Luker v. Board of County Commissioners

2002 OK CIV APP 108, 84 P.3d 773, 73 O.B.A.J. 3320, 2002 Okla. Civ. App. LEXIS 93, 2002 WL 31496658
CourtCourt of Civil Appeals of Oklahoma
DecidedOctober 4, 2002
DocketNo. 96,425
StatusPublished
Cited by2 cases

This text of 2002 OK CIV APP 108 (Luker v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luker v. Board of County Commissioners, 2002 OK CIV APP 108, 84 P.3d 773, 73 O.B.A.J. 3320, 2002 Okla. Civ. App. LEXIS 93, 2002 WL 31496658 (Okla. Ct. App. 2002).

Opinion

OPINION

CARL B. JONES, Judge:

¶ 1 This is an appeal from the trial court’s denial of Appellants, A.B. Luker and Virginia A. Luker, d/b/a Luker Farm Partnership (Lukers), request for injunctive relief requiring the Board of County Commissioners of Greer County (County) to repair a dike and restore the original drainage system around the west half of Section 7, Township 4 North, Range 21 West, Indian Meridian in Greer County, Oklahoma. The Lukers also appeal the trial court’s finding that County acquired a prescriptive right to the centerline road which bisects the east and west halves of Section 7 and runs from north to south. The Lukers also appeal their waiver of their right to seek money damages from the jury. For the reasons set forth hereinafter, we affirm in part the trial court’s decision and remand with directions to the trial court to specifically delineate the parameters of County’s prescriptive easement to the centerline road.

BACKGROUND

¶ 2 The Lukers have farmed the west half of Section 7 for many years. In 1995, Greer County experienced significant rainfall. The Lukers’ property and neighboring properties were flooded. The Lukers claim the flooding in 1995 occurred because County failed to repair a breach in a dike located on County’s right-of-way on the north boundary of Section 7 and failed to repair and clear the drainage system around the west half of Section 7, including culverts and ditches on County’s roadways. The Lukers claim their property did not historically experience substantial flooding even during heavy rains. The Lukers made demand upon County to repair and maintain the existing drainage system which had been in place for more than 50 years. In 1995, County hired Robert D. Leonard, consulting engineer, to conduct a study and prepare a new drainage plan to modify the diversion ditch system along the north boundary of the NW/4 of Section 7 (Leonard Plan). The Lukers rejected the Leonard Plan for various reasons. County also conferred with other landowners in the area to determine the best approach to control the drainage and flooding.

¶ 3 The Lukers’ property was again flooded in 1996 and 1997. In 1997, County removed a railroad berm that crossed the cen-terline road; changed the grade and raised the section line road on the west side of Section 7 and the centerline road between the east and west halves of Section 7; constructed ditches and berms adjacent to the [776]*776centerline road and made other repairs without notice to or consent of the Lukers.

¶4 In 1998, the Lukers sued County for negligent failure to maintain and repair county roadways, trespass on the Lukers’ property, and nuisance. The Lukers sought monetary compensation for damages to their property and crops and injunctive relief requiring County to repair, maintain and restore the original drainage system. The Lukers also claim the changes to the center-line road were not proposed in the Leonard Plan; were unauthorized; were performed on private property; and caused them additional damages because excess ditch dirt was dumped on their property and even more surface water from adjacent lands to the north now flood across their property. They also complain that at the time of the trial in May, 2001, the breach in the dike was still open. County denied its liability, claiming in part the Lukers’ damages were caused by an “Act of God.” County claimed maintenance and repairs of roadways and drainage systems are discretionary and the centerline road was acquired by prescription. As a result, County did not have to obtain the Lukers permission or consent to complete the maintenance and repairs.

¶ 5 After trial on the merits, testimony of witnesses and presentation of documentary evidence, the trial court summarized the Lukers’ request as follows:

The plaintiffs in this case, in effect, [have] asked the county to substantially maintain a dike along the north side of the Foster property, the northwest quarter of Section 7, and maintain the diversion of water which all witnesses testified came from drainage some two sections of land to the north of Section 7. The plaintiff asks that the diversion be maintained and the water be taken on to the west instead of going south and west towards the natural drainage, in effect, changing the water over a water course to the west, rather than following the drainage system that nature put there before there was a railroad track and before there was a dike.

¶ 6 Thereafter, the trial court denied the Lukers’ motions for directed verdict and request for injunctive relief finding the center-line road was a public right-of-way, acquired by County through prescription, and that County acted reasonably in digging ditches down the centerline road in an effort to improve drainage to the south. The trial court also determined County is not responsible for the flooding and due to the acceleration and collection of the water from the north, County cannot be compelled to maintain the diversion system that caused the water to go to another water source when that is not the natural flow.

STANDARD OF REVIEW

¶7 In reviewing the trial court’s denial of injunctive relief and grant of a prescriptive easement, we adhere to the principals that such matters are of equitable cognizance and are within the sound discretion of the trial court. Accordingly, a judgment refusing to issue an injunction and granting a prescriptive easement will not be disturbed on appeal unless the lower court has abused its discretion or the decision is clearly against the weight of the evidence. James v. Board of County Com’rs of Muskogee, 1999 OK CIV APP 47, ¶ 7, 978 P.2d 1002, 1003; see also Sharp v. 251st Street Landfill, Inc., 1996 OK 109, ¶4, 925 P.2d 546, 549. We also recognize an injunction is an extraordinary remedy that should not be lightly granted. Id.

ANALYSIS AND REVIEW

¶ 8 The Lukers allege the trial court’s determination that County had no duty to repair and restore the existing drainage system surrounding the west half of Section 7 to its previous condition is contrary to law and against the clear weight of the evidence. The Lukers urge County had the mandatory duty under 69 O.S.1991 § 6011 to maintain [777]*777and repair the county roadway and drainage system around Section 7; and, County’s failure to do so caused irreparable injury to the Lukers’ property; therefore, they are entitled to their requested injunctive relief.

¶ 9 County asserts the denial of the requested injunctive relief should be affirmed because County had the discretion to choose road maintenance methods which are best for the whole county, not just a single landowner. County urges although it may have a ministerial duty to construct and maintain the roads, the precise method of road maintenance is discretionary. County’s evidence was that the proposed method of maintenance for Section 7, as recommended in the Leonard Plan, was accepted by a majority of the landowners in the area, but rejected by the Lukers. County urged it had the discretion under § 601 to reject the demands of a single landowner if their demands appear to be against the interest of the majority.

¶ 10 In making our decision, we are guided by Oklahoma Supreme Court’s explanation of § 601 in Oldfield v. Donelson, 1977 OK 104, 566 P.2d 37:

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Bluebook (online)
2002 OK CIV APP 108, 84 P.3d 773, 73 O.B.A.J. 3320, 2002 Okla. Civ. App. LEXIS 93, 2002 WL 31496658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luker-v-board-of-county-commissioners-oklacivapp-2002.