THE SUPREME COURT, STATE OF WYOMING

2023 WY 30

 APRIL TERM, A.D. 2023

April 17, 2023

LITTLE MEDICINE CREEK RANCH, INC., 

a Wyoming corporation, f/k/a BURNETT 

RANCH, INC.,

Appellant

(Defendant/Counterclaimant),

v.

SERGE M. D’ELIA and LILIAN C.S.L. 

D’ELIA, Trustees of the d’Elia Family Trust 

and WAGONHOUND LAND & LIVESTOCK

COMPANY, LLC,1 a Wyoming limited 

liability company,

Appellees

(Plaintiffs/Counterclaim Defendants).

S-22-0092

Appeal from the District Court of Albany County

The Honorable Dawnessa A. Snyder, Judge

Representing Appellant:

Paula A. Fleck, Jeffrey S. Pope, and Macrina M. Sharpe of Holland and Hart, LLP;

Eric C. Rusnak, Theresa A. Roozen, Michael E. Zeliger, and Audrey H. Lo of 

Pillsbury Winthrop Shaw Pittman LLP. Argument by Mr. Rusnak.

1 The Notice of Appeal in this case refers to Appellee as Wagonhound Land & Livestock, LLC. The caption 

below and in the parties’ briefs interchangeably refer to Wagonhound Land & Livestock Company, LLC,

with and without the word “Company.” The caption in the Judgment Following Bench Trial and deeds in 

the record identify Appellee as Wagonhound Land & Livestock Company, LLC. We therefore amend the 

caption in this case and identify the Appellee as Wagonhound Land & Livestock Company, LLC.
Representing Appellee Serge M. d’Elia and Lilian C.S.L. d’Elia:

Peter C. Nicolaysen and Pamala M. Brondos of Nicolaysen & Associates, P.C.;

Timothy M. Stubson of Crowley Fleck PLLP. Argument by Mr. Stubson

Representing Appellee Wagonhound Land & Livestock Company, LLC:

Kermit C. Brown and William L. Hiser of Brown & Hiser, LLC.

Argument by Mr. Hiser.

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.
1

FENN, Justice.

[¶1] This is the second appeal of an adverse possession case involving two neighboring 

cattle ranches—the Burnett Ranch and the Warbonnet Ranch.

2 The Appellant, Little 

Medicine Creek Ranch, Inc., f/k/a Burnett Ranch, Inc., owns a ranch in Albany County 

that has historically been known as the Burnett Ranch. The Burnett Ranch is enclosed by 

a perimeter fence. Within that perimeter fence are three non-contiguous parcels of

property (Subject Property) that are part of the Warbonnet Ranch and deeded to the 

Appellees—Serge and Lilian d’Elia, Trustees of the d’Elia Family Trust, and 

Wagonhound Land & Livestock Company, LLC. Appellant claims it adversely possessed 

the Subject Property through its use of the property for grazing cattle and by maintaining 

the perimeter fence, which encloses the entire Burnett Ranch. On the first appeal, we 

reversed the district court’s entry of summary judgment in favor of the Appellees and 

found there were genuine issues of material fact to be resolved by the trial court. Little 

Med. Creek Ranch, Inc. v. d’Elia, 2019 WY 103, ¶ 44, 450 P.3d 222, 234 (Wyo. 2019). 

After a five-day bench trial, the district court found Appellant failed to meet its prima 

facie case establishing the elements of adverse possession and quieted title in favor of the 

Appellees. Appellant appeals and we affirm.

ISSUES

[¶2] There are three issues on appeal:

I. Did the district court commit clear error when it found the perimeter fence 

around the entirety of the Burnett Ranch was insufficient to meet the 

elements of adverse possession?

II. Did the district court commit clear error when it found Appellant failed to 

establish hostile use?

III. Did the district court err when it found the Burnett Ranch’s use of the 

Subject Property was permissive?

FACTS

The Land

[¶3] This case involves three non-contiguous or isolated parcels of land in Albany 

2 The Burnett Ranch and Warbonnet Ranch have each changed names and ownership, and historical 

records often refer to the ranches by differing names and owners. To avoid any confusion, we refer to the 

ranch owned by Appellant as the Burnett Ranch and the ranch owned by the Appellees as the Warbonnet 

Ranch.
2

County, Wyoming (Subject Property). The following map depicts the three parcels of 

property:

Parcel 1 consists of approximately 640 acres; parcel 2 consists of approximately 40 acres;

and parcel 3 consists of two approximately 120-acre parcels, of which 210 acres are 

subject to this litigation.

The History

[¶4] Over the years, the Cross family purchased smaller ranches, including the Subject 

Property. In 1961, William H. and Barbara Cross deeded parcels 2 and 3 to William H. 

Cross & Sons, Inc. In 1974, Double Crown Ranches, Inc. deeded parcel 1 to William H. 

Cross & Sons, Inc. From 1974 to 1984, William H. Cross & Sons, Inc. owned all three 

parcels of the Subject Property until the corporation was dissolved, at which time title 

passed to William A. (Rory) Cross, individually.

[¶5] Rory Cross and his predecessor William H. Cross & Sons, Inc. never fenced the 

Subject Property because it was not contiguous to the main body of their ranch. The 

Subject Property was instead fenced into the Burnett Ranch. Rory’s neighbors were the 

Burnetts. From the early 1900s, the Burnetts homesteaded much of the land that 

constitutes the Burnett Ranch. The Burnett Ranch deeded lands did not include the 

Subject Property. However, the perimeter fence around the Burnett Ranch included the 

Subject Property.
3

[¶6] Rory Cross testified when he owned the Subject Property, the Burnetts and the 

Crosses worked together and trailed cattle across each other’s property without complaint. 

