We "evaluate the record ‘from the viewpoint most favorable to the party opposing the motion for summary judgment, giving that party all the favorable inferences which may be drawn from the facts contained in affidavits, depositions, and other materials appearing in the record.’ " O'Hare , 2020 WY 31, ¶ 16, 458 P.3d at 1233 (quoting Murdock v. Zier , 2006 WY 80, ¶ 9, 137 P.3d 147, 150 (Wyo. 2006) ). [¶13] We review summary judgment claims for adverse possession with "more exacting scrutiny" because they "are inherently fact-intensive," viewing them in the same light, using the same materials, and following the same legal standards as the court below. O'Hare , 2020 WY 31, ¶¶ 16-17, 458 P.3d at 1233 (quoting Little Medicine Creek , 2019 WY 103, ¶ 15, 450 P.3d at 228 ).
The test for adverse possession in a mistaken boundary case imposes shifting burdens upon the parties: Murdock v. Zier, 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo.2006); Wyo. Stat. Ann. § 1–3–103 (LexisNexis 2013) (“An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten (10) years after the cause of such action accrues.”).
Possession must be for the statutory period of ten years. Murdock v. Zier , 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006) ; Wyo. Stat. Ann. § 1-3-103 (LexisNexis 2013). The test for adverse possession imposes shifting burdens upon the parties:
, the presumption should be, in the absence of explanatory circumstances showing the contrary, that he occupied the land adversely and under a claim of right, casting the burden of explaining such possession upon the person who disputes his right. Murdock v. Zier, 2006 WY 80, ¶ 15, 137 P.3d 147, 151 (Wyo. 2006) (quoting City of Rock Springs v. Sturm, 273 P. 908, 915-16 (Wyo. 1929)).
"Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully." Murdock v. Zier , 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006). To meet the hostility requirement, the act or possession must demonstrate the claimant "unfurl[ed] his flag on the land, and ke[pt] it flying, so that the owner [could] see ... an enemy ... invaded his domains, and planted the standard of conquest."
"Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully." Murdock v. Zier, 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006). To meet the hostility requirement, the act or possession must demonstrate the claimant "unfurl[ed] his flag on the land, and ke[pt] it flying, so that the owner [could] see . . . an enemy . . . invaded his domains, and planted the standard of conquest."
Additionally, "[i]t has long been established in Wyoming . . . that, color of title is not necessary when there is actual possession." Murdock v. Zier, 2006 WY 80, ¶ 18, 137 P.3d 147, 152 (Wyo. 2006) (citing Trefren v. Lewis, 852 P.2d 323, 325-26 (Wyo. 1993)).
The Kudars assert that their reliance on the incorrectly located survey marker distinguishes this situation from other mistaken boundary cases. See Murdock v. Zier, 2006 WY 80, ¶ 15, 137 P.3d 147, 151 (Wyo. 2006) ("[W]hen a man has occupied . . . ground, though under a mistaken belief as to the true boundary, for the period prescribed by law, openly, notoriously, [and] exclusively, . . . the presumption . . ., in the absence of explanatory circumstances[, is] that he occupied the land adversely . . . ."). The Kudars claim that prior to the discovery of the actual boundary in 2016, the Kudars were "essentially defrauded . . . by a third party," therefore "adverse possession . . . ran from the 2016 discovery of the survey error," defeating the ten year statutory time frame for adverse possession.
Further, we evaluate the record "from the viewpoint most favorable to the party opposing the motion for summary judgment, giving that party all the favorable inferences which may be drawn from the facts contained in affidavits, depositions, and other materials appearing in the record." Murdock v. Zier , 2006 WY 80, ¶ 9, 137 P.3d 147, 150 (Wyo. 2006) (citing Ballinger v. Thompson , 2005 WY 101, ¶ 9, 118 P.3d 429, 433 (Wyo. 2005) ). "When, as here, we review a grant of summary judgment on an adverse possession claim, we apply the summary judgment standard with ‘more exacting scrutiny’ because adverse possession claims are inherently fact-intensive." Little Medicine Creek , 2019 WY 103, ¶ 15, 450 P.3d at 228 (quoting White , 2017 WY 146, ¶ 15, 406 P.3d at 1246 ).
"Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully." Murdock v. Zier , 2006 WY 80, ¶ 10, 137 P.3d 147, 150 (Wyo. 2006). Further, the Johnsons must show they possessed the property in this manner for at least ten years.