IN THE SUPREME COURT, STATE OF WYOMING

2019 WY 103

OCTOBER TERM, A.D. 2019

 October 10, 2019

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, LLC, a Wyoming limited 

liability company,

Appellees

(Plaintiffs/Counterclaim Defendants).

S-19-0001

Appeal from the District Court of Albany County

The Honorable Tori R.A. Kricken, Judge

Representing Appellant:

David G. Ditto of Associated Legal Group, LLC, Cheyenne, Wyoming; Eric C. 

Rusnak of K&L Gates LLP, Washington, DC; Michael E. Zeliger and Ranjini 

Acharya of K&L Gates LLP, Palo Alto, CA. Argument by Ms. Acharya.

Representing Appellee Serge M. d’Elia and Lilian C.S.L. d’ Elia, Trustees of the d’Elia 

Family Trust:

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

Casper, Wyoming; Keith P. Tyler, Casper, Wyoming. Argument by Mr. 

Nicolaysen.
Representing Appellee Wagonhound Land & Livestock Company, LLC:

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

Wyoming. Argument by Mr. Hiser.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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

BOOMGAARDEN, Justice.

[¶1] This is an adverse possession case involving two cattle ranches. 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 Burnett Ranch. The Appellees—Serge and 

Lilian d’Elia, Trustees of the d’Elia Family Trust, and Wagonhound Land & Livestock, 

LLC—are the most recent owners of Warbonnet Ranch.1

 The Appellees filed a Complaint 

for Declaratory Judgment and Petition to Quiet Title with respect to three non-contiguous 

parcels of property that are deeded to the Appellees but fenced into Burnett Ranch. The 

Appellant counterclaimed for adverse possession of those parcels and moved for summary 

judgment. The district court denied the Appellant’s motion and granted summary judgment 

to the Appellees. It also denied the Appellant’s subsequent motion to alter or amend its

order. Because genuine issues of material fact preclude summary judgment, we reverse 

and remand for trial.

ISSUES

[¶2] The Appellant raises three issues on appeal, rephrased as:

1. Does the district court’s failure to follow the procedural 

safeguards of Rule 56(f) necessitate reversal and remand for 

trial?

2. Does the district court’s improper determination of witness 

credibility on summary judgment necessitate reversal and 

remand for trial?

3. Does the district court’s reliance on the absence of 

objections by the deed holders to find permissive use 

necessitate reverse and remand for trial?

The Appellees phrase the third issue differently:

3. Whether the record and Wyoming law support the District 

Court’s finding of permissive use based on multiple factors 

including the fence-out doctrine and neighborly 

accommodation.

 1 In 2017, during the course of the litigation, Wagonhound purchased Warbonnet Ranch from the d’Elias. 
2

[¶3] The dispositive issue is whether genuine issues of material fact preclude summary 

judgment in favor of the Appellees.

2

FACTS

The Land

[¶4] This fact-intensive adverse possession case involves three non-contiguous parcels

of land that are deeded to Warbonnet Ranch’s owners but located within Burnett Ranch. 

Burnett Ranch’s perimeter is fenced, except where land characteristics make fencing 

impossible, but the parcels are not separately fenced within the ranch. Parcel 1 consists of 

approximately 640 acres and has also been referred to as “Lindsey Place” and “the peach 

orchard.” Parcel 2 consists of 40 acres. Parcel 3 consists of two 120-acre parcels, 210 of 

which are fenced into Burnett Ranch and subject to this litigation.

3

 

[¶5] The following map depicts the general location of Parcels 1, 2, and 3 within Burnett 

Ranch:

 2 The Appellant does not challenge the district court’s denial of its motion for summary judgment. We 

therefore do not address that denial in this decision.

3 The fence runs along the south side of Parcel 3. Although the two 120-acre parcels have also been referred 

to separately as Parcels 3 and 4, we refer to them collectively as Parcel 3. 
3

The map does not, however, clearly depict Burnett Ranch’s perimeter fence or Burnett 

Ranch’s location relative to Warbonnet Ranch.

The History

[¶6] The history of the two ranches and the three families—the Burnetts, the Crosses, 

and the d’Elias—who have been associated with them over the years provides important 

background. The Burnetts’ ancestors homesteaded much of the land that constitutes

Burnett Ranch. Richard Burnett managed the ranch for approximately 65 years; Wally 

Burnett managed the ranch next; and John Burnett became president of Burnett Ranch, Inc. 

in 2000 and managed it for the next sixteen years. The Burnetts sold their cattle in 2000 to 

avoid foreclosure and continuously leased the ranch to various individuals—including 

Lynn Carter, Jim Hageman, Art Hageman, Warren Manning, and the Crosses—from 2000 

until 2016 for grazing. The leases included use of Parcels 1, 2, and 3. The Crosses leased

the ranch for summer pasture from 2007 or 2008 until 2016. 

