Henry v. Borushko

Summary

The Wyoming Supreme Court affirmed a district court judgment establishing the boundary between adjoining properties at the centerline of an irrigation canal. The court held that a deed describing property as lying north of the canal invoked the rebuttable presumption that the conveyance extended to the canal's centerline, and that the recitation of "40.1 acres more or less" did not rebut that presumption. The court declined to award the prevailing parties attorneys' fees because the appeal was not unreasonable.

Holdings

1. Because the deed referred to the canal without specifying its bank, edge, shore, fence, or another point, the deed was presumed to convey the property to the centerline of the canal rather than only to the north bank.
2. The deed's statement that the property contained 40.1 acres more or less was merely an estimate and was insufficient to rebut the centerline presumption or override the more precise reference to the canal.
3. The Borushkos were not entitled to reasonable attorney fees under W.R.A.P. 10.05 because the Henrys' appeal was not unreasonable and had a nonfrivolous argument concerning the significance of the acreage recitation.

Questions Presented

1. Whether the deed's reference to land lying north of the irrigation canal established the boundary at the canal's centerline or at the fence on the canal's north bank.
2. Whether the deed's recitation of approximately 40.1 acres rebutted the presumption that a conveyance bounded by a non-navigable watercourse extends to the watercourse's centerline.
3. Whether the Borushkos were entitled to reasonable appellate attorney fees because the appeal lacked reasonable cause.

Disposition

affirmed