Dwight Lyman and Betty L. Lyman, as Individuals and as Trustees of the Dwight Lyman Living Trust Dated November 11, 2016, and Trustees of the Betty L. Lyman Living Trust Dated November 11, 2016 v. Robert B. Childs, Individually and as Trustee of the Robert B. Childs Living Trust Dated April 4, 2012
Dwight Lyman and Betty L. Lyman, as Individuals and as Trustees of the Dwight Lyman Living Trust Dated November 11, 2016, and Trustees of the Betty L. Lyman Living Trust Dated November 11, 2016 v. Robert B. Childs, Individually and as Trustee of the Robert B. Childs Living Trust Dated April 4, 2012, 2023 WY 16 (2023)
Facts
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The Lymans routinely fished and hunted the disputed parcels, leased the land to other hunters, and their predecessors logged the disputed parcels in the 1980s.
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Mr. Childs was precluded from fencing his land due to the Lymans' legal proceedings.
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Lymans did not pay taxes on Parcel 1 for several years.
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The Lymans recorded the warranty deed and a contract for deed for Parcel 1, but never recorded the quitclaim deed for Parcel 1.
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Mr. Childs' expert witnesses (Rob Kay, Jason Rodriguez) testified that the fence, as constructed, was easier to build and maintain in its current location due to steep, rocky, and heavily timbered terrain on the deeded boundary.
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The disputed fence is a sheep-tight fence consisting of mesh wire on the bottom and two barbed wires on top, which meanders through forested areas and generally avoids large changes in elevation, not following the exact deeded boundary.
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Just prior to the lawsuit, Mr. Childs hired Rob Kay to fence the western boundary of Parcel 1 (the deeded boundary), but the Lymans prohibited him from completing the work by filing suit in June 2020.
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Violet Lund also conveyed Parcel 1 (SE1/4SW1/4 of Section 3) to the Lymans via quitclaim deed, claiming an interest 'under a claim of adverse possession due to the existence of a fence line around said property for numerous years'.
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Lymans used the property for ranching and recreation, which was consistent with its historical use.
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In 2018, a dispute arose between the Lymans' hunters and the Weinhandls' hunters on Parcel 5, leading to a meeting where Mr. Lyman did not assert ownership over the disputed lands when presented with a trespassing agreement.
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Mr. Childs' counsel issued a trespass notice on July 28, 2020, revoking permission.
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The district court gave greater weight to the testimony of Mr. Rodriguez and Mr. Kay than to the Lymans' expert, Stephen Anderson, regarding the ease of fence installation.
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The Lymans grazed livestock within the fence and on the disputed parcels from 1983 (when they leased the property) and continued after purchasing it in 1993.
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Mr. Childs acquired his property in July 2019 from the Weinhandls (Golden Trout, LLC), who had acquired it from Jack Marton in 2010. Marton had acquired it in 1993.
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Mr. Childs is the record title owner of the disputed parcels.
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The Lymans' use of the property was permissive until Mr. Childs' counsel issued a trespass notice dated July 28, 2020.
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The Lymans' adverse possession claim failed.
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The Lymans acquired their property in August 1993 from Violet Lund via warranty deed.
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The Lymans' use of the property was permissive due to the fence of convenience.
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Mr. Weinhandl and Mr. Childs testified their title insurance showed clear title.
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Lymans acquired a quitclaim deed for Parcel 1 from the Lunds but did not record it.
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The Lymans posted 'no trespassing' signs on the disputed property.
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The fence was erected in the 1950s by Blaine Lyman and has not moved.
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Mr. Lyman knew previous owners accessed disputed property but never confronted them.
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Mr. Lyman retreated from a conversation with Mr. Weinhandl regarding a trespassing agreement for access to disputed property, rather than asserting ownership.
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The district court gave greater weight to the testimony of Mr. Rodriguez and Mr. Kay over the Lymans' expert, Stephen Anderson, regarding the ease of installation.
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Mr. Childs, the Weinhandls, and Mr. Marton testified they consistently used the disputed parcels and considered themselves rightful owners, moving freely between the properties without asking permission.
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The Lymans did not pay taxes on Parcel 1 for several years.
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Dwight and Betty Lyman (Lymans) filed an adverse possession claim to approximately 100 acres of Robert B. Childs' (Childs) deeded property in the Bighorn Mountains.
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Since the 1950s, a fence erected by Blaine Lyman (Dwight Lyman's uncle) has enclosed portions of Mr. Childs' deeded property within the Lymans' property.