The Dispute

[¶7] Warbonnet Ranch borders Burnett Ranch to the east and north. The Crosses owned 

Warbonnet Ranch off-and-on from the 1950s until they sold it to Farm Credit in 1985. Mr. 

d’Elia purchased the ranch in 1987 and, a couple of years later, he conveyed it to himself 

and his wife as Trustees of the d’Elia Family Trust. Wagonhound purchased Warbonnet 

Ranch in 2017. 

[¶8] The dispute over Parcels 1, 2, and 3 arose when Wagonhound sought to purchase 

Burnett Ranch. When Shane Cross learned of the intended purchase, he asked

Wagonhound whether he could continue to lease the ranch if Wagonhound acquired it. 

Wagonhound indicated that it would not lease the ranch. As a result, the Crosses sought

to purchase Burnett Ranch themselves. A bidding war ensued and the Burnetts ultimately 

sold the ranch to the Crosses. Wagonhound’s request to enter Burnett Ranch to survey the 

parcels and potential access routes to them was subsequently denied. 

[¶9] In February 2017, the Appellees filed a complaint against the Appellant for

declaratory judgment and to quiet title to the parcels.

4

 The Appellant answered and 

counterclaimed for adverse possession of the parcels. After completing discovery, the 

Appellant moved for summary judgment on its adverse possession claim. The Appellees 

responded with a Joint Statement of Disputed Material Facts pursuant to W.R.C.P. 56.1(b)

and a joint traverse in which they argued that: (1) the evidence created a genuine issue of 

material fact as to the Appellant’s claim that its grazing and the Burnett Ranch’s fence were

sufficient to establish adverse possession, (2) the evidence did not support a finding of 

 4 The d’Elias added Wagonhound as a Plaintiff, as well as a claim for slander of title, after they conveyed 

an interest in the disputed property to Wagonhound by Quitclaim Deed. 
4

hostile possession or use for the required ten-year period, (3) genuine issues of material 

fact existed regarding whether use of Parcels 1 and 3 was permissive, and (4) the Appellees 

were entitled to summary judgment with respect to Parcel 2 because no genuine issue of 

material fact existed regarding permissive use of that parcel due to a range line agreement. 

[¶10] The court held a hearing on the Appellant’s motion in September 2018. After the 

hearing, the court issued a notice pursuant to W.R.C.P. 56(f). The notice stated that, at the 

hearing, the Appellees sought denial of the Appellant’s motion or, in the alternative, 

summary judgment in their favor pursuant to W.R.C.P. 56(f). The court allowed the parties 

time to respond to its notice with additional briefing. 

[¶11] The court ultimately denied the Appellant’s motion for summary judgment, granted 

summary judgment to the Appellees, and quieted title in the Appellees. It determined that 

the evidence, even viewed in the Appellant’s favor, could not establish a prima facie case 

for adverse possession of the three parcels. It reasoned that there was nothing hostile or 

significant about Burnett Ranch’s grazing activity such that it put the owners of those 

parcels on clear notice that their ownership was in jeopardy, at least not until 2015 to 2016. 

It found no evidence that Burnett Ranch purposely drove livestock onto the disputed 

parcels or utilized the land for the duration of the growing season. With regard to the fenceout doctrine, it determined that the Warbonnet owners’ failure to fence the parcels within 

Burnett Ranch equated to permission to allow Burnett Ranch’s cattle to wander on the 

unfenced land. It also determined that Warbonnet Ranch allowed Burnett Ranch to use the 

parcels as part of a neighborly accommodation. The court therefore concluded that the 

Appellant “failed to establish a prima facie case of adverse possession” and “[r]ather, 

judgment as a matter of law in favor of [the Appellees] [wa]s warranted.” 

[¶12] The Appellant timely moved to alter or amend the order under W.R.C.P. 59(e) and 

requested the court vacate its order and grant it summary judgment or hold a trial. The 

Appellant argued the court improperly: granted the Appellees summary judgment on the 

basis that the Appellant did not meet its burden, determined witness credibility, adopted

the Appellees’ disputed material facts as undisputed, and applied the fence-out doctrine. It

submitted several hundred pages of additional evidence in support of its motion. The court 

denied the motion. This appeal followed.

