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HomeMy WebLinkAbout877816 IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT IN AND FOR THE COUNTY OF LINCOLN, STATE OF WYOMING W. TOM DAVIS, Trustee of the Doyle F. ) /,~,,.X'.K':'~' I~ "~'~..'X vs, 'BbOK4 .,, 8 x',~ v^oe ALAN CHADWICK and DENISE JUDGMENT AND DECREE QUIETING TITLE ".- ......... ~'" '"" "' ~;'~ ' ..... THIS MATTER came before this Court for trial, 14th day of June 2001; the above- captioned Plaintiff, being present and represented by Ted C. Frome, attorney at law of Afton, Wyoming; the above-captioned Defendants being present and represented by John D. Bowers, attorney at law of Afton, Wyoming; the Court having considered the testimony presented, the exhibits admitted and the argument of the p,,arties, enters the following Judgement and Decree Quieting Title based on the following findings of fact and conclusions of law I. FINDINGS OF FACT 1. That Tom Davis is the Trustee of the Doyle F. Child Family Living Revocable Trust dated June 1, 1992, and is the appropriate Plaintiff in this a~:tion. 2. The legal description of the area in controversy (AIC) is contained in the Plaintiff's Exhibit 2; 3. The area in .controversy has been fenced in with lands owned by the Defendants and their predecessors in interest since the fencewas first constructed. The fence has been at its present location for over 50 years. . 4. As far as is known, the parties' predecessors in interest, either together or separately, built the fence. 5. Each year for the past thirty (30) years, with permission of both parties, approximately one-half of the fence between the Plaintiff Page I of 10 and Defendants was temporarily removed by the town of Afton in early November of each year and put back up in early May of the following year. The permission was granted so that the town of Afton could use the property for a recreational area for winter sports. It is used by the public for skiing, snowmobiling, coasting and sledding. A mechanical ski tOw operates on weekends when there is adequate snow to transport skiers up the slope. 6. The first knowledge that any of the parties had that the fence was not on the Scherbel survey line was when the Scherbel survey was made in AuguSt of 1997. 7. The Plaintiff has paid taxes on all property shown in his deeds . since they have owned their property. 8. An accurate description for the lands in dispute is as is contained in the description prepared by Marlowe A. Scherbel, professional land surveyor, and dated July 11,2000, and as introduced by way of stipulation in both Plaintiff's Exhibit #2 and Defendant's F=Xhibit N. The area involved encompasses 0.36 acres, more or less.'" The Plaintiff is the record title holder of the real property as described in the afore-mentioned Exhibits. 9. As indicated in stipulated fact #3 above, this area in controversy has been fenced in with lands owned by the Defendants, and their predecessors in interest, since the fence was first constructed. The fence has been in its present locatiOn for over 50 years and lies to the west of the true survey line as established by Mr. Scherbel. 10. The existing fence is approximately 429 feet in length and is built in a straight line. It is 23 feet west of the true survey line on the north and 49.5 feet west of the survey line on the south. The fence is located on relatively flat ground which gradually increases in elevation from north to south. 11. As evidenced by thetestimony of the Defendants, and their predecessors in interest, this area in controversy has been utilized by the Defendants, or their predecessors in interest, since at least 1947. Mr. Glayd Chadwick testified that the existing fence has been in that location since 1947. Page 2 of 10 12. The common use for the area in controversy is that of grazing of livestock. The Defendants used this area in controversy for grazing of cattle and/or horses every summer since at least 1947 whenever vegetation and/or moisture allowed. Most recently, the area has been used more for grazing of horses than cattle. The area in controversy did not sit idle for any significant period of time when it could have been used by the Defendants for grazing. 13. Both the Plaintiff and the Defendants gave permission to the Town of Afton to make use of their respective property, on either side of the existing fence, during the winter months for a recreational area for children. The area involved is commonly known as "Snowshoe Hollow." This permission has been granted by both parties for approximately the past 30 years. 14, The fence in its existing location was in a dilapidated condition in the summer of 1997. Mr. Matt Erickson, a fencing contractor, tore down the dilapidated fence and reconstructed a new fence in the same location at the request of the Plaintiff. It was after, i, Mr. Erickson had reconstructed the fence that the Plaintiff learned of reason to believe that the fence may not be located on the true boundary line and requested Mr. Scherbel to perform the survey conducted in August of 1997. 