Kelly v. Oklahoma Turnpike Authority, 35772

• Decision Date: 13 April 1954
• Docket Number: No. 35772,35772
• Citation: 269 P.2d 359,1954 OK 112
• Parties: KELLY et al. v. OKLAHOMA TURNPIKE AUTHORITY.
• Court: Oklahoma Supreme Court

Page 359

269 P.2d 359

1954 OK 112

KELLY et al. v. OKLAHOMA TURNPIKE AUTHORITY.

No. 35772.

Supreme Court of Oklahoma.

April 13, 1954.

Syllabus by the Court.

1. The poundage fee charged by court clerks (12 O.S.1951 § 921; 28 O.S.1951 § 31) for receiving and paying out money deposited by the condemnor to satisfy the commissioners' award as a prerequisite to taking possession of property in exercise of the right of eminent domain, is a part of the costs of the first assessment within the meaning of statutes (66 O.S.1951 §§ 53-64, incl.) requiring that the condemnor 'shall in all cases pay the costs and expenses of the first assessment.'

2. Where the condemnor paid the amount of the commissioners' award into court and same was withdrawn by condemnees, and the amount finally awarded was much less than the amount of the deposit, and judgment was entered against condemnees for balance above such award, the condemnor had no right to interest on the difference of such amounts, and the trial court erred in rendering judgment against condemnees for interest from date of withdrawal of the commissioners' award.

3. A cause will not be reversed for error in the rejection of evidence where it does not appear to the court after an examination of the record that the error complained of has probably resulted in a miscarriage of justice.

Loeffler & Loeffler, Bristow, for plaintiffs in error.

Robinson, Shipp, Robertson & Barnes, Oklahoma City, for defendant in error.

CORN, Justice.

Plaintiff brought three separate condemnation suits seeking to condemn two 17-acre tracts of defendants' property, and to acquire a temporary easement to an additional 1.84 acres. The land sought to be condemned was approximately in the middle of a ranch operated by defendant Kelly Brothers, and consisted both of leased land and land owned in fee.

The trial court appointed condemnation commissioners who returned their report awarding defendants damages for condemnation of the three tracts in the total sum of $53,870. December 19, 1951, plaintiff deposited the exact amount of the awards with the court clerk and thereafter took possession of the property. On December 22, 1951, plaintiff filed demand for jury trial and defendants then secured disbursement orders for the condemnation money, and upon such orders the court clerk paid over the condemnation money, less 1% poundage fee. Subsequently defendants filed motion to retax the costs and, following a hearing on February 18, 1952, the plaintiff, on March 3, 1952, deposited a sum ($498.53) equal to the poundage fee on the amount of damages ($49,853) awarded in one case.

March 25, 1952, defendants filed motions to strike plaintiff's demand for jury trial, and to strike the cases from trial assignment, upon the ground plaintiff had waived any right to jury trial by failing to deposit the poundage fee within the time allowed for making demand for jury trial. The motion to strike plaintiff's demand was overruled on April 3, 1952, and the same day plaintiff deposited the amount of poundage fee in the other two cases.

The case was heard April 24, 1952, at which time defendants renewed their motion to strike the demand for jury trial, and also sought judgment on the pleadings. The motions were overruled and by stipulation the three cases were tried as one case, and are so presented on appeal. The jury returned a verdict fixing the amount of defendants' damages at $5,000. The trial court then entered judgment for plaintiffs for $48,870, the amount of the difference between the commissioners' award and the damages allowed by the jury.

May 26, 1952, a hearing was had on the Journal Entry drafted by plaintiff. Defendants objected to that portion of the judgment charging them with the 1% poundage fee as costs, and also the charging of interest against defendants from the time the condemnation money was drawn down until the date of judgment. Defendants were overruled on both grounds and judgment was rendered for plaintiff in sum of $48,870 with interest from December 31, 1951, until paid, together with all costs accrued or accruing subsequent to the date of first appraisal.

