Boot Ranch, Llc, a Wyoming Close Limited Liability Company v. Wagonhound Land & Livestock Company, Llc, a Wyoming Limited Liability CompanyBoot Ranch, Llc, a Wyoming Close Limited Liability Company v. Wagonhound Land & Livestock Company, Llc, a Wyoming Limited Liability Company
IN THE SUPREME COURT, STATE OF WYOMING
2024 WY 136
OCTOBER TERM, A.D. 2024
December 13, 2024
BOOT RANCH, LLC, a Wyoming close
limited liability company,
Appellant
(Defendant),
v.
WAGONHOUND LAND &
LIVESTOCK COMPANY, LLC, a
Wyoming limited liability company,
Appellee
(Plaintiff).
S-24-0045
The Honorable F. Scott Peasley, Judge
Representing Appellant:
Jeffrey S. Pope, Macrina M. Sharpe, and Kasey J. Schlueter, Holland & Hart LLP,
Cheyenne, Wyoming. Argument by Macrina M. Sharpe.
Representing Appellee:
Kermit C. Brown and William L. Hiser, Brown & Hiser, LLC, Laramie, Wyoming.
Argument by William L. Hiser.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.
FOX, C.J., delivers the opinion of the Court; FENN, J., files a dissenting opinion.
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.
FOX, Chief Justice.
[¶1] In 2020, Wagonhound Land & Livestock, LLC purchased the 14,000-acre
Tomahawk Ranch in Converse County and soon after brought an action against Boot
Ranch, LLC to quiet title to approximately forty acres Boot Ranch had occupied and used
since as early as 1984. Boot Ranch counterclaimed for adverse possession of the
property. The district court found Boot Ranch had made its prima facie showing of
adverse possession but that Wagonhound had rebutted the claim with evidence of a fence
of convenience and of neighborly accommodation. The court thus concluded that Boot
Ranch’s occupation and use of the property was permissive and quieted title in
Wagonhound’s favor. Because the evidence does not support a finding that Boot Ranch’s
use of the disputed property was permissive, we reverse.
ISSUES
[¶2] The dispositive issues in this appeal are:
1. Did the district court err in finding that the fence partially
enclosing the disputed property was a fence of convenience?
2. Did the district court err in finding that Boot Ranch’s use
of the disputed property was a neighborly accommodation?
FACTS1
I. Property in Dispute
[¶3] The property at issue is on the border between Tomahawk Ranch to the west and
approximately 14,000-acre Tomahawk Ranch, and Boot Ranch, LLC owns the
approximately 9,000-acre Boot Ranch.2
[¶4] The disputed property consists of two parcels totaling approximately forty acres
and is shown on the map below as Parcels 1 and 2. The two parcels are in an area called
the Dam Pasture, and they are bordered on the west by La Prele Reservoir. Wagonhound
holds record title to the two parcels, but they are partially fenced into Boot Ranch as also
depicted below. In the areas without fencing, natural barriers enclose the disputed
property.
II. The Dispute
[¶5] Diemer True and his immediate family, first through Diamond Ranches, LLC and
then Tomahawk Ranch, LLC owned Tomahawk Ranch from 2007 to 2020.3 Mr. True
listed the ranch for sale in 2020, and in April 2020, Shane Cross reviewed the map
included in the listing and saw that it showed Parcels 1 and 2 within the Tomahawk
Ranch boundary. Shane investigated further and learned for the first time that Parcels 1
and 2 were within the legal description for Tomahawk Ranch.
[¶6] Shane contacted Mr. True and informed him that Boot Ranch was claiming
ownership of Parcels 1 and 2. He asked Mr. True if there was a way to resolve the claim
without going to court, and Mr. True informed him he was already under contract with
Wagonhound. Shane followed up with an email again asserting Boot Ranch’s ownership
claim and stating, “I want to give you
given that you listed the Tomahawk and so that your purchaser is aware of the claim.”
Mr. True forwarded the email to his attorney, who then forwarded it to representatives of
Wagonhound.
[¶7] Before Wagonhound closed on its purchase of Tomahawk Ranch, representatives
of Wagonhound visited the disputed property and flagged or signed the property
boundaries as they understood them. When Shane Cross found the markers, he removed
them.
[¶8] Wagonhound closed on its purchase of Tomahawk Ranch on June 2, 2020. On
June 18, 2020, Shane Cross sent Wagonhound’s general manager, Dustin Ewing, a text
message, which stated:
Dustin, I am certain that you know we are claiming
ownership to lands within our pasture on the North and East
side of LaPrele (sic) Reservoir. This is a courtesy text
notifying you again not to access the land period. Do not
harm or damage the existing fence between our pasture and
the Tomahawk in any way. I intend to block any attempt to
access the land and if you trespass again and build a fence I
will remove the fence. I am sorry it’s come to this, but I felt
notifying you again is the right thing to do to avoid further
conflict and further damage to our property due to
unauthorized access. Thank you, Shane.
III. Legal Proceedings
[¶9] On June 25, 2020, Wagonhound filed an action against Boot Ranch seeking to
quiet title to Parcels 1 and 2 and for other related relief. Boot Ranch answered and
counterclaimed for adverse possession of the parcels and to quiet title. The district court
held a four-day bench trial at which the following testimony relevant to this appeal was
received:
A. Diemer True
[¶10] During the thirteen years Diemer True owned Tomahawk Ranch, he ran it as an
agricultural operation with cows and calves and for a brief time, a herd of buffalo. He
testified he never set foot on the disputed property, had no knowledge of the fence that
partially enclosed it into Boot Ranch, and did not know when the fence was built or who
built it. He also testified he saw people using Parcel 2 at least annually, never confronted
those individuals, and never gave Boot Ranch permission to use the disputed property.
