201 F.2d 673 | 10th Cir. | 1953
Lead Opinion
This is an action by the Concho Construction Company, Inc., a corporation, to recover damages from the Oklahoma Natural Gas Company, a corporation, for the destruction and loss of use of plaintiff’s caterpillar bulldozer. The loss occurred when an employee of Concho was using the machine to build a firebreak on what appeared to be the right of way of Highway 66 east of the town of Britton, Oklahoma. The bulldozer struck and broke off a riser which extended upward from the gas company’s pipe line to within two inches of the surface of the ground and caused gas to escape and ignite. The gas company filed an answer, and both parties then moved for summary judgment. The trial court held that under the admitted facts the employee of Concho was a trespasser
For the purpose of the motions certain facts were agreed upon. The gas company, under authority of an easement from the owner of the land, had installed a natural gas pipe line running east and west parallel with Highway 66 and immediately adjacent thereto. At intervals along the line, it had installed risers connected with the pipe line for the purpose of supplying gas to users.
The law appears to be settled that when an owner so maintains his land abutting upon a public highway as to indicate and lead the public to believe that it is part of the highway, he impliedly invites those lawfully upon the highway to drive upon and use the land as a highway, and such users are not to be treated as trespassers.
We think also that this case comes within the general rule which is recognized in Oklahoma, that the owner of land abutting a public highway owes a duty to keep it from being a source of danger to
The Oklahoma courts have recognized that natural gas is a commodity of highly dangerous character and a high degree of care is required in handling it.
Here we have a natural gas transmission pipe line carrying 400 pounds pressure immediately adjoining the highway right of way. It was maintained by the gas company upon what appeared to the public to be the highway right of way. The company permitted an unmarked riser to extend upward from that pipe line to within two inches of the surface of the ground. It was struck by the driver of Concho’s bulldozer while he was lawfully upon the highway attempting to prevent the spread of fire. Under these circumstances, the gas company owed him the same duty that an abutting property owner owes to the ordinary and customary user of a public highway, that is, to use reasonable care not to maintain a dangerous condition which might be injurious to such users. A question of fact was presented which should be determined after a trial of the case and should not have been disposed of on a motion for summary judgment.
Judgment is reversed and remanded with instructions to overrule the motions for summary judgment.
. In Oklahoma, a landowner owes a trespasser a duty in respect to safety from a dangerous artificial condition of the premises, not to injure him intentionally or wantonly. Kroger Grocery & Baking Co. v. Roark, 171 Okl. 595, 43 P.2d 710; City of Grandfield v. Hammonds, 100 Okl. 75, 227 P. 140; City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724, 51 L.R.A.,N.S., 672.
. 52 O.S.A. § 10, provides that whenever any gas pipe line crosses private premises, the gas company, upon request of the owner of the premises, is required to connect the pipe line with the premises and furnish gas to the owner at the same rate as is charged in the nearest city or town.
. Louisville & N. R. Co. v. Anderson, 5 Cir., 39 F.2d 403; Barlow v. Los Angeles County Flood Control Dist., 96 Cal.App.2d 979, 216 P.2d 903; Beckwith v. Somerset Theatres, Inc., 139 Me. 65, 27 A.2d 596; Pirozzi v. Acme Holding Co. of Paterson, 5 N.J. 178, 74 A.2d 297; Sears v. Merrick, 175 Mass. 25, 55 N.E. 476; Holmes v. Drew, 151 Mass. 578, 25 N.E. 22; Restatement, Torts, Sec. 367, which reads:
“A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway, is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.
“Comment:
“a. One whom a possessor of land intentionally or negligently misleads into believing that part of his land is a public highway, is entitled to expect that the possessor will afford him a security similar to that which he would be entitled to expect were the land actually a highway.”
. Sinclair Texas Pipe Line Co. v. Patterson, 175 Okl. 438, 54 P.2d 207; Sinclair Texas Pipe Line Co. v. Hoss, 175 Okl. 435, 54 P.2d 204; St. Louis & S. F. Ry. Co. v. Ray, 65 Okl. 214, 165 P. 129, L.R.A.1918A, 843; Connally v. Woods, 39 Okl. 186, 134 P. 869; Brandywine Hundred Realty Co. v. Cotillo, 3 Cir., 55 F.2d 231, certiorari denied 285 U.S. 555, 52 S.Ct. 411, 76 L.Ed. 944; Annotation 14 A.L.R. 1397.
