Graham v. City of Tulsa

• Decision Date: 30 June 1953
• Docket Number: No. 35883,35883
• Citation: Graham v. City of Tulsa, 261 P.2d 893 (Okla. 1953)
• Parties: GRAHAM v. CITY OF TULSA.
• Court: Oklahoma Supreme Court

Page 893

261 P.2d 893

1953 OK 204

GRAHAM v. CITY OF TULSA.

No. 35883.

Supreme Court of Oklahoma.

June 30, 1953.

Rehearing Denied Oct. 13, 1953.

Syllabus by the Court.

1. When a City desires to extend a dead-end street through the next city block, as a general rule the exact routing of the street through such block is within the sound discretion of the proper city officials, and the courts will not interfere, in the absence of fraud, oppression or some definite abuse of discretion in the routing made.

2. In such case when an affected property owner, by protest and exceptions to the condemnation Commissioners' report, alleges that the street routing adopted by the city, taking a portion of protestant's property in condemnation, is fraudulent and oppressive as to property owner, and amounts to an abuse of discretion on the part of the city, but property owner's evidence fails to sustain either of such allegations, the finding and judgment of the trial court to that effect will not be disturbed on appeal.

3. When a public street to be opened through a block is so routed as to require the taking of more footage from a property owner on one side of the street and less footage from the property owner on the other side of the proposed street, that fact does not invalidate the street routing, if under the existing circumstances the routing adopted by the city is fairly in the interest of the public in the sound discretion of the city officials. And that fact as to variation in the footage taken on either side of the street does not, of itself, indicate that there is any taking for a private interest, as distinguished from the taking for a public interest, where the street routing is fairly in the interest of the public in the sound discretion of the city officials.

4. Issues raised on protest or exception to Commissioners' report in condemnation of private property for a public city street are triable by the court and there exists no right of jury trial. This does not affect the statutory right to a jury trial as to amount of damages to be awarded in condemnation.

Chas. D. Scales, Oklahoma City, for plaintiff in error.

A. M. Widdows, Philip F. Hendricks, Tulsa, for defendant in error.

WELCH, Justice.

The street involved is Utica Avenue in Tulsa, extended north one block from 12th Street to 11th Street, taking 60 feet off the west end of the Graham lot and other lots similarly situated between 11th and 12th Streets, on the east side of the proposed new street.

Plaintiff in error Graham urges error in denying her protest and exceptions to the Commissioners' report in five propositions for reversal.

In the first proposition it is contended in effect that there is wrongful and unlawful discrimination in that City takes 60 feet off the Graham lot and only 20 feet off the property owned and occupied by the Hillcrest Memorial Hospital immediately across on the west side of the proposed new block-long street extension.

The evidence justifies the taking of only 20 feet off the hospital premises on account of the building, and the occupancy, and the building and occupancy program, of the hospital, which is a large and important hospital of the City of Tulsa. The trial court fully approved the official conclusion and determination of the City in that regard. There is nothing to...