Southwestern Bell Telephone Co. v. Davis
| Decision Date | 13 October 1969 |
| Docket Number | No. 5--4987,5--4987 |
| Citation | 445 S.W.2d 505,247 Ark. 381 |
| Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Virgil DAVIS, Appellee. |
| Court | Arkansas Supreme Court |
Donald K. King and Charles G. Hollis, Little Rock, and George F. Hartje, Conway, for appellant.
Guy H. Jones and Phil Stratton, Conway, for appellee.
Appellee, a Faulkner County road employee, brought this action against the appellant to recover damages for injuries appellee sustained when the road grader he was operating overturned upon striking appellant's underground baffle. A jury awarded appellee $20,000 and from the judgment on that verdict comes this appeal. Appellant first contends for reversal that the appellee was a trespasser upon its easement and, therefore, appellant is not responsible for appellee's injuries since no duty of care is owed to him.
This accident occurred in 1965 when appellee was shaping and widening a road which both parties agree is a public road established by prescriptive or adverse use for some forty years. In 1957 the appellant, by virtue of its utility easement, installed its underground toll cable upon lands adjoining the road and across and underneath the public road at a depth of about 5 feet. When the cable was installed the appellant, for purposes of soil erosion control, embedded a baffle or revetment near the south side of the road and within its own easement. This baffle was constructed with pieces of telephone poles and crossarms driven into the ground. It formed a wall diagonal to the cable ditch. The top of the baffle was constructed flush with the ground. Appellant erected two signs which warned of the presence of the cable and that no one should dig in this area without notifying the telephone company. One of the signs was at the site of the baffle on the south side of the road and the other sign was on the north side of the road. When the appellant laid its cable in 1957 within its easement, the traveled portion of the highway was about 12 feet wide with a 3-foot bar ditch on the south side. For approximately 8 years following the installation of appellant's cable the county's maintenance of the road was restricted to grading the roadbed and taking dirt from the adjoining bar ditch to fill holes in the road as well as to provide drainage. These maintenance operations were at infrequent intervals. Thereafter, or in 1965, the county officials decided to 'rehabilitate' and widen this road from 12 to 24 feet to meet the needs of increased traffic. To accomplish this, a bulldozer was first used by the county to skin off the scrub trees, underbrush and surface of a portion of the adjacent lands. This was done at the site of appellant's easement. There a quantity of dirt was scraped off or removed from appellant's easement on the hillside south of the road. This was for the purpose of filling or building up the roadbed on the north side. In the process, a bulldozer operator knocked down appellant's warning sign and 'shaved over' the top of the baffle. The telephone company was notified and the sign was not reinstalled by either the company or the county. About two weeks later the appellee, a motor grader operator, began grading and shaping the newly widened road. When the motor grader blade struck the baffle upon appellant's easement it caused the machine to overturn and injure appellee.
There was evidence that the baffle was located 11 feet from the south edge of the original bar ditch of the public road as it existed in 1957 and that following the widening of the road in 1965, this 11-foot distance was decreased to 4.4 feet at the nearest and 5.5 feet at the most distant point. It appears that the baffle does not exactly parallel the road. Appellee takes the position that the distance of 11 feet or 4.4 feet is immaterial because the use of this space upon appellant's easement was reasonably necessary to backslope the existing ditch in order to maintain, improve and widen this admittedly public road which had no definitive boundaries. Therefore, appellee could not be a trespasser upon this portion of appellant's adjoining property or easement.
We cannot agree. It is true that one who holds a right-of-way easement does have the right to preserve and maintain it. However, this right is subject to the...
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