B. Richard Cross
[¶11] Richard Cross testified that he was born in December 1940 and grew up on
Tomahawk (now Wagonhound) Ranch. The fence that encloses the disputed property into
Boot Ranch has existed as long as he can remember and was there when he grew up on
Tomahawk. He does not know who built the fence, and he agreed it does not run in a
straight line and avoids obstacles such as rocks, trees, and other rough terrain.
[¶12] Richard further testified that when he lived on Tomahawk Ranch, it was his
understanding that Boot Ranch owned the property east of La Prele Reservoir. When
Tomahawk cattle would breach the fence and enter the disputed property, Richard would
enter the property through a gate in the fence and retrieve the Tomahawk cattle. Growing
up on Tomahawk, he also recalled seeing Boot Ranch graze cattle on the disputed
property. Finally, Richard testified that when he has provided legal descriptions of Boot
Ranch, it was his understanding that those descriptions showed he owned all of the Dam
Pasture.
C. Mark Norem
[¶13] Mark Norem is a real estate broker who has handled numerous real estate
transactions on behalf of Wagonhound and negotiated its purchase of Tomahawk Ranch.
As part of Wagonhound’s due diligence, Mr. Norem visited the Tomahawk property with
Dustin Ewing, Wagonhound’s general manager, and Brad Neumiller, a surveyor. Mr.
Norem testified that they examined the fence that encloses the disputed property and that
it does not run in a straight line and meanders “a lot.” He testified that the reason the
fence meanders is the reservoir’s water level, and that “[i]t’s pretty obvious it’s the water
level of the reservoir had something to do with where they put the fence.” He further
D. Brad Neumiller
[¶14] Brad Neumiller is a licensed land surveyor. He surveyed the existing fence and
took GPS shots along the fence line. From those GPS shots, Mr. Neumiller found 32
“direction changes” in the fence, a couple 90-degree, or close to 90-degree, turns, and
that the longest straight stretch of the fence was 288 feet, or a little shorter than a football
field. Mr. Neumiller testified the fence did not run on the legal boundary and instead
followed the high-water mark of La Prele Reservoir. He testified the fence uses trees and
rocks as anchors, and he described it as a “four-strand barbed wire fence built of T-posts
and wood.”
[¶15] Mr. Neumiller also testified to the presence of remnant fence-type materials, with
some of the remnants located near the legal boundary. On cross-examination, he testified
that he could not say that the remnants formed a boundary fence because they were not
on the boundary, and he did not know whether the remnants were from something else,
like an enclosure for sheep. He further testified he did not know if the remnants were in
their original location, or when or how the remnants got on the Boot Ranch property.
E. Dustin Ewing
[¶16] Dustin Ewing, Wagonhound’s general manager, testified that the disputed
property is important to Wagonhound’s holdings. Mr. Ewing described the fence that
encloses the disputed property into Boot Ranch as an “old four-wire cattle fence, drift
fence” that meanders, avoids obstacles and barriers, and uses trees, rocks, and bushes as
fencing material. He opined that the location of the fence was for convenience, or ease of
construction, rather than to mark boundaries. He further opined that its placement was
more cost-effective than the true boundary line and was driven by the topography. He
also testified that as to Parcel 1, the fence divides the grassland property from the
reservoir.
F. Shane Cross
[¶17] Shane Cross grew up on Boot Ranch and currently manages the ranch, which is
primarily a cow-calf and haying ranch. He described the fence enclosing the disputed
property into Boot Ranch “as being in good shape.”
The fence is a good cow fence. It’s four wires through
most of it. We maintain it every year, sometimes multiple
times a year. It’s like other fences on our ranch that we use to
control our grazing, and to keep cows in and other cows out.”
[¶18] Shane further testified that over the years, the fence had been sufficient to exclude
Tomahawk cattle from Boot Ranch, though cattle do occasionally breach the fence. He
explained that Boot Ranch removes Tomahawk cattle from the property because it needs
the grass for its own cattle.
[¶19] Shane also testified that Boot Ranch has to his knowledge always used the
property following the low water line of La Prele Reservoir as it receded. He testified that
Boot Ranch cattle use both Parcels 1 and 2 for grazing. He summarized his family’s use
of the disputed property as, “We use it for our cows. We use it for water for our livestock.
We use it for hunting. We use it for fishing. We use it to recreate. We use it for family
get-togethers. And we love the place.” He further testified as follows to the importance of
the disputed property to Boot Ranch:
It’s instrumental to our grazing operation, to our ability
to utilize that pasture. But it’s also just our home and is
culturally very important to us. We have a lot of memories
there. I grew up there. I grew up using that. I want my son to
be able to grow up using that as well.
IV. The District Court’s Ruling
[¶20] The district court found that the disputed property had been partially fenced into
Boot Ranch since before Richard Cross was born, over eighty years ago, and that since at
least 1984, Richard Cross had used the disputed property as his own.4 Specifically,
court found that Boot Ranch had continuously used the property to graze and water its
cattle, and for recreation, hunting and fishing. The court further found (record citations
omitted):
17. Since at least 1984, Richard Cross has used the Subject
Property as his own, and he has always believed it to be part
of Boot Ranch. Likewise, Richard’s son Shane Cross has
always believed the Subject Property was part of Boot Ranch.
