dissenting.
Respectfully, I must dissent from the resolution of this case according to the majority opinion. I am satisfied that the trial court correctly entered summary judgment in favor of Ruby, albeit I rely upon a different correct, legal ground from that presented in the order granting summary judgment to Ruby and the clarification of that order that was entered later. The correct resolution of this case is reached by invoking the doctrine "of recognition and acquiescence of a boundary line," which was utilized by this court in Carstensen v. Brown, 32 Wyo. 491, 236 P. *1126517, 519 (1925). That doctrine obviates any question of material fact about a fence of convenience, and supports the acquisition of title by Ruby, in addition to the doctrine of adverse possession. With respect to the contract claimed by the Hovendicks, there clearly was not substantial performance of any obligation owed by the Hovendicks to Ruby, and the trial court correctly ignored that claim. I would affirm the Order entered by the trial court.
This Court first recognized and applied the doctrine "of recognition and acquiescence of a boundary line" in Carstensen, 236 P. at 520-521. The doctrine was invoked to award title to Brown, even though in an earlier opinion in the same case, Carstensen v. Brown, 26 Wyo. 356, 185 P. 567, 569 (1919), the court had ruled that there was not sufficient evidence to support a claim of adverse possession. The result of the second case was described in City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 911 (1929), as "diametrically opposite to that reached on the first appeal."
In his usual, diligent fashion, Justice Blume examined the doctrine critically and thoroughly. The opinion explained the doe-trine of acquiescence and recognition and distinguished it from adverse possession saying:
The doctrine of recognition and acquiescence of a boundary line is upheld by many authorities. 9 C.J. 244; Tiffany, Real Property (2d Ed.) § 295; Thompson on Real Property, § 3112. It is sometimes referred to as acquiescence in, or as a practical location of, or as an implied agreement as to, a boundary. Considering all of the various jurisdictions in the United States, the doctrine is still in a chaotic condition, and no one has yet undertaken to point out definitely the cireumstances under which it is applicable. Some of the authorities consider long acquiescence only as evidence of a boundary, which may be contradicted. Tiffany, supra, § 295. Other authorities say that an agreement may be inferred or presumed from such acquiescence. Note, 110 A.S.R. 685. The doctrine seems to occupy a middle ground between adverse possession and estoppel in pais. It is frequently held that, in order to work an estoppel by conduct, it is necessary that the party against whom it is claimed should have knowledge of the true boundary (Bigelow on Estoppel [16th Ed.] p. 674) and, as said in Carstensen v. Brown, 26 Wyo. [at] 360, 185 P. 567, where both parties are ignorant thereof and have an equal opportunity to know the facts, no estoppel arises. It may be said, however, in this connection, that in many states long acquiescence is accepted as a substitute for knowledge of the facts, and an estoppel may arise in cases of mistake by acquiescence, in connection with a change of situation. Bigelow, supra, p. 675. See Lehman v. Smith, 40 S.D. 556, 168 N.W. 857, where some distinctions between the two doctrines were pointed out. In adverse possession it is requisite, according to the majority of decisions, including Fieldhouse v. Leisberg, 15 Wyo. 207, 88 P. 214, that there be an intent to claim up to a marked division line without reference to where the true line may be, and, if it appears that there was only an intent to hold to the true line, the possession is not adverse, and no title by prescription may be obtained. Note, 15 Ann. Cas. 827; Note Ann. Cas. 1912A, 450; 2 C.J. 139. Indeed, some of the authorities have held that no title by adverse possession can be acquired through a mistake, although in the greater number of cases at least some mistake exists when possession is taken of another's property. Note, 21 L.R.A. 831. Such holding practically results in this, that the intent necessary to make possession adverse is akin to a felonious intent (Ibid), thus virtually making it impossible to gain any prescriptive title. The trend of opinion is said in a note to 33 L.R.A. (N.S.) 930, to be against disturbing a person whose visible boundaries have existed for the period of the statute of limitations. Indeed, some of the authorities have distinetly repudiated the view that it is necessary to claim beyond the true boundary, and that, if a man occupies and claims what he believes to be his own, his possession is adverse and ripens into title upon the expiration of the statutory time. Yetzer v. Thoman, 17 Ohio St. 130, 91 Am. Dec. 122; *1127French v. Pearce, 8 Conn. 439, 21 Am. Dec. 680; Bayhouse v. Urquides, 17 Idaho, 286, 105 P. 1066; Notes, 15 Ann. Cas. 829, Ann. Cas.1912A, 451; Ramsey v. Ogden, 23 Or. 347, 31 P. 778. It would seem that in Ohio and Indiana the courts treat recognition and acquiescence in a boundary line for a period equal to that of the statute of limitations the same as adverse possession for a like period. Yetzer v. Thoman, supra; Helbling v. [Werk] Realty Co., 2 Ohio App. 478 [(1913)]; Rutledge v. Presbyterian Church, 3 Ohio App. 177; Epstein v. Kraft, 16 Ohio Cir. Ct. (N.S.) 251; Thomas v. Webber, 13 Ohio N.P. (N.S.) 301; Scheigert v. Boyer, 69 Ind.App. 674, 122 N.E. 670; Rosenmeier v. Mahrenholz, 179 Ind. 467, 101 N.E. 721; Dyer v. Eldridge, 136 Ind. 654, 36 N.E. 522. But, according to most of the courts, it is not identical with it, and the two doctrines are treated as distinct. Miller v. Mills County, 111 Iowa, 654, 82 N.W. 1038; Morley v. Murphy, 179 Iowa, 853, 162 N.W. 63; Hubbard v. Stearns, 86 Ill. 35; Brummell v. Harris, 148 Mo. 430, 440, 50 S.W. 93; Schwartzer v. Gebhardt, 157 Mo. 99, 104, 57 S.W. 782. See Lehman v. Smith, supra. The distinction is pointed out in the last-cited case [Schwartzer] as follows:
