Champlin Refining Co. v. Donnell

• Decision Date: 17 September 1935
• Docket Number: 22979.
• Citation: Champlin Refining Co. v. Donnell, 49 P.2d 208, 103 A.L.R. 157, 173 Okla. 527, 1935 OK 788 (Okla. 1935)
• Parties: CHAMPLIN REFINING CO. v. DONNELL.
• Court: Oklahoma Supreme Court

49 P.2d 208

173 Okla. 527, 103 A.L.R. 157, 1935 OK 788

CHAMPLIN REFINING CO. v. DONNELL.

No. 22979.

Supreme Court of Oklahoma

September 17, 1935

Syllabus by the Court.

1. On appeal from the commission in a condemnation proceeding, the award made by the commissioners is not competent evidence to go before a jury, and it is not proper to permit the jury to be informed of the amount of the award made by the commissioners.

2. A view by the jury of property, the subject of the action, is discretionary with the trial court and his ruling thereon will not be reversed on appeal in the absence of a showing of abuse of discretion.

3. Assessor's lists are not admissible as admissions against interest as to the value of property listed for assessment where the issue as to value is raised in a civil action between the owner and parties other than the state.

4. It is not error to exclude evidence of a witness of his estimate of the amount of dam ages in a condemnation proceeding. This question is one for the jury. The evidence should be as to the value of the land immediately before and immediately after the taking.

5. This court will not substitute its judgment for that of the jury in the matter of damages to be awarded for the condemnation of property for public use.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Condemnation proceedings by the Champlin Refining Company against Alma Donnell. From a judgment for defendant's damages plaintiff appeals.

Affirmed.

Harry O. Glasser and E. S. Champlin, both of Enid, and Charles Swindall, of Oklahoma City, for plaintiff in error.

Twyford & Smith, of Oklahoma City, for defendant in error.

RILEY Justice.

This is an appeal from a judgment for damages based upon a verdict of a jury in a proceeding to condemn, under the eminent domain statute, an easement for an oil, or oil and gas pipe line across the land of defendant in error.

The proceedings were commenced by plaintiff in error, designated as plaintiff below. Commissioners were appointed, who viewed the premises and made an award. Defendant in error designated in the trial court as defendant, being dissatisfied with the award of the commissioners, filed her written demand for "a jury trial on the amount of her damages and compensation," and praying that she be awarded the sum of $50,000. The land consists of 80 acres, being the S. 1/2 of the S.E. 1/4 of the S.E. 1/4 of Sec. 1, Tp. 12 N., R. 3 W. The pipe line was located and constructed across the land, running slightly west of north across the west 40 acres. It enters the premises on the south line 796 feet east of the southwest corner of the west 40 acres, and emerges on the north line 608 feet east of the northwest corner.

The matter was tried to a jury resulting in a verdict assessing defendant's damages at $4,000. Judgment was entered accordingly, and plaintiff appeals.

No objection was made to the instruction of the court, and no question is raised here as to the correctness thereof.

In its motion for new trial, plaintiff sets up as alleged error: (1) Refusal by the court of the request of plaintiff that the jury be permitted to view the premises. (2) Excessive damages awarded by the jury appearing to have been given under the influence of passion and prejudice. (3) That the verdict is not supported by sufficient evidence and is contrary to law. (4) Error of law occurring at the trial and excepted to by the plaintiff. (5) Error of law in refusing to permit plaintiff to make proof of the assessed value of the land. (6) Error in refusing to permit the witness Frank Johnson to testify as to the amount of damages paid to him for right of way over his land.

The petition in error sets up substantially the same alleged errors.

It is first asserted that the court erred in refusing to permit the introduction in evidence, the award and report of the commissioners appointed by the court.

All that is said in the briefs of plaintiff in error is that this ruling of the court was manifestly erroneous and highly prejudicial to the rights of defendant. (Evidently the right of plaintiff was intended.)

No authority is cited in either the original or supplemental brief of plaintiff in error in support of this contention.

The exact question has twice been before this court.

In Wichita Falls & N.W. Ry. Co. v. Munsell, 38 Okl 253, 132 P. 906, it was held: "On appeal from the board of appraisers to the district court in a condemnation proceeding, an award made by the board of appraisers is not competent evidence to go to the jury for the purpose of establishing the amount of damage to a farm resulting from the construction of the railroad across it."

In St. Louis, El Reno & Western Ry. Co. v. James E. Oliver et al., 17 Okl. 589, 87 P. 423, 10 Ann. Cas. 748, it was held: "In a condemnation proceeding, where the land owner appeals from the award, and the case is tried to a jury in the district court, it is not proper to permit the jury to be informed of the amount of the award made by the commissioners."

That question seems to be settled adversely to the contention of plaintiff in error.

It is next contended that the court erred in refusing the request of plaintiff that the jury be permitted to view the premises.

No authority is cited in the briefs of plaintiff in error in support of this contention.

Defendant in error cites section 361, O. S. 1931, which provides: "Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose."

Defendant in error also cites Spurrier Lumber Co. v. Dodson, 30 Okl. 412, 413, 120 P. 934, which holds: "Section 5796, Comp. Laws Okl. 1909, authorizing a view by the trial jury of the property, the subject of the action, or the place where a material fact occurred, is discretionary with the trial court, and its ruling thereon will not be reversed on appeal, in the absence of a showing of an abuse of discretion."

This is not a condemnation case, but the rule seems to be the same in such cases in the absence of a statute making it the duty of the jury to view the premises. 20 C.J. 1012; Kansas Cent. Ry. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; Coughlen v. Chicago, I. & K. Ry. Co., 36 Kan. 422, 13 P. 813.

This question also seems to be settled contrary to the contention of plaintiff in error.

It is next contended that the court erred in refusing plaintiff's offer to prove the assessed valuation of the land.

No Oklahoma decision on this question in a condemnation case is cited by either party. But in Bartlesville Interurban Ry. Co. v. Quaid, 51 Okl. 166, 151 P. 891, L. R. A. 1918A, 653, it is held: "Assessor's lists are not admissible, as admissions against interest as to value of property lists for assessment, where the issue as to value is raised in a civil action between the owner and parties other than the state." Winemiller v. Lorton, 121 Okl. 99, 249 P. 406.

Plaintiff cites Patch v. City of Boston, 146 Mass. 52, 14 N.E. 770, 772, as authority supporting its contention, and says that the court there held: "Where an owner said to an assessor that the appraised value was more than the property is worth is admissible in eminent domain proceedings a year later as an admission against himself."

We do not find the statement as quoted in the case, but if it be there, it goes to a statement of the owner himself against interest. Such is not the offer here. The offer here is to prove the assessed value, presumably made by the assessor.

Beckwith v. Talbot, 2 Colo. 639, is cited. It was there held upon a question of the number and value of cattle in a herd, a tax schedule made by defendant's agent at his request, showing those facts, is competent against him. There the statement or schedule was prepared, not by the assessor, but by the agent of the party sought to be charged. This does not hold that a schedule value made by the assessor would be admissible.

Manning v. City of Lowell, 173 Mass. 100, 53 N.E. 160, is cited, and it was there said: "On an issue of the value of lands taken under the right of eminent domain, a pencil memorandum of their value, prepared by the owner two years before their taking, and given by him to the assessor to obtain an abatement of taxes thereon, is admissible as an admission by him." Again, this is a statement made by the owner himself and not by the assessor. It was an admission against interest and admissible like any other admission of a party against his own interest.

United States v. First Nat. Bank (D. C.) 250 F. 299, 303, is cited. It was there held...