[¶13] Additional facts are set forth below as necessary. 

The Law

[¶14] “Summary judgment is proper only when there are no genuine issues of material 

fact, and the prevailing party is entitled to judgment as a matter of law.” Mantle v. N. Star 

Energy & Constr. LLC, 2019 WY 29, ¶ 110, 437 P.3d 758, 794 (Wyo. 2019) (quoting 

Bogdanski v. Budzik, 2018 WY 7, ¶ 18, 408 P.3d 1156, 1160 (Wyo. 2018)).
5

The party requesting summary judgment bears the initial 

burden of establishing a prima facie case that no genuine issue 

of material fact exists and that summary judgment should be 

granted as a matter of law. W.R.C.P. 56(c); Throckmartin v. 

Century 21 Top Realty, 2010 WY 23, ¶ 12, 226 P.3d 793, 798 

(Wyo. 2010). Until the movant has made a prima facie 

showing that there are no genuine issues of material fact, the 

nonmovant has no obligation to respond to the motion with 

materials beyond the pleadings. Id.

Once a prima facie showing is made, the burden shifts to the 

party opposing the motion to present evidence showing that 

there are genuine issues of material fact. Boehm v. Cody Cntry. 

Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987) (citing

England v. Simmons, 728 P.2d 1137, 1140–41 (Wyo. 1986) ). 

The party opposing the motion must present specific facts; 

relying on conclusory statements or mere opinion will not 

satisfy that burden, nor will relying solely upon allegations and 

pleadings. Boehm, 748 P.2d at 710. However, the facts 

presented are considered from the vantage point most 

favorable to the party opposing the motion, and that party is 

given the benefit of all favorable inferences that may fairly be 

drawn from the record. [Union Pacific R. Co. v.] Caballo Coal 

Co., ¶ 12, 246 P.3d [867] at 871 [ (Wyo. 2011) ].

Id. ¶ 110, 437 P.3d at 794–95 (quoting Bogdanski, ¶ 18, 408 P.3d at 1160–61). 

[¶15] “This Court affords no deference to the district court’s ruling [on a motion for

summary judgment], but instead reviews a ‘summary judgment in the same light as the 

district court, using the same materials and following the same standards.’” Id. ¶ 110, 437 

P.3d at 795 (quoting Bogdanski, ¶ 18, 408 P.3d at 1161). When, as here, we review a grant 

of summary judgment on an adverse possession claim, we apply the summary judgment 

standard with “more exacting scrutiny” because adverse possession claims are inherently 

fact-intensive. White v. Wheeler, 2017 WY 146, ¶ 15, 406 P.3d 1241, 1246 (Wyo. 2017) 

(quoting Braunstein v. Robinson Family Ltd. P’ship, 2010 WY 26, ¶ 19, 226 P.3d 826, 835 

(Wyo. 2010)).

[¶16] “Materiality of a fact depends upon it having some legal significance so that it 

establishes or refutes some essential element of a cause of action or defense asserted by 

one of the parties.” Braunstein, ¶ 16, 226 P.3d at 833 (quoting Roussalis v. Wyoming 

Medical Center, Inc., 4 P.3d 209, 228 (Wyo. 2000) (internal quotation marks & citations 

omitted)). Thus, “[i]n any given case, the materiality of any facts is limited by the pertinent 

legal standard[s] for the asserted claim and for the corresponding defenses to that claim.” 
6

Id. (quoting Roussalis, 4 P.3d at 228 (internal quotation marks & citations omitted)). In 

this case, the elements required to establish adverse possession and the associated rules 

determine the materiality of facts. Id. ¶ 17, 226 P.3d at 833. 

[¶17] To succeed on an adverse possession claim, the claimant “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.” Id. (quoting Hillard v. Marshall, 888 P.2d 1255, 

1258 (Wyo. 1995)). Possession must be for the statutory period of ten years. Wyo. Stat. 

Ann. § 1-3-103 (LexisNexis 2019). An adverse possession claimant cannot succeed if his 

use of property was permissive. Braunstein, ¶ 17, 226 P.3d at 833.

