Weyerhaeuser Co. v. Brantley

FILED
United States Court of Appeals
Tenth Circuit

December 20, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WEYERHAEUSER COMPANY,

Plaintiff-Appellee,
v. No. 06-7097
CARL BRANTLEY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-05-382-RAW)

Brandon L. Jensen (Karen Budd-Falen with him on the briefs) Budd-Falen Law
Offices, LLC, Cheyenne, Wyoming, for Appellant.

Frederick C. Cornish (William S. Leach and Alison A. Verret with him on the
brief) Eldridge Cooper Steichen & Leach PLLC, Tulsa, Oklahoma for Appellee.

Before McCONNELL, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Weyerhaeuser is the record owner of 300 acres known as Sherrill Farm in

McCurtain County, Oklahoma. This appeal arises from Weyerhaeuser’s suit to

remove Carl Brantley and his livestock from Sherrill Farm. As an affirmative
defense to Weyerhaeuser’s suit, Brantley sought ownership of Sherrill Farm

through adverse possession or, in the alternative, a prescriptive grazing easement

on the entire farm. After a bench trial, the district court denied Brantley’s

property claims and awarded damages and attorney’s fees to Weyerhaeuser.

Having jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1291, we AFFIRM.

I. Background

A. Factual Background

Sherrill Farm is located in a scenic portion of southeastern Oklahoma,

along the Mountain Fork River and near the Arkansas border. The area has

historically been a farming and ranching district, with some gravel mining and

timber operations. The record does not indicate how long Weyerhaeuser has

owned Sherrill Farm, but the parties stipulate Weyerhaeuser is the current record

owner and has been at all times relevant to this dispute, which goes back to the

early 1980s. The facts in dispute center on whether Brantley had exclusive use of

Sherrill Farm for fifteen years.

Brantley claims he began grazing livestock on Sherrill Farm as early as

1980–81, though he never had permission to use it. 1 Since then, Brantley claims

he built corrals, feed troughs, and fences on the property. He also removed brush,

applied fertilizer, harvested wheat, and maintained roads. Although he installed a

1
From 1994 to 2004, Brantley had a license from Weyerhaeuser to graze
property near Sherrill Farm, but he never had permission to use Sherrill Farm.

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locked gate on the farm in the early 1980s, he never paid property taxes on the

land. Brantley claims his adverse possession of Sherrill Farm began in the winter

of 1987–88, after Weyerhaeuser last harvested a stand of trees on the property.

During and after the years when Weyerhaeuser was using the area for its

timber operations, Weyerhaeuser also permitted a number of other uses on

Sherrill Farm. Brantley’s father, Bobby, for example, had a license agreement to

graze on Sherrill Farm beginning in 1983. The parties disagree how long Bobby

leased grazing rights on Sherrill Farm, but the district court found Bobby had a

license with Weyerhaeuser until 1992. Brantley maintained his father was no

longer using Sherrill Farm by the winter of 1987–88. Brantley’s brother Ricky

and his wife, Cindy, also asserted adverse possession of Sherrill Farm based on

their grazing activities during this time, but they ultimately reached a settlement

with Weyerhaeuser, and the parties stipulated Ricky and Cindy had no lawful

claim.

Starting in 1987, Weyerhaeuser also leased parts of Sherrill Farm to

Oklahoma State University (“OSU”). OSU planted two research sites in the

southern part of Sherrill Farm but made no use of the northern half. OSU

complained to Weyerhaeuser about damage to its research plantations from

livestock and built a fence to protect the plantations, but it did not seek to have

Brantley’s cattle removed from Sherrill Farm entirely. OSU did request that

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Brantley cease grazing in the leased area, but Brantley was uncooperative. OSU

also maintained its own locked gate to Sherrill Farm. Because of this alternative

access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing

Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife

Conservation (“ODWC”) agreed to include Sherrill Farm in the Three Rivers

Wildlife Management Area. According to the agreement, the general public could

access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked

gate nevertheless prevented a state wildlife officer from accessing Sherrill Farm

during some visits. Brantley testified he saw hunters on the property during this

time and asked them to leave.

