Date: 06-21-1994

Case Style:

Lori Ward DeWitt v. Mike Cavender

Case Number: 1994 OK CIV APP 93

Judge: Carl B. Jones

Court: Oklahoma Court of Civil Appeals on appeal from the District Court of McCurtain County

Plaintiff's Attorney: Don Ed Payne

Defendant's Attorney: Jerry L. McCombs

Description: ¶1 Following a non-jury trial, Appellants seek review of the trial court's decision refusing to find the existence of an easement allowing Appellants to cross Appellees' property to reach their own property. We believe the trial court erred in this regard.

¶2 Two tracts of land are involved herein: tract 1, or the Cavender tract, consists of approximately 1,600 acres; and, tract 2, or the Severn Island tract, consists of approximately 200 acres. Appellants are the owners of the Severn Island tract and Appellees own the Cavender tract. The Severn Island tract is accessible only across the Cavender tract.

¶3 From the evidence contained in the record on appeal, the following can be gleaned about the chain of title of the two tracts; prior to 1977, the Cavender tract was owned by Barney Ward, Sr. and possibly by his wife, May Ward. No later than September, 1977, the tract had come to be owned by Barney Ward, Jr. In September, 1979, Barney Ward, Jr., quit claimed the property to himself and his wife, Pauline Ward, as joint tenants. In February, 1986, the property was conveyed by Sheriff's Deed to Farmers Home Administration (FHA). On November 2, 1987, Pauline Ward, a single person obtained the property from the FHA and conveyed it two days later by joint tenancy warranty deed to Appellees.

¶4 The Severn Island tract was obtained by Barney Ward, Sr., in 1942. He died in 1975, and his wife, May, died in 1977. Barney Ward, Jr. was the only heir and inherited the property upon the death of May Ward in 1977. In June, 1981, a warranty deed from Barney Ward, Jr., and his wife, Pauline Ward, conveyed the property to Appellant, Lori Mae Ward.

¶5 The evidence disclosed that for the last fifty years or so, the only access to the Severn Island tract was by a road crossing the Cavender tract. Earlier, there had been another road to the Severn Island tract which crossed a bridge over a 50 yard wide creek. That bridge, however, was washed out fifty years ago. Appellants and their predecessors had always used the road across the Cavender tract and continued to do so after Appellees purchased the tract in 1987. In 1990, a dispute arose and Appellees thereafter locked the gate into their property thus preventing Appellants from reaching their property.

¶6 Appellees do not contend there was another possible access to the Severn Island tract other than across their land. They do contend there was no clear roadway across their property to reach the Severn Island tract and that it was not known or obvious to them that there was an implied easement.

¶7 The trial court found that there was no "unity of title between the two tracts and that such unity was a necessary element for an implied easement to exist." The trial court believed that the necessary unity of title required Pauline Ward, who had conveyed the Cavender tract to Appellees to have owned the Severn Island tract at the same time which she did not. The trial court also found there to be no evidence of apparent and continuous use of the Cavender tract by the owners of the Severn Island tract.

Outcome: ¶15 REVERSED.

Plaintiff's Experts:

Defendant's Experts:

Comments: