IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 49

 APRIL TERM, A.D. 2017

May 8, 2017

RICHARD OSUCH and BARBARA D. RIVERA,

Appellants

(Plaintiffs),

v.

DAVID E. GUNNELS and LINDA M. GUNNELS,

Appellees

(Defendants).

S-16-0228

Appeal from the District Court of Sweetwater County

The Honorable Nena James, Judge

Representing Appellants:

Michael W. Stulken, Stulken & Tynsky, PC, Green River, Wyoming.

Representing Appellees:

Danielle M. Mathey and Richard Mathey, Mathey Law Office, PC, Green River, 

Wyoming. Argument by Ms. Mathey.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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.
1

BURKE, Chief Justice.

[¶1] This case involves a dispute between property owners in Sweetwater County

regarding a mistaken property boundary. Appellants, Richard Osuch and Barbara Rivera,

challenge the district court’s ruling that title to a portion of property formerly owned by 

their predecessors in interest had vested in Appellees, David and Linda Gunnels, by 

adverse possession. We affirm.

ISSUES

[¶2] Appellants present the following issue:

Whether the district court erred in concluding that the 

Gunnels acquired title to the subject property by adverse 

possession.

Appellees present an additional issue:

Whether Appellees should be awarded attorney’s fees and 

costs under W.R.A.P 10.05.

FACTS

[¶3] In 1974, Appellants’ parents, Stanley and Wladzia Osuch, acquired an 80-acre 

tract of land in Sweetwater County. They eventually put the land into a trust, and the 

property passed to Appellants after Mrs. Osuch’s death in 2010. In 2011, Appellants 

recorded a quitclaim deed conveying the property to them as tenants in common.

[¶4] In 1984, Appellees purchased a forty-acre tract adjacent to the property owned by 

Appellants’ predecessors in interest. At the time of the purchase, Appellees moved into 

an existing home on the property. Appellees subsequently made extensive 

improvements. In the spring of 1985, they constructed a fence around the property. 

Appellees determined the location of the fence based on stakes that were represented by 

their realtor to mark the property boundary. Unbeknown to Appellees, the fenced area, 

which included the existing home, encompassed approximately eight acres of the Osuch’s 

property, which is the subject of this appeal.

[¶5] Beginning in 1985, Appellees made improvements to the house. They added 

several bedrooms, a front porch, a sun room, a basement, a brick fireplace, and hardwood 

floors. In 1993, Appellees added a barn to the property. They also planted 

approximately 200 trees and shrubs and let their animals range over the entire property. 

Appellees lived continuously in the home on the property from 1985 to 2005 while they 

raised their two children. In 2005, they began spending part of their time in Hawaii, but 
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maintained their residence on the property for nine months out of the year.

[¶6] Soon after Appellants acquired the property, they attempted to sell it but were 

unable to close a deal because of the existence of Appellees’ home within the recorded 

boundary of the property. In February 2012, Appellants notified Appellees of the 

mistaken boundary and indicated their willingness to sell the property to Appellees. The 

parties initially reached an agreement for the sale of Appellants’ entire parcel to 

Appellees for $20,000, but they were unable to close the sale. They subsequently 

discussed the possibility of a sale of only the disputed portion of the property but were 

ultimately unable to reach an agreement.

[¶7] After negotiations to purchase the disputed property failed, Appellants filed an 

action to quiet title to the property. Appellees responded with counterclaims for 

promissory estoppel and adverse possession, among others. Appellees asserted that 

Appellants had entered into an agreement to sell them their entire parcel. Alternatively, 

Appellees claimed they had acquired title to the disputed property by adverse possession.

Appellees also claimed a right to an implied easement across Appellants’ property for

access to their property.

[¶8] After a bench trial, the district court found that Appellees had established all of the 

elements of adverse possession. The court also found that Appellees had an implied 

easement to access their property. Because the court found that Appellees had acquired 

the property by adverse possession, the court denied their promissory estoppel claim. 

Appellants timely filed this appeal.

