Driver v. Oklahoma Turnpike Authority

• Decision Date: 12 May 1959
• Docket Number: No. 38092,38092
• Citation: Driver v. Oklahoma Turnpike Authority, 343 P.2d 1079, 1959 OK 88 (Okla. 1959)
• Parties: C. M. DRIVER and Jewel Driver, Plaintiffs in Error, v. OKLAHOMA TURNPIKE AUTHORITY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1079

343 P.2d 1079

1959 OK 88

C. M. DRIVER and Jewel Driver, Plaintiffs in Error, v. OKLAHOMA TURNPIKE AUTHORITY, Defendant in Error.

No. 38092.

Supreme Court of Oklahoma.

May 12, 1959.

Rehearing Denied Sept. 15, 1959.

Syllabus by the Court

Where a part only of a tract of land is condemned and damages are sought for the value of that taken and consequential damages to that not taken, the measure of damages is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the portion left immediately after the taking; and while evidence to establish any additional damages beyond that is not permissible, evidence may be admitted of specific elements which contribute to the depreciation in market value.

Appeal from the District Court of Rogers County; Josh J. Evans, Judge.

Condemnation proceeding to take part of dairy farm for turnpike purposes. From judgment awarding damages, plaintiffs in error appeal. Reversed and remanded for new trial.

Harve N. Langley, Pryor, E. M. Knight, Spavinaw, for plaintiffs in error.

H. Tom Kight, Dennis Bushyhead, Claremore, Richard L. Wheatley, Vinita, Looney, Watts, Looney & Nichols, Anna B. Otter, Oklahoma City, for defendant in error.

BERRY, Justice.

Oklahoma Turnpike Authority, hereafter referred to as 'Turnpike Authority', brought this action in condemnation against C. M. Driver and Jewel Driver, husband and wife, hereafter referred to as 'defendants', to condemn for turnpike purposes 12.68 acres of defendants' 168-acre dairy farm lying in Rogers County, Oklahoma.

The trial court appointed commissioners to fix damages resulting to defendants' dairy farm from Turnpike Authority taking 12.68 acres thereof. The commissioners fixed defendants' damages at $19,000. Turnpike Authority and defendants each asked for a jury trial which was granted. The trial resulted in a verdict in defendants' favor in the amount of $13,190, and judgment was subsequently entered for said amount. Defendants filed a motion for new trial and from order denying said motion perfected this appeal.

Defendants assert that the trial court erred in (a) erroneously describing the property involved in the instructions; (b) excluding evidence relative to the value of dairy improvements before and after taking of the 12.68 acres; (c) admitting evidence relative to Turnpike Authority's offer to make available a passageway for defendants' stock; (d) denying defendants' motion for new trial and particularly that portion of said motion based on newlydiscovered evidence. For reasons hereafter made apparent, we are of the opinion that it is only necessary to consider contention following (b) above, in order to dispose of this appeal.

At the time the 12.68 acres were taken in July, 1955, the farm in controversy was used as a dairy farm and had been so used for a long period of time. The record shows that defendants kept approximately 100 head of dairy cows on the farm and daily milked approximately 70 of said cows; that following the taking of said 12.68 acres it was not economically feasible to use the farm as a dairy farm and for said reason the dairy cows were sold. The defendants' contention that the farm was not suitable for dairy purposes was based on the proposition that the turnpike split that portion of the farm upon which the dairy improvements were located off from the remainder of the farm and the dairy cows could not pass from the improved portion of the farm to the unimproved portion.

The record develops that numerous buildings had been built on the farm for use in the dairy business and defendants contend that as a result of the farm being made unfit for dairy purposes the buildings so built were in fact rendered useless to their great financial detriment. In an effort to establish said contention, defendants undertook to establish by a competent witness who was engaged in the building business, the value of the buildings used only for cairy purposes at the time the 12.68 acres were taken by proving replacement cost and original cost of same and also that assuming the buildings could not be used for dairy purposes the value of the buildings before and following the taking. The trial court refused to permit defendants to make said proof on the grounds that the measure of damages was the value of the farm before taking said 12.68 acres and the value thereafter.

In this jurisdiction by force of constitutional provision (Art. 2, Sec. 23) the owner of private property taken 'or...