Epperson v. Johnson
| Decision Date | 12 November 1941 |
| Docket Number | 30593. |
| Citation | 119 P.2d 818,190 Okla. 1,1941 OK 374 |
| Parties | EPPERSON v. JOHNSON, District Judge. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 2, 1941.
Syllabus by the Court.
1. The Grand River Dam Authority, a public corporation, instituted proceedings seeking to condemn certain privately owned real property for public use. Commissioners were appointed and returned and filed their appraisal of the damages to the owner. Condemnor paid the amount so fixed into court for the owner, but did not disturb the owner's possessory or proprietary rights. Pursuant to a demand therefor, a jury trial was had and the jury fixed the amount of the award to the owner at a sum greatly in excess of the amount fixed by the commissioners. Held, that the condemnor might abandon the proceeding and refuse to take the property where its motion to dismiss and abandon was filed after the verdict of the jury was returned and before the entry of final judgment thereon.
2. A trial by jury in the district court for the purpose of fixing damages for the taking of private property under the exercise of the right of eminent domain, is a special proceeding and not a civil action. Sec. 8, O.S.1931, 12 Okl.St.Ann. § 3.
Original proceeding in the Supreme Court by Ludie Epperson petitioner, against Judge N. B. Johnson, District Judge of the Twelfth Judicial District of the State of Oklahoma respondent, to prohibit the respondent from ruling on a motion filed by the condemnor in a condemnation proceeding pending in the respondent's court.
Writ denied.
R. A Wilkerson and Harve N. Langley, both of Pryor, and Carey Caldwell and J. W. Bashore, both of Vinita, for petitioner.
Q. B. Boydstun and Jesse L. Ballard, both of Vinita, for respondent.
This is an original proceeding instituted in this Court by Ludie Epperson, hereinafter referred to as petitioner, wherein she seeks to prohibit the district court of Mayes county and the Judge thereof from ruling upon a motion filed by the condemnor in a condemnation proceeding pending in said court, said motion being one for abandonment and dismissal of the condemnation proceeding and an election on the part of the condemnor not to take or pay for the property involved in said proceeding.
The condemnation proceeding was instituted by the Grand River Dam Authority, which is a public corporation organized under the provisions of art. 4, ch. 70, Session Laws 1935, 82 Okl.St.Ann. § 861 et seq. The Authority was authorized to store and preserve the waters of Grand River and its tributaries for the purpose of developing water power and generating electric energy and for other purposes. It was expressly authorized to acquire real property by condemnation. The proceeding in the district court of Mayes county was for the purpose of condemning certain vacant and unimproved lots located within the platted area of the townsite of Disney in Mayes county which property was owned by the petitioner. After due notice, commissioners were appointed to assess the compensation to the owner. On April 30, 1940, the commissioners filed their report in which they fixed the amount of compensation at Ten Dollars. On May 4, 1940, petitioner filed a written demand for trial by jury. On May 20, 1940, the condemnor paid the amount of said award into the office of the court clerk of Mayes county. It is shown that the condemnor has never taken possession of the property nor disturbed the proprietary rights of the petitioner to said property. The cause was tried to a jury and on March 25, 1941, the verdict of the jury was returned fixing the amount of compensation to be awarded at $4,000. On March 28, 1941, the condemnor filed a motion for new trial. One of the grounds upon which new trial was sought was that the verdict of the jury was excessive. On the same date condemnor filed a motion to dismiss and abandon the condemnation proceedings and therein announced and declared its unwillingness to take the property and pay the amount of compensation awarded by the jury. The motion for new trial and the motion for abandonment and dismissal were heard by the trial court and the motion for new trial was overruled, but the trial court passed the motion for abandonment to a future date and allowed this petitioner 30 days in which to file a brief thereon. On September 24, 1941, after consideration of the briefs, the trial court indicated that the condemnor's motion for abandonment of the condemnation proceeding would be sustained and designated October 15, 1941, as the date upon which an order to that effect would be entered, whereupon, this proceeding was instituted.
The proposition upon which the principal portion of the argument is predicated is stated in the brief of respondent as follows: "Unless and until title to the property passed and the rights of the respective parties became vested, the condemnor to the land and the condemnee to the compensation, the condemnor could rightfully dismiss and abandon the condemnation proceeding."
It is conceded that the exact question is new in this jurisdiction but it appears that similar questions have been before the courts of various jurisdictions. Great divergence of viewpoint is disclosed in the opinions dealing with the proposition, but there is also considerable dissimilarity in the statutes construed in the various opinions, which accounts in the main for the difference in the conclusions reached by the courts in the various cases.
A comprehensive annotation dealing with the question is found in 121 A.L.R. 12, et seq. At page 16 appears the following note: "While the right to abandon condemnation proceedings may be relinquished by agreement or lost by estoppel, the general rule that in the absence of a statute fixing the time within which a discontinuance may be had, an eminent domain proceeding may be discontinued at any time before the rights of the parties have become reciprocally vested, is unquestioned." At page 31 of 121 A.L.R. appears the following note: "In the absence of statutory provisions expressly regulating the stage at which the condemning party may dismiss or abandon condemnation proceedings, and where the acts authorizing such proceedings do not contemplate the passing of title before confirmation or judgment, it is generally held that the proceedings may be dismissed prior to confirmation or judgment, although (there) an award or verdict has been returned."
It appears that it will be necessary to examine our constitutional and statutory provisions relating to the exercise of the right of eminent domain insofar as they are applicable to the question presented. Section 24, article 2 of the Okl.St.Ann. Constitution provides that private property shall not be taken or damaged for public use without just compensation, and that such compensation must be ascertained by a board of commissioners appointed by the judge after reasonable notice to the parties in interest; that any party aggrieved shall have the right of appeal and trial by jury; that until compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner divested, and when possession is taken of property condemned for public use the owner shall be entitled to the immediate receipt of the compensation awarded without prejudice to the right of either party to prosecute further proceedings for the determination of the sufficiency of such compensation.
It is conceded that sections 11931-11933, O.S.1931, 66 Okl.St.Ann. §§ 53-55, provide the applicable procedure. The provisions of section 11931, supra, are in harmony with the constitutional provisions above outlined and provide for the appointment of commissioners, assessment of damages by them and a return of their report to the court and that payment of the award made must be made to the clerk of the court, for the use of the owner, before entry upon the property.
Section 11932, supra, provides that when possession is taken the owner is entitled to immediate receipt of the compensation awarded without prejudice to the right of either party to prosecute further proceedings for the determination of the sufficiency of said compensation.
Section 11933, supra, provides for a review of the report of the commissioners by the district court within sixty days after the filing of such report and that either party may, within 30 days after the filing of the report, file a written demand for a trial by jury; "in which case the amount of damages shall be assessed by a jury, and the trial shall be conducted and judgment entered in the same manner as civil actions in the district court."
Section 11934, O.S.1931, 66 Okl.St.Ann. § 56, provides for an appeal from the decision of the district court to the Supreme Court.
Section 11935, O.S.1931, 66 Okl.St.Ann. § 57, provides that the provisions of the article apply to all corporations having the right to eminent domain and to the State of Oklahoma, its departments and institutions.
The petitioner places considerable stress upon the case of Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 P. 708, opinion dated April 11, 1931. In that case the Pipe Line Company instituted condemnation proceedings upon certain property in Sedgwick County for use as a right of way for its pipe line. The property was duly appraised; two land owners appealed to the district court from the award; trials were had in the district court and judgment for the land owners for a much larger amount than the appraisement was entered in each case. After the verdict of the jury had been returned personal judgment was entered against the company in each case and the company then signified its intention to abandon the condemnation proceeding and executed quit...
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