Hovendick v. Ruby

(Wyo.1991). "Accordingly, liquidated contractor damages in the amount disputes, $17,550, private a court must enforce the case for a revi- remand parties the contract as drafted and sion of the judgment consistent with this contracting party not relieve a opinion. from anticipated or actual difficulties undertak contract, pursuant

en unless the grounds

contract is voidable on such as

mistake, unconscionability." fraud or Hol Lowman, ly Holdings Hill 226 Conn. (1993) A.2d (citing (Second), §§

Restatement Contracts (1981)). 2, § Moreover, and vol. Stanley HOVENDICK Lillian signs generally "[olne who a contract can Hovendick, wife, husband and ground not avoid it on the that he did not Appellants (Defendants), terms, it, attend to its or did not read or that he took someone's word as to what it contained." First State Bank Wheat RUBY, (Plaintiff). Apрellee Willis Bank, v. American Nat. No. 99-197. general Neither is the contractor's argument Supreme Wyoming. Court of persuasive by commencing work after 7, 1998, date, April the subcontractor Aug. 2000. right liquidated waived his to claim that dam-

ages only apply pursuant would to the terms fact,

of the contract. opposite is true. general right contractor waived its

rely liquidated damages provision on the

when it allowed the subcontractor to com- April

mence work after 1998-the contrac-

tually specified liquidated damages date- requiring

without change order or amend-

ment to the contract.

The award liquidated damages was

based days allocationof all of the

delay after the contract was terminated until project accepted complete by provision

owner.3 No in the provid contract

ed for such an damages. allocation of Ab

sent such a provision, contract the district inappropriately

court developed its own for

mula liquidated damages to calculate to be against

assessed Snyder, the subcontractor.

992 P.2d at 1089. affirm portion

We of the district judgment

court's general which awarded the $14,858.86

contractor for the costs incurred cure the defects caused the subcontrac-

tor, portion reverse of the district

court's general which awarded the project complete by August was deemed the owner. ‍​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​‌​‌​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌‌​​​​‌​​‍10, 1998, was the date the contract was terminаted, 1, 1998, and October was the date A. Nich-

Representing Appellant: Robert Riverton, olas, Wyoming. Gist, D.

Representing Appellee: Richard Lander, Wyoming. THOMAS, LEHMAN, C.J., and

Before HILL, MACY,*GOLDEN, and JJ. GOLDEN, Justice. granted

The trial court Ruby (Ruby) on his ad- Appellee Willis parcel acre possession claim of an 18.94 verse Stanley Lillian Ho- Appellants to which (Hovendicks) legal hold the title vendick * 2, 2000. Retired June apparently is a true sep- determining twenty

