McCrady v. Western Farmers Elec. Co-op., s. 37619

CourtSupreme Court of Oklahoma
Writing for the CourtPER CURIAM; WELCH
Citation323 P.2d 356,1958 OK 43
PartiesParthena McCRADY, Wavie McCrady, Mildred Skidmore, Paul Skidmore, and Parthena McCrady, as Administratrix of the Estate of John H. McCrady, Deceased, Plaintiffs in Error, v. WESTERN FARMERS ELECTRIC COOPERATIVE, a Corporation, of Anadarko, Oklahoma, Defendant in Error. Vernon MEANS and Laverne Means, Plaintiffs in Error, v. WESTERN FARMERS ELECTRIC COOPERATIVE, a Corporation, of Anadarko, Oklahoma, Defendant in Error.
Docket Number37620,Nos. 37619,s. 37619
Decision Date18 February 1958

Syllabus by the Court.

1. A condemnation proceeding brought to obtain private property for use in the construction of an electric energy transmission line is a special proceeding and not a civil action.

2. A petition or application seeking condemnation of private property is sufficient which describes the specific property sought to be taken and facts disclosing that the party attempting to exercise the power of eminent domain is authorized to exercise the power and has been unable to voluntarily purchase the property, and that the specific property to be taken is necessary for a purpose for which the power of eminent domain may be exercised.

3. The generating, storing, and distribution of electricity for the use of all who may have need of it, upon equal and reasonable terms, is a public use which will justify an exercise of the power of eminent domain as authorized by appropriate legislation.

4. Cooperatives organized under the Rural Electric Cooperative Act may not arbitrarily or unreasonably exclude from membership any member of the public within the territory served by its electric energy distribution system.

5. In a condemnation proceeding, the judgment of the trial court will not be disturbed unless clearly against the weight of the evidence.

Appeal from the District Court of Alfalfa County; F. B. H. Spellman, Judge.

Proceedings by R. E. A. Cooperative to exercise power of eminent domain to secure easement over property of defendants for electric energy transmission line. Judgment for plaintiff, defendants appeal. Affirmed.

Paul E. Northcutt, of Northcutt & Northcutt, Ponca City, for plaintiffs in error.

Vernon Collins, Cherokee, Haskall Pugh, Anadarko, Shulter, Shulter & Baker, Kingfisher, Looney, Watts, Looney & Nichols, Anna B. Otter, Oklahoma City, Thomas & Thomas, Woodward, Cecil R. Chamberlin, Frederick, John F. Hudson, Stigler, J. T. Bailey, Cordell, Ben Huey, Norman, Fred R. Harris, Lawton, Moore & Murphy, Still-water, Harry C. Hicks, Hollis, Peyton E. Brown, Blackwell, Joe Stamper, Antlers, Charles B. Steele, Okmulgee, Jack Rorschach, Vinita, of counsel, for defendant in error.


This is an eminent domain proceeding in which the parties to this consolidated appeal occupied in the trial court the reverse of their positions here. We shall refer to them by their trial court designations.

The plaintiff instituted this proceeding by filing its petition for the appointment of appraisers to determine the compensation due defendants from the condemnation of an easement over their property for the purpose of constructing an electric energy transmission line. In an appropriate manner the defendants challenged the sufficiency of the petition and the right of the plaintiff to condemn their property for this purpose. From the trial court's adverse ruling, they have perfected this appeal. The determination of the issue of compensation has been stayed pending a decision on the plaintiff's right to exercise the power of eminent domain.

Defendants' first proposition challenges the sufficiency of plaintiff's petitions. In substance, the petitions alleged that the plaintiff was legally incorporated to do business as a rural electric cooperative with the statutory power of eminent domain as an aid in the performance of its business; that defendants own a specifically described tract of property; that an easement, which is specifically described, 'is necessary' for the purpose of erecting, etc., over the defendants' property an 'electrical power transmission line'; that plaintiff 'has made every possible effort, in good faith,' to purchase the easement but defendants have refused to sell; that 'The right and/or easement' is necessary to plaintiff for the reasons stated. The petitions detail with some particularity the type, nature, and location of the structures to be erected. They conclude with a prayer for the appointment of appraisers to assess the value of the easements sought and the damages to defendants' property occasioned by such condemnation by plaintiff. We believe these petitions are sufficient. A proceeding of this nature is a special proceeding, not a civil action. Koch v. Oklahoma Turnpike Authority, 208 Okl. 556, 257 P.2d 790; Oklahoma Turnpike Authority v. Dye, 208 Okl. 396, 256 P.2d 438. The applicable statutes governing the exercise of the power by this plaintiff do not explicitly set forth any requirements for a pleading invoking the court's jurisdiction. Tit. 18 O.S.1951 § 437.1 et seq.; Tit. 66 O.S.1951 § 51 et seq. It is implicit therein, however, that the petition disclose that the party seeking condemnation is authorized to exercise the power, and that he has been unable to make a voluntary purchase of the property. The owner of the property and the specific property sought to be condemned should likewise be alleged. Furthermore, it should appear that the specific property sought to be taken is necessary for a purpose for which the power may be exercised. The allegations of these petitions meet these general requirements. Otero Irr. Dist. v. Enderud, 122 Colo. 136, 220 P.2d 862; Los Altos School Dist. of Santa Clara County v. Watson, 133 Cal.App.2d 447, 284 P.2d 513. We find no statutory requirement of a specific allegation that a resolution of necessity for condemnation had been adopted by the appropriate body. Inasmuch as the determination of a necessity for the exercise of the power is legislative in character and conclusive in the absence of fraud, bad faith, or an abuse of discretion, (Seba v. Independent School Dist. No. 3, 208 Okl. 83, 253 P.2d 559, Arthur v. Board of Com'rs of Choctaw County, 43 Okl. 174, 141 P. 1) a simple allegation of such necessity should be sufficient. The factors overcoming this determination are for the defendant to assert. Neither do we believe that the petition need to specifically characterize the use as a 'public use', as such a characterization would be merely a legal conclusion.

Having concluded that these petitions are sufficient in form and the nature of their allegations, we now proceed to examine the substantive merit of defendants' appeal, an issue inherent in the first proposition heretofore stated and one which is specifically presented by the second proposition argued. It is asserted that the statutory delegation of the power of eminent domain to plaintiff is not constitutional; that is, that the attempted exercise of that power by this plaintiff is not the taking of property for a public use. In considering this question we proceed from an assumption of constitutionality.

It is undisputed that an authorized exercise of the eminent domain power depends upon the fact that the property is being taken for a 'public use' (Art. 2, Sec. 24, Okla.Const.), and that the determination of the character of the use is a judicial question. Thus the definition of the term 'public use' could be of controlling importance. We find, from our examination of the authorities, that the definition of that term has undergone somewhat of a metamorphosis in contemporary decisions from the formerly understood meaning of 'use by the public.' The 'housing authority cases' climaxed by the decision in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27, comprise an analytical delineation of that change. For documentation of the purposefulness of decision on this point and the anguish thereby evoked see: Nichols, The Meaning Of Public Use In The Law Of Eminent Domain, 20 Boston University Law Review, 615; The Public Use Limitation Of Eminent Domain; An Advance Requim, 58 Yale Law Journal, 599; Lashly, Public Housing And Urban Redevelopment, 41 American Bar Association Journal, 501.

But adverting to the factual situation at hand, it appears that plaintiff is an entity organized under our statutes establishing Rural Electric Cooperatives 'for the...

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