He testified that although he owned the Subject Property, the Burnetts occasionally used 

the property to graze their cattle. Rory Cross testified he never directly told the Burnetts 

they could use the Subject Property, but he stated he could not tell them to keep their cattle 

off the Subject Property because it was not separately fenced.

[¶7] In approximately 1983, the Crosses endeavored to sell their ranch, including the 

Subject Property. The Crosses real estate broker, John Phillips, met with Richard “Dick” 

Burnett—who managed the Burnett Ranch for approximately 65 years—and his wife, 

Lillian M. Burnett and inquired whether the Burnetts wanted to purchase the Subject 

Property. The Burnetts declined the offer.

[¶8] Approximately three years later, to satisfy debt, Rory Cross deeded his ranch, 

including the Subject Property, to Farm Credit System Capital Corporation (Farm Credit). 

After acquiring the ranch, Farm Credit marketed the ranch through John Phillips, the same 

real estate broker previously used by the Crosses. Serge d’Elia purchased the ranch, 

including the Subject Property, in 1987. The ranch became known as the Warbonnet 

Ranch.

[¶9] Mr. d’Elia owned the Warbonnet Ranch for approximately 30 years. He paid the 

property taxes for the entire ranch, including for the Subject Property. He hired ranch 

managers to maintain and operate the Warbonnet Ranch and continued to use it as a cattle 

operation. He also used it for hunting. Initially, Warbonnet Ranch’s cattle were trailed 

across the Subject Property through the Burnett Ranch and placed onto the main part of 

the Warbonnet Ranch for grazing. While Warbonnet Ranch cattle were trailed across the 

Subject Property, Tom Spawn, a former ranch manager, testified the Warbonnet Ranch 

did not use the Subject Property for grazing because there was no fence around the 

property, and the location made it impractical. Mr. d’Elia and his former ranch managers, 

John Phillips and Tom Spawn, testified that while they did not utilize the Subject Property 

for grazing, they knew the Burnetts possibly utilized the grass on the Subject Property for 

their cattle. While they did not all witness cattle on the Subject Property, Mr. d’Elia told 

his ranch managers the Burnett family could utilize the grass for grazing.

Dispute over Subject Property

[¶10] In 2012, Mr. d’Elia decided to sell the Warbonnet Ranch. Approximately three 

years later, Wagonhound Land & Livestock Company, LLC (Wagonhound) entered into 

a lease with Mr. d’Elia and his family3that included an exclusive option to purchase the 

Warbonnet Ranch. In 2017, Wagonhound exercised its option to purchase the Warbonnet 

3 Mr. d’Elia transferred portions of the Warbonnet Ranch to the d’Elia Family Trust and to his son. The 

Trustees of the Trust and his son entered into the agreement.
4

Ranch, including the Subject Property. Around this same time, Wagonhound approached 

John Burnett about purchasing the Burnett Ranch. After meeting with John Burnett, 

Wagonhound followed up with a letter thanking him for meeting about the possible 

purchase of the Burnett Ranch. As part of its diligence in purchasing the Warbonnet 

Ranch, Wagonhound asked in its letter if Mr. Burnett would confirm that he had no 

intention of claiming ownership over the Subject Property within the Burnett Ranch 

perimeter. Mr. Burnett never responded to the letter; instead, he shared the letter with 

Shane Cross, whose father, Richard Cross, was leasing the land on the Burnett Ranch.4

[¶11] In 2000, the Burnetts sold their cattle to avoid foreclosure. The Burnetts no longer 

grazed cattle on the Burnett Ranch, instead, they leased the ranch to other ranchers for 

grazing cattle. Beginning in 2008, Richard Cross leased the Burnett Ranch exclusively 

for “grazing purposes.” The written lease agreements did not set forth whether the Crosses 

could graze cattle on the entire Burnett Ranch deeded lands or address the Subject 

Property, but Shane Cross testified they used all of the land inside the perimeter fence of 

the Burnett Ranch. The written lease agreements provided the Burnett Ranch was 

responsible to pay all taxes and assessments due on the “Burnett Ranch, Inc. deeded land, 

State and Federal,” and to maintain all fences.

[¶12] When Shane Cross learned Wagonhound purchased the Warbonnet Ranch, 

including the Subject Property, and was interested in purchasing the Burnett Ranch, he 

asked Wagonhound whether it would consider leasing the Burnett Ranch to the Crosses if 

the purchase of the Burnett Ranch went through. Wagonhound informed Shane Cross it 

would not continue to lease the land to the Crosses if it acquired the Burnett Ranch. As a 

result, the Crosses sought to purchase the Burnett Ranch. Shane Cross also e-mailed John 

Burnett case law on adverse possession and a draft letter stating the Burnett Ranch owned 

the Subject Property.

[¶13] A bidding war to purchase the Burnett Ranch ensued between Wagonhound and 

the Crosses, and ultimately the Burnetts sold the Burnett Ranch to the Crosses. In the fall 

of 2016, after John Burnett agreed to sell the Burnett Ranch to the Crosses, Wagonhound 

attempted to enter the Burnett Ranch to survey the Subject Property, but John Burnett and 

the Crosses denied access. The Crosses further informed Wagonhound they intended to 

take ownership of the Subject Property through a claim of adverse possession. Also, as 

part of the sale, the Burnetts signed and recorded stranger quitclaim deeds5for the Subject 

Property, which created a cloud on the title to the Subject Property.

4 Richard Cross is Rory Cross’s brother and Shane Cross is Rory Cross’s nephew. As discussed above, 

Rory Cross originally owned the Subject Property until approximately 1986.

