Dwight Lyman and Betty L. Lyman, as Individuals and as Trustees of the Dwight Lyman Living Trust Dated November 11, 2016, and Trustees of the Betty L. Lyman Living Trust Dated November 11, 2016 v. Robert B. Childs, Individually and as Trustee of the Robert B. Childs Living Trust Dated April 4, 2012 ( 2023 )

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 16OCTOBER TERM, A.D. 2022
February 14, 2023
DWIGHT LYMAN and BETTY L.
LYMAN, as individuals and as Trustees
of the Dwight Lyman Living Trust dated
November 11, 2016, and Trustees of the
Betty L. Lyman Living Trust dated
November 11, 2016,
Appellants
(Plaintiffs),
S-22-0183
v.
ROBERT B. CHILDS, individually and
as Trustee of the Robert B. Childs Living
Trust dated April 4, 2012,
Appellee
(Defendant).
Appeal from the District Court of Johnson County
The Honorable William J. Edelman, Judge
Representing Appellants:
Mitchell H. Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming; Marshall
E. Keller, Keller Law Firm, P.C., Thermopolis, Wyoming. Argument by Mr.
Edwards.
Representing Appellee:
Jay A. Gilbertz, Yonkee & Toner, LLP, Sheridan, Wyoming.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FOX, Chief Justice.
[¶1] Dwight and Betty Lyman filed an adverse possession claim to approximately 100
acres of their northern neighbor’s deeded property in the Bighorn Mountains. Since the
1950s, the Lymans’ fence has enclosed portions of Mr. Childs’ deeded property within
the Lymans’ property. The district court found the fence was a fence of convenience and
the Lymans did not adversely possess the disputed property because their use was
presumptively permissive. The Lymans appealed, and we affirm.
ISSUES
[¶2] There are four issues on appeal:
1. Was the district court’s finding that the fence
enclosing portions of Mr. Childs’ deeded property was
a fence of convenience clearly erroneous?
2. Did the district court err in ejecting the Lymans from
the disputed parcels?
3. Did the district court err in determining the Lymans
trespassed on the disputed parcels?
4. Did the district court abuse its discretion by allowing
opinion testimony from a lay witness pursuant to
Wyoming Rule of Evidence 701?
FACTS
[¶3] This dispute arose over a fence dividing two neighbors, the Lymans to the south
and Mr. Childs to the north. The Lymans’ fence enclosed roughly 100 acres of land
deeded to Mr. Childs and his predecessors.
[¶4] Blaine Lyman, the uncle of Appellant Dwight Lyman, first acquired the Lyman
property, 640 acres that sits south of the fence line in dispute, in 1931. In 1950, Blaine
Lyman and his wife Blanche sold the property to Alton and Arthenia Lund (Lunds) but
retained the right to use a one-room cabin on the property. Sometime thereafter, the
Lunds passed the property to Violet Lund, who conveyed the property to the Appellants,
Dwight and Betty Lyman (Lymans), in August 1993 via warranty deed. She also
conveyed the SE¼SW¼ of Section 3 (Parcel 1) to the Lymans via quitclaim deed (see
Fig. 1). The Lunds had never acquired Parcel 1 by deed but claimed an interest “under a
claim of adverse possession due to the existence of a fence line around said property for
numerous years.” The Lymans recorded the warranty deed for the deeded property and a
1
contract for deed that stated the Lunds would convey Parcel 1 to the Lymans upon full
payment. The Lymans never recorded the quitclaim deed for Parcel 1.
Fig. 1: Parcel Number Map
Fig. 1. Parcels 1, 3, 4, 5, and 7 are the disputed parcels deeded to Mr.
Childs but fenced into the Lymans’ property. Parcel 7 is identified by the
arrow. The parcel numbers were assigned at trial to provide clarity and are
not historically significant.
[¶5] Mr. Childs’ property was first acquired by Edwin Burritt in 1931 and the property
changed hands multiple times before it was conveyed via warranty deed to Jack and
Barbara Marton in 1993. Jack Marton conveyed the property in October 2010, to Golden
Trout, LLC, which was owned by the Weinhandls. 1 The Weinhandls eventually sold the
property to Mr. Childs in July 2019.
[¶6] The two properties are mountainous, heavily forested in areas, and primarily used
for ranching and recreational purposes. The fence in dispute was erected in the 1950s by
Blaine Lyman and has not moved since Dwight Lyman first observed it in the 1950s. It is
a sheep-tight fence that consists of mesh wire on the bottom and two barbed wires on top.
The fence does not follow the exact deeded boundary of the properties, instead it
meanders through forested areas and generally avoids large changes in elevation. The
Lymans assert this fence was built to be a boundary between the properties and they
adversely possessed Parcels 1, 3, 4, 5, and 7. Mr. Childs contends the fence was built for
convenience, which defeats the adverse possession claim.
1
Jack and Barbara Marton divorced during their property ownership and Barbara conveyed her interest to
Jack, who became the sole owner of the property.
2
[¶7] In 2018, individuals were hunting with the Lymans’ permission on Parcel 5, via a
rough road. The Weinhandls’ hunters blocked the road with tree trunks to stop the
Lymans’ hunters from accessing the property. A dispute arose and Wyoming Game and
Fish was called, but the dispute ended without trespassing citations being issued. Mr.
