Terry Miner and Colleen Miner, Husband and Wife v. Jesse & Grace, Llc, a Wyoming Close Limited Liability Company, and Snowy Range Housing, Llc, F/K/A Zhao & Zhou, Llc, a Wyoming Close Limited Liability Company

IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 17

OCTOBER TERM, A.D. 2013

February 4, 2014

TERRY MINER and COLLEEN MINER,
Husband and Wife,

Appellants
(Plaintiffs),

v.
S-13-0094
JESSE & GRACE, LLC, a Wyoming
Close Limited Liability Company, and
SNOWY RANGE HOUSING, LLC, f/k/a
ZHAO & ZHOU, LLC, a Wyoming Close
Limited Liability Company,

Appellees
(Defendants).

Appeal from the District Court of Albany County
The Honorable Jeffrey A. Donnell, Judge

Representing Appellants:
Dennis C. Cook and Craig C. Cook of Cook and Associates, P.C., Laramie,
Wyoming. Argument by Mr. Dennis C. Cook.

Representing Appellees:
Kelly Neville Heck and Elisa M. Butler of Brown & Hiser, LLC, Laramie,
Wyoming. Argument by Ms. Heck.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

* Justice Voigt retired effective January 3, 2014.
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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Appellants Terry and Colleen Miner purchased vacant property in Laramie,
Wyoming. Shortly thereafter, they discovered that the back of a four-plex apartment
building on an adjacent property encroached five feet onto their property, along the
length of the apartment building. The Miners brought an action seeking a declaration that
they own the encroaching portion of the apartment building and an order requiring that
the building be partitioned and that Appellees Jesse & Grace, LLC and Snowy Range
Housing, LLC (collectively the LLCs) be ejected from the encroaching portion of the
building, or that the encroaching portion of the building be removed. The Miners also
requested damages for trespass and an apportionment of rental income earned from the
apartment building.

[¶2] The district court entered partial summary judgment against the Miners on their
claim to an ownership interest in the apartment building. Having concluded that the
Miners had no ownership interest in the apartment building, the district court denied the
Miners’ requests to eject the LLCs from the building, their request to partition the
building, and their demand for a proportional share of the apartment building’s rental
income. A bench trial was held on the remaining issues, and following that trial, the
court ruled that the LLCs were entitled to an implied easement on the Miners’ property to
accommodate the apartment building. The court then entered an order granting the LLCs
an implied easement on the Miners’ property and enjoining the Miners from interfering
with the LLCs’ use of that easement.

[¶3] We affirm the orders of the district court.

ISSUES

[¶4] The Miners present the following issues on appeal:

I. Whether the district court erred by denying [the
Miners’] ejectment and trespass claims to assert ownership of
the property underlying 20% of 388 Buchanan and the
improvements thereon?

II. Whether the district court erred when it interpreted the
clear and unambiguous language of [the Miners’] deed to
their property and found as a predicate to its determination of
an implied easement that the 20% of 388 Buchanan that is
located on [the Miners’] property is not an improvement to
that property?

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 III. Whether the district court erred by finding that [the
LLCs] have an implied easement to occupy [the Miners’]
property with their encroaching building and then by
enjoining [the Miners’] access to that implied easement on
their property?

IV. Whether partition of the co-owned building known as
388 Buchanan or whether an injunction to remove the
encroaching part of that building from [the Miners’] property
is the appropriate remedy in this case?

The LLCs phrase the issues on appeal as:

I. The District Court correctly decided that the physical
structure of 388 Buchanan belongs to [the LLCs] and as such,
[the Miners] are not entitled to recover under their claims for
partition and ejectment.

II. The District Court correctly decided that [the LLCs]
have an implied easement over the portion of [the Miners’]
property underlying 388 Buchanan and the requisite setback
area.

FACTS

[¶5] The present dispute centers on an apartment building located on Lot 1 of Block 29
in West Laramie, Wyoming, with a street address of 388 Buchanan. The apartment
building was constructed by Susan Jaycox in 2005, who at that time owned all of Lot 1.
At the same time Ms. Jaycox was constructing the apartment at 388 Buchanan, she was
also constructing a second apartment building on Lot 1, at 382 Buchanan. The buildings
were situated perpendicular to each other, with the unit at 388 Buchanan facing east and
the unit at 382 Buchanan facing north.

[¶6] To finance the construction of the apartments at 388 and 382 Buchanan, Ms.
Jaycox obtained separate loans for each building and secured each loan with a mortgage
on a respective 70’ x 130’ area of Lot 1 on which each building was to be constructed.
The recorded mortgage for 388 Buchanan encumbered a portion of Lot 1 described as:
“The North 70 feet of the East 130 feet of Lot 1, Block 29, Town of West Laramie, now
the City of Laramie, Albany County, Wyoming” (hereinafter referred to as the North
Parcel). The recorded mortgage for 382 Buchanan encumbered a separate portion of Lot
1 described as: “The South 70 feet of the North 140 feet of the East 130 feet of Lot 1,
Block 29, Town of West Laramie, now the City of Laramie, Albany County, Wyoming”

2
(hereinafter referred to as the South Parcel). The mortgages for the North Parcel and the
South Parcel were each recorded on May 20, 2005.

[¶7] Ms. Jaycox experienced financial difficulties and was unable to remain current on
her mortgage payments on the North Parcel and the South Parcel. In 2007, the mortgagee
for the North Parcel foreclosed upon the mortgage, and the North Parcel was sold to the
mortgagee at a foreclosure sale in December 2007. Also in 2007, the mortgagee for the
South Parcel foreclosed upon that mortgage, and the South Parcel was sold to that
mortgagee at a foreclosure sale in January 2008.

[¶8] In August 2008, Le Zhou and Hong Zhao, husband and wife, purchased the North
Parcel. In November 2008, they transferred the North Parcel to Snowy Range Housing,
LLC (f/k/a Zhao & Zhou, LLC). In October 2008, Le Zhou and Hong Zhao purchased
the South Parcel, and in November 2008, they transferred that property to Jesse & Grace,
LLC. 1

[¶9] Ms. Jaycox continued to own the remainder of Lot 1 until July 2009, when she
sold her remaining interest in Lot 1 to Dale Hansen. Shortly thereafter, in August 2009,
Mr. Hansen sold part of his interest in Lot 1, as well as additional property he owned in
Lot 2, to the Miners, who also already owned property in Lot 2. The Miners paid
$15,000 for the property they purchased from Mr. Hansen, and the recorded warranty
deed described the conveyed property as:

The North 140 feet of the West 44 feet of Lot 1, Block 29 and
the South 140 feet of the East 17 feet of Lot 2, Block 29 And
the North 90 feet of the East 84 feet of the Lot 2, Block 29,
West Laramie, Albany County, Wyoming

Hereinafter, we will refer to the portion of Lot 1 that Mr. Hansen conveyed to the Miners
as the West Parcel.