The various assignments of error relied upon for reversal of this judgment are presented under five main propositions. These propositions provide the basis for a dissertative treatment of various matters concerning the condemnation proceedings considered herein but do not, in our opinion, present questions which are necessary to a proper determination of this appeal. For such reason we deem it unnecessary to deal with certain of these propositions at any greater length than hereafter noted.

The first two propositions are founded upon plaintiff's failure to pay into the registry of the court, following the commissioners' assessment of compensation for the taking of the particular property, an amount equal to such award plus the poundage fee. The argument is that plaintiff's failure to discharge such obligation before entering upon the property constituted a violation of defendants' constitutional right and: (a) made the commissioners' award a final judgment; (b) invalidated plaintiff's right to prosecute any further proceedings relative to such condemnation, so that it was error for the trial court to overrule defendants' motion to strike plaintiff's demand for jury trial following the commissioners' assessment of compensation due for taking of the property.

The circumstances reflected by this record reveal that, at best, such argument presents only academic legal questions. It is true that the Constitution, Art. 2, Sec. 24, requires the condemnor to pay the amount of compensation for the taking, as fixed by the commissioners, either to the land owner, or into court. Plaintiff did deposit the amount of the commissioners' award, and the money was disbursed to defendants upon their application. No question was raised relative to the alleged insufficiency of the amount deposited until after the awards had been disbursed and plaintiff had entered upon the property. Under such circumstances the condemnation had become an accomplished fact. Admitting that plaintiff failed to proceed properly, and that such failure was violative of defendants' rights under practices which are not subject to approval, the fact remains that the matter had progressed sufficiently so that no substantial question remained for consideration other than to finally determine the amount due defendants as compensation for the property condemned.

Neither are we impressed by the argument that an asserted violation of defendants' constitutional rights destroyed plaintiff's right to prosecute further proceedings for determination of the sufficiency of the condemnation award. We are cited to no rule of law based upon the premise that a course of conduct which might even be considered reprehensible, serves to preclude assertion of a right to have a claim adjudicated to finality. That this is true must be recognized in view of the frequently applied rule of reverse condemnation. This, in substance, was the principle applied in Blackwell, E. & S. W. Ry. Co. v. Bebout, 19 Okl. 63, 91 P. 877-880, wherein the following language was used:

'If the Blackwell, Enid & Southwestern Railway Company went upon the land of Bebout and attempted to appropriate any portion of it for railway purposes, he had the right to require them to stop work until the damages could be ascertained and deposited with the clerk of the court. If he failed to require this to be done, and stood by until the work was completed, he gained no greater rights than he had before, and the railway company got no better rights by his silence. The failure to have the damages determined in advance did not change the rights or relations of the parties. The provisions of the statute were still adequate for the determination of the rights of both parties and for the enforcement of such rights when determined.'

Defendants' fifth contention presents matters of such substance as to require attention at this point. The first subdivision of this proposition squarely presents for consideration the question whether the statutory 1% poundage fee charged by the court clerk, 12 O.S.1951 § 921, 28 O.S.1951 Sec. 31 upon defendants' withdrawal of the commissioners' award constitutes a part of the costs of the first assessment required to be paid by the condemnor under 66 O.S.1951 § 56.

Our closest approach to consideration of this question may be observed in Grand River Dam Authority v. Grand-Hydro, 188 Okl. 506, 111 P.2d 488. In that case Grand River Dam Authority sought mandamus to compel a court clerk to accept the amount of commissioners' awards in certain condemnation proceedings without payment of an additional amount as costs, wherein was included the clerk's poundage fee. Although we affirmed the judgment denying the writ and requiring the condemnor to pay the costs, which sum included the poundage fee, certain language used in the body of the opinion and not necessary to disposition of the case now is pointed to by plaintiff as holding that the poundage fee is not part of the costs and expenses of the first assessment.

Our Constitution, Art. 2, Sec. 24, provides:

'Private property shall not be taken or damaged for public use without just compensation. Such compensation, irrespective of any benefit from any improvements proposed, shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not...