Weinhandl and Mr. Lyman eventually met to discuss a trespassing agreement which
allowed the Lymans and their hunters to use the access road through Parcel 5 to Parcel 1
which abutted public land. Mr. Lyman became agitated and quickly ended the meeting,
saying his lawyer would review the agreement, but did not contend that he did not need
permission to access the disputed lands. He never followed up on the issue.
[¶8] Another dispute arose after Mr. Childs acquired the property. Mr. Childs installed a
gate on the fence that allowed easier access to Parcel 1 from the north side of the fence.
He later found the gate chained and locked, and called the sheriff’s department, which
instructed him to cut the lock. A year later and just after this lawsuit was filed, Mr. Childs
found the gate locked again, this time with a cable and bolts, along with a note from the
Lymans’ counsel telling Mr. Childs to stay off the disputed lands.
[¶9] Just prior to this dispute, Mr. Childs hired Rob Kay to fence the western boundary
of Parcel 1, which was the deeded boundary between the Lymans’ property and Mr.
Childs’ property. But the Lymans prohibited Mr. Kay from completing his fencing work
by filing suit in June 2020 and requesting the district court quiet title in the disputed
lands. The district court rejected their claims, finding the fence was built for convenience
and the Lymans failed to meet their heightened burden of actual notice to Mr. Childs of
their hostile use of the land. The Lymans appealed.
STANDARD OF REVIEW
[¶10] When reviewing a district court’s decision following a bench trial, we use the
following standard of review:
The factual findings of a judge are not entitled to the limited
review afforded a jury verdict. While the findings are
presumptively correct, the appellate court may examine all of
the properly admissible evidence in the record. Due regard is
given to the opportunity of the trial judge to assess the
credibility of the witnesses, and our review does not entail re-
weighing disputed evidence. Findings of fact will not be set
aside unless they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed. In
considering a trial court’s factual findings, we assume that
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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.
Fuger v. Wagoner, 2020 WY 154, ¶ 8, 478 P.3d 176, 181 (Wyo. 2020) (quoting Mattheis
Co. v. Town of Jackson, 2019 WY 78, ¶ 18, 444 P.3d 1268, 1275 (Wyo. 2019)).
DISCUSSION
I. The district court’s finding the disputed fence was a fence of convenience was
not clearly erroneous.
A. Prima Facie Case for Adverse Possession
[¶11] The Lymans make two main arguments regarding their adverse possession claim.
First, they argue that they have established a prima facie case for adverse possession and
Mr. Childs did not rebut their claim. Second, they argue that even if the fence was a fence
of convenience, they sufficiently raised their flag of hostile use and overcame the
presumption of permissive use.
[¶12] An adverse possession claim creates several shifting presumptions. See O’Hare v.
Hulme, 2020 WY 31, ¶ 20, 458 P.3d 1225, 1234 (Wyo. 2020); Hillard v. Marshall, 888
P.2d 1255, 1259-60 (Wyo. 1995). 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. Kudar v. Morgan, 2022 WY 159, ¶ 14, 521 P.3d 988, 993 (Wyo.
2022) (citing Little Med. Creek Ranch, Inc. v. D’Elia, 2019 WY 103, ¶ 18, 450 P.3d 222,
228 (Wyo. 2019)). 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.” Kudar, 2022
WY 159, ¶ 15, 521 P.3d at 993 (quoting Graybill v. Lampman, 2014 WY 100, ¶ 27, 332
P.3d 511, 519 (Wyo. 2014)); see also Wyo. Stat. Ann. § 1-3-103 (2021). An adverse
claimant must have “occupied the land for the statutory period, in a manner plainly
indicating that he has acted as the owner thereof . . . .” Galiher, 2018 WY 145, ¶ 15, 432
P.3d at 510 (quoting Helm v. Clark, 2010 WY 168, ¶ 8, 244 P.3d 1052, 1057 (Wyo.
2010)). Once a prima facie showing is made, the adverse 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 use was permissive. Kudar, 2022 WY 159,
¶ 16, 521 P.3d at 993 (citing Little Med. Creek Ranch, 2019 WY 103, ¶ 18, 450 P.3d at
228). One way to rebut a claim is to show a fence dividing two properties was a fence of
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convenience, which creates a permissive use in the adverse claimant. Id. at 306 (citing
Hillard, 888 P.2d at 1261). The showing shifts a heightened burden to the adverse
claimant to prove he provided the record title owner with actual notice that he was
claiming ownership of the property, and disavowing his use was permissive. Id. at 306
(citing Hillard, 888 P.2d at 1261).
[¶13] We begin with the presumption in favor of the record title holder which requires
the adverse claimant to make a prima facie case of adverse possession. O’Hare, 2020
WY 31, ¶ 19, 458 P.3d at 1233. The district court found the Lymans initially established
their prima facie case for adverse possession, but their permissive use under the fence of
convenience doctrine defeated their claim. See Kimball, 993 P.2d at 305.
