Empire Const., Inc. v. City of Tulsa

• Decision Date: 19 June 1973
• Docket Number: No. 45200,45200
• Citation: 512 P.2d 119
• Parties: EMPIRE CONSTRUCTION, INC., an Oklahoma corporation, Appellant, v. CITY OF TULSA, Oklahoma, a municipal corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 119

512 P.2d 119

EMPIRE CONSTRUCTION, INC., an Oklahoma corporation, Appellant, v. CITY OF TULSA, Oklahoma, a municipal corporation, Appellee.

No. 45200.

Supreme Court of Oklahoma.

June 19, 1973.

Rehearing Denied July 17, 1973.

Syllabus by the Court

Under Article 2, § 24, of the Oklahoma Constitution, and Title 11 O.S.1961 and 1971, § 670, (which latter makes the statutes concerning condemnation for railway purposes applicable to condemnation by municipalities, Harn v. State ex rel. Williamson, 184 Okl. 306, 87 P.2d 127), and Title 66 O.S.1961 and 1971, §§ 51--56, both inclusive (which in all respects material to this case are identically the same as S.L.1907--1908, Article 1, C. 20, pp. 258, 261), where an owner's property is not taken and his proprietary right not disturbed, he is not entitled to damages in an inverse condemnation proceeding.

Certiorari to the Court of Appeals, Division No. 1.

On appeal from an order and/or judgment of the District Court in Tulsa County, Robert D. Simms, Judge, sustaining defendant's demurrers to plaintiff's petition, the Court of Appeals affirmed said order as to plaintiff's second alleged cause of action, but reversed as to its first cause of action and remanded the case for trial on the latter cause. Defendant seeks certiorari. Certiorari granted; decision of Court of Appeals affirmed in part and reversed in part; District Court's order and/or judgment affirmed.

Houston, Davidson, Jacoby, Sonberg, Main & Nelson, and John E. Robertson, Tulsa, for appellant.

Waldo F. Bales, City Atty., and David Nelson and Samuel C. Stone, Asst. City Attys., Tulsa, for appellee.

Floyd W. Taylor, Gen. Counsel, Okl. Dept. of Highways, Oklahoma City, for amicus curiae, State of Okl., ex rel. Okl. Dept. of Highways.

Roy H. Semtner, Municipal Counselor, and Wm. O. West, Asst. Municipal Counselor, Oklahoma City, for amicus curiae, The City of Oklahoma City, a municipal corporation.

BARNES, Judge.

This appeal arose out of an action by Appellant (plaintiff) against the Appellee (defendant) for alleged damages to plaintiff's property on account of a proposed, but unfulfilled, plan to condemn the property for use in the construction, through the defendant City, of a system of limited access expressways known as the 'Master Expressway Plan.'

Plaintiff's first alleged cause of action was in the nature of one for inverse condemnation. Its theory was that the announced plan to build the expressway through the property amounted, in effect, to an indirect taking, or 'expropriation' of it, without compensation. Plaintiff asked for the appointment of appraisers to determine the property's value. Plaintiff's second cause of action was for damages, based upon alleged slander of its title, by the publicity given the proposed plan.

The District Court sustained defendant's demurrers to plaintiff's amended petition as to both alleged causes of action. The Court of Appeals reversed said ruling as to the first alleged cause of action, and affirmed as to the second. We grant the Appellee's petition for certiorari, and, on consideration, conclude that the Appeals Court erred in its decision with respect to the alleged cause of action in inverse condemnation.

As to this first alleged cause of action, defendant's demurrer raised the question: Whether, in the absence of an actual invasion of land, or of governmental interference with the owner's right to use the same, may inverse condemnation be maintained?

Defendant's property consists of eight acres of unimproved land located at the corner of Tulsa's East 31st Street and Riverside Drive. A part of the aforementioned Master Expressway Plan is the proposed conversion of Riverside Drive into a limited access expressway to speedily shuttle traffic north and south between the Skelly By-Pass (existing limited access expressway which traverses the south side of Tulsa in an easterly-westerly direction) and an expressway to be known as the 'Inner Dispersal Loop,' circling Tulsa's downtown business district. When this Loop and the urban portions of Broken Arrow, Crosstown, Cherokee, Osage, Keystone, and Red Fork Expressways are completed, traffic from and to them, as well as from and to the proposed Riverside Drive Expressway, will have rapid ingress and egress to Tulsa's downtown business district, or may travel overhead around it on the Loop.