"It is well settled that the possession of coterminous proprietors under a mistake or in ignorance of the true line, between them and without intending to claim beyond the true line, will not work a disseisin, and set in motion the statute of limitation in favor of either, but it is equally as well settled that when such proprietors, in ignorance of the true line, fix and agree upon a permanent boundary line, and possession is taken accordingly, the agreement is binding upon them, and those claiming under them. Jacobs v. Moseley, 91 Mo. 457, 4 S.W. 135. Such an agreement is not within the statute of frauds. Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 64 Mo. 218; Acton v. Dooley, 74 Mo. 63. Nor is it necessary that such an agreement should be shown by direct evidence, but it may be inferred from the acts and conduct of the parties, and their long acquiescence and recognition of the line established as the true line."
Carstensen, 236 P. at 519-20.
In the course of the opinion of the court, Justice Blume alluded to probably all of the then extant authorities, including scholarly treatises. A disagreement among authorities as to a requirement for a dispute or uncertainty with respect to the boundary line was noted. Further, a distinction was made between the passage of time in the case of an express agreement as to a boundary line as distinguished from an implied agreement. Acquiescence for only a short period of time would not be perceived as demonstrating a clear intention to recognize a permanent boundary, but the continuation of such acquiescence for a period of time equivalent to the statute of limitation for adverse possession seems to have been required by the majority of the authorities. The acquiescence must be bilateral, and with knowledge or notice of the claims of the other party. It was in this context that the opinion went on to state:
Thus the existence of a division fence does not alone show the requisite facts. It may be kept up only for the convenience of the parties. 9 C.J. 246. But we think we may safely say that when there is recognition and acquiescence of the parties in a boundary line, uncertain or in dispute in the first instance, for a period equal at least to the prescriptive period, under facts and circumstances which should be considered equivalent to an express agreement, and the land on each side of the line is occupied by the respective parties as their land, no good reason exists why the parties should not be bound to the same extent as though such express agreement had been made and carried out, particularly when facts exist which would make any other holding inequitable.
Carstensen, 236 P. at 521.
After quoting from other authorities to support this proposition, the opinion then explains that, while there may be room for the rule of mutual mistake with respect to the doctrine of acquiescence and recognition, normally a simple mutual mistake as to the true boundary would not interfere with the *1128application of the doctrine. The holding of the court then is announced in the context of a recitation of the material facts:
We think that the rule mentioned is applicable in the case at bar. That the boundary line was uncertain is unquestioned; it is even uncertain now. With that in view the predecessor in interest of plaintiff erected a fence. This was about 1901. Greet, defendant's predecessor in interest, established his homestead in accordance with that line, and so did defendant, when he bought of Greet in 1904. Plaintiff purchased his land in 1904; he knew that Greet, and subsequently defendant, were in possession of the land east and north of the division fence, presumptively claiming ownership thereof. The parties in 1904 and 1905 jointly built an irrigating ditch, partially on defendant's land, which was used by defendant to irrigate the land east of the fence, and by plaintiff to irrigate land west of the fence. The fence was kept up jointly; each of the parties doing more or less repair work on it from time to time. Plaintiff and defendant exchanged farm work at least as early as 1908; the former often helping the latter farm said land on the east side of the dividing line. In fact, plaintiff helped defendant in breaking up some of his land and in putting it in cultivation. The witness Ilg testified that plaintiff showed him the boundary line on the northwest of the latter's land, a quarter of a mile west of the northern part of the fence mentioned. This was in effect the same thing as though the fence in question had been pointed out as a boundary line, and was, if true, a distinct recognition that the fence was the true boundary line. From 1901 to 1919 the fence stood as a dividing line, and was never questioned as such, at least so far as came to defendant's knowledge, until shortly before this suit was brought in January, 1919.
