                IN THE SUPREME COURT, STATE OF WYOMING

                                             2017 WY 49

                                                                    APRIL TERM, A.D. 2017

                                                                               May 8, 2017



RICHARD OSUCH and BARBARA D. RIVERA,

Appellants
(Plaintiffs),

v.                                                                      S-16-0228

DAVID E. GUNNELS and LINDA M. GUNNELS,

Appellees
(Defendants).


                     Appeal from the District Court of Sweetwater County
                             The Honorable Nena James, Judge


Representing Appellants:
      Michael W. Stulken, Stulken & Tynsky, PC, Green River, Wyoming.

Representing Appellees:
      Danielle M. Mathey and Richard Mathey, Mathey Law Office, PC, Green River,
      Wyoming. Argument by Ms. Mathey.


Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.

[¶1] This case involves a dispute between property owners in Sweetwater County
regarding a mistaken property boundary. Appellants, Richard Osuch and Barbara Rivera,
challenge the district court’s ruling that title to a portion of property formerly owned by
their predecessors in interest had vested in Appellees, David and Linda Gunnels, by
adverse possession. We affirm.

                                         ISSUES

[¶2]   Appellants present the following issue:

              Whether the district court erred in concluding that the
              Gunnels acquired title to the subject property by adverse
              possession.

Appellees present an additional issue:

              Whether Appellees should be awarded attorney’s fees and
              costs under W.R.A.P 10.05.

                                         FACTS

[¶3] In 1974, Appellants’ parents, Stanley and Wladzia Osuch, acquired an 80-acre
tract of land in Sweetwater County. They eventually put the land into a trust, and the
property passed to Appellants after Mrs. Osuch’s death in 2010. In 2011, Appellants
recorded a quitclaim deed conveying the property to them as tenants in common.

[¶4] In 1984, Appellees purchased a forty-acre tract adjacent to the property owned by
Appellants’ predecessors in interest. At the time of the purchase, Appellees moved into
an existing home on the property.              Appellees subsequently made extensive
improvements. In the spring of 1985, they constructed a fence around the property.
Appellees determined the location of the fence based on stakes that were represented by
their realtor to mark the property boundary. Unbeknown to Appellees, the fenced area,
which included the existing home, encompassed approximately eight acres of the Osuch’s
property, which is the subject of this appeal.

[¶5] Beginning in 1985, Appellees made improvements to the house. They added
several bedrooms, a front porch, a sun room, a basement, a brick fireplace, and hardwood
floors. In 1993, Appellees added a barn to the property. They also planted
approximately 200 trees and shrubs and let their animals range over the entire property.
Appellees lived continuously in the home on the property from 1985 to 2005 while they
raised their two children. In 2005, they began spending part of their time in Hawaii, but


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maintained their residence on the property for nine months out of the year.

[¶6] Soon after Appellants acquired the property, they attempted to sell it but were
unable to close a deal because of the existence of Appellees’ home within the recorded
boundary of the property. In February 2012, Appellants notified Appellees of the
mistaken boundary and indicated their willingness to sell the property to Appellees. The
parties initially reached an agreement for the sale of Appellants’ entire parcel to
Appellees for $20,000, but they were unable to close the sale. They subsequently
discussed the possibility of a sale of only the disputed portion of the property but were
ultimately unable to reach an agreement.

[¶7] After negotiations to purchase the disputed property failed, Appellants filed an
action to quiet title to the property. Appellees responded with counterclaims for
promissory estoppel and adverse possession, among others. Appellees asserted that
Appellants had entered into an agreement to sell them their entire parcel. Alternatively,
Appellees claimed they had acquired title to the disputed property by adverse possession.
Appellees also claimed a right to an implied easement across Appellants’ property for
access to their property.

[¶8] After a bench trial, the district court found that Appellees had established all of the
elements of adverse possession. The court also found that Appellees had an implied
easement to access their property. Because the court found that Appellees had acquired
the property by adverse possession, the court denied their promissory estoppel claim.
Appellants timely filed this appeal.

