Barrett v. Humphrey

• Decision Date: 14 February 2012
• Docket Number: Division No. 2.,No. 108,030.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma,108,030.
• Citation: 2012 OK CIV APP 28,275 P.3d 959
• Parties: Ike BARRETT and Oleta Barrett, Plaintiffs/Appellees, v. Bobby Joe HUMPHREY and Pearl Humphrey, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2012 OK CIV APP 28

275 P.3d 959

Ike BARRETT and Oleta Barrett, Plaintiffs/Appellees,

v.Bobby Joe HUMPHREY and Pearl Humphrey, Defendants/Appellants.

No. 108,030.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

Feb. 14, 2012.

OPINION TEXT STARTS HEREAppeal from the District Court of Sequoyah County, Oklahoma; Honorable Jeff Payton, Trial Judge.REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Lloyd E. Cole, Jr., Stilwell, Oklahoma, for Plaintiffs/Appellees.

William K. Orendorff, Matthew R. Orendorff, Sallisaw, Oklahoma, for Defendants/Appellants.

JANE P. WISEMAN, Judge.

¶ 1 Bobby Joe Humphrey and Pearl Humphrey appeal an order of the trial court finding them negligent and awarding damages to Ike Barrett and Oleta Barrett in this action to recover for damage to a bridge on a road located on property owned by the Humphreys but used for ingress and egress by the Barretts. On appeal, we consider the issue of whether the trial court properly found (1) that the Barretts proved that they possessed an easement on the Humphreys' property and (2) that the Humphreys unreasonably interfered with that property right through their negligence. Having reviewed the record and applicable law, we conclude that the trial court's judgment that the Barretts had previously established their right to an easement on the Humphreys' property is not supported by the evidence.¹ Because the trial court erred in determining the issue of whether an easement had been established, the Humphreys' motion to reconsider should have been granted. We therefore reverse the order of the trial court and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 The Barretts filed a petition for trespass and damages against the Humphreys claiming that they are the “owners of a utility easement and ingress-egress easement that traverses upon and adjoins real property owned by the [Humphreys].” The Barretts did not include a detailed property description of their property, the property over which they claim an easement, or the easement itself. The Barretts alleged the Humphreys “have obstructed the right of ways of the aforesaid easements by placing thereon various and sundry items of useless and deteriorated property best defined as ‘junk’ and has [ sic ] also diverted surface water upon the aforesaid easements to the detriment and damage of the [Barretts].” The Barretts also alleged the Humphreys constructed a pipe which diverted water onto the easement. The Barretts sought damages as well as a permanent injunction. The Humphreys then asserted a counterclaim against the Barretts for trespass.

¶ 3 A non-jury trial was held on October 30, 2009. The trial in this case was consolidated with the trial of another case, CV–2007–414, Bob Humphrey, et al. v. Kenneth Martindale, a case involving the Humphreys' claim of a right to use a portion of the road at issue in this case that traverses Martindale's property.

¶ 4 At trial, J.B. Thomas testified that the road was still being used as a public road in 1980 or 1985 but is no longer used as a public road. Judy Barrett, Ike's former wife, testified that the road goes through her property and ends at Ike's property. She stated Bob Humphrey consistently used the road from 1982 through 1993.

¶ 5 Bob Humphrey testified that although he acquired his property in 1966, he had used the roadway in question all his life (at the time of trial he was 78 years old). He never asked anyone permission to use the road because it was a county road. After he bought additional property in 1977, he started using the road more in order to access his barn. He once put a gate across the road at the entrance to his property, but he removed it after a county commissioner told him to do so. He continued to use the road from 1997 through 2007. In May 2007, however, the Martindales placed a cable across the road to deny him access, but they did not deny Ike Barrett access. Bob Humphrey asked the court to determine that he has a prescriptive easement as to the portion of the road across the Martindale property.

¶ 6 Before the Martindales owned their property, E.C. Stewart and D.C. Stewart sued both Humphrey and Ike Barrett after Humphrey placed a gate across the road (Case no. C–82–16). The trial judge in the present case stated that the journal entry in the 1982 case gave “Mr. Barrett and Mr. Humphrey both access to their properties through the use of that road, but nobody else.”

