Burke v. Oklahoma City
| Decision Date | 09 February 1960 |
| Docket Number | No. 38350,38350 |
| Citation | 350 P.2d 264,1960 OK 29 |
| Parties | John H. BURKe and Thelma G. Burke, Plaintiffs in Error, v. OKLAHOMA CITY, a Municipal Corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A municipality, clothed with the right of eminent domain by Legislative enactment, cannot by contract or agreement, deprive itself of the right to exercise such right and a plea of res adjudicata and estoppel is not available as a defense in a second condemnation proceeding seeking to condemn the same land involved in a previous condemnation proceeding between the same municipality and owners which was dismissed pursuant to a contract and agreement.
2. It is not error for a trial court to dismiss a cross petition in a condemnation proceeding, where cross petition alleges damages for property deeded and easement granted pursuant to a contract and agreement for the dismissal of a previous condemnation proceeding.
Appeal from the District Court Oklahoma County; Glenn O. Morris, Judge.
The City of Oklahoma City, a Municipal Corporation, commenced two condemnation proceedings to condemn two tracts of land. Defendants defend actions and in the alternative, cross petition for damages for a tract deeded and easement granted pursuant to contract and agreement for dismissal of a previous condemnation proceeding. From an order entering judgment for City of Oklahoma City and dismissing cross petition, defendants appeal. The two causes were consolidated for appeal purposes. Affirmed.
Halley, Halley & Spradling, Oklahoma City, for plaintiffs in error.
A. L. Jeffrey, Bryan Mitchell, Oklahoma City, for defendant in error.
The City of Oklahoma City commenced condemnation proceedings to condemn 8.56 acres of land owned by the defendants in case No. 141,171. Thereafter it commenced condemnation proceedings to condemn 1.72 acres of land owned by the same defendants in case No. 143,677. The land sought to be condemned is near the Lake Hefner Water Reservoir in Oklahoma County and the 1.72 acre tract is subject to an easement in favor of Oklahoma City and adjoins the 8.56 acre tract on the east.
After hearing exceptions to the reports of the Commissioners, the trial court struck defendants' cross-petitions seeking damages for land granted to the City by virtue of an agreement in a previous condemnation proceeding, denied the exceptions and entered judgment for the City in both cases. Upon stipulation of the parties, the court entered an order consolidating the cases for the purpose of appeal under case No. 141,171. The parties will be referred to as City and defendants.
In order to effectuate a better understanding of the issues involved, certain facts should now be presented. In 1941 the City commenced condemnation proceedings in case No. 104,026, against defendants and others condemning several hundred acres of land for water reservoir purposes. Defendants owned fifty acres of the land sought to be condemned in that action. This fifty acres and contiguous land owned by defendants were being used as an airport where pilots were being trained for the armed services and had the City condemned this fifty acre tract the efficiency of the airport for World War II preparations would have been seriously impaired. By virtue of this, the City and the defendants made a compromise and an agreement was entered into and the proceedings condemning this fifty acre tract was dismissed.
Under the terms of the compromise and agreement the defendants in consideration of one dollar and other good and valuable consideration conveyed to the City by warrantly deed a tract of land containing 15.26 acres which is adjacent to and lies immediately north of the two tracts sought to be condemned in the present action. The defendants granted an easement for drainage ditch and pipe lines over the 1.72 acres sought to be condemned in the present action and it was agreed the defendants would make no use of the land west of the drainage ditch which might result in polution of the water reservoir.
The consideration for the deed and easement was the change and approval of plans for the water reservoir and the expenditure of additional money by the City to make such changes and defendants were granted the privilege of surface operations of aircraft from their runway to its seaplane landing location, if and when established. They were also granted the right to operate boating facilities and to build docks and a boat house. It was also agreed the City would erect no obstructions or make no use of the deeded lands as would prevent the use of such land as an airport. After the deeds and easements were issued, the cause was dismissed with prejudice by the court against defendants on application of the City.
