City of Tulsa v. Peacock

• Decision Date: 07 December 1937
• Docket Number: Case Number: 27627
• Citation: 181 Okla. 383,1937 OK 700,74 P.2d 359
• Parties: CITY OF TULSA v. PEACOCK
• Court: Oklahoma Supreme Court

1937 OK 700

74 P.2d 359

181 Okla. 383

CITY OF TULSA v. PEACOCK

Case Number: 27627

Supreme Court of Oklahoma

Decided: December 7, 1937

Syllabus

¶0 1. COURTS - Showing Held Insufficient to Oust Court of Common Pleas of Jurisdiction on Ground Title to Real Estate Was Involved.

In an action in the court of common pleas of Tulsa county for damages to real property, where the petition clearly states a cause of action, and defendant answers denying ownership of the premises, and alleging ownership in the state of Oklahoma by virtue of section 5603, O. S. 1931, without any allegation that the land was within highwater lines of a stream two chains or more in width, the court will not be ousted of jurisdiction on the ground that title to real estate is involved, where there is no substantial evidence showing any conflict in the title.

2. SAME.

Record examined, and held: There is no substantial evidence showing conflict in title to real estate. Held, further, that the court of common pleas had jurisdiction of the controversy.

3. PLEADING - Petition Stating Cause of Action for Destruction of Orchard - Amendment Alleging Damage to Land Held not to Set up New Cause of Action.

Where a petition states a cause of action for damage for the destruction of an orchard, an amendment alleging damage to the land is not an amendment setting up a new and separate cause of action.

Appeal from Court of Common Pleas, Tulsa County; Floyd E. Staley, Judge.

Action by W.T. Peacock against the City of Tulsa. Judgment for plaintiff, and defendant appeals. Affirmed.

H.O. Bland, Milton W. Hardy, and E.M. Gallaher, for plaintiff in error.

Henry R. Duncan, for defendant in error.

RILEY, J.

¶1 This is an appeal from a judgment obtained in the court of common pleas of Tulsa county, by defendant in error, herein referred to as plaintiff, against the city of Tulsa, referred to herein as defendant, for damages alleged to have been caused by the construction of certain drain pipes draining oil, base sediment, asphalt, and other poisonous substances from a street onto and over the surface of plaintiff's premises whereby it was alleged that plaintiff's orchard was destroyed and his land was otherwise permanently injured.

¶2 The first contention presented is that the court of common pleas of Tulsa county had no jurisdiction of the cause for the reason that the title to real estate is involved.

¶3 Plaintiff in his amended petition alleged that he was the owner of the premises involved and described as "lots two (2), and three (3), block two (2), Home Gardens second addition to the city of Tulsa, Tulsa county, Oklahoma." The specific injury was alleged to be the destruction of plaintiff's orchard on said premises.

¶4 Defendant answered by general denial, together with other allegations claimed to be a defense. Therein it was alleged that the "ground upon which plaintiff's orchard was alleged to have existed was a slough and part of the basin of the Arkansas river".

¶5 By an amendment to the answer it was alleged: "Defendant for further answer and further defense alleges and states that this plaintiff has no right, title, or interest in said land, or any realty thereto attached, for the reason and by virtue of section 5603, Okla. Stats. 1931, the title to said lands is in the state of Oklahoma."

¶6 These allegations of themselves were not sufficient to involve the title to the real estate.

¶7 Section 5603, supra, provides:

"The Commissioners of the Land Office are hereby authorized to lease for oil and gas purposes all lands between mean high-water mark in all streams or rivers of two chains or over; all such streams are declared the property of the state of Oklahoma."

¶8 It may be observed that the answer does not allege that the land in question or any part thereof is between mean high water in any stream two chains or more in width. It does allege that the land upon which the plaintiff's orchard is alleged to have existed is a slough and a part of the basin of the Arkansas river.

¶9 The answer, as amended, then amounts only to an allegation that the land in question is a slough and part of the basin of the Arkansas river, and a conclusion that because it is within the basin of the Arkansas river title thereto is in the state of Oklahoma by virtue of the provisions of section 5603, supra.

¶10 The word "basin", when speaking of a large river, ordinarily means or includes the entire area drained by the main stream and its tributaries. Webster's Dict.; Hale v. Sengstacken, 192 Fed. 641.

¶11 The answer, as amended, in the absence of an allegation that the land in question was located between the mean high water of the river, did not allege that it was the property of state any more than the land generally lying within the basin of the Arkansas river.

¶12 In Hodge v. Mayfield, 98 Okla. 8, 223 P. 853, it is held:

"In an action in the county court for rent for the use and occupancy of plaintiff's premises, where the petition clearly states a cause of action, and defendant answers, denying ownership, and alleging ownership in another, the court will not be ousted of jurisdiction on the ground that title to real estate is involved where there is no substantial evidence in the record showing any conflict in the title."

¶13 Under the rule there announced, mere denial of ownership by the plaintiff coupled with allegations of ownership in a third party is not sufficient to oust the county court of jurisdiction. Something further is required. That is, substantial evidence of ownership in such third party.

¶14 Conceding, without deciding, the right of the defendant to assert title in a third party in this kind of an action, we find no substantial evidence in this case that the land in question lies between mean high water in the Arkansas river. The substantial evidence is all to the contrary.

"High-water mark" is defined as:

"The line which the water impresses on the soil as the limit of its dominion. In tide waters, the line on the shore which is reached by the limit of the flux of the usual tide; the line reached by the periodical flow of the tide; the line reached by the tide at its highest flow; the margin of the sea at high tide; the upland boundary of tide and shore lands."

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