[¶18] In analyzing the claimant’s showing, “there is a presumption in favor of the record 

title holder[.]” Id. (quoting Hillard, 888 P.2d at 1261). The claimant can rebut that 

presumption by making a prima facie case of adverse possession. Id. (citing Hillard, 888 

P.2d at 1261). If the claimant makes a prima facie case, then “the burden shifts back to the 

record title holder who must produce evidence contrary to the presumption by showing that 

the claimant’s possession was permissive.” Id. (quoting Hillard, 888 P.2d at 1261). “If 

the title holder can do that, then it becomes a question of weight and credibility to be 

determined by the trier of fact.” Id. (quoting Hillard, 888 P.2d at 1261).

DISCUSSION

[¶19] In its summary judgment order, the court set forth a single evidentiary analysis,5 at 

the end of which it concluded the Appellant “failed to establish a prima facie case of 

adverse possession” and, “[r]ather, judgment as a matter of law in favor of [the Appellees] 

is warranted.” Because the district court acknowledged, but did not independently 

evaluate, each parties’ request for summary judgment, it is difficult to discern whether the 

court granted the Appellees summary judgment based on the Appellant’s deficient prima 

facie claim, permissive use, or both. The record leads us to conclude that the court granted 

summary judgment on both grounds, and the parties’ arguments put both grounds at issue. 

We therefore address both grounds, beginning with permissive use, and conclude that

genuine issues of material fact preclude summary judgment in favor of the Appellees.

6

 5 The summary judgment order suffers from the same error we identified in White: the district court did not 

separately address the Appellant’s motion for summary judgment, viewing the evidence in the light most 

favorable to the Appellees, and then separately address whether to grant summary judgment to the 

Appellees, viewing the evidence in the light most favorable to the Appellant. See White, ¶ 39 n.5, 406 P.3d 

at 1251 n.5 (quoting 10A Charles A. Wright et al., Federal Practice & Procedure Civil § 2720 (4th ed. 

database updated April 2017)) (explaining why it is important to consider cross-motions separately).

6 We do not reach the Appellant’s main issue: the sufficiency of the Rule 56(f) notice. We do, however, 

acknowledge that the notice muddied the waters as to whether the Appellees had moved for summary 

judgment and on what basis. The uncertainties that resulted from the notice likely could have been avoided

if: the court had specified whether it intended to proceed under W.R.C.P. 56(f)(1), (2), or (3); the court had
7

I. Summary Judgment on the Appellees’ Permissive Use Claim

[¶20] As noted above, an adverse possession claimant cannot succeed if his use of 

property was permissive. Braunstein, ¶ 17, 226 P.3d at 833 (citation omitted). The district 

court granted the Appellees summary judgment based on (1) neighborly accommodation, 

and (2) the fence-out doctrine. We conclude the Appellees are not entitled to summary 

judgment under either doctrine.

7

A. Neighborly Accommodation

[¶21] The district court determined that the owners of Warbonnet Ranch allowed the 

owners and lessees of Burnett Ranch to use the parcels as part of a neighborly 

accommodation. Viewing the evidence in the light most favorable to the Appellant, and 

applying our recent precedent, we conclude that genuine issues of material fact preclude 

summary judgment on neighborly accommodation.

[¶22] In Galiher v. Johnson, 2018 WY 145, 432 P.3d 502 (Wyo. 2018) (Galiher II), we 

synthesized the rules regarding neighborly accommodation and elaborated on the 

distinction between neighbors and strangers under the rule. We unequivocally 

acknowledged that “a neighborly accommodation should defeat a claim of adverse 

possession and ‘to hold otherwise would be to adjudge that common neighborliness may 

only be indulged under penalty of encumbering one’s property.’” Galiher II, ¶ 20, 432 

P.3d at 512 (quoting Gray v. Fitzhugh, 576 P.2d 88, 90 (Wyo. 1978)). Then we explained

that adverse possession disputes between neighbors are different than those involving 

strangers because of “the special relationship that often exists between neighbors.” Id.

¶ 21, 432 P.3d at 512 (citing James C. Smith, Neighboring Property Owner, § 6:1 

(November 2018 update)). Neighbors, unlike strangers, “normally have some sort of social 

relationship or contact, whether friendly or otherwise. Generally, neighbors treat one 

another differently because of their status as neighbors.” Id. Accordingly, “[a] ‘neighborly 

accommodation’ simply cannot be assumed—there must be evidence of communication or 

joint activity which demonstrates such an accommodation.” Id.

