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2003 OK 51
70 P.3d 872
Case Number: 96014, 96025
Decided: 05/20/2003


JACK D. MOONEY and BOBBYE D. MOONEY, Plaintiffs/Appellants/Counter-Appellee,


¶0 Husband and wife sought to quiet title to their property and thereby prevent their neighbors, a brother and sister-in-law, from using a driveway they had shared for many years. Husband and wife also sought to prevent the brother and sister-in-law from using a shop building on their property. The brother and sister-in-law sought affirmative relief in the form of an easement along the driveway, partition or damages for their share of the building, and damages for a dismantled dog pen. Upon conclusion of the non-jury trial the Honorable L. Joe Smith, Judge of the District Court of Rogers County, awarded the brother and sister-in-law an easement and a judgment for the brother's share of the building, but denied their claim for damages for the dog pen. Both sides to the dispute appealed and the Court of Civil Appeals, Division II, reversed the award of the easement and affirmed the other provisions of the trial court's judgment. We hold that the trial court correctly awarded an easement and denied damages for the dismantled dog pen. The trial court's determination of the net value of the building was not supported by the clear weight of the evidence, and the trial court must make that determination upon remand.


Bill R. Scarth, Scarth & Rahmeier, Claremore, Oklahoma, for Plaintiffs/Appellants/Counter-Appellees
Tony Jack Lyons, Lyons & Lyons, Pryor, Oklahoma, for Defendants/Appellees/Counter-Appellants


¶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.

¶17 In Story v. Hefner,

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

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 of the right to continue such use arises by implication of law.

Story v. Hefner

In Story we relied upon Keller and Gorman for the rule that "absolute necessity" was not required. Both Keller and Gorman are cases involving driveways, and are instructive.

¶19 In Keller the parties owned adjoining lots and each had access to a street by a U-shaped driveway connecting the lots to the street. Keller,

¶20 In Gorman one party argued that an easement was not necessary because the other could build a driveway. Gorman,

¶21 In our case today Jack argues that the present driveway is not necessary for Jerry, because Jerry could build a road 1/4 mile in length on his property running from his house in a northerly direction to a public road that runs east to west on the north side of Jack's and Jerry's properties. Jerry argued that the land was "swampy ground," and that the expense in building the road on such ground would be inappropriate. The trial judge visited and viewed the property more than once. The trial judge determined that Jerry could build a road running to the north side of his property but "at significant great expense."

¶22 Jerry gave no testimony on the cost of building a road as suggested by Jack. No "expert opinion" was used by either side on the issue of the cost of building a road on Jerry's property. However, Jack testified that he spent $30,000 in placing concrete to convert the asphalt/gravel road for 3/16 of a mile to his house and the west side of the shop building. Jerry purchased the original forty acres from his brother for approximately $38,000.

¶23 The witnesses described the property of Jack and Jerry as being higher in elevation at their homes with the land sloping lower in elevation north of the homes. The aerial photograph of the properties shows a body of water on Jack's land that extends from the southwest corner of his property to the northeast corner of his property. The west side of the body of water has a dam. Various witnesses described the water as either a pond or a lake. In the photograph the water appears to cover several acres of Jack's property, and one witness estimated that it covered ten acres. Jack testified that the water did not overflow across the boundary of Jerry's property where Jack had proposed that Jerry build his driveway.

¶24 The trial court's ruling on the easement is based upon a perceived prohibitive cost to Jerry in building his own driveway. Jack argues on appeal that no evidence was introduced on the issue of the cost of Jerry building his own driveway. But the testimony does show the cost of building a concrete driveway on a prepared roadbed of asphalt and gravel for approximately the same distance as that minimally needed for Jerry to build a driveway. The evidence is sufficient to support the trial court's finding that Jerry could build a driveway but "at significant great expense."

¶25 We have explained that a deed may expressly grant or reserve an easement. An easement may also be created by the intent of the parties: "But an easement may be implied also, and the intention of the parties is determined by all the facts and circumstances in order that effect may be given to the apparent intent." Tangner v. Brannin,

An implied easement is based upon the theory that whenever one conveys property he includes in the conveyance whatever is necessary for its beneficial use and enjoyment and retains whatever is necessary for the use and enjoyment of the land retained. . . .