                               STANDARD OF REVIEW

[¶9] The following standards guide our review of a district court’s decision following 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 re-
              weighing disputed evidence. Findings of fact will not be set
              aside unless they 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. In
              considering a trial court’s factual findings, we assume that the
              evidence of the prevailing party below is true and give that


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             party every reasonable inference that can fairly and
             reasonably be drawn from it. We do not substitute ourselves
             for the trial court as a finder of facts; instead, we defer to
             those findings unless they are unsupported by the record or
             erroneous as a matter of law. The district court’s conclusions
             of law are reviewed de novo.

Graybill v. Lampman, 2014 WY 100, ¶ 25, 332 P.3d 511, 519 (Wyo. 2014) (quoting
Helm v. Clark, 2010 WY 168, ¶ 6, 244 P.3d 1052, 1056 (Wyo. 2010) (citations omitted)).

                                     DISCUSSION

[¶10] In their only issue, Appellants claim the district court erred in finding that
Appellees acquired title to the property in dispute by adverse possession. To establish
adverse possession, Appellees must demonstrate actual, open, notorious, exclusive, and
continuous possession of the disputed parcel which is hostile and under claim of right or
color of title. Graybill, ¶ 27, 332 P.3d at 519.

             A hostile possession or use is one that amounts to an assertion
             of ownership adverse to that of the record owner. It must be
             so incompatible with or so in defiance of the rights of the true
             owner that an ordinarily prudent owner would be on clear
             notice that his ownership is in jeopardy, that the
             claimant intends to possess the property as his own, and that
             the owner should take some action to protect his title.

Galiher v. Johnson, 2017 WY 31, ¶ 20, 391 P.3d 1101, 1106 (Wyo. 2017) (emphasis
omitted). Possession must be for the statutory period of ten years. Murdock v. Zier,
2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006); Wyo. Stat. Ann. § 1-3-103
(LexisNexis 2013). The test for adverse possession imposes shifting burdens upon the
parties:

             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.

Helm, ¶ 8, 244 P.3d at 1057 (quoting Cook v. Eddy, 2008 WY 111, ¶ 7, 193 P.3d 705,
708 (Wyo. 2008)).


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[¶11] In this case, the evidence reveals that, when Appellees purchased their property in
1984, stakes had been set which they understood to mark the boundary of their property.
In early 1985, Appellees used those stakes to construct a boundary fence which
encompasses the eight acres at issue in this case. At the time of Appellees’ acquisition of
the parcel, they moved into an existing home and used an existing well, both of which are
located within the eight-acre parcel. Appellees subsequently made many improvements
to the home and the property. They built an addition to the house as well as an attached
garage, and landscaped the area around the home. Over the next thirty years, they lived
in the home and raised two children there. They also let their animals graze on the
property.

[¶12] The undisputed evidence leaves no question that, beginning in 1985 and
continuing for thirty years, Appellees used the disputed parcel openly, notoriously,
exclusively, and in a manner plainly indicating that they were acting as the owners of the
property. This use was not permissive and was done under a claim of right. Appellees
satisfied all of the elements of adverse possession for the requisite statutory period.
“Once all the elements of adverse possession are met, the possessor is vested with a fully
new and distinct title.” Murdock, ¶ 17, 137 P.3d at 152. Once vested, title “can only be
divested by conveyance, descent or operation of law.” Id., ¶ 19, 137 P.3d at 152 (quoting
Sanders v. Lidle, 674 P.2d 1291, 1293 (Wyo. 1984)).

[¶13] According to Appellants, the parties’ conduct beginning in 2012, when Appellants
learned that Appellees’ dwelling was located within the recorded boundary of their
property, demonstrates that Appellees did not intend to assert a right of possession during
the period from 1985 to 1995. Appellants point to Appellees’ attempt to purchase the
disputed property after Appellants claimed they were the rightful owners. Appellants
assert that “if [Appellees] had claimed the right to the disputed property, they would not
have engaged in these activities to attempt to remedy the situation.” Appellants contend
that this action was inconsistent with ownership and indicates that Appellees’ possession
was not “hostile.” We do not agree.

