An аppeal by plaintiffs from the trial court’s granting of a permanent injunction, enjoining plaintiffs from trespassing upon defendants’ section line property and the denying of plaintiffs’ alternative petition to condemn pаrt of the section line as a private road as a way of necessity to a tract of land purchased by plaintiffs in 1970.
Plaintiffs J. K. Franks and Eva D. Franks, own forty acres of land in Washington County one boundary of which adjoins the section line. This property is completely surrounded by a ranch owned by the defendants Helen L. Tyler and her children, under which the other defendants John Hughes and Dan Gallery by some agreement, the terms of which are unknown to the plaintiffs, are in possession. The plaintiffs have been denied access to their property along the road which follows the section line except by permission of the defendants who claim that to the extent that this way can be called a road that it is a private road across their land and subject to their control. The plaintiffs brought this action to enjoin the defendants from interfering with their access along the section line road allеging that this road was a public road or had become a public road. In the alternative they sought to condemn a way of necessity under 27 O.S.1971, § 6. After a trial to the court all relief was denied to the plaintiffs and the plaintiffs were enjoined from trespassing on the defendants’ property. Plaintiffs took this appeal.
Plaintiffs did not attempt to prove that any action had ever been taken by the county commissioner or others to open the section line road for public use but take the position that authorizing legislation created a public road along the section line without further action by county or other officials. Plaintiffs cite the Cherokee Allotment Agreement which provided, in part, that “public highways or roads . may be established along all section lines without any compensation being paid therefor . . .” (Act of July 1, 1902, Ch. 1375, § 37, 32 Stat. 716, 722) and Article 16, § 2 of the Oklahoma Constitution which prоvided that Oklahoma accepted all reservations for public highways made under act of Congress. However since shortly after statehood there have been procedures established for the opening of section line roads by county commissioners, provisions presently found in
After denying relief to the plaintiffs on the theory already discussed, the trial court then initiated condemnation proceedings pursuant to the plaintiffs’ alternative prayer for such relief but abandoned this action and refused this relief when convinced by the defense attorneys that acquisition of a way of necessity by eminеnt domain under Article 2, § 23 of the Oklahoma Constitution and 27 O.S.1971, § 6 requires the same elements of proof of a way of necessity as does the common law easement by necessity. The common law easement by necessity was based upon the implication of a grant of an easement by the owner of the servient estate when necessity of access to the dominant estate required it. Such a theory requires proof of a commоn grantor at one time of the two properties since the creation of such an easement is based upon the presumed intent of the grantor to convey a way as well as the property. There is some authority that proof of a grant from the state does not satisfy this requirement. W. Burby, Real Property § 29 (3d ed. 1965).
In order to have a common law easement by necessity in Oklahoma a common grant- or must be shown. Thomas v. Morgan,
This error was occаsioned by equating the common law right of way of necessity where the plaintiff seeks to establish it through judicial relief by way of an injunction with the way of necessity by condemnation proceedings under the Constitution and statute. No consideration is paid if the court finds that an easement of necessity is to be implied in the original conveyance by the common grantor and establishes a way and issues an injunction against interference with that right of way by the owner of the servient estate. However, fair compensation is required if a right of way by necessity is condemned under the Constitution and statute. If the same right of way requirements must be shown when condemnation is sought as when seeking traditional judicial relief, the constitutional and statutory provisions authorizing condemnation would serve no purpose since who would invoke the eminent domain procedure to acquire and pay for a right of way of necessity if he could acquire the same right of way free (except for the expenses of litigation) by seeking the traditional judicial relief. Consequently, though there is some authority to the contrary, generally such cоnstitutional and statutory provisions have been construed as authorizing a right of way of necessity even though the requirements are not met for the common law way of necessity by implied grant. A hornbook on property law stаtes the proposition in this manner:
“Statutes have been passed in a number of states authorizing condemnation proceedings as a means by which to obtain a right of way. However, the enactment of such a statute dоes not impair the common law right to obtain a right of way of necessity. Resort may be had to condemnation in situations where such a common law right does not exist.” W. Burby, Real Property § 29 at p. 76 (3d ed. 1965).
The Oklahoma cases сited by defendants for the proposition that a private right of way of necessity may be established only where there was a common owner of the dominant and servient estates are all cases where the plaintiffs sought to establish the way of necessity by seeking traditional in-junctive relief. Thomas v. Morgan,
Ayres case requires an interpretation of that phrase in this case to mean that only the procedure for condemnation by railroads is adopted in such provisions, as the Supreme Court said in Ayres, not the right which the plaintiff must assert to invoke eminent domain. But the question in the case at bar is not what “in like manner as railroad companies” means but what is meant by “private way of necessity” in the statute and in the Constitutional provision. That question was not before the Supreme Court in the Ayres case since an entirely different condemnation statute was there involved.
We do not find any case in which the Oklahoma Supreme Court has interpreted the Constitutional provision and eminent domain statute under consideration here and so we have relied upon cases in other jurisdictions which have construed similarly worded constitutional provisions and statutes. In State ex rel. Mountain Timber Co. v. Superior Court,
The right to condemn a way of necessity under constitutional and statutory provisions is an expression of public policy against landlocking property and rendering it useless. Hellberg v. Coffin Sheep Co.,
Defendants concede in brief that the injunction in their favor against tresрassing by the plaintiffs should be vacated “if the trial court is reversed, either on the question of whether the section line is a public road or on the question of Appellants’ right to condemn.” The trial court will therefore vacate this injunction upon remand.
Affirmed in part, reversed in part for further proceedings consistent with this opinion.
Affirmed in part, reversed in part.