In 2003, Weyerhaeuser granted an easement to another landowner to access

her property across Sherrill Farm, but Brantley refused to allow access to the

easement through his gate.

OSU’s lease terminated in 2004. A Weyerhaeuser employee testified

Weyerhaeuser had plans to put Sherrill Farm back in timber production at that

time and to begin gravel mining. Weyerhaeuser argues Brantley’s presence on the

land delayed these activities, resulting in monetary damages.

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B. Procedural Background

In 2005, Weyerhaeuser sued two of Brantley’s relatives for trespass. It

later amended the complaint on January 31, 2006, to include claims against

Brantley for trespass, ejectment, and declaratory relief. Brantley asserted adverse

possession or prescriptive easement as affirmative defenses, arguing that his

grazing use since 1987 entitled him to the property. After a bench trial, the

district court entered judgment in favor of Weyerhaeuser.

II. Discussion

“In an appeal from a bench trial, we review the district court’s factual

findings for clear error and its legal conclusions de novo.” Keys Youth Servs. v.

City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001). In this diversity case, we

apply Oklahoma law.

The district court determined Brantley’s defenses failed because his

possession had not been exclusive for the fifteen-year prescriptive period, which

required Brantley to establish the elements of either adverse possession or a

prescriptive easement since prior to 1991. See Okla. Stat. tit. 12, § 93(4).

Specifically, the court found, among other things, Sherrill Farm had been subject

to Bobby Brantley’s grazing license until 1992 and that OSU and Weyerhaeuser

had also conducted activities on Sherrill Farm incompatible with Brantley’s

exclusive possession.

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 The district court also determined Weyerhaeuser suffered $10,000 in

damages because it was not able to resume timber operations in 2004 due to

Brantley’s grazing activities. The court, however, rejected Weyerhaeuser’s claim

for mining damages as speculative. It also granted attorney’s fees pursuant to

Oklahoma statute.

We agree with the district court that Brantley is not entitled to adverse

possession or a prescriptive easement. We also affirm the damage award, but we

conclude Oklahoma law does not authorize attorney’s fees.

A. Adverse Possession

Under Oklahoma law, “[t]o establish adverse possession the claimant must

show that possession was [1] hostile, [2] under a claim of right or color of title,

[3] actual, [4] open, [5] notorious, [6] exclusive, and [7] continuous for the full

statutory period [of fifteen years].” Francis v. Rogers, 40 P.3d 481, 485 (Okla.

2001); see Okla. Stat. tit. 12, § 93(4). The burden of proof in adverse possession

cases is “clear and positive” proof with “all inferences and presumptions [] in

favor of the rightful owner.” Norman v. Smedley, 363 P.2d 839, 843 (Okla.

1961). Adverse possession, moreover, cannot be permissive: “permissive

possession can never ripen into title against anyone.” Zimmerman v. Newport,

416 P.2d 622, 629 (Okla. 1966).

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 1. Findings Support Rejection of Adverse Possession Defense

The district court made a number of findings that fatally undercut

Brantley’s adverse possession claim. For instance, the court emphasized Brantley

never paid taxes on Sherrill Farm and cited Anderson v. Francis, 57 P.2d 619, 622

(Okla. 1936): “The payment of taxes is not a controlling circumstance, but it is

one of the means whereby a claim of ownership is asserted, and the failure to pay

taxes for so long a time tends to weaken a claim of ownership by adverse

possession.” The court also found “[t]he boundaries of the land Carl Brantley

claims to own by adverse possession have evolved to suit his purpose,” Aplt.

App. 208, and explicitly found Brantley’s testimony was not believable when it

conflicted with the testimony of other witnesses.