[¶23] Mr. d’Elia initially testified at his deposition that he gave the Burnetts permission 

to use the disputed property, suggesting that there might have been a neighborly 

accommodation to use the parcels. However, when counsel questioned him further on the 

issue, he confirmed that he never communicated such permission to, or even met, the

 

invited the Appellees to file a motion for summary judgment; or the Appellant had requested clarification 

from the court if it did not understand the notice. 7 The Appellees argued to the district court that the Burnetts’ and their successors’ use of Parcel 2 was 

permissive pursuant to a written agreement contained in the Bureau of Land Management’s files. The court 

acknowledged the agreement in its recitation of the facts but did not further address the agreement in its 

analysis or find permissive use based on the agreement. What effect, if any, the agreement has on the 

Appellant’s adverse possession claim to Parcel 2 must be addressed at trial.
8

Burnetts. His testimony clearly raises an issue for the trier of fact as to whether Burnett 

Ranch ever used the disputed parcels with permission. 

[¶24] Because Mr. d’Elia spent limited time on Warbonnet Ranch and delegated 

management to various individuals over the years, we also consider whether any of those 

individuals granted the Burnetts or the Burnetts’ lessees permission to use the parcels. The 

record contains no such evidence. 

[¶25] John Phillips, who managed Warbonnet Ranch for Mr. d’Elia until about 1991,

testified that he was not aware of an agreement regarding the parcels, adding “[o]ther than 

. . . when we managed it, we would get those cattle down on Burnetts’. And so, essentially, 

we ran on him. They ran on us. It was no big deal.” He confirmed that he had not “sent 

any written permissions” to Burnett Ranch. Although Farm Credit had some written 

permissions at some point “when we had the issues of isolated parcels and cabins,” he did 

not remember the details or have a copy of those. He was not otherwise “aware of any 

written or verbal permission that related to these Parcels 1, 2, or 3.” 

[¶26] Thomas Spawn, who worked for Warbonnet Ranch from 1991 or 1992 until its sale 

to Wagonhound in 2017, testified that he never talked with John Burnett about the parcels

or explicitly told John Burnett that it was okay to run his cows on Parcels 1, 2, and 3. He 

never told Mr. d’Elia that the Burnetts, the Crosses, or the Burnetts’ lessees were running 

cattle on the subject property and asked whether that was okay. Mr. Spawn asked Mr. 

d’Elia whether Mr. d’Elia had a problem with John Burnett using the property before the 

current lawsuit commenced. When pressed for further details, he explained that, in the 

1990s, he told Mr. d’Elia that Burnett and his lessees were using that land and asked if that 

was okay, but he did not recall anything else about that conversation and stated that he did 

not have any discussions with Mr. d’Elia about those parcels in the last 15 years. Mr. 

Spawn never had any discussions with Mr. Burnett about using Parcels 1, 2, and 3 and 

never told Mr. Burnett he was welcome to use those parcels. 

[¶27] As far as individuals associated with Burnett Ranch, John Burnett—who became 

president of Burnett Ranch, Inc. in 2000, and actively managed the ranch until its sale in 

2016—testified that he had minor conversations with Mr. d’Elia a couple of times but that 

was the extent of their relationship. They did not talk about the parcels. When counsel 

asked John Burnett if there was “ever any discussion between Tom Spawn or anybody 

from Warbonnet about permission to use any of the Parcels 1, 2, or 3,” he responded: “No.” 

He testified that neither Mr. d’Elia nor anyone else granted him or anyone else associated 

with Burnett Ranch permission to use Parcels 1, 2, or 3. And Shane Cross, whose family 

leased Burnett Ranch from 2007 or 2008 until its sale, testified that he was not “aware of 

any oral agreements for grazing between Richard Cross or Boot Ranch and Burnett Ranch, 

Inc., John Burnett or Little Medicine Creek Ranch, Inc.” 
9

[¶28] The Appellees point to evidence of “joint activity” between Burnett Ranch and 

Warbonnet Ranch to support the district court’s neighborly accommodation finding. The 

evidence to which the Appellees draw our attention generally consists of testimony that 

individuals from Burnett Ranch and Warbonnet Ranch periodically cooperated with one 

another to remove their own cattle from the other party’s ranch. We acknowledged in 

Galiher II that evidence of “joint activity” may establish neighborly accommodation. 

Galiher II, ¶ 21, 432 P.3d at 512. However, the evidence the Appellees rely on, when 

viewed in the light most favorable to the Appellant, reflects only that the parties were 

asserting ownership over their own respective cattle and ranches. Cf. Gray, 576 P.2d at 90

(relying on a neighborly accommodation to deny an adverse possession claim where the 

claimants “had constructed a pond and recreational development that traversed the 

neighbor’s irrigation ditches” and the evidence reflected that the parties had an unwritten 

neighborly agreement to exchange use of certain lands on each other’s property). The 

record fails to support a ruling on neighborly accommodation as a matter of law.

