Oklahoma Turnpike Authority v. Williams

• Decision Date: 26 May 1953
• Docket Number: No. 35556,35556
• Citation: 208 Okla. 577,257 P.2d 1052
• Parties: OKLAHOMA TURNPIKE AUTHORITY v. WILLIAMS et al.
• Court: Oklahoma Supreme Court

Page 1052

257 P.2d 1052

208 Okla. 577

OKLAHOMA TURNPIKE AUTHORITY v. WILLIAMS et al.

No. 35556.

Supreme Court of Oklahoma.

May 26, 1953.

Rehearing Denied June 9, 1953.

Syllabus by the Court.

1. A judgment will not be reversed because of the refusal of the trial court to declare a mistrial where the record discloses that the alleged incompetent evidence was adduced by the party moving for the mistrial.

2. Where the defendants called a witness to testify as to the fair market value of the land taken and damage to the remaining portion of the tract, if any, and upon cross-examination the condemnor asks the witness if he was one of the Commissioners who had valued the damage at a sum less than his present testimony; condemnor cannot complain unless it appears that substantial prejudice probably resulted to its detriment.

3. The extent of the range of inquiry to be presented regarding the value of property taken or damaged in eminent domain proceedings is largely in the discretion of the trial court; and the refusal to permit condemnor to establish the price paid by the owner for one of several tracts of land affected by the condemnation proceedings is not under this record reversible error.

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

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

O'NEAL, Justice.

The Oklahoma Turnpike Authority under permissible statutes started a condemnation proceeding in the District Court of Lincoln County, Oklahoma, to appropriate 19.55 acres of land out of an 80-acre tract owned by Kirby O. and Margaret N. Williams. Upon notice to defendants the Judge of the District Court appointed appraisers to view the land and assess the damages to defendants for the land taken and consequential damages to the remainder of the defendants' land. The Commissioners awarded defendants the sum of $5,000 damages which plaintiff paid into court for defendants' benefit. Plaintiff feeling aggrieved as to the amount of the award, appealed to the District Court for a jury trial. The jury awarded the defendants damages in the sum of $5,500, and from the denial of plaintiff's motion for a new trial, the appeal is taken. No contention is made by plaintiff that the verdict of the jury and the judgment rendered thereon is excessive nor sustained by competent evidence.

The first ground argued for a reversal of the case is based upon plaintiff's contention that one of the Commissioners appointed by the court to appraise the value of the land appropriated was called as a witness by the defendants and was permitted to testify as to the amount of damages to the land as disclosed by the Commissioner's report. The record discloses that the witness, J. A. Patterson, as one of the appraisers, had joined with his co-appraisers in assessing defendants' damage at $5,000. When called by the defendants as a witness he testified to defendants' damage in the sum of $10,000. Defendants' counsel in his direct examination of the witness did not directly or obliquely refer to the fact that the witness was one of the Commissioners, or to the return made by said Commissioners. Upon cross-examination plaintiff's counsel then asked the witness: 'I will ask you if in a former appraisement that you made to this Court you didn't appraise the damage at $5,000.00.' To which the witness replied that he joined with the other Commissioners in making such a return. Thereupon counsel for plaintiff moved the court for a mistrial on the ground that defendants' counsel on redirect examination asked the witness if he was working with the other appraisers that were appointed as commissioners in this case. We think the trial court properly overruled plaintiff's motion for a mistrial.

In City of Tulsa v. Creekmore, 167 Okl. 298, 29 P.2d 101, we sustained the judgment, notwithstanding two of the three Commissioners who had appraised the damages were permitted to testify as to the value of the land before and after the taking.

In Oklahoma Ry. Co. v. State ex rel. Department of Highways, 205 Okl. 325, 237 P.2d 878, we held that where one invites or participates in the injection of incompetent evidence, he will not be heard to complain of such error.

Moreover, it cannot be successfully contended that the testimony of J. A. Patterson materially affected the result of the verdict. Seven witnesses testified that the damages to the defendants ranged from $2,400 to $12,000, or a mean average of approximately $5,500, which was the amount of the verdict in the instant case.

Plaintiff also contends that the court erred in excluding competent evidence. The alleged error is based upon the court's refusal to permit defendants to state the price they paid for the 80-acre tract over which the highway was constructed. The authorities uniformly hold that the extent of the range of inquiry to be permitted regarding the value of property taken or damaged in eminent domain proceedings, is largely in the discretion of the trial court. City of Tulsa v. Horwitz, 131 Okl. 63, 267 P. 852.

As applied to the case before us, we think that the trial court did not abuse its discretion in excluding the evidence as to the purchase price of the 80 acres over which the Turnpike condemned the right of way. The defendants also owned a contiguous 80-acre school land lease upon which defendants had their home and farm improvements. These two 80-acre tracts were used as a stock farm, and the evidence submitted tended to prove that the defendant's use of the entire tract of land would be substantially impaired by a division of the land by the Turnpike Highway. Grand River Dam Authority v. Gray, 192 Okl. 547, 138 P.2d 100.

As a general rule, the fair cash market value of the land taken under eminent domain is the value at the time of...