[¶10] Shortly after purchasing the property from Mr. Hansen, the Miners had their
property surveyed to determine the property boundary so they could build a fence on the
property’s east boundary. Through that survey, the Miners discovered that the back of
the apartment building at 388 Buchanan encroached onto their property, the West Parcel
of Lot 1, by a little over five feet along the 64-foot length of the building. The record, for
both the summary judgment and bench trial proceedings, contains the following map,
which illustrates the property holdings after Mr. Hansen transferred the shaded portion to
the Miners, the property boundaries, and the encroachment of the apartment building at
388 Buchanan onto the West Parcel.

1
The LLCs are both owned by Le Zhou and Hong Zhao. The husband and wife are the sole managers
and members of the LLCs.
3
[¶11] On December 14, 2011, the Miners filed a Complaint against the LLCs seeking a
declaration that they own the encroaching portion of the apartment building and an order
requiring that the building be partitioned and that the LLCs be ejected from the
encroaching portion of the building, or that the encroaching portion of the building be
removed. The Miners also requested damages for trespass and an apportionment of rental
income earned from the apartment building. The LLCs counterclaimed seeking a
declaration that the North Parcel and South Parcel have an implied easement over the
portions of the West Parcel occupied by the apartment building and its parking lot and
requesting an injunction to enjoin the Miners from interfering with the LLCs’ implied
easement. In the alternative, the LLCs sought relief in the form of deed reformation and
quiet title.

[¶12] The parties filed competing motions for summary judgment, and on December 21,
2012, the district court issued a decision ruling as follows:

4
 The Court concludes as a matter of law that the portion
of the apartment building that encroaches upon the West
parcel is not an “improvement” or “appurtenance” attached to
the West parcel. Consequently, the Court concludes that the
July 2009 Warranty Deed from Susan Jaycox to Dale Hansen
did not pass title to any portion of the apartment building at
388 Buchanan. Likewise, the August 2009 Warranty Deed
for the West Parcel from Dale Hansen to Plaintiffs did not
pass title to any portion of the apartment building at 388
Buchanan. Accordingly, Plaintiffs hold no title to any part of
the apartment building, including the approximately 20% of
the building that currently rests on the West parcel.

Lacking title to a portion of the apartment building,
Plaintiffs’ requests to eject Defendants from the apartment
building and to partition the building must fail. Likewise,
Plaintiffs’ demand for a proportional share of the rental
income for the apartment building cannot survive summary
judgment.

***

Summary judgment is granted in Defendants’ favor as
far as ownership of the apartment building. Plaintiffs own no
portion of the apartment building, approximately 20% of
which encroaches upon Plaintiffs’ land known as the West
parcel. Consequently, Defendants’ motion for summary
judgment is granted as to Plaintiffs’ requests to eject
Defendants from the apartment building and for partition of
the apartment building. Plaintiffs have no legal right to these
remedies absent any ownership interest in the building.
Likewise, Plaintiffs[’] request for a proportional share of the
rental income earned from the building also fails.

The Court, however, cannot order anything further at
this time because genuine issues of material fact exist as to
the appropriate remedy to correct the encroachment. Thus,
the remedy and the amount of damages (if any) remain to be
addressed at trial.

[¶13] A bench trial was held on the remaining claims shortly thereafter on January 8-9,
2013, and on January 18, 2013, the district court issued its decision. The court ruled that
the LLCs had established the existence of an implied easement over the West Parcel for

5
the benefit of the apartment building at 388 Buchanan. Because the court found an
implied easement, it denied the LLCs’ alternative claim for deed reformation. The court
further ruled that due to the existence of the implied easement, the LLCs had not
unlawfully kept the Miners out of possession of the land underlying the apartment
building, and the Miners’ claims for trespass and ejectment must therefore fail.

[¶14] The district court granted the LLCs’ request for injunctive relief, finding and
directing as follows, record citations omitted:

The Court finds an injunction is warranted in this case
to enjoin Plaintiffs from interfering with Defendants’ implied
easements. The evidence presented at trial established that
Plaintiff Terry Miner has acted in a way that interferes with
Plaintiffs’ implied easements and their tenants’ privacy.
Specifically, Plaintiff Terry Miner testified that he has
threatened to tow tenants’ vehicles and he has reported them
as trespassors for entering the area covered by the implied
easements. Additionally, Mr. Miner parked a broken-down
trailer from a tractor-trailer combination directly behind the
apartment building, blocking the sunlight from entering the
windows of the lower apartments. After tenants complained
to Defendants, city officials required Mr. Miner to move the
trailer away from the apartment building to ensure that the
tenants could escape through the windows in the event of a
building fire. Mr. Miner moved the trailer to just outside of
the five-foot setback area, where it sits today despite Mr.
Miner’s testimony at trial that he has plenty of space on his
several other lands to store the trailer. He testified at trial that
he parked the trailer there because he could. Mr. Miner’s
actions have amounted to little more than outright harassment
and have been, to be kind, less than neighborly.

Mr. Miner’s actions have unreasonably burdened
Defendants’ implied easements over the premises and have
impeded Defendants’ ability to use and enjoy the implied
easements. Additionally, monetary damages are insufficient
to compensate Defendants for their loss of privacy and the
harassment sustained by their tenants. The court finds that an
injunction is appropriate here to prohibit the servient estate
owner from interfering with the dominant estate owners’ use
of their implied easements. Mr. Miner is enjoined and
ordered to refrain from interfering or threatening to interfere
in any manner with any use of the areas described above by

6
 Defendants or Defendants’ agents, employees, tenants, guests
or others.

[¶15] The Miners timely appealed the orders of the district court.

STANDARD OF REVIEW

[¶16] The Miners appeal the district court’s summary judgment order and its bench trial
order. Motions for summary judgment come before the trial court pursuant to Rule 56(c)
of the Wyoming Rules of Civil Procedure, which requires that

[t]he judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.

