accord Fegler v. Brodie, 574 P.2d 751, 754 (Wyo. 1978)
How later courts described this case
- accord Fegler v. Brodie, 574 P.2d 751, 754 (Wyo. 1978)
- stage six issue of fact review
- Category 5 summary judgment
Written by the judges who cited it.
The opinion
THOMAS, Chief Justice,
specially concurring.
I agree that the grant of summary judgment by the district court should be upheld in this case. I would do that, however, on the grounds that the record discloses that whatever may have been the situation with respect to the deed from Antonia Gosar to the Cordovas, and even conceding a transfer of the property at 417 Tisdel to them, this record discloses as a matter of law that she re-acquired title by adverse possession. I am satisfied that the record discloses all of the elements of adverse possession in accordance with our Wyoming precedents. Harsha v. Anastos, Wyo., 693 P.2d 760 (1985); Doenz v. Garber, Wyo., 665 P.2d 932 (1983); Farella v. Rumney, Wyo., 649 P.2d 185 (1982); and Shores v. Lindsey, Wyo., 591 P.2d 895 (1979). The only refutation of the establishment of title in Antonia Gosar by adverse possession following the deed to the Cordovas is found in the affidavit of Elmer Cordova to the effect that her possession of the property was consensual because of an apparent lease arrangement.
As I analyze Elmer Cordova’s affidavit he is asserting that Antonia Gosar was permitted to remain in the residence at 417 Tisdel until she “went back to the old country” and that the agreement was that she would pay the taxes and insurance in lieu of rent. In substance this describes a lease for a term longer than one year which is required to be in writing under our version of the statute of frauds. § 1-23-105, W.S. 1977. It follows for me that Elmer Cordo-va’s recitation in his affidavit of a lease arrangement for a term in excess of a year that is not in writing is not competent evidence. It, therefore, is subject to being ignored in accordance with Rule 56, W.R. C.P. because the facts presented by affidavit to the district court must be admissible evidence. When these contentions of Elmer Cordova’s affidavit are ignored, there is nothing to refute the record showing of adverse possession in Antonia Gosar. This case is thus distinguishable from Harsha v. Anastos, supra.
For this reason I would agree to affirm the summary judgment of the district court.
*643 BROWN, Justice,
specially concurring.
I concur in the result. The majority opinion is the product of a prodigious amount of valuable research and compilation.
Were I writing for the majority I would try to be less detailed, but the result would be the same.
MACY, Justice,
concurring.
I concur in the result based on the well-established standards governing appellate review of summary judgments. The related matters contained in the majority opinion would, however, be more appropriately addressed in a law review article.