Grand River Dam Authority v. Thompson

• Decision Date: 09 April 1940
• Docket Number: 29471.
• Citation: Grand River Dam Authority v. Thompson, 101 P.2d 843, 187 Okla. 129, 1940 OK 187 (Okla. 1940)
• Parties: GRAND RIVER DAM AUTHORITY v. THOMPSON et al.
• Court: Oklahoma Supreme Court

101 P.2d 843

187 Okla. 129, 1940 OK 187

GRAND RIVER DAM AUTHORITY v. THOMPSON et al.

No. 29471.

Supreme Court of Oklahoma

April 9, 1940

Rehearing Denied April 30, 1940.

Syllabus by the Court.

1. Where it is stipulated that a matter may be submitted to the jury in the alternative, and the jury returns an alternative verdict in accordance therewith, a party to the stipulation has waived the right to question such procedure upon appeal.

2. In a condemnation proceeding it is not error to refuse to admit a tax return in evidence to impeach the testimony of the landowner regarding the value of the land being condemned since the oath subscribed upon such return affects only the correctness of the property list, and is not a statement of the owner as to the value of such property.

Appeal from District Court, Ottawa County; Wm. M. Thomas, Judge.

Action by the Grand River Dam Authority against Earnest C. Thompson L. Blanche Thompson, and Russell Doss, County Treasurer of Ottawa County, to condemn certain realty owned by Earnest C Thompson and L. Blanche Thompson. From an adverse judgment the plaintiff appeals.

Judgment modified, and as modified, affirmed.

WELCH, V. C.J., dissenting.

R. L. Davidson, of Tulsa, Q. B. Boydstun, of Vinita, Gayle M. Pickens, of Miami, and W. F. Speakman, of Vinita, for plaintiff in error.

Frank Nesbitt and Nelle Nesbitt, both of Miami, for defendants in error.

OSBORN Justice.

This action was instituted in the District Court of Ottawa County by the Grand River Dam Authority, a public corporation, hereinafter referred to as plaintiff, against E. C. Thompson and L. Blanche Thompson, hereinafter referred to as defendants, wherein plaintiff sought to condemn certain real property owned by defendants. Russell Doss, County Treasurer of Ottawa County, was also made a party defendant on the ground that there were certain unpaid taxes upon the property. From a judgment predicated upon a jury verdict fixing the value of the property and the amount of damages sustained by defendants in the taking of the property, plaintiff has appealed.

Plaintiff alleges that it is a public corporation organized under the authority of certain acts of the Oklahoma Legislature and possesses the powers of government for the public benefit; that it is authorized and empowered to control, store and preserve the waters of the Grand River and its tributaries for any useful purpose; to develop, generate and sell electric energy and to acquire by condemnation all real property necessary for the exercise of the powers granted by law. It is further alleged that plaintiff is constructing a dam and hydro-electric power plant near Pensacola, in Mayes County, and that it is necessary to acquire fee simple title to all the lands in the basin or lake-bed area below the meander line running on the 750-foot contour level, and that such meander line has been established and surveyed by the engineers of the plaintiff. It appears that defendants are the owners of a 40-acre tract of land described as: "East Half of the West Half of the Northeast Quarter of Section 29, Township 27 North, Range 24 East." Plaintiff alleges that it is necessary to acquire 28.48 acres of land out of the 40-acre tract owned by defendants; that it has made diligent efforts to acquire title to said land by purchase but has been unable to do so. The prayer of the petition is that the court select commissioners as provided by law to find and determine the necessity for the condemnation of the tract of land and for authority to permit plaintiff to pay the amount of the award to the clerk of the court for the benefit of the owners and to take immediate possession of the lands and for all other and further relief to which it may be entitled.

Commissioners were appointed and appraised the amount of damages at the sum of $8,000 and plaintiff filed demand for jury trial. It appears that United States Highway No. 60 is adjacent to section 29, supra, on the North and on the East and is used by defendants as a principal means of ingress and egress to and from their property, to Miami and other points West, and to Wyandotte and other points So. During the course of the trial certain evidence was introduced with regard to the possibility that Highway No. 60 would be submerged by the waters of the lake thereby destroying such ingress and egress. It appears that some doubt arose as to whether or not such evidence was admissible. After the court had indicated that evidence of damage on this theory would be excluded and not submitted to the jury the parties entered into the following stipulation:

"By Mr. Davidson: In view of this situation, and the holding of the court, and without prejudicing the rights of either party to an appeal from any part of the judgment to the Supreme Court, it is agreed between the parties in this case that the two interrogatories may be submitted by the court to the jury, and that the Grand River Dam Authority be required to pay into court for the benefit of the land owners, or to them directly, the amount of damage fixed by the jury, in the event the road is left open, but the Authority will not be required to pay into court to obtain possession of the land, the difference if any, between the damage fixed in the event the road is left open and the damage fixed in the event the road is closed, so long as an appeal may be pending from the judgment in this case.

In (if) this case is not appealed, or the appeal abandoned the difference before referred to will be payable six months from the date of the judgment in this Court.

In case of an appeal and the judgment is affirmed the difference will be payable forthwith.

By Mr. Nesbitt: That is alright.

The Court: The stipulation will be approved by the Court, and the case will be further tried upon that theory."

Following this stipulation, the court instructed the jury in this connection as follows:

"No. 9. In this case the court is requesting that you find the damage which the defendants have sustained, under the instructions herein given you, upon the theory that State Highway Number 60, running east and west by the defendants' premises, will not be blocked or impaired by reason of the construction of the Grand River Dam Project, and in the verdict and interrogatories submitted to you, you will fix that amount

You are also, likewise, requested to find the damage which the defendants have sustained, under the rules given you in these instructions, in case said Highway Number 60 is closed to traffic by reason of said project. You will also fix that amount.

No. 10. In case Highway 60 is blocked or impaired, in considering the damage, if any, caused defendants thereby, you are instructed that the injury resulting from an obstruction in a public highway in front of an abutting owner's property, which interferes with his ingress and egress to and from his property, is a special injury to him, and although the obstruction be not in front of said property, if it be in such close proximity to said property upon said highway upon which said property abuts, so that the abutting owner's use and enjoyment of the property is destroyed or greatly interfered with and his said property value depreciated, this injury is special and peculiar to him, and such interference with ingress and egress may be considered by you in determining the amount of damages, if any, to the ten acres of the defendant's property not taken. (Excepted to by Plaintiff; Exception allowed: Wm. M. Thomas, Judge)"

Thereafter the jury returned a verdict which is as follows:

"We, the jury empaneled and sworn in the above entitled cause, do upon our oaths, find for the defendants, Earnest C Thompson and Blanche Thompson, and fix the amount of their recovery in the event U.S. Highway Number 60 is closed

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