Weyerhaeuser Co. v. Brantley

• Decision Date: 20 December 2007
• Docket Number: No. 06-7097.,06-7097.
• Citation: 510 F.3d 1256
• Parties: WEYERHAEUSER COMPANY, Plaintiff-Appellee, v. Carl BRANTLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

510 F.3d 1256

WEYERHAEUSER COMPANY, Plaintiff-Appellee, v. Carl BRANTLEY, Defendant-Appellant.

No. 06-7097.

United States Court of Appeals, Tenth Circuit.

December 20, 2007.

Brandon L. Jensen (Karen Budd-Falen with him on the briefs) Budd-Falen Law Offices, LLC, Cheyenne, WY, for Appellant.

Frederick C. Cornish (William S. Leach and Alison A. Verret with him on the brief) Eldridge Cooper Steichen & Leach PLLC, Tulsa, OK, for Appellee.

Before McCONNELL, McKAY and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Weyerhaeuser is the record owner of 300 acres known as Sherrill Farm in McCurtain County, Oklahoma. This appeal arises from Weyerhaeuser's suit to remove Carl Brantley and his livestock from Sherrill Farm. As an affirmative defense to Weyerhaeuser's suit, Brantley sought ownership of Sherrill Farm through adverse possession or, in the alternative, a prescriptive grazing easement on the entire farm. After a bench trial, the district court denied Brantley's property claims and awarded damages and attorney's fees to Weyerhaeuser.

Having jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1291, we AFFIRM.

I. Background

A. Factual Background

Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. The area has historically been a farming and ranching district, with some gravel mining and timber operations. The record does not indicate how long Weyerhaeuser has owned Sherrill Farm, but the parties stipulate Weyerhaeuser is the current record owner and has been at all times relevant to this dispute, which goes back to the early 1980s. The facts in dispute center on whether Brantley had exclusive use of Sherrill Farm for fifteen years.

Brantley claims he began grazing livestock on Sherrill Farm as early as 1980-81, though he never had permission to use it.¹ Since then, Brantley claims he built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claims his adverse possession of Sherrill Farm began in the winter of 1987-88, after Weyerhaeuser last harvested a stand of trees on the property.

During and after the years when Weyerhaeuser was using the area for its timber operations, Weyerhaeuser also permitted a number of other uses on Sherrill Farm. Brantley's father, Bobby, for example, had a license agreement to graze on Sherrill Farm beginning in 1983. The parties disagree how long Bobby leased grazing rights on Sherrill Farm, but the district court found Bobby had a license with Weyerhaeuser until 1992. Brantley maintained his father was no longer using Sherrill Farm by the winter of 1987-88. Brantley's brother Ricky and his wife, Cindy, also asserted adverse possession of Sherrill Farm based on their grazing activities during this time, but they ultimately reached a settlement with Weyerhaeuser, and the parties stipulated Ricky and Cindy had no lawful claim.

Starting in 1987, Weyerhaeuser also leased parts of Sherrill Farm to Oklahoma State University ("OSU"). OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations from livestock and built a fence to protect the plantations, but it did not seek to have Brantley's cattle removed from Sherrill Farm entirely. OSU did request that Brantley cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley's gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation ("ODWC") agreed to include Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley's locked gate nevertheless prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave.

In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

OSU's lease terminated in 2004. A Weyerhaeuser employee testified Weyerhaeuser had plans to put Sherrill Farm back in timber production at that time and to begin gravel mining. Weyerhaeuser argues Brantley's presence on the land delayed these activities, resulting in monetary damages.

B. Procedural Background

In 2005, Weyerhaeuser sued two of Brantley's relatives for trespass. It later amended the complaint on January 31, 2006, to include claims against Brantley for trespass, ejectment, and declaratory relief. Brantley asserted adverse possession or prescriptive easement as affirmative defenses, arguing that his grazing use since 1987 entitled him to the property. After a bench trial, the district court entered judgment in favor of Weyerhaeuser.

