Calhoun v. City of Durant

• Decision Date: 20 May 1997
• Docket Number: No. 85802,No. 1,85802,1
• Citation: 970 P.2d 608
• Parties: 1998 OK CIV APP 152 Charles W. CALHOUN and Donna Kay Calhoun, husband and wife, Plaintiffs/Appellees, v. The CITY OF DURANT, an Oklahoma municipality, Defendant/Appellant, and The First National Bank in Durant, Defendant. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 608

970 P.2d 608

1998 OK CIV APP 152

Charles W. CALHOUN and Donna Kay Calhoun, husband and wife Plaintiffs/Appellees, v. The CITY OF DURANT, an Oklahoma municipality, Defendant/Appellant and The First National Bank in Durant, Defendant.

No. 85802.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma Division No. 1.

May 20, 1997.

Rehearing Denied July 15, 1997.

Certiorari Denied Oct. 8, 1998.

Appeal from the District Court of Bryan County, Doug Gabbard, II, Judge.

REVERSED AND REMANDED WITH DIRECTIONS.

Dan Little, Little, Little, Little, Windel & Coppedge, Madill, for Plaintiffs/Appellees.

P.L. Pat Phelps, City Attorney for Durant, Durant, and Beverley Q. Watts, Watts & Watts, Oklahoma City, for Defendant/Appellant.

Diane Pedicord, Sue Ann Nicely, Oklahoma City, for Amicus Curiae Oklahoma Municipal League, Inc.

OPINION

BUETTNER, J.

¶1 Charles W. and Donna Kay Calhoun (Calhoun) filed an inverse condemnation suit against the City of Durant which was tried to the court in two phases. ¹ The court first determined that an inverse condemnation, or taking, had occurred. In the second phase, the court decided the time of the taking and damages. The trial court made extensive findings of fact relative to the first issue which are necessary for a complete understanding of the appellate issues. Pertinent findings included the following:

In 1967, the Plaintiff Charles Calhoun entered the Durant real estate development business and became involved in, among other ventures, the Twin Oaks Subdivision. In 1974, Plaintiffs purchased the 51 acres involved in this case from Mr. & Mrs. Billy Ray Ragle for the sole purpose of developing and selling rural homesites. During their discussions, Ragle informed Plaintiff of a rumor that Defendant City was interested in building a new city lake somewhere in the area. The parties discussed how this could increase the value of homesites, especially if the property was lakeside. Calhoun did not know about any city lake plan, but was aware of an ASCS plan to build a lake at one of 30 alternative locations, one of these being near this property. Calhoun took possession of the land and began surveying the lots and roads and advertising them for sale as the Lakewood Subdivision.

In 1976, the Defendant City began discussing the possibility of constructing a new water reservoir. Plaintiffs' property was listed as one of several alternative locations. In July 1978, Defendant City issued an interim report of the project listing all of Plaintiffs' 51 acres as part of the lake project. However, the Defendant City had financing problems that had to be resolved before a lake project could begin. On September 26, 1978, Defendant City held an election which resulted in passage of a bond proposal to finance the lake. On October 3, 1978, the City Council passed Resolution No. 1001 which approved an engineering contract with Benham-Blair Assoc. for its construction. When, on June 15, 1979, Defendant City adopted a detailed written land acquisition policy, it was clear that City intended to condemn all of Plaintiffs land. Negotiations began with many of Plaintiffs neighbors and some land purchases were consummated. However, Plaintiff was not contacted by the City for another 6 years.

After June 1979, planning, engineering and other work on the project was slow. In 1985, Defendant City realized that additional financing would be necessary to build the project. Another election was held which resulted in passage of an additional sales tax to finance construction. On December 20, 1985, the City finally made its offer to purchase all of Plaintiff's 51 acres. Plaintiffs rejected this offer. Plaintiff testified that, on several occasions, he attempted to get the City to either make another offer, condemn his property, or state that they no longer had an interest in it. He says that their reply was that they were going to condemn, but only after they had completed negotiations with the other landowners.

On March 14, 1989, the City Council passed Resolution No. 1163 authorizing the filing of a condemnation action against any landowner who failed to sign a land sale contract by June 15, 1989. On October 16, 1989, Plaintiffs filed this case alleging that the City had taken his 51 acres by inverse condemnation action. Thereafter, in 1990, Defendant City filed its own condemnation action seeking condemnation of only 23 acres. The parties agree that the Defendant City sought all of Plaintiffs' property until the 1990 lawsuit was filed. The evidence is not clear as to whether construction had begun prior to the filing of this action; however, the parties agree that there was no increased waterflow over Plaintiffs land until after the filing.

