Mooney v. Mooney

• Decision Date: 20 May 2003
• Docket Number: No. 96, No. 014, No. 025.
• Citation: 70 P.3d 872,2003 OK 51
• Parties: Jack D. MOONEY and Bobbye D. Mooney, Plaintiffs/Appellants/Counter-Appellee, v. Jerry L. MOONEY, Sr., E. Sue Mooney, and Jerry L. Mooney, as Trustee Under the Declaration of Trust dated January 24, 1983, Defendants/Appellees/Counter-Appellants.
• Court: Oklahoma Supreme Court

70 P.3d 872

2003 OK 51

Jack D. MOONEY and Bobbye D. Mooney, Plaintiffs/Appellants/Counter-Appellee, v. Jerry L. MOONEY, Sr., E. Sue Mooney, and Jerry L. Mooney, as Trustee Under the Declaration of Trust dated January 24, 1983, Defendants/Appellees/Counter-Appellants.

Nos. 96,014, 96,025.

Supreme Court of Oklahoma.

May 20, 2003.

Bill R. Scarth, Scarth & Rahmeier, Claremore, OK, for Plaintiffs/Appellants/Counter-Appellees.

Tony Jack Lyons, Lyons & Lyons, Pryor, OK, for Defendants/Appellees/Counter-Appellants.

SUMMERS, J.

¶ 1 Our job here is to sort out competing claims between two brothers, each of whose land abuts the other's. We affirm the trial court's finding of an easement by implication, reverse its award of damages in division of a shop building as being contrary to the clear weight of the evidence, and affirm its denial of damages for a destroyed dog pen. The matter is remanded on the shop building issue.

¶ 2 Two brothers live as neighbors, and for many years shared a driveway for access to their respective homes. One brother improved the driveway and wanted the other to build his own. They disagreed over this and related matters, and the dispute resulted in a court proceeding involving one brother attempting to exclude the other brother's use of the driveway.

¶ 3 Jack and Bobbye Mooney, husband and wife, purchased a one-hundred acre tract in 1982.¹ The hundred acres includes the north half (80 acres) of a quarter-section (160 acres), and an additional twenty acre tract. Jack and Bobbye have a home in the southeast corner of the west half of the 80 acres. In 1983 Jack and Bobbye sold forty acres of the original 100 acres to Jerry, Jack's brother. In 1985 Jerry and his wife, Sue, completed their home not far from the home of Jack and Bobbye. In 1992 Jack sold an additional twenty-acres to Jerry.²

¶ 4 An open public road runs north and south along the west boundary of Jack and Bobbye's property. Jack's driveway to his home runs on the south boundary of his property and connects to this road. See Diagram at Appendix A. The driveway is twelve feet wide, and two to six feet are on Jack's property, and the remaining ten to six feet are on the property belonging to Jack's neighbor to the south, who is not a party to this litigation.

¶ 5 Jerry and Sue lived in a house on Jack's property and used the driveway. When Jerry and Sue's home was completed on Jerry's property they moved, and continued using Jack's driveway as a driveway to Jerry and Sue's home. Jerry testified that prior to his purchase of the property the brothers referred to the driveway or road as "our entrance and exit."

¶ 6 The driveway existed prior to Jack and Bobbye's purchase of their property. For many years the driveway was gravel, and Jack and Jerry split the cost of additional gravel to maintain it. The county placed asphalt on the driveway/road, and within one to two years thereafter, in 1995, Jack installed a concrete surface on the driveway up to his house. Jack extended the concrete to the west side of the shop building and to the back of the shop building. In 1995 Jack installed an electronic gate on the driveway and gave Jerry access to the gate.

¶ 7 Jack later asked Jerry to install a driveway solely on Jerry's property, and to discontinue using the driveway on the south boundary. Jack testified that he did not like the recent traffic resulting from Jerry's ranching operation, nor Jerry's cattle on his property, nor Jerry letting others possess the security code to the electronic gate.

¶ 8 In the southeast one-acre corner of Jack's forty acres is a shop building. The building is constructed of steel and attached to a concrete slab with concrete footings. It is approximately one-hundred feet long. Also in this one acre is the septic tank for the shop building, and a water well that supplies water to both the shop building and Jerry's home.

¶ 9 Jack pays the property tax on the shop building and maintains insurance on it. Jack testified that the agreement between him and Jerry is that they are partners in the building and each entitled to 50% of it. Jack's house is on the west side of the shop building, and concrete driveways come from his "housing area over to the bay doors in the west side of the building." On the east side of the shop building is a gravel drive connecting to Jerry's driveway and the common driveway on the south boundary. See Appendix A.

