Eberle v. State ex rel. Dept. of Highways

• Court: Oklahoma Supreme Court
• Writing for the Court: IRWIN; BLACKBIRD
• Citation: Eberle v. State ex rel. Dept. of Highways, 385 P.2d 868, 1963 OK 224 (Okla. 1963)
• Decision Date: 15 October 1963
• Docket Number: No. 40013,40013
• Parties: John F. EBERLE and Helen C. Eberle, Husband and Wife, Plaintiffs in Error, v. STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Defendant in Error.

Page 868

385 P.2d 868

1963 OK 224

John F. EBERLE and Helen C. Eberle, Husband and Wife Plaintiffs in Error, v. STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Defendant in Error.

No. 40013.

Supreme Court of Oklahoma.

Oct. 15, 1963.

Syllabus by the Court

1. Where the State, exercising powers of eminent domain, institutes condemnation proceedings and commissioners are appointed to make the appraisement and their report is filed, the condemnor is entitled to abandon the proceedings and decline to pay the assessed value of the land sought to be condemned, if the landowner's possessory rights have not been disturbed; and that actual possession by condemnor that will preclude abandonment of eminent domain proceedings is not a fugitive or temporary trespass but such possession as will give the landowner a vested right of compensation.

2. Where a part only of a tract of land is condemned and damages are sought for the value of that taken, and 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.

3. This Court will not substitute its judgment for that of a jury in matters of damages to be awarded for the condemnation of property of a public use, nor will it disturb the verdict of a jury if supported by any competent evidence.

4. Where a demand is made for a jury trial in a condemnation proceeding, the award made by the commissioners is not competent evidence to go before the jury.

5. In order for alleged misconduct of counsel in argument to the jury to effect a reversal of judgment, it must appear that substantial prejudice resulted therefrom and that the jury was influenced thereby to the material detriment of the party complaining.

6. In the granting or overruling a motion for a new trial, the trial court has a broad discretion and its judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.

7. It is not error to refuse to give a requested instruction when the matters therein sought to be submitted are properly, by general instruction, given by the trial court.

Appeal from the District Court of Oklahoma County; Glen O. Morris, Judge.

Defendant in error brought an action against plaintiffs in error to condemn and acquire for highway purposes a permanent easement across the land owned by plaintiffs in error. Plaintiffs in error filed their motion for a new trial after the trial court rendered its judgment pursuant to the jury verdict. Plaintiffs in error appeal from the order overruling their motion for a new trial. Affirmed.

John H. Cantrell, Cantrell, Douglass, Thompson & Willson, Oklahoma City, for plaintiffs in error.

Paul Harkey, Oklahoma City, for defendant in error.

IRWIN, Justice.

On August 31, 1959, the State of Oklahoma, ex rel. Department of Highways, commenced condemnation proceedings in Cause No. 147895, against plaintiffs in error, hereinafter referred to as defendants, to condemn and acquire for highway purposes, a permanent easement covering approximately 109 acres across a 1040 acre tract of land owned by defendants. Commissioners were appointed and their report was filed on November 17, 1959. The value of the easement taken and damages to the remainder of the tract were appraised at $25,000.00 by two of the commissioners and one of the commissioner's report listed them at $15,000.00.

On November 19, 1959, the State filed an objection and exception to the form, manner and content of the report for the reason it did not constitute a report as contemplateed by law. On December 4, 1959, at 2:07 P.M., the State filed a dismissal of Cause No. 147895. On December 4, 1959, at 4:25 P.M., defendants filed a demand for a jury trial. On December 8, 1959, defendants filed their objection to the dismissal by the State and prayed that the court enter an order requiring the State to show cause why its purported dismissal should not be set aside, or in the alternative, why the State should not be required to reimburse defendants for their reasonable expenses and to have commissioners appointed to determine the damages already done to the lands of the defendants. Pursuant to defendants' application, the trial court issued its order and set the hearing for December 21, 1959.