5 Stranger deeds are deeds executed by a purported grantor not in the chain of record title. See Conway v. 

Miller, 232 P.3d 390, 397 (Mont. 2010) (“Strangers to the deed are those who are not parties to it.”); see 

also Simpson v. Kistler Inv. Co., 713 P.2d 751, 754–61 (Wyo. 1986).
5

[¶14] In February 2017, the Trustees of the d’Elia Family Trust filed a complaint against 

the Appellant for declaratory judgment and to quiet title to the Subject Property. The 

Trustees argued Appellant created a cloud on the title to the Subject Property and 

requested the district court adjudicate the Trustees’ right, title, and interest in the Subject 

Property. Wagonhound subsequently entered into an addendum to its purchase option 

with the Trustees. The addendum recognized the Trustees filed a civil action seeking to 

resolve the Burnett Ranch’s adverse possession claim and to quiet title in the Subject 

Property. Because the civil action would not be completed prior to Wagonhound closing 

on the purchase of the Warbonnet Ranch, the parties amended the purchase option and 

agreed to hold back funds from the total purchase price of the Warbonnet Ranch. 

Wagonhound agreed to keep the funds in a separate account and if title to the Subject 

Property was quieted in favor of the Trustees and Wagonhound, it agreed the funds would 

be released to the Trustees. Upon release of the funds, the Trustees agreed to quitclaim 

any interest in the Subject Property to Wagonhound.

[¶15] The Trustees filed an amended complaint and added Wagonhound as a party. The 

Appellant answered and counterclaimed for adverse possession of the Subject Property. 

Appellant and Appellees moved for summary judgment, and the district court entered 

judgment as a matter of law in favor of the Appellees. The district court found Appellant

failed to establish a prima facie case of adverse possession. Appellant appealed and we 

reversed and remanded the matter for trial. Little Med. Creek Ranch, Inc., 2019 WY 103, 

¶ 11, 450 P.3d at 227. On remand, the district court held a five-day bench trial and entered 

judgment in favor of the Appellees. After considering the evidence, the district court 

found Appellant failed to establish its use of the property was open, notorious, exclusive, 

continuous, and hostile. This appeal followed.

STANDARD OF REVIEW

[¶16] We review a district court’s decision following a bench trial using the following 

standard:

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
6

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.

Lyman v. Childs, 2023 WY 16, ¶ 10, 524 P.3d 744, 751 (Wyo. 2023) (quoting Fuger v. 

Wagoner, 2020 WY 154, ¶ 8, 478 P.3d 176, 181 (Wyo. 2020)); see also Addison v. 

Dallarosa-Handrich, 2007 WY 110, ¶ 8, 161 P.3d 1089, 1091 (Wyo. 2007).

DISCUSSION

[¶17] Appellant claimed it adversely possessed the Subject Property and sought to quiet 

title to it. The district court found Appellant failed to prove it adversely possessed the 

Subject Property and quieted title in favor of the record titleholders, Appellees. On appeal, 

Appellant challenges the district court’s findings and argues the district court erred by 

finding in favor of the record title holder.

[¶18] The purpose of a statutory action to quiet title is to determine in one comprehensive 

action all adverse and conflicting claims to real property. Wyo. Stat. Ann. § 1-32-201 

(LexisNexis 2021); Clay v. Mountain Valley Mineral Ltd. P’ship, 2015 WY 84, ¶ 20, 351 

P.3d 961, 968 (Wyo. 2015). To establish adverse possession of real property, “‘the 

claiming party must show actual, open, notorious, exclusive and continuous possession of 

another’s property which is hostile and under claim of right or color of title.’ Possession 

must be for the statutory period, ten years.” Clay, ¶ 21, 351 P.3d at 968 (quoting Addison, 

2007 WY 110, ¶ 11, 161 P.3d at 1091). “The requirement that an adverse claimant’s 

possession be open, notorious, and hostile is aimed at putting the property’s record owner 

on notice of the adverse claim.” White v. Wheeler, 2017 WY 146, ¶ 30, 406 P.3d 1241, 

1250 (Wyo. 2017). An open, notorious, and hostile possession or use “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.” Id. at ¶ 17, 406 P.3d at 1247 (quoting Galiher v. Johnson, 2017 WY 31, 

¶ 20, 391 P.3d 1101, 1106 (Wyo. 2017)).

[¶19] “An adverse possession claim creates several shifting presumptions.” Lyman, 2023 

WY 16, ¶ 12, 524 P.3d at 751. “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.” Id. (citing Kudar v. Morgan, 2022 WY 159, ¶ 14, 521 P.3d 988, 993 (Wyo. 

2022)). “Once an adverse possession claimant makes the required prima facie showing, 

the presumption shifts to one in favor of the adverse possession claimant.” White, 2017 
7

WY 146, ¶ 18, 406 P.3d at 1247. “When there is no clear showing to the contrary, a 

person who has occupied the land . . . in a manner plainly indicating that he has acted as 

the owner [for a period of ten years], is entitled to a presumption of adverse possession.” 

Id. (quoting Osuch v. Gunnels, 2017 WY 49, ¶ 10, 393 P.3d 898, 901 (Wyo. 2017)); Wyo. 

Stat. Ann. § 1-3-103 (LexisNexis 2021). The burden then shifts to the opposing party “to 

explain or rebut the claim by showing the use was permissive.” Lyman, ¶ 12, 524 P.3d at 

751–52; White, ¶ 18, 406 P.3d at 1247. “[I]f a claimant’s use of the property is shown to 

be permissive, then he cannot acquire title by adverse possession.” White, ¶ 18, 406 P.3d 

at 1247.

