Graham v. City of Duncan

• Decision Date: 14 June 1960
• Docket Number: No. 38593,38593
• Citation: 1960 OK 149,354 P.2d 458
• Parties: Jim C. GRAHAM, Plaintiff in Error, v. CITY OF DUNCAN, Oklahoma, a municipal corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 458

354 P.2d 458

1960 OK 149

Jim C. GRAHAM, Plaintiff in Error, v. CITY OF DUNCAN, Oklahoma, a municipal corporation, Defendant in Error.

No. 38593.

Supreme Court of Oklahoma.

June 14, 1960.

Rehearing Denied Aug. 2, 1960.

Syllabus by the Court

1. A condemnation proceeding brought to obtain private property for public use is a special proceeding and not a civil action, to be carried out in accordance with the methods prescribed by the legislature.

2. In a condemnation proceeding the defendant owner is not required to answer and plead the elements of his damage but it rests in the discretion of the trial court as to whether such pleading should be filed.

3. The term 'property' as used in the Oklahoma Constitution, Art. 2, Sec. 24, regarding the taking of private property for public use for which just compensation must be paid includes not only real estate held in fee, but also easements, personal property and every valuable interest which can be enjoyed and recognized as property.

4. In a condemnation proceeding where the trial is had after the work is completed, it is proper to assess the damages on the basis of the facts existing at the time of trial.

5. A condemnation proceeding is a special proceeding to determine in a single proceeding the damages done by the taking.

6. After a judgment has been entered in a condemnation proceeding, it is conclusive as to all damages which were or might have been included in the award, and the owner cannot thereafter maintain an action for such damages, unless some items of damages have been removed from determination and reserved for future consideration, by agreement of the parties with the approval of the court.

Appeal from the District Court, Stephens County; Arthur J. Marmaduke, Trial Judge.

Action for damages for value of a broomcorn crop. From a judgment sustaining a plea of res judicata and estoppel the plaintiff appeals. Affirmed.

Brown & Brown, Duncan, for plaintiff in error.

Jerome Sullivan, Duncan, for defendant in error.

DAVISON, Chief Justice.

Jim C. Graham instituted this action January 9, 1957, against the City of Duncan to collect damages for the alleged destruction of a broomcorn crop of the value of $5,274.25. The parties will be referred to as Graham and City.

In his petition Graham alleged he had leased land in Stephens County, Oklahoma, from his father, the then owner of the land, for the year 1956 and had planted thereon 44 acres of broomcorn before the City condemned the land; that the appraisers (commissioners) in the condemnation proceeding did not include the broomcorn in their appraisement; that the crop was partly matured when the City unnecessarily cut the crop down and plowed up the land. He alleged the value of the crop so destroyed and prayed judgment in the above stated amount.

The City answered by general denial and also alleged the filing and completion of its condemnation proceeding in Cause No. 17222 and related the proceedings had therein (hereinafter described); and that the judgment therein constituted res judicata and estoppel by judgment as to the issue of Graham's broomcorn damage.

Graham's reply was that the question of broomcorn damage was withheld from the condemnation proceeding (No. 17222) and that res judicata and estoppel by judgment did not apply.

In the hearing on the question of res judicata and estoppel by judgment, the pleadings, instructions to the jury, journal entry and portions of the testimony in the condemnation proceeding were introduced in evidence. The court held the plea of res judicata and estoppel by judgment should be sustained and rendered judgment against Graham and in favor of the City. Graham has appealed to this court.

It appears from the record that on April 20, 1956, the City filed its petition in cause No. 17222 in the District Court against Graham and his wife and others to condemn the surface of certain lands, including the land leased to Graham, for a reservoir. Notice was served on Graham and other defendants, including the fee owner of the land. On the date set the City and the defendants appeared by their respective attorneys and commissioners were appointed. The commissioners filed their report. The commissioners made no mention of the lease or broomcorn crop.

Graham and his father and their respective spouses filed demand for jury trial. So far as the record reflects no answer was filed by Graham in the condemnation proceeding. On June 1, 1956, the City deposited with the court clerk the amounts set forth in the commissioners' report.

Thereafter and in July, 1956, the City cut and destroyed the broomcorn with a stalk cutter and plowed up the land. On October 27, 1956, Graham filed his claim with the City for damages for loss of the broomcorn.