B. The Fence-out Doctrine

[¶29] The district court also found permissive use based on the fence-out doctrine. It

reasoned that because “[t]he parcels are not, and never were, separately fenced within the 

Burnett Ranch,” and “Wyoming is a ‘fence-out’ state,” “the decision by the Warbonnet 

owners to refrain from fencing these lands equates to permission to allow Burnett Ranch 

cattle to wander [] on the unfenced Warbonnet lands.” We found no evidence that the 

Warbonnet owners made a conscious decision not to fence the disputed parcels. In fact, 

the record on summary judgment contained little, if any, evidence regarding who built or 

decided not to build fences, when, and for what reason(s).

[¶30] “Wyoming is indeed a fence-out state, meaning the onus is on a property owner to 

fence out livestock to prevent damage rather than on the livestock owner to fence in the 

livestock.” Reichert v. Daugherty, 2018 WY 103, ¶ 27, 425 P.3d 990, 997 (Wyo. 2018) 

(citing Braunstein, ¶ 18, 226 P.3d at 834). Under the fence-out doctrine, if a property 

owner leaves land “unenclosed, and the cattle of others, lawfully at large, wander upon and 

depasture it, the owner of such cattle will not be guilty of an actionable trespass.” 

Braunstein, ¶ 18, 226 P.3d at 834–35 (quoting Martin v. Platte Valley Sheep Co., 12 Wyo. 

432, 450–51, 76 P. 571, 574–75 (Wyo. 1904)). The doctrine does not, however, allow the 

owner “to wilfully and knowingly drive” his cattle on another person’s unenclosed land. 

Id. ¶ 18, 226 P.3d at 834 (quoting Martin, 76 P. at 574).

[¶31] In Braunstein, we addressed how the fence-out doctrine fits into the adverse 

possession framework by outlining a non-exhaustive list of six material facts associated 

with the adverse possession elements. Id. ¶ 18, 226 P.3d at 833–35. Of relevance to this 

opinion, the list included “the presence, quality, location, and purpose of fencing,” as well 
10

as the fence-out doctrine.

8

 Id. ¶ 18, 226 P.3d at 834. “The purpose and type of fencing 

(for convenience, casual or designed) becomes an important factual issue when an adverse 

possession claimant uses the disputed property for grazing livestock.” Id. 

[¶32] This is especially true when facts regarding the purpose and type of fencing support 

more than one reasonable inference concerning permissive use. When the facts support 

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

as a matter of law. See White, ¶¶ 37, 44, 406 P.3d at 1251–52 (because multiple reasonable 

inferences could be drawn from the presence of the fence, the significance of its “continued 

presence [had to be] sorted out by a fact-finder at trial, not by a summary judgment 

ruling.”).

[¶33] As in White, the significance of any perimeter fencing around Burnett Ranch and 

the lack of any fencing around the disputed parcels “must be sorted out by a fact-finder at 

trial, not by a summary judgment ruling.” Id. The record on summary judgment may

support an inference that Warbonnet Ranch allowed Burnett Ranch cattle to roam on the 

parcels and graze them. However, another reasonable inference may be drawn from this 

record: Burnett Ranch fenced-out Warbonnet Ranch and its cattle from Parcels 1, 2, and 3 

with the perimeter fence. These competing inferences prohibit application of the fence-out 

doctrine to support summary judgment for the Appellees. See White, ¶ 44, 406 P.3d at 

1252 (citing Braunstein, ¶ 18, 226 P.3d at 834–35).

[¶34] The Appellees argue this case is analogous to England v. Ally Ong Hing, 105 Ariz. 

65, 459 P.2d 498 (Ariz. 1969), which we included in a string cite about the fence-out 

doctrine in Braunstein, ¶ 18, 226 P.3d at 835. Notably, England is not on all fours with

our precedent analyzing adverse possession solely on the basis of livestock grazing. 

Compare England, 105 Ariz. at 69, 459 P.2d at 502 (footnote omitted) (holding that “the 

mere grazing of cattle, absent any other acts of dominion over the land, will not support a 

claim to land based on adverse possession.”), with Braunstein, ¶ 18, 226 P.3d at 835 

(identifying relevant material facts when “the adverse possession claimant rests its claim 

on the grazing of livestock on the disputed property”). England carries little weight here

because of its procedural posture.