But the district court ultimately determined Brantley’s adverse possession

claim failed because his use was not exclusive for fifteen years. To meet the

requirement of exclusivity, Brantley must “show an exclusive dominion over the

land and an appropriation of it to his own use and benefit. Two persons cannot

hold one piece of property adversely to each other at the same time, and where

two persons have entered upon land, [the one] who has the better title will be

deemed to be in possession.” Sears v. State Dep’t of Wildlife Conservation, 549

P.2d 1211, 1213 (Okla. 1976) (quotation omitted).

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 Based on the evidence produced at trial, the district court found a number

of facts indicating Brantley shared the use of Sherrill Farm with others: (1)

Brantley’s father, Bobby, had a grazing lease on Sherrill Farm until 1992; (2)

OSU conducted significant activities on Sherrill Farm during the relevant period;

(3) Weyerhaeuser also conducted activities such as road maintenance and gravel

sampling during the relevant period; (4) by agreement with Weyerhaeuser,

Sherrill Farm is part of an area managed by the ODWC; (5) under the ODWC

agreement, Sherrill Farm is open to the public and hunters have used the property;

(6) horses not belonging to Brantley ran on Sherrill Farm; and (7) Brantley’s

brother also claimed grazing rights to Sherrill Farm by adverse possession.

We agree with Weyerhaeuser that these findings support the district court’s

conclusion Brantley did not use Sherrill Farm to the exclusion of the record

owner and other permissive users.

2. Findings Support Rejection of Partial Adverse Possession Defense

As a fallback position, Brantley claims even if others used the southern part

of Sherrill Farm, he maintained exclusive possession of the northern part and has

proven adverse possession at least to that portion of Sherrill Farm. Under

Oklahoma law, an adverse possessor can gain title to a portion of land he

possesses exclusively even if the record owner makes use of another portion of

the land. See Macias v. Guymon Indus. Found., 595 P.2d 430, 434 n.8 (Okla.

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1979) (“Where true title holder enters a part of his land adversely occupied by

another, the statute of limitations will be arrested only as to so much of the land

as has been entered and adverse possessor will be restricted to that land of which

he remains in actual possession.”).

Here, the findings support the district court’s judgment. While the district

court’s findings were not entirely clear as to what portions of Sherrill Farm were

being used by Weyerhaeuser and OSU, the record shows that, at the very least,

Bobby Brantley’s grazing lease, which the district court found extended to 1992,

covered the whole of Sherrill Farm. And, as detailed above, other users claimed

access and use of the northern portion of Sherrill Farm. Moreover, Brantley

never clearly defined the boundaries of his use in a way that would have

supported his partial exclusive possession.

These findings defeat Brantley’s claim of partial exclusivity.

3. Findings Were Not Clearly Erroneous

Brantley’s primary response to these conclusions is that the district court

clearly erred in its factual determinations regarding other users of Sherrill Farm.

In particular, he argues the district court clearly erred in finding his father had a

grazing license on Sherrill Farm until 1992. “A finding of fact is ‘clearly

erroneous’ if it is without factual support in the record or if, after reviewing all

the evidence, we are left with a definite and firm conviction that a mistake has

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been made. We view the evidence in the light most favorable to the district

court’s ruling and must uphold any district court finding that is permissible in

light of the evidence.” Plaza Speedway, Inc. v. United States, 311 F.3d 1262,

1266 (10th Cir. 2002). The evidence supports the district court’s finding.

The only license agreement in the record between Brantley’s father, Bobby,

and Weyerhaeuser is a one-year agreement terminating April 6, 1984. Brantley

does not argue the license was never renewed and indeed seems to acknowledge

the license was renewed for some period, because he stipulates Bobby would

testify he can no longer recall the number of years for which he renewed his

grazing license for Sherrill Farm. He simply argues Bobby had left Sherrill Farm

by at least 1987. Weyerhaeuser did not retain records regarding the license

renewal because it periodically destroys files after they have been closed for some

time.

