Hovendick v. Ruby

10 P.3d 1119, 2000 Wyo. LEXIS 188, 2000 WL 1185520

• Court: Wyoming Supreme Court
• Decided: August 22, 2000
• Docket: 99-197
• Status: Published

Opinions

GOLDEN, Justice.

The trial court granted summary judgment to Appellee Willis Ruby (Ruby) on his adverse possession claim of an 18.94 acre parcel to which Appellants Stanley and Lillian Ho-vendick (Hovendicks) hold the legal title of record after determining that, for a twenty year period, Ruby had believed that a fence south of the actual boundary represented the true boundary line. The primary issue presented by this appeal is whether summary judgment can be granted on his belief without considering whether that fence is a fence of convenience. An additional issue presented is whether an oral contract to settle the dispute is enforceable.

We hold that Ruby's belief, while establishing a presumption of adverse possession, requires consideration of whether the fence was a fence of convenience. Finding that genuine issues of material fact exist concerning the nature of the fence, we reverse the order granting summary judgment and remand for trial. We also hold that the district court's ruling on the issue of the oral contract is in error and remand for further reconsideration.

ISSUES

The parties agree that the single issue for our review is whether the district court erred as a matter of law when it granted summary judgment to Appellee.

FACTS

Ruby purchased his ranch from the Veach-es in 1978. The ranch is located in Fremont County between Lander and Hudson, Wyoming. Part of the ranch land purchased is a large island known as Rogers Island, made up of land lying between channels of the Popo Agie River. Rogers Island includes parts of Lots 8 and 4 of Section 85. In 1998, Hovendicks purchased their ranch from Bill Frank. The ranch lies in parts of Lots 2, 8, and 4 of Section 35 and included 18.94 acres that lies adjacent to Rogers Island that Ruby now claims by adverse possession. As the attached map shows, the disputed 18.94 acre parcel is west of Ruby's legal property boundary. To the north of the disputed parcel lies the Popo Agie River, and to the south lies a channel of the river. South of the channel is a fence that runs east to west which Ruby claims he believed was the true boundary fence, and which we shall call the disputed fence. The disputed fence connects to another fence that runs north and south and apparently is a true boundary fence separating Lots 2 and 3. The legal description of Hovendicks' property indicates that its northern boundary is the middle of the Popo Agie River, and the disputed fence is south of the boundary.

In 1928, the disputed parcel of land was actually part of the river. As river water was diverted, the disputed land emerged but was swampy and of little value. Hovendicks claim that Frank represented that when he bought the ranch, the disputed land was partially enclosed by the disputed fence placed south of the channel to keep cattle out of the river. Frank's son, Gary Frank, submitted a supplemental affidavit indicating that his father knew the true boundary line was the middle of the river's north channel, but that the swampy condition of the land dictated that the disputed fence be placed south of the south branch channel. Frank is also said to have represented to Hovendicks that he knew Ruby used the land, but did not care because the land was of little value. The record does not indicate when the disputed fence was actually erected and by whom. The Hovendicks claim that the disputed fence is a fence of convenience and was never intended as a boundary fence.

When Ruby bought his ranch, he and Veach inspected various parts of the ranch and much of the ranch perimeter fences, including Rogers Island. Ruby claims that Veach represented to him that he owned all of the land north of the disputed fence and Frank owned all of the land south of the disputed fence. From 1978 until 1993, Ruby and Frank both repaired and maintained the fence. The location of the disputed fence was never changed except in the 1980s when Frank built a water gap for his cattle to reach water, and he changed part of the fence from barbed wire to a pole fence. Ruby claims that for each of these changes, Frank asked for and received his permission before making these changes. He claims that from 1965 to 19983, Frank considered the fence to be the boundary fence, and from 1973 to present, Ruby has always considered the fence to be the boundary fence between his property and Frank's.

