Board of Com'rs of Pontotoc County v. Rayburn

• Decision Date: 15 June 1943
• Docket Number: 31127.
• Citation: Board of Com'rs of Pontotoc County v. Rayburn, 138 P.2d 820, 192 Okla. 624, 1943 OK 233 (Okla. 1943)
• Parties: BOARD OF COM'RS OF PONTOTOC COUNTY v. RAYBURN.
• Court: Oklahoma Supreme Court

138 P.2d 820

192 Okla. 624, 1943 OK 233

BOARD OF COM'RS OF PONTOTOC COUNTY v. RAYBURN.

No. 31127.

Supreme Court of Oklahoma

June 15, 1943

Syllabus by the Court.

1. Easement by prescription on public highways may be established by adverse occupancy and use as such for a period of at least fifteen years.

2. Actual possession by condemnor that will preclude abandonment of eminent domain proceedings is not a fugitive or temporary trespass, but such a possession as will give the landowner a vested right of compensation.

3. Where a county exercising powers of eminent domain instituted condemnation proceedings and commissioners appointed to appraise lands made reports showing landowner's damages to accrue, but landowner's possessory rights are not disturbed, condemnor is entitled to abandon the proceedings and decline to pay the assessed value of the land sought to be condemned.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action by Charles R. Rayburn, administrator of the estate of W. H Rayburn, deceased, against the Board of County Commissioners of Pontotoc County to enforce awards in certain condemnation proceedings. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Wayne Lewis, Co. Atty., and J. W. Dean, Asst. Co. Atty., both of Ada, for plaintiff in error.

John E Luttrell and Herman E. Lautaret, both of Norman, for defendant in error.

RILEY Justice.

This is an appeal from a judgment in favor of plaintiff in the trial court, Charles R. Rayburn, administrator of the estate of W H. Rayburn, deceased, and against the Board of County Commissioners of Pontotoc County. The action is in the nature of debt to enforce awards in condemnation proceedings. After the year 1917, and until his death, W. H. Rayburn owned lands located in separate sections at the east edge of the City of Ada. A public road had been in use on the south section line adjoining these lands since 1919. In 1940 the Board of County Commissioners joined in a WPA project to widen and improve the roadway adjacent to the lands involved, and a requirement of the project was an easement over the whole of the land sought to be improved by the proposed road. Being unable to reach an amicable settlement with the owner, the Board of County Commissioners commenced two condemnation proceedings for easements over strips of land forty feet wide extending from the center of the section line and then owned by W. H. Rayburn in sections 34 and 35, respectively. A total of 2.21 acres of land was sought to be included in the easement, and of that amount .82 acres had been in use as a part of the old roadway for more than fifteen years. Thus, 1.38 acres in additional amount was required. On May 21, 1940, commissioners theretofore appointed to appraise the land made separate reports fixing the compensation to the landowner in a total sum of $595. Claims were filed, together with costs of the proceedings, for compensation to the landowner. This compensation was disallowed, the Board of County Commissioners having in the meantime determined that the assessment, compensation and damage was excessive and that it was to the county's interest that the project be abandoned. Thereupon this action was commenced, and thereafter at the following meeting the Board of County Commissioners adopted a resolution declaratory of its intention to abandon the project and to refrain from the use of any lands involved, save and except that constituting a part of the old roadway.

The County Attorney filed motions to dismiss the condemnation proceedings, and set forth that the county had made no effort to take possession of the lands condemned, other than that constituting a part of the old roadway which had been used by the public for more than fifteen years, and that as consequence no damage or compensation had accrued to the landowner. The trial court overruled these motions and an answer was filed in plaintiff's action for debt, wherein there was plead by proper averment a title by prescription to the lands in use in the old roadway and the...