Oklahoma Turnpike Authority v. Dye

• Court: Oklahoma Supreme Court
• Writing for the Court: O'NEAL; HALLEY
• Citation: Oklahoma Turnpike Authority v. Dye, 256 P.2d 438, 208 Okla. 396, 1953 OK 109 (Okla. 1953)
• Decision Date: 07 April 1953
• Docket Number: No. 35407,35407
• Parties: OKLAHOMA TURNPIKE AUTHORITY v. DYE et al.

Page 438

256 P.2d 438

208 Okla. 396

OKLAHOMA TURNPIKE AUTHORITY v. DYE et al.

No. 35407.

Supreme Court of Oklahoma.

April 7, 1953.

Rehearing Denied April 28, 1953.

Syllabus by the Court.

1. A condemnation proceeding brought to obtain private property for use in the construction of a highway is a special proceeding and not a civil action.

2. Where Oklahoma Turnpike Authority, exercising powers of eminent domain, instituted condemnation proceedings and commissioners appointed to appraise lands made reports showing landowners' damages to accrue, but landowner's possessory rights are not disturbed, condemnor is entitled to abandon the proceedings and decline to pay the assessed value of the land sought to be condemned.

3. Actual possession by condemnor that will preclude abandonment of eminent domain proceeding is not a fugitive or temporary trespass but such possession as will give the landowner a vested right of compensation.

Leon Shipp and C. E. Barnes, Oklahoma City, for plaintiff in error.

P. D. Erwin, Chandler, for defendants in error.

O'NEAL, Justice.

In this case it appears that on June 22, 1951, plaintiff, Oklahoma Turnpike Authority, brought an action in condemnation in the district court of Lincoln County, against William B. Dye and Lillian B. Dye to acquire a fee simple title to surface rights to a tract of land consisting of 0.27 acres out of a two-acre tract owned by defendants located in the southeast corner of the NW 1/4 of the SW 1/4 of Sec. 27, Township 4 North, Range 5 East, for use in connection with the construction of its turnpike, and also a temporary grant of approximately .12 acres of land located in the N 1/2 of the NE 1/4 of the NW 1/4 of Sec. 34, for the purpose of use as a detour road.

The commissioners in condemnation were duly appointed and on the 25th day of July, 1951, returned their report into court fixing defendants' damages in the sum of $10,000. Plaintiff made no demand for jury trial and filed no objection to the report of the commissioners but on the 17th day of August, 1951, and within the 30 day period in which either party might have demanded a jury trial attempted to dismiss the proceeding by filing a dismissal in the office of the court clerk of Lincoln County, and by paying costs.

On November 5, 1951, and after the expiration of the time granted by 66 O.S.1951 § 55, in which either party might have filed exceptions to the report of the commissioners, defendants filed a motion to set aside the pretended order of dismissal and requested an order directing plaintiff to pay the amount of damages awarded by the commissioners into the office of the clerk of the court. The motion is based on the ground that the instrument filed by the plaintiff in the office of the court clerk did not constitute a dismissal or discontinuance of the proceedings; that the award of the commissioners was then final; that plaintiff had not abandoned its turnpike project or road but is now constructing such turnpike upon the location indicated in the original plat attached to the petition; that the award made by the commissioners covered not only defendants' tract of land described in the petition but covered also consequential and other damages sustained by defendants to their land; that by reason of said facts they were entitled to an order vacating the pretended dismissal and to an order directing and ordering plaintiff to pay the amount of the award for compensation and damages into court. On the hearing of that motion plaintiff's engineer and other witnesses testified that shortly after the commissioners filed their report fixing the amount of damages to be awarded against plaintiff, it changed its plans for the construction of the turnpike and completely abandoned its right-of-way across defendants' land and upon completion of the turnpike no portion of defendants' land will be used or appropriated in the construction thereof, but that the turnpike will cross section 27 immediately south of defendants' land and across land not owned by defendants; that the detour road originally located in sec. 34 has been moved up on section 27 and on land not owned by defendants and upon which plaintiff had acquired the right-of-way by purchase. The evidence offered by these witnesses is undisputed.

Defendant William B. Dye testified that he is the owner of two acres of land in the Southeast corner of section 27 above described and is also the owner of 80 acres of land in section 34 above mentioned. The south line of section 27 is the north line of section 34. This 80 acre tract of defendants consists of Dry Creek bottom. Dry Creek flows in a southeasterly direction across the SW 1/4 of the SW 1/4 of section 27 and across the Northeast corner of the West 40 acres of defendants' 80 acre farm; that plaintiff's turnpike is being constructed about 250 yards north of his 80 acre farm; that he has a pecan orchard on that farm and at the time of the hearing the turnpike was being constructed. The embankment was about 12 feet high and 250 feet wide. It did not have sufficient outlets to permit accumulated water to flow through Dry Creek but the embankment would back the water up over defendants' land and destroy their pecan crop and that the commissioners took such damage into consideration in fixing its award. He further testified that plaintiff had taken possession of his two acre tract. It entered upon the tract, digging ditches for the purpose of removing a pipeline preparatory to using the tract in connection with the construction of its turnpike. The witness however further testified that the ditch was being dug by employees of the Texas Oil Company; that the Texas Oil Company had oil and gas leases on his as well as other adjoining premises; that someone appeared upon the tract and stopped the digging of the ditch and requested the employees to refill it which was accordingly done. The witness further testified that plaintiff used water from a water hole in Dry Creek located on his 80 acre tract for the purpose of mixing concrete to be used in connection with the construction of the turnpike.

Plaintiff offered witnesses who testified employees of the Texas Company dug the ditch upon defendants' two acre tract without direction from it or without its knowledge that after acquiring knowledge that it was engaged in this work it stopped the work and requested the employees to fill the ditch which they accordingly did. It had instructed the Texas Company to lower and re-locate its line under the turnpike property; that it was not necessary for them to enter upon defendants' property to accomplish this purpose. It directed the company to make the connection at a point which did not touch any of the land of defendants and to remain on property belonging to it which it had acquired by purchase. Contact was then made at a point east of defendants' land and connection and hookup was made south of their line.

The trial court sustained defendants' motion and directed plaintiff to pay into court the amount of damages fixed by the award of the commissioners.

Plaintiff appeals and asserts that the judgment rendered is not sustained by the evidence and is contrary to law.

Plaintiff contends that the dismissal filed by it with the court clerk operated as a discontinuance and abandonment of the proceedings so far as defendants' property is concerned and the trial court was therefore without jurisdiction to further proceed in the matter. The dismissal was filed under the provisions of 12 O.S.1951 § 684.

Defendants contend that said section applies only to a civil action; that a condemnation proceeding is not such an action but is a special proceeding and that said section is not applicable to such proceeding. The case of Epperson v. Johnson, District Judge, 190 Okl. 1, 119 P.2d 818 would appear to lend support to this contention.

The mere fact however that the dismissal filed by counsel may not have constituted a legal dismissal of the proceeding would not preclude plaintiff from pleading abandonment and insisting upon its...