Tillerson v. Abbott

Re: Outer Range (2022)/Adverse Possession, Ethics

What happens when there is a dispute between neighbours over property lines?

Sources:

ABA Model Rules of Professional Conduct (2020).

Wyoming Statutes Annotated, 1-3-103, 1-3-104.

Brumagim v. Bradshaw, 39 Cal. 24 (1870).

City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908 (Wyo. 1929).

Shores v. Lindsey, 591 P.2d 895 (Wyo. 1979).

 “Adverse Possession Background” Research Memo for Wyoming Legislative Service Office (2006).

Emily Doskow.  “State-By-State Rules on Adverse Possession.” https://www.nolo.com/legal-encyclopedia/state-state-rules-adverse-possession.html 

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

            As a heads up, this episode is based on a plot line from the Amazon Prime show, Outer Range.  The plot line I will discuss is only present in the first few episodes of the show and is mostly removed from the actual plot of the show.  I am going to do my best to stay away from the other parts of the show and only focus on the legal questions of land disputes.  It also should be easy to follow the episode if you have no idea what the show is about.

            Imagine that you recently bought a house but when you decide to build a nice shed in the backyard you encounter a problem.  In order to build a shed you have to comply with certain rules, mainly that the structure must be placed a certain number of feet from the property line.  Not a problem you say and you have someone from the city come out to mark the property lines.  The person from the city tells you that according to the deed on record your property actually extends into an area that your neighbor clearly thinks is theirs because they have planted an entire garden on that land.  So now what?  Is that actually your garden?  Where do you build your shed?  How far over do you mow your lawn?  How do you break the news to your neighbor, with a bottle of wine and some cookies?  Like, hi there I just moved in to the house next door, yes it is lovely to meet you too, oh by the way your very lovely roses are actually on my property…

            Believe it or not this is a scenario that a lot of people find themselves in; I’ve heard more than one example of this from friends and family members either about their own situation or that of someone they know.  This is also the scenario faced by the Abbott family on the show Outer Range, although on a much larger scale.  The show is based in Wyoming and focuses on the Abbott family.  The Abbotts have been raising cattle on their ranch for generations; the same is the case for their neighbours the Tillersons.  In the first episode of the show it is revealed that the Tillersons believe the Abbotts have encroached about a mile into their property and they want the land back.  At stake is several hundreds of acres of grazing land and the mineral rights under the land (at least 640 acres which is how many acres are in a square mile, but it is probably more like thousands of acres because the show makes it seem like the pasture is way more than a mile long).  The Tillersons serve the Abbotts with their claim.

            The craziest part of this whole scenario is that the Abbotts actually go to see their lawyer (which usually never happens in these shows).  The lawyer lays out these facts for us viewers: the Tillerson Ranch was established in 1872 and the Abbott Ranch in 1878, but the two survey maps for the ranches are conflicting because apparently map making in the 1870s in Wyoming was not good.  So circa 1870s the property lines between the Tillerson Ranch and the Abbott Ranch were not well defined.  Then the lawyer gives some baffling legal advice to the Abbotts; he just tells them to give up and hand over millions of dollars worth of land to the Tillersons.  I actually screamed at the show at this advice, because I think even the 1st year law students out there would recognize that is some stupid advice.  In another confusing moment it is mentioned that the laws of Wyoming are with the Tillersons’ claim, which again is nonsense.  The reason none of this makes sense is two words, and also a favourite law student topic: Adverse Possession.

            Adverse Possession is a legal concept where someone other than the true owner can gain title to land by possessing it for a certain amount of time.  It is sometimes referred to as squatter’s rights.  The historical justification for adverse possession was that it ensured the effective utilization of land, even if wasn’t by the true owner.  In the turbulent context of European history, this makes sense.  If the true owner is displaced and does not come back for a period of time, likely because they were killed in battle, on a crusade, or they are just an absent owner, then industrious folks are incentivized to move on to the abandoned land and make use of it because there is the potential for ownership.  In the modern context, adverse possession can be useful in offering finality to land claims because it is essentially a statute of limitations for bringing an ejectment case.