In 1998, Hovendicks learned that Ruby believed that he owned the disputed parcel, and after proving to Ruby that Hovendicks had legal title, Hovendicks claim that Ruby's attorney suggested that Ruby may have a claim for adverse possession. Hovendicks claim that later in 1993, after discussing their respective ownership claims, Hovendicks and Ruby mutually agreed to split the disputed parcel, each taking about one half of it. Ho-vendicks then moved the fence and, for the next five years, used that portion exclusively and paid taxes on the property. Hovendicks cleared several acres and planted grass seed for pasturing horses. Hovendicks claim that both parties abided by this agreement for five years.

In 1996, Frank died, and his estate closed in 1998. Hovendicks contend that Ruby waited until after Frank died before asserting his claim. Ruby claims that his business partnership with Hovendicks' son caused him to delay removing the fence and filing his adverse possession claim. He filed that claim on June 19, 1998. Hovendicks answered that Frank had granted Ruby permissive use of the land, denied that he had adversely possessed it, asserted that a survey demonstrated conclusively that they owned the disputed parcel, and claimed that the parties had an oral agreement to divide ownership of the disputed parcel.

After discovery, motions for summary judgment were filed, and Ruby supported his motion with his affidavit and the affidavit of Gary Frank, Bill Frank's son. The trial court found that Ruby believed that he had purchased the land in 1978, and that between 1973 and 1998, had used the disputed land to pasture bulls and horses, and had used it during calving season. During this time period, Frank had twice asked permission to alter the fence. The court further found that Ruby's belief that he owned the disputed land continued until 1998, and the oral agreement to divide ownership of the disputed land was of no consequence because Ruby's adverse possession had matured in 1983, ten years after his purchase of the land and ten years before Hovendicks purchased their ranch from Frank. Summary judgment was granted in favor of Ruby, and this appeal followed.

DISCUSSION

Standard of Review

Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. Mountain Cement Co. v. Johnson, 884 P.2d 30, 32 (Wyo.1994); W.R.C.P. 56(c). We review a summary judgment in the same light as the district court, using the same materials and following the same standards. "We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record." Four Nines Gold, Inc. v. 71 Constr., Inc., 809 P.2d 236, 238 (Wyo.1991). Summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997); England v. Simmons, 728 P.2d 1137, 1141 (Wyo.1986). We review a grant of summary judgment by deciding a question of law de novo and afford no deference to the district court's ruling on that question. Sammons v. American Auto. Ass'n, 912 P.2d 1103, 1105 (Wyo.1996); Blagrove, 934 P.2d at 1275.

Presumption of Adverse Possession

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. Possession must be for the statutory period, ten years. 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.

Hillard v. Marshall, 888 P.2d 1255, 1258-59 (Wyo.1995) (citations omitted).

The district court determined that Ruby's belief, although mistaken, that the disputed fence was a boundary fence and the fact that Frank on two occasions asked his permission to alter the fence supported a ruling that Ruby had adversely possessed the disputed parcel since 1978 and the statutory period matured in 1988. Ruby's mistaken belief does not establish adverse possession; it establishes a presumption of adverse possession:

When a man has occupied a piece of ground, though under a mistaken belief as to the true boundary, for the period prescribed by law openly, notoriously, exelu-sively and in a manner plainly indicating that he acted as owner thereof, the presumption should be, in the absence of explanatory cireumstances showing the contrary, that he occupied the land adversely and under a claim of right, casting the burden of explaining such possession upon the person who disputes his right.

Hillard, 888 P.2d at 1259 (quoting City of Rock Springs v. Sturm, 39 Wyo. 494, 517, 273 P. 908, 915-16 (1929)).

Hovendicks claim that facts showing that the disputed fence is a fence of convenience are a satisfactory explanation of possession showing that Ruby did not adversely possess the disputed land, and where those facts are demonstrated, summary judgment is improper. Hovendicks contend that material questions of fact exist whether the fence was a boundary fence or a fence of convenience requiring reversal of the order of summary judgment and remand for trial.

We have described the effect of a fence of convenience on a presumption of adverse possession in this way:

In some circumstances, enclosing land in a fence is sufficient to "raise the flag" of an adverse claimant. However, a fence kept simply for convenience has no effect upon the true boundary between tracts of land. This is so because a fence of convenience creates a permissive use, and a permissive user

"cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter's knowledge; there must be either actual notice of the hostile claims or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile."

