Franks v. Tyler, 46819

• Decision Date: 12 November 1974
• Docket Number: No. 1,No. 46819,46819,1
• Parties: J. K. FRANKS and Eva D. Franks, husband and wife, Appellants, v. Helen L. TYLER et al., Appellees
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1067

531 P.2d 1067

J. K. FRANKS and Eva D. Franks, husband and wife, Appellants, v. Helen L. TYLER et al., Appellees.

No. 46819.

Court of Appeals of Oklahoma, Division No. 1.

Nov. 12, 1974.

Rehearing Denied Jan. 21, 1975.

Released for Publication by Order of the Court of Appeals.

Bassett, Stocker & Laughlin by Allan H. Stocker, Bartlesville, for appellants.

Garrison, Brown & Tice by Jim T. Tice, Thomas W. Brown, Bartlesville, for appellees.

BOX, Presiding Judge:

An appeal by plaintiffs from the trial court's granting of a permanent injunction, enjoining plaintiffs from trespassing upon defendants' section line property and the denying of plaintiffs' alternative petition to condemn part of the section line as a private road as a way of necessity to a tract of land purchased by plaintiffs in 1970.

Plaintiffs J. K. Franks and Eva D. Franks, own forty acres of land in Washington County one boundary of which adjoins the section line. This property is completely surrounded by a ranch owned by the defendants Helen L. Tyler and her children, under which the other defendants John Hughes and Dan Gallery by some agreement, the terms of which are unknown to the plaintiffs, are in possession. The plaintiffs have been denied access to their property along the road which follows the section line except by permission of the defendants who claim that to the extent that this way can be called a road that it is a private road across their land and subject to their control. The plaintiffs brought this action to enjoin the defendants from interfering with their access along the section line road alleging that this road was a public road or had become a public road. In the alternative they sought to condemn a way of necessity under 27 O.S.1971, § 6. After a trial to the court all relief was denied to the plaintiffs and the plaintiffs were enjoined from trespassing on the defendants' property. Plaintiffs took this appeal.

Plaintiffs did not attempt to prove that any action had ever been taken by the county commissioner or others to open the section line road for public use but take the position that authorizing legislation created a public road along the section line without further action by county or other officials. Plaintiffs cite the Cherokee Allotment Agreement which provided, in part, that 'public highways or roads . . . may be established along all section lines without any compensation being paid therefor . . .' (Act of July 1, 1902, Ch. 1375, § 37, 32 Stat. 716, 722) and Article 16, § 2 of the Oklahoma Constitution which provided that Oklahoma accepted all reservations for public highways made under act of Congress. However since shortly after statehood there have been procedures established for the opening of section line roads by county commissioners, provisions presently found in 69 O.S.1971, §§ 628 and 646, and we think the question of whether official implementation of the legislation is necessary before there is a public road has been resolved in principle by Salyer v. Jackson, 105 Okl. 212, 232 P. 412. Though that case involved different authorizing provisions from the present one, the Oklahoma Supreme Court held that federal and state provisions merely granted to the state an easement for public roads along section lines which required action by the proper authorities to exercise the right of public use by opening the road, in the absence of which the beneficial use was abandoned and reverted to the abutting owners. We see no difference in the language of the authorizing legislation here which would require a different result and hold that such legislation is declaratory and requires implementation by the proper officials before there is a right of public use of the easement. No proof was made here of official action to open the road. There was some evidence that at times the dirt road had been maintained with the use of county equipment at the instance of one commissioner. According to the Salyer case, supra, this does not constitute official action of the Board. We would be willing to presume an official opening of the road if it were a public road in fact. However the plaintiffs do not claim prescriptive use by the public and there was substantial evidence that the road, is and has been a private not a public road. The evidence was in sharp conflict as to the periods of time when the dirt road or trail along the section line had been maintained as a road at all and whether it had been used during those times as a private road by individuals or also by members of the public. We cannot reverse the trial court on findings of fact unless his decision is clearly erroneous. Board of County Commissioners of Tulsa County v. Lloyd, Okl., 322 P.2d 406. There was evidence, though disputed, which supports his determination that this road was never opened as a public road.

After denying relief to the plaintiffs on the theory already discussed, the trial court then initiated condemnation proceedings pursuant to the plaintiffs' alternative prayer for such relief but abandoned this action and refused this relief when convinced by the defense attorneys that acquisition of a way of necessity by eminent domain under Article 2, § 23 of the Oklahoma Constitution and 27 O.S.1971, § 6 requires the same elements of proof of a way of necessity as does the common law easement by necessity. The common law easement by necessity was based upon the implication of a grant of an easement by the owner of the servient estate when necessity of access to the dominant estate required it. Such a theory requires proof of a common grantor at one time of the two properties since the creation of such an easement is based upon the presumed intent of the grantor to convey a way as well as the property. There is some authority that proof of a grant from the state does not satisfy this requirement. W. Burby, Real Property § 29 (3d ed. 1965).

In order to have a common law easement by necessity in Oklahoma a common grantor must be shown. Thomas v. Morgan, 240 P. 735, 113 Okl. 212. The parties...