. Oklahoma Natural Gas Co. v. Courtney, 182 Okl. 582, 79 P.2d 235, 241; Margay Oil Corp v. Jamison, 177 Okl. 433, 59 P.2d 790; Oklahoma Gas & Elec. Co. v. Oklahoma Ry. Co., 77 Okl. 290, 188 P. 331.
Dissenting Opinion
(dissenting).
A. J. Kaiser was the owner of the northwest %, of the northwest % of the northeast %. of Section 34, Township 13 North, Range 3 West, in Oklahoma County, Oklahoma. The laud abuts Oklahoma State Highway No. 66. On January 26, 1951, the traveled portion of the highway was paved and a fence on the land, located several feet south of the south boundary line of the highway right of way, ran parallel to the highway.
On April 12, 1918, Kaiser executed and delivered to the Oklahoma Natural Gas Corporation
By statute in Oklahoma the Gas Corporation was required to furnish gas to the landowner at the rate it charged in the nearest city or town and for that purpose to provide a connection for the consumer’s service line with the pipe line. See 52 Okl.St.Ann. § 10. The Gas Corporation installed a riser in the pipe line on its right of way and for a time furnished gas to a house on the land. Prior to January 26, 1951, the service of gas to the house had been discontinued and the service line disconnected. However, the Gas Corporation permitted the riser to remain, with its upper end buried approximately two inches underneath the surface of the ground.
On January 26, 1951, Concho Construction Company
Concho was not responsible'for the fire and owed no legal obligation to undertake to put out or confine the fire. Concho was under" no legal or contractual duty to the state to maintain or protect the highway.
Both Concho and the Gas Corporation interposed motions for summary judgment. The parties agreed that the court, for the purpose of disposing of the motions, might consider the pleadings and answers to interrogatories, affidavits and depositions on file, which reflected the facts stated above. The trial court concluded that Concho was a trespasser and entered a summary judgment for the Gas Corporation.
The public and each member thereof has a common and equal right to make reasonable use of highways for the purposes of travel and transportation and for purposes and uses incidental thereto.
In the absence of a statute or ordinance requiring them so to do, a private person or corporation is under no obligation by reason of the ownership or occupancy of abutting premises, or otherwise, to undertake highway improvements or to maintain the highway in repair, except to the extent of repairing defects caused by their own acts, or to protect the highway from injury, except against dangers created by them
A private person, who, without invitation by, and without contractual relationship to the owner or occupant of premises, enters such premises to put otit or confine a fire, having no legal duty to do so, is a volunteer or naked licensee, and the owner or occupant of such premises owes him no greater duty than to refrain from the infliction of wilful or intentional injury
The owner or occupant is also under the duty of warning a licensee or volunteer of concealed dangers after his presence is
If, at the time of the accident, Concho’s employee had been using the highway for the purpose of travel, passage or transportation and had been driving the Caterpillar tractor and its accessory equipment along the unpaved portion of the highway, rather than on the paved portion, as is customary with such heavy equipment, and believing that the highway extended to the fence line, and in the exercise of due care, had contacted and broken the riser and as a proximate result thereof injuries to the Caterpillar tractor and its accessory equipment occurred, I would readily agree that there were issues of fact which should be submitted to the court or jury at a trial on the merits.
In all of the cases cited in Note 3 to the majority opinion the injured person was using the public way for the purpose of travel, passage, transportation, or uses incidental thereto. I have been unable to find any adjudicated case holding that an abutting owner is liable for injuries suffered because of a dangerous condition on his adjoining premises by a person using the highway for purposes other than travel, passage, transportation, or purposes incidental thereto;
Here, Concho’s employee entered upon the unpaved portion of the highway, not for the purpose of travel, passage, transportation, or any use incidental thereto, but solely for the purpose of confining the fire by digging up and moving the surface dirt so as to create a fire-break. In so doing he also entered upon the abutting land and upon the right of way of the Gas Corporation, which included both surface and sub-surface rights, and dug up and moved the surface dirt thereof. He may have done so believing that the highway extended to the fence line. If the owner of the highway had owned and maintained the gas line and riser on the highway, the relationship of Concho to the owner of the highway would have been that of a volunteer. Equally, I think, it must be true that when Concho’s employee entered upon the abutting land and upon the right of way of the Gas Corporation for the purpose of confining the fire, his relationship to the land owner and the Gas Corporation was that of a volunteer.
I do not think the fact that Concho’s employee entered upon the right of way of the Gas Corporation and the abutting land, reasonably believing that the highway extended to the fence line, is important. The important facts are that Concho’s employee entered upon the highway, the the right of way of the Gas Corporation, and the abutting land, not for the purpose of passage, travel or transportation, or any purpose incidental thereto, but for the purpose of digging up and moving the surface dirt to create a fire-break, without an invitation from the owner of the highway, the Gas Corporation, or the land owner and without a legal duty, contractual or otherwise, to any of them, so to do.
If A enters the premises of B under facts and circumstances under which his relationship to B is that of a volunteer and C maintains adjoining premises under facts and conditions that would warrant the belief on the part of A that they are a part of B’s premises, and A also enters C’s premises believing they are a part of B’s premises, surely no higher relationship exists between A and C than between A and B and no higher duty devolves ttpon C to A than devolves upon B to A. The mere fact that A entered C’s premises
Accordingly, it is my opinion that the relationship of Concho to the Gas Corporation, when Concho’s employee entered the right of way of the Gas Corporation, for the purpose of confining the fire, was that of a volunteer, and that there was no breach by the Gas Corporation of any duty owing by it to Concho, rendering the Gas Corporation liable for the injury and damage to the Caterpillar tractor and its accessory equipment. Hence, I would affirm the judgment.
. Hereinafter called the Gas Corporation.
. Hereinafter called Concho.
. Hildebrand v. Southern Bell T. & T. Co., 219 N.C. 402, 14 S.E.2d 252, 255; Carli v. Stillwater Street Ry. & T. Co., 28 Minn. 373, 10 N.W. 205, 206; Commonwealth v. Morrison, 197 Mass. 199, 83 N.E, 415, 416, 417, 14 L.R.A.,N.S., 194; Escobedo v. State Dept. of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1, 5; McKay v. Public Utilities Commission, 104 Colo. 402, 91 P.2d 965, 969; City of Boston v. A. W. Perry, Inc., 304 Mass. 18, 22 N.E.2d 627, 629; State v. Potomac Edison Co., 166 Md. 138, 170 A. 568, 570; 25 Am.Jur., Highways, p. 456, § 163.
In Hildebrand v. Southern Bell T. & T. Co., supra, the court said, 14 S.E.2d at page 255:
“An easement acquired for use as a public highway is acquired for a public use but not for all public uses. The use is limited to the right of the public generally to pass and repass, to travel on foot or with any kind of vehicle. * * * ’’
. Weller v. McCormick, 47 N.J.L. 397, 1 A. 516, 518; Gabrielsen v. City of Seattle, 150 Wash. 157, 272 P. 723, 729, 63 A.L.R. 200; Lucas v. St. Louis & S. Ry. Co., 174 Mo. 270, 73 S.W. 589, 591, 61 L.R.A. 452; Hanley v. Fireproof Bldg. Co., 107 Neb. 544, 186 N.W. 534, 535, 24 A.L.R. 382; Harris v. Farmers’ & Merchants’ State Bank, Tex.Civ.App., 239 S.W. 1027, 1028; Stewart v. Sheidley, 223 Mo.App. 554, 16 S.W.2d 607, 610; 25 Am.Jur., Highways, p. 377, § 64.
. Todd v. Armour & Co., 44 Ga.App. 609, 162 S.E. 394; Lunt v. Post P. & P. Co., 48 Colo. 316, 110 P. 203, 205, 30 L.R.A.,N.S., 60; New Omaha Thomson Elec. L. Co. v. Anderson, 73 Neb. 84, 102 N.W. 89, 92; Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113, 1116, 1117, 22 L.R.A. 198; Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 183, 17 L.R.A. 588; Pennebaker v. San Joaquin L. & P. Co., 158 Cal. 579, 112 P. 459, 463, 31. L.R.A.,N.S., 1099; Notes, 13 A.L.R. 638; 141 A.L.R. 585.