            The basic elements of adverse possession are actual, open, and exclusive possession of property in a manner that is hostile to the true owner’s interests.  The possession must be continuous for the statutory time period and made under a claim of right or colour of title.  A useful acronym to remember the elements is ONE HAC: Open, Notorious, Exclusive, Hostile, Actual, Continuous.  So what do all these crazy words mean and how does one acquire title to land through adverse possession?  Actual possession requires that the possessor is physically occupying the property.  The adverse possessor possesses the property openly by acting as though they are the true owner, which makes their possession hostile to the interests of the true owner because they are not in possession of their own property, nor are they benefitting from the use of the property.  The adverse possessor cannot have the permission of the true owner or have some sort of agreement to be in possession of the property, like a lease.  Generally, if the true owner is aware that someone is in possession of their property, but they do nothing then this is not considered permission.  The possession also has to be exclusive, so possession cannot be claimed against land that is open to public use or is being occupied by various unconnected people.

            The continuous element in the U.S. is governed by each State’s laws.  States vary in how long someone has to be in possession of the property before they can claim ownership, from the low end of 5 years (like in California or Montana) to a high-end of 30 years (in Louisiana and New Jersey).  Many States will allow an adverse possession claim after a shorter period of time if the adverse possessor has a deed and/or has paid taxes on the property (for example Arizona requires possession for 10 years with no action, but lowers the time needed to 5 years if the property is in a city or town and the adverse owners have a deed and paid taxes.  The time frame is lowered to 3 years (which is the lowest in country) if there is a deed and taxes paid on rural property.)  A lot of States require that the adverse possessor paid taxes for some or all of the statutory time period.  Wyoming, where Outer Range takes place, requires continuous possession for 10 years, with no requirement of a deed or paying taxes.  This actually makes Wyoming one of the more relaxed States for adverse possession, which makes sense because there is a lot of land and not a lot of people.

            Wyoming’s rules for adverse possession gives the Abbotts a strong claim on the land that the Tillersons are trying to claim is theirs.  According to Wyoming’s adverse possession laws, the Abbotts only have to show they have been in exclusive possession of the land for 10 continuous years prior to legal action being taken by either side.  Although it is not mentioned explicitly in the show whether the fence and use for cattle grazing has been going on for 10 years, we can assume from the clues given in the plot that for as long as Royal has been a part of the Abbott Family the pasture has not changed.  That is definitely more than 10 years because Royal shows up as a young teenager and now has two adult sons and a granddaughter that is more than 10 years old.  

            Also, the State of Wyoming does not require the Abbotts to have done anything else other than possessing the property as though they are the true owners.  The Abbotts have been treating the disputed pasture as though they owned it since the 1870s because they believed it was theirs.  There is no intent element to adverse possession; the possessor does not actually need to know that they are occupying someone else’s land.  They simply must show they have dominion over the property.  This possession is considered hostile only because it goes against the rights of the true owner to possess their own property.

            The only real question here is whether the seasonal nature of grazing cattle in the pasture counts as being exclusive and continuous.  After all, technically the disputed pasture land is only being used occasionally to graze cattle because the Abbotts, like most ranchers, rotate the cattle regularly to allow the vegetation to grow back after the cattle have been eating it.  In the show, Royal even moves the cattle out of the disputed pasture early because they lose a few cows and don’t want to lose more.  So, does the fact that the Abbotts don’t have a permanent structure, or year-round presence on the land hurt their adverse possession claim?  The answer is no; the case law is pretty clear that continuous and exclusive possession can be shown by putting up and maintaining a fence and grazing cattle on the land.  This use is almost identical to a Supreme Court of Wyoming case decided in 1979, Shores v. Lindsey; in that case the Court rejected an argument that cattle grazing is too sporadic and scattered to be continuous possession.  The Court cites case law as far back as 1887 (by the way: Wyoming became a State in 1890, so cases decided prior to then were by the Wyoming Territorial Supreme Court) and they quote a decision by the California Supreme Court from 1870 that: 

The general principle which underlies all this class of cases is, that the acts of dominion must be adapted to the particular land, its condition, locality and appropriate use. The philosophy of the rule is, that by such acts the party proclaims to the public that he asserts an exclusive ownership over the land, and the acts which he performs are in harmony with his claim of title.  