15. If a fence were constructed on the true boundary line as established by th~ Scherbel survey, said fence would be more difficult to construct than the existing fence. This enhanced difficulty is due to the fact that a hill rises somewhat steeply from the existing fence in a easterly direction towards the true boundary line. This hill begins more towards the northern end of the property in dispute. In consideration of this hill, three additional braces would need to be installed at the top of the hill and at the base on either side of the hill, if the fence were to be constructed on the true boundary line. Additionally, the ground' or soil at the top of this hill on the true boundary line is somewhat more rocky than the ground directly to the west of the,crest of this hill where the existing fence lies. 16. The Court received the testimony from three experienced fencers, Mr. Glen Rich, Mr. Matt Erickson, and Mr. Gordon Tueller. Each of these gentleman testified the fence would be somewhat more difficult to build Page 3 of 10 8.1. 4 Iq z~ upon the true boundary line as compared with the existing fence line. Mr..~ Erickson testified that he would have bid .50 cents more per foot to build the fence on the true boundary line because of the extra work involved. According to the lc§al description of the area in controversy as prepared Mr. 8cherbel, both the existing fence line and the true boundary line are 429 feet long. Accordingly, in cOnsideration of Mr. Erickson's testimony, a fence constructed on the new boundary line would have cost $214.50 more (429 feet X .50 per foot) than the fence as constructed on the existing fence line. 171 The existing fence line in question continues on towards the south beyond the area in controversy between the Plaintiff and Defendants. This is shown in Plaintiff's exhibit #6, a plat of the Kennington Trust. Said plat also indicates that the true boundary line also continues on in a southerly direction and to the east of the continuation of existing fence line. The continuation of this existing fence separates additional lands of the Defendants from that of another adjoining property owner. Said fence was not reconstructed in 1997. Said fence does rise sharply in elevation over another steep hill until a point were it turns, at a 90,,angle, to the east. Prior to this point, all of the fence is in a straight line. 18. All of the parties treated the existing fence line of the area in controversy as the boundary line separating the Plaintiff's property from the Defendants' property. There was no evidence presented that any party had any reason to believe, or ever asserted, that the true boundary line was other than the existing fence line prior to the Scherbel survey in August of 1997. II. RELEVANT STANDARDS AND CASE LAW 1. 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. Were 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 useof the Page 4 of 10 property is shown to be permissive, then he cannot acquire title by adverse possession. HILLARD V. MARSHALL, 88.8 P.2d 1255, at 1258, (Wyo. 1995); KIMBALL V. TURNER, 993 P.2d 303, at 305, (Wyo. 1999); HOVENDICK V. RUBY, 10 P.3d 1119, at 1122, (Wyo. 2000). 2. In some circumstances, enclosing land in a fence is sufficient to "raise the 'flag' of an adverse claimant." The pasturing of animals within a substantial enclosure is sufficient to establish the elements of adverse possession. However, a fence kept only for the convenience of the parties or to separate pastures or irrigated meadows from grazing lands has no effect on the true boundary between the tracts. HILLARD at 1259. 3. 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, exclusively and in a manner plainly indicating that he acted as the owner thereof, the presumption should be, in the absence of explanatory circumstances 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 at 1259. HOVENDICK at 1123. III. CONCLUSIONS OF LAW 1. Clearly, the Defendants and their predecessors in interest have occupied the piece of ground in issue, though under a mistaken belief as to the true boundary, for the period prescribed by law, openly, notoriously, exclusively and in a manner plainly indicated that they acted as owner thereof: The Defendants used this property for pasturing of livestock, the common use of property such as this. The livestock was pastured within a substantial enclosure. 2. The Plaintiff has argued that the Defendant's possession of the property was not exclusive. The Plaintiff's argument is based upon the fact that from approximately November through May of every winter .the existing fence was taken down and the property utilized, on both sides of the fence, by the Town of Afton for a recreational winter area. The Plaintiff argues that the use by the Page 5 of 10 Town of Afton interrupted the continuous and exclusive ' requirements of adverse possession. The only authority cited in said regard by either party on this issue was the case of NELSON V. VANDEMARR, 573 P.2d 1232 (OR. 1978), as cited by the Defendants in their trial memorandum filed on June 14, 2001. In said matter the Oregon Supreme Court stated that allowing a neighbor to use a driveway in dispute for the purpose of pruning trees was just the sort of use one would expect from a Claimant who was using the property adversely. This use did not negate the claimant's exclusive use of the driveway for adverse possession purposes. Simply put, allowing other people to use the property as their agent does not negate any of the elements of adverse possession. 