Kimball v. Turner, 993 P.2d 303, 306 (Wyo.1999) (quoting Hillard, 888 P.2d at 1261) (citations omitted).

In this case, Ruby has established a presumption of adverse possession; however, Hovendicks have presented evidence that the disputed fence was a fence of convenience. "Whether a fence is a boundary fence or merely one of convenience is a question of fact." Kimball, 993 P.2d at 305; see also Hillard, 888 P.2d at 1260. We find that Hovendicks' factual evidence on this issue is sufficient to reverse the grant of summary judgment and remand for trial on this issue.

Hovendicks next raise the issue of the effect of the 1998 oral agreement to divide the disputed land, contending that, although a trial could determine that Ruby had adversely possessed the disputed land in 1983, a factual issue exists whether, in 1993, the parties mutually agreed to divide ownership of the land. Ruby contends that the statute of frauds prohibits oral agreements for land.

The statute of frauds, Wyo. Stat. Ann. § 1-23-105 (LEXIS 1999), provides in relevant part:

(a) In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith:

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(v) Every agreement or contract for the sale of real estate, or the lease thereof, for more than one (1) year.

"The contract for the sale of real estate as contemplated by the statute is one {or the transfer of property or real estate, for a fixed price in money or its equivalent." Miller v. Stovall, 717 P.2d 798, 802 (Wyo.1986), overruled on other grounds, 811 P.2d 287, 290 (Wyo.1991) (citing Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976)). Assuming without deciding that the alleged oral agreement between Hovendieks and Ruby involved a conveyance of land for proper consideration and is subject to the statute of frauds, we note that in Miller we referred favorably to several authorities on the law of real property as follows:

[6 Thompson on Real Property § 3085, p. 508 (1962)] states clearly that "oral agreements changing known boundary lines violate the statute of frauds." The rationale is that "* * * if the boundary line is not doubtful or in dispute, an oral agreement for its change is invalid, this involving an actual transfer of land, within the statute. * * *" 2 Tiffany, The Law of Real Property § 653, p. 679 (3d. ed.1939).

Miller, 717 P.2d at 802. Hovendicks contend that the parties' substantial part performance of the contract makes it enforceable despite the statute of frauds.

We have held that either full or part performance of a contract for the sale of land will avoid the statute of frauds defense. Davis v. Davis, 855 P.2d 342, 346 (Wyo.1993). The doctrine of part performance, however, will not be applied to avoid the statute of frauds unless the oral agreement sought to be enforced is just and certain and the elements of possession and part or full payment or its equivalent are proved beyond the possibility of findings to the contrary. Davis, 855 P.2d at 347. The record does not show that Ruby raised the statute of frauds as a defense to Hovendicks' motion in traverse of summary judgment and for trial, claiming that the oral argument was enforceable. The trial court ruled that, in light of its decision that Ruby's claim for adverse possession had matured in 1988, the oral contract need not be considered at all. On appeal, neither party analyzes whether the statute of frauds applies to the oral agreement or whether Davis' elements of part performance are established, and the limited record does not allow our further review.

We find, however, that the trial court erred as a matter of law in deciding that the alleged oral contract was of no consequence, and we find no proper legal ground in the: record for affirming it. In Re HC, 983 P.2d 1205, 1209 (Wyo.1999). Accordingly, our standard of review requires that we must examine the record from the vantage point most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may fairly be drawn from the record. Hovendicks point to evidence that, as a result of the oral agreement, they took possession of their half of the disputed land, fenced on the newly established boundary line, cleared brush and planted grass seed for pasturing horses, and paid taxes. Ruby denies that there was any oral agreement. We agree that this evidence presents a factual question whether the parties reached an oral agreement to divide the land. Whether that oral agreement is unenforceable because of the statute of frauds presents a question of law that requires we reverse the grant of summary judgment and remand for reconsideration of the issue in light of our decisions in Miller and Davis.

The order granting summary judgment is reversed and remanded for further consideration of whether the parties have divided ownership of the land by oral contract, and if that does not settle all claims, the case is remanded for trial on the issue of whether the disputed fence is a boundary fence or a fence of convenience.

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