record after for a year period, Ruby arating had believed that a fence 2Lots legal description and 3. The boundary represented the actual south of property Hovendicks' indicates its primary true pre- northern line. The issue Popo is the middle of the River, appeal summary Agie sented is whether disputed and the fence is south of judgment granted can be on his belief with- boundary. considering out whether that fence is a fence In the disputed parcel of land was of convenience. An present- additional issue actually part of the river. As river water ed is whether an oral contract to settle the diverted, disputed was emerged but dispute is enforceable. swampy and of little value. Hovendicks belief, Ruby's We hold that while establish- claim represented that Frank that when he ing presumption possession, of adverse re- ranch, bought disputed par- land was quires consideration of whether the fence tially disputed enclosed placed fence was a fence of Finding conveniencе. that south of keep the channel to cattle out of the genuine issues of material fact exist concern- son, Frank, Gary river. Frank's submitted a ing fence, the nature of the we reverse the supplemental indicating affidavit that his fa- granting summary judgment order and re- ther knew the boundary true line was the mand for trial. We also hold that the district channel, middle of the river's north but that ruling court's on the issue of the oral con- swampy condition of the land dictated tract is in error and remand for further that disputed placed fence be south of the reconsideration. south branch channel. Frank is also said to represented have to Hovendicks that he ISSUES Ruby knew used the but did not care parties agree single that the issue becаuse the land was of little value. The our review is whether the district court erred record does disputed not indicate when the as a granted matter of law it summary when actually fence was erected and whom. judgment Appellee. to The Hovendicks claim disputed fence is a fence of convenience and was never FACTS boundary intended aas fence. Ruby purchased his ranch from the Veach- Ruby ranch, bought When his he and ines 1978. The ranch is located in Fremont inspected parts Veach various of the ranch County Hudson, between Lander Wyo- fences, and much perimeter of the ranch ming. purchased Part of the ranch land is a including Rogers Ruby Island. claims that large Island, island Rogers known as made reprеsented Veach to him that he owned all up lying of land between channels of the disputed the land north of the fence and Popo Agie Rogers River. Island includes Frank owned all of the land south of the parts of Lots 8 and 4 of Section 85. In disputed 1993,Ruby fence. From 1978until purchased Hovendicks their ranch from Bill and Frank repaired both and maintained the parts 2, 8, Frank. The ranch lies in of Lots fence. disputed The location of the fence of Section 35 and included 18.94 acres changed was never except in adjacent the 1980s when Rogers Ruby lies to Island that gap Frank built a water for his cattle possession. now claims adverse As the water, reach shows, changed part and he map disputed attached 18.94 acrе fence from pole barbed wire to a fence. parcel Ruby's is west legal property Ruby boundary. changes, To the claims that for each disputed par- north of the of these Popo River, cel Frank Agie permission lies the asked for and to the south and received his lies a channel of the river. South of the making before changes. these He claims channel is a fence runs east from 1965 to to west considered the Ruby fence, claims he believed was the true fence to be the and from fence, present, and which we shall always call the 1973 to has considered disputed disputed fence. The connects the fence to be the fence between to another fence that runs north and property south and Frank's. Ruby, appeal and this granted in favor of learned Hovendicks followed. parcel, disputed he owned

believed Ruby that Hovendicks proving and after Ruby's title, claim that Hovendicks legal