In both cases, 141,171 and 143,677, the City of Oklahoma City alleges that it is necessary to appropriate the land involved for public use and for the purpose of protecting the Lake Hefner Water Reservoir and locating and constructing improvements thereon. A copy of the Resolution adopted by the City of Oklahoma declaring the necessity, purpose and authorization to condemn each tract was attached to each petition.
The defendants' answer alleged all the matters set forth in the petition have been adjudicated between the same parties in cause No. 104,026, District Court of Oklahoma County. That they resisted the condemnation action in case No. 104,026, but as a compromise and settlement, entered into an agreement with the City whereby the defendants deeded to the City 15.26 acres of land and granted an easement to 1.72 acres, and the City agreed to release the tracts under consideration and dismiss the action which was later done. Defendants also plead waiver and estoppel. Attached to the answer is a copy of the application of the City to dismiss Case No. 104,026 with prejudice and the order of the court dismissing with prejudice. After the Commissioners filed their report the defendants filed exceptions thereto in which they reassert and make a part thereof all allegations contained in the answer and specifically alleged res adjudicata and estoppel. Defendants also plead there is no necessity for the taking and that the issue of necessity was determined in the former action and that the City does not now have the right to take, hold or occupy said land. By amendment the written contract with reference to the prior settlement in case No. 104,026 was made a part of the exceptions.
In a second amendment to the exceptions, defendants alleged in the alternative should the court for any reason find that the contract of settlement or the dismissal of case No. 104,026 not operate as res adjudicata, the defendants are entitled in equity to reverse condemnation to all the lands, easements and estates conveyed to the City under the 1941 agreement; that Commissioners should be appointed to appraise said interests and the defendants adequately compensated therefore with interest at the rate of 6% per annum from September 30, 1941.
The defendants admitted the 8.56 acre tract had been platted into town lots and the plat filed with the Planning Commission. As to drainage into the water reservoir from the 8.56 acres, their engineer offered a plan to dig a drainage ditch between the lake and the land using the dirt from the ditch to build a dike on the side next to the reservoir, thereby preventing waste water from drainage getting into the reservoir.
The City offered the testimony of experts that the establishment of homes on the tract increased the danger of pollution; that the plan advanced by the defendants was not practical or feasible and would not be satisfactory.
The defendants contend the two tracts sought to be condemned in these two actions were involved in a previous condemnation proceeding between the same parties in cause No. 104,026, which was dismissed, that such dismissal released both tracts from future condemnation proceedings and the same constitutes res adjudicata; that if res adjudicata is not applicable, the City is estopped under the contract and dismissal to again seek to condemn the two tracts; that it was error for the trial court to strike their cross petition and not grant compensation for the 15.26 acres deeded and the easement granted to the City under the 1941 contract which formed the basis for the dismissal of case No. 104,026.
The City contends the taking of land by eminent domain proceedings is a legislative question; that the power of eminent domain is inalienable and being an attribute of sovereignty cannot be contracted away; that the trial court did not err in striking the cross petition of the defendants seeking damages for the tract deeded and the easement granted in 1941.
Is a plea of res adjudicata and estoppel available as a defense in a second condemnation proceeding seeking to condemn the same land involved in a previous condemnation proceeding between the same municipality and owners which was dismissed pursuant to a contract and agreement?
Did the trial court err in striking the defendants' cross petition seeking damages for the property deeded and the easement granted pursuant to the contract and agreement which formed the basis of the dismissal of the previous condemnation proceeding?
Before determining the issues of res adjudicata and estoppel as pleaded by the defendants, we will first consider the right of the City to condemn additional land for the purpose of enlarging or protecting the Lake Hefner Water Reservoir after it had previously dismissed condemnation proceedings involving the same land sought to be condemned. In Hennen v. State ex rel. Short, 131 Okl. 29, 267 P. 636, the State sought to condemn additional land to make changes in an existing highway. The defendants, over whose land the highway extended, and wherein the state sought to take additional land for the proposed change contended the state...
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