Jones v. Ransom

• Decision Date: 20 February 2008
• Docket Number: No. 103,835. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,103,835. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.
• Parties: Charles JONES and Jeannette Jones, husband and wife, Douglas Klintworth and Mary Ann Klintworth, husband and wife, Plaintiffs/Appellees, v. Edward M. RANSOM and Anna F. Ransom, husband and wife, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

184 P.3d 561

2008 OK CIV APP 44

Charles JONES and Jeannette Jones, husband and wife, Douglas Klintworth and Mary Ann Klintworth, husband and wife, Plaintiffs/Appellees, v. Edward M. RANSOM and Anna F. Ransom, husband and wife, Defendants/Appellants.

No. 103,835. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

February 20, 2008.

Certiorari Denied May 1, 2008.

Appeal from the District Court of Creek County, Oklahoma; Honorable Lawrence W. Parish, Trial Judge

AFFIRMED

W.C. Sellers, Jr., W.C. "Bill" Sellers, Inc., Sapulpa, OK, for Plaintiffs/Appellees.

David K. Wheeler, Butler & Wheeler, PLLC, Jenks, OK, for Defendants/Appellants.

JOHN F. FISCHER, Presiding Judge.

¶ 1 Edward M. and Anna F. Ransom appeal from the Trial Court's denial of their Objection to Amended Petition for Condemnation. Based on our review of the record on appeal and applicable law, we affirm.

BACKGROUND

¶ 2 The Klintworths and the Joneses filed their petition to condemn an access easement pursuant to 27 O.S.2001 § 6, alleging the easement was necessary to provide access to their property. The Ransoms objected and a hearing was held on August 7, 2006. The following evidence was presented at that hearing.

¶ 3 In 1959, the Army Corps of Engineers acquired property previously owned by Sam and Mary Boone for the construction of Lake Keystone. Not acquired was a three-acre tract owned by the Boones that abuts property now owned by the Ransoms.¹ Access to this three-acre tract was eliminated by the construction of the lake. The Klintworths purchased the tract from Mary Boone in 1986 and sold half to the Joneses. There was no access to a public road at the time they purchased the property.

¶ 4 The property surrounding this tract is owned by the Corp of Engineers, David and Janet Greenwood and the Ransoms. The Corp of Engineers has refused to grant an access easement to the tract across its property. The Greenwoods have also refused to grant an easement across their property because they have built a house on their property, utility lines are located where any easement would be located, and they consider an access easement a "hardship."

¶ 5 The Klintworths and the Joneses have tried to sell the property, but the only offer they have received is from the Ransoms in the amount of the price they paid for the property twenty years earlier. At the time this suit was filed, the Klintworths and the Joneses were negotiating with the Ransoms' predecessor in interest to purchase an easement. The Klintworths and the Joneses no longer intend to build houses on the property but intend to sell the property after acquiring the easement. The easement that the Klintworths and the Joneses seek across the Ransoms' property is the shortest and most direct route to a public road and would require the removal of the fewest trees.

¶ 6 At the conclusion of the hearing, the Trial Court found that the Klintworths and the Joneses "have no reasonable means of ingress or egress to and from their property and that they are entitled to a right-of-way by necessity." The Trial Court then ordered that the condemnation proceed pursuant to 27 O.S.2001 § 6. It is from this ruling that the Ransoms appeal.

APPELLATE JURISDICTION

¶ 7 Appellants assert that the Trial Court's order is appealable pursuant to 12 O.S.2001 § 953 and Watchorn Basin Ass'n v. Okla. Gas & Elec. Co., 1974 OK 27, 525 P.2d 1357. The question of this Court's jurisdiction is fundamental and may neither be waived by the parties nor overlooked by the court. Barrett v. Barrett, 1994 OK 92, ¶ 13, 878 P.2d 1051, 1054.

¶ 8 This Court has jurisdiction to decide only those appeals from a trial court's judgments, final orders and certain interlocutory orders. 12 O.S.2001 § 952; 20 O.S.2001 § 30.1. "A judgment is the final determination of the rights of the parties in an action." 12 O.S.2001 § 681. The order appealed in this case is not a judgment. Further, none of the parties has asked the Trial Court to certify its order for interlocutory appeal, see 12 O.S.2001 § 994, nor is it an interlocutory order appealable by right, see 12 O.S.2001 § 993.

¶ 9 A final order is defined as:

An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.

