Lake v. Severson

993 P.2d 309, 1999 Wyo. LEXIS 195, 1999 WL 1204811
CourtWyoming Supreme Court
DecidedDecember 17, 1999
DocketNo. 99-11
StatusPublished
Cited by2 cases

This text of 993 P.2d 309 (Lake v. Severson) 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
Lake v. Severson, 993 P.2d 309, 1999 Wyo. LEXIS 195, 1999 WL 1204811 (Wyo. 1999).

Opinion

LEHMAN, Chief Justice.

The only issue to be resolved in this case is whether the district court properly found that the fence between the parties’ properties constituted a fence of convenience, rather than a boundary fence. Because we conclude the district court’s finding is not clearly erroneous, we affirm.

ISSUES

We adopt the statement of the issue presented by appellees:

Whether the finding that the fence is a fence of convenience is supported by substantial evidence and therefore not clearly erroneous.

FACTS

In 1964, the Redding family acquired property in eastern Laramie County. Because only part of the land was suitable for farming, the Reddings, in 1968, built a fence to divide the grazing and farming land and to keep livestock off the farm land. Later, they conveyed the parcel of land located north of the fence, parcel A, to the Murdochs. Appel-lees, the Seversons, took title by warranty deed on July 18, 1996, from the Murdochs. The Reddings also conveyed a second parcel located south of the fence, parcel B, to appellants, W.A. and Lottie May Lake, on March 22, 1982. The Lakes subsequently conveyed portions of parcel B to Carolyn Venne and James Lake. Sections of parcel B were also conveyed to several other individuals, and one portion is currently owned by appellant Randy England. Both the Lakes and the Murdochs knew the fence, which was north of the property line, did not represent the actual boundary between the two properties. The legal description of the southern property does not include any of the disputed property.

Upon receiving the property, the Lakes and their successors in interest used the land for grazing livestock. To enclose their horses and other livestock, the Lakes built a fence at their southern boundary and, admitting it was easier than building a new one, used the north fence already in existence. They also maintained the fence and mowed grass next to the fence to retard fire danger. As noted above, the Lakes knew the fence was not on the legal boundary. Prior to [311]*311purchasing the property from the Murdochs, the Seversons surveyed the land and also learned that the fence was not on the property line. Murdoch told the Seversons they could move the fence and place it on the boundary line.

The dispute before us arose in the fall of 1996 when Brian Severson planned to erect a new fence along the legal boundary line. At the same time, England was placing stakes for a new barn. Severson testified he told England he was building a fence on the property line and did not want a barn on his property. England responded that he would move the barn if it were in the way. In May of 1997, Severson’s wife informed Lottie Lake and England that they were constructing a fence. After the Seversons erected a temporary barbed wire fence on the record boundary line placed by the surveyors, England drove by and asked how it looked. Sev-erson replied that “it looks like I own part of your barn.” After Severson had completed nearly half of the fence, the Lakes, knowing the fence would run through England’s barn, asked the Seversons to stop, and legal proceedings began.

The Lakes and England ultimately brought an action to quiet title claiming the property by adverse possession. They also sought a Writ of Ejectment, as well as a temporary restraining order and permanent injunction. The Seversons counterclaimed to quiet title in themselves. After a bench trial, the district court concluded the Lakes failed to establish a prima facie case of adverse possession and determined the fence in question was one of convenience, making possession of the disputed land permissive rather than hostile, and quieted title in the Sever-sons. This appeal timely followed.

STANDARD OF REVIEW

Recently in Kimball v. Turner, 993 P.2d 304-306 (Wyo.1999), we stated:

Whether a fence is a boundary fence or merely one of convenience is a question of fact. Hillard v. Marshall, 888 P.2d 1255, 1260 (Wyo.1995). This court will not set aside a district court’s findings of fact unless the findings are clearly erroneous or contrary to the great weight of the evidence. Id.; Sowerwine v. Nielson, 671 P.2d 295, 301 (Wyo.1983); Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo.1998). When reviewing the record, we keep .in mind the following principles:
The judge who presided at the trial heard and saw the witnesses. He is in the best position to determine questions of credibility and weigh and judge the evidence, both expert and non-expert. Thus, on appeal, it is a firmly established and oft-stated rule that we must accept the evidence of the successful party as true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference that may fairly and reasonably be drawn from it.

We review a district court’s conclusions of law de novo. Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo.1998).

DISCUSSION

We begin our discussion by extensively quoting Kimball:

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. Where 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, he cannot acquire title by adverse possession.
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 [312]*312creates 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 claim 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 at 306 (citations omitted).

After a bench trial, the district court found the fence initially erected by the Red-dings was a fence of convenience and ruled the Lakes had not established their claim for adverse possession. The district court summarized its findings in this fashion:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
993 P.2d 309, 1999 Wyo. LEXIS 195, 1999 WL 1204811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-v-severson-wyo-1999.