Formisano v. Gaston, 2011 WY 8, ¶ 3, 246 P.3d 286, 288 (Wyo. 2011). We review a
grant of summary judgment as follows:

We review a summary judgment in the same light as the
district court, using the same materials and following the
same standards. Id.; 40 North Corp. v. Morrell, 964 P.2d 423,
426 (Wyo.1998). We examine the record from the vantage
point most favorable to the party opposing the motion, and we
give that party the benefit of all favorable inferences that may
fairly be drawn from the record. Id. A material fact is one
which, if proved, would have the effect of establishing or
refuting an essential element of the cause of action or defense
asserted by the parties. Id. If the moving party presents
supporting summary judgment materials demonstrating no
genuine issue of material fact exists, the burden is shifted to
the non-moving party to present appropriate supporting
materials posing a genuine issue of a material fact for trial.
Roberts v. Klinkosh, 986 P.2d 153, 155 (Wyo.1999); Downen
v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo.1994). We
review a grant of summary judgment deciding a question of
law de novo and afford no deference to the district court's
ruling. Roberts v. Klinkosh, 986 P.2d at 156; Blagrove v. JB
Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997).

Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo. 2011).

7
[¶17] With respect to the rulings made by the court following the bench trial, we apply
the following standard of review:

Following a bench trial, this court reviews a district
court’s findings and conclusions using a clearly erroneous
standard for the factual findings and a de novo standard for
the conclusions of law. Piroschak v. Whelan, 2005 WY 26, ¶
7, 106 P.3d 887, 890 (Wyo. 2005).

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 re-weighing 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.

Piroschak, ¶ 7, 106 P.3d at 890. Findings may not be set aside
because we would have reached a different result. Harber v.
Jense, 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo. 2004).
Further,

we assume that the evidence of the prevailing party
below is true and give that party every reasonable
inference that can fairly and reasonably be drawn from
it.

Id.

Claman v. Popp, 2012 WY 92, ¶ 22, 279 P.3d 1003, 1012 (Wyo. 2012) (quoting Pennant
Service Co., Inc. v. True Oil Co., LLC, 2011 WY 40, ¶ 7, 249 P.3d 698, 703 (Wyo.
2011)). We review the district court’s conclusions of law de novo. Lieberman v.
Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo. 2009).

DISCUSSION

A. Miners’ Ownership Interest in Apartment Building

8
[¶18] We address first the Miners’ argument that the district court erred in ruling that
they have no ownership interest in the apartment building at 388 Buchanan. In ruling on
the Miners’ claim to an ownership interest in the apartment building, the question on
which the court focused, and that the parties agree is determinative, was whether the
apartment building is an improvement or an appurtenance attached to the West Parcel.
The district court found no disputed issue of material fact and concluded as a matter of
law that “the portion of the apartment building that encroaches upon the West [P]arcel is
not an ‘improvement’ or ‘appurtenance’ attached to the West [P]arcel.” We conclude
that the court’s ruling is supported by the record on summary judgment and is in
accordance with law.

[¶19] Ms. Jaycox conveyed the West Parcel (and other property not at issue) to Mr.
Hansen by warranty deed. That warranty deed conveyed the West Parcel “[t]ogether with
any improvements thereon or appurtenant [t]hereto.” Shortly thereafter, Mr. Hansen
conveyed the West Parcel (and other property not at issue) to the Miners by warranty
deed. That warranty deed conveyed the West Parcel “together with all improvements
located thereon,” and “with all appurtenances thereunto belonging.” The question then is
whether an interest in the apartment building was conveyed with the West Parcel as an
improvement or appurtenance attached to the West Parcel. As the district court observed,
this is a question of deed interpretation.

[¶20] This Court has observed that deeds are contracts and as such we use our typical
contract interpretation principles to interpret them. Ecosystem Res. LC v. Broadbent
Land & Res., LLC, 2012 WY 49, ¶ 12, 275 P.3d 413, 417 (Wyo. 2012) (citing Gilstrap v.
June Eisele Warren Trust, 2005 WY 21, ¶ 12, 106 P.3d 858, 862 (Wyo. 2005)).

Given that deeds are contracts,
[o]ur deed interpretation rules focus on deriving the
intentions of the parties. Mullinnix LLC v. HKB
Royalty Trust, 2006 WY 14, ¶ 22, 126 P.3d 909, 919
(Wyo.2006); Caballo Coal Co. v. Fid. Exploration &
Prod. Co., 2004 WY 6, ¶ 11, 84 P.3d 311, 314
(Wyo.2004). We start with the language utilized by the
parties to the deed, giving that language its plain and
ordinary meaning. Hickman v. Groves, 2003 WY 76, ¶
6, 71 P.3d 256, 258 (Wyo.2003). If the language is
clear and unambiguous, we look only to the “four
corners” of the deed in ascertaining the parties’ intent.
Caballo Coal, ¶ 11, 84 P.3d at 314.

However, we have also recognized that, even if a contract is

9
 unambiguous, we can examine evidence of the circumstances
surrounding the execution of the deed to arrive at the parties’
intent. Hickman, ¶¶ 6–11, 71 P.3d at 257–58. Relevant
considerations may include the relationship of the parties, the
subject matter of the contract, and the parties’ purpose in
making the contract. Id.

Ecosystem I, ¶¶ 9–10, 158 P.3d at 688 (footnote omitted). See
also, Davidson Land Co. v. Davidson, 2011 WY 29, ¶ 14, 247
P.3d 67, 71–72 (Wyo.2011).

Facts and circumstances evidence is used as an aid in
discerning the plain meaning of the language used in the
deeds. “Plain meaning” is defined as the meaning the
“‘language would convey to reasonable persons at the time
and place of its use.’” Newman v. RAG Wyoming Land Co.,
2002 WY 132, ¶ 12, 53 P.3d 540, 544 (Wyo.2002), quoting
Moncrief v. Louisiana Land and Exploration Company, 861
P.2d 516, 524 (Wyo.1993) (emphasis added).

Ecosystem Res., ¶ 12, 275 P.3d at 417-18.