1. Actual Possession
[¶14] “No particular act is required to establish actual possession”; whether actual
possession occurred depends on the nature and use of the land. Graybill, 2014 WY 100,
¶¶ 28-29, 332 P.3d at 520 (finding that maintaining and watering the disputed area,
cutting hay, using it for family gatherings, and parking cars on the disputed area in a rural
residential area was sufficient to show actual possession); Davis v. Chadwick, 2002 WY
157, ¶ 11, 55 P.3d 1267, 1271 (Wyo. 2002) (finding grazing livestock on the disputed
parcel for the full growing season was adequate to satisfy the actual possession element).
The district court found the Lymans had actual possession of the disputed parcels. The
fence enclosed the disputed parcels since the 1950s, the Lymans began grazing livestock
within the fence and on the disputed parcels from 1983 when they leased the property
from the Lunds, and continued to graze livestock after they purchased the property in
1993. The Lymans routinely fished and hunted the disputed parcels, leased the land to
other hunters, and their predecessors logged the disputed parcels in the 1980s. Based on
these acts, the district court’s finding of actual possession was not clearly erroneous.
2. Open and Notorious
[¶15] An adverse claimant must also demonstrate open and overt control or use of the
property consistent with the type of land in dispute. Graybill, 2014 WY 100, ¶ 30,
332 P.3d at 520-21. Enclosure of land, as well as other overt acts, can satisfy this
element. Id. at ¶¶30-31; Davis, 2002 WY 157, ¶ 9, 55 P.3d at 1270. Occupation of land
may constitute sufficient open and notorious possession if it gives notice to the deeded
landowner, but whether this occupation is sufficient to give notice is a question
determined by the factfinder. Graybill, 2014 WY 100, ¶ 31, 332 P.3d at 521 (citing
3 Am.Jur.2d Adverse Possession § 60) (2013).
[¶16] The district court found the Lymans’ fencing, grazing of livestock, no trespassing
signs, and recreational uses of the property were sufficient to give notice to the deeded
5
landowners, Mr. Childs and his predecessors, of the Lymans’ possession and use of the
property. These findings are not clearly erroneous.
3. Exclusive
[¶17] An adverse claimant must show “an exclusive dominion over the disputed parcel
and an appropriation of it to their own use and benefit.” Graybill, 2014 WY 100, ¶ 33,
332 P.3d at 521. Such exclusive possession “does not mean absolutely exclusive, but only
such use as would be ‘expected of an owner under the circumstances.’” Cook v. Eddy,
2008 WY 111, ¶ 25, 193 P.3d 705, 713 (Wyo. 2008) (quoting Davis, 2002 WY 157, ¶ 15,
55 P.3d at 1273). “A record owner’s use or access of disputed property does not
undermine exclusivity when the use or access is ‘nothing more than any neighboring
landowner might do.’” Woodward v. Valvoda, 2021 WY 5, ¶ 23, 478 P.3d 1189, 1199
(Wyo. 2021) (quoting Cook, 2008 WY 111, ¶ 25, 193 P.3d at 713). The important
determination is “the extent and nature of the enclosure of the disputed property. . . .
[and] whether or not the land adversely claimed is enclosed in a manner that puts the title
owner on notice of the adjoining landowners’ adverse claim of ownership and the extent
of that claim.” Graybill, 2014 WY 100, ¶ 34 n.13, 332 P.3d at 521 n.13.
[¶18] Both parties, and Mr. Childs’ predecessors in interest, testified to using the
disputed parcels as their own and without permission. The district court found the fence
and no trespassing signs were sufficient to establish exclusive possession of the property;
they would put neighboring property owners on notice that they would be trespassing on
Lyman property if they crossed the fence; the disputed parcels always appeared as part of
the Lyman property due to the fence and grazing activities; and they did not openly share
the property with anyone else. See Graybill, 2014 WY 100, ¶ 34, 332 P.3d at 521. The
fence sufficiently, although not completely, excluded livestock on Mr. Childs’ side of the
fence from grazing the disputed property. The Lymans’ use of the “disputed parcel is
consistent with that which would ordinarily be exercised by an owner in using land to the
exclusion of others.” Id. The district court’s finding of exclusive possession was not
clearly erroneous.
4. Hostile and Under Claim of Right/Color of Title
[¶19] Hostile possession or use under a claim of right is an assertion of ownership so
adverse to the rights of the record owner “that an ordinarily prudent owner would be on
clear notice that his ownership is in jeopardy, that the claimant intends to possess the
property as his own, and that the owner should take some action to protect his title.”
Woodward, 2021 WY 5, ¶ 27, 478 P.3d at 1200 (quoting Galiher, 2017 WY 31, ¶ 20, 391
P.3d at 1106) (emphasis omitted). Objective and manifest intent, rather than subjective
intent, is required to show hostile possession by the adverse claimant. Id. (citing O’Hare,
2020 WY 31, ¶ 19, 458 P.3d at 1234). Hostile intent is not “akin to lining up Spartans at
Thermopylae” but rather is “an assertion of ownership adverse to that of the record
6
owner.” Woodward, 2021 WY 5, ¶ 27, 478 P.3d at 1200 (quoting Graybill, 2014 WY
100, ¶ 36, 332 P.3d at 522). Additionally, “[i]t has long been established in Wyoming . . .
that, color of title is not necessary when there is actual possession.” Murdock v. Zier,
2006 WY 80, ¶ 18, 137 P.3d 147, 152 (Wyo. 2006) (citing Trefren v. Lewis, 852 P.2d
323, 325-26 (Wyo. 1993)).
