McInturff v. Oklahoma Natural Gas Transmission Co.

• Decision Date: 15 September 1970
• Docket Number: No. 42627,42627
• Citation: 475 P.2d 160
• Parties: Florence Hart McINTURFF, Plaintiff in Error, v. OKLAHOMA NATURAL GAS TRANSMISSION COMPANY, a Corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 160

475 P.2d 160

Florence Hart McINTURFF, Plaintiff in Error, v. OKLAHOMA NATURAL GAS TRANSMISSION COMPANY, a Corporation,

Defendant in Error.

No. 42627.

Supreme Court of Oklahoma.

Sept. 15, 1970.

As Corrected Oct. 23, 1970.

Syllabus by the Court

1. The measure of damages in condemnation proceedings where private property is taken in the exercise of the right of eminent domain under the statutes of Oklahoma is the market value of the property taken, plus the amount of depreciation, if any, in the market value of any remainder of the property as the result of such taking. In ascertaining the amount of damages it is proper, among other things, to consider the inconvenience and annoyance likely to arise in the orderly exercise or conduct of the enterprise which interferes with the use and proper enjoyment of the property by the owner and which sensibly impairs its value.

2. The re-alleging, in a motion for a new trial with respect to an order of the trial court overruling the movant's motion for judgment notwithstanding the verdict, of errors theretofore alleged in the movant's earlier motion for a new trial with respect to the verdict and any judgment thereon, but which are not, of necessity, involved in a proper consideration of the disposition that should have been made of such motion for judgment notwithstanding the verdict, is not effective for any purpose and does not extend the statutory time, after the overruling of the earlier motion for a new trial, for the filing in the Supreme Court of a petition in error with respect to those errors.

Appeal from the District Court of Okmulgee County; John Maley, Trial Judge.

Condemnation proceeding commenced by Oklahoma Natural Gas Transmission Company for the purpose of determining the amount of damages to be sustained by Florence Hart McInturff as the result of the condemnor's taking, under eminent domain, of a right-of-way, 66 feet in width and 3383 feet in length, across a described governmental survey quarter-section of land in Okmulgee County, for the construction, operation and maintenance of a 22-inch gas pipe line. The commissioners' report fixed the amount of the landowner's damages at $2,050.00. Trial by jury, demanded by the condemnor, resulted in a jury verdict in the amount of $550.00. Within time allowed by statute, landowner filed a motion for judgment notwithstanding the verdict and joined therewith a motion for a new trial with respect to alleged errors affecting such verdict and the judgment rendered thereon, both of which motions were overruled. Landowner then filed another motion for a new trial in which she alleged error in the overruling of her motion for judgment notwithstanding the verdict and also re-alleged all of the errors set forth in her first motion for a new trial. The second motion for a new trial was overruled. Landowner elected to appeal on the original record, as then provided by 12 O.S.1961, § 956.1 and following. Order overruling motion for judgment notwithstanding verdict affirmed.

Brown, Brown, Brown & Hackler, McAlester, for plaintiff in error.

James L. Kincaid, Donald A. Kihle, Huffman, Arrington, Scheurich & Kincaid, Tulsa, for defendant in error.

LAVENDER, Justice.

In this appeal by the landowner in a condemnation proceeding the appellant contends that her entire property (995 acres) was being operated by her as one single unit for ranching purposes. Further, that the pipeline to be installed across her property diagonally caused a reduction in the value of the entire ranch and that she was entitled to these damages in addition to compensation for that part of the property actually taken for the pipeline purposes (a strip 66 feet by 3383 feet). It is landowner's position that the only competent evidence was introduced by her as to the diminution in value to the remainder of her property and therefore that the trial court should have--as a matter of law--entered judgment for her in the amount established by such proof.

The commissioners' award was $2,050.00; the jury verdict: $550.00; the evidence of the landowner: $3,000.00.

The landowner, after the verdict of the jury was returned (in the amount of $550.00) and judgment was entered accordingly, filed a combined motion for new trial and motion for judgment notwithstanding the verdict as permitted by 12 O.S.1961, § 698.

Both motions were thereafter denied. The motion for new trial, of course, did not allege error of the trial court in ruling upon the motion for judgment notwithstanding the verdict.

