Coy v. City of Tulsa

• Decision Date: 08 February 1933
• Docket Number: No. 1566.,1566.
• Parties: COY v. CITY OF TULSA et al.
• Court: U.S. District Court — Northern District of Oklahoma

2 F. Supp. 411

COY v. CITY OF TULSA et al.

No. 1566.

District Court, N. D. Oklahoma.

February 8, 1933.

D. B. Crewson and Joseph A. Gill, both of Tulsa, Okl., for plaintiff.

H. O. Bland, O. H. Searcy, Bert E. Johnson, and C. L. Hamilton, all of Tulsa, Okl., for defendant City of Tulsa.

M. D. Green and Eric Haase, both of Muskogee, Okl., and C. S. Walker, of Tulsa, Okl., for defendant Missouri, K. & T. Ry. Co.

FRANKLIN E. KENNAMER, District Judge.

The plaintiff instituted this action in the District Court of Tulsa county, Okl., to recover damages alleged to have been sustained by reason of the closing of North Maybelle avenue between Cameron and Easton streets within the city of Tulsa. The cause was removed to this court by the defendant Missouri, Kansas & Texas Railroad Company, a corporation. Defendants have separately demurred to the plaintiff's petition on the common ground that no cause of action is stated. The petition discloses that the plaintiff is the owner of lots 6, 7, and 8, Owen addition, within the city of Tulsa, and located on the east side of Maybelle avenue between Cameron and Easton streets, north of and adjoining the right of way of defendant railroad company. The location of the plaintiff's property with reference to the closed street is indicated by the following plat:

It appears from the allegation of the plaintiff's petition that for a long time prior to February 22, 1930, North Maybelle avenue between Cameron and Easton streets was open to the public for general use as a public highway. The petition charges that the defendant railroad company on February 22, 1930, with the knowledge and consent and under appropriate action on the part of the constituted officials of said city blocked and cut off the plaintiff's use of the street by driving large and heavy steel or metal pipes into the said street and across the full width thereof on each side of the railroad line of said defendant railroad company, and that said pipes were driven on the edge of the railroad right of way across said street, all of which resulted in damage to the plaintiff's property. The lots of the plaintiff have been improved by the erection of residential houses thereon and the closing of the street has deprived the plaintiff of approach to his property from the south over the right of way of the railway company. In fact the property of the plaintiff according to the allegations of the petition is left fronting on a cul de sac. Counsel for the defendant city contend that the damages alleged to have been sustained are of a kind for which it is not liable under the well-settled rule that for the vacating or the closing of a street a property owner is not entitled to recover damages unless he has sustained an injury different in kind, and not merely in degree from that suffered by the public at large.

13 R. C. L. page 73, § 65; Scrutchfield v. Choctaw, O. & W. R. Co., 18 Okl. 308, 88 P. 1048, 9 L. R. A. (N. S.) 496; Choctaw, O. & G. R. Co. et al. v. Hamilton (C. C.) 182 F. 117; Choctaw, O. & W. R. Co. v. Castanien, 23 Okl. 735, 102 P. 88; 44 C. J. page 442. The authorities practically with unanimity sustain the right of recovery where the abutting owner as a result of the closing of a street has sustained special injury. City of Shawnee v. Robbins Bros. Tire Co., 134 Okl. 142, 272 P. 457, 66 A. L. R. 1047; Lewis on Eminent Domain (3d Ed.) vol. 1, p. 177, § 120. As stated in vol. 4, McQuillin Municipal Corporations (2d Ed.) § 1525: "It is easy to state this rule but much difficulty has been experienced by the courts in applying it because of disagreement as to what constitutes such a special injury as described above. The cases may be divided into (1) those where the one claiming damages owns property abutting directly on the part of the street vacated, and (2) those where he owns property abutting on the same street but not on the part of the street vacated, or property on another street."

The writer of this splendid work on municipal corporations calls attention to the unanimity to which a recovery is sustained in the first class of cases, but as to the second class there is a sharp division in the authorities. Counsel for the city here rely strongly upon the Oklahoma cases of Scrutchfield v. Choctaw, O. & W. R. Co. and Choctaw, O. & W. R. Co. v. Castanien, supra. These cases support the rule as contended for by the city, but it must here be observed that these cases were decided upon controversies arising prior to the adoption to the Oklahoma Constitution. An examination of these authorities disclose that the decisions rest largely upon the proposition that there can be no recovery for consequential damages. Necessarily to a proper determination of the rights of the plaintiff here to recover consideration must be given to section 24, article 2, of the Oklahoma Constitution, which provides: "Private property shall not be taken or damaged for public use without just compensation." No case by the Oklahoma Supreme Court has been called to my attention considering the exact case presented here by the plaintiff. In the case of McKay v. City of Enid, 26 Okl. 275, 109 P. 520, 523, 30 L. R. A. (N. S.) 1021, Mr. Justice Hayes said: "The authorities generally hold that the injury resulting from an obstruction in a street or public highway in front of an abutting owner's property which interferes with his ingress or egress to and from his property is a special injury to him; and many authorities hold that, although the obstruction be not in front of the abutting property, if it be in such proximity to it upon the street or highway upon which the property abuts, that the abutting owner's use and enjoyment of the property is destroyed or greatly interfered with, and its value depreciated, this injury is special and peculiar to him. And it has been held that injury to property, the access to which has been interfered with by an obstruction, although the property be not adjoining the highway or street upon which the obstruction exists, if such street or highway is the owner's only means of access to the property, is a special injury and the owner may recover therefor."

In the McKay Case, supra, the judgment of the trial court in sustaining a demurrer to the petition was affirmed, but following the above quotation, the opinion further stated: "But the facts in the case at bar do not bring it within any of these classes. Plaintiff's property does not abut upon any of the streets obstructed. It abuts only upon public highways into which said streets lead. He has no private...