12 O.S.2001 § 953. Condemnation is a special proceeding. Town of Ames v. Wybrant, 1950 OK 197, ¶ 13, 220 P.2d 693, 695-96. Article 2, § 23 of the Oklahoma Constitution provides: "No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity ... in such manner as may be prescribed by law." Title 27 O.S.2001 § 6 prescribes the manner in which private property may be taken for a private way of necessity: "Any private person, firm or corporation shall have power to exercise the right of eminent domain in like manner as railroad companies for private ways of necessity."

¶ 10 The parties accurately describe in their appellate briefs the lack of extensive authority interpreting the private condemnation statute. Nonetheless, there is ample authority interpreting the manner in which railroad companies may condemn private property. See 66 O.S.2001 §§ 51-66.² Title 66 O.S.2001 § 56 provides for an appeal from the district court regarding decisions on objections to the report of the commissioners, and decisions interpreting that statute hold that a landowner is entitled to a judicial determination of the right to take prior to determination of the amount of just compensation. See Wybrant (holding that the right to appeal a trial court's taking decision provided in section 56 adequately protected the landowners' rights). See also Blankenship v. Bone, 1974 OK CIV APP 54, 530 P.2d 578 (involving a private condemnation proceeding pursuant to 27 O.S.2001 § 6, and holding that a landowner in a private condemnation proceeding waived the right to appeal the necessity of the taking by failing to raise that issue in his exception to the commissioners' report).

¶ 11 The Wybrant Court refused to issue a writ prohibiting the trial court from deferring its taking decision until the commissioners had filed their report. "[In the] ordinary course, such judicial determination is not proper until the matter of the condemnation is brought before the court by objection to the report of the Commissioners." Wybrant, 1950 OK 197 at ¶ 13, 220 P.2d at 696. Consequently, passing the issue "until the Commissioners had filed their report was consistent with orderly procedure and proper." Id.

¶ 12 In this case, however, the Trial Court's taking decision was made prior to the appointment of commissioners. We do not read Wybrant as foreclosing all other procedural methods for obtaining appellate review of the right to take property by eminent domain. In fact, Wybrant expressly recognized that judicial determination of the taking decision might be appropriate prior to consideration of exceptions to the commissioners' report.

[W]e deem it well to say that the District Court after objection to the Commissioners' report or the trial judge prior thereto in a proper case and upon proper application and showing in connection with preliminary steps in condemnation could make an order temporarily restraining the condemnor from taking possession of the land pending final determination of the right to condemn.

Id. at ¶ 16, 220 P.2d at 696.

¶ 13 In deciding whether the Ransoms must wait to appeal until commissioners have been appointed and filed their report, we first note that the necessity of the taking requires a judicial determination beyond the scope of the matters the commissioners are authorized to determine. See 66 O.S.2001 § 53(C) (commissioners "shall inspect said real property and consider the injury which said owner may sustain by reason of the condemnation and they shall assess the just compensation to which said owner is entitled"); Pub. Serv. Co. of Okla. v. B. Willis, C.P.A., Inc., 1997 OK 78, ¶ 19, 941 P.2d 995, 1000 ("the issue of whether a proposed taking is [necessary] is a judicial question"). Second, an early determination of the taking issue has particular merit in the private condemnation context where the right to condemn depends on private rather than public necessity, and the time and expense associated with the commissioners' report may be avoided when that necessity is found lacking.

¶ 14 Although a private condemnation proceeding pursuant to 27 O.S.2001 § 6 will ultimately require the appointment of commissioners to determine the just compensation due for the property taken, we do not find that a trial court is required to wait until the commissioners' report is filed to determine whether the taking is necessary. When that taking decision is rendered, the aggrieved party is permitted by 66 O.S.2001 § 56 to appeal. We find that the Trial Court's order of September 7, 2006, is an appealable order over which this Court has jurisdiction.

STANDARD OF REVIEW

¶ 15 Again following the cases interpreting the railroad condemnation statutes, we determine that the necessity of the taking is a question of fact and that the "findings of the trial court on the issue of necessity of the taking will not be disturbed on appeal where there is evidence to support such findings." B. Willis, C.P.A., 1997 OK 78 at ¶ 18, 941 P.2d at 1000.

DISCUSSION

¶ 16 The procedural issue raised by the parties concerns the standard of proof required to show that a taking for a private way of necessity is justified. The Ransoms, citing Smith v. Bovaird Supply Co., 1980 OK 129, 616 P.2d 1157, argue for a higher level of proof and urge this Court to...