Allen v. Transok Pipe Line Co.

• Decision Date: 20 April 1976
• Docket Number: No. 47921,47921
• Citation: 552 P.2d 375,1976 OK 53
• Parties: Richard R. ALLEN, an Individual, Appellant, v. TRANSOK PIPE LINE COMPANY, a corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 375

552 P.2d 375

Richard R. ALLEN, an Individual, Appellant, v. TRANSOK PIPE LINE COMPANY, a corporation, Appellee.

No. 47921.

Supreme Court of Oklahoma.

April 20, 1976.

Rehearing Denied July 20, 1976.

Lytle, Soule & Emery, by Robert J. Emery and Peter T. Van Dyke, Oklahoma City, for appellant.

McKeever, Glasser, McKeever & Conrad, by Douglas C. McKeever, Enid, for appellee.

BARNES, Justice.

This appeal involves an action by a landowner seeking punitive and other non-landdmages for trespass against a pipeline company that took his property without resorting to condemnation proceedings.

Appellant is not seeking recovery for the value of the land taken; he is seeking recovery for injuries caused by Appellee's tortious conduct. In fact, Appellant's prayer for relief includes a request that the Appellee be directed to remove the pipelines and compensate him for the further injury caused thereby.

The events forming the basis for these proceedings are briefly summarized. Appellant, Richard R. Allen, is the owner of certain real property in Major County, Oklahoma. It is alleged in Appellant's amended petition that on or about October 1, 1972, the Appellee constructed a pipeline, which Appellee still maintains and uses, across a portion of Appellant's property without prior consent of Appellant. Appellee constructed its pipeline upon the subject land without resorting to condemnation proceedings, and Appellant has never been compensated for his loss. Appellant further alleges that from time to time agents of Appellee enter upon the land to repair and inspect the line, causing additional injury to the surface of the land.

Appellant now brings this action sounding in tort seeking to recover punitive and other non-land damages for Appellee's wrongful invasion of his property rights and for injury resulting from the emotional strain caused by Appellee's wrongful and wanton conduct.

Appellee filed a motion to strike and demurrer to Appellant's amended petition. Pursuant thereto the District Court of Major County entered its order finding that the Appellant's sole and exclusive remedy for the taking of his lands was a reverse condemnation action, that Appellant's petition seeking relief in tort for personal injury and punitive damages was inconsistent with an action in reverse condemnation, and that Appellant's cause of action in tort should be dismissed and Appellee's demurrer sustained. From such adverse judgment Appellant appeals.

The points of law urged as error by Appellant on appeal are as follows: (1) To hold that reverse condemnation provides the Appellant's exclusive remedy under the facts alleged would render 66 O.S.1971, § 57, unconstitutional as in conflict with Article II, Section 24, of the Oklahoma Constitution; (2) the relief afforded by reverse condemnation is inadequate and incomplete and is not Appellant's exclusive remedy; and (3) to hold that reverse condemnation provides the exclusive remedy would be violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Appellee's position is that the Trial Judge was correct in recognizing that under the laws of the State of Oklahoma Appellant's sole and exclusive remedy for the taking of his land by the Appellee is a reverse condemnation action.

This Court will first address itself to Appellant's proposition that to hold reverse condemnation provides Appellant's exclusive remedy would render 66 O.S.1971, § 57, unconstitutional, as in conflict with Article II, Section 24, of the Oklahoma Constitution. That section provides in pertinent part:

'Private property shall not be taken or damaged for public use without just compensation. Such compensation . . . shall be ascertained by a board of commissioners . . . in such manner as may be prescribed by law.

'Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested.' (Emphasis ours)

The meaning of this constitutional provision is clear: A person's property shall not be taken, his right to possession disturbed, nor his title divested unless, and until, payment of the constitutionally mandated compensation. See Edwards v. Thrash, 26 Okl. 472, 109 P. 832 (1910).

Title 66 O.S.1971, § 57, provides for the assessment of damages when land is taken without condemnation:

'. . . Provided, that in case any corporation or municipality authorized to exercise the right of eminent domain shall have taken and occupied, for purposes for which it might have resorted to condemnation proceedings, as provided in this article, any land, without having purchased or condemned the same, the damage thereby inflicted upon the owner of such land shall be determined in the manner provided in this article for condemnation proceedings.'