The court finds this testimony credible.. . .
42. At various times, Tomahawk cows have breached the
Existing Fence and entered the Dam Pasture.43. Shane Cross testified that he has taken Tomahawk cows
out of Parcels 1 and 2 “every year.” The court finds this
testimony credible.44. Shane Cross testified that when Tomahawk Ranch cattle
strayed onto the Boot Ranch, he would either contact Diemer
True to come get his cattle or put his cattle through the fence
and back onto the Tomahawk Ranch.45. When Boot Ranch cattle went onto the Tomahawk Ranch,
Diemer True’s employees would gather the Boot Ranch cattle
and put them in a corral until Shane Cross could retrieve
them.. . .
51. Since at least 1984, no other people have used the Boot
Ranch – this is not a case of conflicting hostile use by
competing landowners.
[¶21] Based on these findings, the court concluded that Boot Ranch had made a prima
facie showing of adverse possession. The court further found, however, that Wagonhound
had rebutted Boot Ranch’s prima facie showing by proving that the fence partially
enclosing the disputed property was a fence of convenience and that the parties had
engaged in neighborly ranching practices. The court then shifted the burden back to Boot
Ranch to prove a level of hostility sufficient to overcome the presence of a fence of
convenience and a neighborly accommodation and found that Boot Ranch had failed to
meet that burden. Based on these findings, the court concluded that Boot Ranch’s use of
the disputed property was permissive, which defeated its adverse possession claim.
[¶22] On Boot Ranch’s motions, the district court stayed entry of its ruling and certified
it as final pursuant to W.R.C.P. 54(b). Boot Ranch timely appealed.
STANDARD OF REVIEW
[¶23] Our standard of review following a bench trial is as follows:
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
reweighing 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
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.
Tuckness v. Town of Meeteetse, 2024 WY 42, ¶ 11, 546 P.3d 1091, 1093-94 (Wyo. 2024)
(quoting Little Med. Creek Ranch, Inc. v. d’Elia (Little Med. Creek Ranch II), 2023 WY
30, ¶ 16, 527 P.3d 856, 863 (Wyo. 2023)).
DISCUSSION
[¶24] An adverse possession claim involves shifting presumptions. Lyman v. Childs,
2023 WY 16, ¶ 12, 524 P.3d 744, 751 (Wyo. 2023) (citing O’Hare v. Hulme, 2020 WY
31, ¶ 20, 458 P.3d 1225, 1234 (Wyo. 2020)). “A presumption of ownership first rests
with the record title holder unless and until the adverse claimant makes out his prima
facie case of adverse possession.” Lyman, 2023 WY 16, ¶ 12, 524 P.3d at 751 (citing
Kudar v. Morgan, 2022 WY 159, ¶ 14, 521 P.3d 988, 993 (Wyo. 2022)). “To establish a
prima facie case, the claimant must demonstrate for a period of ten years, ‘actual, open,
notorious, exclusive and continuous possession of the disputed parcel which is hostile
and under claim of right or color of title.’” Lyman, 2023 WY 16, ¶ 12, 524 P.3d at 751
(quoting Kudar, 2022 WY 159, ¶ 15, 521 P.3d at 993).
[¶25] Once a prima facie showing of adverse possession is made, the claimant is entitled
to a presumption of adverse possession, and the burden shifts to the record title owner to
explain or rebut the claim by showing the claimant’s use was permissive. Lyman, 2023
WY 16, ¶ 23, 524 P.3d at 753-54 (citing Kudar, 2022 WY 159, ¶ 16, 521 P.3d at 993).
This showing shifts a heightened burden to the adverse claimant to prove that it provided
the record title owner with actual notice that it was claiming ownership of the property,
and disavowing its use was permissive. Lyman, 2023 WY 16, ¶ 37, 524 P.3d at 756-57.
[¶26] Wagonhound does not challenge the district court’s conclusion that Boot Ranch
made a prima facie showing of adverse possession, and Boot Ranch does not contend it
met the heightened burden of actual notice placed on it once the court found its use was
permissive. The sole question before us, therefore, is whether the record supports the
court’s determination that Boot Ranch’s use of the property was permissive.
[¶27] The district court found Boot Ranch’s use of the disputed property was permissive
on two grounds. First, the court found that the fence enclosing the property into Boot
Ranch was a fence of convenience; second, it found that Boot Ranch’s use of the property
was a result of neighborly accommodation. We address each in turn.
I. The evidence does not support a finding that the fence enclosing the disputed
property into Boot Ranch was a fence of convenience.
A. The Fence of Convenience Doctrine
[¶28] One way to prove a use was permissive is to show that a fence enclosing the
disputed property or dividing two properties is a fence of convenience. Lyman, 2023 WY
16, ¶ 24, 524 P.3d at 754. A fence kept for convenience does not affect the true boundary
between land. Id. (citing Kimball v. Turner, 993 P.2d 303, 306 (Wyo. 1999)).
The placement, type and purpose of a fence are important
factors in adverse possession cases. A fence which is intended
to be the boundary between properties supports a claim for
adverse possession. On the other hand, a fence that is placed
in a certain location in order to separate pastures or irrigated
meadows from grazing land or because the terrain makes it
easier to build the fence in that location rather than on the
property line is a fence of convenience. When a fence is
located off the property line as a matter of convenience, use
by the neighbor is considered permissive and will defeat a
claim for adverse possession.
