Shumway v. Tom Sanford Inc
In Shumway v. Tom Sanford Inc. 637 P.2d 666, 669 (Wyo. 1981), the claimant argued for a presumption of adverse and hostile use arising out of the establishment of open, visible, continuous, unmolested use.
While noting such a presumption had been recognized by this court in previous cases, the Court addressed the inconsistency between the presumption of adverse use and the presumption of permissive use, and concluded the presumption of permissive use should prevail in Wyoming.
In discussing the presumption of adverse use the Court cited 28 C.J.S. Easements 68, which states:
"Presumptions arising out of user. The continuous user of an easement under a claim of right is presumptive evidence of ownership thereof, as against anyone who does not show a superior right.
While the contrary is true in some jurisdictions, sometimes by reason of statute, the general rule is that proof of an open, notorious, continuous and uninterrupted user for the prescriptive period, without evidence to explain how it began, raises a presumption that it was adverse and under a claim of right, or, as is sometimes stated, raises a presumption of a grant, and casts on the owner of the servient tenement the burden of showing that the user was permissive or by virtue of some license, indulgence, or agreement, inconsistent with the right claimed.
The facts to admit of such presumption are not, however, presumed; and the presumption itself is merely prima facie and may be rebutted. The presumption does not arise where the user is shown to be permissive in its inception, or where it is not shown to have continued for the prescriptive period; nor, in the absence of some decisive act indicating separate and exclusive use, does it arise where the user is not inconsistent with the rights of the owner, as, for instance, where the user is in connection with that of the owner or the public or is claimed with respect to unoccupied, unenclosed, and unimproved lands, the use in such cases being presumed to be permissive and in subordination to the owner's title. The latter presumption is not conclusive, however, and may be rebutted."
(Shumway, 637 P.2d at 669-70.)
The only mention of the need to show "exclusive use" in this excerpt was in the context of a claimant seeking to rely upon the presumption of adversity.
In that context, a claimant must show a decisive act of separate and exclusive use.
A claimant cannot rely upon the presumption of adverse use if the use is consistent with the rights of the owner such "as, for instance, where the user is in connection with that of the owner or the public...." Id.