3. The Defendants adversely pos,s, essed the property beginning in 1947. The stipulation of the parties was to the effect that both parties had granted the town permission to use the property for the past 30 years. Therefore, said permission has been granted since approximately 1971. The Defendants would have adversely possessed the property at issue for the prescriptive period as of 1957. Certainly, subsequent to 1957, if not prior thereto, the Defendants' allowing the Town of Afton to rise this property as their agent does not negate any of elements of adverse possession. Allowing the town to use the land in dispute for a recreational winter area is just the sort of use one would expect from the Defendants who were using the property adversely. 4. The initial presumption in favor of the Plaintiff as record title holder, as against the Defendants as adverse claimants, has been rebutted by the Defendants who carried the initial burden of proving their claim of adverse possession. The Defendants have made out a prima facie case of adverse possession. Once the adve'rse possession claimant has made out his prima'facie case, and absent any explanatory circumstances to the.contrary, the burden shifts to the opposing party to produce evidence contrary to the presumption. HILLARD at 1259-1260. 5. The central issue in this matter is whether the existing fence was one kept simply for the convenience of the parties and thereby Page 6 of 10 197 created a permissive use. A fence kept simply for the convenience has no effect on 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 actua 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 nora hostile possession into one that is hostile. KIMBALL at 306. HOVENDICK at 1123. Whether a fence is a boundary fence or merely one of convenience is a question of fact. KIMBALL at 305. HOVENDICK at 1123. 6. The Court in HILLARD found that fence involved to be one of convenience. The Court found it would be more convenient to place the fence where it was rather than on the property line because of the terrain. Supporting evidence came from a surveyor who observed the terrain and from other testimony showing that the fence followed the property line in other areas implying that the people who built the fence knew where the property line was located. 7. In this matter, the implication is to the contrary. The plat of the Kennington Trust, received as Plaintiff's Exhibit 6, showing the area in controversy supports this reverse implication. Said plat shows the true boundary line continuing in a southerly direction past the area in controversy between the Plaintiff and the Defendants. Said plat also shows the existing fence line continuing in a southerly direction, and west of the true boundary line, beyond the area in controversy between the Plaintiff and the Defendants. As stated above, the southerly continuation of this existing fence separates additional land of the Defendants from property of another adjoining land owner. According to the plat, this portion of the fence also does not follow the true property Jine. Said fence does continue up the steep grade of a hill in a direction that would not be convenient. Clearly, building that fence further to the west would have been more convenient. Page 7 of 10 8. There is no evidence as to exactly who built either section of fence. As stipulated, as far as is known, the parties' predecessors in interest, either together or separately, built the fence in the area in controversy. Given the evidence presented to this Court it appears just as likely that the Defendants, or their predecessors in interest, may have constructed the additional~ portion of fence that continues in a southerly direction past the area in controversy between this Plaintiff and the Defendants. If all of the fence had been constructed for the convenience of the parties given the terrain, then it appears clear that the fence would not have continued in a straight line in a southerly direction. The fence is indeed in a straight line from the northern end of the area in controversy to .the southern end of the fence where it takes a 90 turn to the east beyond the area in controversy between these parties. The fence does not deviate from that straight line because of topography. 9. All parties testified that up until the survey of A't~gust of 1997 everyone believed the fence constituted the trui~ boundary line between the parties. This is further support for a finding that the fence was constructed by either the parties, or their predecessors in interest, on what they believed to be the true boundary line and not as a fence of convenience. 10. In the KIMBALL case, the District Court also found the fence involved to be one of convenience. The Court found that the physical appearance of the fence clearly demonstrated that it could not have been constructed as a boundary fence. The fence meandered between trees, bushes, and fence posts in an' irregular fashion. The Court indicated that the irregular course of the fence clearly indicates that it was not constructed on a section line, a quarter section line or any other line of a U.S. Governmental subdivision parcel. Again, the.evidence in this case is to the contrary. The fence is constructed in a straight line. It does not meander between trees, bushes, and fence posts in an irregular fashion. The straight line of the fence indicates that the fence was constructed as a boundary. The straight fence would be consistent with its construction on line with a U.S. governmental subdivision parcel. The Plaintiff has Page 8 of 10 failed in his burden of producing evidence of any explanatory ' circumstances contrary to the presumption of adverse possession in favor of the Defendants created upon their establishment of a prima facie case. The Court finds the existin,g fence to be boundary fence and not one merely of convenience. 