City of Marlow v. Booker, 96,701.

• Decision Date: 30 November 2001
• Docket Number: No. 96,701.,96,701.
• Parties: CITY OF MARLOW, A Municipal Corporation, Plaintiff/Appellee, v. Stanley D. BOOKER; Paula J. Booker; James L. Davis and Jane Davis, Defendants/Appellants, and Hugh Gatlin, Trustee of the Hugh Gatlin Revocable Trust; Ruth Gatlin; Alvie Tatum; Billie Burrow Payne; William T. Payne, Mary Purdum Wade; the unknown Trustees of the Harry W. Hill Trust; Robert C. Lyle; Howard Hill; Rebecca Hill; Martha Ann Grubb; Beatrice Lewis; First National Bank & Trust Co. of Ada; Robert Hefner; GHK Company; The Hefner Company, Inc.; SCE Petroleum, L.L.C.; Nova Goodrich, Stephens County Treasurer, and The Board of County Commissioners of Stephens County, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

46 P.3d 173

2002 OK CIV APP 51

CITY OF MARLOW, A Municipal Corporation, Plaintiff/Appellee, v. Stanley D. BOOKER; Paula J. Booker; James L. Davis and Jane Davis, Defendants/Appellants, and Hugh Gatlin, Trustee of the Hugh Gatlin Revocable Trust; Ruth Gatlin; Alvie Tatum; Billie Burrow Payne; William T. Payne, Mary Purdum Wade; the unknown Trustees of the Harry W. Hill Trust; Robert C. Lyle; Howard Hill; Rebecca Hill; Martha Ann Grubb; Beatrice Lewis; First National Bank & Trust Co. of Ada; Robert Hefner; GHK Company; The Hefner Company, Inc.; SCE Petroleum, L.L.C.; Nova Goodrich, Stephens County Treasurer, and The Board of County Commissioners of Stephens County, Defendants.

No. 96,701.

Court of Civil Appeals of Oklahoma, Division No. 3.

Decided November 30, 2001.

Rehearing Denied December 28, 2001.

Certiorari Denied April 2, 2002.

Tom Frailey, Fleming, Frailey, Chafen, Cordell, Greenwood & Perryman, LLP, Chickasha, OK, for Plaintiff/Appellee.

George D. Sherrill, Jr., DeBois, Sherrill & Reynolds, Duncan, OK, for Defendant/Appellants.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. CAROL M. HANSEN, Chief Judge.

¶ 1 Defendant/Appellants, Stanley D. Booker, Paula J. Booker, James L. Davis, and Jane Davis (collectively Landowners), seek review of the trial court's order granting the motion of Plaintiff/Appellee, City of Marlow (City), to dismiss Landowners' counterclaim for inverse condemnation in City's condemnation action. We hold Landowners may not prosecute a counterclaim in City's condemnation action. However, Landowners' pleading raised issues as to whether the commissioners failed to consider consequential injury to property not actually taken in ascertaining just compensation. Because Landowners demanded a jury trial within 60 days after the commissioners filed their report, the trial court must permit Landowners to litigate, in this proceeding, their right to just compensation for all damages incident to the construction and operation of the utility for which the land is taken.

¶ 2 City brought this condemnation action to acquire property for a sanitary sewer improvement project. It sought fee title to the surface rights in four tracts, permanent sewer line easements in five tracts, and temporary construction easements in two tracts. Landowners own tracts in which City sought permanent sewer line easements and which are adjacent to the tracts upon which City plans to build its sewage disposal facility.

¶ 3 After the commissioners filed their report, Landowners demanded a jury trial. They later filed counterclaims, denominated "cross-petitions," asserting the location and construction of the sewage disposal facility next to their properties substantially and permanently reduced the market value of the properties. Landowners sought inverse condemnation and asked the trial court to appoint commissioners to assess the amount of just compensation. City moved to dismiss the counterclaims, arguing Oklahoma law prohibits the filing of counterclaims in condemnation proceedings and requires that such claims be brought in separate proceedings. Landowners objected, arguing they were not seeking damages for any tort. They argued they sought to be compensated for the decrease in property value resulting from City's placement of the sewage disposal plant adjacent to their land. The trial court granted City's motion to dismiss. It directed the filing of a final judgment on the counterclaims and expressly determined there was no just reason for delay in filing the final judgment. Landowners appeal without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.36, 12 O.S.Supp.1996, Ch. 15, App. 1.

¶ 4 Municipalities have the power to condemn private property for public use. 11 O.S.1991 § 22-105. The procedure for doing so is the same as that provided for railroad companies. 27 O.S.1991 § 5. The condemnor begins the proceeding by petitioning the district court to appoint three disinterested commissioners to assess the amount of just compensation to which the owner is entitled. 66 O.S.1991 § 53. When the commissioners file their report, either party may challenge it in one of two ways. The challenger may obtain the district court's review of the report by filing written exceptions within 30 days, or it may file a written demand for jury trial within 60 days, "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." 66 O.S.1991 § 55...