Date: 12-05-2001

Case Style: Gene H. Francis, et al. v. Ira F. Rogers, et al.

Case Number: 2001 OK 111

Judge: Kauger

Court: Supreme Court of Oklahoma

Plaintiff's Attorney: Richard A. Williams, Anadarko, Oklahoma, for Plaintiffs/Appellants

Defendant's Attorney: Thomas R. Zynda, Anadarko, Oklahoma, for Defendants/Appellees

Description: The dispositive issue presented is whether the evidence supports the trial court's determination regarding title to the property on which the railroad right of way was located. It does not.

Facts

This cause concerns a dispute over land on which a railroad once held a right of way. The dispositive issue involves the location of the boundary line between the adjoining landowners. Elbert C. Hedrick, and his wife Jessie Hedrick, and Vernon Hedrick and his wife Hazel Hedrick, (collectively, the Hedricks) owned land located in rural Caddo County, Oklahoma. A railroad right of way held by the Chicago Rock Island & Pacific Railroad and Railway Company ran north and south through the Hedricks' property, dissecting it into east and west tracts.

In 1962, the Hedricks sold the west tract to the defendants/appellees, Ira F. Rogers and his wife Lucille Rogers,2 (collectively, the Rogers). The Rogers' deed described the property as "lying and situated West of the westerly line of the . . . [railroad] right- of-way."3 According to the testimony of the Rogers' son, sometime in 1963, the Rogers and the Hedricks constructed a permanent fence some distance east of the east side of the railroad right of way. The purported purpose of this fence was, contrary to the language of the Rogers' deed, to create a boundary line between the Rogers' property and the Hedricks' property.

The east tract of the Hedricks' property remained in the Hedricks family until 1990, when surviving Hedricks family members sold it to the plaintiff/appellants, Gene H. Francis and his wife Mary Ann Francis, (collectively, the Francises). The Francises took the property from surviving Hedricks family members by two deeds ----- a warranty deed4 and a guardian's deed.

The railroad stopped running trains on the right of way in the early 1980's. In October of 1985, the railroad attempted to convey its interest in the property through a quit claim deed to a third party, abandoning its right of way and reserving a temporary easement until December of 1986.6 Sometime after the Francises purchased their property in 1990, Gene Francis approached the Rogers about dividing the strip of land on which the railroad had held its right of way. The Rogers refused and the Francises filed suit on July 3, 1996.

The Rogers answered the petition and cross-petitioned, seeking a determination that the fence, rather than the railroad right of way, constituted the boundary line between the two tracts of property and that they owned the disputed property. They asserted that: 1) the fence, constructed in approximately 1962, was intended to serve as the boundary line between the east and west tracts of land; 2) they had conducted farming and grazing activities west of the fence since 1962 and had openly, notoriously, and adversely to the Francises and their predecessors in title possessed the property west of the fence; and 3) at the time the railroad abandoned its right of way, they had openly, notoriously, and adversely possessed the disputed property for approximately twenty years and upon abandonment of the right of way, it reverted to them as they were adjoining or abutting landowners.

On March 10, 2000, the trial court, Honorable Richard G. Van Dyck, entered an order quieting title to the Rogers. It found that: 1) the Rogers received title to the property west of the railroad right of way in 1962 and in 1963, they erected a fence some distance outside of the east side of the railroad right of way; 2) the fence was intended to serve as the boundary line between the Rogers' and the Francises' properties; and 3) since 1963, the Rogers have adversely possessed a narrow strip of land between the east side of the railroad right of way and the boundary line fence.

The trial court determined that because the Rogers, by adverse possession, owned a narrow strip of land east of the right of way they were the adjoining land owners to the east and to the west of the right of way. Consequently, when the railroad abandoned the right of way, it passed to the Rogers as adjoining landowners. The Francises appealed. The Court of Civil Appeals affirmed. We granted certiorari on June 7, 2001.

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The Rogers alternatively assert that even if they do not own the disputed property by adverse possession, the east fence was intended to be the boundary line between the two properties pursuant to a parol agreement with the Hedricks in 1963. They argue that a parol agreement is evidenced by: 1) the testimony of the witnesses; 2) the fact that there was not a fence on the west side of the railroad right of way; and 3) the fence line was acquiesced from 1963 when the fence was constructed until this action was filed. The Rogers also insist that pursuant to Lake, for Use and Benefit of Benton v. Crosser, 1950 OK 49, 216 P.2d 583, when a parol agreement to change the boundary line between properties exists, occupation of the property for the prescriptive period is not necessary.17 The Francises counter that the fence was located east of the right of way, but not outside of the right of way, and that it existed, just as a fence once existed on the west side of the right of way, to keep cattle off of the right of way. They argue that the evidence does not support a finding that the east fence was intended to be a new boundary line between the properties.

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Click the case caption above for the full text of the Court's opinion.

Outcome: COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan