Cunningham v. State ex rel. Oklahoma Planning and Resources Bd.
| Decision Date | 14 December 1954 |
| Docket Number | No. 36313,36313 |
| Citation | 277 P.2d 990 |
| Parties | Alice L. CUNNINGHAM, Plaintiff in Error, v. STATE of Oklahoma ex rel. OKLAHOMA PLANNING AND RESOURCES BOARD, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where the owner contests the taking of land by condemnation, alleging the lack of necessity for such taking, he waives the objection of failure to attempt to agree on compensation.
2. A condemnation proceeding is of statutory origin; where the issues present a question therein of fact as to the reasonable necessity of the taking and as to the character of the use of the land sought to be taken, the judgment of the trial court will not be disturbed unless clearly against the weight of the evidence.
Stinson & Williams, D. S. MacDonald, Jr., Durant, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., Don Welch, Don E. Welch, Madill, for defendant in error.
The State of Oklahoma ex rel. Oklahoma Planning and Resources Board, brought this proceeding before District Judge of Marshall County to condemn a certain described 21.5 acre tract of land owned by Alice Cunningham, alleging that said tract was contiguous to some 2,200 acres theretofore acquired by said Board along the south and west banks of Lake Texoma for park and recreational purposes, and the acquisition of this tract was necessary to protect such area theretofore acquired from pollution and interference and for the extension of such park area.
Defendant filed her motion to dismiss alleging lack of jurisdiction of the court because there was no necessity for the taking of her land and that no bona fide effort was made prior to the filing of suit to effect a settlement with defendant.
Thereafter defendant appeared at the hearing held for the purpose of appointing commissioners to appraise the property involved and agreed with plaintiff upon the individuals chosen to serve as commissioners. Thereafter the commissioners made their report and assessed defendant's damage sustained by reason of the taking of her property at $4,300, or $200 per acre. Plaintiff filed its motion to confirm the report of the Commissioners. Defendant filed her demand for jury trial, expressly reserving her right to pursue to final judgment her motion to dismiss on the ground of plaintiff's lack of right to condemn the land.
Thereafter the case came on for trial.
Plaintiff's evidence reasonably tends to show that the State owns 254 acres on the south and west banks of Lake Texoma; that it has a 99-year lease from the Federal Government on 2,200 additional acres; that the state is now engaged in the sale of revenue bonds for the purpose of constructing a lodge with dining facilities, cabins, a fisherman's lodge, and other facilities in the park area; that the 21.5 acres owned by defendant is immediately contiguous to the area set aside for the building of the lodge and deluxe cabins; that this acreage is necessary for the construction of playground areas for children and other recreational facilities, for the future expansion of the cabin area, and to protect the cabin and lodge areas from the tract being used by private parties for purposes not compatible with the park area, such a for dance halls and beer taverns; that a portion of it may be used for sewage disposal purposes; that this 21.5 acres is essential to the proper development of the state park; a copy of the minute book of the Oklahoma Planning and Resources Board was introduced in evidence showing that on February 16, 1953, at a regular meeting of the Board, it was reported to the board that there was a tract of 21.5 acres in the middle of what would be a heavy public use area which was still privately owned; that this 21.5 acres was supposed to have been condemned by the Game and Fish Commission along with 254 other acres of land in the area but through inadvertence had been omitted; that this 21.5 acres was essential to the...
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City of Midwest City v. House of Realty
...necessity of the taking will not be disturbed on review unless clearly against the weight of the evidence. Cunningham v. State ex rel. Oklahoma Planning & Resources Bd., 1954 OK 349, ¶ 0, 277 P.2d 43. Title 11 O.S.2001 § 1-102 providing in pertinent part: "As used in the Oklahoma Municipal ......
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Calhoun v. City of Durant
...requiring compensation is a question of law for the court, not a question of fact for a jury"); Cunningham v. State ex rel. Oklahoma Planning and Resources Board, 277 P.2d 990 (Okla.1954) (questions of fact as to reasonable necessity of taking and character of use of land sought to be taken......
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Lloyd v. State ex rel. Dept. of Highways
...produced, in lieu of a formal resolution, the trial court overruled all objections and exceptions of the defendants. In Cunningham v. State, Okl., 277 P.2d 990, we said that a formal resolution showing public necessity was not a condition precedent to bringing a condemnation action. We ther......
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Muskogee Urban Renewal Authority v. Garrett, 70455
...questioning the "necessity of the taking and public use" is concisely set forth in paragraph 2 of the court's syllabus in Cunningham v. State, 277 P.2d 990 (Okla.1954), which "Where the issues present a question therein of fact as to the reasonable necessity of the taking and as to the char......