[¶20] The district court found Appellant “failed to meet the elements for adverse 

possession for the requisite time period to sustain their claim over [the Subject Property].” 

Appellant challenges the district court’s findings and argues it sufficiently raised the flag 

of hostile use and overcame the presumption of permissive use. Appellant contends it 

established adverse possession through its perimeter fence, its control over the Subject 

Property, and its use of the Subject Property for grazing cattle.

I. The district court’s decision the perimeter fence and control of access to the 

Burnett Ranch did not demonstrate open, notorious, and hostile use of the 

Subject Property was not clearly erroneous.

[¶21] Appellant argues the district court erred as a matter of law by concluding the 

perimeter fence and control of access to the Burnett Ranch did not demonstrate visible, 

open, notorious, and hostile use of the Subject Property. Appellant contends the district 

court should have concluded as a matter of law that building and maintaining the perimeter 

fence around the entirety of the Burnett Ranch and exercising control over access to the 

lands enclosed within the Burnett Ranch is sufficient to meet the elements of adverse 

possession. We disagree.

[¶22] “We have recognized that adverse possession can be established by the pasturing 

of livestock during the growing season within a substantial enclosure,” but when that

enclosure is essential to the claim of adverse possession the question becomes a factual 

issue for the trier of fact. Davis v. Chadwick, 2002 WY 157, ¶¶ 11–12, 17, 55 P.3d 1267, 

1271–74 (Wyo. 2002) (emphasis added). The fact finder must determine whether the 

enclosure was sufficient to fly the flag over the land and put the true owner on notice that 

the property is held under an adverse claim of ownership. Id. Our case law demonstrates 

the determination as to whether the fence sufficiently put the owner on notice of adverse 

possession or meets the elements of adverse possession is a fact-intensive inquiry. See 

e.g., id. (declining to delineate the scope of what constitutes a substantial enclosure but 

finding a boundary fence sufficiently put the record title holder on notice of the adverse 

claim); Galiher v. Johnson, 2018 WY 145, ¶ 15, 432 P.3d 502, 510 (Wyo. 2018)

(“Considering the nature and extent of the material facts associated with the elements of 
8

a claim of adverse possession, this Court considers an adverse possession action to be 

‘peculiarly factual in nature.”).

[¶23] The district court found “the perimeter of the Burnett Ranch is fenced except for a 

section where the rough terrain makes fencing impossible.” It found the Subject Property 

was “unfenced within the Burnett Ranch.” The district court found the perimeter fence 

does “not specifically fence in (or out) the disputed parcels” and “no fencing involving 

the disputed parcels . . . are indicative of use or ownership.” It held the Subject Property 

was not fenced in a manner that put the record title owner on notice of any adverse claim, 

and any act of maintaining the boundary fence by the Burnett Ranch did not establish a 

prima facie case of adverse possession. After reviewing the record, we cannot say the 

district court’s findings regarding the Burnett Ranch perimeter fence are clearly erroneous.

[¶24] “Enclosing land in a fence may be sufficient” to put the record title holder on notice 

of the adverse claim, but the claimant “must still establish that his use of the [disputed] 

property was open, notorious, exclusive, continuous and hostile.” White, 2017 WY 146, 

¶¶ 20–21, 406 P.3d at 1247; Helm v. Clark, 2010 WY 168, ¶ 10, 244 P.3d 1052, 1058 

(Wyo. 2010). “[V]isibility of [a] fence alone does not establish the . . . showing of open, 

notorious, and hostile possession” required for an adverse possession claim. White, ¶ 34, 

406 P.3d at 1250. Pasturing livestock within a substantial enclosure during the growing 

season can establish open, notorious, and hostile possession. Farella v. Rumney, 649 P.2d 

185, 186 (Wyo. 1982); Helm, 2010 WY 168, ¶¶ 10–11, 244 P.3d at 1058. “The term 

‘substantial enclosure’ does not refer to the area enclosed by a fence.” Davis, 2002 WY 

157, ¶ 12, 55 P.3d at 1271. Instead, the term “substantial enclosure” refers “to the extent 

and nature of the enclosure of the disputed property.” Id. “[S]ubstantial enclosure means 

whether or not the land adversely claimed is enclosed in a manner that puts the title owner 

on notice of the . . . adverse claim of ownership and the extent of that claim (i.e., over

what specific lands the adverse claimant is asserting ownership).” Id. at ¶ 12, 55 P.3d at 

1271–72; Addison, 2007 WY 110, ¶ 15, 161 P.3d at 1092. The presence, location, 

purpose, and type of fencing (for convenience, casual, or designed) are important factual 

issues “when an adverse possession claimant uses the disputed property for grazing 

livestock.” Braunstein v. Robinson Fam. Ltd. P’ship, LLP, 2010 WY 26, ¶ 18, 226 P.3d 

826, 834–35 (Wyo. 2010). A material fact that must be considered by the fact finder and 

weighed along with all the other circumstances is “whether the disputed property was 

separately enclosed with its own fence and the adverse claimant placed its grazing 

livestock within that fenced enclosure[.]” Id.

[¶25] The perimeter of the Burnett Ranch was fenced sometime between 1960–1962. 

Appellant admits the Burnett Ranch is enclosed by a perimeter fence except for those areas 

where the terrain makes fencing impossible. It further admits “[t]he parcels comprising 

the Subject Property are not separately fenced within the Burnett Ranch.” A landowner 

in the area and former lessee of the Burnett Ranch testified the fence line rarely follows 

the property line because of the terrain. He testified the object is to keep the fences up 
9

and the cows on respective ranches and following the property line in the area makes it 

difficult to keep fences standing.