Several pieces of evidence suggest Bobby’s grazing license extended to a

later date. For example, a Weyerhaeuser witness testified her records showed

Bobby’s grazing license continued until 1992 based on a document dated

September 14, 1992, showing a grazing license on the Sherrill Farm area had been

terminated. The 1989 lease agreement with OSU also states the “leased premises

are currently subject to a special cattle grazing license agreement between Lessor

and a third party, Lessee is agreeable to the continuation of said license

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agreement to July 1, 1992, at which time Lessor shall terminate said license

agreement.” Aplt. App. 410. The district court noted OSU’s behavior in not

seeking to have cattle removed from the property was consistent with an

understanding that Weyerhaeuser allowed a licensee to use the property for

grazing. Based on this evidence, the district court concluded Bobby Brantley had

a license to graze on Sherrill Farm until 1992.

Brantley argues the district court clearly erred because, according to his

testimony and the stipulated testimony of Bobby, Bobby was no longer using

Sherrill Farm after 1987. The district court noted “when the testimony diverged,

the Court examined the demeanor of each witness and the consistency of all the

testimony at trial in evaluating the discrepancy.” Aplt. App. 194 n.3. With

regard to the term of Bobby Brantley’s grazing license, the district court chose to

credit other evidence over Brantley’s testimony. Given the district court’s role in

assessing the credibility of witnesses and the other evidence in the record, this

determination was not clearly erroneous.

Brantley does not seriously contest the court’s other factual findings. They

also are supported by the record and are not clearly erroneous.

* * *

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 Accordingly, the district court correctly concluded that, because Brantley

had not exclusively possessed Sherrill Farm for the required time, he had not

established a claim for adverse possession.

B. Prescriptive Easement

The district court also concluded Brantley had “failed to demonstrate the

necessary elements to succeed on a claim of an easement by prescription” because

“[t]he requirements for an easement by prescription in the state of Oklahoma are

generally the same as those for adverse possession.” Aplt. App. 210 (citing

Zimmerman, 416 P.2d at 629); see also Brown v. Mayfield, 786 P.2d 708, 712

(Okla. Civ. App. 1989) (requiring “clear and positive proof of actual open,

notorious, exclusive and hostile possession”). Although the district court’s order

is not entirely clear on this point, it rejected the prescriptive easement claim, like

the adverse possession claim, because Brantley’s use was not exclusive for the

prescriptive period.

As an initial matter, it is not entirely clear Oklahoma law would even

entertain a prescriptive easement for grazing. But assuming—as the district court

did—that Oklahoma will recognize such an easement, a more subtle analysis of

exclusivity is required than that employed in a typical adverse possession case.

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 1. Prescriptive Grazing Easements

Although Oklahoma has not explicitly ruled on the question, a number of

courts have rejected claims for prescriptive grazing rights. These courts see the

claimed easement (which more or less uses all of the servient estate) as a thinly

veiled attempt to circumvent the requirements for adverse possession. See

McDonald v. Bd. of Miss. Levee Comm’rs, 646 F. Supp. 449, 469 (N.D. Miss.

1986); Platt v. Pietras, 382 So. 2d 414, 416–17 (Fla. Dist. Ct. App. 1980); Oakley

Valley Stone v. Alastra, 715 P.2d 935, 938 (Idaho 1985); Burlingame v.

Marjerrison, 665 P.2d 1136, 1140 (Mont. 1983); Deseret Livestock Co. v. Sharp,

259 P.2d 607, 610 (Utah 1953).

Some courts rejecting prescriptive grazing rights instead analyze grazing

rights as falling under the doctrine of profits à prendre, a more expansive type of

property right. See McDonald, 646 F. Supp. at 444–69; Platt, 382 So. 2d at 417;

Oakley Valley Stone, 715 P.2d at 938; Burlingame, 665 P.2d at 1139–40; Deseret

Livestock, 259 P.2d at 610. A profit, in contrast to an easement, is a type of

possessory interest: it “is a liberty in one person to enter another’s soil and take

from it the fruits not yet carried away.” 25 Am. Jur. 2d Easements and Licenses

§ 3; see also Bonner v. Okla. Rock Corp., 863 P.2d 1176, 1181–82 (Okla. 1993)

(distinguishing easements from profits à prendre). A profit is an easement “plus”;

common examples include the right to enter and remove timber, minerals, oil, gas,

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or game from the burdened property. Restatement (Third) Property (Servitudes)

[Restatement] § 1.2(2) & cmt. a.