[¶20] The district court found the combination of the Lymans’ fencing in the disputed
property, grazing livestock, posting no trespassing signs, and using the property
recreationally was sufficient to raise the flag of hostility and put a landowner on notice of
the adverse party’s claim. These findings were not clearly erroneous.
5. Continuous for Statutory Ten-Year Period
[¶21] Continuous possession for purposes of an adverse possession claim must be “for
the statutorily required [ten-year] period, and that possession must be uninterrupted or
maintained without break or interlude.” Woodward, 2021 WY 5, ¶ 25, 478 P.3d at 1199
(citing Graybill, 2014 WY 100, ¶ 38, 332 P.3d at 522); Wyo. Stat. Ann. § 1-3-103(2021). The district court found the Lymans “continuously maintained the historic fence
and used the disputed parcels south of said fence for the statutory ten-year period” but did
not specify the time period. The Lymans argue that the ten-year period of possession
vested in 2003. The record supports the Lymans bought the property from Violet Lund in
1993 and possessed the property pursuant to the adverse possession elements for the ten-
year statutory period, thereby vesting their claim in 2003. The district court’s finding is
not clearly erroneous.
[¶22] The district court concluded that the Lymans established a prima facie case of
adverse possession. That finding was not clearly erroneous and the burden then shifted to
Mr. Childs to rebut the presumption of adverse possession.
B. Burden shifts to Mr. Childs to show permissive use.
[¶23] The district court’s determination that the Lymans established a prima facie case of
adverse possession shifted the burden to Mr. Childs. Kimball, 993 P.2d at 305-06. Mr.
Childs was then required to show the Lymans’ possession of the disputed property was
permissive. Id. at 306. The district court found Mr. Childs properly rebutted the
presumption, which the Lymans argue was a clearly erroneous finding.
7
1. Fence of Convenience establishes permissive use
[¶24] “In some circumstances, enclosing land in a fence is sufficient to ‘raise the flag’ of
an adverse claimant.” Kimball, 993 P.2d at 306 (citing Meyer v. Ellis, 411 P.2d 338, 343
(Wyo. 1966)). A fence kept for convenience, however, does not affect the true boundary
between land. Id. (citing Sowerwine v. Nielson, 671 P.2d 295, 297 (Wyo. 1983)). A fence
of convenience creates a permissive use by the non-record owner. Id.
2. Factors
[¶25] “[A] fence that is placed in a certain location . . . because the terrain makes it easier
to build the fence in that location rather than on the property line is a fence of
convenience.” Helm, 2010 WY 168, ¶ 12, 244 P.3d at 1058. We have previously
enumerated factors to consider when determining whether a fence is one of convenience.
See Kimball, 993 P.2d at 306; Cook, 2008 WY 111, ¶ 14, 193 P.3d at 710-11. While not
dispositive or exhaustive, a court may consider several factors in determining if a fence
was built for convenience:
• 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.
8
Compare Kimball, 993 P.2d at 306, with Cook, 2008 WY 111, ¶¶ 14-16, 193 P.3d at 710-
11, and Helm, 2010 WY 168, ¶ 13, 244 P.3d at 1058-59; see also Addison v. Dallarosa-
Handrich, 2007 WY 110, ¶ 20, 161 P.3d 1089, 1093 (Wyo. 2007). “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, 2010 WY 168, ¶ 12,
244 P.3d at 1058.
[¶26] The district court findings in Kimball are comparable to the current situation:
The physical appearance of the fence clearly demonstrates
that it could not have been constructed as a boundary fence.
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. The irregular course of the fence clearly
indicates that it was not constructed on a section line, a
quarter[-]section line, or any other line of a U.S.
governmental subdivision parcel. Even to a casual observer, it
is obvious that whoever built the fence never intended to
strictly follow the straight[-]line demarcation of a U.S.
Government subdivision description.
993 P.2d at 306.
[¶27] The district court found the fence, as currently constructed, avoided natural barriers
like trees, rocks, and more serious elevation changes as much as possible. The fence did
not run in straight lines, and it changed directions for no other reason than the terrain
allowed for it. It was a mesh fence with two barbed wires, often used trees and bushes as
fence posts, and the irregular course of the fence clearly indicated it was not intended to
follow property boundaries. See Kimball, 993 P.2d at 306. These findings were supported
by maps, photographs and testimony from multiple witnesses. The district court held
these factors weighed in favor of the fence being constructed for convenience.
[¶28] The parties introduced conflicting expert testimony on the ease or difficulty of
fencing the deeded boundaries relative to the current location of the fence. Multiple
witnesses for Mr. Childs testified the fence, as constructed, would have been easier to
build and is easier to maintain in its current location, compared to the property boundary.
Mr. Childs hired Rob Kay in July 2020 to fence the west side of Parcel 1, the deeded
property boundary between Mr. Childs’ property and the Lymans’ property. Mr. Kay
testified the west side of Parcel 1 would be very difficult to fence because of the steep,
9
rocky, and heavily timbered terrain. He further testified that the fence, as constructed,
was in an easier and more convenient spot than fencing the property boundary on
Parcel 1.