Helm v. Clark, 2010 WY 168, ¶ 12, 244 P.3d 1052, 1058 (Wyo. 2010) (citing Braunstein v. Robinson Fam. Ltd. P’ship, LLP, 2010 WY 26, ¶ 18, 226 P.3d 826, 833-34 (Wyo. 2010)).
[¶29] In Lyman, we upheld a district court conclusion that a fence was one of
convenience. 2023 WY 16, ¶ 25, 524 P.3d at 754. The sole question with respect to the
fence was whether the evidence supported the determination that the fence had been
located to avoid difficult terrain on the legal boundary. Id. In addressing that question, we
summarized from our prior cases the factors a court may consider in determining whether
a fence was one of convenience. Id. Those factors, which we described as neither
dispositive nor exhaustive, included:
- The physical appearance of the fence;
- Whether the fence meanders or runs in a straight line;
- Whether the fence avoids obstacles and natural barriers;
-
Whether trees, bushes, or natural objects are used as fencing
material; - Whether there was an obvious lack of intent strictly to
follow platted or government description property lines; - Changes in elevation on the deeded boundary compared to
the fence line; - Soil conditions or rockiness of the deeded boundary
compared to the fence line; - Ease of labor/cost of fencing the deeded boundary compared
to the fence line; and - The type of land the fence is dividing.
Id.
[¶30] In evaluating the fence in the case now before us, the district court found there was
insufficient evidence to show the fence was built in its present location to avoid difficult
terrain on the legal boundary.5 The court nonetheless focused on the Lyman factors and
concluded based on those factors that the fence was one of convenience. Before turning
to our review of that ruling, it is helpful to set out the holdings in some of our cases that
have drawn the distinction between boundary fences and those of convenience, including
the cases from which the Lyman factors were drawn. These holdings illustrate the extent
to which the Lyman factors, and particularly the physical characteristics of a fence, guide
or influence the determination of whether a fence is a boundary fence or one of
convenience.
[¶31] In Helm, a dispute arose between adjoining landowners in 2007 when one of them
attempted to relocate a fence to the recorded property line. 2010 WY 168, ¶ 5, 244 P.3d
at 1056. In considering whether the existing fence was a boundary fence or one of
convenience, the district court found that the land on either side of the fence was similar
in nature and that the fence ran in more or less of a straight line but meandered through
wooded areas. Id., ¶ 13, 244 P.3d at 1058. The court found the fence incorporated natural
materials but was substantial in that it incorporated five barbed wires; that it required
maintenance in the spring; and that it was in “the normal condition of a longstanding
fence enclosing pasturelands that are located in standing timber and subject to heavy
snows.” Id. It further found that the fence had been constructed in 1920 and
[i]t was assumed to be on the surveyed line until about 1968.
It is typical of the boundary fences that the Helms and Clarks
had even though it may not have been built to modern
standards. From 1968 onward the Plaintiffs Helms were
aware the Clarks were possessing their property on the other
side of the fence yet they failed to take action to stop this
possession.
Id., ¶ 14, 244 P.3d at 1058-59.
[¶32] Based on these findings, the district court concluded the fence was a boundary
fence. Helm, 2010 WY 168, ¶ 13, 244 P.3d at 1058-59. We upheld the court’s ruling, Id.,
¶ 2, 244 P.3d at 1055, holding that it is the placement, type and purpose of a fence that
governs its effect on an adverse possession claim. Id., ¶ 12, 244 P.3d at 1058. We
explained:
A fence which is intended to be the boundary between
properties supports a claim for adverse possession. On the
other hand, a fence that is placed in a certain location in order
to separate pastures or irrigated meadows from grazing land
or because the terrain makes it easier to build the fence in that
location rather than on the property line is a fence of
convenience. When a fence is located off the property line as
a matter of convenience, use by the neighbor is considered
permissive and will defeat a claim for adverse possession.
Id.
[¶33] In Cook v. Eddy, a fence dividing adjacent properties departed from the legal
boundary and enclosed over forty acres of Mr. Cook’s land inside Mr. Eddy’s pasture.
2008 WY 111, ¶ 4, 193 P.3d 705, 707-08 (Wyo. 2008). Mr. Eddy had grazed his cattle on
those forty acres for over ten years when Mr. Cook began to build a fence on the true
fence was a boundary fence or one of convenience. Id., ¶ 10, 193 P.3d at 709. It found
that there was an old path or corridor along the correct boundary; the existing fence
departed severely from the boundary in an obvious way; there were small deviations to
accommodate trees or rocks, but the fence generally ran straight in its three sections; and
generally, the route of the fence was as irregular as the legal boundary. Id. Based on those
findings, the court found the fence to be a boundary fence. Id. We found no clear error in
that determination despite evidence that the fence deviated slightly from a true course and
used trees as fence posts. Id., ¶ 16, 193 P.3d at 711.
[¶34] In Addison v. Dallarosa-Handrich, we upheld the district court’s conclusion that a
fence enclosing over six acres of the record title owner’s property was one of
convenience. 2007 WY 110, ¶ 21, 161 P.3d 1089, 1093 (Wyo. 2007). The evidence
showed that the fence was built when the land was under common ownership and was
constructed to separate a calving pasture. Id. Additionally, the evidence showed the fence
was in poor condition, consisting in places of only posts with no wire, and it followed the
topography rather than a straight line. Id., ¶ 20, 161 P.3d at 1093. These factors indicated
the fence was intended to be one of convenience rather than one that marked the
boundary, precluding an adverse possession claim. Id., ¶ 21, 161 P.3d at 1093.