The defendant City first announced the design of the Master Expressway Plan to the public in June, 1957. On July 26th of that year its Board of Commissioners passed Resolution No. 2009 enlarging said City's 'Master Street Plan.' Although we have not been favored with a copy of this Resolution, it apparently approved proposed street changes that would be compatible with, or facilitate, construction and operation of the above mentioned Master Expressway Plan.

Thereafter, the City enacted its Ordinance No. 8283, which 'established as limited access facilities' all streets and avenues included in the previous Resolution's extension of the Master Street Plan.

It appears to be conceded that the Master Expressway Plan contemplates the realignment, enlargement, and re-location of Riverside Drive through plaintiff's property. The petition also alleges that by passing its Resolution No. 2009, supra, after receiving a letter in July, 1957, from the Tulsa Metropolitan Area Planning Commission, recommending the Master Expressway Plan, Tulsa's Board of City Commissioners 'adopted said Master Plan.'

It is the defendant's failure to institute condemnation proceedings to take plaintiff's property during the approximately ten-year period following the aforementioned events of 1957 that forms the gravamen of the complaints set forth in the petition plaintiff filed in this action in 1967. Concerning this, the petition alleges, in substance, that plaintiff's sole economic benefit from this unimproved eight acres on Riverside Drive depends upon said property's potential for commercial development, but that, by indicating that the property will be condemned at some indefinite future time in order to convert Riverside Drive into an expressway for incorporation into the planned Master Expressway system, the defendant City has precluded plaintiff from making 'any economically prudent, productive, use' of said property. Plaintiff's petition says that by its 'retention' of the Master Expressway Plan 'without implementation' for such 'unreasonable length of time, the defendant City . . . has 'frozen" the property in a state of economic unproductivity and condemnation-related 'blight' which the plaintiff characterizes as an interference with its 'beneficial use' and with plaintiff's 'power of disposition' of the property, constituting a 'taking without just compensation,' contrary to the Oklahoma Constitution's Article 2, § 24, and to the 5th and 14th Amendments to the United States Constitution.

While plaintiff's petition, as amended, presents facts which bear little similarity to those of any case that has yet been before this Court, we are not without precedent for determining the legal question hereinbefore set forth. And, on the basis of said precedent, we think the damages plaintiff has alleged can only be regarded as 'consequential' and not recoverable in an inverse condemnation proceeding in view of this Court's long established construction of Article 2, § 24, supra. As early as 1911, this Court, in determining the character of a property owner's rights that must be disturbed before he is entitled to compensation therefor in a condemnation proceeding, in Overholser v. Oklahoma Interurban Traction Co., 29 Okl. 571, 119 P. 127, quoted Edwards v. Thrash, 26 Okl. 472, 109 P. 832, 138 Am.St.Rep. 975, in part as follows:

'Whilst the first clause of section 24, art. 2, supra, provides that private property shall not be taken or damaged without just compensation, an accompanying clause in the same section provides that, Until compensation shall be paid to the owner or into court for the owner, The property of the owner shall not be disturbed or the proprietary rights of the owner divested. Does this latter clause require compensation to be paid to the owner, or into court for the owner, where the damages are merely consequential? The word 'disturb,' according to Mr. Webster, means, 'to interrupt a settled state of,' and according to the same authority 'propriety' means 'belonging or pertaining to a proprietor, considered as property, owned,' and the words 'the property shall not be disturbed or the proprietary rights of the owner divested' Seem to mean possession thereof shall not be taken, nor the title thereof be divested, until compensation therefor has been first paid to the owner, or into the court for the owner. This was the controlling construction of the state of Missouri at the time of the adoption of this clause in the Oklahoma Constitution, and, when there was no such provision in force in any other state, where a contrary construction prevailed, that of the highest court of Missouri should be especially persuasive.' (Emphasis added.)

After noting that the courts seem to hold that under their State Constitutions...