had DISCUSSION Ruby may have attorney suggested that Review Standard Hovendicks possession. claim for discussing their after claim that later Summary proper judgment claims, Hovendicks ownership respective genuine of material ‍​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​‌​‌​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌‌​​​​‌​​‍there are no issues when split the Ruby mutually agreed to prevailing party is entitled fact and the half of it. Ho- taking about one parcel, each Mountain as a matter of law. and, the fence moved vendicks then Johnson, Cement Co. exclusively portion years, five used 56(c). next 1994); reviеw a sum We W.R.C.P. Hovendicks property. paid taxes on the and light the judgment in the same mary planted grass seed and acres cleared several court, and using the same materials district claim that Hovendicks pasturing horses. for "We examine following the same standards. agreement this parties abided both fa vantage point most the record from years. motion, five opposing the party to the vorable benefit of all give we died, closed and his estate In Frank may fairly be favorable inferences contend that in 1998. Hovendicks Gold, Nines the record." Four drawn from Frank died before assert- waited until after Inc., Constr., 809 P.2d Inc. v. 71 business Ruby claims that his ing his claim. judgment (Wyo.1991). Summary serves him son caused partnership with Hovendicks' eliminating trials whеre purpose formal filing his removing fence and delay Blagrove are involved. questions of law He filed that possession claim. adverse Inc., Mechanical, 934 P.2d v. JB an- 1998. Hovendicks claim on June Simmons, P.2d (Wyo.1997); England v. Ruby per- granted had that Frank swered grant a We review that he had denied use of missive summary judgment by deciding a it, a sur- asserted that adversely possessed no deference to the de novo and afford law they conclusively that vey demonstrated question. ruling on that district court's disputed parcel, and claimed owned the Ass'n, 912 P.2d v. American Auto. Sammons to divide had an oral parties P.2d at (Wyo.1996); Blagrove, 934 parcel. disputed ownership of the summary discovery, motions After Presumption of Adverse Possession filed, Ruby supportеd his were and the affidavit of his affidavit motion to establish adverse order The trial Frank, Bill Frank's son. Gary claiming party must show possession, Ruby believed that he had notorious, found actual, court open, exclusive and con and that between the land purchased property possession tinuous of another's disputed land to had used right or and under claim of which is hostile horses, had used it pasture bulls must be for the color of title. Possession pe- During time calving season. during years. statutory period, ten When there is riod, permission to contrary, had twice asked showing person Frank a no clear to the court further found that occupied the fence. The the statuto alter «who has the land for disputed indicating that he ownеd the Ruby's ry period, plainly in manner belief a thereof, agree- and the oral continued until as the owner that he has acted ownership disputed pos presumption to divide a of adverse ment entitled to session; Ruby's op consequence because and the burden shifts land was of no possession. posing party explain matured in ten such possession had adverse land and ten years purchase of the However, proper after his use of the a claimant's permissive, then he ty their is shown to purchased years before Hovendicks Summary judgment was possession. Frank. title acquire ranch from cannot Marshall, Hillard v. change possession 1258-59 "cannot into ad- (citations omitted). (Wyo.1995) long posses- versе title no matter how continued, sion in the absence of The district court determined that clear, positive a and continuous disclaim- belief, mistaken, Ruby's although er and disavowalof the title of the true fence was a fence and the brought owner home to the latter's fact that on two occasions asked his knowledge; there must be either actual permission to alter supported notice of the hostile claims or or acts ruling adversely possessed had hostility declarations of so manifest and disputed parcel since 1978 and the statu notorious that actual pre- notice will be tory period Ruby's matured in 1988. mistak change sumed order to permissive en belief does not posses establish adversе or otherwise non-hostile into sion; presumption it establishes a of adverse one that is hostile." possession: Turner, Kimball v. occupied a man piece When has 1999) Hillard, 1261) (quoting ground, though under a mistaken belief as (citations omitted). boundary, period pre- to the true for the case, Ruby In this has established a openly, notoriously, scribed law exelu- presumption however, possession; of adverse sively in plainly indicating and a manner presented Hovendicks have evidence that the thereof, pre- that he acted as owner the disputed fence was a fence of convenience. be, sumption should in the absence of ex- "Whether a a boundary fence is fence or planatory showing сireumstances the con- merely one of convenience is a of trary, occupied adversely that he the land Kimball, fact." 993 P.2d at see also right, and under a claim casting of the Hillard, 888 P.2d at 1260. We find that explaining burden possession upon of such Hovendicks' factual evidence on this issue is person disputes the right. who grant sufficient summary reverse the of Hillard, (quoting City 888 P.2d at 1259 of for trial remand on this issue. Sturm, 494, 517, Springs Wyo. Rock Hovendicks next raise the issue of (1929)). P. 915-16 agreement