[¶35] Lake v. Severson reached the same result. 993 P.2d 309, 310 (Wyo. 1999). In that
case the evidence showed the fence at issue was built when the land was under common
ownership and was built to divide grazing and farming land and to keep livestock off the
farmland. Id. The evidence also showed that the adverse possession claimant knew the
fence was not on the legal boundary and used the property up to the fence only because it
was easier than building a new one. Id. at 312. We upheld the district court’s conclusion
that the fence was one of convenience and therefore defeated the adverse possession
claim. Id. at 313.
[¶36] In Kimball, the district court likewise ruled that a fence was one of convenience.
993 P.2d at 304. The court found:
To call the structure a fence is generous. It consists of 3 wires
meandering between trees, bushes, and fence posts in an
irregular fashion. It appears from the physical appearance that
someone walked in the east-west direction stringing barbwire
from tree to tree, placing fence posts when trees or bushes
were not available.
Id. at 306.
[¶37] The district court further found the fence followed an irregular course and it would
be obvious “[e]ven to a casual observer” that it was not on the legal boundary. Kimball,
993 P.2d at 306. We upheld the court’s conclusion that the fence was one of convenience
based on its findings and based on additional evidence that the predecessors in interest
never intended the fence to be a boundary fence and instead used it to keep cattle
separate. Id. at 306-07. We also considered evidence of how the parties currently used the
property, with the record title owner freely going back and forth on the disputed property.
Id. at 307.
[¶38] In Mader v. Stephenson, the Court upheld a district court determination that a
fence was a boundary fence. 501 P.2d 1253 (Wyo. 1972). No one who testified knew
who had built the fence or when, but it was undisputed that the adverse possession
claimant had always occupied and used all the lands on her side of the fence, while the
record title owners had always occupied and used all the lands on their side of the fence.
Id. at 1254. Additionally, the claimant testified she always understood the fence to be the
property line and always exercised ownership on her side of the fence. Id. at 1255. In
upholding the district court’s ruling, the Court observed:
There is an absence of proof in the instant case that the fence
in question was built as a fence of convenience; and certainly
appellants cannot claim conclusive proof that the fence was
built as a fence of convenience, with the parties knowing and
agreeingthat it was for convenience and not on the true line.
Id. at 1254.
[¶39] What we draw from these holdings is that the Lyman factors are not, as we said in
Lyman, necessarily dispositive in and of themselves. Instead, they guide the
determination of whether a fence is a boundary fence or one of convenience when they
tell us something about the purpose of the fence. The Lyman factors were relevant to the
issue in that case, which was whether the fence qualified as a fence of convenience
because the topography made it difficult to build a fence on the boundary. Those factors
are less relevant when the convenience is operational; such as separating a calving
pasture, as in Addison; dividing grazing and farming land, as in Lake; or separating cattle,
as in Kimball.
[¶40] This focus on the what the physical characteristics of a fence tell us about its
purpose is apparent in other cases as well. In Helm we recognized that when a court
considers differences in the land on either side of a fence, its aim is not just to identify
those differences but also the purpose of separating the lands. 2010 WY 168, ¶ 12, 244
P.3d at 1058 (“[A] fence that is placed in a certain location in order to separate pastures
or irrigated meadows from grazing land . . . is a fence of convenience.”). Similarly in
Cook, it was not enough that there were obvious angles in the fence or that it meandered
and used natural materials; the district court looked to the reason for those characteristics.
2008 WY 111, ¶ 10, 193 P.3d at 709. When it found “the route of the fence is across as
irregular of terrain as the route of the correct boundary[,]” it was unable to find a
convenience evidenced by the physical characteristics, and concluded the fence was a
boundary fence. Id.
[¶41] Our review of these cases further instructs, as we also said in Lyman, that the
Lyman factors are not exhaustive, and there are other relevant considerations. For
example, if it is known, the intent of the party who built the fence is relevant. Addison,
2007 WY 110, ¶ 21, 161 P.3d at 1093 (considering evidence that land was originally
under common ownership and the owner built the fence intending only to separate
calving pasture). Also relevant is how the parties historically treated the property
separated by the fence and how they currently treat it. Lyman, 2023 WY 16, ¶ 31, 524
P.3d at 755 (considering evidence that record owner moved freely between properties
without seeking permission); Kimball, 993 P.2d at 307 (considering evidence original and
current record owners freely went back and forth on disputed property); Mader, 501 P.2d
at 1254 (“[I]t is not disputed plaintiff had always occupied and used all of the lands on
her side of the fence; and the Maders had always occupied and used all of the lands on
their side of the fence.”).
[¶42] All these considerations return us to the basic premise underlying the fence of
convenience doctrine. It is a means to show that an adverse possession claimant’s use of
disputed property was permissive. Lyman, 2023 WY 16, ¶ 25, 524 P.3d at 754 (“When a
fence is located off the property line as a matter of convenience, use by the neighbor is
considered permissive and will defeat a claim for adverse possession.”) (quoting Helm,
2010 WY 168, ¶ 12, 244 P.3d at 1058). If the evidence fails to support a finding of
convenience served by the fence, the presence of the fence will not be evidence of
permissive use. Gillett v. White, 2007 WY 44, ¶ 18, 153 P.3d 911, 916 (Wyo. 2007)
(rejecting record owner’s fence of convenience argument where she failed to present
evidence of a convenience served by fence).
[¶43] With this framework, we turn to our review of the district court’s ruling that
Wagonhound met its burden of showing the fence enclosing the disputed property was a
fence of convenience.
