Goodpaster v. Oklahoma Gas & Electric Co., 291 F.2d 276 (10th Cir. 1961)

PICKETT, Circuit Judge.

The plaintiff, Charles Goodpaster, brought this action to restrain Oklahoma Gas & Electric Company, herein referred to as “O. G. & E.”, from erecting poles, for an electric transmission line, upon a utilities easement over lots in a residential development in The Village, Oklahoma. It was alleged that the plaintiff was the owner of certain lots in the Burke Northridge Manor Addition to the Town of The Village, in Oklahoma County, Oklahoma; that the amended restriction relating to the utility easement in the recorded plat of the addition provided that “no structure of any nature, specifically including electric power pole lines, shall be constructed which would exceed forty (40) feet in height above normal ground level”; and that O. G. & E. had entered upon the easement for the purpose of erecting electric power line poles approximately 100 feet in height, to the irreparable injury of the plaintiff. Upon the filing of the complaint, the trial court restrained the erection of the poles pending a hearing on the plaintiff’s application for a preliminary injunction. On the day of the hearing, John H. Burke, who executed and filed the original plat, sought to intervene in the action, alleging that he was the owner of lots adjacent to those owned by Goodpaster, and that he would suffer the same irreparable injury if the power poles were erected. The trial court vacated the restraining order, denied a temporary injunction, and refused to permit Burke to intervene. Goodpaster and Burke have appealed, and the cases were consolidated for hearing.

The facts are not in dispute. On November 20,1958, September 10, 1959, and July 20, 1960, John H. Burke filed in the office of the County Clerk of Oklahoma County plats covering various portions of a tract of land which he owned in the Town of The Village, Oklahoma County, Oklahoma.1 Included in one of these plats were the lots now owned by Goodpaster. Each of the plats contained a dedication for utility easements, which read as follows:

In September, 1960 O. G. & E. commenced the construction of an electric line on the easement covering lots on the westerly side of one of the plats. Burke brought an action in the District Court of Oklahoma County, Oklahoma, in which he sought to enjoin the construction of the line, contending that the erection of the contemplated power line would constitute trespass upon his property. The injunction was denied. Thereafter Burke asked the governing body of The Village to enact an ordinance limiting the height of all poles in The Village to 40 feet, or less, but this request was refused. Shortly thereafter, without obtaining the approval of the town, or any of its agents, Burke recorded in the office of the County Clerk of Oklahoma County, Oklahoma, an instru

ment purporting to amend the dedicated utility easement upon which the electric power line was to be constructed by limiting the height of utility poles to 40 feet. On March 17, 1961 Burke was advised that O. G. & E. would, on March 20, 1961, commence work for the completion of the electric line. This action followed immediately.

It is well settled that an application for a temporary injunction, in advance of a hearing on the merits of the case, is addressed to the sound judicial discretion of the district court. 7 Moore’s Federal Practice, p. 1630 (2d Ed., 1955), and cases cited.2 We find no abuse of the trial court’s discretion in denying the temporary injunction after a hearing. The court had before it the state court proceedings in which injunctive relief was denied to Burke,3 when he was the owner of the same land, and the refusal of the city authorities to adopt an ordinance restricting the height of the power poles. Furthermore, the validity of the purported amendment to the original easement dedication which was filed without obtaining approval of the town’s governing authorities, is doubtful.

Burke sought to intervene because he had a cause of action against O. G. & E. involving other property, which presented questions of law and fact the same as those presented by Goodpaster’s action. We do not consider the question of whether the granting of the motion to intervene would destroy diversity of citizenship as a requisite to Federal Court jurisdiction. Permissive intervention under Rule 24(b), Fed.Rules Civ.Proc. 28 U.S.C.A. is discretionary, and we find no abuse of discretion. Archer v. United States, 10 Cir., 268 F.2d 687.

Affirmed.