the effect of the 1998 oral showing Hovendicks claim that facts land, disputed that, contending divide the disputed that the fence is a fence of conve although a trial Ruby could determine that satisfactory explanation nience are a pos adversely possessed disputed had land in showing adversely session did not whether, a factual issue exists in land, possess disputed and where those parties mutually agreed to divide owner demonstrated, facts are summary judgment ship of the land. contends that improper. is Hovendicks contend that mate prohibits agreements statute of frauds oral questions rial of fact exist whether the fence for land. boundary was a fence or a fence of conve frauds, Wyo. The statute of Stat. Ann. requiring nience reversal of the order of (LEXIS 1999), § provides 1-23-105 in rele and remand for trial. part: vant (a) following every haveWe agree- described the effect of a cases agreement, ment shall be void unless such presumption conveniencе on a of adverse thereof, or some note or memorandum possession way: in this in writing party subscribed circumstances, In some enclosing in charged therewith: a fence flag" is sufficient to "raise the of an However, kept adverse claimant. a fence (v) Every agreement or contract for simply for convenience has no effect estate, the sale of real or the lease boundary the true between tracts of land. (1) thereof, year. for more than one This is so because a fence of convenience use, permissive creates a permissive and a "The contract for the sale of real user contemplated by estate as the statute is one possession had estate, Ruby's for adverse claim {or real property or transfer not contract need equivalent." in the oral money or its matured price a fixed appeal, neither Stovall, at all. On P.2d be considered Miller v. of frauds analyzes P.2d whether the statute 1986), grounds, party on other overruled Allen, whether (citing agreement Allen v. or (Wyo.1991) applies to the oral Assuming (Wyo.1976)). part performance are es Davis' elements agree alleged oral deciding that the tablished, without does not the limited record Ruby involved Hovendieks further review. ment between allow our proper consideration conveyance of land for however, find, the trial court We frauds, we subject statute of and is deciding that the mattеr of law erred as a favorably to referred we that Miller note consequence, no alleged contract was of oral proper of real on the law authorities several legal ground in the: proper and we find no ty as follows: HC, affirming it. In Re record § Property Thompson on Real [6 Accordingly, our (1962)] clearly that "oral p. 508 states requires that we must of review standard known changing agreements vantage point from the examine the record of frauds." the statute lines violate opposing the party * * favorable to "* most if the rationale is of all give the benefit motion and dispute, an oral or in not doubtful line is may fairly be inferences favorable invalid, change for its point to Hovendicks from the record. drawn land, within involving an actual transfer agree- * * *" Tiffany, a result of the oral evidence The Law of the statute. ment, their half of they took ed.1939). (3d. 653, p. § Property Real newly estab- fenced on Miller, Hovendicks contend at 802. line, cleared brush lished part perfor- parties' substantial horses, pasturing planted grass seed it enforceable makes of the contract mance there was paid denies that taxes. of frauds. despite the statute agree that this evidence agreement. oral We part full or held that either haveWe question par- presents factual whether the sale of land of a contract for performance agreement an oral divide ties reached of frаuds defense. the statute will avoid agreement oral is unen- land. Whether that Davis, Davis v. of the statute of frauds forceable because however, part performance, The doctrine requires we of law that presents the statute of applied to avoid will not be summary judgment and grant of reverse the sought unless the oral frauds the issue for reconsideration of remand just the ele and certain and be enforced is in Miller and Davis. light our decisions part payment or full possession and ments of granting beyond pos The order proved are equivalent or its Davis, consider- remanded for further contrary. reversed and findings to the sibility of have divided parties not show ation of whether The record does 855 P.2d at 347. contraсt, ownership of the land oral of frauds as a the statute raised claims, all the case is that does not settle in traverse of Hovendicks' motion defense to trial, of whether claiming for trial on the issue remanded summary judgment and for is a fence or argument enforceable. the oral fence of convenience. light of its decision trial ruled court THOMAS, Justice, dissenting. granting summary order Ruby and the clarification of that order that Respectfully, I must dissent from the reso was entered later. The correct resolution of according lution of this case majority by this case invoking is reached the doctrine opinion. I am satisfied the trial court recognition acquiescence "of of a bound correctly entered in fa line," ary Ruby, by vor of rely upon albeit I was utilized this court in a different correct, legal ground Brown, presented from that in Wyo. Carstensen v. 236 P. order frequently held in any pais. in It is (1925). obviates That doctrine conduct, by it is neces estoppel a fence of fact about to work an material question of against whom it is sary convenience, acquisition of supports the knowledge the true should have Ruby, in addition to the doctrine claimed by