II. Discussion

"In an appeal from a bench trial, we review the district court's factual findings for clear error and its legal conclusions de novo." Keys Youth Servs. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001). In this diversity case, we apply Oklahoma law.

The district court determined Brantley's defenses failed because his possession had not been exclusive for the fifteen-year prescriptive period, which required Brantley to establish the elements of either adverse possession or a prescriptive easement since prior to 1991. See Okla. Stat. tit. 12, § 93(4). Specifically, the court found, among other things, Sherrill Farm had been subject to Bobby Brantley's grazing license until 1992 and that OSU and Weyerhaeuser had also conducted activities on Sherrill Farm incompatible with Brantley's exclusive possession.

The district court also determined Weyerhaeuser suffered $10,000 in damages because it was not able to resume timber operations in 2004 due to Brantley's grazing activities. The court, however, rejected Weyerhaeuser's claim for mining damages as speculative. It also granted attorney's fees pursuant to Oklahoma statute.

We agree with the district court that Brantley is not entitled to adverse possession or a prescriptive easement. We also affirm the damage award, but we conclude Oklahoma law does not authorize attorney's fees.

A. Adverse Possession

Under Oklahoma law, "[t]o establish adverse possession the claimant must show that possession was [1] hostile, [2] under a claim of right or color of title, [3] actual, [4] open, [5] notorious, [6] exclusive, and [7] continuous for the full statutory period [of fifteen years]." Francis v. Rogers, 40 P.3d 481, 485 (Okla.2001); see Okla. Stat. tit. 12, § 93(4). The burden of proof in adverse possession cases is "clear and positive" proof with "all inferences and presumptions [] in favor of the rightful owner." Norman v. Smedley, 363 P.2d 839, 843 (Okla.1961). Adverse possession, moreover, cannot be permissive: "permissive possession can never ripen into title against anyone." Zimmerman v. Newport, 416 P.2d 622, 629 (Okla.1966).

1. Findings Support Rejection of Adverse Possession Defense

The district court made a number of findings that fatally undercut Brantley's adverse possession claim. For instance, the court emphasized Brantley never paid taxes on Sherrill Farm and cited Anderson v. Francis, 177 Okla. 47, 57 P.2d 619, 622 (1936): "The payment of taxes is not a controlling circumstance, but it is one of the means whereby a claim of ownership is asserted, and the failure to pay taxes for so long a time tends to weaken a claim of ownership by adverse possession." The court also found "[t]he boundaries of the land Carl Brantley claims to own by adverse possession have evolved to suit his purpose," Aplt.App. 208, and explicitly found Brantley's testimony was not believable when it conflicted with the testimony of other witnesses.

But the district court ultimately determined Brantley's adverse possession claim failed because his use was not exclusive for fifteen years. To meet the requirement of exclusivity, Brantley must "show an exclusive dominion over the land and an appropriation of it to his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, and where two persons have entered upon land, [the one] who has the better title will be deemed to be in possession." Sears v. State Dep't of Wildlife Conservation, 549 P.2d 1211, 1213 (Okla.1976) (quotation omitted).

Based on the evidence produced at trial, the district court found a number of facts indicating Brantley shared the use of Sherrill Farm with others: (1) Brantley's father, Bobby, had a grazing lease on Sherrill Farm until 1992; (2) OSU conducted significant activities on Sherrill Farm during the relevant period; (3) Weyerhaeuser also conducted activities such as road maintenance and gravel sampling during the relevant period; (4) by agreement with Weyerhaeuser, Sherrill Farm is part of an area managed by the ODWC; (5) under the ODWC agreement, Sherrill Farm is open to the public and hunters have used the property; (6) horses not belonging to Brantley ran on Sherrill Farm; and (7) Brantley's brother also claimed grazing rights to Sherrill Farm by adverse possession.

We agree with Weyerhaeuser that these findings support the district court's conclusion Brantley did not use Sherrill Farm to the exclusion of the record owner and other permissive users.

2. Findings Support Rejection of Partial Adverse Possession Defense

As a fallback position, Brantley claims even if others used the southern part of Sherrill Farm, he maintained exclusive possession of the northern part and has proven adverse possession...