STANDARD OF REVIEW

[¶9] The following standards guide our review of a district court’s decision following a 

bench trial:

The factual findings of a judge are not entitled to the limited 

review afforded a jury verdict. While the findings are 

presumptively correct, the appellate court may examine all of 

the properly admissible evidence in the record. Due regard is 

given to the opportunity of the trial judge to assess the 

credibility of the witnesses, and our review does not entail reweighing disputed evidence. Findings of fact will not be set 

aside unless they are clearly erroneous. A finding is clearly 

erroneous when, although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed. In 

considering a trial court’s factual findings, we assume that the 

evidence of the prevailing party below is true and give that 
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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.

Graybill v. Lampman, 2014 WY 100, ¶ 25, 332 P.3d 511, 519 (Wyo. 2014) (quoting 

Helm v. Clark, 2010 WY 168, ¶ 6, 244 P.3d 1052, 1056 (Wyo. 2010) (citations omitted)).

DISCUSSION

[¶10] In their only issue, Appellants claim the district court erred in finding that 

Appellees acquired title to the property in dispute by adverse possession. To establish 

adverse possession, Appellees must demonstrate actual, open, notorious, exclusive, and 

continuous possession of the disputed parcel which is hostile and under claim of right or 

color of title. Graybill, ¶ 27, 332 P.3d at 519. 

A hostile possession or use is one that amounts to an assertion 

of ownership adverse to that of the record owner. It must be 

so incompatible with or so in defiance of the rights of the true 

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.

Galiher v. Johnson, 2017 WY 31, ¶ 20, 391 P.3d 1101, 1106 (Wyo. 2017) (emphasis 

omitted). Possession must be for the statutory period of ten years. Murdock v. Zier, 

2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006); Wyo. Stat. Ann. § 1-3-103 

(LexisNexis 2013). The test for adverse possession imposes shifting burdens upon the 

parties:

When there is no clear showing to the contrary, a person who 

has occupied the land for the statutory period, in a manner 

plainly indicating that he has acted as the owner thereof, is 

entitled to a presumption of adverse possession; and the 

burden shifts to the opposing party to explain such 

possession. However, if a claimant’s use of the property is 

shown to be permissive, then he cannot acquire title by 

adverse possession.

Helm, ¶ 8, 244 P.3d at 1057 (quoting Cook v. Eddy, 2008 WY 111, ¶ 7, 193 P.3d 705, 

708 (Wyo. 2008)). 
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[¶11] In this case, the evidence reveals that, when Appellees purchased their property in 

1984, stakes had been set which they understood to mark the boundary of their property. 

In early 1985, Appellees used those stakes to construct a boundary fence which 

encompasses the eight acres at issue in this case. At the time of Appellees’ acquisition of 

the parcel, they moved into an existing home and used an existing well, both of which are 

located within the eight-acre parcel. Appellees subsequently made many improvements 

to the home and the property. They built an addition to the house as well as an attached 

garage, and landscaped the area around the home. Over the next thirty years, they lived 

in the home and raised two children there. They also let their animals graze on the 

property. 

[¶12] The undisputed evidence leaves no question that, beginning in 1985 and 

continuing for thirty years, Appellees used the disputed parcel openly, notoriously, 

exclusively, and in a manner plainly indicating that they were acting as the owners of the 

property. This use was not permissive and was done under a claim of right. Appellees 

satisfied all of the elements of adverse possession for the requisite statutory period.

“Once all the elements of adverse possession are met, the possessor is vested with a fully 

new and distinct title.” Murdock, ¶ 17, 137 P.3d at 152. Once vested, title “can only be 

divested by conveyance, descent or operation of law.” Id., ¶ 19, 137 P.3d at 152 (quoting 

Sanders v. Lidle, 674 P.2d 1291, 1293 (Wyo. 1984)).

[¶13] According to Appellants, the parties’ conduct beginning in 2012, when Appellants

learned that Appellees’ dwelling was located within the recorded boundary of their

property, demonstrates that Appellees did not intend to assert a right of possession during 

the period from 1985 to 1995. Appellants point to Appellees’ attempt to purchase the 

disputed property after Appellants claimed they were the rightful owners. Appellants 

assert that “if [Appellees] had claimed the right to the disputed property, they would not 

have engaged in these activities to attempt to remedy the situation.” Appellants contend

that this action was inconsistent with ownership and indicates that Appellees’ possession 

was not “hostile.” We do not agree.