STANDARD OF REVIEW

¶2 A condemnation action "brought to obtain private property for public use is a special proceeding and not a civil action, to be carried out in accordance with the methods prescribed by the legislature." Graham v. City of Duncan, 354 P.2d 458 (Okla.1960)(syllabus by the court). The Oklahoma Supreme Court has stated that an "action in condemnation is a special proceeding and strictly controlled by the constitution and statutes." Carter v. City of Oklahoma City, 1993 OK 134, 862 P.2d 77, 80. In eminent domain actions, it is clear that the issue of damages is triable to a jury. 27 O.S.1991 § 2; 66 O.S.1991 § 55; 69 O.S.1991 § 1203(e)(1). However, the determination of the character of use is a question for the court. Oklahoma Constitution, Art. 2, § 24; 66 O.S.1991 § 57. Also see Board of County Com'rs of Creek County v. Casteel, 522 P.2d 608, 610 (Okla.1974) (necessity of taking is question for the court); Gaylord v. State ex rel. Dept. of Highways, 540 P.2d 558, 561 (Okla.1975) ("whether construction of a frontage road and elimination of access to a highway constitutes a 'taking' requiring compensation is a question of law for the court, not a question of fact for a jury"); Cunningham v. State ex rel. Oklahoma Planning and Resources Board, 277 P.2d 990 (Okla.1954) (questions of fact as to reasonable necessity of taking and character of use of land sought to be taken, determined by court, will not be disturbed unless clearly against weight of evidence).

¶3 With respect to inverse condemnation cases, the Supreme Court, in Henthorn v. Oklahoma City, 453 P.2d 1013, 1016 (Okla.1969), held that "the question of a taking in inverse condemnation under Section 24, Art. 2, Constitution is one for the jury in cases involving an impairment of right of ingress and egress to property by the building of a railroad track in or across a street bordering the property." Henthorn v. Oklahoma City, 453 P.2d 1013, 1016 (Okla.1969). In support of this holding, the court cited Foster Lumber Co. v. Arkansas Valley and W.Ry.Co., 20 Okl. 583, 95 P. 224 (1908), on rehearing 20 Okl. 583, 100 P. 1110 (1909), and Atchison, T. & S.F. Ry. Co. v. Terminal Oil Mill Co., 180 Okla. 496, 71 P.2d 617 (1937). These cases dealt with the narrow issue of whether a taking occurs when a railroad materially impairs a landowner's access to a public street.

¶4 In Henthorn, the court extended the concept by holding that there can be a "taking" of private property by airplane flights which are over or in close proximity to land when such flights are continuous, frequent and low enough to constitute a substantial interference with use and enjoyment of property. The question of whether a continuing interference is substantial enough to constitute a "taking" is ordinarily a question for the jury. Also see Mattoon v. City of Norman, 1980 OK 137, 617 P.2d 1347, 1349 ("The question of substantial interference is one that the trier of facts must decide," citing Henthorn.); State ex rel. Department of Transportation v. Hoebel, 594 P.2d 1213, 1215 (Okla.1979) (it is for jury to decide under facts presented whether taking is present).

¶5 Because both the preliminary question in inverse condemnation, whether there is a taking, and the subsequent question, the amount of damages if a taking occurred, are both triable to a jury, we review the conclusions reached by the trial court, insofar as its fact-finding, with the same deference we afford a verdict rendered by a well-instructed jury. Consequently, we will not disturb the findings of fact of a court or jury in an inverse condemnation action "if supported by any competent evidence." Corbell v. State ex rel. Department of Transportation, 1993 OK CIV APP 45, 856 P.2d 575, 579 (cert.denied).

¶6 On the other hand, questions of law are reviewable de novo by the appellate court which "claims for itself plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084 (hospital's status as a true public trust was a question of law).

DISCUSSION

¶7 The issue to be decided is whether the trial court erred when it found that a "taking" of Calhoun's property occurred September 26, 1978. This is the date that city voters passed a proposal authorizing the issuance of bonds to expand the water treatment system. Calhoun argues that the bond issue included four projects: expansion of the water treatment plant, a water transmission line, a raw water pumping facility and land acquisition for the Little Blue River reservoir. It is undisputed that the bond issue provided that 70% of the funds would be used on the water treatment plant and the transmission line. See 62 O.S.1991 § 574(A). Calhoun then argues that the remaining 30% of the bond issue must have been intended to be used for the pumping facility and to purchase land for the reservoir.

¶8 The decision that a taking occurred when the bond issue was approved by the voters is inconsistent with Oklahoma law. As demonstrated by Empire Construction, Inc. v. City of Tulsa, 512 P.2d 119 (Okla.1973), cert. denied, 414 U.S. 1094, 94...