Lindhorst v. Wright

• Decision Date: 12 August 1980
• Docket Number: No. 1,No. 52191,52191,1
• Citation: 616 P.2d 450,1980 OK CIV APP 42
• Parties: 1980 OK CIV APP 42 Guss A. LINDHORST and Beatrice Lindhorst, Appellants, v. Richard B. WRIGHT and Marjorieann M. Wright, Husband and Wife; Harry Kozee and Aleta Kozee, Husband and Wife; and Andrew Schopp and Shirley M. Schopp, Husband and Wife, Appellees
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 450

616 P.2d 450

1980 OK CIV APP 42

Guss A. LINDHORST and Beatrice Lindhorst, Appellants, v. Richard B. WRIGHT and Marjorieann M. Wright, Husband and Wife; Harry Kozee and Aleta Kozee, Husband and Wife; and Andrew Schopp and Shirley M Schopp, Husband and Wife, Appellees.

No. 52191.

Court of Appeals of Oklahoma, Division No. 1.

Aug. 12, 1980 Released for Publication by Order of Court of Appeals Sept. 16, 1980.

Appeal from the District Court of Mayes County; William J. Whistler, judge.

Clausing & Lollman by Joseph F. Lollman, Tulsa, for appellants.

Ernest R. Brown, Pryor, for appellees.

BOX, Judge:

An appeal by the plaintiffs below, Guss A. and Beatrice Lindhorst, husband and wife, from a judgment against them in a quiet title action.

The Lindhorsts acquired title to land situated in Mayes County, Oklahoma, in August of 1972. In addition to fee simple title to the NW/4 of SW/4 of Section 14, their general warranty deed granted them a "perpetual right of ingress and egress on and across the easterly 40 feet of the SW/4 of the SW/4 of Section 14." At the time of purchase, the grantor established a roadway by grading a path through the 40 foot strip. The Lindhorsts made some improvements thereon and used the roadway as their only access to their property.

Subsequently the defendants, the Kozees, the Wrights, and the Schopps, purchased land south of that owned by the Lindhorsts. The fee simple estates of the defendants were burdened by the Lindhorsts' right-of-way.

All the parties used the roadway, which resulted in disagreements over each party's rights and liabilities with regard to the use and proper maintenance of the 40 foot strip. The Lindhorsts filed a quiet title action to establish their right in and to the easement. Additionally, the Lindhorsts alleged that certain acts of the defendants interfered with their absolute and unrestricted right to use the entire 40 foot strip, and asked that the defendants be enjoined from interfering with their use of the strip.

The defendants, Schopps, filed an answer requesting that the court grant the Lindhorsts an easement, twenty-five feet in width. The defendants, Wrights and Kozees, in their collective answer requested that the Lindhorsts be granted an easement in the 40 foot strip, but that the width of the easement should be only that which was reasonable and necessary for use as a roadway. These defendants also asked to be entitled to use the roadway in common with the Lindhorsts and to share in the costs of maintenance and repair. All defendants denied the other allegations made by the Lindhorsts in their petition.

The trial court found that it was necessary to determine the intent of the original parties to the Lindhorsts' deed. It found that those parties never contemplated the possibility of the opening of a section line roadway, which would give additional access to the lands occupied by the Lindhorsts. Therefore, the grant of the 40 foot wide easement was intended to be used as a right of access, but that access was to be "selected or determined" through and within the 40 foot grant. The court determined that the "selected access" was the present roadway having a width of 20 feet, and confirmed the remaining 20 feet in title and right of possession in the respective defendants. All parties were granted a non-exclusive right to use the roadway, and the court assessed the costs of repairs and maintenance to all parties in different proportions. The Lindhorsts were to contribute 34%, the Wrights 16%, the Kozees 24%, and the Schopps 28%. The Lindhorsts appeal this decision.

The Lindhorsts assert that the court erred by reducing the width of the express grant of the easement, by not imposing an injunction against the defendants restraining them from interfering with the Lindhorst's use and maintenance of the easement, and by imposing a formula of contribution for maintenance, which is impractical and impossible to enforce.

The perpetual right of ingress and egress over and on the land is an easement, which grants the Lindhorsts a right to go on the land of the defendants and to make limited use of it. Story v. Hefner, Okl., 540 P.2d 562, 566; 60 O.S.1971, § 49(4). The easement was granted by a warranty deed, which is a written contract. The deed, therefore, is to be interpreted in the same manner as other written contracts, and the primary consideration is to determine the intent of the parties thereto. Public Services Co. v. Home Builders Assn. of Realtors, Inc., Okl., 554 P.2d 1181, 1184. Under Oklahoma law, rules of construction and interpretation are available if an ambiguity is present, but where no ambiguity exists in the language used, the intent must be determined from the words used, unless there is fraud, accident, or pure absurdity. Humphreys v. Amerada Hess Corp., 487 F.2d 800, 802 (10th Cir.1973); Van Zant v. State Ins. Fund, 203 Okl. 421, 223 P.2d 111, 113; 15 O.S.1971, §§ 152-156.

We are cited no Oklahoma cases directly on point, and we find none. The Lindhorsts direct our attention to the Kansas case of Aladdin Petroleum Corp. v. Gold Crown Properties, Inc., 221 Kan. 579, 561 P.2d 818 (1977), which addressed the issue before us. The Kansas Supreme Court stated, 221 Kan. at 584-85, 561 P.2d at 822:

The law appears to be settled that where the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite. The expressed terms of the grant or reservation are controlling in such case and considerations of what may be necessary or reasonable to a present use of the dominant estate are not controlling. If, however, the width, length and location of an easement for ingress and egress are not fixed by the terms of the grant or reservation the dominant estate is ordinarily entitled to a way of such width, length and location as is sufficient to afford necessary or reasonable ingress and egress.

In 3 Tiffany, Real Property, § 805, pp. 331, 332 (3d ed. 1939), it is said:

". . . A specific statement in the grant obviously governs, and such a statement is ordinarily not controlled by considerations as to what is reasonable or necessary. . . .

"If the width is not fixed by the terms of the grant, the grantee is ordinarily entitled to a way of such width as is sufficient to afford reasonable ingress and egress. . . ."

It is stated in 28 C.J.S. Easements § 75, p. 753:

"If the grant or reservation is specific in its terms, it is decisive of the limits of the easement. On the other hand, where the easement is not specifically defined, it need only be such as is reasonably necessary and convenient for the purpose for which it was created."

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