Burkhart v. Jacob

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Burkhart v. Jacob
1999 OK 11
976 P.2d 1046
70 OBJ 647
Case Number: 91527
Decided: 02/23/1999
Modified: 02/23/1999
Mandate Issued: 03/25/1999
Supreme Court of Oklahoma

Samuel W. BURKHART and Viva Jo Burkhart, husband and wife, Appellants,
v.
Marion JACOB, Sherman Wyman, James Shepherd, Karolyn Shepherd, Appellees.

[976 P.2d 1048]
APPEAL FROM DISTRICT COURT OF LOVE COUNTY
THE HONORABLE CHARLES E. ROBERTS, TRIAL JUDGE

¶0 Appellants sought to have easement granted pursuant to Okla. Stat. tit. 69, § 1201 (1991), construed to allow for travel by sand and gravel trucks in commercial enterprise. The trial court granted summary judgment in favor of owners of servient estate, appellees.

REVERSED AND REMANDED.

Gregory L. Johnson, Bryan W. Morris, Ardmore, Oklahoma, for Appellants.

Marin E. Dyer, Ardmore, Oklahoma, for Appellees.

HODGES, J.

¶1 The issue in this case is whether the trial court properly granted summary judgment in favor of the defendants. We find that the trial court erred because a genuine issue of material fact exists making summary judgment improper.

I. FACTS

¶2 This case arises from a dispute over the use of a section line road. Appellants/plaintiffs, Samuel and Viva Jo Burkhart (Burkharts), own land in Love County, Oklahoma on the south side of a section line road which separates sections 3 and 10. Appellees/defendants, Marion Jacob, Sherman Wyman, and James and Karolyn Shepherd, own a parcel of land to the north of the Burkharts' land on the north side of the section line road, and another parcel directly east of the Burkharts' land on the south side of the section line road.

¶3 At the northeast corner of the appellees' property, there is a metal gate across the section line road which is maintained by appellees. The gate is never locked, and the Burkharts have never asked for permission to use the road, nor have they ever been denied access to the road. The Burkharts have mainly gained access to their land by pickup truck along a dirt road which runs into the south edge of their land. The dirt road [976 P.2d 1048] crosses the southwest corner of land owned by Charles Young, who is not a party to this suit. The Burkharts fenced off the corner of Young's property in 1981 and have used the dirt road without Young's objection since.

¶4 The Burkharts have used the section line road on certain occasions for ranching and personal needs. The Burkharts have entered into a sand and gravel lease agreement with Charles N. Davis III, for the purpose of mining sand and gravel from their property. They wish to improve the section line road to make it suitable for travel by heavy sand and gravel trucks to be used in the operation of a sand and gravel mine in accordance with the lease agreement. The appellees will not allow the Burkharts to improve the road for such a use, but have no objection to the Burkharts using the road for personal access.

¶5 After their demands to the appellees were not met, the Burkharts brought this action in the District Court for Love County alleging that appellees' gate denies them the right of ingress and egress to their property. The Burkharts sought an injunction. The District Court granted the appellees' motion for summary judgment finding that the Burkharts were not denied the right of ingress and egress to their land via the section line road within the meaning of section 1201 of title 69 of the Oklahoma Statutes.

II. SUMMARY JUDGMENT

¶6 On appeal, summary judgment will be upheld when the record presents no genuine issues of material fact. Garner v. Johnson,

III. RIGHT TO INGRESS AND EGRESS

¶7 The main issue is whether the Burkharts have been denied the right to use the section line for ingress and egress. The Oklahoma Statutes provide that section lines opened and maintained by the Board of County Commissioners are public highways. Okla. Stat. tit. 69, § 1201 (1991).

¶8 Whether the Burkharts have been prevented from using the section line road, depends on what is meant by "the right of ingress and egress" as used in section 1201 of title 69. The primary consideration in applying a statute is legislative intent. Atkinson v. Halliburton,

¶9 In determining the plain and ordinary meaning of the term "ingress and egress", not only is the definition of the term pertinent but general rules applying to easements are relevant. Beard v. Richards,

¶10 By the use of the term "ingress and egress", the Legislature has created an easement in general terms without specifics. When the terms of an easement are general and without restriction, the general rule is that a landowner may make any use of the easement so long as the use is "reasonably connected" with the use of the appurtenant land. Birdsey v. Kosienski, 101 A.2d 274, 278 (Conn. 1953); 7 Thompson on Real Property, Thomas Edition § 60.04(a)(1)(iii) (David A. Thomas ed., 1994).