These cases considering claims for prescriptive grazing rights have rejected

them whether analyzed as a profit or an easement when the right claimed

approximates total possession. As the Montana Supreme Court reasoned in

Burlingame, the claimed prescriptive grazing right—either profit or

easement—would have the effect of leaving the landowner with an “empty” fee

title. 665 P.2d at 1140. In other words, where an easement or profit would

amount to possession of an entire parcel, the claim is not one of prescriptive right

but actually of adverse possession. In that situation, one cannot gain rights to the

profits of the land through a claim of prescription but instead must meet all of the

requirements of adverse possession. Id.; see also Platt, 382 So. 2d at 417; Oakley

Valley Stone, 715 P.2d at 937–38; Deseret Livestock, 259 P.2d at 610. In short,

if the property right claimed is the functional equivalent of possession, a

prescriptive easement is not available, because it would effectively oust the

rightful owner from the property. See Platt, 382 So. 2d at 417; Oakley Valley

Stone, 715 P.2d at 938. Because the rights Brantley asserts approximate total

possession, the preceding line of cases, if followed by Oklahoma, would deny

Brantley a prescriptive easement for grazing rights.

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 Other lines of authority, however, suggest grazing easements may be

acquired by prescription. The Colorado Supreme Court, for example, recently

recognized a prescriptive easement to graze livestock based on an historical right

to access Spanish Land Grant property. See Lobato v. Taylor, 71 P.3d 938,

954–55 (Colo. 2002) (relying on historic use and grant documents); see also

Checketts v. Thompson, 152 P.2d 585 (Idaho 1944); Schwenker v. Sagers, 230

N.W.2d 525, 528 (Iowa 1975) (both recognizing prescriptive easements for

grazing on a narrower scale). And the other cases cited above stop short of

concluding that one can never obtain a profit or easement to graze by

prescription.

To summarize, many courts have been wary of granting prescriptive

property rights for an easement or profit amounting to total possession of a

parcel. Most courts nevertheless recognize at least the possibility of a

prescriptive easement to graze cattle on another’s property. Oklahoma statutes

and case law are silent on this point. Given the basic principle that “[a]ny

easement which may be acquired by grant may also be acquired by prescription,

in the absence of a statute to the contrary,” 25 Am. Jur. 2d Easements and

Licenses § 43, we will assume the possibility that a prescriptive easement could

be obtained for grazing under Oklahoma law. See Okla. Stat. tit. 60, § 49

(identifying the “right of pasture” as an easement).

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 2. Whether Brantley’s Claimed Use was Exclusive

We now turn to the district court’s determination that Brantley’s claimed

use was not exclusive for the purpose of establishing a prescriptive easement.

Certain analytical difficulties flow from Oklahoma’s retention of

exclusivity as an element of prescriptive easements. An easement is by definition

a non-exclusive interest in land. See Restatement § 1.2(1) (“An easement creates

a nonpossessory right to enter and use land in the possession of another.”).

Comments to the Restatement discussing prescriptive easements describe how

they differ from adverse possession: “To acquire an interest by adverse

possession, the claimant must maintain exclusive possession of the claimed

property during the statutory period. To acquire a servitude, however, the

claimant is only required to use the property during the prescriptive period. The

use need not be, and frequently is not, exclusive.” Restatement § 2.17 cmt. a.

Some states nevertheless continue to refer to exclusivity as an element of

prescriptive easements. See, e.g., Albert v. Hastetter, 48 P.3d 749, 754 (Mont.