B. District Court’s Fence of Convenience Ruling
[¶44] As noted, the district court started its analysis with a finding that there was
insufficient evidence to show it was easier to build the fence where it was located than on
the legal property line. The court then considered the physical characteristics of the fence.
The location of the fence bordering the Subject
Property follows the high-water level of the Reservoir. . .
Although the physical appearance of the fence, in many
places, is that of a reasonably built cow fence, in several
locations, including the northern area, the fence is in
disrepair. Furthermore, the fence clearly meanders and does
not run in a straight line; in fact, the fence changes directions
over 32 times. Even Shane Cross acknowledges that the fence
is not straight, uses elements such as trees and rocks as part of
the fence, does not follow the record title description, and
divides land where the Reservoir is located from grazing
ground. While some of the directional changes can be
explained, the fence avoids, in several places, obstacles and
natural barriers.
[¶45] Based on these physical characteristics, the district court concluded the fence was
one of convenience rather than a boundary fence. The flaw in this conclusion is that the
court made no findings that would link the physical characteristics of the fence to
convenience. Contrary to the dissent’s contention, we do not reweigh the district court’s
fact findings; we simply conclude that the core finding, what convenience the fence
served, is absent from the evidence and the district court’s findings. In fact, the evidence
would suggest the opposite. Shane Cross testified that the reservoir is one of its water
sources for Boot Ranch cattle, yet the fence separates Boot Ranch’s grazing land from a
substantial portion of reservoir. And it is inconceivable that the fence was a convenience
to Tomahawk Ranch when it was built since it excludes Tomahawk cattle from forty
acres of grazing land. Without evidence of the reason for the fence, operational or
otherwise, the physical existence of the fence alone does not support a finding that it was
a fence of convenience. Lyman, 2023 WY 16, ¶ 25, 524 P.3d at 754 (purpose of fence to
avoid difficult terrain on boundary); Addison, 2007 WY 110, ¶ 21, 161 P.3d at 1093
(purpose of fence to separate calving pasture); Lake, 993 P.2d at 312 (purpose of fence to
create barrier between grazing and farmlands).6
[¶46] The district court also found evidence of a remnant fence near the true boundary
significant. It reasoned (record cites omitted):
Mr. Neumiller surveyed and investigated the Existing Fence
and the “remnant” fence. Mr. Neumiller could not definitively
say whether the “remnant fence” was ever truly a fence or
something else, but the evidence tends to show there was, at
one point, a fence along the property line. Nobody knows
who built the fence, when it was constructed, or whether it
was placed on the boundary. However, according to Mr.
Neumiller, the “deed line” of the property follows the
“remnant fence” line and not the existing fence line.
Considering the evidence of remnants of a fence on the actual
property line, coupled with the actual location of the existing
fence compared to the property line, the evidence shows a
lack of intent to follow the boundary line.
[¶47] The district court’s inference of intent from the remnant fence is untenable and, in
this case, not particularly helpful in determining whether this was a fence of convenience.
First, as the court recognized in its analysis, no one knew if the remnants were from a
fence at all, let alone a boundary fence. But even if we were to accept the remnants were
evidence of a boundary fence at some point in time, the court’s reasoning assumes that
whoever built the existing fence knew of the remnant fence and understood it was on the
legal boundary. This is speculation and assumes too much. Moreover, this speculative
intent sheds no light on the convenience this fence was intended to provide. The building
of a fence off the boundary, even knowingly, does not render the use of the enclosed
property permissive unless there is a showing of some convenience the fence was
intended to serve.
[¶48] The absence of evidence of a convenience served by the fence enclosing the
disputed property makes this case more like Mader, and less like our cases that focus on
the physical characteristics of the fence. In Mader, no one who testified knew who built
the fence enclosing the property or when. 501 P.2d at 1254. There was an absence of
evidence that the fence was built as a convenience, and the Court therefore looked to how
the parties had used the property that was separated by the fence. Id. Because the parties
had used only the property on their side of the fence, the Court concluded the fence was a
boundary fence. Id.
[¶49] This case is much the same. There is no evidence of a convenience the fence
enclosing the disputed property was intended to serve, only speculation. Additionally, the
evidence was undisputed that since at least as early as 1984, Tomahawk Ranch
exclusively used the land on its side of the fence, and Boot Ranch exclusively used the
land on its side of the fence. The location of the fence in this case thus provides no basis
to conclude that Boot Ranch’s use of the disputed property was permissive, so Boot
Ranch’s prima facie case of adverse possession stands.
II. The evidence does not support a finding of neighborly accommodation.
[¶50] The district court concluded that Boot Ranch and Tomahawk Ranch had a practice
of neighborly accommodation that further indicated Boot Ranch’s occupation and use of
the disputed property was permissive. In support of this conclusion, the court made the
following findings (record citations omitted):
44. Shane Cross testified that when Tomahawk Ranch cattle
strayed onto the Boot Ranch, he would either contact Diemer
True to come get his cattle or put his cattle through the fence
and back onto the Tomahawk Ranch.45. When Boot Ranch Cattle went onto the Tomahawk
Ranch, Diemer True’s employees would gather the Boot
Ranch cattle and put them into a corral until Shane Cross
could retrieve them.
