City of Tulsa v. Horwitz
| Decision Date | 29 May 1928 |
| Docket Number | Case Number: 17974 |
| Citation | 267 P. 852,1928 OK 350,131 Okla. 63 |
| Parties | CITY OF TULSA v. HORWITZ. |
| Court | Oklahoma Supreme Court |
¶0 1. Eminent Domain--Value of Land Taken and Damages to be Estimated as of Date Money Paid.In condemnation proceedings to take private property for public use, when trial is had before a jury on appeal from the award of commissioners, the date upon which the value of the property taken, and the damage, if any, to that not taken is to be fixed, is the date upon which the money awarded by the commissioners is paid to claimant, or into court.
2. Same--Refusal to Instruct on Proper Date for Estimate of Damages Reversible Error.
In such case, it is reversible error to refuse to instruct the jury as to the proper date when the damages are to be estimated, where the evidence as to the value of the property covers a long period of time, and shows substantial variation in value.
3. Same--Range of Inquiry as to Value of Property in Discretion of Court.
The extent of the range of inquiry to be permitted regarding the value of property taken or damaged in eminent domain proceedings is largely in the discretion of the trial court.
4. Same--Elements of Damages.
The elements of damages where private property is taken or damaged for public use includes all damages or injuries arising from the exercise of the right of eminent domain which cause a diminution of the value of private property, whether this results directly to the property or is but an interference with the right which the owner has to the legal and proper use of the same.
Commissioners' Opinion, Division No. 1.
Error from District Court, Tulsa County; Luther James, Judge.
Action by City of Tulsa against William Horwitz in condemnation of land for public alley. Demand of defendant for jury trial for assessment of damages. Judgment for defendant, and plaintiff appeals from amount of award Reversed.
H. O. Bland, Harry L. S. Halley, H. M. Gray, and Clara W. Harwood, for plaintiff in error.
E. M Connor and E. Jacobs, for defendant in error.
¶1 This is in action begun in the district court by the city of Tulsa to condemn a piece of land off of the southwest corner of lot 1 in block 6, original town site of the city of Tulsa.
¶2 The tract condemned was triangular in form, and its dimensions are 19.5 feet on the west, 98.5 feet on the south, and 100.5 feet on the north and east side, that is the side which made the hypotenuse of the triangle. Defendant owned a tract 50 feet by 140 feet in the southeast corner of block 6, and one 100 by 140 feet in the southwest corner of the block. An alley 20 feet wide running north and south separated the two tracts. The block is bounded on the west by Boston avenue, and on the east by Cincinnati avenue. What was at one time Fourth street, afterwards changed to Davenport street, was on the south side of the block. Sometime about 1902, Fourth street from Cincinnati to Boston avenue was by ordinance of the town council abandoned and vacated for the purpose of allowing the use thereof as a right of way for the M. K. & O. Railway, and, at the time these proceedings were commenced, was being used by the M. K. & T. Railway Company as a right of way. Upon this right of way, the railroad company had constructed two tracks running the entire length of the block, and a third track or switch between the north track and the lot in controversy, and between this switch and the lots there had been constructed a warehouse about 180 feet long, and about 28 feet wide, extending across and closing the south end of the alley running north and south through the block. Defendant in error, about 1919, made arrangements with the owner of this warehouse for the purchase thereof, and for a transfer of the lease of the ground upon which it stood to him, but the actual transfer thereof was not made until after these proceedings were commenced. Arrangements were made between the railway company and the city for the use of that part of the railroad right of way lying between the warehouse and defendant's east lot necessary to open an alley 20 feet wide extending eastward from the south end of the alley to Cincinnati avenue, and these proceedings were for the condemnation of the triangular tract above described off the southwest corner of defendant's east lot, which was necessary to open the alley. Commissioners were appointed by the court to view the premises, and after their report was filed, defendant demanded a jury to assess the damages. Trial was had, resulting in a verdict assessing the damages at $ 2,000. The city filed a motion for new trial, which was overruled and judgment entered upon the verdict. From this order and judgment, the city of Tulsa appeals.
¶3 There are 13 assignments of error, but those relied upon and presented in the brief are all included in Nos. 1, 5, 6, 8 and 10, No. 1 being the alleged error in overruling motion for new trial, and the others being alleged errors of law occurring at the trial.
¶4 The first error complained of in the brief is the refusal to give requested instruction No. 7, as follows:
"You are instructed that the burden of proof in this case is upon the landowner to establish by competent evidence the fair reasonable market value of the land in controversy at the time of the taking of this property by the city of Tulsa under the condemnation proceedings, which was on the 26th day of May, 1923."
¶5 It is contended that, by this requested instruction, plaintiff in error endeavored to have the court fix the date that the damage should be determined as of the date the money was paid into court. This court has held that to be the proper date. Stinchcomb v. Oklahoma City, 81 Okla. 250, 198 P. 508. It was there held that it was reversible error to instruct the jury that the appropriation of the land took place on the 9th day of March, 1917, the date of the filing the report of the commissioners appointed by the court to view the premises and assess the damages, instead of fixing the date of such appropriation as of the date the money was paid to the owner, to wit, April 25, 1917.
¶6 The instructions given nowhere told the jury the date upon which the property was taken. It seems well settled in this state that the measure of damages in such cases is the market value of the property actually appropriated, together with the decrease, if any, caused by such taking in market value of that remaining. The general rule as stated in 20 C. J. p. 757, is:
¶7 It would seem important both to the owner of the land and the municipality, that the jury should understand as to the date upon which compensation is to be measured. In the instant case, it is contended by defendant in error that instruction No. 2 given by the court fixes the time for determining the damage. This instruction in the part cited by defendant in error was:
¶8 The evidence tended to show value of the property varying from April or May, 1919, when it was purchased by defendant in error, some four years before it was taken, down to the date of the trial in March, 1926, some three years after it was taken. The value shown by the evidence varied at different times from about $ 13,000 to about $ 30,000. We think, in view of this evidence, it was the right of the city to have the jury instructed in plain and unambiguous language the proper date upon which to fix the damages, and that the instruction given did not so fix the date.
¶9 Defendant in error contends that the failure to instruct on this point, if error, was harmless, and that under the whole record, the jury could not have been misled. The only thing appearing in the record by which the jury could have received any intimation as to the proper date from which to fix the damages was a remark made by the court, during the course of the trial, as follows:
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