Recovery of damages under 66 O.S.1971, § 57, is provided for in 66 O.S., § 53, upon the application or petition of either party, and states:

'The commissioners shall be sworn to perform their duties impartially and justly; and they shall inspect said real property and consider the injury which said owner may sustain by reason of the condemnation and they shall assess the damages which said owner will sustain by such appropriation of his land, irrespective of any benefits from any improvements proposed; and they shall forthwith make report in writing to the clerk of the court, setting forth the quantity, boundaries, and value of the property taken, and amount of injury done to the property, either directly or indirectly, which they assess to the owner; which report must be filed and recorded by the clerk. A certified copy of the report may be transmitted to the county clerk of the county where the land lies, to be by him filed and recorded (without further acknowledgment or proof) in the manner and with like force and effect as is provided for the recording of deeds. And if said corporation shall, at any time before it enters upon said real property for the purpose of constructing said road, pay to said clerk for the use of said owner the sum so assessed and reported to him as aforesaid, it shall thereby be authorized to construct and maintain its road over and across said premises.' (Emphasis ours)

Before an entity having eminent domain authority can appropriate private land to its use, all of the steps legally requisite to using the land must have been taken. See Watkins v. Board of Commissioners of Stephens County, 70 Okl. 305, 174 P. 523 (1918), where the Court said at page 525:

'Before, however, the board of county commissioners acting for the county can exercise the right to appropriate private land for any purpose, All of the steps legally prerequisite to using the land for such purpose must have been taken. If there is a statute on the subject, the same must be followed, unless in conflict with the higher authority of the Constitution. It is within the province of the Legislature to prescribe the procedure to be followed by the board of county commissioners in locating and establishing a public road, But private land cannot be taken for such purpose contrary to constitutional requirements. * * *' (Emphasis ours)

Statutes purporting to make provision for eminent domain must conform to the restrictions placed on the exercise of such power by Article II, Section 24, Oklahoma Constitution. This was done in 66 O.S., § 53, supra.

The first syllabus by the Court in Stinchcomb v. Oklahoma City, 81 Okl. 250, 198 P. 508 (1921), states:

'The taking of private property for public use is the exercise of sovereign power, and is controlled in this state by the provisions of section 24, art. 2, of the Bill of Rights of our Constitution, and these provisions must be construed strictly in favor of the owner and against the condemning party, and until the compensation has been paid to the owner, his property cannot be disturbed, nor his proprietary rights divested. Hence there can be no legal taking under the Constitution until the compensation, as fixed by the commissioners, is either paid to the owner of the property or into court for him.' (Emphasis ours)

This Court has recognized that the inference to be drawn from the provisions requiring compensation prior to entry is 'that any entrance upon the property by the one condemning before payment of the award would be a trespass.' Stinchcomb, supra, at page 510.

To hold otherwise would give this Court's stamp of approval to Appellee's position that it could take whatever land it desired for pipeline purposes, and regardless of its failure or refusal to follow the procedural steps required by law, the only sanction permitted, regardless of its contempt for the rights of the landowner, is that it might ultimately have to pay the fair market value of the land taken--assuming the landowner undertakes the burden of prosecuting a reverse condemnation action.

We further hold that any person vested with the power of eminent domain who goes into possession under the power of eminent domain without condemnation proceedings has no title. (Article II, Section 24, Oklahoma Constitution.) To the extent that any prior decision of this Court, including Rogers v. Oklahoma City, supra, determined in such instances that the person going into possession had title in the nature of title by condemnation, such was error and the same is hereby overruled.

We do not think the legislative intent in enacting the reverse condemnation statute, 66 O.S.1971, § 57, was to permit what the Oklahoma Constitution prohibits. We believe that it was intended to provide a remedy in those cases where the remedy provided by reverse condemnation is adequate, to-wit: Cases where the landowner is merely seeking compensatory damages for the land taken or encumbered, as where the entry is unknowing, is under a mistaken belief of authority,...