In the case of Jackson v. Noble, 206 Okl. 411,

'Where the owner of two or more adjoining lots employs one so that the other derives a benefit of a continuous, permanent and obvious nature from the other, and sells the one in favor of which the quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.'

Tangner v. Brannin

¶26 In our case today the evidence before the trial court was that the gravel driveway or road on the south boundary existed for several years prior to Jack's purchase of the property, and thus prior to Jerry purchasing his parcels from Jack. Jerry and his wife lived in a house on Jack's land and used the driveway while Jerry was building his new house. Jerry and Jack referred to the road as "our entrance and exit." The two 40-acre parcels derived a benefit from the road that was "of a continuous, permanent and obvious nature." One improvement to Jerry's 40 acres, the driveway, protruded on to Jack's 40 acres and Jack's 40 acres is burdened by that improvement. Jack sold the 40 acres to Jerry without previously closing the road, or reserving the roadway in his conveyance.

¶27 We agree that the trial court awarded an implied easement. The award of the easement is an exercise of the trial court's equitable cognizance, and its order will be affirmed on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. Story v. Hefner,

¶28 In Jerry's appeal of the award of an easement he requests appellate relief in the nature of requiring the trial court to specify the easement using terms of legal description. Jerry does not point to any specific legal description that he offered for the trial court to use. The trial court used the description used by the parties to this dispute, that is, the driveway or road running on or near the south boundary of the quarter section beginning on the west boundary of Jack's property. Assuming for the purpose of argument that it is better practice for a court to define an easement by a legal description of the property involved, there is nothing of record upon which this Court could base such a description. This is a matter which, however, could be handled by the trial court upon remand there.

II. The Shop Building

¶29 A shop building was built on Jack's property near Jerry's house, and the brothers had the habit for several years of eating dinner together every Monday night and then working together in the shop building. They also stored many of their own, and their mother's, possessions in the building. When the dispute occurred Jack sought to "quiet title" in the building, and asserted that Jerry was entitled to compensation for his share of the building. Jerry claims on certiorari that the trial court and the appellate court denied him due process when he was awarded only $12,500 for his interest in a shop building placed on Jack's property.

¶30 Jack and Jerry were two of the four owners of a company. Jack testified that he owned forty-three percent and Jerry owned 28 ½ per cent. The materials used to build the shop building came from this company with the consent of the four owners. Jerry testified that he installed the plumbing and some of electrical facilities in the building. Jerry testified that he was entitled to seventy per cent of the building. Jack testified that he paid the insurance premiums on the building, and that Jerry had not contributed for the premiums. Jack also stated that he "pays the taxes on it." Jack did not specify the amount of money he had paid in either premiums or taxes on the building.

¶31 Jerry testified that the value of the shop building for tax purposes is approximately $43,000. He did not specify whether this included the real property the building was on, or if it included the fire damage. Jerry did not explain any relationship between net value of an asset and its value for tax purposes. Jerry also testified that to move the steel structure and erect it in its present condition would cost $25,000.

¶32 Jack stated that he was familiar, and had experience in the past, with the cost of steel and "erection cost" of a building. Jack then stated that he could "guess" on the value for an erected building "like" the one at issue with similar concrete slab, plumbing, and electrical facilities. Jack's estimated value was $80,000 to $90,000. However, Jack also said that Jerry was more qualified to give an estimate on the value of the building.

¶33 Jack testified that Jerry was entitled to fifty per cent of the value of the building. Jack also testified that he and Jerry spent $25,000 "out of pocket" together to build the shop building. No "expert opinion" was used by either side to determine the value of the building.

¶34 The shop building had been damaged by a fire. Jerry testified that he had repaired some of the damage prior to the trial. He did not specify an amount of money that he had spent in making the repairs. Neither Jack or Jerry specified whether any insurance proceeds were available to repair the damage.