2002); 25 Am. Jur. 2d Easements and Licenses § 53 (“[E]xclusive use generally is

a prerequisite to the establishment of a prescriptive easement.”). Because

Oklahoma references the elements of adverse possession in its definition of a

prescriptive easement, Oklahoma is among the states retaining an exclusivity

requirement. See Willis v. Holley, 925 P.2d 539, 540–41 (Okla. 1996) (“To

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acquire possession by prescription the ‘possession must be open, visible,

continuous, and exclusive, with a claim of ownership, . . .’ actual, notorious, and

hostile.”) (citing Zimmerman, 416 P.2d at 629), and quoting Irion v. Nelson, 249

P.2d 107, 108 (Okla. 1952)) (emphasis added). Nevertheless, Oklahoma has not

explained exactly what exclusive means in the context of a prescriptive easement.

Comments to the Restatement describe the difficulty of defining exclusive

in this context: “The term ‘exclusive,’ borrowed from adverse-possession

doctrine, causes confusion in prescription cases because servitudes are generally

not exclusive.” Restatement § 2.17 cmt. g. The exclusivity requirement in

prescriptive easement cases thus “puts courts into the awkward position of

explaining that the requirement does not mean that the use is such as to exclude

others, or, that the user in fact has excluded others from the servient estate.” Id.

Instead, courts must apply a different understanding of exclusivity. Courts

explain exclusivity “simply requires that the user have acted independently of

rights claimed by others.” Id.; see also 25 Am. Jur. 2d Easements and Licenses

§ 53 (“The term ‘exclusive’ does not mean that the easement must be used by the

claimant only, however; it simply means that the claimant’s right to use the

easement does not depend on a similar right in others.”). “The exclusivity

requirement is most often applied to deny prescriptive rights to one whose use is

indistinguishable from uses being made by the general public. . . . [or] to one

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whose use is similar to and concurrent with a use made by the owner.”

Restatement § 2.17 cmt. g. Most typically, then, exclusivity in the context of

prescriptive easements connotes a use different than that of others on the

property.

The Restatement acknowledges this reading of the exclusivity requirement

can be “redundant” because “it serves a notice function already served by the

open-or-notorious requirement.” Id. For example, Brantley’s adverse use would

be neither open and notorious nor exclusive if he used the easement along with

the public or another person who was entitled to graze on the property. This is

because his use would not give Weyerhaeuser notice that Brantley, and not an

authorized user, was grazing on Sherrill Farm.

In sum, to be exclusive in the prescriptive easement context, a use need not

physically exclude others from the land, but it must at least be sufficiently distinct

from the uses made by authorized users to give the owner notice of a potential

claim.

With this background, we turn to whether the district court erred in

concluding Brantley’s claimed easement was sufficiently exclusive to establish a

prescriptive easement. Applying these principles, we see no error. In particular,

as discussed above, the district court found Bobby Brantley held a grazing license

on the Sherrill Farm until 1992. If Bobby Brantley had a license to graze cattle

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on the Sherrill Farm until 1992, Brantley was not the exclusive user of the

Sherrill Farm for grazing prior to that date. And, until at least 1992 his grazing

use was not sufficiently distinct from his father’s licensed use to put

Weyerhaeuser on notice that Brantley was claiming a grazing easement separate

from his father’s license. The court, moreover, also concluded that other

members of the Brantley family used and claimed rights to graze on Sherrill

Farm. And it is also clear that a substantial portion of Sherrill Farm was used by

OSU, and then by ODWC.

Accordingly, the district court did not err in concluding Brantley’s use of

Sherrill Farm for grazing was not sufficiently exclusive for the full prescriptive

period to establish a prescriptive grazing easement under Oklahoma law.

C. Damages

Brantley argues Weyerhaeuser is not entitled to the damages it received for

three reasons: (1) Weyerhaeuser failed to plead special damages under Federal

Rule of Civil Procedure 9(g); (2) the damages awarded were excessively

speculative and uncertain; and (3) Weyerhaeuser failed to mitigate its damages.

The district court did not abuse its discretion by allowing Weyerhaeuser to amend

its pleadings by pleading special damages in the pretrial order. We affirm the

district court’s damage award.