[¶26] In 2001, after the death of Dick Burnett, John Burnett, as the personal 

representative of Dick Burnett’s Estate, obtained an appraisal of the Burnett Ranch from 

Hastings & Associates, Inc. In 2013, John Burnett obtained a subsequent appraisal of the 

Burnett Ranch from Hastings & Associates, Inc. after the death of his mother, Lillian 

Burnett. Both appraisals noted, and Mr. Burnett agreed, landowners in the area typically 

trade land use with adjoining neighbors to facilitate and maximize the ability to use the 

forage. The 2013 appraisal stated: “Because of the terrain, fences can be hard to build and 

maintain and may not be on the exact property lines.” Mr. Burnett testified in his 

experience the perimeter fence is not on the exact property lines.

[¶27] John Phillips, the real estate broker that worked for the Crosses and then Farm 

Credit Systems to market the Warbonnet Ranch, testified he understood Dick Burnett built 

the perimeter fence to keep cattle where they were supposed to be. After marketing the 

Warbonnet Ranch, John Phillips managed the Warbonnet Ranch for Mr. d’Elia. Mr. 

Phillips testified when he managed the Warbonnet Ranch in the 1980s, the natural 

progression of the cattle was to end up on the Burnett Ranch, and so they would trail the 

cattle across the Subject Property and the Burnett Ranch. He testified he spoke with Dick 

Burnett a few times a year about fencing and cattle. He stated an elk herd would knock 

the perimeter fence down, so both the Burnett Ranch and the Warbonnet Ranch would try 

to keep the perimeter fence up as much as possible to keep the cattle contained on the 

respective ranches. He further testified both Mr. Burnett and Mr. d’Elia worked on the 

perimeter fence as much as possible to keep cattle in the appropriate pastures.

[¶28] Tom Spawn, a former Warbonnet Ranch manager, testified the Warbonnet Ranch 

never fenced parcel 2 of the Subject Property, even though it ran up to the ranch’s BLM 

allotment because adding that additional fence would cause a “bottleneck for cattle to get 

into” and create a natural funnel that would make it almost impossible to trail the cattle 

back out. He testified the cost of fencing and the amount of grass on the Subject Property 

made it impractical to fence and graze Warbonnet Ranch’s cattle on the Subject Property. 

He also testified that the landowners to the south of parcel 3 wanted to rebuild a portion 

of the perimeter fence separating their ranch from the Burnett Ranch on a location that 

would require less fencing. The landowners approached Tom Spawn to get permission to 

rebuild the fence in a different location, but the Warbonnet Ranch required the fence to be 

built on the existing fence line.

[¶29] In Rutar Farms & Livestock, Inc. v. Fuss, the claimant contended “the existence of 

a fence . . . together with the fact their cattle grazed on the disputed tracts, constituted open 

and notorious intent to adversely possess the disputed tracts.” 651 P.2d 1129, 1132–33 

(Wyo. 1982). We disagreed those facts alone established the necessary elements of 

notorious, exclusive, and hostile possession under a claim of right for adverse possession 
10

and held the district court’s decision was supported by substantial evidence. Id. at 1132–

34. The district court found only portions of the fence on the property indicated a 

boundary, and not all the fencing involved was a boundary fence. Id. We agreed with the 

district court’s finding that an irregular fence following the general course of a river and 

not the property line was a fence of convenience or a control fence rather than a fence 

establishing the boundary line. Id. Based on these facts, we concluded the claimant never 

enclosed the disputed lands themselves, and the fence did not establish open, notorious, 

and hostile intent to adversely possess the disputed lands. Id.

[¶30] In Davis, we affirmed the district court’s finding the fence at issue was a substantial 

enclosure sufficient to put the record owner on notice of the adverse possessor’s claim. 

2002 WY 157, ¶ 12, 55 P.3d at 1272. We found the evidence established the “parties 

believed the fence was the true boundary for at least 40 years” and the testimony indicated 

the existing fence appeared to constitute a boundary. Id. at ¶ 17, 55 P.3d at 1274. Based 

on this evidence, we concluded the district court’s findings were not clearly erroneous and 

affirmed. Id.

[¶31] In Addison, we found the evidence was sufficient to support the district court’s 

conclusion the fence was not a substantial enclosure putting the title owner on notice of 

the adverse claim. 2007 WY 110, ¶¶ 9–21, 161 P.3d at 1091–93. We found the evidence 

established “the fence did not follow a straight section line but followed the topography 

of the area, zig-zagging around the bottom of a rough, rocky hill, rather than going in a 

straight line over the hill,” which indicated the fence did not follow the true boundary line. 

Id. at ¶ 20, 161 P.3d at 1093. We further found the evidence showed the fence originally 

separated two pastures both owned by the same ranch company, which “showed that for 

the first one hundred years of its existence the fence was not intended to delineate a 

boundary line between properties.” Id. at ¶ 21, 161 P.3d at 1093. We found the irregular 

course of the fence and the lack of any indication the fence was intended to mark or follow 

a boundary supported the district court’s decision. Id.

[¶32] The evidence presented in this matter contrasts with Davis and is more analogous 

to Rutar Farms & Livestock, Inc. and Addison. After reviewing the record, we cannot say 

the district court’s decision is clearly erroneous. Here, the Appellants concede the Subject 

Property is not separately fenced within the Burnett Ranch. The testimony and the Burnett 

Ranch’s own appraisals indicated the perimeter fence was not on the true boundary line 

because of the terrain, and neighbors traded land use to facilitate and maximize the ability 

to use the forage. Both the Burnett Ranch and the Warbonnet Ranch maintained the 

perimeter fence to ensure they kept their respective cattle contained in certain areas on the 

particular ranches. The landowners to the south of parcel 3 approached the Warbonnet 

Ranch before replacing the fence separating their ranch from the Burnett Ranch. Based 

on this evidence, we cannot say the district court’s finding the disputed lands were not 

enclosed in a manner to raise the flag and put the title owner on notice of an adverse claim 

of ownership to the Subject Property is clearly erroneous. The record supports the district 
11

court’s finding that the Appellant’s maintenance of the perimeter fence and control of 

access to the Subject Property did not demonstrate a substantial enclosure or establish the 

necessary elements of adverse possession to meet the claimant’s prima facie case.

