Public Service Co. v. B. Willis, C.P.A.

• Decision Date: 19 September 2006
• Docket Number: No. 101557.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,101557.
• Citation: 155 P.3d 845,2007 OK CIV APP 18
• Parties: PUBLIC SERVICE COMPANY OF OKLAHOMA, Plaintiff/Appellee, v. B. WILLIS, C.P.A., INC., Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

155 P.3d 845

2007 OK CIV APP 18

PUBLIC SERVICE COMPANY OF OKLAHOMA, Plaintiff/Appellee, v. B. WILLIS, C.P.A., INC., Defendant/Appellant.

No. 101557.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

September 19, 2006.

Rehearing Denied October 20, 2006.

Certiorari Denied February 5, 2007.

Appeal from the District Court of Rogers County, Oklahoma; Honorable James D. Goodpaster, Trial Judge.

AFFIRMED.

Stratton Taylor, Mark H. Ramsey, Clinton D. Russell, Taylor, Burrage, Foster, Mallett, Downs & Ramsey, Claremore, OK, for Plaintiff/Appellee.

William T. Dickson, Tulsa, OK, for Defendant/Appellant.

JOHN F. FISCHER, Judge.

¶ 1 Defendant, B. Willis, C.P.A., Inc. (Willis), appeals from an appealable final order of the Trial Court denying Willis's Motion to Dismiss and overruling his Objection and Amended Objection to the Report of Commissioners in a condemnation proceeding brought by Public Service Company of Oklahoma (PSO) to gain an easement to Willis's property for the construction of a railroad. Based on our review of the record on appeal and applicable law, we affirm.

BACKGROUND FACTS

¶ 2 PSO commenced this condemnation proceeding in 1992 to acquire an easement across property owned by Willis, for the purpose of building a thirteen-mile railroad spur to transport coal to its Oologah power plant. In its petition, PSO alleged that it is a public service corporation duly authorized under 66 O.S.1991 §§ 51-60 and 27 O.S.1991 § 7,¹ to exercise the power of eminent domain, that its acquisition of Willis's property is necessary for a public purpose and that its efforts to secure the right-of-way by private purchase had been unsuccessful.

¶ 3 Commissioners were appointed and filed their report pursuant to 66 O.S.2001 § 53. PSO paid the award into court on December 28, 1992, the same day the report was filed. Willis filed exceptions to the Commissioners' report as permitted by section 55, and alleged that the proposed taking of his property was not for a public use or reasonably necessary therefor and demanded a jury trial. The Trial Court held in favor of PSO and Willis commenced the first of numerous appeals in various state and federal tribunals and, some of which, continue as of the date of this opinion.

¶ 4 In June 1997, the Oklahoma Supreme Court issued an opinion concluding that Willis was wrongfully denied a fair opportunity to challenge PSO's "asserted but unproven right to take his property as well as the right to conduct discovery," and reversed and remanded for further proceedings. Pub. Serv. Co. of Okla. v. B. Willis, C.P.A., Inc., 1997 OK 78, ¶ 21, 941 P.2d 995, 1000 (Willis I). Pursuant to that direction and after further proceedings and discovery, on October 14, 2004, the Trial Court conducted a hearing on Willis's motion to dismiss and his exception and amended exception to the Report of the Commissioners. On November 15, 2004, the Trial Court entered its order finding that PSO had established that its condemnation of Willis's property was for a public use and overruled Willis's motion to dismiss and exceptions.² Willis again appeals.

¶ 5 In his brief-in-chief, Willis asserts four propositions for review:³ (1) His property cannot be valued until PSO establishes its right to condemn, and the Supreme Court's 1997 reversal in Willis I established, as a matter of law, that PSO trespassed when it constructed the railway spur on his property; (2) The Trial Court was without jurisdiction to enter the 2004 Order because federal law preempted any exercise of State law; (3) The condemnation should be set aside because PSO engaged in fraud, abuse and oppression; and (4) A new appraisal of the condemned property should be ordered.

STANDARD OF REVIEW

¶ 6 The standard of review for condemnation proceedings is well established. As noted by the Court in Willis I, condemnation proceedings involve both factual determinations and legal rulings. "The necessity, expediency and propriety of exercising the power of eminent domain are questions of general public policy and are governed by statute." Willis at ¶ 20, 941 P.2d at 1000. "Whether it is necessary to take particular property for the economic and efficient accomplishment of a lawful public purpose is a question of fact to be determined from the attendant facts and circumstances developed by the evidence." Id. at ¶ 18, 941 P.2d at 1000.

¶ 7 "Under our constitutional provisions and cases interpreting them, the issue of whether a proposed taking is for a 'public use' is a judicial question." Id. at ¶ 19, 941 P.2d at 1000 (citing McCrady v. Western Farmers Elec. Coop., 1958 OK 43, 323 P.2d 356). See also Sublett v. City of Tulsa, 1965 OK 78, ¶ 34, 405 P.2d 185, 196; Arthur v. Bd. of Comm'rs of Choctaw County, 1914 OK 181, 141 P. 1.