[¶51] Neighborly accommodation is another subset of permissive use. “Neighborly
accommodation defeats a claim of adverse possession because ‘when a landowner allows
a neighbor to use his land, that use should be deemed permissive.’” Sellers v. Claudson,
2024 WY 69, ¶ 22, 550 P.3d 559, 568 (Wyo. 2024) (quoting Galiher v. Johnson (Galiher
I), 2017 WY 31, ¶ 22, 391 P.3d 1101, 1106 (Wyo. 2017)). “Neighbors, unlike strangers,
normally have some sort of social relationship or contact, whether friendly or otherwise,
and will often ‘allow slight intrusions onto their land by their neighbors in order to
promote good will and avoid bad feelings and confrontations.’” Sellers, 2024 WY 69,
¶ 22, 550 P.3d at 568.
[¶52] “Permission requires acts of commission, not omission.” Id. (citing Kudar, 2022
WY 159, ¶ 29, 521 P.3d at 996). “A ‘neighborly accommodation’ simply cannot be
assumed—there must be evidence of communication or joint activity which demonstrates
such an accommodation.” Sellers, 2024 WY 69, ¶ 22, 550 P.3d at 568 (quoting Kudar, 2022 WY 159, ¶ 29, 521 P.3d at 996).
[¶53] The record contains no evidence that anyone from Tomahawk Ranch at any time
gave Boot Ranch permission to use the disputed property, and it contains no evidence
that Tomahawk Ranch and Boot Ranch at any time operated jointly on the disputed
property. See Sellers, 2024 WY 69, ¶ 24, 550 P.3d at 568 (“It is well established that a
landowner’s passive acquiescence to another’s use of his land is not evidence of
permissive use.”) (quoting Kudar, 2022 WY 159, ¶ 29, 521 P.3d at 996). Beyond that, we
do not see how each ranch removing the other’s trespassing cattle could be evidence of a
neighborly accommodation. If those actions reflect anything, they were assertions of
exclusive ownership and dominion over the property. The district court’s finding
otherwise was clearly erroneous.
CONCLUSION
[¶54] The record contains no evidence of a convenience served by the fence enclosing
the disputed property, and the evidence likewise did not support the court’s finding of a
neighborly accommodation. The court thus erred in concluding that Wagonhound had
rebutted Boot Ranch’s prima facie case of adverse possession with a showing of
permissive
disputed property in Boot Ranch.7
FENN, Justice, dissenting.
[¶55] While I concur in the majority’s discussion of the law regarding a fence of
convenience in our jurisprudence on adverse possession, I disagree with the majority’s
conclusions. In conducting our appellate review, we do not reweigh the evidence;
however, this is exactly what the majority has done. Instead of assuming the evidence of
Wagonhound, the prevailing party, is true and giving it every favorable inference fairly
and reasonably drawn from the evidence, as required by our standard of review, the
majority discounts the evidence in its entirety. Tuckness, 2024 WY 42, ¶ 15, 546 P.3d at
1094 (quoting Little Med. Creek Ranch II, 2023 WY 30, ¶ 16, 527 P.3d at 863) (“We are
required to ‘assume that the evidence of the prevailing party below is true and give that
party every reasonable inference that can fairly and reasonably be drawn from it.’”)
[¶56] Boot Ranch challenges the district court’s finding the fence enclosing the disputed
property is a fence of convenience. Thus, the issue before this Court is whether the
district court’s finding regarding the existing fence is clearly erroneous. Kimball, 993
P.2d at 306; Hillard v. Marshall, 888 P.2d 1255, 1260 (Wyo. 1995). Upon review of the
record, there is sufficient evidence supporting the district court’s conclusion the existing
fence is a fence of convenience and not a boundary fence.
[¶57] The majority finds there is an absence of evidence regarding a convenience served
by the fence enclosing the disputed property. It relies on Mader v. Stephensen, a case
where the only evidence available of any convenience was testimony stating “perhaps
[the appellee’s] father had built the fence[]” three feet inside the property line because
that was his habit when building a fence. 501 P.2d at 1254. Unlike the evidence in
Mader, there is more than speculative testimony supporting the district court’s factual
conclusion in this case.
[¶58] In Mader, this Court reiterated “even if plaintiff’s evidence may have been
contradicted in some respects, we will not retry the case or disturb findings of fact by the
trial court[]” regarding findings of a fence of convenience. 501 P.2d at 1254. Here,
although there is contradictory evidence supporting a finding the existing fence is a
boundary fence, there is sufficient evidence supporting the district court’s factual
conclusions. The existing fence follows the high-water mark of the reservoir, and there
are remnants of another fence along the actual boundary line, which are similar to the
fencing materials used to build the existing fence.
[¶59] In Hillard v. Marshall, an owner split land with her brother and a fence was later
built to separate the two parcels. 888 P.2d 1255, 1258 (Wyo. 1995). Seventy-one years
later, it was discovered the fence was not built along the property line. Id. The district
court found the fence was built in its location rather than along the property line because
of the terrain and thus concluded it was more convenient to place the fence where it was.
Id. at 1260. The only evidence supporting this finding was “from a surveyor who had
observed the terrain and from other testimony that showed 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.” Id. The surveyor described the lay of the land and concluded
the fence was placed off the property line because of the topography. Id. at 1259.
[¶60] In Hillard, there was no testimony about who built the fence, why it was built off
the property line, or from someone who said the fence was built along what was believed
to be the property line. Nevertheless, we agreed the evidence was sufficient for the trial
court to conclude the evidence implied a finding that whoever built the fence knew where
the property line was located, and the fence was built for convenience. Id. The appellant
argued the evidence from the surveyor was not enough to rebut a prima facie case of
adverse possession. Id. at 1260–61. The
land on his side of the fence by grazing cattle on the land, which was not suitable for any
other purpose. Id. Although this was how the appellant used the land on his side of the
fence, we found the district court’s finding of a fence of convenience based on the terrain
of the land was not clearly erroneous, and the appellant’s use of the land to graze cattle
was permissive. Id.; see also Kimball, 993 P.2d at 306 (quoting Hillard, 888 P.2d at
1261) (discussing a fence built simply for convenience has no effect upon the true
boundary between tracts of land because a fence of convenience creates a permissive
use).
