City of Tulsa v. Williams

• Decision Date: 05 February 1924
• Docket Number: Case Number: 14514
• Parties: CITY OF TULSA v. WILLIAMS et al.
• Court: Oklahoma Supreme Court

1924 OK 136

227 P. 876

100 Okla. 116

CITY OF TULSA v. WILLIAMS et al.

Case Number: 14514

Supreme Court of Oklahoma

Decided: February 5, 1924

Error from District Court, Mayes County: A. C. Brewster, Judge.

Proceeding brought by the city of Tulsa. a municipal corporation, in the district court of Mayes county, against certain landowners. for the purpose of condemnation of certain lands located in Mayes county for waterworks purposes to furnish water supply to the said city of Tulsa and the inhabitants thereof; and for the appointment of commissioners to view the property and assess damages to the owners of the property sought to be taken. The proceeding seeks to condemn property for public use both below and above the high water line in a water reservoir to be created in part upon the lands sought to be condemned.

The order of the court upheld the right of the city of Tulsa to condemn lands below the high water line of such reservoir, and appoint commissioners to view and determine the value thereof. The court denied the right of the city of Tulsa, as a matter of law, to condemn lands above the high water line. From the order and judgment of the district court denying the right to condemn the property above the high water line sought to be condemned, the city of Tulsa prosecutes this appeal and makes the owners of the property defendants in error.

Judgment of the district court of Mayes county denying the right of the city of Tulsa as a matter of law to condemn the property above the high water line, reversed, with directions.

Syllabus

¶0 1. Eminent Domain--Establishment of City Reservoir Outside Corporate Limits --Condemnation of Land--Necessity.

The right to establish and create a water reservoir, either within or without the corporate limits of municipal corporations, has been conferred upon municipal corporations by the law of Oklahoma; and the necessity therefor and the location thereof are legislative questions for the law-making power of such municipalities and are not for the courts; but when the question is raised as to the necessity for taking any particular piece of property for the public use, such question presents matter for judicial determination.

2. Same--Right to Take Land Above High Water Line.

Where a municipal corporation seeks to create a waterworks plant and water reservoir outside of its corporate limits, it has a right, under the law of eminent domain, to condemn such land as shall be submerged by its reservoir up to the high water line; and also has the right to condemn such margin of land above the high water line of its reservoir as may be needed, where the perpetual use and absolute control thereof is required, to protect its water supply from pollution and for policing and patrolling the shore of its reservoir; but how much margin above the high water line should be taken for such purpose is a judicial question to be determined by the court upon evidence of the necessity.

3. Same--Reversal of Judgment.

Record examined, and held, that the judgment of the trial court that petitioner has no right, under the law, to condemn and take over the perpetual use and absolute control of any of the land described lying above the high water line of its reservoir, is erroneous; that under the pleadings it becomes a question of fact for judicial determination as to how much margin of land, if any, is needed above the high water line in the reservoir for the proper protection of petitioner's water supply; that the judgment of the trial court should be reversed, with directions to grant the petitioner a new trial and to proceed in a manner not inconsistent with this opinion to determine what,if any of the lands sought to be condemned above the high water line are, necessary for the proper protection of petitioner's water supply and reser voir.

Commissioners' Opinion, Division No. 4

I. J. Underwood, City Attorney, W. B. Robinson, W. F. Tucker, and Langley & Langley, for plaintiff in error.

Harry Seaton and Leahy & Brewster, for defendants in error.

Opinion by SHACKELFORD, C.

¶1 For convenience in this opinion, the city of Tulsa, plaintiff in error, will be referred to as petitioner, and the landowners, defendants in error, will be referred to as respondents.