[¶21] In giving the terms “improvement” and “appurtenance” their plain meaning, we
look to how this Court has defined the terms. We have defined the term “improvement”
to mean:

A valuable addition made to property (usually real estate) or
an amelioration in its condition, amounting to more than mere
repairs or replacement, costing labor or capital, and intended
to enhance its value, beauty or utility or to adapt it for new or
further purposes. Generally has reference to buildings, but
may also include any permanent structure or other
development, such as a street, sidewalks, sewers, utilities, etc.
An expenditure to extend the useful life of an asset or to
improve its performance over that of the original asset. Such
expenditures are capitalized as part of the asset’s cost.
Contrast with Maintenance and Repair. See also Betterment;
Internal improvements; Leasehold improvements.

Covington v. W.R. Grace-Conn., Inc., 952 P.2d 1105, 1107 (Wyo. 1998) (quoting Black’s
Law Dictionary 757 (6th ed. 1990)).

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[¶22] This Court has given the term “appurtenance” a similar meaning, defining an
appurtenance as:

‘* * * something annexed to another thing more worthy as
principal, and which passes as incident to it, * * * An article
adapted to the use of the property to which it is connected,
and which was intended to be a permanent accession to the
freehold. Szilagy v. Taylor, 63 Ohio App. 105, 25 N.E.2d 360,
361.’

King v. White, 499 P.2d 585, 589 (Wyo. 1972) (quoting Black’s Law Dictionary 133 (4th
ed.)).

[¶23] Applying these definitions, the district court concluded that the encroaching
portion of the apartment building was not an “improvement” or an “appurtenance”
attached to the West Parcel because: Ms. Jaycox, the developer, did not intend the
building or any part of it to be placed on the West Parcel; the apartment building was not
treated as a part of the West Parcel; and, as the district court phrased it, the “building was
never intended to enhance the value, beauty, or utility of the West Parcel, or to adapt the
land for new or further purposes.” The evidence before the court on summary judgment
supports these findings.

[¶24] On summary judgment, the district court had before it two affidavits from both
Ms. Jaycox and Mr. Miner. In her first affidavit, Ms. Jaycox attested, in part:

13. I acted as my own general contractor for the
construction of 388 Buchanan and 382 Buchanan and
submitted a Site Plan to the City of Laramie in order to obtain
the requisite building permits which was subsequently
approved. * * *

14. According to [the] plan, the western wall of 388
Buchanan was to be one hundred nineteen feet to the west of
the eastern property boundary of Lot 1.

15. I personally measured and staked out the
foundation site of 388 Buchanan in advance of the excavator
who was to prepare the site for the pouring of the concrete
foundation.

16. I arrived on the building site of 388 Buchanan
as the foundation was being poured and realized that the
foundation rested more to the west than where I had staked it

11
 out, which was later problematic as it was approximately five
feet west of the 70’ x 130’ area I originally allotted to 388
Buchanan.

17. A common parking lot was laid between 382
Buchanan and 388 Buchanan, including some parking spaces
on [the] north side of 388 Buchanan.

18. 388 Buchanan is an eastern-facing two-story
rectangular building with two four-bedroom units upstairs and
two identical units downstairs whose windows are garden
level. The only doors to access the interior of 388 Buchanan
are on the eastern wall.
***
34. I retained ownership of the [West Parcel] until
July 13, 2009 when I conveyed it to Dale Hansen.
***
37. Between May 2, 2008 and July 13, 2009 while I
retained ownership of the [West Parcel], the owners of the
[North Parcel] continued the prior use of 388 Buchanan,
parking spaces and the set-back area and at no time did I
believe that I owned any portion of the physical structure of
388 Buchanan nor did I assert any right to access or have
possession or otherwise act as an owner over any part of 388
Buchanan.

[¶25] In her second affidavit, Ms. Jaycox further attested:

13. While I realized that the foundation for 388
Buchanan was poured at a location more to the west than
where I had staked it out for the excavator, I did not measure
the difference and did not know at that time that a small
portion of the foundation now rested on the [West Parcel].

[¶26] In his first affidavit, Mr. Miner attested to the following concerning his purchase
of property from Mr. Hansen, which property included part of Lot 2 as well as the West
Parcel:

2. I am a co-plaintiff with my Wife, Colleen
Miner, in the above-captioned matter.

3. Although my wife, Colleen Miner, is a named
party in this matter, as a joint tenant with me, I am solely

12
 responsible for the management and maintenance of our
property which is the subject of this matter.

***
6. I purchased the property to add to the existing
adjoining property we own in Lot 2 in Block 29, to provide
additional parking and storage space for my tenants in
apartments on Lot 2 at 371 and 379 Lincoln Street as well
[as] to construct a possible rental property[,] either rental
storage or rental residential units under the current zoning for
the property.

[¶27] Mr. Miner added the following attestation in his second affidavit:

10. At this time there is no city water or city sewer
service available in Madison Street between Lincoln and
Buchanan Streets, but water service is likely with further
annexation of the trailer park on the north side of Madison.
Nevertheless, development of storage units that do not require
either water or sewer service are possible now on the land my
wife and I purchased from Dale Hanson (sic) when the cloud
on the title to that property is removed as a result of this
lawsuit.

[¶28] From these statements, it is evident that although the back of the apartment
building at 388 Buchanan encroaches on the West Parcel, the building is not an
improvement or appurtenance attached to the West Parcel. Ms. Jaycox, the property’s
developer, did not intend to make the building a permanent accession to the West Parcel.
And, the building was not situated such that it adapted the West Parcel to a new use. In
particular, parking for the apartment building was to the east and north of the building,
and the only entrance was on the building’s east side. Finally, the interested parties did
not behave as if the building were an improvement to the West Parcel. Ms. Jaycox did
not assert any right of access, possession or ownership to the building during the time she
owned the West Parcel independent of the North and South Parcels, and Mr. Miner
himself did not buy the West Parcel with a view to using or otherwise drawing income
from the apartment building at 388 Buchanan. In sum, the circumstances surrounding the
development of the apartment building and the conveyance of the West Parcel establish
that the apartment building is not an improvement or appurtenance attached to the West
Parcel.

[¶29] With respect to the affidavit evidence on which the district court based its
summary judgment, we reject the Miners’ suggestion that the court improperly relied on
parol evidence to establish the parties’ subjective intent in using the terms

13
“improvement” and “appurtenance” to describe the scope of the conveyance. The
affidavit statements that supported summary judgment did not express an intent
concerning the meaning of the warranty deeds’ terminology, and nor did they speak to
any agreement as to what the parties to the deeds intended to convey. Instead, the
affidavits described the circumstances surrounding the planning, permitting, and
construction of the apartment building, and the actual and anticipated uses of the West
Parcel. These are the types of showings for which parol evidence is properly admitted.

In theory, the circumstances surrounding the execution of a
contract may always be shown and are always relevant to a
determination of what the parties intended by the words they
chose. In construing a contract, a court seeks to ascertain the
meaning of the contract at the time and place of its execution.
Thus, although the parties may not, because of the parol
evidence rule, testify as to agreements they made before or
contemporaneously with the execution of the contract, the
circumstances surrounding the execution of the contract bear
upon the contract’s meaning. Some courts, not fully
appreciating the distinction between the rule that permits
evidence of the surrounding circumstances to be considered,
and the rule which prohibits the introduction of evidence of
collateral agreements, have held that the former rule runs
afoul of the latter, the parol evidence rule. Indeed,
pronouncements can be found in numerous cases to the effect
that evidence of the circumstances surrounding the execution
of a contract may be admitted, like any other parol evidence,
only where the contract’s meaning is ambiguous. These
decisions in truth, reflect a misunderstanding both of the
scope and purpose of the parol evidence rule, and the
meaning of the phrase “surrounding circumstances;”
“surrounding circumstances” do not embrace either the prior
or contemporaneous collateral agreements of the parties or
their understanding of what particular terms in their
agreement mean. Rather, the term refers to the commercial or
other setting in which the contract was negotiated and other
objectively determinable factors that give a context to the
transaction between the parties. Such matters as, for example,
whether one or both parties was new to the trade, whether
either or both had counsel, and the nature and length of their
relationship, as well as their age, experience, education and
sophistication would all be part of the “surrounding
circumstances,” admissible, if relevant, notwithstanding the
parol evidence rule.

14
Hickman v. Groves, 2003 WY 76, ¶ 12, 71 P.3d 256, 260 (Wyo. 2003) (quoting 11
Samuel Williston, A Treatise on the Law of Contracts, § 32:7 (4th ed.1999) (footnotes
omitted)).

[¶30] We also find unpersuasive the Miners’ argument that the district court should have
rejected the statements of Ms. Jaycox as self-serving. Specifically, the Miners argue:

Apparently it did not occur to the District Court that Ms.
Jaycox’s statements could well have been motivated by a
desire to avoid liability pursuant to her warranty of title to
“improvements” on the West parcel at the root of Appellants’
title in this matter.

[¶31] If the Miners had evidence that Ms. Jaycox had been untruthful in her statements
concerning where she measured and staked the foundation for the apartment building and
where the foundation was dug and poured, it was incumbent on them to present that
evidence in their summary judgment opposition. A party may not avoid summary
judgment with bare assertions concerning the truthfulness of a witness’ affidavit. An
affidavit must be countered with evidence, not speculation concerning the credibility of
the attesting witness. See Kibbee v. First Interstate Bank, 2010 WY 143, ¶ 28, 242 P.3d
973, 983 (Wyo. 2010) (where movant has adequately supported summary judgment,
opposing party must come forward with competent evidence admissible at trial showing
genuine issues of material fact and conclusory statements or mere opinions will not
suffice). The Miners point to no such evidence, and we therefore reject this argument.

[¶32] Finally, we agree with the district court that the facts of this case are analogous to
those in Szilagy v. Taylor, the Ohio case to which this Court cited in defining the term
“appurtenance.” See King, 499 P.2d at 589. In Szilagy, the owner of two adjoining lots
constructed a building on his land. Szilagy v. Taylor, 25 N.E.2d 360, 361 (Ohio App.
1939). The owner intended the building to rest on a single lot, but mistakenly overlapped
the other lot. Id. The two lots were later conveyed to different individuals, and the new
owner of the lot on which a small portion of the building encroached, claimed he owned
that part of the building as part of the property he had purchased. Id. The court rejected
the suggestion that the encroaching part of the building was an appurtenance, reasoning

Things pass as incidents to or appurtenances of realty when
they are attached thereto and are essential to its use; in other
words, when they are fixtures. Two general tests to be applied
in determining whether a particular article is a fixture are,
adaptation or application to the use or purpose to which that
part of the realty to which it is connected is appropriated, and
intention to make the article a permanent accession to the

15
 freehold.

While the thing claimed in this case as an
appurtenance was attached to the real estate, the facts disclose
conclusively that it was not so attached with an intention to
make it a permanent part thereof, and also that it was not
adapted to such use as a part of the realty; and therefore the
appellant had no title to the part of the building which stood
on his premises[.] * * *

Szilagy, 25 N.E.2d at 361.

[¶33] As in Szilagy, the undisputed facts in this matter establish that the back portion of
the apartment building at 388 Buchanan was not attached to the West Parcel with an
intention to make it a permanent part thereof or to adapt the West Parcel to a use
associated with the apartment building. The district court's summary judgment against
the Miners on their claim to an ownership interest in the apartment building was
supported by the record and in accordance with law.2

B. Implied Easement

[¶34] We turn next to the Miners’ contention that the district court erred in ruling that
the North and South Parcels hold an implied easement on the West Parcel for the
apartment building at 388 Buchanan, the building’s north parking lot, and the required
five-foot setback area. The court entered its implied easement ruling following a bench
trial, and we conclude that the court’s ruling is supported by that evidentiary record and is
in keeping with our law governing implied easements.

