Mattoon v. City of Norman

• Decision Date: 23 September 1980
• Docket Number: No. 52616,52616
• Citation: 1980 OK 137,617 P.2d 1347
• Parties: William H. MATTOON, for himself and all other persons of the class who are similarly situated, Appellant, v. The CITY OF NORMAN, Oklahoma, a Municipal Corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 1347

617 P.2d 1347

1980 OK 137

William H. MATTOON, for himself and all other persons of the class who are similarly situated, Appellant, v. The CITY OF NORMAN, Oklahoma, a Municipal Corporation, Appellee.

No. 52616.

Supreme Court of Oklahoma.

Sept. 23, 1980.

An appeal from the District Court, Cleveland County; Alma Wilson, judge.

Plaintiff below appeals from sustention of demurrer to petition and judgment dismissing third amended petition. Petition, brought as class action, sought damages in inverse condemnation as alleged result of City's failure to properly keep storm drainage channels clean and in proper state of repair and subsequent enactment of Flood Plain Ordinance.

JUDGMENT OF TRIAL COURT REVERSED AND REMANDED WITH DIRECTIONS TO REINSTATE PLAINTIFF'S THIRD AMENDED PETITION.

Fielding Haas, Norman, for appellant.

Douglas J. Juergens, Norman, for appellee.

SIMMS, Justice:

Plaintiff commenced this class action in the trial court in the nature of inverse condemnation against the City of Norman, claiming that the defendant's adoption of a flood plain ordinance (Ordinance) operated to take plaintiff's property without due process of law.

Plaintiff owns land along a drainage channel affected by the Ordinance. He brings suit in behalf of himself and all landowners in Norman similarly situated (approximately 500).

The Ordinance (No. 0-7475-48 July 8, 1975) prohibits all but certain limited uses on lands along certain tributaries determined to be with a Flood Hazard District.

Plaintiff's third amended petition alleged, inter alia, that by defendant's diversion of waters into certain tributaries, along with its neglect and refusal to adequately maintain these drainage channels, the defendant has caused these channels to flood the lands of the class plaintiffs; that because of defendant's failure to adequately maintain its drainage channels, it enacted the Flood Plain Ordinance to enable its citizens to purchase flood hazard insurance; that the effect of the Ordinance constituted a governmental taking of the lands affected by reserving those lands for drainage purposes; that had the defendant properly maintained its drainage channels, there would be no need to reserve these lands for flood drainage purposes; and that all of this amounts to the taking of the beneficial use of the affected lands without just compensation.

The trial court found that the Ordinance was a valid exercise of defendant's police power, and as such, does not constitute a taking of private property requiring compensation. The trial court therefore sustained defendant's demurrer to the petition.

Article II, Section 24, of the Oklahoma Constitution provides in part:

" * * * Private property shall not be taken or damaged for public use without just compensation."

The defendant claims that the Ordinance is a valid exercise of its police power through zoning and cannot constitute a governmental "taking" of property. This is not the test in Oklahoma. We have never held that a finding that the exercise of police power is valid absolutely precludes compensation for property taken or damaged by such exercise. In City of Sand Springs v. Colliver, Okl., 434 P.2d 186 (1967) overruled on other grounds in O'Rourke v. City of Tulsa, Okl., 457 P.2d 782 (1969), we said:

"It is a universal principle that wherever an individual's right of ownership of property is recognized in a free government, other rights become worthless if the government possesses uncontrollable power over the property of the individual. The constitutional guaranty of the right to own and use property is unquestioned. Thus the claim that particular action is taken under the police power cannot justify disregard of constitutional inhibitions."

We have held that although a city may regulate the right of ingress and egress in the lawful exercise of police power, that such exercise, even if reasonable, may require compensation if it acts to absolutely deny ingress or egress to the complaining landowner. Brewer v. City of Norman, Okl., 527 P.2d 1134 (1974).

In Frost v. Ponca City, Okl., 541 P.2d 1321 (1975), we expressly found the exercise of the police power to be a valid one. The City was still required, however, to compensate landowners for hydrocarbons taken and sold as a result of that exercise.

We have held that acts done in the proper exercise of the police power which merely impair the use of the property do not constitute a "taking". Suntide Inn Operating Corporation v. State, ex rel, Oklahoma State Highway Commission, Okl., 571 P.2d 1207 (1977). The test is not the propriety of the exercise, but is a question of impairment, a fact question that cannot be decided on a demurrer.

In Oklahoma, we have held that the test of whether there can be recovery in inverse condemnation is whether there is a sufficient interference with the landowner's use and enjoyment to constitute a taking. The question of substantial interference is one that the trier of facts must decide. Henthorn v. Oklahoma City, Okl., 453 P.2d 1013 (1969).

If there is an overt act by the governmental agency resulting in an assertion of dominion and control over property, there can be an actual or de facto "taking". State of Oklahoma, ex rel., Department of Highways v. Cook, Okl., 542 P.2d 1405 (1975).

In the case at bar, plaintiff has alleged facts that show that the City has acted to flood plaintiff's property and that one such act was the enactment of the Flood Plain Ordinance. Further, the petition alleges that the enactment was done unreasonably, that is to enable the City to save the cost of adequately maintaining its drainage system at the expense of the class plaintiffs.

The defendant claims that the petition is defective in any event because the plaintiff has no right to complain about diversion of surface water over his land because of the "common enemy" doctrine, and that under that doctrine, while there may be some injury from the diversion, there can be no relief. In Oklahoma, this doctrine has been modified by the "rule of reason" principle, that any diversion must be done reasonably and with due regard for the rights of others. Haskins v. Felder, Okl., 270 P.2d 960 (1954). The reasonableness of such diversion is a question of fact which cannot be decided on a demurrer.

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