Harn v. State ex rel. Williamson

Decision Date24 January 1939
Docket Number27848.
Citation87 P.2d 127,184 Okla. 306,1939 OK 40
PartiesHARN et al. v. STATE ex rel. WILLIAMSON, Atty. Gen.
CourtOklahoma Supreme Court

Rehearing Denied Feb. 14, 1939.

Syllabus by the Court.

1. The fundamental power to exercise the right of eminent domain lies dormant in the State until the Legislature by specific enactment designates the occasions, the modes, and the agencies by and through which it may be placed in operation.

2. Condemnation proceedings ordinarily do not transfer the fee simple estate in land to the condemnor in the absence of express statutory provision to that effect, but will only pass the right to use and occupy the premises for the purposes for which it was condemned, resulting in reverter to the private owner upon abandonment of the public use.

3. Whether or not condemnation proceedings instituted by the State will pass a greater interest in the realty than an easement depends primarily upon the ultimate purpose to be accomplished or occasions to be met as determined from the language employed by the Legislature in the particular Act authorizing the acquisition.

4. Where it appears from the language of a statute that the Legislature thereby intended to appropriate the fee simple title in realty for the use of the State, and that such title is reasonably requisite to the designated use, condemnation proceedings suitably prosecuted to that end will pass the fee simple title to the State.

5. The language of a statute whereby the executive officers are authorized to "acquire land" by purchase, or upon failure thereof to "acquire the land" by condemnation on behalf of the State, is susceptible of but the one interpretation as an unequivocal command to acquire the fee simple title therein, and where the proposed public use in such case is commensurate with permanent occupation condemnation proceedings properly instituted and concluded pursuant to such statute will serve to transfer the fee simple title.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action by the State of Oklahoma, on the relation of Mac Q Williamson, Attorney General, against W. F. Harn and Walter K. Jones, to quiet title to a tract of land which had been condemned by the State. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Rehearing denied; WELCH, V. C.J., and RILEY, J., dissenting.

Keaton Wells & Johnston, of Oklahoma City, for plaintiffs in error.

Mac Q. Williamson, Atty. Gen., Randell S. Cobb, Asst. Atty. Gen., and Houston E. Hill and Edward Howell, both of Oklahoma City, for defendant in error.

GIBSON Justice.

This action was instituted in the district court of Oklahoma county by defendant in error, the State of Oklahoma on relation of the Attorney General, against plaintiffs in error Harn and Jones to quiet title to a tract of land lying immediately south and west of the State Capitol square. The parties are hereinafter referred to as they appeared at the trial, or by individual designation.

In 1920 the State, pursuant to a special Act of the Legislature, chapter 298, S.L. 1919, 73 Okl.St.Ann. § 83 note, commenced a condemnation proceeding against defendant Harn seeking, as stated in the petition filed therein, "to appropriate the tract of land hereinabove described for its use for State Capitol Building purposes." Thereafter the commissioners duly appointed to consider the injury suffered by Harn by reason of such appropriation, filed their return and report assessing damages in the sum of $80,375. This sum was paid into the office of the court clerk, and soon thereafter was delivered by the clerk to Mr. Harn, and no further proceedings were had in said matter until some 16 years later, April 30, 1936, when the State procured an order in the cause approving the report of the commissioners above mentioned.

In the meantime Harn had executed to defendant Jones an oil and gas mining lease upon the premises in question, and thereafter the State commenced this action.

Plaintiff in the instant case bases its action upon the theory that the condemnation proceedings aforesaid passed to it an absolute estate in fee simple in the land, whereas, the defendants allege that the State became vested only with an easement entitling it to the use of so much of the land as was necessary for the purposes designated in the statute, and no more, and that the defendant Harn was not thereby divested of the fee, including the oil and gas rights in and under the premises.

The trial court rendered its decree cancelling Jones' oil and gas lease and quieting title in the plaintiff as against the defendants, and this appeal resulted.

Defendants assert that the trial court's judgment was erroneous in that the statute does not authorize condemnation of the fee, nor does the proceeding purport to so condemn.

The right of eminent domain is a fundamental attribute of the sovereign state, and may be exercised without express constitutional sanction. But the power to exercise such right lies dormant in the State until the Legislature by specific enactment designates the occasions, the modes, and the agencies by and through which it may be placed in operation. 20 C.J. 513, sec. 2. Statutory authorization is a prerequisite to condemnation proceedings, and generally such proceedings do not transfer the fee simple estate in the absence of express provision to that effect in the statute, but will only pass the right to use and occupy the premises for the purposes for which it was condemned. Carter v. Davis, 141 Okl. 172, 284 P. 3. There we stated the rule as follows: "As a general rule, the appropriation of land under power of eminent domain does not give a fee-simple title, in the absence of a statute to that effect, but only a right to use and occupy the land for the purpose for which it was taken."

Where private property is taken by eminent domain, it is to be presumed that merely an easement or, as some have said, a qualified or terminable fee, and not a fee simple estate, was acquired in the land, with reverter to the owner upon abandonment of the public use. Carter v. Davis, supra. And when the estate or interest to be taken is not definitely set forth in the statute, only such estate or interest may be taken as is necessary to answer the purpose in view. 20 C.J. 1222, 1223. And this rule applies both to the property and the extent of the interest or estate therein to be acquired by the public. 10 R.C.L. 88; Carroll v. Newark, 108 N.J. 540, 158 A. 458, 79 A.L.R. 515. Subsequent to such acquisition, the determination of character and extent of the use, and the estate taken, is wholly a judicial function. Sec. 24, Art. 2, Const., Okl.St.Ann.

Whether or not the condemnation proceedings in the instant case passed to the State more than an easement or a terminable fee, depends primarily upon the ultimate purpose to be accomplished or occasion to be met by the legislative agencies under the authority of the Act aforesaid. This is true in every condemnation case of this character.

The State relies to considerable degree upon our decision in Ramsey v. Leeper, 168 Okl. 43, 31 P.2d 852. There the court had under consideration certain condemnation proceedings whereby the city of Oklahoma City had appropriated certain land for waterworks purposes under authority delegated by section 4507, C.O.S.1921 (amended, ch. 11, S.L.1929, § 6350, O.S.1931), 11 Okl.Stat.Ann. § 563. The proceedings were sustained as passing to the city the fee simple title. The report of the commissioners was there submitted to the district court for its approval or rejection, and the judgment rendered thereupon purported to pass a fee simple title to the city. This judgment was attacked in a collateral proceeding seeking reverter of a portion of the land for non user. The statute, section 4507, though not specifically authorizing condemnation of the fee, was held sufficiently broad in its language to support the court's judgment as an adjudication that the fee simple title passed to the condemnor. In other words, the judgment was supported by the pleadings which included the statute upon which the petition was predicated.

Whether the condemnor be the State or a municipality, there is but one method of procedure prescribed for the condemnation of land in cases of this character, and that procedure is the same as the procedure provided by law for condemnation of land for railroad purposes. See secs. 6059, 6060, 6403, 6408 10051, O.S.1931, 11 Okl.Stat.Ann. §§ 305, 292, 665, 670, 27 Okl.Stat.Ann. § 5; sec. 11935, O.S.1931, 66 Okl.Stat.Ann. § 57. The Act here under consideration, Chapter 298, S.L.1919, also directs that the proceedings be conducted in the manner provided by law for the condemnation by railway companies of lands necessary to their use. That procedure is defined in sections 11931-11933, O.S.1931, 66 Okl.Stat.Ann. §§ 53-55. Under the latter sections no further proceedings are necessary beyond the report of the commissioners and payment of the condemnation money as therein fixed, unless a...

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