¶35 The court found that the building was on Jack's property, and that economic waste would result if the building was removed. The trial court concluded that Jack and Jerry should each receive one-half of the value of the building. The building was awarded to Jack. However, the trial court determined that the building's cost was $25,000 and the building's worth at $80,000, and then awarded Jerry a judgment of $12,500.

¶36 When partners own property in equal shares we have looked at the net value of the partnership property in awarding respective shares. Freeling v. Wood,

¶37 A value of $25,000 and the resulting award of $12,500 based upon 50% of that value is not supported by the record. The record shows a value of the building in excess of $25,000. Both Jerry's tax value of $43,000 and Jack's guess of $80,000 - $90,000 exceed the $25,000 amount used to determine Jerry's one-half share.

¶38 The out-of-pocket costs of $25,000 is insufficient, by itself, to determine value, since much of the material used to construct the building came from the brothers' company. The $25,000 amount does not include the cost of these materials, and the cost was incurred some years previous to the partnership dissolution. The amount of $25,000 to remove the building and construct it at another location does not determine the net value of the building. The trial court's evaluation of the building in that sum was clearly contrary to the clear weight of the evidence.

¶39 Jerry asks us to adopt Jack's value of $80,000, but disregard Jack's statement that Jerry would be better at placing value, and disregard as well Jerry's value of $43,000. The trial court may determine the credibility of the witnesses before it. Kerr v. Clary,

III. The Dog Pen

¶40 A dog pen was installed in 1983. Jerry and Sue used the pen for their dogs. Jack did not use the pen. Jerry took photographs of Jack and a friend dismantling a dog pen in 1999. Jerry testified that he could not remember the cost of the original dog pen. However, he stated that it would cost him about six thousand dollars to replace it. He stated that the value of the pen had not depreciated during its sixteen years of use..

¶41 Jerry called as a witness Mr. Guess who built a dog pen on Jack or Jerry's property. He testified that the fair market value of this pen was "in the neighborhood of thirty-six hundred dollars." He testified that the pen he built was four or five years old.

¶42 Jack testified that the dog pen that was removed had been in place for seventeen to eighteen years. He testified that the dog pen Guess described was not the dog pen that he removed. Jack said that he removed Jerry's dog pen from his property in February of 1999, and that "I put all the material on Jerry's property." Jack testified that he gave Jerry part of the materials to build the dog pen.

¶43 The trial court directed the parties to file closing arguments combined with proposed findings of fact and conclusions of law. Jerry's final argument combined with proposed findings of fact and conclusions of law argued that he should receive $3,600 for the destroyed dog pen. Jack's final argument said that Guess testified about a different dog pen recently built, and not the dog pen Jack dismantled. Jack argued that Jerry did not put on any evidence of the value of this much older dog pen.

¶44 The trial court stated that no evidence was provided on the fair market value of the dog pen, and denied Jerry's claim. In sum, the trial court believed Jack's testimony that he dismantled a different dog pen from the one described by Guess. Jack stated that he stacked the materials from this dog pen on Jerry's land, and no value on these materials was made by Jack.

¶45 When a plaintiff pursues relief in both equity and in law, and neither is paramount to, or provides a foundation to the other, a court submits the cause of action in law to a jury, unless waived. Mashunkashey v. Mashunkashey,

¶46 The petition of Jerry against Jack did not allege that the dog pen was partnership property to be divided. Jerry did not seek any equitable relief based upon what Jack allegedly did to the dog pen. Jerry sought a "money judgment" in the amount of $6,000 for Jack's alleged willful destruction of Jerry's property. Further, Jerry did not base his right to this money judgment upon the trial court granting, or not granting, any relief in his equity-based claims.

¶47 In Silk v. Phillips Petroleum Co.,

¶48 We have said that in an action at law, the findings of fact by the trial court have the same force and effect as the verdict of a jury, and those findings will not be disturbed upon appeal where there is any evidence reasonably tending to support the findings. Robert L. Wheeler, Inc. v. Scott,

IV. Denial of the Motion For New Trial

¶49 Jerry challenges the trial court's denial of his motion for new trial. Appellate review of his motion for new trial involves the same arguments relating to the value of the shop building and denial of his claim based upon removal of the dog pen.