[¶14] Appellants present no authority supporting their claim that an offer to purchase

property previously acquired by adverse possession has any bearing on the intent of the 

adverse possessor during the statutory period. Our precedent, however, contains 

authority to the contrary. In Meyer v. Ellis, 411 P.2d 338 (Wyo. 1966), the plaintiff 

asserted a claim of adverse possession against his neighbors, the defendants, due to a 

mistaken boundary. The plaintiff acquired the disputed property in 1960 from his 

grandfather, who at that time had satisfied the elements of adverse possession for a period 

of forty years. Id., 411 P.2d at 339, 342. The defendants’ predecessors in interest deeded 

their property to the defendants two months after the plaintiff acquired title from his 

grandfather. Id., 411 P.2d at 339. Thereafter, the parties entered into a lease for a portion 

of the defendants’ property and, at some point, the plaintiff offered to exchange parcels 
5

with the defendants in an effort to resolve the dispute. The defendants claimed that 

plaintiff was estopped from asserting ownership of the disputed property based upon “a 

lease of the defendants’ lands – purportedly including the disputed tract – by plaintiff on 

June 13, 1960,” as well as the plaintiff’s offer to exchange lands with the defendants. Id., 

411 P.2d at 341. This Court disagreed, concluding that plaintiff’s “efforts to buy his 

peace,” and his acknowledgment of the previous owner’s title, did not serve to divest title 

acquired by adverse possession:

Whatever plaintiff did on his own behalf could not affect the 

grandfather’s title. The same is true of plaintiff’s efforts to 

buy his peace through an exchange of lands with the 

defendant. While those matters have relevancy if occurring 

during the running of the statutory period as bearing upon the 

nature of the possession, it is the law that an acknowledgment 

of the title of a prior owner does not serve to divest a title 

previously acquired by adverse possession.

Id., 411 P.2d at 341-42. As in Meyer, we conclude that Appellees’ negotiations to 

purchase the disputed property in 2012 do not indicate a lack of intent to possess the 

property during the running of the statutory period.

[¶15] Appellants also contend that the conveyance of the property to them by their 

predecessors in interest divested Appellees of any claim they had to the property by

adverse possession. Appellants rely on the rule that title obtained by adverse possession 

may be divested by “conveyance, descent or operation of law.” Murdock, ¶ 19, 137 P.3d 

at 152. This statement of the law, however, has no relevance to the owner who has lost 

title by adverse possession. Appellants never acquired title to the disputed tract from 

their predecessors in interest because their predecessors no longer had title. Meyer, 411 

P.2d at 345 (“[T]he portion of the judgment enjoining the defendants from interfering 

with the possession of the plaintiff was not erroneous and must be affirmed for the reason 

that defendants acquired no title to the disputed tract from their predecessor in interest.”);

see also Crowden v. Grantland, 510 So. 2d 238, 240 (Ala. 1987) (“Crowden could not 

have obtained title to the disputed property described in his deed because his grantors had 

no title that they could convey.”) (citing Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 

74 (1967)). For the foregoing reasons, we find no error in the district court’s 

determination that Appellees acquired title to the property in dispute by adverse 

possession.

[¶16] Appellees request that we impose sanctions in the form of attorney’s fees against 

Appellants under W.R.A.P. 10.05(b) because there was no reasonable cause for this 

appeal. The rule provides, in relevant part, that “If the court certifies, whether in the 

opinion or upon motion, there was no reasonable cause for the appeal, a reasonable 

amount for attorneys’ fees and damages to the appellee shall be fixed by the appellate 
6

court and taxed as part of the costs in the case.” In general, we are reluctant to order 

sanctions under Rule 10.05 and will do so only in rare circumstances. Jackman 

Construction, Inc. v. Rock Springs Winnelson Co., Inc., 2016 WY 118, ¶ 39, 385 P.3d 

311, 321 (Wyo. 2016); Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 30, 261 

P.3d 731, 739 (Wyo. 2011). While we do not find Appellants’ arguments to be

persuasive, we cannot certify that they had no reasonable cause for this appeal.

Accordingly, Appellees’ request for sanctions under Rule 10.05 is denied.

[¶17] Affirmed.