In Shores, the Court goes on to explain:

A person who rests his claim of adverse possession on the grazing of livestock on the land in question is not required to continuously pasture the herd throughout the entire year. Continuous dominion and control is proven when land suitable for grazing and pasturage is occupied and used in such manner during the full period of the growing season.

The Court also notes, with regard to the fence, that: “It is a generally recognized principle of law that the pasturing of livestock within a substantial enclosure including a fence can be sufficient to establish the elements of adverse possession.”  So by using the pasture to graze cattle in a manner consistent with the general way cattle is raised in the area and by doing it within an enclosed, fenced area the Abbotts have met the State’s requirements of continuous and exclusive possession.  It is also mentioned in Shores that once a claimant has satisfied the requirements of adverse possession the burden of proving any explanatory circumstances to that possession shifts to the disputing party.  This means it is up to the Tillersons to explain why that land should be theirs and they would need to offer proof that contradicts the Abbotts claim under adverse possession.  This proof cannot be that they did not know it was their land until they were surveying the area for possible mineral deposits.  Failure to inspect your land for possible interlopers and ignorance of your land’s actual boundaries are not defenses against adverse possession claims once the statutory period is met.  By not being diligent landowners the Tillersons lost any rights to the disputed tract of land, and their legal action to take back the land is at the very least a decade too late, but is actually a century too late.

            The Abbotts have actually gone above and beyond what is required for adverse possession in Wyoming because they also have a deed for the land and possibly have even been paying the property taxes on land they believed was theirs.  When the first Abbotts bought the land in 1878 the disputed strip of land was included on the survey map of their parcel.  Technically, the deed was not valid because the description of the property was wrong and included property already owned by the Tillersons.  As I mentioned before, the basic definition of adverse possession includes that the possession is hostile under a claim of right or colour of title.  Claim of right is basically a fancy way of saying a claim of ownership.  Colour of title is a claim of ownership based on a defective document.  If an adverse possessor gains ownership to property under a claim of right they only own the property they are in possession of, so if they only ever used a small amount of the true owner’s large piece of land they could only claim the amount they actually used.  With colour of title the adverse possessor can claim ownership over all the property described in the document even if they only possessed part of the land.

            When the Abbotts bought the land, they were given defective title to the property because the property’s description was wrong.  However, the Abbotts continued in their use and possession of the land as it was described in the defective document and would be able to claim ownership of the disputed land under colour of title.  So even though the entire conveyance of land to the Abbotts was invalid they would have gained ownership to the entire parcel as described in the defective deed through adverse possession.  The Abbotts gained title to the entirety of the property stated in their deed and as it is charted in the 1878 map.  Moreover, their claim is actually stronger than the Tillerson’s at this point.

            So, by openly, actually, and continuously possessing the disputed land by using it as pasture to graze cattle, building a fence to make their possession exclusive, and occupying the land for 10 consecutive years the Abbotts have fulfilled the requirements of Wyoming’s adverse possession statute.  This is why the lawyer’s advice is completely bonkers.  The Abbotts have clearly gained ownership to the disputed land and both the Wyoming Statutes and over a century of Wyoming Supreme Court case law support the Abbotts’ claim.  The only reason the Tillersons are even capable of making a play for the land is because they paid off the County Assessor (which is a crime) and they are apparently very litigious which scares everyone into just doing what they want.  Even if no one can prove the County Assessor was bribed, the Abbotts would win their case on appeal and I would argue it is much harder and way riskier to bribe judges.

