Davis v. Arkansas Louisiana Gas Co., 5--5273

• Decision Date: 01 June 1970
• Docket Number: No. 5--5273,5--5273
• Citation: 248 Ark. 881,454 S.W.2d 331
• Parties: C. C. DAVIS, Jr., et ux., Appellants, v. ARKANSAS LOUISIANA GAS CO., Appellee.
• Court: Arkansas Supreme Court

Page 331

454 S.W.2d 331

248 Ark. 881

C. C. DAVIS, Jr., et ux., Appellants, v. ARKANSAS LOUISIANA GAS CO., Appellee.

No. 5--5273.

Supreme Court of Arkansas.

June 1, 1970.

Dale L. Bumpers, Charleston, Buddy Hixson, Paris, for appellants.

Williams & Gardner, Russellville, for appellee.

FOGLEMAN, Justice.

This appeal from a judgment dismissing appellants' complaint as amended is based upon the assertion that the circuit court erroneously sustained appellee's demurrer thereto. The demurrer was general, stating merely that the complaint and the amendment thereto failed to state facts sufficient to constitute a cause of action. Obviously, it is not a speaking demurrer as argued by appellants, who also argue that their pleadings do state a cause of action.

The complaint as amended contained allegations that, during construction of a pipeline on a right-of-way across appellants' pasturelands condemned for that purpose, appellee's agents and employees carelessly and negligently cut fences and left gates open, allowing appellants' registered cattle to stray from the pasture and mix with grade cattle of adjoining owners so that it became necessary for appellants to remove their cattle to a meadow owned by them. They alleged that loss of the grazing of the 100-acre pasture and 5,000 bales of hay from their meadow resulted. Appellants also alleged that their registered bull was rendered unfit for breeding purposes as a result of either his fall into a ditch on appellee's right-of-way, carelessly and negligently left unprotected by appellee's employees, or carelessness and negligence of appellee's employees in subsequently removing him from the ditch, or both the fall and the removal.

In testing the sufficiency of a pleading by general demurrer, every reasonable intendment is indulged to support the pleading, and if the facts stated in the pleading, together with every reasonable inference deducible therefrom, constitute a cause of action, the demurrer should be overruled. Donham, Commissioner v. F. S. Neely Company, 235 Ark. 710, 361 S.W.2d 650; Farmers Cooperative Assn., Inc. of Rogers v. Phillips, 241 Ark. 28, 405 S.W.2d 939. When we view appellants' pleadings in this case we cannot agree with the circuit judge's holding that no cause of action was stated. We do not agree with the appellee's argument that it was under no duty to take any measures for the protection of appellants' animals, so long as it did nothing to entice or lure them into the ditch. Nor do we agree that the action of appellants in removing their cattle to the meadow can be said to be such an intervening cause that any negligence in cutting the fences and leaving the gates open could be held as a matter of law to be a remote, rather than a proximate, cause of appellants' loss of hay.

It has always been recognized in this state that a landowner from whose lands a right-of-way easement has been taken has the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement after the improvement is constructed. Ark-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S.W.2d 866. We have said that a condemnor is granted exclusive possession of the condemned property only to the extent necessary for the erection, operation and maintenance of the improvement for which the easement is taken or granted, and that the landowner has the right of possession subordinate to the paramount possession of the condemnor, with the corresponding right to exercise any and all rights of ownership except such as are inconsistent with the easement. PATTERSON ORCHARD CO. V. SOUTHWEST ARKANSAS UTILITIES CORP., 179 ARK. 1029, 18 S.W.2D 1028, 65 A.L.R. 1446. ¹ As a corollary to the recognized principle hereinabove stated, it is said that the rights of the parties are reciprocal and the respective owners must use the way in a manner that will not interfere with the other's right to utilization and enjoyment thereof. Lindsey v. Shaw, 210 Miss. 333, 49 So.2d 580 (1950); Denton v. Buffalo Pipe Line Corporation, 39 N.Y.S.2d 83 (Sup.Ct.1939). Many years ago, we recognized that destruction of a landowner's crop by a railroad during construction constitutes a tort independent of the taking of the right-of-way. Springfield and Menphis Railway Company v. Henry, 44 Ark. 360.

In an Arkansas diversity case, the Eighth Circuit Court of Appeals has sustained a recovery of damages from a contractor for cattle lost when they escaped from a pasture by reason of the cutting of, and failure to restore, pasture fences at places where they crossed a right-of-way acquired by an electric cooperative for the purpose of constructing, operating and maintaining an electric transmission line. The contractor was then clearing the right-of-way preparatory to construction of the line for the cooperative. Kincade v. Mikles, 144 F.2d 784 (1944). Of course, even though the utility company was alleged to have been doing the work itself in the case before us, the liability for negligent acts or omissions in this regard would not be different.

Other jurisdictions, including those whose decisions were cited above, have applied these principles to allow recovery of damages to landowners or their property from the owner of an easement for utility purposes, based upon violation of the duty of the easement owner to the landowner. It is generally recognized in such cases that the duty is imposed upon the holder of the dominant estate to so use the property that injury or damage to the owner of the servient estate will not result from customary use, maintenance or repairs of the dominant estate. Cities Service Gas Co. v. Christian, 316 P.2d 1113 (Okl.1957). This requires use of the easement in such a way as to impose as slight a burden as possible on the servient tenant. Baker v. Pierce, 100 Cal.App.2d 224, 223 P.2d 286 (1950).

It has also been held that it would be reasonable to expect, under circumstances similar to those existing here that, whenever a fence is breached, the easement holder would replace the wires on the posts to preserve the enclosure. M & M Pipeline Company v. Menke, 45 S.W.2d 344 (Tex.Civ.App.1931). In the case just cited the...