City of Tulsa v. Creekmore

• Decision Date: 06 February 1934
• Docket Number: Case Number: 23851
• Citation: 1934 OK 57,29 P.2d 101,167 Okla. 298
• Parties: CITY OF TULSA v. CREEKMORE.
• Court: Oklahoma Supreme Court

1934 OK 57

29 P.2d 101

167 Okla. 298

CITY OF TULSA v. CREEKMORE.

Case Number: 23851

Supreme Court of Oklahoma

Decided: February 6, 1934

Syllabus

¶0 1. Eminent Domain--Measure of Compensation--Fair Market Value of Land.

It is well settled that when a parcel of land is taken for public use by the exercise of the power of eminent domain, the measure of compensation is the fair market value of the land.

2. Same--"Fair Market Value" Defined.

By fair market value is meant the amount of money which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it, taking into consideration all uses to which the land was adapted and might in reason be applied.

3. Same--Value for Both Present and Prospective Uses.

In determining the market value of a piece of real estate for the purposes of a taking by eminent domain, it is not merely the value of the property for the use to which it has been applied by the owner that should be taken into consideration, but the possibility of its use for all purposes, present and prospective, for which it is adapted and to which it might in reason be applied, must be considered, and its value for the use to which men of prudence and wisdom and having adequate means would devote the property if owned by them must be taken as the ultimate test.

4. Same.

The use for which a piece of land is especially available need not be excluded from consideration merely because the availability depends upon extrinsic conditions the continuance of which is not within the control of the owner of the land.

5. Appeal and Error -- Review -- Judgment Conforming to Verdict Supported by Competent Evidence not Disturbed.

In a civil action, triable to a jury, where there was competent evidence reasonably tending to support the verdict of the jury, where there was no prejudicial error in the instructions of the court, or in its rulings during the trial, and where the judgment of the court conformed to the verdict of the jury, that judgment will not be disturbed on appeal.

6. Eminent Domain--Evidence Held not to Show Verdict for Landowner Was Excessive.

Record examined, and held to show nothing to sustain the contention that the verdict was the result of passion or prejudice.

7. Same--Refusal to Give Requested Instructions Held not Error.

Record examined, and held that, in view of the instructions given, there was no error in failing to give the instructions requested.

8. Same--Permitting Commissioners Who Had Appraised Damages to Testify as to Value Held not Reversible Error.

Record examined, and held, that there was no reversible error in permitting two of the commissioners who had appraised the damages to testify as to the value of the land before and after the taking.

9. Same--Refusal to Require Landowner to Plead Elements of Damage Held not Reversible Error.

Record examined, and held, that there was no reversible error in refusing to require the landowner to plead the elements of his damage.

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

Proceedings by the City of Tulsa for condemnation of land of W. J. Creekmore. From the judgment awarding damages, the City appeals. Affirmed.

H. O. Bland, City Atty., Langley & Langley, H. M. Gray, O. H. Searcy, C. L. Hamilton, and Edna Claire King, for plaintiff in error.

Richard Wheatley and Davidson & Williams, for defendant in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Craig county in favor of the defendant in error, a landowner, against the plaintiff in error, who had condemned certain land for municipal waterworks purposes, for the amount of damages sustained by reason of the condemnation of the land.

¶2 The record shows that commissioners were appointed in the condemnation proceeding by the district court of Delaware county on the 21st day of July, 1923; that they fixed the amount of damage sustained by the landowner at $ 10,000; that the city of Tulsa objected thereto; that a jury of twelve men, by unanimous verdict, fixed the amount of damage at $ 17,000; that the trial court rendered judgment for $ 17,000, less $ 10,000 paid, with interest at the rate of 6 per cent. per annum from the 2nd day of April, 1924, on $ 7,000; that a motion for new trial was overruled, and that the city of Tulsa appealed to this court.

¶3 As stated in the brief of the city of Tulsa, the ultimate question for determination was the market value on April 2, 1924, of 55 acres of land belonging to the defendant in error that had been taken by the city, and the amount of damage to 45 acres of land belonging to the defendant in error that had not been taken.

