Henry v. Borushko

2012 WY 104, 281 P.3d 729, 2012 WL 3086514, 2012 Wyo. LEXIS 110
CourtWyoming Supreme Court
DecidedJuly 31, 2012
DocketNo. S-12-0028
StatusPublished
Cited by4 cases

This text of 2012 WY 104 (Henry v. Borushko) 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
Henry v. Borushko, 2012 WY 104, 281 P.3d 729, 2012 WL 3086514, 2012 Wyo. LEXIS 110 (Wyo. 2012).

Opinion

BURKE, Justice.

[11] 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

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

FACTS

[13] 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.AP. 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.

[14] 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 SENW4, 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 SEANE4, 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.

[15] 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 ruled in favor of [731]*731the Borushkos. The Henrys ask us to review that decision.

STANDARD OF REVIEW

[16] We apply a well-established standard of review to a district court's judgment after a bench trial:

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 weighing disputed evidence. Findings of fact will not be set aside unless the findings 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. We review a district court's conclusions of law de novo on appeal.

Springer v. Blue Cross & Blue Shield, 944 P.2d 1173, 1175-76 (Wyo.1997) (internal citations omitted). In this case, however, our review of the district court's findings of fact is curtailed by the meager record. The appellants bear the burden of providing an adequate record for us to review, and when they do not, we must accept the district court's findings of fact as being based on sufficient evidence. Painovich v. Painovich, 2009 WY 116, ¶9, 216 P.3d 501, 504 (Wyo.2009).1 As a practical matter, this makes it nearly impossible for us to conclude that the district court's findings are clearly erroneous.

DISCUSSION

[17] The district court sought to interpret the deed language "All lands lying North of Midvale Irrigation District Pavillion Main Lateral" in order to determine the proper boundary between the properties. It found that the canal is a "substantial man-made monument" that has "existed for many years in its current size and location." On that basis, the district court found that the canal "shares some attributes of a non-navigable stream," and "some of the attributes of a street or highway." These factual determinations are not clearly erroneous, and indeed are not in dispute.

[T8] Because the canal shared pertinent attributes with non-navigable streams and streets, the district court relied on this legal guidance for use in interpreting deeds:

In the case of non-navigable watercourses and roads and streets as boundary calls in legal descriptions, the general rule is there is a rebuttable presumption that where a non-navigable stream or a street or road is the boundary between two parcels, the actual boundary is along the thread of the stream or the middle of the street. Wilson v. Lucerne Canal and Power Co., 150 P.3d 653, 665 (Wyo.2007). 12 Am. Jur. Boundaries, § 17, § 29. The same rules of construction hold true with common walls. Coumas v. Transcontinental Garage [68 Wyo. 99], 230 P.2d 748, 753 (Wyo.1951).

Applying this presumption, the district court concluded that the deed should be interpreted as establishing the property boundary at the centerline of the canal. It further determined that the evidence presented by the Henrys "fails to rebut the presumption" that the boundary was at the center of the canal.

[19] The Henrys' first argument is that the deed does not explicitly state that the boundary is at the "center" of the canal. That is true, but it is also true that the deed does not explicitly state that the boundary is on the "north bank" of the canal or "along the fence north of the canal." Because no particular part of the canal is expressly designated as the boundary, the district court was correct in employing the presumption that the center of the canal was intended. As we explained in Glover v. Giraldo, 824 P.2d 552, 554-55 (Wyo.1992):

Where a deed describes land bounded by a non-navigable stream and names the [732]*732stream as a monument, a presumption exists that the grant extends to the center and the thread of the stream is the true boundary. The grant will give title so far as the grantor owns, unless the bed of the stream is expressly reserved from the grant. This rule is based on a presumption of the grantor's intent.
The presumption is rebuttable by any words which clearly indicate an intention of the grantor to restrict the grant to the edge, shore, or some point other than the thread of the stream. Where the description is specific in its language, naming the bank of the stream as the boundary of the land conveyed, the grantee's rights will not extend beyond such specified boundary.

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Bluebook (online)
2012 WY 104, 281 P.3d 729, 2012 WL 3086514, 2012 Wyo. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-borushko-wyo-2012.