No other proceedings were had until March 11, 1960, when the State filed its petition in Cause No. 149329, to condemn the identical easement described in the original action with a change in the construction plans. On March 28, 1960, the State filed its withdrawal of its dismissal filed in Cause No. 147895 and on said date, with both parties present, the trial court granted the State permission to dismiss Cause No. 149329 and the petition in that cause was ordered to be filed as an amendment to the original petition. The trial court found that by reason of the change in the construction plans set forth in the amended petition a new appraisal should be ordered and the same commissioners were appointed to take a new appraisement.

Pursuant to such order, on April 4, 1960, a new appraisement was made and the report of the commissioners filed wherein two of the commissioners appraised the damages at $26,000.00 and one commissioner's appraisal was $15,000.00. The State filed its demand for a jury trial and its objection and exception to the report. Defendants also filed their demand for a jury trial. The State deposited the sum of $26,000.00 with the Court Clerk.

On November 6, 1961, the cause came on for trial. After the jury was empaneled, the attorney for defendants atated that the parties had stipulated as to the exact character of the property taken and further stated that 'It is further agreed that the date of the taking was April 6, 1960. And it is further agreed that there is no question that the jury demands were timely made by both parties.' (emphasis ours)

The jury fixed the amount of recovery at $10,867.50 and judgment was rendered accordingly. Defendants perfected their appeal from the order overruling their motion for a new trial.

PROPOSITION I

Defendants contend the trial court deprived them of their vested right to accept the first award when the trial court directed a reappraisal and thus afforded the State a new opportunity, already lost, to demand a jury trial.

Before determining this proposition, we should point out that neither the validity nor the form and manner of the commissioners' reports are an issue in this appeal, other than the procedural aspect in ordering the second appraisal after the State had filed its dismissal of the original action and filed another action condemning the same easement but with different construction plans.

We are committed to the rule that where the State, exercising powers of eminent domain, institutes condemnation proceedings and commissioners are appointed to make the appraisement and their report is filed, the condemnor is entitled to abandon the proceedings and decline to pay the assessed value of the land sought to be condemned, if the landowner's possessory rights have not been disturbed; and that actual possession by condemnor that will preclude abandonment of eminent domain proceedings is not a fugitive or temporary trespass but such possession as will give the landowner a vested right of compensation. See Oklahoma Turnpike Authority v. Dye, 208 Okl. 396, 256 P.2d 438; and Board of Commissioners of Pontotoc County v. Rayburn, 192 Okl. 624, 138 P.2d 820.

Although defendants contend the State had gone into possession under the first award, the record does not sustain this contention. On December 4, 1959, when the State filed its dismissal, the defendants' possessory rights sufficient to give them a vested right in the award had not been disturbed and the State was entitled to file its dismissal or proceed with the proceedings. The State chose to dismiss the action. Subsequent thereto and with both parties being present in open court, the trial court ordered the dismissal be withdrawn and a new appraisement be made by reason of the change in the construction plans. Defendants did not object to the order nor did they file exceptions. After the new-appraisement was made, the cause came on for hearing and the jury empaneled, both parties stipulated that the date of the taking was April 6, 1960, and 'there is no question that the jury demands were timely made by both parties'. In other words, defendants did not object to a new appraisement because of a change in the construction plans, but stipulated that jury demands were timely filed by both parties and proceeded to trial on the measure of damages, and now objects to the procedure.

We can only conclude that since the State had not disturbed the possessory rights of the defendants when it filed its dismissal, the procedure followed by the trial court, without objections but with the approval of both parties, protected the substantial rights of both parties. We therefore hold the State was entitled to a jury trial and the trial court did not err in this respect.

PROPOSITION II

Defendants set forth several specifications of error which relate to the same ultimate complaint, i. e., the amount of the award is so shockingly inadequate and such a miscarriage of justice that it can not be permitted to stand. In this connection, defendants urge that the Constitution contemplates 'adequate' and 'full' compensation to an owner when his property is taken for public purposes; that the verdict of the jury was the result of passion and prejudice engendered by the State's witnesses; and that the instructions were inadequate though appropriate instructions were requested.

We agree with defendants that their property shall not be taken or damaged for public use without just compensation. See Article 2, Sec. 24, of the Oklahoma Constitution. Our laws provide a procedure...