Oil Fields & S.F. Ry. Co. v. Treese Cotton Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: HIGGINS, J.
• Citation: Oil Fields & S.F. Ry. Co. v. Treese Cotton Co., 187 P. 201, 78 Okla. 25, 1920 OK 56 (Okla. 1920)
• Decision Date: 03 February 1920
• Docket Number: 9453.
• Parties: OIL FIELDS & S. F. RY. CO. v. TREESE COTTON CO.

187 P. 201

78 Okla. 25, 1920 OK 56

OIL FIELDS & S. F. RY. CO. v. TREESE COTTON CO.

No. 9453.

Supreme Court of Oklahoma

February 3, 1920

Syllabus by the Court.

In a condemnation proceeding the court may submit as an element of damages for consideration of the jury, when there is evidence adduced tending to justify it, the reasonable cost of removal of property from the lands taken and fitting the same up in another locality.

When the evidence adduced and all reasonable inferences to be drawn therefrom are such that all reasonable men must necessarily reach the same conclusion, then the court may direct a verdict or make a finding on any issue joined.

An obstruction in a street, though not in front of an abutting property owner but in such close proximity thereto that the abutting owner's use and enjoyment is greatly interfered with and its value depreciated, is an element of damages for which suit for damages will lie.

The mere incidental inconveniences to an abutting property owner arising out of the construction of a railroad along a public highway or an injury consequential in its nature or one that is remote or far removed and such as is suffered by the community in general is not an element of damages to be submitted to a jury in a condemnation proceeding in which a portion of an abutting property owner's lot was taken but, on the other hand, if the injury, considering the use of the property taken or that remaining, is different in kind and greater in degree than that suffered by other abutting owners and is such that the egress and ingress is materially affected, then the abutting property owner has suffered a special and peculiar damage to him for which an action will lie.

When the instruction of the court has in substance that which is requested in a special instruction, then it is not error for the court to refuse to give the special instruction.

Error from District Court, Payne County; John P. Hickam, Judge.

Suit by the Treese Cotton Company against the Oil Fields & Santa Fé Railway Company for damages for obstructing a street adjacent to plaintiff's property, pending which the railroad company commenced condemnation proceedings to condemn and to take the street and a strip of the cotton company's property. From an award of damages in the condemnation proceeding, the cotton company appealed to the district court, where the two cases were consolidated and tried together, and there was a judgment for the cotton company for an amount greater than the award, and the railroad company brings error. Affirmed.

Gibson & Hull, of Muskogee, and Robt. A. Lowry, of Stillwater, for plaintiff in error.

Edwin R. McNeill, of Pawnee, for defendant in error.

HIGGINS J.

The Treese Cotton Company, defendant in error, was the owner of approximately 1 3/4 acres of land situated in the city of Cushing, upon which it owned and operated a cotton gin. While this gin was being operated, the Oil Fields & Santa Fé Railway Company, plaintiff in error, constructed its line of railroad along the street immediately south of the gin company's properly extending its line eastward along this street and along the public highway leading to the country for a distance of more than a mile. In 1915, the gin company sued the railroad company for damages for obstructing the street south of its property. In 1917, while this suit was pending, the railroad company commenced condemnation proceedings to condemn and take the street immediately south of the gin company's property and 60 feet off the south side of the lot or tract of land upon which it operated its gin, leaving about one acre. Upon the land taken there were situated the scales, an office building, and a portion of the cotton house, and upon the portion not taken were erected the gin, well, seed house, water tank, and other necessary buildings. Prior to the taking, the gin lot was bounded on the east by a private road, on the west by the tracks of the Missouri, Kansas & Texas Railway Company, an unused road to the west and on the south by a street, and prior to the construction of the road the travel from Yale came by this gin, and it is contended that three-fourths of the cotton entering the town came over this street. After the taking the egress and ingress and use of the street to the south were cut off, leaving the other boundaries as heretofore described. The gin faced the private road, and the only public thoroughfare left was the unused road to the back and west of the gin. On the portion of the lot left, to the west of the ginhouse there had been a pond in time past and the ground was low and damp. In the condemnation proceedings the gin company was awarded damages in the sum of $820, from which award an appeal was taken to the district court. When the appeal came on to be heard, by agreement of the parties they were consolidated and both tried at the same time. At the request of the railroad company, the jury was by the court instructed that in assessing the damages they should do so as if the condemnation case alone was being tried. To this instruction no exception was taken by the gin company. The jury assessed the damages at $2,650, and, after deducting the award of $820 therefrom, the court entered up a judgment for the gin company for $1,850, from which judgment plaintiff in error appeals to this court.

The plaintiff in error sets forth three propositions why this cause should be reversed: First, error of the court in its instructions as to measure of damages; second, error of the court in admitting evidence of the obstruction of the street beyond the property line of the gin company; and, third, for failure to give certain instructions.

As to the first proposition, the instructions as to the measure of damages are as follows:

"No. 3. You are instructed that the issue for you to determine in this case is the amount of damages the landowner Treese Cotton Company had sustained by reason of the appropriation of the said strip of land 93 feet wide and extending along the south portion of said strip of land, and with the injury that the landowner has sustained to the remaining portion of the land not condemned for right of way purposes, together with such damages as the owner actually sustained as to the real or personal property by such appropriation of its land.

No. 4. You are instructed that in determining the amount of compensation to be awarded to the Treese Cotton Company, in this case, you may properly take into consideration all evidence tending to show the actual value of the premises of what it is proposed to deprive it of, the actual loss to be suffered by the Treese Cotton Company, from the loss destruction, or depreciation of the improvements placed by them on this property especially adopted to the conduct of its business, the reasonable cost of removal, and of refitting in other locality for the further conduct of business as shown by the evidence.

No. 5. In determining what is the value of the property in controversy, however, the law does not permit you to fix speculative or fancy values upon it, but the law requires you to determine the reasonable market value of the property if the owner was offering to sell on the usual terms and the purchaser desiring to buy. The phrase 'market value' does not mean what you may ask for it, but

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