Concho Const. Co. v. Oklahoma Natural Gas Co.

• Citation: 201 F.2d 673
• Decision Date: 09 March 1953
• Docket Number: No. 4523.,4523.
• Parties: CONCHO CONST. CO., Inc. v. OKLAHOMA NATURAL GAS CO.
• Court: U.S. Court of Appeals — Tenth Circuit

201 F.2d 673 (1953)

CONCHO CONST. CO., Inc. v. OKLAHOMA NATURAL GAS CO.

No. 4523.

United States Court of Appeals, Tenth Circuit.

January 15, 1953.

Rehearing Denied March 9, 1953.

Russell F. Thompson, Oklahoma City, Okl. (Monnet, Hayes & Bullis, and A. E. Pearson, Oklahoma City, Okl., on the brief), for appellant.

Paul Pinson, Tulsa, Okl. (Carlson, Lupardus, Mathews & Holliman, Tulsa, Okl., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

This is an action by the Concho Construction Company, Inc., a corporation, to recover damages from the Oklahoma Natural Gas Company, a corporation, for the destruction and loss of use of plaintiff's caterpillar bulldozer. The loss occurred when an employee of Concho was using the machine to build a firebreak on what appeared to be the right of way of Highway 66 east of the town of Britton, Oklahoma. The bulldozer struck and broke off a riser which extended upward from the gas company's pipe line to within two inches of the surface of the ground and caused gas to escape and ignite. The gas company filed an answer, and both parties then moved for summary judgment. The trial court held that under the admitted facts the employee of Concho was a trespasser upon the pipe line right of way of the gas company, and that the gas company owed him only the duty to which a trespasser would be entitled.¹ Defendant's motion for summary judgment was sustained, and judgment was entered accordingly.

For the purpose of the motions certain facts were agreed upon. The gas company, under authority of an easement from the owner of the land, had installed a natural gas pipe line running east and west parallel with Highway 66 and immediately adjacent thereto. At intervals along the line, it had installed risers connected with the pipe line for the purpose of supplying gas to users.² On January 26, 1951, the use of one of these risers had been discontinued. The riser was covered over with about two inches of soil. There was no marker and the riser was concealed from view. The pipe line was placed and maintained on the highway side of what appeared to be the highway right of way boundary fence. Actually the fence had been placed several feet south of the highway right of way boundary line so that the pipe line apparently was within the boundaries of the right of way. One of plaintiff's employees was operating the bulldozer for plaintiff who was performing a subcontract with Bollinger Construction Company near the highway. A fire broke out south of the highway, and aided by a strong wind it spread in a northeasterly direction. An employee of the Bollinger Construction Company directed the operator of Concho's bulldozer to take the bulldozer on to the highway right of way to a point east of where the fire had spread and to make a firebreak between the paved highway and the south fence. In building this firebreak, the operator lowered the blade of the bulldozer about two inches below the surface of the ground and moved forward. While so engaged, the bulldozer blade struck the unmarked riser causing the aforesaid fire and destruction of the bulldozer.

The law appears to be settled that when an owner so maintains his land abutting upon a public highway as to indicate and lead the public to believe that it is part of the highway, he impliedly invites those lawfully upon the highway to drive upon and use the land as a highway, and such users are not to be treated as trespassers.³ The owner owes a duty to keep such land in a reasonably safe condition for the users of the highway.

We think also that this case comes within the general rule which is recognized in Oklahoma, that the owner of land abutting a public highway owes a duty to keep it from being a source of danger to the public or to travelers upon and lawful users of the highway.⁴

The Oklahoma courts have recognized that natural gas is a commodity of highly dangerous character and a high degree of care is required in handling it.⁵

Here we have a natural gas transmission pipe line carrying 400 pounds pressure immediately adjoining the highway right of way. It was maintained by the gas company upon what appeared to the public to be the highway right of way. The company permitted an unmarked riser to extend upward from that pipe line to within two inches of the surface of the ground. It was struck by the driver of Concho's bulldozer while he was lawfully upon the highway attempting to prevent the spread of fire. Under these circumstances, the gas company owed him the same duty that an abutting property owner owes to the ordinary and customary user of a public highway, that is, to use reasonable care not to maintain a dangerous condition which might be injurious to such users. A question of fact was presented which should be determined after a trial of the case and should not have been disposed of on a motion for summary judgment.