II. The district court’s finding that Appellant did not establish hostile use of the 

Subject Property by the perimeter fence and its minimal use for grazing was not 

clearly erroneous.

[¶33] Appellant challenges the district court’s finding “nothing was so hostile or 

significant about [the Burnett Ranch] grazing activities or perimeter fencing as to put the 

Warbonnet Ranch owners on notice of any assertion of ownership or use so incompatible 

with the rights of the owners of [the Subject Property] that provided clear notice that their 

ownership was in jeopardy—at least not until 2016 when the Burnett Ranch was sold . . . 

and [the] Warbonnet Ranch was denied access in writing to the Subject [Property].” 

Appellant argues the district court erred as a matter of law and misstated the standards for 

showing hostility by finding no hostile act took place until 2016. Appellant argues 

hostility does not require an overt act. It argues that the use of the Subject Property by the 

Burnett Ranch inside the perimeter fence for seasonal grazing established the hostile use 

element of adverse possession as a matter of law. We disagree.

[¶34] We defined the hostile possession or use element as:

[O]ne 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.

O’Hare v. Hulme, 2020 WY 31, ¶ 19, 458 P.3d 1225, 1233–34 (Wyo. 2020) (quoting 

White, 2017 WY 146, ¶ 17, 406 P.3d at 1247). “The term ‘hostile’ in the context of 

adverse possession is not to be interpreted as ill will or to require action akin to lining up 

Spartans at Thermopylae to prevent the return of one holding legal title; rather,” it is an 

action by the claimant that gives clear notice to the legal owner that his ownership is in 

jeopardy, and he must act to protect his title within the statutorily prescribed period. 

Graybill v. Lampman, 2014 WY 100, ¶ 36, 332 P.3d 511, 522 (Wyo. 2014); Rutar Farms 

& Livestock, Inc., 651 P.2d at 1134. This “requirement of notice is fundamental to a claim 

of adverse possession.” O’Hare, ¶ 19, 458 P.3d at 1234.

[¶35] “[A] claimant cannot establish a prima facie case by relying solely on his testimony 

as to his subjective hostile intent.” O’Hare, 2020 WY 31, ¶ 19, 458 P.3d at 1234. Instead, 

“[h]e must introduce evidence that such intent was objectively made manifest by his 
12

observable words or actions.” Id.; see also Lyman, 2023 WY 16, ¶ 19, 524 P.3d at 753 

(“Objective and manifest intent, rather than subjective intent, is required to show hostile 

possession by the adverse claimant.”). “It is well established that mere possession is not 

a sufficient basis for claim of title by adverse possession.” Rutar Farms & Livestock, Inc., 

651 P.2d at 1134. Instead, the “possession must be clear, distinct, and unequivocal [and] 

must convey the clear message that the possessor intends to possess the land as his or her 

own.” Graybill, 2014 WY 100, ¶ 36, 332 P.3d at 522. “Possession is hostile when the 

possessor holds and claims property as his own, whether by mistake or willfully.” 

Murdock v. Zier, 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006). To meet the hostility 

requirement, the act or possession must demonstrate the claimant “unfurl[ed] his flag on 

the land, and ke[pt] it flying, so that the owner [could] see . . . an enemy . . . invaded his 

domains, and planted the standard of conquest.” Stansbury v. Heiduck, 961 P.2d 977, 979 

(Wyo. 1998); Rutar Farms & Livestock, Inc., 651 P.2d at 1134.

[¶36] Wyoming is a fence-out state, meaning cattle are permitted to run at large and 

wander upon and graze on unenclosed lands of a private owner. Little Med. Creek Ranch, 

Inc., 2019 WY 103, ¶ 30, 450 P.3d at 231; Braunstein, 2010 WY 26, ¶ 18, 226 P.3d at

834–35. “Under the operation of the [fence-out doctrine], it is incumbent upon a land 

owner, in order to prevent domestic animals lawfully at large from wandering and 

trespassing thereon, to properly enclose his land.” Braunstein, ¶ 18, 226 P.3d at 834–35. 

If a landowner allows his property “to remain unenclosed, and the cattle of others, lawfully 

at large, wander upon and [graze] it, the owner of such cattle will not be guilty of an 

actionable trespass.” Id. The implication of the fence-out doctrine and whether grazing 

on the disputed land by the claimant constitutes hostile use or possession is a question of 

fact to be determined by the trier of fact when there is more than one reasonable inference. 

Little Med. Creek Ranch, Inc., ¶¶ 31–32, 450 P.3d at 231 (“When the facts support more 

than one reasonable inference, the fence-out doctrine cannot establish permissive use as a 

matter of law.”); Galiher, 2018 WY 145, ¶ 18, 432 P.3d at 511 (“When there is evidence 

to support a claimant’s prima facie showing, but there is also evidence to the contrary, the 

factual dispute becomes a question of weight and credibility for the trier of fact.”)(internal 

quotation marks omitted); A.B. Cattle Co. v. Forgey Ranches, Inc., 943 P.2d 1184, 1188 

(Wyo. 1997) (“The determination of the facts which lead to either the presumption of 

adverse and hostile use or the presumption of permission are within the prerogative of the 

trial court.”).

