Oklahoma City v. Wells

• Court: Oklahoma Supreme Court
• Writing for the Court: RILEY, Justice.
• Citation: Oklahoma City v. Wells, 91 P.2d 1077, 185 Okla. 369, 1939 OK 62 (Okla. 1939)
• Decision Date: 31 January 1939
• Docket Number: 28296.
• Parties: OKLAHOMA CITY v. WELLS et al.

91 P.2d 1077

185 Okla. 369, 1939 OK 62

OKLAHOMA CITY v. WELLS et al.

No. 28296.

Supreme Court of Oklahoma

January 31, 1939

Rehearing Denied June 20, 1939.

Application for Leave to File Second Petition for Rehearing Denied July 11, 1939.

Syllabus by the Court.

1. Where privately owned land is sought to be taken for public use under the power of eminent domain, and proceedings therefor and the method of determining compensation therefor are prescribed by law, such proceedings are not civil actions at law, nor suits in equity, but are special proceedings.

2. Where the law provides a remedy by condemnation proceedings by the owner, whose land has been taken and devoted to public use by a corporation, or municipality authorized to exercise the right of eminent domain, without having compensated such owner, such remedy is exclusive.

3. Where such special remedy is provided by law, and no time limit for instituting such special proceedings is fixed, the general statute of limitations for bringing a civil action or suit is not applicable. And, where a land owner has allowed his land to be taken and devoted to a public use and the law authorizes either the owner, or the corporation, or municipality which has taken the land to institute such proceedings, no lapse of time short of the period necessary to acquire title by adverse possession will bar such proceedings.

4. Where the entry by a municipal corporation on land for public park purposes was without the owner's consent and was not induced by any act of the owner, his right to compensation is not barred by laches, within the prescriptive period of 15 years.

5. An award, in condemnation proceedings instituted by the owner whose land had theretofore been taken by the City of Oklahoma City and appropriated and devoted to public use as a part of a public park, properly included interest at six per cent from the time of actual taking.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Proceeding by Henry C. Wells and another against the City of Oklahoma City to recover for the taking of certain realty by the City of Oklahoma City for public park purposes. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment affirmed.

BAYLESS C.J., and WELCH, V. C.J., dissenting.

A. L Jeffrey, Warren W. Connor, and Jarman, Brown, Looney & Watts, all of Oklahoma City, for plaintiff in error.

W. K. Garnett and Chas. H. Garnett, both of Oklahoma City, for defendants in error.

RILEY Justice.

This is an appeal from a judgment and order of the District Court of Oklahoma County in a proceeding commenced by defendants in error to recover for the taking of certain real property by the City of Oklahoma City for public park purposes.

The property involved is Lot 7, in Block 21, original townsite of Oklahoma City, said lot is 25X140 feet facing east on Broadway between first and second streets. It formed a part of the right of way of the C., R.I. & P. Ry. Company, taken over by the City on December 4, 1930.

W. C. Wells obtained title to the lot at the opening of the townsite in 1889. He deeded said lot to the Choctaw Coal and Railway Company on March 27, 1891. The deed, however, had the provision therein that said lot was intended for use and occupancy for right of way for railroad, also the proviso that in case of abandonment of said premises by the grantee, its successor and assigns, for the purposes mentioned, the same should revert to the grantor, his heirs or assigns.

The C., R.I. & P. Ry. Co. acquired the rights of the Choctaw Coal & Railway Company, and by quitclaim deed conveyed its rights to the City of Oklahoma City. The City took possession on December 4, 1930, and thereafter has used said lot, with other lots, parcels, etc., as a public park and has improved it as such.

These proceedings were commenced by Mollie E. Wells, one of the original grantors in the deed to the Choctaw Coal and Railway Company, W. C. Wells, and other children and heirs of A. C. Wells, deceased.

The proceeding is by petition for appointment of Commissioners to fix the amount of compensation, and are brought under the provisions of Section 11935, O.S. 1931, 66 Okl.St.Ann. § 57.