Judgment is reversed and remanded with instructions to overrule the motions for summary judgment.

PHILLIPS, Chief Judge, (dissenting).

A. J. Kaiser was the owner of the northwest ¼ of the northwest ¼ of the northeast ¼ of Section 34, Township 13 North, Range 3 West, in Oklahoma County, Oklahoma. The land abuts Oklahoma State Highway No. 66. On January 26, 1951, the traveled portion of the highway was paved and a fence on the land, located several feet south of the south boundary line of the highway right of way, ran parallel to the highway.

On April 12, 1918, Kaiser executed and delivered to the Oklahoma Natural Gas Corporation¹ a right of way agreement by which he granted to the Gas Corporation a right of way on, over and through such land to lay, maintain, operate, relay and remove a pipe line 40 rods long for the purpose of transporting natural gas, with right of ingress and egress to and from such right of way. The agreement recited that the pipe line should be located in accordance with a plat attached to the agreement. The plat showed that the pipe line should be laid parallel to, and two feet north of the fence. It will be observed that the right of way grant covered both surface and subsurface rights. The pipe line was laid and thereafter maintained on the land at the location specified in the plat.

By statute in Oklahoma the Gas Corporation was required to furnish gas to the landowner at the rate it charged in the nearest city or town and for that purpose to provide a connection for the consumer's service line with the pipe line. See 52 Okl.St.Ann. § 10. The Gas Corporation installed a riser in the pipe line on its right of way and for a time furnished gas to a house on the land. Prior to January 26, 1951, the service of gas to the house had been discontinued and the service line disconnected. However, the Gas Corporation permitted the riser to remain, with its upper end buried approximately two inches underneath the surface of the ground.

On January 26, 1951, Concho Construction Company² was engaged in the performance of a contract for removing dirt near WKY substation, east of Britton, Oklahoma, and in removing such dirt was using a Caterpillar tractor, equipped with hydraulic controls, traxcavator, and bulldozer. The equipment was being driven by an employee of Concho. A fire broke out in a trash pile on the premises where Concho was carrying out its work under its contract. The wind was blowing from a southwesterly direction toward Highway 66. The employee of Concho drove the Caterpillar tractor, with its equipment, to the highway right of way and to the east of the point to which the fire had spread. When he arrived at that point the fire was spreading eastwardly on the south side of the highway right of way. To prevent the further spread of the fire along the highway right of way, the employee started building a fire-break from the paved portion of the highway to the fence line. While building the fire-break the operator lowered the blade of the bulldozer about two inches and moved the grass and debris forward. While traveling west between the paved portion of the highway and the fence line, the blade struck the riser, causing gas to escape, which became ignited. The fire prevented the employee from removing the tractor and its equipment and it was destroyed by the fire. Concho brought this action against the Gas Corporation to recover damages resulting from the destruction of the Caterpillar and its equipment.

Concho was not responsible for the fire and owed no legal obligation to undertake to put out or confine the fire. Concho was under no legal or contractual duty to the state to maintain or protect the highway.

Both Concho and the Gas Corporation interposed motions for summary judgment. The parties agreed that the court, for the purpose of disposing of the motions, might consider the pleadings and answers to interrogatories, affidavits and depositions on file, which reflected the facts stated above. The trial court concluded that Concho was a trespasser and entered a summary judgment for the Gas Corporation.

The public and each member thereof has a common and equal right to make reasonable use of highways for the purposes of travel and transportation and for purposes and uses incidental thereto.³

In the absence of a statute or ordinance requiring them so to do, a private person or corporation is under no obligation by reason of the ownership or occupancy of abutting premises, or otherwise, to undertake highway improvements or to maintain the highway in repair, except to the extent of repairing defects caused by their own acts, or to protect the highway from injury, except against dangers created by them.⁴

In the absence of a statute or municipal ordinance providing otherwise, a member of a public fire department who enters on premises in the discharge of his duty is a mere licensee, to whom the owner or occupant of such premises owes a duty to refrain from the infliction of wilful or wanton injury⁵ and to use...