mr. Cook's land inside Mr. Eddy's pasture. Mr. Eddy has used the disputed property for grazing his cattle since he contracted to purchase his property in 1988.

[15] In 1999, Mr. Cook apparently had the property line surveyed and later began building a fence along the line. Mr. Eddy objected, and in 2004, Mr. Cook filed a petition for a temporary restraining order and injunction to prevent Mr. Eddy from interfering with his efforts to relocate the fence. Mr. Eddy filed a counterclaim seeking to have title to the disputed property quieted to him. Although the parties reached an agreement regarding the restraining order and injunction, the district court conducted a bench trial on Mr. Eddy's adverse possession counterclaim. After the trial, the district court entered findings of fact and conclusions of law ruling that Mr. Eddy had established his adverse possession claim and quieted title in his favor. Mr. Cook appealed.

STANDARD OF REVIEW

[$6] We review the district court's decision following a bench trial by applying the following standards:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Mullinnix LLC v. HKB Royalty Trust, 2006 WY 14, ¶12, 26 P.3d 909, 916 (Wyo.2006) (citations omitted). See also, Addison v. Dallarosa-Handrich, 2007 WY 110, 18, 161 P.3d 1089, 1091 (Wyo.2007). With regard to the trial court's findings of fact,

we assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law.

Mullinnix, 112, 126 P.3d at 916 (citations omitted). The district court's conclusions of law, however, are subject to our de novo standard of review. Id.

DISCUSSION

[17] The elements of an adverse possession claim are well-known. " 'In order to establish adverse possession, the claiming party must show actual, open, notorious, exclusive and continuous possession of another's property which is hostile and under claim of right or color of title."" Addison, ¶11, 161 P.3d at 1091, quoting Gillett v. White, 2007 WY 44, ¶15, 158 P.3d 911, 915 (Wyo.2007). The adverse possession must continue for at least ten years. Wyo. Stat. Ann. § 1-8-108 (LexisNexis 2007).

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.

Addison, ¶11, 161 P.3d at 1091-92, quoting Gillett, ¶15, 153 P.3d at 915 (citation omitted).

[T8] Mr. Eddy purchased his property in 1988. He testified that he occupied the disputed land each year by allowing his cattle to graze it and using it to access another pasture. Mr. Eddy stated that annually he posted all of his exterior fences, including the fence at issue here, with "no trespassing" *709 signs. When Mr. Cook's cattle strayed onto the disputed property, Mr. Eddy moved them back onto Mr. Cook's land on the north side of the fence. Based on that evidence, the district court concluded that Mr. Eddy was entitled to a presumption of adverse possession and the burden shifted to Mr. Cook to explain Mr. Eddy's possession of the property.

[19] Mr. Cook attempted to meet his burden by establishing that Mr. Eddy's use of the disputed property was permissive because the fence was built off line as a matter of convenience. Although "enclosing land within a fence is sufficient to 'raise the flag' of adverse possession, ... a fence kept simply for convenience has no effect upon the true boundary between tracts of land because, unlike a boundary fence, a fence of convenience gives rise to permissive use and permissive use will not support a claim for adverse possession." Addison, ¶12, 161 P.3d at 1092, quoting Gillett, ¶15, 153 P.3d at 915. The question of whether a fence is one of convenience or establishes a property boundary is one of fact. Id.

[{10] The evidence presented at trial 1 established that the township line had been demarcated by monuments since approximately 1883. The fence, which did not follow the township line, had been in place for many years prior to Mr. Eddy's ownership of his property. The district court found:

22. The correct boundary between the parties' properties] (the corner between section 34, 35, 3 and 2) was surveyed and marked in 1883. There is an old path or corridor cleared along the correct boundary.
The fence departs severely from the [property] boundary, running Northeast, at its East end. It then angles Northwesterly, and finally turns to the West Southwest and runs back to the correct boundary line. It is obvious that the fence departs from the correct boundary line both at its West end and at its East end.
The fence runs in 3 straight sections: Northeasterly, then Northwesterly, and finally West-Southwesterly.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 WY 111, 193 P.3d 705, 2008 Wyo. LEXIS 116, 2008 WL 4299273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-eddy-wyo-2008.