11. The Defendants also argue the doctrine of recognition of acquiescence to argue that the existing fence altered the boundary. The Defendants did not argue that there was an express parol agreement as to the boundary line. The Defendants did argue that there was an implied agreement as to the boundary line established by, the existing fence, which was shown by the conduct of the parties. (T)he existence of a division fence does not alone , show the requisite facts. It may be kept up only for the convenience of the parties. We think we may safely say that when there is recognition and acquiescence of the parties in a boundary line, uncertain or in dispute in the first instance, for a period equal at least to the prescriptive period, under facts and circumstances which should be equivalent to an express agreement, an~l the land on each side of the line is occupied by the respective parties as their land, no good reason exists why the parties should not be bound to the same extent as though such express agreement had been made and carried out, particularly when facts exist which would make any other holding inequitable. KIMBALL at 308. 12. The Court cannot agree with the Defendants' argument in this regard. There is no evidence that the boundary line was uncertain or in dispute until August of 1997. The doctrine of recognition and acquiescence requires that the boundary line be uncertain or in dispute in the first instance for a period equal at least to the prescriptive period. Again, there was no uncertainty or dispute until August of 1997. Prior to said time both parties believed the boundary line to be the existing fence line and acted Page 9 of 10 in accordance therewith. Without said dispute or uncertainty in the first instance, there is no basis for consideration to justify application of said doctrine. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED; That the Defendant's claim of adverse possession regarding the disputed property is hereby granted. The Defendant's claim pursuant to the doctrine of recognition and acquiescence is denied. The Plaintiff's claim requesting that title be quieted to the Plaintiff is also denied. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the Plaintiffs are found to have no right, title, interest; claim or demand in the real property described in attached Exhibit A, which is made part of , this Order by referenc~ and incorporation as if fully set forth herein. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, th.at the Plaintiffs are hereby forever barred from asserting any right, tii'le, interest, claim or demand to the real property described in Exhibit A attached hereto and made part of by reference and incorporation as if set forth herein, and title thereto is quieted in the Defendants in accordance with this Order. DONEIN CHAMBERSon this ,,2~' day of September, 2001. UPO~NMENT Approved to Form: '~: ~ r'~'i, ... TED FROME B13W'E4~ ~" ,/~" COUN t'Y OF LINCOLNj . ~;¢' ~, Kermeth D,, Roberts, Clerk o~*' ,'":. ¢~ DESCRIPTION FOR ALAN G. CHADWICK AND RUSSELL M. CHADWICK LANDS ENCLOSED WITHIN EXISTING FENCE LINE IN SW'ASE'A SECTION 30, T32N R118W To-wit: - - That part of the SW%SE¼ of Section 30, T32N, R118W, within the East Aflon Annexation to the Town of Alton, Lincoln County, Wyoming, described as follows: BEGINNING at a southeast position of that tract of record in the Office of the Clerk of Lincoln County in Book 312 of Photostatic Records on page 391, identical with the northeast position of that tract of record in said Office in Book 103 of Photostatic Records on page 148, on the east line of said SW%SE¼, N00°-07'-52"W, 349.5, 'more or less, f~et from.the southeast corner of said SW%SE%; thence N00°-07'-52"W, 429 feet, along said east line, to a point on the south line of Parcel 2 of record in said Office in Book 411 of Photostatic Records on page 77; thence N88°-13'-58"W, 23 feet, along the south line of said tract, to a position under an existing north/south fence line; thence S03°-21'-58"W, 429 feet, along said fence line, to a position on the north line of said tract in Book 103; thence S88%13 -47 E, '49.5 feet, along said line, to the POSITION OF BEGINNING; ENCOMPASSING an area of 0.36 acre, more or less; the BASE BEARING fbr this survey is a line between Ivan L. Call "Mueller" water caps found at the intersections of 4th Avenue & Monroe Street and 4m Avenue & Quincy Street, being N88°-44'-04"W; each "corner" found as described in the Corner Record filed'in the Office of the Clerk of Lincoln County; each "point" marked by a 5/8" X 24" steel reinforcing rod with a 2" aluminum cap inscribed, "SURVEYOR SCHE~EL LTD AFTON WY PLS 5368", wi'th appropriate details; all in accordance with the plat prepared to be filed in the Office of the .Clerk of Lincoln County titled, "KE~INGTON TRUST HELEN BAGLEY YEAMAN AND GAYLE BAGLEY ROLLINS AND BETTY BAGLEY FROME PLAT OF T~CTS WITHIN THE SW%SE% AND SE~SE~ SECTION 30 T32N Rl lSW IN THE EAST AFTON A~EXATION TO THE TOW~ ~ AFTON LINCOLN COUNTY, WYOM~'G", dated ii 3 Sep~be~1997 ~ rey~~dember 1997. Wyo. Regisltalion No. t64 Ulah Reois~al~n No. 1670 Nevada fl~istration No, 6805 Wyo. Begi~ltalion No, Utah Regisltallon No. 3721tl Ma~we A. ~o. RegisUaiion Ne. 5368 $u~eyot Schmbel, LID. Big P~OV. Wyoming J~gJJ, Wyoming ,,o.¢,o,.t"'"°'s"'"~""'o""°,,.,o "Modification in any way of the foregoing description terminates liability of the surveyor"