Board of County Com'rs of Creek County v. Casteel

• Decision Date: 05 March 1974
• Docket Number: No. 45306,45306
• Citation: 1974 OK 31,522 P.2d 608
• Court: Oklahoma Supreme Court
• Parties: The BOARD OF COUNTY COMMISSIONERS OF CREEK COUNTY, State of Oklahoma, Appellees, v. Billy V. CASTEEL and Margie Casteel, Appellants.

Page 608

522 P.2d 608

The BOARD OF COUNTY COMMISSIONERS OF CREEK COUNTY, State of

Oklahoma, Appellees, v. Billy V. CASTEEL and Margie Casteel, Appellants.

No. 45306.

Supreme Court of Oklahoma.

March 5, 1974.

Rehearing Denied June 4, 1974.

David Young, Dist. Atty., Sapulpa, for appellees.

Guy Fitzsimmons, Jack B. Sellers, Sapulpa, for appellants; James L. Ayers, Tulsa, of counsel for appellants brief.

SIMMS, Justice:

This is an appeal from a condemnation proceeding in the District Court of Creek County. The action in the trial court was commenced by the County Commissioners of Creek County for the taking by the power of eminent domain of 6.57 acres belonging to Billy V. Casteel and Margie Casteel on the edge of Sapulpa, Oklahoma. The taking was for the purpose of straightening a county road and building a bridge. Reference will be made to the parties as condemnor and owners.

Condemnor passed a resolution stating the necessity of taking the 6.57 acres and unsuccessfully attempted to negotiate a purchase of the property from the owners. The suit was filed on July 10, 1970, and on August 10, 1970, the owners filed an answer consisting of a general and special denial containing the following allegations:

'For further answer, these defendants deny, specifically, the necessity of taking all or any part of the particular property sought to be appropriated and condemned for public use.

For further answer, these defendants state to the Court that the particular property sought to be appropriated is the entire tract of land owned by these defendants. The defendants challenge the necessity of taking the entire tract of land and request that plaintiff be held to strict proof in the actual amount of this tract needed for the public road system excluded from this action.'

On August 18, 1970, the District Judge of Creek County appointed the commissioners to assess the damages. The commissioners filed a report on August 24, 1970, setting the amount of the damages at $4,600.00. This amount was deposited by the condemnor on September 1, 1970, and was withdrawn by the owners on September 14, 1970.

Also, on September 14, 1970, the owners filed the following Demand for Jury:

'Comes now the defendants, Billy V. Casteel and Margie L. Casteel, and object to the award made the commissioners in this cause because said award is in an amount less than the value of the property taken and damaged by plaintiff and demand trial by jury in said cause in order that the amount of damages sustained by defendants may be assessed by a jury of the county.'

The petition, answer, and demand for jury trial constitute the only pleading filed in the case.

On September 28, 1971, at pretrial conference, the question of the necessity of taking the whole 6.57 acres was raised. The District Judge held that the issue had been prematurely raised in the answer and declined to consider evidence on it.

The case was set for jury trial on October 7, 1971. On that date, the owners filed a Motion to Disqualify the District Judge, which disqualification was certified.

Also, on October 7, 1971, the owners filed a Motion to Strike the Case from Jury Setting on the grounds that the question of the necessity of the taking had to be determined first.

The case was called to jury trial before an Associate District Judge on October 7, 1971, and before the jury was called, counsel for owners made an oral request for a hearing on the necessity of taking:

'Now we asked for a determination of necessity, a determination of use, before we are forced to enter into the trial of this case on the issue of the value of the land taken, because if in fact it is a determination of a judicial question, the necessity and the use are resolved in one way, then we've got one way and if it's resolved in another way, then we have something else with respect to this valuation. If the defendants are correct, it will necessitate--I mean if the Court should find that the necessity or the nature of the use is such that it's not necessary for the County to have all this land for this roadway purpose, then there will have to be new Commissioners appointed and a re-appraisal made. So that is the purpose of our motion this morning and when we say strike the case from the jury setting, we mean strike it from the setting this morning.'

The trial court overruled the motion after argument and the case was tried before the jury on the issue of damages. A verdict of '$1250. per acre' was returned.

Owners petition in error urges two propositions for reversal:

(1) 'Error by the trial court in refusing owners a hearing upon the judicial question of necessity of taking the entire tract of owners for highway purposes after owners had raised such issue in their answer filed in the trial court thereby denying owners their substantial rights and due process and equal protection of the laws as provided by the Constitution and laws of the State of Oklahoma and by the Constitution of the United States.'

(2) 'Error by the trial court in overruling the owners' Motion to Strike Case from Jury Setting until non-jury hearing on necessity could be held.'

The issue to be determined is whether the owners are precluded from a hearing on the necessity of the taking unless they file an objection to the report of the commissioners.

Oklahoma Constitution, Article 2, § 24, states in part:

'. . . In all cases of condemnation of private property for public or private use, the determination of character of use shall be a judicial question.'

In the brief filed by the owners in the instant case, it is stated:

'. . . from the date their answer was filed to the condemnors petition and including this appeal the owners have consistently and repeatedly attacked the necessity of taking their entire tract for highway purposes and repeatedly demanded a hearing on the issue.'

The fact that the landowners have a constitutional right to be heard on the necessity of the taking is unquestioned. It is the manner in which the landowners raised their objection and sought a hearing that in the issue in this appeal.

The legislature has set forth the procedure that is to be followed by a landowner in seeking the judicial hearing provided for by Art. 2, § 24, for a determination of the necessity of the taking. That procedure is set forth in 66 O.S.1971, § 55, which provides in part:

'The report of the commissioners may be reviewed by the district court, on written exceptions filed by either party, in the Clerk's office within thirty (30) days after the filing of such report; and the court shall make such order therein as right and justice may require, either by confirmation, rejection or by ordering a new appraisement on good cause shown; or either party may within sixty (60) days after the filing of such report file with the clerk a written demand for a trial by jury, in which case the amount of damages shall be assessed by a jury, and the trial shall be conducted and judgment entered in the same manner as civil actions in the district court . . .'

Only three pleadings are authorized by statute in condemnation proceedings: Petition, Demand for Jury Trial, Objection to Report of Commissioners. 66 O.S.1971, §§ 53 and 55. Condemnation proceedings are special proceedings and must be carried out in accordance with legislatively prescribed procedure. Graham v. City of Duncan, Okl., 354 P.2d 458 (1960). ¹

While this Court has, in former cases by way of dicta, recognized answers filed in condemnation cases, we do not approve of such procedure. A answer filed in a condemnation suit will not,...