[¶14] Appellants present no authority supporting their claim that an offer to purchase
property previously acquired by adverse possession has any bearing on the intent of the
adverse possessor during the statutory period. Our precedent, however, contains
authority to the contrary. In Meyer v. Ellis, 411 P.2d 338 (Wyo. 1966), the plaintiff
asserted a claim of adverse possession against his neighbors, the defendants, due to a
mistaken boundary. The plaintiff acquired the disputed property in 1960 from his
grandfather, who at that time had satisfied the elements of adverse possession for a period
of forty years. Id., 411 P.2d at 339, 342. The defendants’ predecessors in interest deeded
their property to the defendants two months after the plaintiff acquired title from his
grandfather. Id., 411 P.2d at 339. Thereafter, the parties entered into a lease for a portion
of the defendants’ property and, at some point, the plaintiff offered to exchange parcels


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with the defendants in an effort to resolve the dispute. The defendants claimed that
plaintiff was estopped from asserting ownership of the disputed property based upon “a
lease of the defendants’ lands – purportedly including the disputed tract – by plaintiff on
June 13, 1960,” as well as the plaintiff’s offer to exchange lands with the defendants. Id.,
411 P.2d at 341. This Court disagreed, concluding that plaintiff’s “efforts to buy his
peace,” and his acknowledgment of the previous owner’s title, did not serve to divest title
acquired by adverse possession:

              Whatever plaintiff did on his own behalf could not affect the
              grandfather’s title. The same is true of plaintiff’s efforts to
              buy his peace through an exchange of lands with the
              defendant. While those matters have relevancy if occurring
              during the running of the statutory period as bearing upon the
              nature of the possession, it is the law that an acknowledgment
              of the title of a prior owner does not serve to divest a title
              previously acquired by adverse possession.

Id., 411 P.2d at 341-42. As in Meyer, we conclude that Appellees’ negotiations to
purchase the disputed property in 2012 do not indicate a lack of intent to possess the
property during the running of the statutory period.

[¶15] Appellants also contend that the conveyance of the property to them by their
predecessors in interest divested Appellees of any claim they had to the property by
adverse possession. Appellants rely on the rule that title obtained by adverse possession
may be divested by “conveyance, descent or operation of law.” Murdock, ¶ 19, 137 P.3d
at 152. This statement of the law, however, has no relevance to the owner who has lost
title by adverse possession. Appellants never acquired title to the disputed tract from
their predecessors in interest because their predecessors no longer had title. Meyer, 411
P.2d at 345 (“[T]he portion of the judgment enjoining the defendants from interfering
with the possession of the plaintiff was not erroneous and must be affirmed for the reason
that defendants acquired no title to the disputed tract from their predecessor in interest.”);
see also Crowden v. Grantland, 510 So. 2d 238, 240 (Ala. 1987) (“Crowden could not
have obtained title to the disputed property described in his deed because his grantors had
no title that they could convey.”) (citing Graham v. Hawkins, 281 Ala. 288, 202 So. 2d
74 (1967)). For the foregoing reasons, we find no error in the district court’s
determination that Appellees acquired title to the property in dispute by adverse
possession.

[¶16] Appellees request that we impose sanctions in the form of attorney’s fees against
Appellants under W.R.A.P. 10.05(b) because there was no reasonable cause for this
appeal. The rule provides, in relevant part, that “If the court certifies, whether in the
opinion or upon motion, there was no reasonable cause for the appeal, a reasonable
amount for attorneys’ fees and damages to the appellee shall be fixed by the appellate


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court and taxed as part of the costs in the case.” In general, we are reluctant to order
sanctions under Rule 10.05 and will do so only in rare circumstances. Jackman
Construction, Inc. v. Rock Springs Winnelson Co., Inc., 2016 WY 118, ¶ 39, 385 P.3d
311, 321 (Wyo. 2016); Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 30, 261
P.3d 731, 739 (Wyo. 2011). While we do not find Appellants’ arguments to be
persuasive, we cannot certify that they had no reasonable cause for this appeal.
Accordingly, Appellees’ request for sanctions under Rule 10.05 is denied.

[¶17] Affirmed.




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