[¶29] Jason Rodriguez, a professional fencer and Mr. Childs’ expert witness, testified
similarly. Mr. Rodriguez testified that rocks, large elevation changes, and heavy timber
are obstacles that make fencing projects much more difficult. He testified the location of
the fence avoided timber, steep terrain, and rockiness on the property boundary.
[¶30] The district court gave greater weight to testimony from Mr. Rodriguez and Mr.
Kay than testimony from the Lymans’ expert, Stephen Anderson. Mr. Anderson testified
in essence that it would have been easier to fence on the property boundary because the
fence would have been straight, and a straight fence is easier to maintain than a
meandering fence. Yet, Mr. Anderson’s testimony focused on the fence after it was
installed and the fact that it would be easier to maintain if on the property boundary. The
issue in front of the trial court was whether the fence was easier to install in its current
location or on the boundary line. The district court is entitled to considerable deference
when weighing testimony and making credibility determinations. Taulo-Millar v.
Hognason, 2022 WY 8, ¶ 15, 501 P.3d 1274, 1279-80 (Wyo. 2022) (citing Johnson v.
Clifford, 2018 WY 59, ¶ 8, 418 P.3d 819, 822-23 (Wyo. 2018)). We see no basis to
interfere with the district court’s determination in this instance.
[¶31] The Lymans cite conflicting testimony from Mr. Marton who testified he told the
Weinhandls when they were considering buying his property to treat the fence as a
boundary fence. There was also language in the warranty deed from Mr. Marton to the
Weinhandls that stated the conveyance of the property was “[subject to] discrepancies,
conflicts in boundary lines, shortage in area, encroachments, and any facts which a
correct survey and inspection of the premises would disclose[.]” But there was also
testimony from Mr. Childs, the Weinhandls, and Mr. Marton that they consistently used
the disputed parcels and, despite the fence, they were the rightful owners of the property.
They moved freely between the properties and did not ask permission to do so.
Additionally, there was ample testimony from experts and others, as well as photographs
and maps, to support the district court’s finding. We will not substitute the trial court’s
findings with our own unless they are unsupported by the record. Fuger, 2020 WY 154,
¶ 8, 478 P.3d at 181 (quoting Mattheis Co., 2019 WY 78, ¶ 18, 444 P.3d at 1275).
[¶32] The district court relied on our precedent in Kimball and the photos, maps, and
testimony presented at trial to determine the fence was a convenience fence. See Kimball,
993 P.2d at 306. It found the great weight of the evidence showed the fence was easier to
build where it was located based on topography, natural obstacles, and other debris.
Based on the appearance and treatment of the fence, this finding was not clearly
erroneous, and Mr. Childs successfully rebutted the presumption of adverse possession
by showing the Lymans’ use was permissive. Cook, 2008 WY 111, ¶ 9, 193 P.3d at 709
10
(holding that a fence of convenience gives rise to permissive use thereby defeating an
adverse possessor’s claim); Kimball, 993 P.2d at 306-307.
[¶33] The Lymans alternatively argue that, even if a majority of the fence was a fence of
convenience, Mr. Childs was obligated to prove each disputed parcel was enclosed by a
fence of convenience rather than a boundary fence. We have previously held that a
portion of property divided by a convenience fence can be adversely possessed while the
rest of the property is found to be permissively used, yet such a finding is rare. See
Kimball, 993 P.2d at 307; Hillard, 888 P.2d at 1261. In Kimball, we held the claimant
adversely possessed one acre of the 7.3 acres in dispute. 993 P.2d at 304, 307. But there,
it was the claimant’s burden to prove the adversely possessed one acre was distinct and
separate from the rest of the disputed property. Id. at 307-08; see also Hillard, 888 P.2d
at 1261. That claimant, Mrs. Downes, did so by showing the property was used in a
distinctly different way than the rest of the permissively used property. Kimball, 993 P.2d
at 307. The one acre was used for residential purposes rather than the agricultural
purposes of the other 6.3 acres, she built a home on the property, and fully fenced the one
acre to exclude cattle from it. Id.
[¶34] The Lymans also argue that Hillard stands for the proposition each disputed parcel
must be analyzed separately to determine if the fence was one of convenience. 888 P.2d
at 1261. In Hillard, a sister and brother split land and erected a fence which did not
accurately represent the boundary line. Id. at 1258. Both properties changed hands; Gary
Marshall acquired and subdivided the sister’s parcel, and Earl Hillard acquired the
brother’s parcel. Id. After Mr. Marshall subdivided his parcel and sold a portion to
Thomas and Barbara Dennison, he obtained a survey that showed the original fence did
not accurately represent the property boundaries. Id. Specifically, there was a fourteen-
acre plot deeded to Mr. Marshall and a nine-acre plot deeded to the Dennisons, both
enclosed by Mr. Hillard’s fence. The two parcels were dissimilar in terrain and use and
were non-contiguous. Id. at 1261. We held that due to the dissimilarities of use and
physical characteristics of the land, the adverse claimant was required to separately
establish his adverse possession of each parcel. Id.
[¶35] The Lymans are unable to show each parcel was used any differently than the next;
every parcel on the Lymans’ side of the fence was used for grazing and recreational
purposes. As to Parcel 1, they assert the fence was relatively straight and close to quarter-
section lines, creating the appearance the fence attempted to follow boundary lines.
