Hedrick v. Padon

• Decision Date: 16 September 1958
• Docket Number: No. 37568,37568
• Citation: Hedrick v. Padon, 333 P.2d 552 (Okla. 1958)
• Parties: Carl O. HEDRICK and Corine May Hedrick, Plaintiffs in Error, v. J. A. PADON, Don M. Mattocks and A. J. Murphy, as Trustees of Warren Employee Pension Trust, Defendants in Error. Carl O. HEDRICK and Corine May Hedrick, Plaintiffs in Error, v. CITY OF TULSA, et al., Defendants in Error, J. A. Padon, Don M. Mattocks and A. J. Murphy, as Trustees of Warren Employee Pension Trust, Intervenors. CITY OF TULSA, Oklahoma, Plaintiffs in Error, v. Carl O. HEDRICK and Corine May Hedrick, et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 552

333 P.2d 552

1958 OK 203

Carl O. HEDRICK and Corine May Hedrick, Plaintiffs in Error, v. J. A. PADON, Don M. Mattocks and A. J. Murphy, as Trustees

of Warren Employee Pension Trust, Defendants in Error.

Carl O. HEDRICK and Corine May Hedrick, Plaintiffs in Error, v. CITY OF TULSA, et al., Defendants in Error, J. A. Padon, Don M. Mattocks and A. J. Murphy, as Trustees

of Warren Employee Pension Trust, Intervenors.

CITY OF TULSA, Oklahoma, Plaintiffs in Error, v. Carl O. HEDRICK and Corine May Hedrick, et al., Defendants in Error.

No. 37568.

Supreme Court of Oklahoma.

Sept. 16, 1958.

As Amended Sept. 30, 1958.

Rehearings Denied Dec. 16, 1958.

Applications for Leave to File Second Petition for Rehearing

Denied Jan. 6, 1959.

Syllabus by the Court

1. A city council or board of commissioners has no authority under the provisions of 11 O.S.1951 secs. 643 and 659 to vacate a public alley in said city for the benefit of a private individual.

2. The owner of a city lot abutting on a public alley who suffers special damage from its blockading by another adjoining owner is entitled to injunctive relief against the invasion of his rights.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Suit brought by plaintiffs, Carl O. Hedrick and Corine May Hedrick to enjoin defendants, J. A. Padon, Don M. Mattocks and A. J. Murphy, trustees of Warren Employee Pension Trust, from obstructing an alley in Tulsa consolidated with suit by same plaintiffs to enjoin the defendants, city of Tulsa, L. C. Clark, Mayor, and John P. Thomas, John W. Henderson, Sid Peterson and C. B. Clothier, City Commissioners, and Elizabeth Stowell Anderson, City Auditor, from enacting any ordinance vacating said alley, both cases being consolidated with action by plaintiff, city of Tulsa, against Hedricks and L. M. Laravea and Isabel Laravea, defendants, in nature of condemnation to determine damages resulting from vacation of the alley. The Hedricks appeal from an adverse judgment in all three cases. Reversed and remanded with directions.

Samuel A. Boorstin, Tulsa, for plaintiffs in error.

Darven L. Brown, City Atty., Tulsa, for the City of Tulsa.

Harry M. Crowe, Jr., Tulsa, Warren M. Sparks, O. Gordon Oldham, T. M. Anderson, Tulsa, for trustees.

DAVISON, Justice.

This appeal was taken from a judgment rendered upon the trial of three cases which had theretofore been consolidated. In the first one, the plaintiffs, Carl O. Hedrick and Corine May Hedrick, sought to enjoin the defendants, J. A. Padon, Don M. Mattocks and A. J. Murphy as Trustees of Warren Employee Pension Trust, from blocking or obstructing a part of a certain alley in the City of Tulsa, Oklahoma. In the next one, the same plaintiffs sought to enjoin the defendants, The City of Tulsa, John P. Thomas, John W. Henderson, Sid Peterson and C. B. Clothier as Commissioners of the City of Tulsa, L. C. Clark, as Mayor of the City of Tulsa, and Elizabeth Stowell Anderson, as city auditor, from enacting any ordinance vacating that part of the alley involved in the former action. The other case was in the nature of condemnation brought by the City of Tulsa, as plaintiff, against Carl O. Hedrick, Corine Hedrick, L. M. Laravea and Isabel Laravea for determination of the damage which would result from the vacation of the affected portion of the alley. The Hedricks will be referred to as plaintiffs, the Trustees, as defendants and the City of Tulsa as 'City.'

The alley runs north and south through the center of the block, separating it into the east half and the west half. The defendants owned the south 120 feet of each half and between them was the 16 foot alley in question. The defendants had contracted for, and had begun construction of a ten story office building on their east tract and a cafeteria on their west tract with a connecting structure in the alley between the two buildings.

