U.S. v. O'Block

Citation788 F.2d 1433
Decision Date17 April 1986
Docket NumberNo. 84-1854,84-1854
PartiesUNITED STATES of America, Plaintiff-Appellee, Kern W. Schumacher and Morris H. Kulmer, d/b/a Freeport West, Plaintiffs-in- Intervention-Appellees, v. Robert P. O'BLOCK, Gordon M. Olch, d/b/a Freeport Center Associates; and James F. Hannan, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Daniel L. Berman (Thomas R. Karrenberg and Peggy A. Tomsic with him on brief), Berman & Anderson, Salt Lake City, Utah, for defendants-appellants.

Jay D. Gurmankin (Christopher M. Mislow with him on brief), Giauque & Williams, Salt Lake City, Utah, for plaintiffs-in-intervention-appellees Kern W. Schumacher and Morris H. Kulmer, d/b/a Freeport West.

Joseph W. Anderson (Brent D. Ward, U.S. Atty. with him on brief), Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee U.S.

Before BARRETT, SEYMOUR and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

This appeal concerns the extent and reasonableness of a restriction on the use of an easement. The servient tenants (defendants-appellants Robert P. O'Block and Gordon M. Olch, d/b/a Freeport Center Associates, and James F. Hannan, sometimes referred to collectively as Freeport Center) erected a fence down the length of Seventh Street, the site of the easement. Two of the dominant tenants (plaintiffs-appellees United States (government) and Kern W. Schumacher and Morris H. Kulmer, d/b/a Freeport West (Freeport West)), brought suit to have the fence removed. The district court granted summary judgment in favor of appellees and ordered the fence removed.

Appellant Freeport Center, as the servient tenant, concedes the correctness of the trial court's decision that a fence without gates was an unreasonable restriction upon the use of the easement by the dominant tenants, including the appellees. However, appellant contests that part of the district court's decision holding that, as a matter of law, a fence would constitute an unreasonable restriction on the easement even if gates were installed and/or alternative docking configurations were used by the dominant tenants. We reverse the grant of summary judgment insofar as the issue of the reasonableness of a fence with gates was decided in the absence of trial evidence, but we affirm the grant of summary judgment insofar as the district court rejected alternative docking arrangements as a matter of law.

The government acquired the property known as the Clearfield Naval Depot, which is located in Davis County, Utah, through condemnation in 1942. Over the years, the government constructed various warehouses with road and railroad access. In recent years, the government has sold various parts of the Depot. The government conveyed the property which now belongs to Freeport Center in May 1963. In the 1963 deed, the government reserved certain easements, including an easement along Seventh Street. In 1980, the government solicited bids for another part of the Depot contiguous to the property owned by Freeport Center. Freeport West was the successful bidder and the government conveyed this other part in May 1981, together with an easement providing the grantees access along Seventh Street. Thus, an easement exists in Seventh Street with the government and Freeport West as two of the dominant tenants, and Freeport Center as the servient tenant. There is no dispute as to the existence of the easement.

Shortly after the right to buy the property now comprising Freeport West was awarded to Freeport West, Freeport Center erected a fence down the west side of Seventh Street extending from C Street to G Street. The fence was parallel to land and buildings owned by the government and Freeport West, and contained no gates. The fence stood directly in the face of the dominant estate owners' property and severely hampered access to the appellees' loading docks. The government brought suit to force the removal of the fence and to enjoin Freeport Center from interfering with its easement on Seventh Street. Freeport West intervened, alleging antitrust violations, unfair competition, and interference with the easement. Freeport West sought partial summary judgment claiming that Freeport Center's fence unreasonably interfered with its easement and was unlawful. The government sought summary judgment on the same point. The trial court granted the government's motion for summary judgment and Freeport West's motion for partial summary judgment, concluding that the fence was an unreasonable restriction on the use of the easement. The district court granted injunctive relief and the fence was removed.

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985); Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). Summary judgment is inappropriate if an inference can be deduced from the facts which would allow the non-movant to prevail. Thomas v. United States Department of Energy, 719 F.2d 342, 344 (10th Cir.1983). The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1377 (10th Cir.1980). Where different ultimate inferences may properly be drawn, the case is not one for a summary judgment. Id. at 1377. Finally, when reviewing a summary judgment ruling, we consider the record in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Maughan, 758 F.2d at 1387; Bee, 744 F.2d at 1389.

The government brought its action in United States District Court for the District of Utah pursuant to 28 U.S.C. Sec. 1345 1. Absent controlling federal legislation or rule of law, questions involving real property rights are determined under state law, even when the United States is a party. See Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 378-81, 97 S.Ct. 582, 590-92, 50 L.Ed.2d 550 (1977); Amoco Production Co. v. United States, 619 F.2d 1383, 1389 n. 4 (10th Cir.1980). Because there is no applicable federal law involved in this case, the law of Utah governs the dispute between the government and appellants. Freeport West brought its claim for interference with the easement as a pendent or ancillary claim, and such claim must also be decided according to Utah law.

The Utah Supreme Court has considered the reasonableness of fences or locked gates as a restriction on the dominant tenant's use of an easement. In Wykoff v. Barton, 646 P.2d 756 (Utah 1982), the Utah court was asked to determine whether the maintenance of fences or locked gates across a right-of-way was an unreasonable interference with the use of the dominant tenant's easement. The Utah court stated:

Whether or not a restriction on access is unreasonable is a question of fact. McBride v. McBride, Utah, 581 P.2d 996 (1978); 25 Am.Jur.2d, Easements and Licenses Sec. 89 (1966). In this case, the trial court apparently weighed carefully the intent of the parties as it appears in the testimony in the record, the language in the Barton deed describing the right-of-way, the use to which the property had been put by Bartons since the deed, and the reasonableness of permitting locked gates with keys to plaintiffs to permit ingress and egress.

Wykoff v. Barton, 646 P.2d at 759. The Utah Supreme Court affirmed the trial court's decision to allow the servient tenant to fence the right-of-way provided the dominant tenants be given keys to padlocked gates.

Under different facts, the Utah court has ruled that locks placed on gates located at both ends of a right-of-way were an unreasonable interference with the dominant estate. McBride v. McBride, 581 P.2d 996 (Utah 1978). The court deferred to the trial judge's conclusion which was formed after hearing evidence regarding frequency of use, the relative convenience and the degree of...

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