¶ 8 "A valid declaration of necessity by the appropriate body will be viewed as conclusive by the courts in the absence of a showing of actual fraud, bad faith, or an abuse of discretion by the condemning authority." Willis at ¶ 20, 941 P.2d at 1000, (citing Rueb v. Oklahoma City, 1967 OK 233, 435 P.2d 139).⁴ "The findings of the trial court on the issue of the necessity of the taking will not be disturbed on appeal where there is evidence to support such findings." Id. at ¶ 18, 941 P.2d at 1000, (citing City of Tulsa v. Williams, 1924 OK 136, 227 P. 876).

DISCUSSION

¶ 9 The power of eminent domain lies dormant with the State "until such time as the Legislature by specific enactment delineates the manner and through whom it may be exercised." City of Tahlequah v. Lake Region Elec. Coop., Inc., 2002 OK 2 ¶ 7, 47 P.3d 467, 471 (footnote omitted). See also City of Pryor Creek v. Pub. Serv. Co. of Okla., 1975 OK 81 ¶ 9, 536 P.2d 343, 345-46. Condemnation is a proceeding strictly controlled by the Constitution and statutes prescribed by the Legislature. Willis at ¶ 16, 941 P.2d at 999.

¶ 10 Any governmental body subordinate to the State, which would include PSO (17 O.S.2001 § 151 (c)), may not exercise a power of eminent domain in the absence of statutory authority. Bd. of County Comm'rs of Muskogee County v. Lowery, 2006 OK 31, ¶ 10, 136 P.3d 639, 646. The Legislature has authorized PSO to, and specified the manner in which PSO may, exercise the power of eminent domain. Any corporation licensed to do business in Oklahoma to furnish electricity⁵ is granted the same power of eminent domain as that granted to railroads. 27 O.S.2001 § 7; 66 O.S.2001 § 57.

¶ 11 The procedure by which railroads are authorized to exercise the power of eminent domain has been established by the Legislature. 66 O.S.2001 §§ 51-60. Superimposed on this statutory procedure are the constitutional limitations of Sections 23 and 24 of Article II of the Oklahoma Constitution, Allen v. Transok Pipe Line Co., 1976 OK 53, ¶ 12, 552 P.2d 375, 379, and the appropriate provisions of the United States Constitution. Okla. Const. art. 1, § 1.

¶ 12 When interpreting the relevant taking authority, we are guided by the longstanding general rule of strict statutory construction applicable to eminent domain statutes. City of Cushing v. Gillespie, 1953 OK 121, 256 P.2d 418. In addition, we generally construe our state constitutional eminent domain provisions strictly, in favor of the owner and against the condemning party. Stinchcomb v. Oklahoma City, 1921 OK 154, ¶ 0, 198 P. 508, 508 (Syllabus 1 by the Court). The issues raised by Willis in this appeal are to be resolved within the framework of these legal principles.

PROPOSITION I

¶ 13 In Proposition I, Willis challenges the Trial Court's November 2004 Order, principally because he contends the "date of take" used for the valuation of his property was in error. He comes to this conclusion by arguing that although his property was valued as of December 28, 1992, the date the Commissioners filed their Report, PSO's right to condemn was not established until November 15, 2004, when the Trial Court entered the order that is the subject of this appeal. From this, he concludes not only that the date of valuation was six years premature, but also that until PSO's right to condemn was established, PSO was a trespasser on his property when it constructed the rail spur.⁶ Willis misinterprets the effect of the Supreme Court's ruling in Willis I.

¶ 14 Following the filing of PSO's 1992 Petition for Condemnation, the Trial Court appointed commissioners pursuant to 66 O.S. 2001 § 53 to value the portion of Willis's property that PSO was seeking to condemn. The Commissioners' Report was filed with the Trial Court on December 28, 1992 and PSO paid the amount of the award to the Court Clerk on that date. The payment of that award authorized PSO to enter onto Willis's property to construct its rail spur regardless of Willis's subsequent appeal. 66 O.S.2001 § 56. Payment to the Court Clerk in lieu of payment to the owner is a procedure authorized not only by statute, but also by the Oklahoma Constitution. Okla. Const. art. 2, § 24. The Trial Court held a hearing on January 27, 1994, to determine PSO's right to take Willis's property in light of his exceptions to the Commissioners' Report. Some twelve years later, that issue remains before this Court.

¶ 15 The Oklahoma Supreme Court's decision in Willis I established only that Willis had been "denied an opportunity to challenge PSO's asserted but unproven right to take his property" in the 1994 hearing. Willis at ¶ 21, 941 P.2d at 1000. Pursuant to the direction of the Oklahoma Supreme Court, the Trial Court provided Willis that opportunity. In this appeal, Willis does not contend that the Trial Court failed to provide the relief ordered in Willis I. He argues only that the Trial Court reached the wrong result.

¶ 16 In its order of November 15, 2004, the Trial Court found that PSO had established its right to condemn Willis's property. Consequently, the right to condemn Willis's property first...