title Estoppel Ed.] boundary (Bigelow [16th on respect to the con possession. With adverse 674) and, in v. said Carstensen p. as Hovendicks, clear by there tract claimed Brown, P. where Wyo. [at] performance ly not substantial have ignorant thereof and parties are both Ruby, Hovendicks to obligation owed facts, no equal opportunity to know the an correctly ignored that court the trial however, said, may estoppel It arises. entered affirm the Order I would claim. connection, many long that in states in this court. trial accepted a acquiescence is as substitute applied the recognized and first This Court facts, estoppel knowledge and an acquiescence recognition "of doctrine by acquies may arise in cases of mistake Carstensen, at 236 P. boundary line" in a cence, change of situa in connection with a invoked to award The doctrine was 520-521. Bigelow, supra, p. 675. See Lehman tion. Brown, though in an earlier even title to Smith, where 168N.W. v. 40 S.D. case, Carstensen оpinion in the same doc between the two some distinctions (1919), Brown, Wyo. 185 P. pos pointed out. adverse trines were that there was not suffi- had ‍​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​‌​‌​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌‌​​​​‌​​‍ruled the court according to the requisite, it is session claim of adverse support cient evidence decisions, including Fieldhouse majority of case The result of second possession. Wyo. P. Leisberg, City Springs Rock was described up a marked an intent to claim to there be (1929), Sturm, P. Wyo. to where line without reference division on "diametrically opposite to that reached be, and, appears that if it the true line appeal." the first true only an intent to hold to the there was fashion, usual, Justice diligent In his adverse, line, and no possession is not critically and examined thе doctrine Blume may be obtained. by prescription title explained the doe- thoroughly. opinion Note, 827; Note Ann. Cas. 15 Ann. Cas. acquiescence recognition and trine of Indeed, 1912A, 450; 2 C.J. 139. some say- distinguished possession it from adverse have held that no title the authorities ing: acquired can mistake, although greater acquies through a recognition and The doctrine of many least some mistake upheld by number of cases line is cence of of anoth 244; Tiffany, possession is taken Real exists when authorities. 9 C.J. Note, Ed.) (2d property. 21 L.R.A. 831. Such Thompson § on er's Property this, § It sometimes Property, holding practically results Real possession ad in, necessary to make intent acquiescence or as to as referred (Ibid), intent of, implied akin to a felonious an verse is location or as practical impossible gain virtually making it to to, boundary. Considering thus agreement as a opin any prescriptive title. The trend of jurisdictions in the various Unit all of the (N.S.) 930, States, in a note to 33 L.R.A. in a chaotic ion is said the doctrine is still ed disturbing person whose condition, against a yet one undertaken to be and no has pe for the definitely have existed the cireumstances visible boundaries point to out Indeed, applicable. it is Some of the under which of limitations. riod of the statute distinetly re only authorities have long acquiescence some of the consider authorities necessary it is to may pudiated the view that boundary, of a as еvidence boundary, and beyond § the true Tiffany, supra, 295. Oth claim contradicted. what he be occupies and claims may if a man say agreement an er authorities own, possession is acqui lieves to be his presumed from such be inferred or expi ripens into title Note, The doc adverse 110 A.S.R. 685. escence. v. statutory time. Yetzer of the occupy ground ration a middle trine seems 122; 130, Thoman, Am. 91 Dec. estoppel 17 Ohio St. possession between adverse 1127 Pearce, recognition 21 Am. Dec. French v. 8 Conn. of the line established as the 680; Idaho, Urquides, Bayhouse v. 17 true line." 1066; Notes, P. 15 Ann. Ann. 105 Cas. Carstensen, 236 P. at 519-20. Cas.1912A,451; Ramsey Ogden, v. 23 Or. court, opinion In the course of the P. It would seem that in 778. Ohio probably Justice Blume alluded to all of the recоgnition and Indiana the courts treat authorities, scholarly then extant including acquiescence boundary in a line for a disagreement A among treatises. authorities period equal to that of the statute of limi requirement dispute as to a for a or uncer- possession tations the same as adverse tainty respect to the line was Thoman, period. supra; a like Yetzer v. Further, noted. a distinction was made be- Co., Helbling Realty App. v. 2 Ohio [Werk] passage tween the of time in the case of [(1913)]; Rutledge Presbyterian v. an express agreement as to a line as Church, 177; App. Kraft, Epstein 3 Ohio v. distinguished (N.S.) 251; implied agreement. from an 16 Ohio Cir. Ct. Thomas v. Acquiescence period a short of time Webber, (N.S.) 301; Scheigert 13 Ohio N.P. perceived demonstrating would not be as a 670; Boyer, Ind.App. v. N.E. recognize permanent clear intention to a Mahrenholz, Rosenmeier v. 179 Ind. boundary, acqui- but the continuation of such 721; Dyer Eldridge, 101 N.E. 136 Ind. period equivalent escence for a of time But, according 36 N.E. 522. most courts, it, possession statute of limitation for it is not identical with required majority seems to have been the two doctrines are treated as distinct. acquiescence of the authorities. The Iowa, must be County, Miller v. Mills 1038; Iowa, bilateral, Morley N.W. Murphy, knowledge and with or notice of the Stearns, party. claims of the other It in 63; 162 N.W. Hubbard v. 35; Harris, opinion context Ill. went on to state: Brummell v. 148 Mo. Gebhardt, 50 S.W. Schwartzer v. Thus the existence of a division fence 99, 104, 157 Mo. 782. Lehman S.W. See requisite does not alone show the facts. It Smith, supra. pointed The distinction is kept up only for the convenience of out in the last-cited case [Schwartzer] parties. C.J. But we think we follows: may safely say recogni- that when there is "It possession is well settled that acquiescence parties tion and in a proprietors of coterminous under a mis in dispute uncertain or in line, line, ignorance take or in of the true period equal the first instance, for intending between them and without prescriptive period, least to the under facts line, beyond claim the true will not work and circumstances which should be consid- disseisin, and set motion the statute equivalent express agreement, ered to an either, of limitation favor of but it is and the land on each side of the line is equally as well settled that when such occupied by respective parties as their line, proprietors, ignorance of the true good why parties no reason exists agree upon permanent fix and bound should not be bound to the same extent as line, ary is taken accord though express agreement such had been ingly, agreement binding upon out, particularly and carried when made them, claiming and those under them. facts exist which would make other Moseley, Jacobs v. Mo. S.W. holding inequitable. an 135. Such is not within Carstensen, 236 P. at 521. Taylor Zepp, the statute of frauds. v. 482; Smith, 273; quoting 14 Mo. v. Blair 16 Mo. After from other authorities Baker, 218; support proposition, opinion Turner v. 64 Mo. Actоn v. this then Dooley, necessary explains may 74 it Mo. 63. Nor is while there be room for respect that such an should be shown the rule of mutual mistake evidence, acquiescence recognition, direct but it be in the doctrine of and normally simple ferred from the acts and conduct of the a mutual mistake as to the parties, long acquiescence boundary and their and true would not interfere with the 1128 Wyo. 67 216 P.2d Erickson, of Hudson v. holding The