The condemnation proceeding (No. 17222) came on for trial before a jury on October 29, 1956. On examination by attorneys of both sides Graham testified as to the 44 acres producing 'a ton to three acres' or around 12.6 tons of broomcorn of the not value of $425 per ton or $5,200 or $5,300. At this point counsel for Graham in effect announced a claim had been filed with the City for this and that it was not in the suit. The court thereupon advised the jury as follows:

'Let the jury disregard then any claim for broomcorn or damage to the tractor because that's in another matter between he and the City of Dumcan; it's not in this case at all.'

In the condemnation proceeding the court instructed that the City took possession June 1, 1956, and instructed as to recovery by Graham for his undivided interest in lands other than the broomcorn land and in addition as to damages suffered because of the City taking possession of lands upon which Graham had an agricultural lease, including the broomcorn land, for the year 1956. No mention was made in the instructions as to the broomcorn. The jury in addition to his other recovery returned a verdict for Graham on account of the agricultural lease for $1,700. Judgment was rendered thereon and title to the surface was decreed in the City. The journal entry contains no mention of the broomcorn or as to any reservation relative to any rights against the City on account of damages by reason of loss of the broomcorn.

Graham subsequently was paid from money deposited with the court clerk. No appeal was taken by either party.

The lower court in the present case, after consideration of the facts and circumstances related above, made findings of fact and conclusions of law. The court found that Graham had recovered his damages for his agricultural lease in the condemnation proceeding; that the subject matter of both the condemnation proceeding and the present action was the same; that the City injected the question of damages to the broomcorn into the condemnation proceeding and that Graham objected to any evidence thereon as improper because of a pending claim therefor with the City and that the court instructed the jury not to consider the same. The court further found that neither the City nor its attorneys adopted any procedure, nor by fraud or misrepresentation, prevented Graham from including his broomcorn damage in the condemnation proceeding. The court then sustained the plea of res judicata and estoppel by judgment.

Graham presents the single proposition that the lower court erred in sustaining the plea of res judicata and estoppel by judgment.

A determination of the correctness of the judgment of the lower court requires an examination of the purpose and nature of an eminent domain proceeding; the rights and burdens of the parties and the effect of the judgment upon the claims of the parties to the judgment.

The city filed and prosecuted the eminent domain proceeding pursuant to 11 O.S.1951 § 292 et seq., and Sec. 24, Art. 2, of the Oklahoma Constitution. Thereunder the exercise of the right of eminent domain is subject to the constitutional right of the owner of the property to just compensation. The procedure followed is prescribed by 66 O.S.1951 § 53 et seq.

A condemnation proceeding brought to obtain private property for public use is a special proceeding and not a civil action. Oklahoma Turnpike Authority v. Dye, 208 Okl. 396, 256 P.2d 438; McCrady v. Western Farmers Electric Cooperative, Okl., 323 P.2d 356. Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity, but are special statutory proceedings for the purpose of ascertaining the compensation to be paid for the property proposed to be appropriated, to be carried out in accordance with the methods prescribed by the legislature for the condemnation. Oklahoma City v. Wells, 185 Okl. 369, 91 P.2d 1077, 123 A.L.R. 662; Epperson v. Johnson, 190 Okl. 1, 119 P.2d 818.

Graham filed no answer in the condemnation proceeding but this was immaterial to his right and privilege to present to the court and jury at the trial all injuries and damages that he had suffered by reason of the appropriation of his property to public use. This court has held that Graham was not required to answer and plead the elements of his damage but that it rested in the discretion of the trial judge as to whether such pleading should be filed. City of Tulsa v. Creekmore, 167 Okl. 298, 29 P.2d 101; Incorporated Town of Pittsburg v. Cochrane, 200 Okl. 497, 197 P.2d 287, 291.

The term 'property' as used in our Constitution regarding the taking of private property for public use for which just compensation must be paid includes not only real estate held in fee, but also easements, personal property and every valuable interest which can be enjoyed and recognized as property. Southern Kansas Ry. Co. v. Oklahoma City, 12 Okl. 82, 69 P. 1050. It includes the crops of a tenant. Cities Service Gas Co. v. Williams, 200 Okl. 525, 198 P.2d 204. It follows that the taking and appropriation of the broomcorn crop of Graham in connection with the taking of the land for a public use was an element of injury or damage for...