Carstensen, 236 P. at 523.
This doctrine still is recognized in Wyoming, although it has not been applied in the following cases. Kimball v. Turner, 993 P.2d 303 (Wyo.1999); Coumas v. Transcontinental Garage, 68 Wyo. 99, 230 P.2d 748 (1951); Hudson v. Erickson, 67 Wyo. 167, 216 P.2d 379 (1950); Johnson v. Szumowicz, 63 Wyo. 211, 179 P.2d 1012 (1947); State v. Vanderkoppel, 45 Wyo. 432, 19 P.2d 955 (1933); and Porter v. Carstensen, 40 Wyo. 156, 274 P. 1072 (1929). None of these cases arose in the context of a summary judgment, and all of them were found to be distinguishable from Carstensen for various reasons. This case was not decided on the doctrine of acquiescence and recognition, but it indeed serves as a correct, legal ground upon which we can affirm the trial court. We will affirm a grant of summary judgment if it can be sustained on any legal ground appearing in the record. Franks v. Olson, 975 P.2d 588, 592 (Wyo.1999); Newberry v. Board of County Com'rs of Fremont County, 919 P.2d 141, 144 (Wyo.1996); Duncan v. Town of Jackson, 903 P.2d 548, 551 (Wyo.1995); Bidache Inc. v. Martin, 899 P.2d 872, 874 (Wyo.1995); Moncrief v. Louisiana Land and Exploration Co., 861 P.2d 516, 523 (Wyo.1993).
An analysis of the evidence, in the form of the several affidavits, in the record in this case discloses the absence of any admissible or relevant evidence that the fence in question was a fence of convenience. Some of that evidence relates to interaction between Ruby and Bill Frank, who was the Hoven-dicks' predecessor in interest. Other evidence relates to interaction between Bill Frank and F.F. Veach, who was Ruby's predecessor in interest. What evidence there is is consistent only with the proposition that the fence was a boundary fence.
In his affidavit, Willis Ruby stated:
After I bought the Veach ranch in 1978 until Bill Frank sold his ranch to the Defendants [Hovendicks] in 1998, I had talked to Bill Frank many times about the original boundary fence located south of the river channel. Many of these conversations took place at the fence itself. Many of the conversations concerned repairing the fence because cither his or my livestock had gone through it or the fence had gotten damaged by wild game or by just general winter conditions. From time to time between 1973 and 1998, both Bill Frank and I repaired the fence when it got damaged. When discussing this fence it *1129was always understood and agreed that the existing fence, the original boundary fence, was the boundary fence between his land and mine. He never used any of the land on my side of the fence and I never used any of the land on his side of the fence. When we, or either of us repaired, the fence, it was always kept in the same place except that about 15 or 16 years ago when Bill Frank and I were out along the fence, Bill Frank asked me if he could move a piece of the fence across the river so he could have a water gap to water his livestock. * * *
* * * Bill Frank told me he never claimed any ownership of any of the Disputed Land and that he knew that the people he bought his ranch from in January 1966 never claimed any interest in the Disputed Land either.
In his initial affidavit, provided for Ruby, Gary Frank reported that Veach complained about the trespass by a rodeo bull owned by his father, Bill Frank, and told his father to keep his bulls off of Veach's land. Gary Frank also reported that on another occasion Veach complained about a fire started on the Frank land that burned some of the foliage on Veach's land. Gary Frank also stated that if his father had thought he owned the land he would not have requested permission to build the water gap, and he would have argued with Veach when Veach complained. Gary Frank stated that the only fence that ever divided his father's ranch from the ranch land owned by Veach and lates Ruby was the fence relied upon by Ruby.
In opposing the Motion for Summary Judgment filed by Ruby, the Hovendicks presented a second affidavit from Gary Frank, which was "intended to supplement and clarify my earlier affidavit and otherwise set forth additional facts that I have been asked to set out for purposes of the lawsuit between Mr. Ruby and the Hovendicks." The affidavit is a contrived effort to structure a genuine issue of material fact. After stating his understanding that the property line of Bill Frank's ranch was the middle of the south branch of the Big Popo Agie River, and noting that you could not put a fence in the middle of the river and that it must be placed in a more convenient and practical location, Gary Frank states that "[the current fence was the boundary that separated dad's use of his property from his neighbors [sic] property and visa versa." He further states that he knows "from practical experience as a rancher for many years that fences are placed where they are most convenient and most practical for the operation if the actual boundary line is either not accessible or not practical." He then gives his opinion that the fence in issue was so constructed. Following the recitation of a number of facts designed to support that opinion, Gary Frank concludes his second affidavit by saying, "Itlhe fence was placed where it was, most likely, because that was the most practical place to put it."