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 1. Failure to Plead Special Damages

Rule 9(g), covering pleadings, requires that “[w]hen items of special

damage are claimed, they shall be specifically stated.” Special damages depend

on particular circumstances of the case; general damages, on the other hand, are

the ordinary result of the conduct alleged. 5A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1310 (3d ed. 2005). Thus, general

damages for trespass would be injury to the land itself. 2 Restatement (Second) of

Torts § 929. Lost profits, by contrast, are special damages subject to the pleading

requirement of Rule 9(g) because they depend on circumstances unrelated to the

trespass, i.e. Weyerhaeuser’s plans for the property. See Quinones v. Penn. Gen.

Ins. Co., 804 F.2d 1167, 1170 (10th Cir. 1986).

Brantley claims Weyerhaeuser failed to adequately plead its damages

attributable to lost profits. Weyerhaeuser did not describe lost profits from

timber or mining in its complaint. Instead, it first raised lost profits as a measure

of damages in a response to Brantley’s motion to dismiss for lack of subject

matter jurisdiction. Weyerhaeuser argues it complied with Rule 9(g) by amending

its pleadings through the pretrial order and that Brantley suffered no prejudice

2
Weyerhaeuser’s general damages arguably include “loss of use of the
land,” as measured by the rental value of the land for grazing purposes.
Restatement (Second) of Torts §§ 929, 931. Weyerhaeuser did not request and
the district court did not award damages on this basis.

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through the amended pleading because he otherwise had notice of the special

damages claim.

Federal Rule of Civil Procedure 15(a) allows a party to amend its pleadings

at any time by leave of the court. The subsequent pretrial order supercedes the

pleadings. See Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir. 2002) (calling

a new claim raised in a pretrial order “obviously an attempt to amend the

pleadings at a rather late date”). Although the court never explicitly permitted an

amended pleading, it implicitly rejected Brantley’s argument that special damages

had not been pleaded in denying Brantley’s motion to dismiss. Brantley,

moreover, did not object to Weyerhaeuser’s theory of damages in the pretrial

order. Given the district court’s broad discretion to conform the pleadings to the

arguments raised by the parties, the court did not abuse its discretion by

permitting a late amendment in this case.

2. Sufficiency of the Evidence

Oklahoma law prohibits recovery of damages that are uncertain and

speculative. See Great Western Motor Lines, Inc. v. Cozard, 417 P.2d 575, 578

(Okla. 1966). As a general rule, anticipated profits “are too remote, speculative,

and dependent upon uncertainties and changing circumstances to warrant a

judgment for their loss.” City of Collinsville v. Brickey, 242 P. 249, 253 (Okla.

1925). To recover damages for lost profits, a plaintiff must therefore demonstrate

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“the fact of damage . . . with reasonable certainty,” and the “amount of damages

may not be based upon mere speculation and conjecture.” Kobe, Inc. v. Dempsey

Pump Co., 198 F.2d 416, 425–26 (10th Cir. 1952); see also City of Collinsville,

242 P. at 253; 22 Am. Jur. 2d Damages § 443.

Weyerhaeuser claimed lost profits on two theories, one for timber sales and

one for gravel mining. The district court rejected as speculative Weyerhaeuser’s

claims for lost profits on gravel mining ($200,000) but accepted its proof of lost

profits on tree farming ($10,000). We agree with the district court.

Weyerhaeuser’s damage claims were based on the testimony of an in-house

forest manager. He testified as to gravel mining that, but for Brantley’s cattle,

Weyerhaeuser would have netted $200,000 in profits, “based on a startup of about

150,000 tons the first year and 300,000 tons the second year and they calculated

that based on the current market value of those minerals.” Aplt. App. 289. As to

timber sales, he opined at trial that “just from not being able to grow trees on

there the last two years,” Weyerhaeuser lost “just under $10,000.” Aplt. App.