[¶35] In England, the Arizona Supreme Court concluded that the owners of a large acreage 

ranch that was fenced around its exterior boundary, and whose cattle roamed freely and 

grazed on unfenced mining claims lying within the ranch’s exterior fence, were not entitled 

to adverse possession.9

 Id., 105 Ariz. at 67–69, 459 P.2d at 500–502. The Arizona trial 

 8 The list also included payment of taxes, execution of title instruments, the claimant’s statements to others, 

and claims based on livestock grazing. Braunstein, ¶ 18, 226 P.3d at 833–34. 9 As a matter of first impression, the court considered “whether one may gain title by adverse possession 

by the mere grazing and ranging of cattle over unenclosed land.” England, 105 Ariz. at 68, 459 P.2d at 

501. Finding Texas authority persuasive, the court held that “the mere grazing of cattle, absent any other 
11

court resolved the plaintiff’s adverse possession claim at bench trial, not on summary 

judgment. Id., 105 Ariz. at 68, 459 P.2d at 501 (noting “[t]he court sitting without a jury 

found in favor of the defendants”). As a result, the Arizona courts did not have to view the 

evidence in the light most favorable to the party opposing summary judgment or consider 

whether multiple reasonable inferences could be drawn from any of the facts, as we must

do here. See White, ¶¶ 14, 39, 406 P.3d at 1246, 1251. And the Arizona Supreme Court 

did not subject the trial court’s ruling to the same “exacting scrutiny” that we must apply

here. See id. ¶ 15, 406 P.3d at 1246.

II. Summary Judgment on the Appellant’s Prima Facie Claim

[¶36] The Appellees requested summary judgment on the Appellant’s prima facie claim

and the district court granted their request, determining that, even viewing the evidence in 

the light most favorable to the Appellant, the Appellant could not establish the elements of 

adverse possession. This is a similar situation to that we addressed in White, where we set 

out in detail why the non-adverse possession claimants were not entitled to summary 

judgment either based on permissive use or any element of the claimant’s prima facie

claim. See White, ¶¶ 39–65, 406 P.3d at 1251–56. Here, as in White, we conclude that the 

Appellees are not entitled to summary judgment on the Appellant’s prima facie claim. In 

reaching this conclusion, we first address how the district court assessed Shane Cross’s 

testimony. We then briefly demonstrate how genuine issues of material fact on each 

adverse possession element preclude summary judgment in favor of the Appellees.

[¶37] In granting the Appellees summary judgment on the Appellant’s prima facie claim, 

the court improperly assessed Shane Cross’ testimony. The court found it undisputed that 

“over the course of decades, the [three] parcels were used by the owners/lessees of the 

Burnett Ranch for the occasional grazing of cattle, consistent with cattle grazing over the 

entirety of the Burnett Ranch.” It found “no evidence to indicate that these disputed parcels 

were particularly earmarked for cattle grazing—the cattle simply roamed over and onto 

these unfenced lands as they wandered through the Burnett Ranch” and “[t]here is little or 

no water for livestock on the disputed parcels.” In a corresponding footnote, the court 

acknowledged Shane Cross’ testimony “that he ‘specifically herded stock on that 

[disputed] parcel,’”10 but it found his testimony insufficient to create a genuine issue of 

material fact for two reasons. 

[¶38] The court first concluded he would have herded stock on the disputed parcel “only 

at some point in time in 2008 or afterwards when the Cross family started leasing the 

Burnett Ranch for grazing, which is less than the ten-year statutory time requirement.” 

 

acts of dominion over the land, will not support a claim to land based on adverse possession.” Id. 105 Ariz 

at 69, 459 P.2d at 502 (footnote omitted). We have never substantively relied on England in an adverse 

possession case.

10 Based on our review of Shane Cross’ deposition testimony, he was probably referring to Parcel 1 when 

he made this statement. 
12

This rationale for rejecting Shane Cross’ testimony is flawed because the Appellant did not 

base its adverse possession claim on Shane Cross’ testimony alone or intend to rely solely 

on the time period in which the Crosses leased Burnett Ranch to meet the ten-year 

requirement. 

[¶39] “More importantly,” the court determined that, “Mr. Shane Cross is a Wyoming 

licensed attorney who became intimately involved in this case when he began giving Mr. 

John Burnett advice about adverse possession[.]” It found Shane Cross’ testimony “selfserving” and determined that his testimony contradicted John Burnett’s and Jim Burnett’s 

testimony “that cattle simply would roam or wander onto the parcels, as they were 

contiguous with the rest of the Burnett Ranch.” 