[¶37] While not dispositive or exhaustive, “[i]n cases in which the adverse possession 

claimant rests its claim on the grazing of livestock on the disputed property, material facts 

[for the trier of fact to consider] include:

• Whether the property is suitable for grazing and pasturage;
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• Whether the grazing livestock were placed on the adverse 

claimant’s own lands and then roamed freely or strayed 

onto the disputed property;

• Whether the adverse claimant purposely drove its livestock 

onto the disputed property and kept them there each year 

during the full period of the growing season;

• Whether the adverse claimant pastured its grazing livestock 

on the disputed property sporadically or for the full period 

of each growing season;

• Whether the disputed property was separately enclosed 

with its own fence and the adverse claimant placed its 

grazing livestock within that fenced enclosure; and

• The number of such grazing livestock using the disputed 

property for the full period of each growing season.

Braunstein, 2010 WY 26, ¶ 18, 226 P.3d at 835.

[¶38] Here, the district court considered these factors and found no dispute that the 

Burnett Ranch “had actual possession of the disputed property, particularly by virtue of 

the unique locations and enclosure of the Subject Propert[y] within the boundaries of the 

Burnett fence line.” The district court found the evidence indicated “the Burnett Ranch, 

by and through its various owners and lessees, made continuous though sporadic, 

unspecified use of the disputed parcels through the occasional grazing of cattle.” 

However, it found there was no evidence of targeted grazing on the Subject Property prior 

to 2013, and any targeted grazing was limited until 2017. It found the testimony indicated 

the cattle wandered the entirety of the Burnett Ranch and not on specific parcels due to 

the lack of any interior fencing. The district court determined the Burnett Ranch never 

established it provided any notice of a claim of adverse possession over the Subject 

Property until 2016 when John Burnett generally denied Warbonnet Ranch access to the 

Subject Property and Shane Cross asserted a claim of adverse possession.

[¶39] Appellant argues the district court erred and it established notice and hostile intent 

by using the disputed property inside the Burnett Ranch perimeter fence for seasonal 

grazing. Appellant contends allowing its cattle to seasonally graze within the perimeter 

fence on the Burnett Ranch and the existence of roads on the Subject Property was 

sufficient to provide notice and meet its prima facie case of adverse possession. Our case 

law supports the district court’s conclusion that these actions were insufficient to provide 

actual notice to the record owner and establish hostile intent.
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[¶40] In Kimball v. Turner, a landowner received a land patent from the United States 

and erected a fence along the southern boundary of his property, enclosing approximately 

7.3 acres of land owned by another. 993 P.2d 303, 304 (Wyo. 1999). On an action to quiet 

title to the 7.3 acres, the district court found in favor of the adverse possessor on 1 acre of 

the land because he built a house and a fence on that acre. Id. at 305–07. The district court 

found building a house and a fence demonstrated hostile use and was sufficient to meet 

the elements of adverse possession. Id. With respect to the rest of the approximately 6.3 

acres, the district court determined the acres were not adversely possessed because a 

perimeter fence and using the land to graze cattle was not sufficient to provide actual 

notice to the record owner of any claim of adverse possession. Id. at 307. Testimony 

indicated the landowners never treated the fence as a boundary fence, but instead used the 

fence to keep cattle contained and separated. Id. at 306–07. Testimony also indicated the 

landowners knew the fence did not follow the property lines. Id. We affirmed the district 

court’s decision and found it was not contrary to the great weight of the evidence. Id. at 

306–09.

[¶41] In Rutar Farms & Livestock, Inc., the evidence indicated cattle of the adverse 

possessor grazed on the disputed land, but it was not clear how often or whether the cattle 

were purposely placed on the land or strayed onto it. 651 P.2d at 1132–34. Of 

significance, the adverse possessor “did not assert ownership of the disputed lands” when 

questioned about the lands by third parties. Id. at 1135. We held that to establish title 

through adverse possession, the claimant’s possession must be with the intent to assert a 

claim of adverse possession. Id. We affirmed the district court’s decision and found the 

claimant’s actions did not establish any intent to adversely possess the land. Id. at 1135–

36. We further found the claimant’s minimal use of the disputed land by grazing cattle 

“fell far short of alerting the record owners that title to their deeded land was in jeopardy.” 

Id.

[¶42] Burnett Ranch shareholders testified they knew the Subject Property was deeded 

and owned by someone else. One shareholder testified he never intended to claim any 

interest or ownership over the Subject Property, and he was never aware of any intention 

by the Burnetts to claim ownership in the Subject Property. Instead, he testified the 

Burnetts used the property with permission and the Burnetts had previously discussed the 

possibility of negotiating access with the record owners if they ever attempted to fence off 

the Subject Property. John Burnett testified the Subject Property was always in the Burnett 

Ranch’s possession because of the location within the perimeter fence, but the Burnetts 

never made an assertion it owned the Subject Property.

[¶43] The Burnett Ranch was given several chances to assert ownership over the Subject 

Property and provide notice to the record title holder. In 2001 and 2013, John Burnett 

toured the Burnett Ranch with an appraiser and subsequently obtained appraisals. The 

appraisals did not list the Subject Property as part of the Burnett Ranch and instead 

specifically identified the three parcels as “private uncontrolled” and not included within 
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the Burnett Ranch deeded boundary. John Burnett never objected to the appraisals not 

listing the Subject Property as part of the Burnett Ranch. In approximately 2001, John 

Burnett, on behalf of Burnett Ranch, signed and reviewed an application for a small mine 

permit on the Burnett Ranch. Parcel 1 of the Subject Property was within a one-half-mile 

radius of the proposed mine. On the adjudication information for the mining application, 

the application listed the owner of parcel 1 as the d’Elia Family Trust. Mr. Burnett 

testified he had no objection or dispute with the application listing the d’Elia Family Trust 

as the owner of parcel 1.

