J.K. FRANKS AND EVA D. FRANKS, HUSBAND AND WIFE, APPELLANTS, v. HELEN L.TYLER ET AL., APPELLEES.

¶1 An appeal 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 part of the section line as a private road as a way of necessity to a tract of land purchased by plaintiffs in 1970.



¶2 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 alleging 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.



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¶10 Defendants concede in brief that the injunction in their favor against trespassing 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.



¶11 Affirmed in part, reversed in part for further proceedings consistent with this opinion.



¶12 Affirmed in part, reversed in part.