2
The Miners have suggested on appeal that the district court divided ownership of the apartment building
between the owners of the North Parcel and the South Parcel, a result which they suggest unfairly leaves
them out of the partitioning of the building. The question arises, because, as illustrated by the map
included in our opinion, although the majority of the apartment building, that is 55% of the building, sits
on the North Parcel, parts of the building encroach on both the West Parcel and the South Parcel.
Specifically, 20% of the building sits on the West Parcel, which parcel is owned by the Miners, and 25%
of the building sits on the South Parcel, which parcel is owned by Jessie & Grace, LLC. The Miners’
suggestion is that the court implicitly divided ownership of the building between the North Parcel and
South Parcel when it granted the South Parcel an implied easement on the West Parcel to accommodate
the apartment building. We do not find, however, that the court divided ownership of the building
between the owners of the North Parcel and the South Parcel, or decided any issues that could potentially
arise between the North Parcel and the South Parcel. In fact, the court expressly stated that it would not
be addressing such issues, noting in its decision letter following the bench trial, “Only the encroachment
onto the West parcel is at issue in this trial because the North parcel and South parcel are essentially
owned by identical parties who have joined together to request common relief in this lawsuit.” In short,
any boundary issues or building ownership issues between the North Parcel and the South Parcel are left
undecided by the court's ruling below and are not before this Court on appeal.
16
[¶35] This Court has held that an implied easement will be recognized where the
easement is consistent with the intentions of the parties to a conveyance. Hansuld v.
Lariat Diesel Corp. (Hansuld II), 2010 WY 160, ¶ 10, 245 P.3d 293, 298 (Wyo. 2010).
We have explained:

The creation of easements by implication is an attempt to
infer the intention of the parties to a conveyance of land.
Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091
(Wyo.1999). “This inference drawn from the circumstances
surrounding the conveyance alone represents an attempt to
determine the intention of parties who had not thought or had
not bothered to put the intention into words, or perhaps more
often, to parties who actually had formed no intention
conscious to themselves.” Id. (citing Corbett, 603 P.2d at
1293). “The doctrine of implied easements was created for
courts to examine the particular facts suggesting the intent of
the parties to a conveyance and determine if the parties
omitted granting an easement reasonably necessary for the
use and enjoyment of the property.” Id. The implied easement
does not arise where the parties to the conveyance expressly
agree otherwise or where proof of its elements is not
established. Id.

In applying the doctrine of implied easements, we must
determine the parties’ intent at the time that the unified
property was severed from a single possessory interest by
conveyance from the common owner to a grantee.

Hansuld II, ¶ 10, 245 P.3d at 298 (quoting Hansuld v. Lariat Diesel Corp., 2003 WY
165, ¶¶ 16-17, 81 P.3d 215, 218-19 (Wyo. 2003) (Hansuld I)).

[¶36] Three elements must be proved to establish an implied easement:

(1) common ownership followed by a conveyance separating
the unified ownership; (2) before severance, the common
owner used part of the property for the benefit of the other
part, a use that was apparent, obvious, and continuous; and
(3) the claimed easement is necessary and beneficial to the
enjoyment of the parcel previously benefitted.

Hansuld II, ¶ 10, 245 P.3d at 298 (quoting Hansuld I, ¶ 15, 81 P.3d at 218).

17
[¶37] Although the Miners appear to contest only the second element, we will address
each element separately.

1. Unified Ownership followed by Separating Conveyance

[¶38] The evidence in the record is clear that Ms. Jaycox owned all of Lot 1 before she
divided the lot for financing the construction of apartment buildings on the North Parcel
and the South Parcel. Although Ms. Jaycox had encumbered the North and South Parcels
with mortgages in 2005, under Wyoming law, her ownership interest remained unified
until 2008 when the North and South Parcels were sold in foreclosure. See Robinson
Mercantile Co. v. Davis, 26 Wyo. 484, 187 P. 931, 932 (1920) (holding that in Wyoming,
the “mortgage simply creates a lien upon the land, and it must be sold on foreclosure to
pass the title”). In 2008, when the parcels were sold to the mortgagees at the foreclosure
sales, Ms. Jaycox’s unified ownership was clearly separated.

2. Use of Servient Property in an Apparent, Obvious and Continuous
Manner

[¶39] There is no dispute that the apartment building was obvious in the sense of being
clearly visible or that the building had remained continuously in its location that included
an encroachment onto the West Parcel. What the Miners do take issue with is whether
the encroachment was apparent, and in particular they dispute the district court’s finding
that the encroachment “was readily determinable with a tape measure and a few minutes’
time.” The Miners contend the opposite was true and that to determine the property lines
between the North, South and West Parcels was a complicated matter that required a
professional survey. In support of this assertion, the Miners point to the trial testimony of
John Erickson, the surveyor who prepared the survey the Miners requested after their
purchase of the West Parcel.

[¶40] The Miners do not provide a record cite to Mr. Erickson’s testimony, and in our
review of that testimony we found no suggestion by Mr. Erickson that the property at
issue presented uniquely difficult conditions for completing a survey. Mr. Erickson
testified:

Q. Okay. What do you do on the property?

A. Well, in this case – you know, all of West
Laramie, that was originally platted, you know, way a long
time ago. So we have to determine – basically, you determine
the rights of way, so that would be Lincoln, Madison,
Buchanan, and I can’t remember what – the street to the
south. But you have to determine the block boundaries. And
then you work inside to determine the smaller parcels.

18
 So the first thing we would have done is go out there
and look for any monuments that might have been set by
surveyors that were there previous to us. You would look at
things like old fences, that type of thing.

***
A. And then you take that information, and the
surveyor uses his best judgment – you know, it's an art and a
science – takes all the stuff you measure out there to decide
where, in fact, the boundary is.

[¶41] Mr. Erickson did not testify that the Lot 1 property boundaries could not be
determined without a professional survey. Even if he had so testified, however, we do
not find this to mean that the encroachment was not apparent. In the context of an
implied easement, an apparent use or encroachment does not mean, as the Miners argue,
that the use or encroachment is apparent without some effort to find it.

[¶42] This Court has held that to be apparent, a use “must be plainly and physically
apparent by reasonable inspection.” Corbett v. Whitney, 603 P.2d 1291, 1293 (Wyo.
1979). Other authorities have explained:

To be sufficient as the basis of an implied easement on the
severance of ownership, a use imposed on one part of a
property for the benefit of another part must be apparent.
“Apparent,” as used in this context, does not refer to actual
visibility, but rather susceptibility of ascertainment on
reasonable inspection by persons ordinarily conversant with
the subject. Thus, underground drains may constitute an
implied easement, even though not visible from the surface.
However, each case must depend upon its particular facts,
and if such a drain is not apparent upon an inspection the
right to use it will not be implied.

25 Am.Jur.2d Easements and Licenses § 26 (Nov. 2013 Update) (footnotes omitted)
(emphasis added); see also Cellco P’ship v. Shelby County, 172 S.W.3d 574, 590 (Tenn.
Ct. App. 2005) (quoting 28A C.J.S. Easements § 66 (1996)) (“Apparent or obvious use in
this connection does not mean actual visibility, but rather susceptibility of ascertainment
on reasonable inspection by persons ordinarily conversant with the subject.”).