[¶44] In November 2015, the purchasers of the Warbonnet Ranch approached John 

Burnett about purchasing the Burnett Ranch. After the meeting with John Burnett, Mark 

Norem, the purchaser’s real estate broker, wrote a letter asking for the Burnett Ranch to 

acknowledge the d’Elias owned the Subject Property. Shortly thereafter, Shane Cross, a 

subsequent purchaser of the Burnett Ranch, e-mailed John Burnett case law describing 

adverse possession and provided him with a draft letter claiming ownership over the 

Subject Property to send to the real estate broker. John Burnett never responded to the 

letter and never did anything to provide notice he was asserting ownership over the Subject 

Property. Approximately three months later, John Burnett wanted to clarify what land the 

Burnett Ranch owned. He recorded an affidavit with the Albany County Clerk’s Office 

listing the property owned by the Burnett Ranch. Mr. Burnett did not list the Subject 

Property on this affidavit.

[¶45] John Burnett testified the Burnett Ranch used the Subject Property for grazing and 

running cattle. Mr. Burnett did not provide any testimony as to whether the cattle were 

intentionally placed on the Subject Property, or whether the cattle roamed freely within 

the perimeter of the Burnett Ranch and wandered onto the Subject Property. A 

shareholder of the Burnett Ranch testified Burnett Ranch cattle used parcel 1 because there 

was no fence around the parcel, but the cattle did not utilize parcels 2 and 3 because the 

parcels were located away from where the cattle grazed. Shane Cross testified when the 

Crosses were leasing the Burnett Ranch they grazed cattle on the parcels, but the Crosses 

did not have a written grazing program that predated 2017. Testimony indicated salt licks 

were placed around the Burnett Ranch, including on parcel 1, but cattle were never 

intentionally placed and maintained on the Subject Property. Instead, the testimony 

indicated cattle were pushed through a gate on the Burnett Ranch and then were grazed to 

utilize all the grass within the entire perimeter fence of the Burnett Ranch.

[¶46] The evidence supports the Burnett Ranch never claimed or intended to claim the 

Subject Property as its own. The minimal use of the Subject Property by the Burnett 

Ranch and its lessees supports the district court’s decision that the Burnett Ranch did not 

raise the flag in a sufficient manner to put the record owner on notice the title to their 

deeded land was in jeopardy. See, e.g., Lyman, 2023 WY 16, ¶¶ 42–43, 524 P.3d at 757–

58 (finding the adverse possessor’s failure to assert ownership over the disputed property 

when given multiple chances sufficiently supports the district court’s determination there 
16

was no actual notice). Upon review of the record, we find the district court’s decision is 

supported by sufficient evidence. The district court did not commit clear error when it 

found Appellant failed to establish hostile possession.

III. Ownership is Presumed in Favor of the Record Title Holder.

[¶47] The district court found Appellant’s claim of adverse possession also failed 

because the evidence supported an inference of permissive use. Appellant argues the 

district court erred as a matter of law. Appellant suggests “where the record evidence 

shows that the adverse possession claimant neither asked for [n]or received permission 

from anyone to use a disputed piece of land, a court cannot remedy that lack of evidence 

with an assumption . . . the deed holders tacitly granted permission by their silence.” 

Appellant contends the Appellees failed to satisfy their burden to show permissive use.

[¶48] As discussed above, “unless and until the adverse claimant makes out his prima 

facie case” there is “a presumption in favor of the record title holder.” Kudar, 2022 WY 

159, ¶ 14, 521 P.3d at 993; Little Med. Creek Ranch, Inc., 2019 WY 103, ¶ 18, 450 P.3d 

at 228. Appellant was required to make prima facie showing his use of the Subject 

Property was actual, open, notorious, exclusive, and continuous, which such use conveyed 

the clear message the Appellant intended to possess the Subject Property as its own. 

Kudar, 2022 WY 159, ¶ 15, 521 P.3d at 993; Graybill, 2014 WY 100, ¶ 36, 332 P.3d at 

522. We found the district court’s decision the Appellant failed to meet its prima facie 

showing of adverse possession was not clearly erroneous. See, e.g., Lyman, 2023 WY 16, 

¶¶ 42–43, 524 P.3d at 757–58. The presumption of ownership never shifted from the 

record title holder, and Appellees were not required to explain or rebut Appellant’s claim 

of adverse possession through a showing of permissive use. Id. at ¶ 12, 524 P.3d at 751–

52. We therefore do not address the Appellant’s contentions related to the district court’s 

findings of permissive use. Rutar Farms & Livestock, Inc., 651 P.2d at 1136 (declining to 

address permissive use after finding the appellant never made a prima facie showing its 

“casual use of the disputed lands was open, notorious, exclusive, [or] in a manner plainly 

indicating [it was] acting as owners [of the disputed lands].”).

CONCLUSION

[¶49] The district court’s finding Appellant failed to meet its prima facie showing of 

adverse possession through a perimeter fence around the entirety of the Burnett Ranch, its 

control to the non-contiguous parcels, and its minimal use of the Subject Property for 

grazing was not clearly erroneous. Because Appellant failed to establish a prima facie 

case of adverse possession, the burden never shifted to Appellees to show permissive use. 

We therefore do not address Appellant’s contentions about permissive use. We affirm the 

district court’s decision to quiet title in the Appellees.