Building off the deeded boundary added roughly one-half mile of unnecessary fencing,
the fence traversed large elevation changes, and battled rough and rocky terrain. They
contend these characteristics, along with the relative ease of fencing the property line on
the west boundary of Parcel 1, show this section of fence was clearly not constructed for
convenience. This is not enough to show the district court’s determination the fence was
for convenience was clearly erroneous. Although the disputed parcels at issue were at
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points non-contiguous, the parcels were separated by the same fence, were used in the
same or similar ways, and had the same type of terrain.
[¶36] Testimony from Mr. Kay and Mr. Rodriguez both supported the finding the fence
was easier to construct where it stood, and photographs and maps reinforced that
conclusion. Without some showing the parcels were used in different manners or were in
any way distinct from each other, the district court did not err in refusing to separately
analyze each portion of the contiguous fence. See Kimball, 993 P.2d at 307; Hillard, 888
P.2d at 1261.
C. The Lymans must meet a heightened burden to show permissive use changed
to hostile use.
[¶37] Lastly, the Lymans argue that, if it was a fence of convenience, they possessed the
property in a sufficiently hostile manner to revoke their permissive use and assert their
ownership over the property. A fence of convenience creates a permissive use by the
adverse claimant that heightens the burden of demonstrating hostility. Kimball, 993 P.2d
at 306 (citing Hillard, 888 P.2d at 1261).
“[I]n the absence of a clear, positive[,] and continuous
disclaimer and disavowal of the title of the true owner
brought home to the latter’s knowledge; there must be either
actual notice of the hostile claim or acts or declarations of
hostility so manifest and notorious that actual notice will be
presumed in order to change a permissive or otherwise non-
hostile possession into one that is hostile.”
Id. Once the heightened burden of actual notice is established, the adverse claimant’s
declarations of hostility must inch closer to lining Spartans at Thermopylae. See id.;
Graybill, 2014 WY 100, ¶ 36, 332 P.3d at 522.
[¶38] The issue, then, is whether the Lymans’ actions were so manifest and notorious
that Mr. Childs’ predecessors had actual notice of the Lymans disavowing their
permissive use of the property and asserting hostile possession. See Kimball, 993 P.2d at
306. As stated, the Lymans acquired a quitclaim deed from the Lunds for Parcel 1 but did
not record the deed. Dwight Lyman did, however, record a contract for deed that listed
the legal description for the deeded 640-acre property, as well as Parcel 1, agreeing to the
conveyance of the property to the Lymans upon full payment of the purchase price. But
the Lymans failed to prove this recording put Mr. Marton on actual notice of their hostile
claim. In fact, both Mr. Weinhandl and Mr. Childs testified their title insurance
determined the title to the property was clear, and no conflicting claims to the land
existed. Additionally, the Lymans had recorded the warranty deed, and were well aware
they needed to record the quitclaim deed but did not do so. The recording of the one deed
12
and one contract, and the failure to record the other deed, was not an act of hostility so
open and notorious to presume actual notice. The Lymans failed to make any showing
that the recorded contract put any owner on actual notice of their claims. The district
court did not err in finding the recorded contract was not sufficiently hostile.
[¶39] The Lymans further argue that if the recorded contract was not sufficient to assert
their hostile possession, the combination of the recorded contract for Parcel 1, their
grazing practices, recorded timber purchase agreement, recreational activities, and
subsequent quitclaim deed to the Lyman Trusts, gave Mr. Childs’ predecessors actual
notice. Our case law supports the conclusion these actions are insufficient to provide
actual notice to the record owner.
[¶40] In Addison, the district court found that a fence of convenience was erected
between two properties. 2007 WY 110, ¶ 21, 161 P.3d at 1093. The adverse claimant
planted over 12,000 blue spruce trees on their deeded property and the disputed property.
Id. at ¶ 4, 161 P.3d at 1090. Yet this act was not so open and notorious as to give actual
notice of a hostile claim. See id. at ¶ 21, 161 P.3d at 1093.
[¶41] In Kimball, the district court found a fence that separated two parcels was a fence
of convenience and the Kimballs did not adversely possess the disputed property. 993
P.2d at 307. Using the land to graze cattle was not sufficient to overcome the actual
notice burden. Id. But the court also quieted title over one acre within the disputed parcel
because the claimant had separately fenced one acre within it to prevent cattle from
grazing, built a home on it, and used it in a different manner than the rest of the disputed
property. Id. The Kimballs did not meet the heightened burden of hostility and notice by
simply using the property as it had always been used, but “Downes acted in a manner that
changed the use of the property from permissive to hostile.” Id. Her possession of and
acts upon the land was sufficient to meet her heightened burden to overcome the
presumption of permissive use. Id.
[¶42] The Lymans used the property as it had always been used, predominantly ranching
and recreation. They never asserted “a clear, positive, and continuous disclaimer and
disavowal of the title of the true owner” or unfurled their flag of ownership as Mrs.
Downes did in Kimball. 993 P.2d at 308. The Lymans were given several chances to
assert such ownership and provide actual notice. After the hunting dispute, Mr.