¶4 That the verdict of the jury is amply supported by evidence is not questioned by the city of Tulsa. However, it contends that the amount of the verdict is excessive. The amount of the verdict is clearly within the limits fixed by the testimony shown by the record in the case. It is not excessive if that testimony is competent and if it was properly admitted in evidence. The testimony of Dr. F. M. Adams, medical superintendent of the General Oklahoma Hospital at Vinita, and others, that they knew the market value of the property and that it was worth from $ 200 to $ 250 per acre, is neither speculative, silly, nor unbelievable, as contended. If there was anything tending to impeach that testimony, it is not disclosed by the record in the case, and the verdict of the jury is to the contrary.

¶5 The measure of damages in condemnation proceedings where private property is taken in the exercise of the right of eminent domain under the statutes of Oklahoma the market value of the property actually taken at the time it is so taken, and for the impairment or depreciation of value done to the remainder. Oklahoma Natural Gas Co. v. Coppedge, 110 Okla. 261, 237 P. 592; City of Cushing v. Sarber, 92 Okla. 59, 217 P. 866; Public Service Co. of Oklahoma v. Raburn, 162 Okla. 81, 19 P.2d 167. It is the market value that is the test and not its value for some particular use to which it might be subjected, although its adaptability to this particular use may be considered as one of the factors in ascertaining the market value when they enter into and affect the cash market value of the property. Revell v. City of Muskogee, 36 Okla. 529, 129 P. 833; Public Service Co. v. Leatherbee (Ill.) 311 Ill. 505, 143 N.E. 97.

¶6 The city of Tulsa bases its claim that the judgment of the trial court should be reversed, in part, upon its contention that proof that the land condemned had a value for recreational purposes, without proof that there was a demand for such land "sufficient to cause it to sell for a higher price," is insufficient. The record shows that the land had a value for recreational purposes in addition to its value for agricultural purposes. The fact that other land similarly situated had such a value is material only in so far as the available supply operated to reduce the value of the land in question. In no wise did it operate to destroy its value for recreational purposes. The correct rule, that stated by this court in Revell v. City of Muskogee, supra, as follows:

"In ascertaining the value of land taken under eminent domain, its market value is the test, and not its value for some particular use to which it might be subjected, although its adaptability to this use may be considered as one of the factors in ascertaining its market value"

¶7 --is admitted by the city. It also admits that the correct rule for measuring the value is "to determine the reasonable market salable value of the property if the owner was offering to sell on usual terms and the purchaser desired to buy." Blincoe v. Choctaw, Oklahoma & Western Railroad Co., 16 Okla. 286, 83 P. 903. However, it contends that the testimony offered on behalf of the defendant in error was incompetent for the reason that the witnesses did not show knowledge of facts necessary to qualify them to give an opinion. That contention is not supported by the evidence and is in conflict with the law of this state, wherein the rule followed is that the particular qualifications of a witness to give an opinion as to the value of lands, as shown by his examination, go only to the probative force of the opinion. Wichita Falls & N.W. Ry. Co. v. Harvey et ux. 44 Okla. 321, 144 P. 581. It cannot be said that the evidence offered was incompetent. The record shows testimony on behalf of Mr. Creekmore in conformity with the rule stated in the case last cited and in conformity with the rule stated in Incorporated Town of Sallisaw v. Priest, 61 Okla. 9, 159 P. 1093, from which we quote as follows:

"In the sixth and seventh assignments of error the plaintiff in error claims that the trial court erred in permitting several witnesses to testify as to the value of the farm from which the land condemned was taken without requiring such witnesses to show themselves qualified to give such testimony, and that the trial court erred in refusing to strike such testimony of such witnesses. Upon a careful examination of the record, in the light of the decisions of our own court, and the great weight of authority, we find no error was committed by the trial court in his rulings relative to the testimony of such witnesses. These witnesses were all farmers. All testified in their direct testimony that they were acquainted with the land in question and the market value of land in that vicinity. While it is true that under the skillful cross-examination of counsel for plaintiff in error some of these witnesses seemed to contradict their direct testimony in some particulars, yet they come squarely within the rule as announced in the following cases, and the weight of their testimony became a question for the jury: Wichita Falls & N.W. Ry. Co. v. Harvey et ux., 44 Okla. 321, 144 P. 581; Wichita Falls & N.W. Ry. Co. v. McAlary, 44 Okla. 326, 144 P. 583; Idaho-Western Railway Co. v. Columbia Conference, etc., 20 Idaho 568, 119 P. 60,

...