[¶40] The court’s evaluation of Shane Cross’ testimony was contrary to the well-settled 

rule that a court may not weigh credibility on summary judgment. Downen v. Sinclair Oil 

Corp., 887 P.2d 515, 520 n.3 (Wyo. 1994). Credibility determinations are reserved for trial 

“because ‘[i]t is only when the witnesses are present and subject to cross-examination that 

their credibility and the weight to be given their testimony can be appraised.’” White, ¶ 51 

n.6, 406 P.3d at 1256 n.6 (quoting 10B Charles A. Wright et al., Federal Practice & 

Procedure Civil § 2738 n.42 (4th ed. database updated April 2017)). Any assessment of 

Shane Cross’ testimony thus should have been reserved for trial.11 It is for the trier of fact 

to draw inferences from and weigh Mr. Cross’ testimony against that of the Burnetts or 

other witnesses.

[¶41] Not only does Shane Cross’s deposition testimony present a genuine issue of 

material fact regarding actual, open, and notorious possession, the following evidence 

further precludes summary judgment on this element: evidence that “[a]ll of the Burnett 

Ranch border is fenced except for a section where the canyon-like terrain makes fencing 

impossible” and “Burnett Ranch has been responsible for maintaining” the fence; 

deposition testimony that when Warbonnet cattle made their way onto the ranch through 

areas that could not be fenced due to the terrain, Burnett Ranch either “kicked their cattle 

back” or called Warbonnet Ranch to retrieve them; and deposition testimony that beginning 

in 2000, the Burnetts leased the entire ranch, including Parcels 1, 2, and 3, to various 

individuals for grazing. See White, ¶ 42, 406 P.3d at 1252 (citations omitted) (noting that 

our precedent makes “clear that enclosing land in a fence may be sufficient to raise the flag 

of an adverse claim.” (internal quotations omitted)); Near v. Casto, 613 P.2d 577, 578 

(Wyo. 1980) (noting evidence that the Appellants “leased the property to others for 

ranching purposes” helped satisfy the elements of adverse possession).

 11 See Steven S. Gensler, 2 Federal Rules of Civil Procedure: Rules and Commentary Rule 56 (Feb. 2019 

Update) (citations omitted) (noting that “a court may not reject a nonmoving party’s proof on the basis that 

it is ‘uncorroborated’ or contradicted by the testimony of all of the other witnesses. If the nonmoving 

party’s evidence would be sufficient if believed, the fact that multiple other witnesses contradict the 

nonmoving party’s story does not lead to the conclusion that no rational jury could ever find for the 

nonmoving party.”).
13

[¶42] The record further discloses genuine issues of material fact regarding exclusive 

possession in the deposition testimony of (1) John Burnett; (2) Timothy Weber, who 

worked for Warbonnet Ranch from approximately March 1994 until Wagonhound 

purchased Warbonnet Ranch; and, (3) Mr. Spawn, who, as noted above, worked for 

Warbonnet Ranch from 1991 or 1992 until it sold to Wagonhound in 2017. See Graybill

v. Lampman, 2014 WY 100, ¶ 33, 332 P.3d 511, 522 (Wyo. 2014); White, ¶ 23, 406 P.3d 

at 1248. Finally, because the Burnetts owned Burnett Ranch for decades and continuously 

leased the ranch to various individuals beginning in 2000, and because the Appellant 

purchased the ranch from the Burnetts, the evidence is sufficient to create a genuine issue 

of material fact as to continuous possession. See Graybill, ¶ 38, 332 P.3d at 522. 

[¶43] This case again demonstrates why “adverse possession cases . . . are difficult 

candidates for summary judgment.” See White, ¶ 66, 406 P.3d at 1256 (citation omitted). 

As we emphasized in White, our decision is not intended to prejudge the parties’ claims or 

the evidence. Id. On summary judgment review, the district court’s ability to draw 

inferences from evidence, assign weight to evidence, and assess credibility is limited. Id. 

Those limitations no longer apply to the district court conducting a bench trial. The court 

is then “free to make credibility determinations, draw inferences, and assign weight to 

evidence in any manner supported by the record.” Id.

CONCLUSION

[¶44] Genuine issues of material fact preclude entry of summary judgment in favor of the 

Appellees. We therefore reverse the district court’s entry of summary judgment in favor 

of the Appellees and remand for trial.