[¶43] We turn then to the record to determine whether the facts support a finding that the
encroachment of the apartment building onto the West Parcel was apparent on reasonable
inspection. More particularly, we must consider whether the facts support a finding that

19
the encroachment could have been ascertained on reasonable inspection by persons
ordinarily conversant with the subject.

[¶44] The evidence was clear in this case that a property survey would have revealed the
encroachment by the apartment building, and that the survey did in fact do so in pretty
short order. Mr. Miner testified:

Q. So when you did that, what – were you there
when the surveyors were there?

A. Yes. I was over working on the fence behind
371 and 379.

Q. What happened when the surveyors came out?

A. They came out and I had gone to lunch. And I
had swung back over to my office. And John Erickson called
me up and explained to me that we had a problem. And I
drove back over. It’s only five or six blocks from my office.
And I drove back over. And I met with John.

And he said, “This building is on your property.” And
I'm going, “How much?” And then he showed me. He took a
pencil and drew a line on the building on both ends and
showed me. * * *

[¶45] The facts support a finding that upon reasonable inspection by a surveyor, who is
of course conversant with determining property boundaries, the encroachment could have
been discovered before the Miners purchased the property that included the West Parcel.
The facts also support a finding that Mr. Miner was conversant in determining property
boundaries and failed to make any type of inspection himself. Mr. Miner testified that he
has experience in buying properties, that he has an “exact 3-foot step,” and that he has
“walked off” numerous properties to measure the property boundaries. With regard,
however, to his purchase of the property from Mr. Hansen, which included the West
Parcel, Mr. Miner testified:

Q. Okay. You testified that when you purchased—
or when you were contemplating the purchase of 371 and
379, that you walked off the property?

A. That's correct.

Q. And that you have an exact 3-foot stride?

20
 A. I do.

Q. I assume you know that because you have
walked off multiple properties?

A. Yes, I have.

Q. You have some experience in doing that. So
I’m assuming that you walked off Mr. Hansen’s property
when he offered it to you.

A. No, I didn’t. It was a year later and it was so
cheap it wasn’t—it wasn't an option.

Q. So it’s your opinion that you got a steal when
you bought this land from Mr. Hansen?

A. Yes, I do.

Q. And Mr. Hansen never made any
representations to you that you owned any portion of 388
Buchanan, correct?

A. No, he did not.

Q. Had you walked off Dale’s lot that he sold you
prior to purchasing? You testified that you had been looking
at it.

A. No, I hadn’t. I mean, it’s obviously attached to
my land, so just looking at it visually, that it was what I
wanted.

[¶46] Mr. Miner offered similar reasoning for his decision to not have the property he
purchased from Mr. Hansen surveyed before completing the transaction. On direct
examination, Mr. Miner testified:

Q. Okay. So talk to me about the purchase, when
Mr. Hansen came to you and said it was for sale, that cross-
hatched area.

21
 A. He called me – or he showed up over there
while I was working on the fence. And he came in and he
said that he had purchased it and that he didn’t want it.

And I looked at him. And I had a number in mind that
I was willing to pay him for it. And I asked him, I said,
“Well, how much do you want?” And he said, “If you buy it
now, you can have it for 15,000.”

And it was either that day or the next day that he came
over with the deed to the land. I purchased it. I told him I
would take it right then.

Q. Okay.

A. So there was no question. It was a swinging
deal, and I took it.

***
Q. Okay. So when you talked to Mr. Hansen about
the purchase of this property, was there any discussion of
what the boundaries of the property were?

A. No, sir.

Q. You had had a survey done of 371 and 379?
A. Yes.

Q. Why not here?

A. 371 and 379 cost me $350,000. This cost me
15. And when you’re standing there on the lot, you look out
and you see this area of dirt.

Q. Were there any fences on the land?

A. There were lots of fences. I got worried about
the fences.

[¶47] On cross-examination, Mr. Miner testified:

Q. Do you believe that it’s wise practice for a
property owner to obtain a survey before they buy something?

22
 A. It depends. You're asking an ambiguous
question where if I’m buying my grave sites up here at Green
Hill, I never went and investigated that, and I never bought
title insurance. I own graves.

Q. No. I'm talking about –

A. If you're talking commercially on a $15,000 lot,
no. On a $10,000 lot? No. On a $350,000 lot? You're dang
right. You cover your everything, because you need to know
that when you get it, it’s yours. If I lose $15,000, it’s going to
hurt, but it isn’t going to kill me. I lose 400, 350,000, that’s
going to kill me.

[¶48] The record is clear that the Miners voluntarily chose to close on their property
transaction with Mr. Hansen quickly and with virtually no inspection of the property.
The evidence is equally clear that on reasonable inspection, the apartment building’s
encroachment onto the West Parcel could have been ascertained. The district court
correctly concluded that the encroachment was apparent, obvious and continuous.

3. Necessity of Implied Easement

[¶49] The final element for establishing an implied easement requires that the easement
be necessary and beneficial to the enjoyment of the property previously benefitted. In
other words, the easement must be necessary and beneficial to the continuing use of the
apartment at 388 Buchanan. Regarding this element, we have said:

We look now at the third element; i.e., the claimed easement
was necessary and beneficial to the enjoyment of the
benefited parcel. Id. We discussed the concept of necessity in
the context of implied easements in Corbett, 603 P.2d at
1293. We quoted from Restatement of Property § 476 cmt. G,
at 2983-84 (1944), as follows:

“... If no use can be made of land conveyed or retained
without the benefit of an easement, it is assumed that the
parties intended the easement to be created ...

“... If land can be used without an easement, but cannot be
used without disproportionate effort and expense, an
easement may still be implied in favor of either the conveyor
or the conveyee on the basis of necessity ...

23
 “... In the different situations that may appear, a constantly
decreasing degree of necessity will require a constantly
increasing clearness of implication from the nature of the
prior use. Accordingly, no precise definition of necessity can
be made.”
603 P.2d at 1293.

In re Estate of Shirran, 987 P.2d 140, 145 (Wyo. 1999).