The plaintiffs owned the lot immediately north of, and adjacent to the west tract or 'cafeteria' site. The lot faced west and ran back east to the alley. On the front was a large frame residential building. At the back, on the alley, was a frame garage apartment building with access thereto through the alley here involved.

On October 11, 1955, the defendants wrote the following letter to the mayor and city commissioners of said city:

'Gentlemen:

'We attach hereto as Exhibit, 'A' a plat showing Block 6, Friend Addition, and Block 4, Horner Addition to the City of Tulsa, constituting the block lying between 13th and 14th, streets and between Cheyenne and Boulder Avenues in the City of Tulsa. J. A. Padon, A. J. Murphy and Don M. Mattocks, as Trustees of the Warren Employee Pension Trust, are the owners of Lots 2, 3, 5, and 5 in Block 6 of the Friend Addition, and Lots 4, 5 and 6 in Block 4, of Horner Addition as outlined on the plat, and plan to construct a substantial office building on Lots 5 and 6, Block 6 of Friend Addition, and Lots 5 and 6 Block 4 of Horner addition. For this Purpose, said Trustees do hereby apply for an order vacating that portion of the 16 foot alleyway lying between the lots on which it is proposed to construct said building, this portion of the 16 foot alleyway lying between the lots on which it is proposed to construct said building, this portion of the alley having a length North and South of 120 feet and being shown in red on the attached plat. It is understood that for utility purposes the City will need an accessway from the alley which would permit vehicles to turn out of the alley. The Trustees, therefore, offer to grant to the City an easement 10 feet in width off the entire South side of lot 3 of Friend Addition with the stipulation that such time as the entire alley may become vacated, such easement granted by said Trustees shall cease to exist.

'As construction plans cannot be completed until Your Honors have acted on this application, your early attention hereto will be appreciated.'

Pursuant to, and in compliance with, the above quoted application, the Mayor and board of Commissioners adopted a resolution on the 20th day of December, 1955, vacating that part of the alley in said block which separated the two tracts of land owned by the defendants. The resolution also directed the city attorney to bring such condemnation action as was required by 11 O.S.1951 sec. 659. These developments culminated in the actions which gave rise to this appeal. The judgments of the trial court were generally for the defendants. The plaintiffs appealed, founding their assertion of error upon four grounds or propositions. The first is that it was error to allow the parties we have denominated 'defendants' to intervene in the action against the 'city'. The next is that it was error to consolidate the several actions. The other two alleged errors go to the substance of the litigation rather than to the method of procedure. One is that a municipality may not vacate a street or alley for a purely private purpose. The other is that the vacation of a public street or alley does not destroy the private easement which abutting property owners acquired in the street or alley by dedication and user.

We need not consider the procedural questions because the substantive ones are dispositive of the issues. The alley vacation proceedings were commenced by the filing, by defendants, of the above quoted letter or application. No conclusion can be reached therefrom other than that the vacation of the alley was sought for purely private purposes. The resolution of the city commissioners, which was passed pursuant thereto, discloses no public purpose that would be accomplished. The testimony in the record herein does not establish any public necessity or expediency warranting the closing of the alley.

In the case of Mitchener v. City Com'rs of City of Okmulgee, 100 Okl. 98, 228 P. 159, 164, it was, in effect held that a city has no authority to vacate a public street for a private purpose. It was therein said that,

'Section 573, Rev.L.1910 (act 1890), confers upon city authorities the power to 'open, straighten, widen or extend streets,' etc., and section 588, R.L.1910 (act 1890) confers upon them the power to 'vacate or discontinue any street, whenever necessary or expedient,' it therefore necessarily follows, that when the act of attempted vacation is attacked the necessity or expediency of the act must be made manifest, and in the absence thereof the city authorities are without power to vacate the street.'

This court then quoted and adopted the following pronouncement from the case of Smith v. McDowell ex rel. Hail, 148 Ill. 51, 35 N.E. 141, 22 L.R.A. 393, to-wit:

'In this case there is no pretense that the public interest required the vacation of any part of the street, or that any public interest, local or general, would be subserved by the proposed vacation. The ordinance professedly and in terms, proposed to destroy the public right and use, for the sole purpose of enabling a private person to occupy a portion of the street with a permanent structure, appurtenant to his building abutting upon the street. This the municipal authorities are not empowered to do, and their action was ultra vires and void.' To the same effect is the case of City of Stillwater v. Lovell, 159 Okl. 214, 15 P.2d 12.

The resolution and the evidence in the record herein are insufficient to meet the test of making the public necessity and expediency of the act manifest.

By reason of the location of their lot with reference to the involved part of the alley, the plaintiff had an interest in the alley, not only as a public way, but also as a right 'peculiar to itself, in which the general public has no interest, and (which) exist in the nature of an incorporeal hereditament attached to said lots, and (which) is a valuable property right'. Siegenthaler v. Newton, 174 Okl. 216, 50 P.2d 192, 199.

In the instant case, the defendants were not authorized to exercise the right of eminent domain...