Weinhandl presented Mr. Lyman with a Trespassing Agreement that would allow the
Lymans’ hunters to access portions of the disputed property. Instead of asserting their
ownership over the disputed parcels to Mr. Weinhandl, Mr. Lyman retreated from the
conversation. Additionally, despite having a quitclaim deed to Parcel 1, the Lymans did
not pay taxes on it for several years. And, although Mr. Lyman knew previous owners
had accessed portions of the disputed property, he never confronted them to assert his
ownership or deny them access.
13
[¶43] These facts support the district court’s determination that the Lymans failed to
unfurl their flag of ownership in a sufficient manner to put Mr. Childs or any of his
predecessors in interest on actual notice of the Lymans’ intent to claim the property as
their own. The district court was not clearly erroneous when it found the fence was of
convenience and it did not err in denying the Lymans’ claim of adverse possession.
II. The district court did not err in ordering the ejectment of the Lymans.
[¶44] The adverse possession conclusion controls the outcome of the ejectment action.
An ejectment action is codified in Wyo. Stat. Ann. § 1-32-202 (LexisNexis 2021):
In an action to recover real property it is sufficient if the
plaintiff’s petition states that he has a legal estate in and is
entitled to possession of the real property, describing the
same with sufficient certainty as to enable an officer holding
an execution to identify it, and that the defendant unlawfully
keeps him out of possession. It is not necessary to state how
the plaintiff’s estate or ownership is derived.
[¶45] Mr. Childs successfully proved at trial he was the legal owner of the disputed
parcels. He also proved he was wrongfully excluded from his property when, among
other things, Mr. Lyman locked the gate on the north side of Parcel 1. The district court
did not err in ejecting the Lymans from the disputed parcels.
III. The district court did not err in determining the Lymans trespassed on the
disputed parcels.
[¶46] Trespass is defined as “invasions of the interest in the exclusive possession of land
and in its physical condition.” Bellis v. Kersey 2010 WY 138, ¶ 19, 241 P.3d 818, 824
(Wyo. 2010) (quoting Edgcomb v. Lower Valley Power & Light, 922 P.2d 850, 859
(Wyo. 1996)). To establish a claim for trespass, “a plaintiff must establish that the
plaintiff’s property has been physically impacted by someone or something.” Wilson v.
Amoco Corp., 33 F.Supp.2d 969, 976 (D. Wyo. 1998). Without possession, one cannot
bring a trespass claim. Skane v. Star Valley Ranch Ass’n, 826 P.2d 266, 269 (Wyo. 1992).
[¶47] The Lymans make two arguments: first, they were the rightful owners of the
disputed parcels via adverse possession and Mr. Childs cannot bring a trespass claim on
land he does not own; and second, even if they did not acquire the disputed parcels
through adverse possession, their use was permissive under the fence of convenience
doctrine, barring a trespass claim. See Cook, 2008 WY 111, ¶¶ 8-9, 193 P.3d at 708-09
(citing Addison, 2007 WY 110, ¶ 12, 161 P.3d at 1092); see Roberts Const. Co. v.
Vondriska, 547 P.2d 1171, 1177 (Wyo. 1976) (holding a party cannot be liable for
trespass until after a license to use the property is revoked); Edgcomb, 922 P.2d at 859
14
(holding permission is an absolute defense to trespass). The Lymans’ first argument fails
because Mr. Childs retained possession of the disputed parcels. See Skane, 826 P.2d at
269.
[¶48] The Lymans’ use of the property was permissive up until the trespass notice issued
by Mr. Childs’ counsel dated July 28, 2020. Cook, 2008 WY 111, ¶ 8, 193 P.3d at 709
(citing Addison, 2007 WY 110, ¶ 12, 161 P.3d at 1092) (holding a fence of convenience
gives the adverse claimant a permissive use of the property). The Lymans could be held
liable for trespass after permission was revoked. See Edgcomb, 922 P.2d at 859, Roberts
Const., 547 P.2d at 1177.
[¶49] The Lymans also argue that, even if their use was not permissive, Wyoming is a
fence-out state and they cannot be held liable for cattle on the unfenced parcels.
Braunstein v. Robinson Fam. Ltd. P’ship, 2010 WY 26, ¶ 18, 226 P.3d 826, 834-35
(Wyo. 2010) (quoting Martin v. Platte Valley Sheep Co., 76 P. 571, 574-75 (Wyo.
1904)). Yet such a rule cannot apply when Mr. Childs was precluded from fencing his
portion of land because of the Lymans’ legal proceedings. See id. (holding the fence-out
rule applies “if [the landowner] allows it to remain unenclosed”) (emphasis added). The
district court properly concluded the Lymans trespassed on Mr. Childs’ property after
their permission to use the property was revoked.
IV. The district court did not abuse its discretion by admitting opinion testimony
from a lay witness.
[¶50] The Lymans argue that Mr. Graves’ testimony should have been excluded as
improper lay opinion testimony. “We review evidentiary rulings for abuse of discretion.”
Baker v. State, 2022 WY 106, ¶ 12, 516 P.3d 479, 481 (Wyo. 2022) (quoting Klingbeil v.
