Consol. Gas Serv. Co. v. Tyler

• Decision Date: 08 December 1936
• Docket Number: Case Number: 24414
• Citation: 63 P.2d 88,1936 OK 768,178 Okla. 325
• Parties: CONSOLIDATED GAS SERVICE CO. v. TYLER
• Court: Oklahoma Supreme Court

1936 OK 768

63 P.2d 88

178 Okla. 325

CONSOLIDATED GAS SERVICE CO. v. TYLER

Case Number: 24414

Supreme Court of Oklahoma

Decided: December 8, 1936

Syllabus

¶0 1. EMINENT DOMAIN - Jury Trial in Action to Condemn Right of Way for Gas Pipe Line - Evidence of Value - Evidence of Offer to Lease Premises for Certain Rental Held Inadmissible.

In the trial of an action before a jury to condemn a right of way for a gas pipe line after report of commissioners appointed by the court, it is error to admit evidence of a specific offer to lease the premises in question for a stipulated rental for the purpose of determining the value of the property.

2. SAME - Purchaser of Property Without Knowledge of Pipe Line Previously Secretly Laid Held not Estopped to Claim Compensation Upon Discovery of Line.

Where a pipe line is secretly laid across real property and under the surface, by a corporation having the right to exercise the power of eminent domain, a subsequent purchaser of the property, without knowledge of the existence of such pipe line, is not estopped to claim compensation upon discovery of the line, where the owner of the pipe line, upon discovery by the subsequent purchaser, commences the action to condemn the interest of such subsequent purchaser.

Appeal from District Court, Kay County; Claude Duval, Judge.

Condemnation proceedings by the Consolidated Gas Service Company against O.T. Tyler for right of way for gas line. From judgment for defendant, petitioner appeals. Reversed and remanded.

Conrad C. Mount and Howard F. Wilson, for plaintiff in error.

M.L. Opperud and O.B. Martin, for defendant in error.

RILEY, J.

¶1 This is an appeal from a judgment awarding damages in a condemnation proceeding.

¶2 The proceedings were instituted by the Consolidated Gas Service Company against O.T. Tyler, in the district court of Kay county.

¶3 The petition set out that plaintiff was then maintaining a gas pipe line across lot 5, in block 176, in Blackwell, running the length of said lot from west to east about 150 feet; that it believed that said pipe line was installed on the lot about 1925, by the Blackwell Oil & Gas Company with the oral permission of the Blackwell Mill & Elevator Company, the then owner of said lot; that plaintiff or its predecessor had purchased the line from the Blackwell Oil & Gas Company on July 1, 1928. It then alleged: "That defendant above named is the owner or claims to be interested in said land. That whatever interest defendant may have in said property was acquired by deed dated June 16, 1926." Then follows the usual allegation of effort to effect an amicable agreement with defendant and inability so to do.

¶4 The prayer was the usual one for the appointment of commissioners to view the premises and assess the damages.

¶5 Notice was served upon defendant, and commissioners were thereafter appointed.

¶6 The petition, order, and return of the commissioners mentioned and described only lot 5, block 176, as the property affected.

¶7 A plat filed, attached to and filed with the petition, shows the pipe line running along and very near the south line of said lot.

¶8 The report of the commissioners indicated that they considered the right of plaintiff to maintain the pipe line and the right of ingress and egress to patrol, inspect, and repair the line when necessary, and fixed the damages at $500.

¶9 Defendant, apparently being dissatisfied with the award, filed in due time his written demand for a jury trial.

¶10 At the trial it developed that defendant was also the owner of lot 6, adjoining lot 5 on the south. Evidence was permitted to go to the jury as to damages to both lots. The jury returned a verdict assessing defendant's damages to lot 5 at $1,650 and to lot 6 at $1,350, or a total of $3,000.

¶11 Judgment was entered accordingly, and plaintiff appeals.

¶12 It is first contended that the court erred in admitting evidence by defendant of offers to lease the property; comparing the value of defendant's property with other property in the city of Blackwell, and regarding the holding of a lease on a portion of the railroad right of way adjacent to defendant's property, and between his property and the railroad tracks, without any written lease being offered in evidence, or its duration or terms.

¶13 Defendant was permitted to testify, over the objection of plaintiff, that he had a number of offers to lease part of lots 5 and 6; that the parties refused to lease when they learned of the gas line.

¶14 The court permitted this, not to establish value, but on the theory that it tended to prove damages. In this, as so limited, there was no error, as it tended to show the effect of the gas line on defendant's property.

¶15 Defendant was also allowed to testify that he had offers from several oil companies of from $40 up to $110 per month for the west or front 75 feet of the lots without the gas line on lot 5.

¶16 The purpose of this evidence, as stated by counsel for defendant, was to establish the earning power without the line "which would be used in determining the value of the lots."

¶17 In this there was error.

¶18 Substantially the same question was before the court in Page v. Oklahoma City, 129 Okla. 28, 263 P. 448. There evidence of the same character was admitted on behalf of the city, in an effort to show that the property there claimed to have been damaged by the discharge of sewage upon the land was of as much value after the sewage had been cast upon it as the owner claimed it was worth before.

¶19 It was there held:

"Suit having been filed for damages caused by the emptying of a city sewer upon plaintiff's land, it was error to admit the testimony of a witness that since the filing of the suit and just before the trial he had offered to pay plaintiff a stated amount per acre for her land."

¶20 In the opinion it was said:

"This is a class of testimony the admission of which, at best, is dangerous, and at all times is safely rejected."

¶21 In St. Joseph & D.C. R. Co. v. Orr, 8 Kan. 419, there is a statement, quoted with approval in Page v. Oklahoma City, supra, as, follows:

"We can find no case nor can we recall any principle that would permit the proof of an offer for property as tending to show its value. It is a kind of proof that is so easily manufactured that its admission would be too dangerous to be tolerated. For the error in admitting this testimony the case must be reversed and a new trial awarded."

¶22 The court also cited Sharp v. United States, 48 L.Ed. 211, where the Supreme Court of the United States, in sustaining the trial court in rejecting this class of testimony, said:

"A reference to the authorities shows them to be almost unanimous against receiving evidence of this kind."

¶23 A witness was permitted to testify over the objection of plaintiff as to the value of certain other property in the city of Blackwell said to be desirable as an industrial site as compared to that of defendant. That is, as to the site he thought was the most accessible and most valuable. This we think was improper. The question at issue was the value of defendant's property as of the date when the award of the commissioners was deposited in court, with and without the pipe line located thereon. The value or comparative value of other property was immaterial.

¶24 Another witness was permitted to testify to the value of lot 6 to him, the witness. This was improper. The value to be considered was the market value and not the value of the land to the witness himself.

¶25 It is next contended that the court erred in permitting defendant to testify that he had a lease or two leases from the railroad company for a portion of its right of way lying between defendant's lots and the railroad track.

¶26 The contention is that this evidence should not have been admitted because the question did not cover the date the amount of the award of the commissioners was paid into court. This particular objection was not specifically called to the...