¶11 Under a general grant of an appurtenant easement, a landowner may make reasonable use of the easement which is necessary for the development of the dominant estate. Hudson v. Lee,

¶12 [976 P.2d 1050] Whether or not a use is reasonable is a question of fact. The burden of proof rests with the party relying on the easement, in this case the Burkharts, to show that the rights granted by the easement are sufficiently extensive to justify the proposed use. Irion v. Nelson, 1952 OK ,

¶13 The Burkharts rely on Wells v. Webb,

¶14 The present case cannot be resolved without first determining whether the proposed use of the section line road is reasonable. Because a genuine issue of material fact as to the reasonableness of the use is unresolved, summary judgment was improper.

IV. ALTERNATE ROUTE OF ACCESS

¶15 The appellees argue and the trial court agreed that the Burkharts have an alternate route of access across the Young property and therefore, their land is not materially dependant on the use of the section line. The court concluded that because the land is not materially dependant on the section line, section 1201 of title 69 does not give the Burkharts a right use the section line for ingress and egress. This argument is without merit. The fact that the land in the Wells case was materially dependant on the section line is merely one factor that the Court considered in its decision. It does not create an additional element that must be satisfied in order for the statute to apply. Requiring the fee owner to show that his land is materially dependant on the section line is at odds with the "plain statutory dictate . . . that no fee owner shall be denied the use of an abutting section-line for. . .ingress and egress." Wells v. Webb,

V. ACT OF CONGRESS OF APRIL 26, 1906

¶16 The Burkharts also rely on Section 24 of the Act of Congress of April 26, 1906, § 24, 34 Stat. 137, 145, which provides that "in the Choctaw, Chickasaw and Seminole Nations public highways or roads two rods in width being one rod on each side of the section line, may be established on all section lines. . . ." The Act is supported by the Oklahoma Constitution which provides that the State of Oklahoma accepts all reservations and lands for public highways made under any grant, agreement, treaty or act of Congress. Okla. Const. art. 16, § 2. The Burkharts contend that the Act creates an automatic easement because purchasers of land take subject to a reservation of a public road along the section line and therefore, the road is public property open to public use.

¶17 [976 P.2d 1051] While the section line is subject to the reservation created in the Act, action by the Board of County Commissioners is required to open the road for public use. The Boards of County Commissioners of various counties have "exclusive jurisdiction " over the designation, construction, maintenance and repair of all of the county highways and bridges. Okla. Stat. tit. 69, § 601 (1991); Oldfield v. Donelson,

VI. CONCLUSION

¶18 The Burkharts' right to use the section line road for ingress and egress is limited to any reasonable use that does not unduly burden Jacob's servient estate. Reasonableness is a question of fact. Because a material question of fact, the reasonableness of the use, is in dispute, summary judgment for Jacobs was improper. Therefore, the trial court's order granting summary judgment is reversed and this case is remanded for further proceedings.

REVERSED AND REMANDED.

¶19 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, OPALA, KAUGER, WATT, JJ., concur.

¶20 WILSON, J., concurs in result.

¶21 SIMMS, J., dissents.

FOOTNOTES

1 In the trial court, the Burkharts also sought for an injunction based on an easement by necessity. No facts were presented at trial to establish an easement by necessity, and the issue has not been preserved on appeal. Reddell v. Johnson, 1997 OK 86, ¶ 5, 942 P.2d 200, 202.

2 Okla. Stat. tit. 69, § 1201 (1991), provides:

All section lines in the state which are opened and maintained by the board of county commissioners or the Department of Public Highways for public use are hereby declared public highways. All section lines that are not so opened and maintained for public use may, by resolution of board, on the petition of the owner or all the owners of the abutting land, after public notice and at the expense of petitioner, be designated "reserved section lines" and are in the full and complete control of the owner or owners of the abutting land until such time as the board of county commissioners, by resolution, stating imminent intended use for public highway purposes, and by ninety-day written notice to the owner or owners of the abutting land, revoke said "reserved section lines" status. Provided, however, that no section line may be placed in reserve status unless the full width of such section line is so treated and no fee owner shall be denied the right of ingress and egress to his land by virtue of this act. Whenever a section line is a boundary line between two counties, action by boards of county commissioners of both counties will be necessary to place a section line in "reserve status."

 

 

 

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