City of Tulsa v. Horwitz

• Decision Date: 22 September 1931
• Docket Number: Case Number: 20409
• Parties: CITY OF TULSA v. HORWITZ.
• Court: Oklahoma Supreme Court

1931 OK 540

3 P.2d 841

151 Okla. 201

CITY OF TULSA v. HORWITZ.

Case Number: 20409

Supreme Court of Oklahoma

Decided: September 22, 1931

Syllabus

¶0 1. Eminent Domain -- Municipal Corporations--Narrow Strip Left After Grant of Street to Railroad Held to Revert to Adjoining Lot Owner--In Condemnation Proceedings by City Defendant's Lot Held to Abut on Right of Way.

Where a city grants a right of way to, over, and along a public street to a railroad to be used for trackage and warehouse purposes so nearly the entire width of the street as to leave no room for the use of the remainder of the space as a public street, the grant by the city and the use by the railroad amounts to an abandonment of the narrow strip that is left, which would revert to the adjoining lot owner; and where the uncontradicted evidence shows such state of facts, there is no question of fact for a jury to determine as to whether or not the property of the adjacent lot owner thus situated abuts the railroad right of way.

2. Same--Future Assessments for Paving Alley Held not Element of Damage for Taking of Portion of Tract for Alley.

The fact that after a part of a tract of land has been acquired by a city by condemnation for use as a public street or alley, the remainder of such tract as abutting property may be liable to assessment or may actually be assessed does not make such possible future assessment or assessments actually made an element of damages in the condemnation proceedings of the part so taken.

3. Appeal and Error--Review--Insufficiency of Record as to Improper Argument.

Where it is claimed that improper statements are made by counsel in argument to the jury, where the argument and objections thereto and ruling of the court are not taken down by the court reporter, and the question is presented first by affidavit and oral testimony in support of a motion for a new trial, which are controverted by counter affidavit, and there is no finding or certificate by the trial court that the statements complained of were made by counsel, the question is not properly here for review.

4. Same--Statements Held not Prejudicial.

Record examined, and held, that the statements complained of, if made, were not prejudicial, and therefore harmless.

Appeal from District Court, Tulsa County; Luther James, Judge.

Action by City of Tulsa against William Horwitz. Judgment for defendant, and plaintiff appeals from amount of award in condemnation proceedings. Affirmed on condition of remittitur.

M. C. Spradling, Eben L. Taylor, and F. A. Bodovitz, for plaintiff in error.

E. M. Connor and E. Jacobs, for defendant in error.

RILEY, J.

¶1 This is a second appeal from an award of damages by a jury in a proceeding to condemn a triangular parcel of land in the southwest corner of lot 1, block 6, original town site of the city of Tulsa, to be used by the city as a part of an alley extending from the middle of the south line of said block, eastward to the southeast corner of the block, where it connects with Cincinnati avenue, running along the east side thereof.

¶2 The award in the first trial was $ 2,000, from which the city appealed, and judgment was reversed and remanded for a new trial, 131 Okla. 63, 267 P. 852. In the second trial the award was $ 2,800, and the city again appeals.

¶3 For convenience the city of Tulsa will be referred to herein as plaintiff and William Horwitz as defendant.

¶4 Assignments of error Nos. 1, 2, and 4 are presented under the proposition that there was no evidence reasonably tending to support the verdict and judgment. The contention is that there is no evidence to support the verdict for the reason that there is no competent evidence tending to show that the property condemned was what was known as trackage property, or property abutting on the right of way of the Missouri, Kansas & Texas Railway Company, between which and the remaining portion of defendant's lot the alley was opened, and the principal claim of the defendant being based upon the alleged fact that by opening the alley defendant's lot was cut off from the railway right of way and rendered less valuable on that account, the claim is not sustained by the evidence.

¶5 This contention cannot be upheld. A careful examination of the record will show ample evidence to support defendant's contention in this regard. The uncontradicted evidence shows that defendant's lots prior to the opening of the alley were for all practical purposes abutting the railroad right of way, and that he owned a warehouse on the right of way, paid for by him prior to the commencement of the condemnation proceedings, and that the taking of the strip from the corner of his lot and the opening of the alley thereon separated defendant's said lot from the right of way and his warehouse, and cut off his access to the railroad right of way. There was, however, a narrow strip between the north line of the warehouse and the south line of defendant's lot, and because of this narrow strip the plaintiff contended that none of defendant's property was trackage property as defined by the witnesses for both sides. The mere fact that defendant's lot did not extend entirely to the warehouse or the line of the right of way, as shown by the maps and plats in evidence, does not necessarily mean that his property was not trackage property as so defined. His lot extended to within a few feet of the warehouse built on the right of way. The entire street through this block had been for many years closed to the traveling public and practically all of it used as a railroad right of way, upon which the railroad tracks and warehouses had been placed. It is not entirely clear just where the north line of the right of way was established, but from the whole record it appears that, if the entire street was not included in the right of way, there was such a narrow strip left as to render impossible the use thereof as a street by the general public so as to constitute an abandonment of that part of the street. Whether the narrow strip between defendant's lot and the warehouse was included in the right of way granted to the railway company or not would not change the result. If not included in the right of way, it was abandoned as a street, because too narrow to be used as such. In such case it would revert to the owner of the adjacent lot. In either case defendant's lot would be trackage property as defined in the evidence by the testimony of witnesses for both plaintiff and defendant.

¶6 What we have said disposes of the assignments based upon the refusal of the court to instruct the jury, in effect, that it could not consider the value of defendant's lot as what was denominated by the witnesses "trackage property," unless it found by a preponderance of the evidence that, at the time of the appropriation of the strip of ground, the lots from which it was taken abutted the right of way of the railroad company. Instruction No. 3, requested by plaintiff on this question, was properly refused for the further reason that, if given, it would have told the jury that, after the strip was...