By Jessica Schneider
As with many other legal issues, Wyoming case law includes only a handful of cases addressing the recovery of real property by adverse possession. As such, we were anxious to review the Wyoming Supreme Court’s latest adverse possession ruling, Galiher v. Johnson, 2018 WY 145 (Wyo. 2018), decided on December 31, 2018. Surprisingly, the Court upheld the District Court’s finding of adverse possession in a quiet title action even though several witnesses, including the party arguing adverse possession, testified that permission had been given to use the disputed land. Permission typically nullifies a claim of adverse possession. However, in the Galiher case, the Supreme Court found the actions of the parties did not support the testimony that permission had been granted. As property disputes involving land use in Wyoming arise daily, land owners and legal practitioners alike should take note of the Galiher decision and its addition to the law of adverse possession in Wyoming. Below is a detailed analysis of the Galiher case and its major holdings.
To prevail on an adverse possession claim, a claimant must show “actual, open, notorious, exclusive and continuous possession of the disputed parcel which is hostile and under claim of right or color of title.” Graybill v. Lampman, 2014 WY 100, ¶ 27 332 P.3d 511, 519 (Wyo. 2014). “Possession is hostile when the possessor holds and claims property as their own, whether by mistake or willfully.” Murdock v. Zier, 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006). Finally, the property must be possessed in their manner for at least ten years. Wyo. Stat. Ann. § 1-3-103.
The facts of the Galiher case involve two adjacent Lots in Teton County, Wyoming. Lot 23 is currently owned by Louise J. Galiher (“Galiher”) who purchased the property in March of 2013. Lot 21 is currently owned by Dennis and Vicki Johnson (“Johnsons”) who received ownership of Lot 21 in 1990. Beginning as early as 1986, the owner of Lot 21 continuously used a small portion of the northwestern corner of Lot 23 (the “disputed area”) for parking and storage of building/landscaping materials and other personal property. The owner of Lot 21 also continuously maintained the disputed area by removing snow and clearing weeds. In 2002 or 2003, the Johnsons permanently redesigned the entryway to their home on Lot 21 to utilize the disputed area for parking and placed a wooden walkway and small storage shed on the disputed area.
In April 2013, Galiher became aware of the Johnsons’ use of the disputed area and asked them to remove their property. The Johnsons responded that they had permission to use the disputed area and asked Galiher for her permission to continue to use the disputed area. Galiher denied permission but granted the Johnsons forty-eight hours to remove their property. Over a week later, the Johnsons told Galiher they would not remove their property because they believed they had the right to use the disputed area. In May 2013, Galiher sued to quiet title to Lot 23. The Johnsons counterclaimed seeking quiet title to the disputed area based on adverse possession.
Testimony at trial established that on the several occasions the Johnsons were confronted about their use of the disputed area, the Johnsons stated they had permission from the previous owners of Lot 23 to use the disputed area. Based on their statements, Galiher argued that the Johnsons’ use of the disputed area was permissive, and the Johnsons could not claim adverse possession. However, the District Court held that the Johnsons’ use was not permissive, and the Johnsons had established a prima facie showing of adverse possession. Galiher appealed the District Court’s ruling. On appeal, the Court considered: (1) whether the Johnsons’ statements that they had permission to use the disputed area established that their use was permissive; (2) whether the Johnsons had made a prima facie showing of adverse possession; and (3) whether the previous owners of Lot 23 allowed the Johnsons to use the disputed area as part of a neighborly accommodation.
Regarding the first issue, the Court found that although the Johnsons stated they had permission to use the disputed area, the District Court inferred that the Johnsons knew they did not have permission to use the disputed area and their statements were untrue and solely for self-preservation reasons. Galiher argued on appeal that the District Court’s inference was clearly erroneous. The Court did not agree with Galiher and concluded the District Court properly relied on the following facts in making its inference: (1) the Johnsons never asked for permission from the previous owners of Lot 23 to use the disputed area; (2) no owner of Lot 23 ever gave the Johnsons permission to use the disputed area; (3) the Johnsons’ sole basis for assuming permission was that no one had objected. The Court noted the general rule that permission is an act of commission, not omission, and held that based on a totality of the circumstances, the District Court’s inference and findings of fact were not clearly erroneous.
On the second issue, Galiher argued the District Court’s conclusion that the Johnsons made a prima facie showing of adverse possession was clearly erroneous. The Court did not agree. The Court noted the Johnsons’ burden of proof was to show they had occupied the disputed area for the statutory ten (10) year period in a manner plainly indicating they were the owner. If such a showing was made, the Johnsons would be presumed to be the owners, and the burden would pass to Galiher to dispute the Johnsons’ possession. The Court noted that the only disputed issue was whether the Johnsons possessed the disputed area with the requisite hostility indicating an intent to assert an adverse claim against the owner of Lot 23. The Court noted that adverse possession claims are “peculiarly factual in nature,” and although the Johnsons’ statements regarding possession should be taken into consideration, the Johnsons’ acts of possession better represent their intent as to the character of their possession. The Court noted the following facts regarding the Johnsons’ use and possession of the disputed area: (1) the Johnsons’ uninterrupted use of the disputed area as a parking area since 1986; (2) the Johnsons’ continual maintenance of the disputed area; (3) the presence of a retaining wall on the disputed area placed there before the Johnsons purchased Lot 21; (4) the Johnsons’ placement of wooden walkways and a shed on the disputed area; (5) use of the disputed area for storage; and (6) the permanent structural changes the Johnsons made to their home based on their use of the disputed area. The Court concluded that the Johnsons’ dominion and use of the disputed area put the owner of Lot 23 on notice that the disputed area was under the Johnsons’ control and that the Johnsons claimed exclusive ownership of the disputed area. The Court noted that the Johnsons’ activities on the disputed area were not compatible with the rights of the owner of Lot 23, and a reasonably prudent landowner would recognize that the Johnsons’ use put their ownership rights in jeopardy. Based on these facts and conclusions, the Court held that the Johnsons made a prima facie showing of adverse possession and Galiher had the burden to demonstrate the Johnsons’ use was permissive. The Court held that Galiher’s sole reliance on the Johnsons’ statements was not sufficient to prove their use was permissive. The Court held that the District Court properly weighed the totality of the evidence presented at trial and its conclusion that the Johnsons made a prima facie showing is supported by the record. The Court noted that Galiher did not argue the District Court’s decision was erroneous as a matter of law. As such, the Court deferred to the District Court’s conclusion that the Johnsons adversely possessed the disputed area since 1986.
With respect to the third issue, Galiher argued the District Court erred when it did not find the previous owners of Lot 23 allowed the Johnsons to use the disputed area as part of a neighborly accommodation. Galiher pointed to the testimony of the Johnsons and a previous owner of Lot 23 who both testified the Johnsons were allowed to use the disputed area because they were neighbors. The Court did not agree. The Court noted the established rule that a neighborly accommodation should defeat a claim of adverse possession; but the Court noted that a neighborly accommodation usually involves a social relationship or contact and must be evidenced by communication or joint activity which demonstrates the accommodation. In this case, the Court found that the previous owner of Lot 23 never met or spoke to the Johnsons and the Johnsons never had an agreement, written or oral, with any neighbor. Based on these facts, the Court upheld the District Court’s conclusion that there was not a neighborly accommodation based on the evidence, or lack of evidence, presented at trial.
Hirst Applegate, LLP has a long history of representing clients in real estate matters. If you have questions about this decision or how it might impact you or your property ownership, please call Billie Addleman or Jessica Schneider at (307) 632-0541.