¶50 In reviewing a trial court's decision denying a motion for new trial, we use an abuse of discretion standard of review, and will reverse the order if the trial court is deemed to have erred with respect to a pure, simple and unmixed question of law. Jones, Givens, Gotcher & Bogan, P.C. v. Berger,


¶51 In summary, the judgment of the trial court awarding an easement is affirmed. The award of a judgment for $12,500 is reversed with directions for further proceedings upon remand. The trial court's denial of the claim for damages from the removal or destruction of a dog pen is affirmed. The opinion of the Court of Civil Appeals herein is vacated, the judgment of the District Court is affirmed in part and reversed in part, and the matter remanded to the trial court for further action.


¶53 KAUGER, J., Concurring in part, dissenting in part.
The opinion uses equitable standards, but fails to do equity.


1 Jacks' property is described two different ways by the trial court in its judgment of October 4, 2000. The property is described in the "Introductory Information" and the "Findings of Facts" portions of the judgment O.R. at 118 and 120. The descriptions are not identical. In the "Introductory Information" the property is described as "The NW 1/4 of NW 1/4 of Section 21, Township 22 North, Range 17 East of the I. B. & M., Rogers County, Oklahoma, according to the U. S. Government Survey thereof." O.R. at 118. In the Findings of Facts the same tract is described as "the NW 1/4 of the NW ½ of Section 21,Township 22 North, Range 17 East, Rogers County, Oklahoma." O.R at 120.

The description in the Findings of Facts is incorrect. The stated source for this description is Plaintiff's Exhibit No. 6, General Warranty Deed from Kiska Oil Company to Jack and Bobbye Mooney. The deed states a conveyance of "The N1/2 of NW1/4 and W ½ of SE 1/4 of NW 1/4 of Section 21, etc." In the NW 1/4 of Section 21 (160 acres) Jack originally had the north ½ (80 acres) and an additional 20 acres "W ½ of SE 1/4 of NW 1/4 of Section 21." Jack kept 40 acres, (west ½ of the north ½ of the NW 1/4 of Section 21. The language in the original deed to Jack and Bobbye and Jack's conveyances to Jerry agree with the description of Jack's 40 acres in the "Introductory Information" portion of the trial court judgment.

2 "Jerry's" property is described by the trial court in its judgment as three twenty-acre tracts: (1) the W ½ of NE 1/4 of NW 1/4 of Section 21; (2) W ½ of SE 1/4 of NW 1/4 of Section 21; and (3) the E ½ of the NE 1/4 of NW 1/4 of Section 21; all in Township 22 North, Range 17 East of the I. B. & M., Rogers County, Oklahoma. Judgment, at II (B), O.R. at 120.

3 The trial court made no express finding of fact on Jerry's claim that the road was an appurtenance, except to the extent that it found that: "The Defendants right to rights in said road are not found in any specific instrument or instruments of transfer to them by the Plaintiffs." O.R. at 121. "Appurtenances," unless otherwise qualified, means "all improvements and every right of whatever character pertaining to the premises described." 16 O.S.2001 § 14. See, e.g., Anthony v. Barton, 1945 OK 342, 164 P.2d 642, 645-646, (private electric line located partly on public highway and supplying farm with electric power was an appurtenance which passed by deed conveying land and appurtenances). The only appellate challenge Jerry makes to the trial court's grant of an easement is that it was not sufficiently described. We do not address Jerry's other theories for an easement since they are not before us for review See Reddell v. Johnson, 1997 OK 86, 942 P.2d 200, 202, (an appellate court is generally confined to the issues raised by the parties and presented by the proof, pleadings, petition in error and briefs).

4 The concept of net value of partnership property includes whether any liabilities are properly chargeable to the property. Pope v. Vernon, 1963 OK 13, 383 P.2d 9, 13.

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