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Mr. Childs was precluded from fencing his portion of land because of the Lymans' legal proceedings.
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Photographs and maps supported the conclusion that the fence was easier to construct where it stood.
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After Mr. Childs acquired the property, he installed a gate on the fence for easier access to Parcel 1, which the Lymans subsequently chained and locked, and later locked again with a note from their counsel.
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Lymans recorded a contract for deed for Parcel 1, but failed to prove this put Mr. Marton on actual notice of hostile claim.
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Mr. Lyman locked a gate on the north side of Parcel 1, excluding Mr. Childs.
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The fence does not follow the exact deeded boundary, instead it meanders through forested areas and generally avoids large changes in elevation.
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Mr. Childs' expert witnesses (Rob Kay and Jason Rodriguez) testified that the deeded boundary of Parcel 1 would be very difficult to fence due to steep, rocky, and heavily timbered terrain, and that the existing fence was in an easier and more convenient spot.
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Mr. Childs' title insurance determined the title to the property was clear, with no conflicting claims.
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Key Holdings
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The district court did not err in ordering the ejectment of the Lymans from the disputed parcels because Mr. Childs successfully proved he was the legal owner and was wrongfully excluded, and the Lymans' adverse possession claim failed.
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The district court's finding that the fence was a fence of convenience was not clearly erroneous, as it was supported by evidence that the fence avoided natural barriers, meandered, used natural objects as posts, and was easier to build and maintain in its current location compared to the deeded boundary.
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The Lymans failed to meet the heightened burden of providing actual notice to Mr. Childs or his predecessors that they were disavowing their permissive use and asserting hostile possession, as their actions (recording a contract for deed, grazing, recreational use, timber agreement) were not sufficiently manifest and notorious to presume actual notice.
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The district court did not err in finding the Lymans trespassed on the disputed parcels because their use became non-permissive after Mr. Childs' counsel issued a trespass notice on July 28, 2020, and the 'fence-out' rule did not apply as Mr. Childs was precluded from fencing his land.
Citations
Dwight Lyman and Betty L. Lyman, as Individuals and as Trustees of the Dwight Lyman Living Trust Dated November 11, 2016, and Trustees of the Betty L. Lyman Living Trust Dated November 11, 2016 v. Robert B. Childs, Individually and as Trustee of the Robert B. Childs Living Trust Dated April 4, 2012, 2023 WY 16, 524 P.3d 744 (2023)
Legal Reasoning
The Wyoming Supreme Court affirmed the district court's decision, applying a 'clearly erroneous' standard for factual findings and de novo for conclusions of law. The Court first acknowledged that the Lymans had established a prima facie case for adverse possession, satisfying the elements of actual, open, notorious, exclusive, and continuous possession for the statutory ten-year period, which shifted the burden to Mr. Childs. However, the Court upheld the district court's finding that the fence was a 'fence of convenience,' a determination supported by evidence that the fence meandered, avoided natural obstacles, and was easier to construct and maintain in its current location than on the true deeded boundary. This finding created a presumption of permissive use, rebutting the Lymans' prima facie adverse possession claim. The Court then analyzed whether the Lymans met the heightened burden required to overcome this presumption of permissive use, which necessitates providing the record title owner with 'actual notice' of a clear, positive, and continuous disclaimer of permissive use and an assertion of hostile ownership. The Court found the Lymans' actions, including the recording of a contract for deed (but not the quitclaim deed for Parcel 1), grazing, recreational activities, and a timber agreement, were insufficient to provide such actual notice. The Court noted Mr. Lyman's failure to assert ownership during a trespassing agreement discussion and the Lymans' non-payment of taxes on Parcel 1 as further evidence against actual notice. Consequently, the Lymans' adverse possession claim failed. Given the failure of the adverse possession claim, the Court affirmed the ejectment order, as Mr. Childs remained the legal owner and was wrongfully excluded from his property. Finally, the Court affirmed the finding of trespass, reasoning that the Lymans' use of the property became non-permissive after Mr. Childs' counsel issued a trespass notice. The Court also clarified that Wyoming's 'fence-out' rule did not apply because Mr. Childs was prevented from fencing his property due to the Lymans' legal actions. The Court also found no abuse of discretion in the admission of lay witness testimony, concluding it was based on personal perception and helpful to the case, and any potential error was not prejudicial.
Outcome
The Wyoming Supreme Court affirmed the district court's decision, denying the Lymans' adverse possession claim, affirming the ejectment order, and affirming the finding of trespass. Title was quieted in Mr. Childs.
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