Bogart v. CapRock Communications Corp.

• Decision Date: 08 April 2003
• Docket Number: No. 97,349.,97,349.
• Citation: 2003 OK 38,69 P.3d 266
• Parties: James A. BOGART, individually and on behalf of all others similarly situated, Plaintiff/Appellant, v. CAPROCK COMMUNICATIONS CORP.; Defendant and Third Party, Plaintiff/Appellee, and Southbend Corporation; United Fire & Casualty Company; and, John Doe(s) I through X, Defendants/Appellees, v. Power Engineers, Inc., Third Party, Defendant.
• Court: Oklahoma Supreme Court

69 P.3d 266

2003 OK 38

James A. BOGART, individually and on behalf of all others similarly situated, Plaintiff/Appellant, v. CAPROCK COMMUNICATIONS CORP.; Defendant and Third Party, Plaintiff/Appellee, and Southbend Corporation; United Fire & Casualty Company; and, John Doe(s) I through X, Defendants/Appellees, v. Power Engineers, Inc., Third Party, Defendant.

No. 97,349.

Supreme Court of Oklahoma.

April 8, 2003.

Harry Scoufos, Thomas W. Condit, Sallisaw, OK, for Plaintiff/Appellant.

Don G. Holladay, Timothy D. DeGiusti, Oklahoma City, OK, for Defendant/Appellee, CapRock Communications Corp.

James K. Secrest, II, Edward J. Main, Tulsa, OK, for Defendants/Appellants, Southbend Corp. & United Fire & Casualty Co.

KAUGER, J.

¶ 1 The only issue presented¹ is whether a landowner is entitled to additional compensation when fiber optic cables are installed within the confines of a public right of way or easement on which public highways or roads are established. We hold that under the facts presented, no additional compensation is warranted.

FACTS

¶ 2 This cause concerns a class action lawsuit² brought by the appellant, James A. Bogart (Bogart/landowner), the owner of real property in Sequoyah County, Oklahoma, against the appellee, CapRock (CapRock/telecommunications company), a Texas telecommunications³ corporation. Bogart's property is located on the southeast side of a Sequoyah County road known as the McCoy Ford Road (the road). The landowner seeks compensation from CapRock for installing fiber optic cables in the public road easement without obtaining the landowner's permission and/or providing compensation.

¶ 3 Bogart purchased the property, "less and except public road rights of way" and subject to "any easements of record," in January of 1992.⁴ The property is burdened by two perpetual easements for the construction of an "Improved Highway." The easements were conveyed to Sequoyah County by Bogart's predecessors in title and filed in 1932 and 1937.⁵ Both easements provide in pertinent part:

"... [the owner/owners] so long as this easement is in full force and effect defend the same unto Sequoyah County, Oklahoma, against all and every person whomever claiming the same.

This easement is granted for the sole purpose of enabling Sequyoh County, Oklahoma, its officers, agents, contractors, and employees to go upon, construct, build and at all times maintain a public road through, along and over the property herein described and enable Sequoyah County, its officers agents, contractors and employees to always keep said road open for the use of the public...."

¶ 4 CapRock is a leading provider of telecommunications services in the south and southwestern United States. Its business involves installing underground fiber optic lines for long distance telephone service and providing local telephone exchange, long distance services, internet and data services.⁶ CapRock applied for and obtained Certificates of Public Convenience and Necessity from the Oklahoma Corporation Commission in 1997, and 1999, in order to qualify as a telephone services provider in Oklahoma.⁷ ¶ 5 The telecommunications company began installing fiber optic cables in various counties in Oklahoma, as part of its development of a 7,500 mile underground fiber optic cable network which would connect points in Oklahoma, Texas, Arkansas, New Mexico, Louisiana, and Arizona. Installation occurred along public highways and county roads and, when necessary, on private property. According to CapRock, when installation was required on private property, it obtained easements from the private property owners.⁸

¶ 6 On January 18, 2000, CapRock, through its subcontractor, obtained approval from the Sequoyah County Commissioners to install fiber optic cables in Sequoyah County.⁹ CapRock secured utility permits on February 17, 2000, issued by the State through the Oklahoma Department of Transportation, to install cables along public highways in Sequoyah County, Oklahoma. On April 15, 2000, Bogart, while inspecting his property, discovered some cables coming out from underneath the road and sticking up out of the ground. The landowner learned from a neighbor that the crew installing the cables was still in the vicinity.