[¶61] In Rutar Farms & Livestock, Inc. v. Fuss, there was testimony of the existence of
two fences. 651 P.2d 1129, 1133 (Wyo. 1982). One fence was built on a line dividing the
appellants’ land of record from the appellees’ land of record. Id. The trial court found the
second fence was remnants of a fence in various states of ill repair that was situated along
a jagged line roughly parallel to the North Platte River. Id. at 1134. On appeal, based on
our standard of review, we accepted the district court’s finding the first fence was a
boundary line fence. Id. We also agreed with the district court’s ultimate finding that the
second fence along the river was not a boundary fence. Id. We held “[a]n irregular fence,
following the general course of a river and obviously not following what any reasonable
person would consider a boundary line, appears to be a fence of convenience or a control
fence rather than a boundary fence.” Id.
[¶62] Based on the authority set forth above, the majority should affirm the district
court’s finding of a fence of convenience and permissive use under the facts of this case.
Here, there are two possible fences, fence remnants along the boundary line and the
existing fence following the high-water mark. As to the fence remnants along the
boundary line, Dustin Ewing, Wagonhound’s ranch manager, testified he noticed a
remnant fence or things that looked like lined-up fence posts. Brad Neumiller, a licensed
surveyor, testified there were rocks with wire around it along the remnant fence, which in
his experience indicates there was a fence there at one point. Both Mr. Neumiller and
Shane Cross testified rocks with wire around them are known as anchors or deadmen.
Shane Cross testified Boot Ranch currently uses those same deadmen as found along the
remnant fence for fence lines on Boot Ranch, including fence lines on legal boundaries.
Mr. Neumiller testified as he walked along the remnant fence, he saw wood posts still
standing, wood posts on the ground, and steel t-posts. He testified some of these
remnants were in places close to the boundary line.
[¶63] As to the second fence, identified as the existing fence, Mr. Neumiller, Mark
Norem, and Shane Cross all testified the existing fence follows the high-water mark and
does not run along the boundary line. Mr. Neumiller testified the existing fence is a four-
strand barbed wire fence built of t-posts and wood that is sometimes tied into existing
rocks and trees. He stated the existing fence does not run in a straight line and meanders
like it’s following along something. Mr. Norem testified the existing fence does not run
in a straight line and it meanders a lot because “[i]t’s pretty obvious it’s the water level of
the reservoir [that] had something to do with where they put the fence.” Mr. Norem
further testified the existing fence avoids natural obstacles and uses trees to brace the
fence, as well as rocks to hold down the fence. Richard Cross testified the existing fence
does not run in a straight line and avoids obstacles, such as rocks, trees, and other rough
terrain.
[¶64] Dustin Ewing and Shane Cross both testified the water level of the reservoir
fluctuates. Shane Cross testified Boot Ranch put in panel fences that are only exposed
based on the water level of the reservoir. He also testified there is a road that terminates
into the reservoir, and the road becomes more visible depending on the water level.
[¶65] Whether the existing fence is a boundary fence or merely a fence of convenience
is a question of fact that must be addressed by the district court. Graybill v. Lampman,
2014 WY 100, ¶ 40, 332 P.3d 511, 523 (Wyo. 2014); Hillard, 888 P.2d at 1260. As we
have continually reiterated, we do not set aside the district court’s findings following
bench trial even if we might have reached a different conclusion. Rutar Farms &
Livestock, Inc., 651 P.2d at 1133; Doenz v. Garber, 665 P.2d 932, 937 (Wyo. 1983).
Based on the entire record, I am not left with a definite and firm conviction the district
court’s findings are mistaken or unsupported. There is sufficient evidence supporting the
existing fence was built out of convenience along the high-water mark of the reservoir.
The existing fence was not built in a straight line and instead meandered along the course
of the high-water mark of the reservoir, which was known to fluctuate in its water level,
and avoided obstacles and other rough terrain. Additionally, the remnant fence located
along parts of the boundary line still had wooden posts that remained standing and
contained similar anchors or deadmen as those used in the existing fence. This evidence,
when viewed in a light favorable to Wagonhound, supports a reasonable inference that
those who built the existing fence knew the fence was not built along the boundary and
instead was built out of convenience for the purpose of following the reservoir along the
high-water mark. Based on the foregoing, I would find the record reasonably supports
the district court’s factual finding the existing fence was built out of convenience and
would affirm the decision.
Notes
by their first names.
originally purchased Boot Ranch in 1974, and it became his sole property in 1981 after his wife’s death.
He transferred the ranch to Boot Ranch, LLC in 2012 and currently operates the ranch with his adult
children, Shane Cross and Jamie Cross, and a few employees.
the ranch to Wagonhound.
ownership interest in Tomahawk Ranch during that period.
convenient and cost-effective location. The court concluded Mr. Ewing had “no definitive explanation as
to why the fence was built where it was[,]” and it gave his opinion “little to no weight.”
served by the fence. Because the record contains no evidence of who built the fence or when, we can only
speculate as to why it follows the high-water line, including the possibility that whoever built the fence
believed that to be the true boundary.
reverse on other grounds, we do not address that issue.