After the petition was filed and notice served, the City appeared and objected to the appointment of Commissioners principally upon the claim that plaintiffs' rights to compensation were barred by the statute of limitations. The objection was overruled and Commissioners were appointed. They filed their report and appraisement fixing the damages at $20,000. Thereupon the city filed exceptions and objections to the report of the Commissioners based upon some twelve different grounds, among which were alleged statute of limitations, laches and estoppel, and denial of plaintiff's title to the lot. Plaintiffs also filed exceptions to the report of the Commissioners, and plaintiffs filed a demand for a jury trial.

A hearing was had upon the objections and exceptions to the report of the Commissioners and said objections and exceptions were by the Court overruled. Defendant saved its exceptions and gave notice of intention to appeal from said order.

Thereafter trial was had to a jury resulting in a verdict fixing the amount of plaintiff's recovery at $27,000, with interest at six per cent per annum from December 4, 1930.

Thereafter plaintiff filed a motion for judgment in their favor by computing the interest on $27,000, from December 4, 1930, at six per cent, adding the accrued interest to the $27,000, and for judgment for the total sum of $37,980. This motion was sustained, judgment was rendered accordingly and the city appeals from said judgment, and also appeals from the judgment and order overruling its objections and exceptions to the report of the Commissioners.

Thirty-four specifications of alleged error are set forth in the petition in error.

These assignments are presented under three general propositions, viz.: (1) Plaintiffs are barred by the statute of limitations. (2) Plaintiffs are guilty of laches and are estopped from maintaining this action, and (3) the judgment of the court in allowing plaintiffs to recover interest is contrary to law. The issue of whether plaintiffs were the owners of the lot in question on December 4, 1930, when the city took possession thereof appears to have been abandoned. It is apparently conceded that plaintiffs were the owners of said lot on that date.

The question whether plaintiffs were barred by the statute of limitations depends largely upon whether proceedings to ascertain damages for taking or damaging private property for public use are to be treated as an action, as defined in Sec. 9, Art. 1, Ch. 1, O.S.1931, 12 Okl.St.Ann. § 4, or a special proceeding mentioned in Section 10, of said Article, 12 Okl.St.Ann. § 5.

It may be observed that Section 9 defines an action as "an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 10 does not define a special proceeding, but merely provides that "Every other remedy is a special proceeding".

It must be borne in mind that this is not a proceeding commenced by the City to condemn the lot in question for park purposes, but is a case where the city took possession of said lot under a quit claim deed from the C., R.I. & P. Ry. Co., when the railway company did not own the fee. Such possession was taken without the consent of plaintiffs, and the city thereafter devoted the lot to public use. Plaintiffs could not obtain possession by ejectment, and were left to the remedy provided by law.

The city earnestly contends that this court has in effect held, that the remedy in such case is a "suit for damages for the value of the land"; or an ordinary action for damages.

In this connection we are cited to St. L. & S. F. R. Co. v. Mann, 79 Okl. 160, 192 P. 231, wherein it is held: "Where a public service corporation, vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, with or without the consent of the owner, and the owner remains inactive, stands by and permits such corporation to go on and spend large sums of money in constructing its railroad, or telegraph wires, or pipe lines, or mains, or plants, or other necessary fixtures, the owner is estopped from maintaining either trespass or ejectment, and will be regarded as having acquiesced therein, and is restricted to a suit for damages for the value of the land, on the theory that the public has acquired an interest in the appropriation. Under such circumstances, an appropriation will be treated as equivalent to title by condemnation."

Other cases by this and other courts are cited where the same or similar statements are made.

Plaintiff also calls attention to a number of statements in plaintiff's petition wherein they refer to the proceedings as an "action" or their "cause of action", "action in condemnation", etc. Attention is also called to the fact that the trial court in its instructions states that, "This is an action * * *", etc., and, "The plaintiffs now bring this action * * *", etc.

The argument is that both plaintiffs and the trial court considered the proceeding as an "action"; that it is in fact an action within the meaning of Section 9, Art. 1, Ch. 1, supra, and therefore subject to the provisions of Art. 1, Ch. 2, O.S.1931, § 97 et seq., 12 Okl.St.Ann. § 91 et seq., providing limitations of actions.

It is then contended that plaintiffs are barred by Section 101, of the Chapter on Limitations of Action, O.S.1931, 12 Okl.St.Ann. § 95, and particularly by subdivisions 3 and 6 of said section,...