application of the doctrine. Szumowicz, (1950); Wyo. in then is announced the context of Johnson the court (1947); 179 P.2d 1012 State v. Vander a recitation the material facts: of (1933); Wyo. koppel, 45 19 P.2d 955 and rule mentioned is We think that Carstensen, Wyo. 274 P. Porter in at bar. That applicable the case (1929). in Nonе of these cases arose unques- boundary line uncertain is was summary judgment, a all the context of and tioned; uncertain now. With it is even distinguishable of them were found to be in interest of predecessor that in view the This from Carstensen for various reasons. a This was about plaintiff erected fence. on of ac case was not decided the doctrine Greet, predecessor in defendant's quiescence recognition, but it indeed and interest, in ac- his homestead established correct, legal ground as a serves line, defen- cordance with that and so did we can affirm the trial court. We will affirm dant, bought Greet in 1904. when he of if grant of it can be 1904; purchased land in he Plaintiff his any ground appearing legal on in sustainеd Greet, subsequently knew that and defen- Olson, the record. Franks v. 975 P.2d dant, in of the land east were (Wyo.1999); Newberry v. Board Coun fence, presump- and north of the division ty County, Com'rs Fremont tively claiming ownership thereof. Jackson, (Wyo.1996); v. Town jointly parties in 1904 and 1905 built an Duncan (Wyo.1995); Inc. 903 P.2d Bidache ditch, irrigating partially on defendant's Martin, (Wyo.1995); land, to irri- which was used defendant Explora v. Louisiana Land and fence, by Moncrief gate the land and east of Co., tion 861P.2d irrigate plaintiff to land west of the fence. jointly; kept up The fence was each of the evidence, analysis in An the form of repair parties doing more or less work on affidavits, ‍​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​‌​‌​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌‌​​​​‌​​‍in in the several the record it time to Plaintiff and defen- from time. case discloses the absence of admissible early exchanged dant farm work at least as ques- in or relevant evidence that the fence helping as the former often the lat- tion was a fence of convenience. Some ter farm said land on the east side of the that evidence relates interaction between fact, plaintiff helped dividing line. de- Frank, Bill who was the Hoven- breaking up fendant in some predecessor in dicks' interest. Other evi- putting in it in The wit- cultivation. Bill dence relates to interaction between Ilg plaintiff him ness testified that showed Veach, Ruby's pre- F.F. who was boundary northwest of the line on the decessor in interest. What evidence there is quarter of a mile west of latter's proposition is consistent with the part of the fence mentioned. northern boundary the fence was fence. thing in This was effect the same as affidavit, In his Willis stated: though the fence in had been bought I in After the Veach ranch line, was, pointed out as a Bill Frank ranch until sold his to the De- true, recognition a distinct the fence I had [Hovendicks] fendants From was the true line. 1901to many Bill Frank talked to times about line, dividing 1919the fence stood as a original fence located south of such, questioned at least so never Many river channel. of these conver- knowledge, far until as came to defendant's place sations took the fence itself. shortly brought before this suit was Many concerned re- conversations January, 1919. my pairing the fence because cither his or Carstеnsen, 236 P. at 523. gone through livestock had it or the fence recognized Wyo gotten damaged by game or This doctrine still is had wild just general ming, although applied it been in the winter conditions. From time has not Turner, Bill following cases. Kimball v. to time between 1973 and both (Wyo.1999); repaired got I v. Transcontinen Frank and the fence when it Coumas (1951); Wyo. Garage, tal 68 230 P.2d 748 damaged. discussing fence it When location, practical agreed that in a more convenient and always understood and was fence, Gary original boundary Frank states that current fence existing "[the the the separated that fence between his was the dad's use of fence, was the any property neighbors proper- mine. He never used of the his from his [sic] land and I my of the fence and nevеr land on side ty and visa versa." He further states that he practical experience knows "from as a ranch- the any the land on his side of used of we, repaired, many years placed or either of us er that fences are fence. When for fence, they always kept it was the same where are most convenient and most years ago place except practical operation that about 15 or 16 if the actual along Bill I were out line is either not accessible or not when Frank and fence, if practical." gives opinion Bill Frank asked he could then He his me piece of the across the river the fence in was so constructed. Fol- move a fence issue gap lоwing a water to water his the recitation of a of so he could have number facts * * designed support opinion,Gary livestock. Frank * * * * by saying, his second affidavit concludes me he never Bill Frank told was, placed it most where any ownership any "Itlhe of the Dis- claimed likely, practical because that was the most puted he Land and that knew place put it." bought ranch from in people he his Janu- ary never claimed interest century, quarter For at least a of a it has Land either. Disputed Wyoming been the rule in that: affidavit, provided Ruby, motion to be [flor In his initial successful, prima Gary reported complained the movant must make Veach showing genuine facie that no issue of ma trespass by a rodeo bull owned about the fact terial exists. Clark Industrial Co. father, Frank, Bill told his father to his and Inc., Gary Springs, keep off of Veach's land. Steamboat 818 P.2d his bulls (Wyo.1991)(quoting TZ Land & Cattle reported that on another occasion Frank also Condict, (Wyo. complained a fire started on the Co. v. 795 P.2d Veach about 1990)). foliage The burden thereafter shifts to Frank land that burned some of Gary opposing to demonstrate the ex on Veach's land. Frank also stated thought genuine istence of a issue of material fact. his father had he owned the McCoy, (Wyo. requested permission Weber v. 950 P.2d land he would not have 1997). gap, and would to build the water he have argued complained. with Veach when Veach Inc., Spectrum, 981 P.2d 491- Gordon Gary Frank stated that fence that (Wyo.1999). See Wells v. Board Trust ever divided his father's ranch from the County Dist. ees Laramie School No. owned ranch land Veach lates WOTCO, (Wyo.2000); Hittel v. P.3d upon by Ruby. was the fence relied Inc., (Wyo.2000); 677-78 996 P.2d Trenchard, Wood v. opposing Summary the Motion for 1976). Judgment by Ruby, filed the Hovendicks adequately sup presented Gary a second affidavit from After a movant has Frank, supplement ported summary judgment, which was "intended to the motion for clarify my opposing party forward earlier affidavit and otherwise must come competent I set forth additional facts that have been evidence admissible at trial purposes asked to set out for lawsuit showing genuine there are issues of mate 56(e) Wyo..R.Civ.P. Hyatt Mr. rial fact. between Hovendicks." Big The affidavit is a contrived effort to structure Horn Sch. Dist. No. genuine opposing party must issue of material fact. After stat- material,

ing understanding property affirmatively specific forth that the line set opposition to a motion for sum facts Bill was the Frank's ranch middle of River, mary Country Big Popo Agie judgment, Cody Boehm v. south branch of the Commerce, noting you put could not a fence in the Chamber (Wyo.1987), rely only upon alle- placed the river and that it must be and cannot middle of 1130 Co., 671 P.2d Blackmore v. Oil pleadings, Hyatt, 636 P.2d Davis gations 334, my (Wyo.1983). judgment, the 337 conclusory or mere statements any produce factu Hovendickshave failed to satisfy op- opinions are insufficient to Boehm, party's 748 P.2d al matter to overcome the direct

posing testimony of burden. at 710. was a fence. the fence Corp., Sinclair 887 P.2d Downen v. Oil respect to the oral contract that the With (Wyo.1994). Wyoming of cases A number 519 upon a divi rely Hovendicks as establishing apply E.g., rules. v. invoke and these Simek lands, majority opin sion of the Mountain, Inc., Rocky 977 P.2d points such a contract is within ion out that County (Wyo.1999); Board Smith v. of excep presents of frauds. It the statute P.2d County Sublette 891 Com'rs of of tion to avoid the statute of frauds that we (Wyo.1995); v. Care Centers Sanchez Life of performance. recognized part as Davis have America, Inc., (Wyo. P.2d Davis, (Wyo.1993). It 855 P.2d Lubnau, 1993); Moore only points then to those facts that demon (Wyo.1993); Jorgenson, P.2d Oatts v. advantage strate the Hovendicks took (Wyо.1991); TZ Land Cattle 110-11 & they oral use of the land claimed under the Condict, P.2d Co. v. agreement. Nothing any perfor reflects Nord, 1990); and Claassen by any obligation mance the Hovendicks of (Wyo.1988). Ruby pursuant alleged oral owed to the con the record in this Applying these rules to clear, however, tract. It is the Hoven- case, majority clear does not it is tract dicks are the record owners of the and the first his affidavit only way they per question, and the could affidavit, Gary prima made out a obligation alleged under the oral form their possession. facie case for title convey Ruby part contract would be to to majority opinion alludes to conten While they belong was to to him. of tract assert plead found in their tions the Hovendicks nothing in the that would There is record ings, informa source of factual performance part tend to show this on the of requirements tion that could meet the Hovendicks. 56(e)1 is the second affidavit of W.R.C.P. reasons, I For these would affirm the Or- Gary replete conclusory Frank. It is granted summary der of the trial court that Any opinions. statements and factual matter Ruby. 56(e) that would conform to W.R.C.P. is nei To the extent ther relevant nor material. the existence of a fence of convenience inferred,

might require be his affidavit would inferences,

sequential fail which would Roosa,

rule in Matter Estate found Even more

egregious is that still these inferences ‍​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​‌​‌​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌‌​​​​‌​​‍would possess requisite quality to

not meet the testimony by Ruby in

direct offered his affi Roosa, davit. Matter Estate 753 P.2d at 56(e) provides: W.R.C.P. interrogatories, sitions, answers or further summary judg- affidavits. When a motion for (e) affidavits; testimony; Form de- further supported provided in ment is made and required.-Supporting opposing affi- fense party may not rest personal knowledge, this rule an adverse davits shall be made on allegations the mere or denials of the adverse shall set forth such facts as would be admissi- evidence, party's pleading, party's affirmatively but the adverse re- ble and shall show sponse, by provided competent testify affidavits or as otherwise the affiant is matters stated therein. Sworn certified or forth show- rule, in this must set facts specific genuine copies papers parts ing issue for If of all or thereof referred to that there is trial. respond, so sum- in an thereto or the adverse does not affidavit shall attached mary judgment, appropriate, permit affi- shall entered served therewith. The court party. opposed against supplemented by depo- the adverse davits to be or

Case Details

Case Name: Hovendick v. Ruby

Court Name: Wyoming Supreme Court

Date Published: Aug 22, 2000

Citation: 10 P.3d 1119

Docket Number: 99-197

Court Abbreviation: Wyo.