State, 2021 WY 89, ¶ 32, 492 P.3d 279, 286 (Wyo. 2021)). “We will not disturb the trial
court’s determination of the admissibility of evidence unless the court clearly abused its
discretion.” Klingbeil, 2021 WY 89, ¶ 32, 492 P.3d at 286 (citing Spence v. State, 2019
WY 51, ¶ 42, 441 P.3d 271, 282 (Wyo. 2019)). We need only determine that the district
court could reasonably conclude as it did. Id. (citing Hardman v. State, 2020 WY 11,
¶ 11, 456 P.3d 1223, 1227 (Wyo. 2020)).
[¶51] Wyoming Rule of Evidence 701 allows lay opinion testimony if it meets three
elements. First, the opinion is “rationally based on the witness’s perception.” Second, the
opinion is “helpful to clearly understanding the witness’s testimony or to determining a
fact in issue.” Third, it is “not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” The rules of evidence have been considerably
relaxed pertaining to opinion evidence and “the rules should be liberally construed to
allow the admission of such evidence.” Holiday v. Holiday, 2011 WY 12, ¶ 18, 247 P.3d
29, 34 (Wyo. 2011) (quoting McCabe v. R.A. Manning Constr. Co., 674 P.2d 699, 705
(Wyo. 1983)).
15
[¶52] The Lymans assert Mr. Graves did not meet the first element of Rule 701, he had
no personal knowledge of the construction and maintenance of the fence because he last
observed the property thirty years ago. Mr. Graves’ questioning was specifically based on
his personal observations of the disputed fence and fencing in other areas of the
Bighorns. Mr. Graves is a rancher in the area familiar with fencing projects and
specifically observed the fencing on the disputed parcels throughout the years because he
frequently pushed cattle through the area. He had personal knowledge of other fences in
the Bighorns that were constructed off property lines for convenience reasons, had
personal knowledge of the conditions and terrain of Parcel 1, and his testimony assisted
in the determination of whether the fence was of convenience. See Dixon v. State, 2019
WY 37, ¶ 30, 438 P.3d 216, 229 (Wyo. 2019); Roberts v. Roberts, 2023 WY 8, ¶ 9,
P.3d. , (Wyo. 2023) (holding opinion evidence must assist the trier of fact
in understanding the evidence to be admissible).
[¶53] The Lymans argue Mr. Graves had not pushed cattle through the property in almost
thirty years, making his testimony unreliable. But the fence has not moved since it was
erected, therefore the length of time is immaterial to the admissibility of his testimony.
See Roberts, 2023 WY 8, ¶ 17, P.3d. at , (holding once a preliminary
determination of reliability is shown, weight of the testimony is left to the fact finder).
Although his personal knowledge was not recent, he was familiar with the fence line,
terrain, and neighboring properties. The Lymans’ argument addresses the weight of the
evidence, rather than its admissibility, and is therefore unpersuasive. See id.[¶54] The Lymans argue that Mr. Graves should not be allowed to testify to common
practice or custom of ranching fences because he was not designated as an expert
witness. Yet evidence of common practices in an industry need not be introduced
exclusively by expert testimony. See Dakota, Minnesota & E. R.R. Corp. v. Wisconsin &
S. R.R. Corp., 657 F.3d 615, 619 (7th Cir. 2011) (allowing a lay witness to testify to
common industry practice in a contract and trespass dispute between two railroad
companies); Ty Inc. v. Softbelly’s Inc., 353 F.3d 528, 534 (7th Cir. 2003) (determining
that an experienced businessman need not be qualified as an expert to give an opinion as
to consumer’s views of generic products). Mr. Graves’ testimony did not fall within the
purview of Rule 702 and therefore meets the three elements required for lay opinion
testimony. See W.R.E. 701, 702.
[¶55] Further, upon abuse of discretion review, even if the evidence was admitted in
error, the Lymans are required to show prejudice. An error is deemed prejudicial if there
is a reasonable probability that, if the evidence had not been admitted, the outcome would
have been more favorable to the party opposing the evidence. Spence, 2019 WY 51, ¶ 11,
441 P.3d at 274; Klingbeil, 2021 WY 89, ¶ 32, 492 P.3d at 286. Mr. Childs presented
testimony from Mr. Kay and Mr. Rodriguez, as well as photographs and maps of the
disputed parcels that helped show the fence was for convenience. In its written findings,
16
the district court summarized testimony from six witnesses in eight pages of its Order
when considering whether the fence was of convenience. Mr. Graves’ testimony was
summarized in one-half page. Most of the summary was cumulative of Mr. Kay and Mr.
Rodriguez’s testimony regarding the difficulty of fencing on the mountain and it was
common for fences to be off the property boundary. Mr. Lyman is unable to show that
without Mr. Graves’ testimony, there was a reasonable probability of a more favorable
outcome.
CONCLUSION
[¶56] The district court did not clearly err when it found the fence dividing the Lymans’
property from Mr. Childs’ property was a fence of convenience. The Lymans were
unable to meet their heightened burden of actual notice to Mr. Childs that they were
asserting possession of the land and no longer using it permissively. Without such a
showing, the Lymans’ adverse possession claim failed. The district court did not err in
finding the Lymans trespassed and ordering ejectment. Mr. Graves’ testimony was not in
error and no prejudice occurred. We affirm the district court’s decision quieting title in
Mr. Childs and ejecting the Lymans from the property.
17