Oklahoma Gas & Elec. Co. v. Miller Bros. 101 Ranch Trust

• Citation: 46 P.2d 570,173 Okla. 101,1935 OK 669
• Decision Date: 11 June 1935
• Docket Number: 23710.
• Parties: OKLAHOMA GAS & ELECTRIC CO. v. MILLER BROS. 101 RANCH TRUST et al.
• Court: Supreme Court of Oklahoma

46 P.2d 570

173 Okla. 101, 1935 OK 669

OKLAHOMA GAS & ELECTRIC CO. v. MILLER BROS. 101 RANCH TRUST et al.

No. 23710.

Supreme Court of Oklahoma

June 11, 1935

Rehearing Denied July 2, 1935.

Syllabus by the Court.

1. Where the allegations of a petition are susceptible of two constructions, that construction will be adopted which will tend more to restrict the demands of said allegations.

2. The remedy for an injury to the land, which injury is not a necessary incident to the construction and operation of the public service for which the land is taken, but is due to willful or negligent construction or operation, is not such remedy as is given by the statutes relating to eminent domain (St. 1931, § 10046 et seq.).

3. In awarding damages to a landowner in condemnation proceedings it is error to submit to the jury evidence of injury which does not arise as a necessary incident to the purpose for which the land is condemned.

Appeal from District Court, Noble County; John S. Burger, Judge.

Two separate proceedings by the Oklahoma Gas & Electric Company against Miller Bros. 101 Ranch Trust and others to condemn a right of way across certain lands. From adverse judgments the plaintiff appeals.

Judgments reversed, and causes remanded, with instructions.

Rainey Flynn, Green & Anderson, John P. Roemer, L. J. Sartain, all of Oklahoma City, and Wm. M. Bowles, of Perry, for plaintiff in error.

Sullivan & Sullivan, of Newkirk, Henry S. Johnston, of Perry, and R O. Wilson, of Enid, for Fred C. Clarke, receiver for Miller Bros. 101 Ranch Trust.

GIBSON Justice.

The Oklahoma Gas & Electric Company, referred to herein as plaintiff, commenced two separate proceedings in the district court of Noble County against the Miller Bros. 101 Ranch Trust, referred to herein as defendant, to condemn for right of way purposes a strip of land 30 feet in width across a tract of land containing 160 acres, and across another tract of 80 acres. The causes were consolidated and, upon demand of both parties, a jury was called to assess damages after the reports of the commissioners appointed by the court were objected to.

Verdicts were returned awarding defendant $400 as to the 80-acre tract, and $500 as to the 160-acre tract. From judgments in conformity with these verdicts, the plaintiff has appealed.

Plaintiff contends that the verdicts were excessive and influenced by passion and prejudice; that the damages assessed are greatly in excess of the damage actually suffered; that the court erred in permitting certain testimony to go to the jury, committed errors of law at the trial, and erred in giving certain instructions and in refusing certain requested instructions.

Defendants contend that the plaintiff sought at the trial, and now seeks, to avoid the responsibility of being bound by its own pleadings, and that the verdicts, when considered in the light of the demands made in plaintiff's petitions, are not excessive; also that the plaintiff, by the allegations of its petitions, sought not only to condemn the 30-foot right of way, but desired, for maintenance and operation purposes, the right of ingress and egress over and across any and all portions of the two tracts remaining uncondemned.

Each petition described the tract over which the right of way was sought, and described the right of way by...