Thereafter, within ten days, landowner filed her second motion for new trial in which she re-alleged the errors complained of in the first motion for new trial and in addition alleged error of the trial court in denying the motion for judgment notwithstanding the verdict.

Landowner's only petition in error here was filed after the running of the statutory time following the trial court's ruling on the first motion for new trial but within that period following the overruling of the second motion for new trial. We are of the opinion and hold that, under these circumstances, only the errors, if any, of the trial court in overruling the appellant's motion for judgment notwithstanding the verdict are presented for our consideration. 12 O.S.1961, § 956.2.

We shall limit our consideration of this case to those errors alleged in the second motion for new trial which are, of necessity, involved in a proper determination of whether the trial court erred in denying appellant's motion for judgment notwithstanding the verdict.

The pertinent law with respect to motions for judgment notwithstanding the verdict is contained in the following portion of 12 O.S.1961, § 698:

'When a motion for a directed verdict which was made at the close of all of the evidence should have been granted, the court shall, at the request of the moving party, render judgment in his favor though a verdict has been found against him. * * *.'

The question of whether or not the landowner's motion for judgment notwithstanding the verdict should have been sustained depends upon whether or not her motion for a directed verdict, made at the close of all of the evidence, should have been granted. Since some of her property was taken for public use, there can be no question but that she would be entitled to proper compensation from the condemnor for the property taken and/or damaged by such taking (Section 24 of Article 2 of the Oklahoma Constitution). Thus, it appears that the question presented by her motion for judgment notwithstanding the verdict was whether or not, under the law applicable to the evidence in such cases, and the competent evidence presented, she was, at the close of all of the evidence when she moved for a directed verdict, entitled to judgment In some specified amount which the trial court could direct the jury was the amount of her damages.

Concerning her motion for judgment notwithstanding the verdict, the landowner argues, in substance and effect, that the condemnor's only witness concerning market values and damages was not shown to be qualified as an expert in the field; that, even if the trial court did not err in allowing that witness for the condemnor to testify concerning his opinion as to market values and damages over her objection, his testimony did not conform to the rule as to the measure of damages where part only of a tract used as a single unit of operation was being taken; that, under the only competent evidence in conformity with such rule as to the measure of damages (the testimony of her witnesses), the minimum amount of her damages was $3,000.00; and that, in a situation of that kind, she was entitled to judgment in that amount.

The landowner's argument is based upon the rule stated in the first paragraph of this court's syllabus to Mid-Continent Pipe Line Company v. Emerson et al. (1962), Okl., 377 P.2d 565, where, as here, a pipeline right-of-way easement was being taken by condemnation proceeding:

'Where a part only of a tract of land is condemned and damages are sought for the value of that taken, and damages to that not taken, the measure of damages is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the portion left immediately after the taking.'

The same rule has been applied where fee-simple title to a portion of a tract of land was being taken by condemnation (City of McAlester v. Delciello et al. (1966), Okl., 412 P.2d 623), and where the condemnor's use of a right-of-way or easement for the purpose for which it was being taken would preclude any use of that portion of the tract by the landowner (State of Oklahoma ex rel. Department of Highways v. Weaver (1956), Okl., 297 P.2d 549).

The condemnor in the present case does not question the rule as to the measure of damages in these cases, as stated in the Mid-Continent Pipe Line Company case, supra, but does question the way in which this landowner would have the rule applied to a total of 995 acres of land owned by her, although the pipe line right-of-way in question actually traverses only the governmental-survey quarter-section of land described in the condemnor's application for the appointment of commissioners.

A plat attached to the application for the appointment of commissioners shows the center line of the right-of-way traversing the Northeast Quarter of Section 5, Township 15 North, Range 14 East, in Okmulgee County, Oklahoma, from a point about 345 feet north of the southeast corner thereof to a point 168 feet south of the northwest corner thereof, with only one slight change of direction (nine degrees, 30 minutes) between those two points.

The evidence discloses that, some time prior to the commencement of the district court, trial, the pipe line had been laid in a trench within the described right-of-way, at least three feet below the surface at all points, and the trench back-filled and leveled in...