¶ 10 Jack installed a fence along a portion of the boundary between him and Jerry. In 1999 when he returned from a vacation he discovered the fence missing. Jack then filed suit to quiet title to his forty acres and to stop Jerry from using the driveway and shop building. At trial Jack stated that he would allow Jack to use water from his well, and he had no objection to the placement of underground and overhead electric lines. Jerry claimed that he owned 70% of the building and a "way of necessity" along the driveway. Jerry further claimed damages for destruction of his dog pen that had been on, or mostly on, Jack's property.

¶ 11 The trial court determined that the use of the driveway was "reasonably necessary" for Jerry's use and enjoyment of his property. The court awarded the shop building to Jack, and gave Jerry a judgment against Jack for $12,500, an amount representing Jerry's 50% of the building. The court observed that no evidence was provided on the fair market value of the dog pen, and denied this claim. The court stated that Jerry could continue to use water for his home from Jack's well, and that the electric lines supplying Jerry's home would remain. The court further ordered that the septic tank for the shop building was awarded to Jack. Jerry filed a motion for new trial, and it was denied by the trial court.

¶ 12 Jack brought an appeal challenging the award of the easement. Jerry brought a counter-appeal and challenged how the trial court described the easement, the amount of damages he was awarded for the shop building, the trial court's denial of his claim for the dog pen, and the denial of his motion for new trial.

¶ 13 The Court of Civil Appeals affirmed in part and reversed in part. It affirmed the judgment against Jack in the amount of $12,500 for Jerry's interest in the shop building. It also affirmed the trial court's denial of Jerry's claim for damages based upon the removal of his dog pen. The trial court was reversed on the issue of Jerry's easement. Jerry sought certiorari seeking review of the appellate disposition of his easement and claims relating to the shop building and dog pen. Jerry also seeks review of the trial court's denial of his motion for new trial.

I. The Order Declaring Existence of an Easement

¶ 14 The trial court's order stated that Jerry possessed an "implied easement by reasonable necessity." The appellate court distinguished an implied easement from an easement by necessity, and concluded that the trial court found an easement by necessity. The appellate court concluded that the evidence was insufficient to support a claim of easement by necessity, and reversed the court's judgment on this ground.

¶ 15 The appellate court noted that Jerry's cross-petition claimed a "way of necessity." Jerry's trial brief claims a "prescriptive right to use the road, and/or that it was an incorporeal hereditament, and an appurtenance to his land." The appellate briefs discuss both implied easements and easements by necessity. One of Jerry's appellate briefs argues that the trial court found an implied easement, and that the evidence supports such finding. Appellee's Answer Brief at 2-4. Jerry argues on certiorari that the trial court found an implied easement, and that necessity is an element of an implied easement.

¶ 16 Jack points out in his trial brief that Jerry claimed the driveway based upon theories of prescription, implied easement, and way of necessity. The trial court record shows that Jerry claimed the driveway using all of these theories. Jerry also claimed that the driveway was granted as an "appurtenance" conveyed to Jerry from Jack by two deeds. See O.R. at 46, Defendants' Final Argument and Proposed Findings of Fact and Conclusion of Law.³ One question for us on certiorari is whether the trial court found an implied easement, and if so whether this finding was supported by the evidence.

¶ 17 In Story v. Hefner, 1975 OK 115, 540 P.2d 562, we said that an easement "is the right of one person to go onto the land of another and make a limited use thereof." Id. at ¶ 13, 540 P.2d at 566. Easements may be expressly created by deed, or by necessity, or prescriptive use, or implied in a deed. Id. We described an implied easement thusly:

An implied easement is a creature of common law. It is based on the theory that whenever one conveys property he includes or intends to include in the conveyance whatever is necessary for its beneficial use and enjoyment and to retain whatever is necessary for the use and enjoyment of the land retained. An easement by implication is a true easement having permanence of duration and should be distinguished from a `way of necessity' which lasts only as long as the necessity continues.

Story v. Hefner, 1975 OK 115, ¶ 14, 540 P.2d at 566.

Jerry correctly points out that "necessity" is one element to an implied easement, and that the trial court's use of the phrase "reasonable necessity" is consistent with its use of the phrase "implied easement" in awarding an easement to Jerry.

¶ 18 In Story we discussed the "necessity" to establish an implied easement, and said that:

The necessity requisite to the creation of an easement by implication is not an absolute necessity, a reasonable necessity is sufficient. Where, during unity of title, an apparent permanent and obvious servitude is imposed on one part of an estate in favor of another, and such servitude, at time of the severance, is in use and is reasonably necessary for fair enjoyment of the dominant estate, a grant or reservation...