[¶50] The Miners do not appear to contest that the easement on the West Parcel is
necessary and beneficial to the continued use of the apartment building, and we agree
with the district court’s assessment of this element and find it fully supported by the
record. The court stated, with footnotes omitted:

Here, the necessity and benefit of the easement is
obvious—it would require great effort and expense from the
Defendants to use the apartment building without the benefit
of the easement. Indeed, Plaintiffs request that a significant
portion of the building be removed from their property or that
the building be torn down entirely. The testimony at trial
established that Defendants could not construct a new or
different fourplex on the North Parcel because it does not
contain enough square footage under the City of Laramie's
new building code. The parties agreed, and the Court finds,
that Defendants could only legally construct a duplex on the
North parcel, at best, thus depriving them of the income
stream of two existing apartments. More likely, if a portion
were removed from Plaintiff’s property, the building would
have to be completely torn down and could not as a practical
matter, be replaced at all, thus causing several hundreds of
thousands of dollars of loss. Consequently, Defendants
clearly established the necessity and benefit of the claimed
easement.

4. Remaining Claims Regarding Implied Easement

[¶51] Having concluded that the elements of an implied easement are satisfied, we turn
to the Miners’ remaining claims regarding the easement, including their contentions: that
under Wyoming law an implied easement may not be granted for a building; that the
implied easement effected a private taking of their property; and that the district court

24
improperly rejected their claims for trespass, ejectment and partitioning of the apartment
building.

[¶52] The Miners point out that the implied easements that have been recognized in our
case law are solely for property access and utilities, and from this, they argue that
Wyoming does not recognize implied easements for buildings. We do not accept the
Miners’ leap of reasoning. While it is true that our cases have addressed implied
easements only in the context of easements for property access and utilities, we have not
in those cases suggested that an implied easement may not be established for a building.
See Hansuld II, 2010 WY 160, 245 P.3d 293 (access and water line); Hansuld I, 2003
WY 165, 81 P.3d 215 (access); Shirran, 987 P.2d 140 (access); Gray v. Norwest Bank
Wyoming, N.A., 984 P.2d 1088 (Wyo. 1999) (underground tunnel use); Beaudoin v.
Kibbie, 905 P.2d 939 (Wyo. 1995) (access); Corbett, 603 P.2d 1291 (access). Indeed,
implied easements are generally recognized for any number of beneficial uses, including
property access, utilities, ditches, pipelines, and structures. See 25 Am.Jur.2d Easements
and Licenses § 5 (Nov. 2013 update) (“An easement . . . may exist in land for the benefit
of a building or structure.”); Annotation, Implied Easement upon Severance of Tract
where Building is Near or Encroaches upon the Dividing Line, 53 A.L.R. 910 (1928
Updated 2014); Annotation, Physical Conditions which will Charge Purchaser of
Servient Estate with Notice of Easement, 41 A.L.R. 1442 (1926 Updated 2014).

[¶53] The Miners’ next contention, that the implied easement amounted to a private
taking, also fails. This Court has held that land subject to an easement passes with that
easement and the enforcement or recognition of that easement does not effect a taking.

In 3 R. Powell, The Law of Real Property Ch. 34, ¶ 410 at
61–66 (1985), the author explains a common-law way of
necessity or, as it is sometimes called, an easement by
necessity:

“A transfer of an interest in land sometimes gives rise
to circumstances which justify the implication that an
easement must necessarily have been granted or
reserved by the grantor. * * * When an owner of land
conveys to another an inner portion thereof, which is
entirely surrounded by lands owned by the conveyor,
or by the conveyor plus strangers, a right of access
across the retained land of the conveyor is normally
found. * * * Thus, unless a contrary intent is
inescapably manifested, the conveyee is found to have
a right-of-way across the retained land of the conveyor
for ingress to, and egress from, the landlocked parcel.”

25
 Such a common-law way of necessity does not constitute a
taking subject to constitutional restraints found in Art. 1, §§
32 and 33 of the Constitution of the State of Wyoming
because the common law presumes that the grant of ingress
and egress from land conveyed by the owner of the servient
estate was intended by the parties. Snell v. Ruppert, Wyo.,
541 P.2d 1042 (1975); 3 R. Powell, The Law of Real
Property, supra, Ch. 34, ¶ 410 at 61–68. The rule of the
common law is that a way of necessity goes with the land
constituting the dominant estate, and no payment of
additional compensation is contemplated.

Bush v. Duff, 754 P.2d 159, 163 (Wyo. 1988) (footnotes omitted).

[¶54] We also reject the Miners’ contention that the district court improperly rejected
their claims for trespass, ejectment and partitioning of the apartment building. Based on
our holdings that the district court correctly denied the Miners’ claim to an ownership
interest in the apartment building and correctly granted the LLCs an implied easement for
the encroachment onto the West Parcel, there simply remains no basis for the Miners’
claims that the LLCs are unlawfully interfering with the Miners' possession of their
property or that they are entitled to a division of the apartment building.

5. Clerical Error in Implied Easement

[¶55] The parties did not raise any concerns with the district court’s description of the
implied easements it granted in favor or the North and South Parcels. On our review of
those easement descriptions, however, we identified one clerical error in the description
of the implied easement to benefit the South Parcel. That description reads, with our
emphasis added:

Commencing on the west line of the South parcel at a point
5.0 feet south of the southern edge of the apartment
building at 388 Buchanan Street (as shown on the drawing
attached hereto); thence westerly along a line parallel to the
southern edge of the said apartment building 10.53 feet; then
northerly along a line parallel to the west line of the South
parcel 20.0 feet; thence easterly along a line parallel to the
north line of Lot 1, Block 29 of the Town of West Laramie
(now City of Laramie), Wyoming to the northwest corner of
the South Parcel; thence in a southerly direction along the
west line of the South parcel to the point of beginning.

26
[¶56] As we read the attached drawing to which this description refers, a 20-foot portion
of the building located on the South Parcel encroaches onto the West Parcel. The district
court started the easement at a point five feet south of the building's edge, to
accommodate the required setback, and then proceeded north for twenty feet. Our
concern is that the line north may need to be corrected to reflect the length of the building
on the South Parcel and the 5-foot setback, for a total of twenty-five feet to the north.
This Court is not the proper forum to make this type of correction, if one is indeed
required. Instead we remand to the district court for the limited purpose of considering
whether a correction is needed, and if so, to make the clerical correction. See Wyo. R.
Civ. P. 60(a) (LexisNexis 2013).

[¶57] We affirm the district court’s order, and we order a limited remand for the purpose
described above.

27