For at least a quarter of a century, it has been the rule in Wyoming that:
[flor a summary judgment motion to be successful, the movant must make a prima facie showing that no genuine issue of material fact exists. Clark v. Industrial Co. of Steamboat Springs, Inc., 818 P.2d 626, 628 (Wyo.1991) (quoting TZ Land & Cattle Co. v. Condict, 795 P.2d 1204, 1208 (Wyo.1990)). The burden thereafter shifts to the opposing party to demonstrate the existence of a genuine issue of material fact. Weber v. McCoy, 950 P.2d 548, 551 (Wyo.1997).
Gordon v. Spectrum, Inc., 981 P.2d 488, 491-92 (Wyo.1999). See Wells v. Board of Trustees of Laramie County School Dist. No. 1, 3 P.3d 861, 864 (Wyo.2000); Hittel v. WOTCO, Inc., 996 P.2d 673, 677-78 (Wyo.2000); and Wood v. Trenchard, 550 P.2d 490, 492 (Wyo.1976).
After a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact. Wyo..R.Civ.P. 56(e) Hyatt v. Big Horn Sch. Dist. No. 4, 636 P.2d 525, 528 (Wyo.1981). The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987), and cannot rely only upon alle*1130gations and pleadings, Hyatt, 636 P.2d at 530, and conclusory statements or mere opinions are insufficient to satisfy the opposing party's burden. Boehm, 748 P.2d at 710.
Downen v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo.1994). A number of Wyoming cases invoke and apply these rules. E.g., Simek v. Rocky Mountain, Inc., 977 P.2d 687, 689 (Wyo.1999); Smith v. Board of County Com'rs of County of Sublette 891 P.2d 88, 91 (Wyo.1995); Sanchez v. Life Care Centers of America, Inc., 855 P.2d 1256, 1257 (Wyo.1993); Moore v. Lubnau, 855 P.2d 1245, 1248 (Wyo.1993); Oatts v. Jorgenson, 821 P.2d 108, 110-11 (Wyo.1991); TZ Land & Cattle Co. v. Condict, 795 P.2d 1204, 1208 (Wyo.1990); and Claassen v. Nord, 756 P.2d 189, 194 (Wyo.1988).
Applying these rules to the record in this case, it is clear that the majority does not question that by his affidavit and the first Gary Frank affidavit, Ruby made out a prima facie case for title by adverse possession. While the majority opinion alludes to contentions by the Hovendicks found in their pleadings, the only source of any factual information that could meet the requirements of W.R.C.P. 56(e)1 is the second affidavit of Gary Frank. It is replete with conclusory statements and opinions. Any factual matter that would conform to W.R.C.P. 56(e) is neither relevant nor material. To the extent that the existence of a fence of convenience might be inferred, his affidavit would require sequential inferences, which would fail the rule found in Matter of Estate of Roosa, 753 P.2d 1028, 1035 (Wyo.1988). Even more egregious is that still these inferences would not possess the requisite quality to meet the direct testimony offered by Ruby in his affidavit. Matter of Estate of Roosa, 753 P.2d at 1035; Blackmore v. Davis Oil Co., 671 P.2d 334, 337 (Wyo.1983). In my judgment, the Hovendicks have failed to produce any factual matter to overcome the direct testimony of Ruby that the fence was a boundary fence.
With respect to the oral contract that the Hovendicks rely upon as establishing a division of the disputed lands, the majority opinion points out that such a contract is within the statute of frauds. It presents the exception to avoid the statute of frauds that we have recognized as part performance. Davis v. Davis, 855 P.2d 342, 346 (Wyo.1993). It then points to only those facts that demonstrate the Hovendicks took advantage of the use of the land they claimed under the oral agreement. Nothing reflects any performance by the Hovendicks of any obligation owed Ruby pursuant to the alleged oral contract. It is clear, however, that the Hoven-dicks are the record owners of the tract in question, and the only way they could perform their obligation under the alleged oral contract would be to convey to Ruby the part of the tract they assert was to belong to him. There is nothing in the record that would tend to show this performance on the part of the Hovendicks.
For these reasons, I would affirm the Order of the trial court that granted summary judgment to Ruby.
, W.R.C.P. 56(e) provides:
(e) Form of affidavits; further testimony; defense required.-Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.