Incorporated Town of Pittsburg v. Cochrane
| Decision Date | 18 May 1948 |
| Docket Number | 33034. |
| Parties | INCORPORATED TOWN OF PITTSBURG v. COCHRANE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 14, 1948.
Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
Action by E. J. Cochrane against the Incorporated Town of Pittsburg in reverse condemnation to recover compensation and damages for the taking by defendant of a water works system. From an adverse judgment, defendant appeals.
Reversed and remanded with directions.
Syllabus by the Court.
1. When the owner takes the initiative and institutes proceedings under the statute for assessment of damages for the taking of his property for public use, he must prove his title, unless it is admitted, as that lies at the foundation of the suit or proceedings.
2. In a proceeding in reverse condemnation a judgment taken by the plaintiff against persons alleged to be former owners of the property, in an action to which the defendant was not a party, does not preclude the defendant from attacking plaintiff's title, or from showing that the defendants in such former action were not the owners of the property.
3. The only pleadings required by our statutes providing the procedure in condemnation proceedings, 66 O.S. 1941 §§ 51 to 63 inclusive, are the petition or application of the owner and exceptions to the report of the appraisers by either party. Whether or not other or further pleadings may be filed rests in the discretion of the trial court.
4. Election of remedies is predicated on the existence of a state of facts giving the party an option to do either one thing or another. If there is only one remedy and not a choice between two or more, the doctrine of election does not apply.
5. By 11 O.S. 1941 § 292, cities and towns may, by condemnation proceedings, acquire the fee simple title to lands necessary for the construction or operation of water works.
Guy L Andrews, of McAlester, for plaintiff in error.
Suits & Fellers, Fred E. Suits and James D. Fellers, all of Oklahoma City, for defendant in error.
This is an action in reverse condemnation brought by plaintiff E. J Cochrane, against the town of Pittsburg, a municipal corporation, to recover compensation and damages for the taking by defendant of a water works system supplying water to the town.
Plaintiff's petition describes the property as consisting of a sixty acre lake or water reservoir located upon approximately 240 acres of land, specifically described, 13,500 feet of six inch cast iron water pipe, and various other water pipes, including laterals, conveying the water to the town and distributing it to the inhabitants. It alleges that plaintiff is the fee simple owner of said property; that the defendant, although having the right to condemn said property under its power of eminent domain, took possession of the property on or about January 16, 1942, wrongfully and unlawfully, for the purpose of appropriating the fee simple title thereto, and now holds possession thereof without resorting to condemnation proceedings to acquire the title as provided by law. It prays that the Judge of the District Court appoint three commissioners in condemnation to view the property and ascertain the compensation and damages due plaintiff for the taking thereof by defendant.
Defendant filed a response to said petition in which it is specifically denied that plaintiff is the owner in fee simple or otherwise of the property described in his petition, or that he ever had any interest of any kind in the water works system; admits that defendant has taken possession of the property and has enjoined plaintiff from interfering with its operation of the water works, and admits that it has not compensated plaintiff for said property for the reason that he has no right, title, interest or estate in said property, and prays that the court adjudge that plaintiff has no right, title or interest in the property or any claim against defendant. This response was filed December 26, 1945.
On January 8, 1946, the District Judge appointed three commissioners to determine and report the value of the property and the damages which plaintiff would sustain by the taking thereof. On April 17, 1946, the commissioners filed their report fixing the value of the property at the sum of $12,500 as the damages which the owner of the property sustained by the appropriation thereof by the town of Pittsburg.
Thereafter the town filed exceptions to the report, alleging among other objections that the trial court erred in refusing to permit it to prove that the plaintiff had no title or interest in the water works system; denied plaintiff's ownership in the property; alleged that by condemnation the town would not obtain a fee simple title but would obtain only an easement entitling it to use the system, and that the value placed upon the property by the commissioners was not a value based upon the earning capacity of the system as a going concern, but was fixed upon a basis of the physical value of the property without regard to its use as a water works system. Defendant also filed a written request for a trial by a jury upon the value involved if its objections to the appraisement were overruled. The trial court, after a hearing upon the objections, overruled and denied the same. The court did not pass upon the sufficiency of plaintiff's title, and overruled defendant's request for findings of fact and conclusions of law. Defendant filed a motion for new trial, which was overruled, and defendant appeals.
Defendant contends that the trial court erred in refusing to permit it to introduce evidence showing that plaintiff had no title to the property involved. On angle of the litigation between the parties was appealed to this court, and in the decision in that case, Incorporated Town of Pittsburg v. Cochrane, 195 Okl. 593, 159 P.2d 534, we held that upon the expiration of the corporate life of Pittsburg Water & Light Company, and the termination of its franchise, its property did not pass to the town, but that the town was entitled to possession of the property because of the right of eminent domain, the property being necessary for public use and welfare, and we upheld an injunction restraining plaintiff in the instant case from interfering with such possession. After that decision became final the town took no steps to condemn the property, and thereupon plaintiff brought this action.
In his petition plaintiff alleged that he is the fee simple owner of the property, and in support of this allegation introduced in evidence the original tax deed whereby the property was sold for corporate taxes, and conveyances thereof from the purchaser to himself. He also introduced in evidence a judgment against the Pittsburg Water & Light Company, a corporation, or if dissolved, its successors, trustees and assigns, as well as its stockholders and directors. This judgment was rendered January 10, 1942. The town was not made a party to that action. From the evidence in the instant case it appears that the town took possession of the property shortly thereafter.
We think the contention of defendant, as above stated, must be sustained. Our Constitution, art. 2, sections 23 and 24, and statutes, 66 O.S. 1941 §§ 51 to 63 inclusive, provide that compensation for property taken for public use shall be paid to the owner or owners thereof as their interests appear. In an action in reverse condemnation, where one claiming to be the owner seeks to recover damages from a municipality for the taking of his property, his ownership or interest in the property must necessarily be established in order to enable him to recover.
In Lewis on Eminent Domain, 3d Ed. Vol. 2, section 659, the author says: ...
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