. Houston Belt & T. Ry. Co. v. O’Leary, Tex.Civ.App., 136 S.W. 601, 604, 605; Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 194 P.2d 706, 707, 708; Davis v. Tredwell, 347 Pa. 341, 32 A.2d 411, 413; New Omaha Thomson-Houston Elec. L. Co., 73 Neb. 84, 102 N.W. 89, 92; Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113, 1117; 65 C.J.S., Negligence, § 35 h, p. 500. Note, 13 A.L.R. 644.
Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 71 N.E.2d 447, 449; Birch v. City of New York, 190 N.Y. 397, 83 N.E. 51, 53, 18 L.R.A.,N.S., 595.
Hughes v. Shanafelt, 203 Okl. 80, 218 P.2d 350, 351; Glines v. Maine Cent. R. R., 94 N.H. 299, 52 A.2d 298, 300, 301; Mann v. Des Moines Ry. Co., 232 Iowa 1049, 7 N.W.2d 45, 53 ; 65 C.J.S., Negligence, § 62, p. 554; Slier v. State, 194 Misc. 172, 86 N.Y.S.2d 266, 268, 269; Lucas v. Kelley, 102 Vt. 173, 147 A. 281, 283; See also, Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 184.
In Hughes v. Shanafelt, supra, the court said [203 Old. 80, 218 P.2d 351]:
“ * * * it ja contended that no contractual relationship existed between tile parties, and since plaintiff was a more volunteer defendant did not owe plaintiff the duty to exercise ordinary care for his protection. To sustain such argument defendant relies upon the following principle of law as laid down in 45 C.J., Negligence, § 253: ‘It has been considered that one who is engaged in work or an operation owes to another who undertakes to assist him as a mere volunteer, without invitation and without contractual relationship, no duty of ordinary care and is not liable for an injury received by such volunteer unless guilty of gross negligence, wilfulness or wantonness.’
“Also cited and relied upon by defendant in support of the above rule are the following cases: Richardson v. Babcock & Wilcox Co., 1 Cir., 175 F. 897; Western Truck Lines v. Du Vaull, 57 Ariz. 199, 112 P.2d 589, and Hatcher v. Cantrell, 16 Tenn.App. 544, 65 S.W.2d 247, both of the latter cases citing the rule as announced in tlhe Richardson case, supra. Consideration of these cases will reveal that in each case the court expressly determined that the injured party voluntarily, and without necessity, entered into the place of danger without any duty requiring this, or any request for them to do so. Undoubtedly, in such cases the rule of nonliability for injuries received under such circumstances must apply, in the absence of gross, wilful or wanton negligence.”
. Sher v. State, 194 Misc. 172, 86 N.Y.S.2d 266, 289.
. Birch v. City of New York, 190 N.Y. 397, 83 N.E. 51, 53, 18 L.R.A.,N.S., 595; Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 71 N.E.2d 447, 449.
. Rawlins v. Pickren, 45 Ga.App. 261, 164 S.E. 223, 224; Cobb v. First Nat. Bank of Atlanta, 58 Ga.App. 160, 198 S.E. 111, 114; Beehler v. Daniels, 18 R. I. 563, 29 A. 6, 7, 27 L.R.A. 512; Watson v. Manitou & Pikes Peak Ry. Co., 41 Colo. 138, 92 P. 17, 19, 17 L.R.A.,N.S., 916; Jenkins v. 313-321 W. 37th Street Corp., 284 N.Y. 397, 31 N.E.2d 503, 504; Lunt v. Post P. & P. Co., 48 Colo. 816, 110 P. 203, 207, 30 L.R.A.,N.S., 60; 65 C.J.S., Negligence, § 38, pp. 503, 504.
. Locke v. Payne, 81 N.H. 266, 124 A. 668; 65 C.J.S., Negligence, § 38, p. 504.