¶2 The petitioner began this proceeding in the district court of Mayes county by filing its petition therein on the 2nd of December, 1922. The petitioner seeks to condemn certain lands in Mayes county, not within petitioner's corporate limits, for the purpose of creating a water reservoir to supply water to petitioner and the inhabitants thereof. In the petition the land sought to be condemned is set out and described by legal subdivisions of certain sections, and the names of the owners given. Due and legal notice was given to the land owners and their appearances are shown of record. It appears from this proceeding that it is the purpose of the petitioner to build an extensive dam across a non-navigable stream running through Mayes county, known as Spavinaw creek, for the purpose of impounding the waters of said creek so as to create a water supply for petitioner and its inhabitants. It appears that the damming and impounding the waters of said creek will create a reservoir of water or lake, covering many hundreds of acres of land, and to be carried by means of conduits leading from such reservoir, and into the petitioner's confines. The petitioner seeks to acquire the fee-simple title by purchase, or the perpetual use and control by condemnation proceedings, of such lands as may be needed for the erection of its dam across said Spavinaw creek, in Mayes county, and for the purpose of erecting such buildings and water equipment as may be needed to effectuate the purposes for which the reservoir is being created; also a right of way over, under, and across such lands as may be needed for the purpose of laying its conduits, water pipes, and pipe lines; and for building and operating a temporary railroad to be used for construction purposes; also as to all lands which will be necessary to submerge by impounding the water of the said creek; also as to all lands which may lie between the low water line and the high water line when the reservoir is complete and flooded; also as to all lands lying within the watershed above the high water line that may be needed to protect the water impounded in the reservoir from pollution. or such as may be needed for the purpose of fencing, policing, and protecting the reservoir and the water therein.

¶3 The right to acquire the perpetual use and control of the property by condemnation proceedings is not denied, except as to such land as lies above the flood stage or maximum high water line which is desired and alleged to be necessary to have to prevent pollution of the water in the reservoir, and needed for fencing the reservoir and patrolling the water line and extending police protection over the petitioner's water supply.Every other question has been eliminated.

¶4 In the petition it is alleged, in effect, that the perpetual use and exclusive control of the lands described, which may be lying above the high water line, are necessary for the public use for the purpose of properly protecting and safe-guarding the water to be impounded in petitioner's water reservoir so as to, as nearly as may be, insure to petitioner and the inhabitants thereof, a supply of pure water. It is alleged that the legislative arm of the city government of the city of Tulsa regularly adopted a resolution declaring the lands sought to be condemned necessary for the purposes for which the condemnation is sought, the lands being specifically described in such resolution, not by metes and bounds, but by legal subdivisions of the federal survey; and a copy of the resolution of necessity is attached to the petition. The respondents deny that it is necessary for the petitioner to acquire the perpetual use and absolute control of such described lands as lie above the high water line, for the purpose of preventing pollution of the water supply, or for the purpose of policing and patrolling the shore and borders of the reservoir. They further deny that there is any power in the court in condemnation proceedings to invest the petitioner with perpetual use and absolute control of the lands outside the high water line of petitioner's water reservoir for the purposes for which the condemnation is sought.

¶5 Upon a trial of the cause petitioner put in proof the resolution adopted by the legislative department of the city of Tulsa, declaring the necessity for petitioner to have the lands sought to be condemned both below and above the high water line of petitioner's reservoir, and likewise offered the testimony of expert witnesses to show that the land sought above the high water line is necessary for the protection of the petitioner's water supply from pollution, and for patrolling and policing the shores of the reservoir.

¶6 The trial court upheld the rights of the petitioner to acquire in condemnation proceedings the perpetual use and absolute control of the land described lying below the high water line of the reservoir; and appointed appraisers to view such land and fix the damage to the respective land owners; and also upheld the right of the petitioner to take certain lands not within the high water line, needed for buildings to be used in connection with the water project. No complaint is made by either party with reference to that part of the holding and judgment. The court found that as a matter of law the petitioner is not authorized to acquire by condemnation proceedings any of the property described lying above the petitioner's high water line, except such as is needed for the buildings. That part of the court's findings is as follows:

"The court further finds that the said petitioner herein is not authorized by the laws of the state of Oklahoma to acquire by condetonation proceedings any of the lands lying above the high water line of

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