¶ 7 Humphrey testified that he has equipment on his property on the north side of the road. Some of the equipment has been there for 10 or 15 years, but other pieces have been there only two or three years. He placed the equipment and barrels on the property because he was selling them as part of his business. Humphrey further testified that the barrels he sold did not have lids.

¶ 8 Kenneth Martindale testified he put a cable across the road because there was too much traffic on it and Bob Humphrey claimed he had a right to use the road to cross Martindale's property.

¶ 9 Ike Barrett testified that he lives one-half mile northwest of where the road in question intersects the county road. He claims the road is primarily for his and his family's use and that Bob never objected to his use of the road, which traverses Bob's property. Ike claims he has maintained the road from 1974 to the present at his own expense and that he gave Bob permission to use the road for fire control purposes.

¶ 10 Although the road crosses Bob's property, Ike claims that he rescinded permission for Bob to use the road. However, Ike acknowledged that he had nothing in writing from Bob to evidence an easement in Ike's favor over the property, that he had never sued Bob for use of the road, and that he had never made or had determined any claim to a prescriptive easement to the road across Bob's land. Ike's only claim to the road, beside his use of it, came from the decision in the Stewarts' lawsuit against Bob and Ike. He further testified that no one has ever questioned his right to use the road and that he has performed all of the upkeep on the road.

¶ 11 In 1982, the Barretts constructed an earthen bridge on the roadway as it crosses the creek. Pictures introduced into evidence show a series of six large pipes in the stream at the point where the road crosses the creek. The dirt road travels over the pipes. The road and the bridge at this location are on the Humphreys' property.

¶ 12 John Dillard, a dirt contractor who builds road pads, testified on behalf of the Barretts. Ike formerly worked for Dillard as an employee and had previously performed work on the road in question. There was a rainstorm of approximately 5.8 inches during the night of April 8–9, 2008. Dillard testified that Ike called him in April 2008 after the rainstorm and told him the road had washed out. Dillard went out to look at the road and saw a lot of erosion damage at the place where the pipes had been placed to facilitate the flow of creek water under the road. He testified there were some items on the Humphreys' property that obstructed the flow of water including two lawn mowers, some concrete, and a brush hog. As to the equipment along the road, Dillard stated, “Most of them weren't hurting anything.” But the two lawnmowers located in the overflow drainage were “causing a problem.” Dillard estimated the cost to repair the bridge at $4,875.

¶ 13 On cross-examination, Dillard agreed that he could not say with a reasonable degree of certainty that the lawnmowers caused the erosion. Dillard has no training in road engineering. He did state that a six-inch pipe placed in the ditch by the Humphreys along the road west of the bridge was responsible for the road erosion. He also stated that the other items placed by the road on the Humphreys' property just slowed the overflow of water and caused it to back up in the road. Dillard agreed that the equipment, the barrels, and “everything else out there, has no significance to this lawsuit,” saying that some equipment slowed the water, but he could not conclude that these caused the erosion and damage to the road and bridge. He concluded, “[T]here's no doubt about it, it's obvious that [the six-inch pipe] could not handle the water and it come out into the road and caused that erosion.”

¶ 14 According to Ike, Bob started storing things on his property after Ike was listed as a witness against Bob in another lawsuit. Ike claims the barrels Bob placed on the property would blow into the road. Ike notified Bob that the items on the property were interfering with Ike's use of the road and that there was a problem with the six-inch pipe not being big enough to handle the water in the ditch.

¶ 15 There have been no modifications to the bridge since it was constructed in 1982. Ike testified there have been 2 or 3 previous rains of 5.2 inches or so and there has never been a problem with the bridge pipes handling the water. In the more than 20 years Ike had observed the functioning of the spillway (the area along the road approaching the bridge), the water had on one occasion started into the spillway but had never been needed to handle the water because the pipes in the stream had always worked to carry the water volume.

¶ 16 Ike testified that with a forecast for heavy rain on April 9, 2008, he went to check on the bridge and found no debris around it. The next morning just after daylight, he went down and saw that several of Bob's barrels were gone as well as one of the lawnmowers. Ike testified that these items restricted the water, turning it down the road and creating extreme erosion. Ten days later, on April 19, 2008, Ike cleaned out the pipes in the stream under the road and found two barrel lids in front of two of the pipes. He testified that Bob had some barrels on his property with lids like the ones he found. However, the lids found in the pipes under the bridge were on the...