¶ 7 Bogart approached the crew and discovered that CapRock, through a subcontractor, had installed the fiber optic cables. On August 17, 2000, Bogart filed a class action lawsuit against the telecommunications company in the district court of Sequoyah County, Oklahoma.¹⁰ He sought a declaratory judgment and damages for trespass and unjust enrichment. The landowner alleged that without providing compensation and obtaining any title, interest, right of way, easement or permission, the telecommunications company illegally installed fiber optic cable on his real property and the property of other similarly situated landowners. The landowner sought damages only for cables which were installed within the confines of public rights of ways and easements. It is undisputed that this cause relates solely to CapRock's use of the public easement, rather than any claims for personal trespass beyond the confines of the easement or personal property damage.

¶ 8 The cause was removed to the United States District Court for the Eastern District of Oklahoma. On May 11, 2001, CapRock filed a motion for summary judgment in the federal court. It argued that, under Oklahoma law, a right of way or easement which was properly granted for the establishment of a public road, permits the use and occupancy of telephone, telegraph, electric and pipelines within the confines of the right of way or easement. On August 15, 2001, the federal court remanded the case to the district court of Sequoyah County, Oklahoma.

¶ 9 On August 23, 2001, the telecommunications company re-filed the summary judgment motion in state court. The landowner filed a motion for partial summary judgment on September 13, 2001. The trial court granted summary judgment to CapRock on January 14, 2002.¹¹ The landowner appealed, and on February 27, 2002, CapRock filed a motion to retain the cause in this Court. We granted the motion to retain on March 22, 2002, and the cause was assigned on February 13, 2003.

¶ 10 UNDER THE FACTS PRESENTED, THE INSTALLATION OF FIBER OPTIC CABLES WITHIN THE CONFINES OF A PUBLIC RIGHT OF WAY OR EASEMENT ON WHICH PUBLIC HIGHWAYS OR ROADS ARE ESTABLISHED DOES NOT IMPOSE ANY INCREASED SERVITUDE ON THE LAND WHICH WOULD ENTITLE THE LANDOWNER TO ADDITIONAL COMPENSATION.

¶ 11 The landowner does not dispute the State's power to take private property for a public purpose. Rather, he argues that: 1) the easement granted to Sequoyah County was for the sole purpose of contracting, building and maintaining a public road; 2) the installation of fiber optic cables within the easement burdens the property with an additional servitude which was not granted by the easement; and 3) the installation of the fiber optic cable in the public roadway easement, even if authorized by the State, constitutes a taking without just compensation and violates the Okla. Const. art. 2, § 24.¹² In support of his argument, Bogart cites Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

¶ 12 The telecommunications company agrees that real property owners must be compensated for private property taken for public use.¹³ However, it asserts that: 1) pursuant to the Okla. Const. art. 9, § 2,¹⁴ it has a right as a public utility to construct and operate lines "between any points in this State;" 2) once the Oklahoma Corporation Commission authorizes it to furnish telecommunications services within the State, it has a legal right under 18 O.S.2001 § 601¹⁵ and 69 O.S.2001 § 1401¹⁶ to install cable lines within public highways or road rights of way or easements; and 3) because the scope of such right of way or easement includes the occupancy of its lines, it is not required to seek the property owner's permission or provide compensation beyond the compensation provided when the right of way or easement was first acquired. It contends that Nazworthy v. Illinois Oil Co., 1936 OK 150, 54 P.2d 642 and subsequent Oklahoma decisions are controlling.¹⁷

¶ 13 We note at the outset that by virtue of the Supremacy Clause, we are bound by the decisions of the United States Supreme Court with respect to the federal constitution and federal law, and we must pronounce rules of law that conform to extant Supreme Court jurisprudence.¹⁸ We also recognize that nothing in the concept of supremacy or in any other principle of law requires subordination of state courts to the inferior federal courts.¹⁹ Subject to decisions of the United States Supreme Court, state courts are free to promulgate judicial decisions grounded in their own interpretation of federal law.²⁰ However, in the present cause, the landowner only asserts state constitutional claims and only relies on federal law as persuasive authority.²¹

¶ 14 The landowner's reliance on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), is misplaced. Loretto involved a lawsuit brought by a New York City landlord against a cable television company seeking compensation after the cable company installed about 30 feet of cable on the landlord's building pursuant to a state statute. The United States Supreme Court determined that, although the state had the authority to authorize the installation of the cable, the intrusion constituted a taking requiring compensation. After stating that its' ruling was very narrow, the Court noted that constitutional protection for the rights of private property does not depend on the size of the area permanently occupied.

¶ 15 Loretto dealt with a requirement that private landlords allow cable television companies to attach facilities to the landlord's property. Here, unlike the landowner in Loretto, there was an initial compensation for the...