City of Bartlesville v. Ambler

• Decision Date: 21 December 1971
• Docket Number: No. 43192,43192
• Parties: The CITY OF BARTLESVILLE, a Municipal Corporation, Plaintiff in Error, v. Lewis B. AMBLER et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 433

499 P.2d 433

The CITY OF BARTLESVILLE, a Municipal Corporation, Plaintiff in Error, v. Lewis B. AMBLER et al., Defendants in Error.

No. 43192.

Supreme Court of Oklahoma.

Dec. 21, 1971.

Rehearing Denied Aug. 1, 1972.

Brewer, Worten & Robinett, by Chester A. Brewer, Jesse J. Worten, Bruce W. Robinett, Bartlesville, for plaintiff in error.

Gable, Gotwals, Hays, Rubin & Fox, by Charles P. Gotwals, Jr., Tulsa, and Allan H. Stocker, Bartlesville, for defendants in error.

McINERNEY, Judge:

At the time this suit was commenced, plaintiffs owned fourteen residential properties in Pennington Hills Second and Third Additions to the City of Bartlesville. Turkey Creek meanders through parts of these additions; plaintiffs' back yards are adjacent to this creek. As a part of a floow control project, Defendant City of Bartlesville planned to co-operate with the United States Corps of Engineers in the construction of a drainage ditch to replace the natural channel of Turkey Creek. Plaintiffs' back yards would be adjacent to the completed drainage ditch.

According to plans prepared by the Corps of Engineers, the proposed drainage ditch would have a natural bottom, sloping concrete sides and an open top. At the bottom, the ditch would be 45 feet wide; the side slope would result in a width of 87 feet at the top. The ditch would be 10 feet deep, and it would be enclosed by a four foot chain link fence with a top rail.

On the plats of Pennington Hills Second and Third Additions, the owner designated certain easements along each side of the Turkey Creek channel. The easement on the south side of the creek was designated as a drainage and utility easement. The easement on the north side was designated as a drainage easement only. The utility easement was separately designated on the north side, but parts of it were located adjacent to the drainage easement. Since the City claims it has the right to use these easements for construction of the proposed drainage ditch, we will refer to them as drainage easements.

From the exhibits in the record, it appears that the drainage easements follow the natural channel of Turkey Creek, but the easements may have deviated from the channel in some instances. However, the extent of variation, if any, cannot be determined from the exhibits, and neither party introduced direct evidence to establish the exact location of the easements in relation to the Turkey Creek channel.

Under the proposed construction plans, the drainage ditch would rechannel and straighten Turkey Creek. In part, the change in the flow of Turkey Creek resulted from the City's request that the Corps utilize to the extent possible only the properties designated as drainage easements. However, the Corps considered other factors in designing the ditch. To some extent, the Corps selected the channel course which, according to prudent engineering practices, would increase the amount of water that could flow through the ditch in a fixed period of time. But the Corps laid out the ditch so that each property owner on both sides of the ditch would have what the Corps considered to be a reasonable back yard.

Property within and without the areas designated as drainage easements would be used for the channel of the proposed drainage ditch. Many trees, some shrubs and several fences would have to be removed from this channel area. Additional property would be required along each side of the channel to be used for temporary construction easements. These construction easements would be located both inside and outside the boundaries of the drainage easements, and it would also be necessary to remove the trees, shrubs and fences from this property.

Plaintiffs brought this suit to enjoin construction of the proposed drainage ditch. They alleged that the ditch would constitute a misuser of the drainage easements, that their properties would be taken without compensation and that the ditch would be a nuisance. Defendant City cross-petitioned to have title to the properties designated as drainage easements quieted in it.

After a trial to the court without a jury, the court adopted the findings of fact and conclusions of law submitted by plaintiffs and rendered a judgment refusing to quiet title in the City to the properties designated as drainage easements, enjoining the City from entering plaintiffs' properties (including their properties subject to the drainage easements) for construction of the proposed drainage ditch and enjoining the City from constructing a drainage ditch of the size and design proposed. This judgment was based primarily upon the trial court's conclusions that the proposed drainage ditch would constitute a misuser of the drainage easements and that it would be a nuisance. The City appeals.

Relying on 11 O.S.1961, § 515, the City argues that it has a fee simple title to the properties designated as drainage easements. In Langston City v. Gustin, 191 Okl. 93, 127 P.2d 197 (1942), the Court analyzed Section 515, tracted its history and reviewed several cases from other jurisdictions interpreting similar statutes. From this comprehensive study of Section 515, the Court concluded that a plat complying with this Section conveys a fee simple title only if the platter donates or grants property. Under Section 515, a dedication of property conveys an easement only; the fee remains in the platter and passes to his successors. Following Gustin, in Oklahoma City v. State ex rel. Marland, 193 Okl. 520, 145 P.2d 418 (1944), the Court reaffirmed its prior interpretation of Section 515 holding that a dedication of certain tracts for use as parks conveyed only an easement because neither donated nor granted had been used in the dedication or on the plat. Neither donated nor granted was used on the plats or in the dedications of Pennington Hills Second and Third Additions to the City of Bartlesville. Therefore, the City did not acquire a fee simple title to the properties designated as drainage easements.

Next, the City contends the trial court erred in determining that the proposed drainage ditch would constitute a nuisance. To support this contention, the City argues that, under the provisions of 50 O.S.1961, § 4, the ditch would not be a nuisance because construction of the ditch is authorized by 11 O.S.1961, §§ 663, 282. Section 663 authorizes a city council to alter the channels of water courses and to erect walls along the channels. Under Section 282, a city council can participate with a federal agency in the construction of a drainage structure.

Seeking to uphold the nuisance determination of the trial court, plaintiffs argue primarily that the proposed drainage ditch would be hazardous to small children because the sloping concrete walls would make it difficult to get out of the ditch during flooding. Yet, plaintiffs' expert witness, who was an architectural engineer, proposed a ditch similar in design which would have sloping concrete walls and would be the same depth; the only difference in plaintiffs' proposed ditch would be the width.

Authority to construct the proposed drainage ditch has been granted to the City by the Legislature. 11 O.S.1961, §§ 663, 282. Plaintiffs cited no authority holding a drainage ditch or similar channel constructed pursuant to statutory authority to be a nuisance, and our research disclosed none. The trial court erred in holding that the proposed drainage project would be a nuisance.

Plaintiffs' only challenge to the...