288. Weyerhaeuser says this figure for timber profits was based on a projected

profit of $66 per acre attested to in an affidavit the forest manager provided in

response to Brantley’s motion to dismiss.

In awarding damages only for lost timber profits, the district court

distinguished between the testimony on timber and gravel based on the expertise

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of the witness: because the witness was a forest manager, he was competent to

testify about trees but not about gravel. The court identified a hearsay problem

with the gravel testimony because the witness testified that other people prepared

the gravel calculations. The court furthermore found the witness “provided no

documentation in support of his allegations as to the amount of mineral

development on Sherrill Farm, the costs to Weyerhaeuser as to the mineral

development or the lost profit from the mineral development.” Aplt. App. 207.

We agree that the evidence Weyerhaeuser presented regarding lost mining

profits was too uncertain and speculative to support a damage award. As to

timber sales, however, adequate competent evidence was presented to support the

award of damages. First, Weyerhaeuser had previously used the property for

timber harvesting, as recently as 1987. Second, the property was currently

suitable for planting and harvesting; part of OSU’s research on the Sherrill Farm

included tree plantations. Third, Weyerhaeuser’s witness was its Oklahoma area

manager for timberlands, who testified he is “in the business of growing trees,” is

a certified forester, and has worked in forestry for Weyerhaeuser for thirty-five

years. Aplt. App. 282. Finally, the forest manager submitted an affidavit to the

court that identified a methodology for his damage calculations. While the

district court’s order could have been more specific, the forest manager’s

testimony was adequate to provide reasonable grounds to support the order.

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 In short, the district court did not clearly err in its award of $10,000 in

damages for lost timber profits.

3. Mitigation of Damages

Brantley argues Weyerhaeuser should have mitigated damages by removing

him from the land sooner, an odd position given that Brantley also claims a

possessory right to the land and that he had no obligation to leave. At any rate,

failure to mitigate is no defense unless Weyerhaeuser’s conduct caused it to incur

greater losses than it otherwise would have. Given Brantley’s adverse possession

defense, Weyerhaeuser could not have reduced its losses by asking him to leave.

It had to sue for ejectment and trespass to achieve that result.

D. Attorney’s Fees

The final issue is whether Weyerhaeuser is entitled to attorney’s fees as a

prevailing party in this action. Under Oklahoma law, “In any civil action to

recover damages for the negligent or willful injury to property and any other

incidental costs related to such action, the prevailing party shall be allowed

reasonable attorney’s fees, court costs and interest.” Okla. Stat. tit. 12, § 940(A).

The district court awarded attorney’s fees and costs to Weyerhaeuser on this

authority.

The Oklahoma Supreme Court has interpreted § 940(A) as applying only to

“those actions for damages for the negligent or willful physical injury to

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property.” Woods Petroleum Corp. v. Delhi Gas Pipeline Corp., 700 P.2d 1011,

1013 (Okla. 1984). Brantley argues the district court’s award was improper

because Weyerhaeuser recovered only lost profit damages and did not recover

damages for physical injury to the property. Weyerhaeuser argues trespass itself

is physical injury to property because it requires a physical invasion, and

Brantley’s cattle did physically injure the property. We agree with Brantley.

Although trespass is a willful injury to property rights by physical invasion,

the intermediate appellate court in Oklahoma has explicitly held § 940(A) does

not apply where the plaintiff recovers only nominal damages on a trespass claim.

Stites v. Duit Constr. Co., 992 P.2d 913, 916 (Okla. Civ. App. 1999), cert. denied

Nov. 10, 1999. The most natural reading of Stites leads us to conclude a

prevailing party must recover actual damages for physical injury to property to

recover attorney’s fees under § 940(A), even in a trespass action. Weyerhaeuser

did present evidence Brantley’s cattle damaged trees on the property, but the

district court did not award damages on that basis. Because Weyerhaeuser only

recovered damages for lost profits and not for physical injury to its property, it is

not entitled to attorney’s fees.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s judgment in

favor of Weyerhaeuser and REVERSE the award of attorney’s fees.

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