            Beyond the Abbotts’ attorney giving them dumb legal advice, he is also in serious violation of ethics rules.  That’s right folks, despite all the jokes and dramatic portrayals of lawyers being slimy, unethical sharks (an insult to sharks by the way); lawyers are actually required to follow both State and Federal ethics rules.  Failure to follow these rules can result in the lawyer being sued for malpractice, being subject to discipline, and even being dis-barred and losing their license.  One of the fundamental rules of being a lawyer is the duty to be a zealous advocate for the client.  This means understanding the client’s goals and doing everything you can to help the client achieve those goals legally and ethically.  Lawyers also have a duty to be competent, which means that either they need to be well versed in the area of law and the issue presented to them by a client or they need to research and become well versed.  Other than having or gaining the knowledge and experience needed to represent a client, an attorney can bring in another attorney that is competent in that area, or they must refuse to represent the client.  It is simply not good lawyering to only offer one opinion and one course of action to a client, especially when it goes directly against the client’s stated goals.  

            Here, the Abbotts are adamant that they are not selling the ranch.  In just the first few episodes two separate characters offer millions of dollars to Royal Abbott for the disputed pasture land and he turns them down.  He does try to work out a deal with Wayne Tillerson by offering him a different piece of land, but Tillerson isn’t interested because that land doesn’t have the mineral deposits he wants.  This is the only concession ever offered by Royal.  Despite all this and Royal flat out telling him he does not want to lose the land, the lawyer only tells him he should give the land to the Tillersons.  He does not seem to base his advice on any laws or court cases, the only research he appeared to do was to look into the original survey maps.  So either this lawyer is bad at his job or he also has been paid off by the Tillersons.  Both are ethical violations, but one is just incompetency and the other is a massive conflict of interest that was neither disclosed nor consented to by Royal Abbott.  The lawyer did seem older so maybe he is one foot out the door to retirement and does not want to get involved in this case.  However, if that’s true he still has a duty to end his representation of the Abbotts and to inform them they need to seek different legal counsel.  

            If the issue is simply that the lawyer truly believes, based on real evidence or experience, that the Abbotts’ claim will fail or does not have any merit, then he can certainly express those concerns with Royal.  Part of a lawyer’s job is to manage a client’s expectations and they should always be upfront and honest with the client about potential outcomes.  However, managing expectations in the Abbotts case would be explaining to Royal the legal weaknesses in his claim and the possibility that the Tillersons will drag the litigation out until Royal runs out of money to continue fighting.  Anyone with even a passing familiarity with law in this country will know that legal questions rarely have black and white answers, so any legal advice given in absolute terms without explanation is probably bad advice.  Royal needed to at least seek a second opinion; if not fire his lawyer and get new representation.

            In the opening to this episode I gave an example of a neighbor encroaching on a new neighbor’s land.  The new neighbor discovers the encroachment right away and if they do go introduce themselves and mention that the roses are on their property then they have acted to remedy the situation.  Of course, depending on the jurisdiction and the amount of time the neighbor has been gardening in the other yard, it is possible the previous owner already lost ownership to the encroached area or at least gave some implied consent for the neighbor to continue gardening in that part of the yard.  If that is the case, the new neighbor better hope they have solid title insurance, or they can sue the previous owner for the lost value of the property because it is smaller than the new neighbor thought it was when they bought it.  If the roses are a fairly new development or was an issue addressed by the previous owner, then the new neighbor has options.  The least of these would be to work out a neighborly compromise, like moving the roses to the actual property line, or buying the rose plants from the neighbor.  The more extreme options would involve suing for ejectment (to force the neighbor off the property) and putting a fence on the true property line; or the slightly less dramatic action of agreeing to sell the encroached piece of the property to the neighbor for its market value and redrawing the property lines.  These options are made possible by the timeliness of discovering the problem.

            The Tillersons lost any options they may have had because they did not act sooner.  As soon as they bought their parcel in 1872 they probably should have had it surveyed out and put up a fence on all the land described in the deed.  The moral of this plot line in Outer Range is to be a diligent and knowledgeable land owner.  If you own land you should know exactly where the property lines are and be vigilant about people trespassing on your land.  Another important thing to take away from the show is that if a lawyer only gives you one solution to your legal problem and does not explain the laws behind that single solution, you might need to find another lawyer.