Concho Const. Co., Inc. v. Oklahoma Natural Gas Co

201 F.2d 673

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 9, 1953
• Docket: 4523
• Status: Published

Opinions

PICKETT, Circuit Judge.

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 upon the pipe line right of way of the gas company, and that the gas company owed him only the duty to which a trespasser would be entitled.^{1 2}Defendant’s motion for summary judgment was sustained, and judgment was entered accordingly.

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.³ On January 26, 1951, the use of one of these risers had been discontinued. The riser was covered over with about two inches of soil. There was no marker and the riser was concealed from view. The pipe line was placed and - maintained on the highway side of what appeared to be the highway right of way boundary fence. Actually the fence had been placed several feet south of the highway right of way boundary line so that the pipe line apparently was within the boundaries of the right of way. One of plaintiff’s employees was operating the bulldozer for plaintiff who was performing a subcontract with Bollinger Construction Company near the highway. A fire broke out south of the highway, and aided by a strong wind it spread in a northeasterly direction. An employee of the Bollinger 'Construction Company directed the operator of Concho’s bulldozer to take the bulldozer on to the highway right of way to a point east of where the fire had spread and to make a firebreak between the paved highway and the south fence. In building this firebreak, the operator lowered the blade of the bulldozer about two inches below the surface of the ground and moved forward. While so engaged, the bulldozer blade struck the unmarked riser causing the aforesaid fire and destruction of the bulldozer.

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.³ The owner owes a duty to keep such land in a reasonably safe condition for the users of the highway.

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 public or to travelers upon and lawful users of the highway.⁴

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.⁵

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.

1 . 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.

2 . 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.

3 . 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.”

4 . 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.

5 . 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.