Daily Development for Wednesday, December 19, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; PERMISSION; FENCES: A "fence of convenience" gives rise to a presumption that occupancy of land on the other side is permissive, and not adverse, while a "boundary fence" gives rise to the presumption that occupancy is adverse.

Hovendick v. Ruby, 10 P.3d 1119 (Wyo. 2000)

Defendants held title to a parcel of property whose boundary ran down the centerline of a river. At some time in the past, apparently at a time when the area surrounding the river was marshy, someone built a fence some distance into defendant's land on defendant's side of the river. No one knows who built the fence, and there is nothing in the record to show whether predecessors of either plaintiff or defendant exclusively maintained the fence.

Following construction of the fence, plaintiff and plaintiff's predecessors for many decades pastured animals on their side of the fence and conducted other ranching activities. Over time, parties on both sides of the fence engaged in activity that drained the water and created valuable dry land in the area near the fence.

Plaintiff testified that he had always believed that the fence marked the boundary of his property, and claimed that defendant's predecessor had sought his permission on several occasions to make alterations in it. Defendant claimed that he and his predecessors had viewed plaintiff's occupancy as permissive.

In 1993, the parties' disagreements became evident to both sides, and they adopted a "compromise" whereby the fence was moved into the middle of the disputed area and each side used half. Defendant asserted that he had made improvements to his side and paid the taxes (presumably he had paid even more taxes prior to this point, as his legal title had included the entire disputed parcel.) There is nothing in the case report to show whether plaintiff ever paid any taxes on the land.

Later, in 1998, plaintiff decided that he did not wish to abide by the 1993 agreement, and argued that he was free to repudiate it as it had not been in writing. Defendant claimed that plaintiff had never been in adverse possession, but that his possession was permissive. In any event, defendant claimed that its improvements to its side of the fence constituted "part performance."

Following discovery, both sides filed motions for summary judgment and the trial court granted judgment for plaintiff. Defendant appealed.

On appeal: Held: Reversed: There remain significant issues of fact to be resolved regarding the question of permissiveness.

The appeals court commented that normally open and notorious possession is assumed to be adverse. The court did not appear to question whether there were sufficient acts of possession here, but indicated that the presumption of adversity is defeated if the possession is permissive. It then went on to state that, based upon earlier Wyoming precedent, permission on territory cut off by a "fence of convenience " is presumed to be permissive. The court concluded that there was sufficient information gleaned from discovery to raise a question of fact as to the true character of the fence here.

The court then turned to the question of the agreement regarding the movement of the fence in 1993. Even if the plaintiff had established adverse possession, defendants argued, plaintiff's rights were compromised as to the area on their side of the new fence erected in 1993, and they at least owned the area demarcated by that fence. The court responded that the doctrine of agreed boundaries existed in Wyoming, but (and this is uncertain) apparently concluded that this situation did not fit the doctrine because it did not involve a "boundary that is . . . doubtful or in dispute." (Don't ask me - I just report 'em.)

Nevertheless the court allowed that it was possible that the doctrine of part performance would support enforcement of the agreement here as an exception to the Statute of Frauds. Since the trial court had not credited the 1993 agreement at all, the court determined that it needed a more full record to evaluate this issue, so reversed the summary judgment on that ground as well.

A dissent argued that the doctrine of part performance had no application here because the defendant's conduct was not required by the argued contract. The dissent also argued that the record was devoid of any substantial support for the notion that the fence was permissive, and that consequently summary judgment should have been granted.

Comment 1: As to the "nits:" The dissent is absolutely correct, in the editor's view, that part performance does not apply if the argued reliance is not required by the agreement in question. But equitable estoppel based upon reliance, a distinct doctrine, can apply. The remedies for reliance are more varied, and may or may not include recognition of the agreement.

In any event, it is difficult for the editor to understand why the court didn't regard the boundary as "in dispute" in 1993, when both sides were clearly in disagreement as to whether plaintiff's possession had established an adverse possession title. If the boundary was in dispute, the record reported here would appear to support recognition of the "agreed boundary doctrine," at least in those states where a complete adverse possession period is not required to run.

Comment 2: Regardless of what the record showed about the personal views on the two sides of the fence, it does appear that the physical circumstances present on the land at the time the fence was built suggest that it might have been a "fence of convenience," since it controlled the wandering of stock in this ranching area and was built at the only place a secure fence could be placed.

The court does not deal with the question of whether permissiveness "runs with the land" against an adverse possessor. Plaintiff testified that when he bought the land he was told by his predecessor that the fence marked his boundary. If in fact this was not the circumstance at the time that the fence was built, does plaintiff's occupancy under the belief of ownership for 35 years change things? It shouldn't.

Comment 3: The real problem here is that no one knows who built the fence. Had it been built by plaintiff's predecessors, this likely would have strengthened his case. Had it been built by defendant's predecessors, this would have added great strength to defendant's case. The only evidence in the record was that defendant altered the fence from time to time, but plaintiff argued that it was done only with plaintiff's permission.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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