Revell v. City of Muskogee

• Decision Date: 07 January 1913
• Citation: 129 P. 833,36 Okla. 529,1913 OK 31
• Parties: REVELL ET AL. v. CITY OF MUSKOGEE.
• Court: Oklahoma Supreme Court

129 P. 833

36 Okla. 529, 1913 OK 31

REVELL ET AL. v. CITY OF MUSKOGEE.

Supreme Court of Oklahoma

January 7, 1913

Syllabus by the Court.

When the trial judge grants a motion for new trial, his ruling will not be reversed, unless it appears to have been based upon an error of some pure question of law.

In ascertaining the value of land taken under eminent domain its market value is the test, and not its value for some particular use to which it might be subjected, although its adaptability to this use may be considered as one of the factors in ascertaining its market value.

Commissioners' Opinion, Division No. 1. Error from District Court, Wagoner County; John H. King, Judge.

Action by the City of Muskogee against O. D. Revell and others. From a judgment for defendants, and from an order granting plaintiff's motion for a new trial, defendants bring error. Affirmed.

Hutchings Murphey & German, of Muskogee, for plaintiffs in error.

Bailey & Wyand and Owen & Stone, all of Muskogee, for defendant in error.

AMES C.

This is a proceeding by the city of Muskogee against O. D. Revell et al. to condemn an alley between and parallel with Broadway and Okmulgee avenues, and running from Third Street West; a part of the ground taken being a part of lot 2 of the block and the remainder a part of lot 3. Lots 2 and 3 belonged to different owners, although some of the number were owners of undivided interests in both lots. Upon the trial the jury returned a verdict against the city for $7,500. The city filed a motion for new trial, which was granted. The appeal is taken by the owners from this order granting a new trial.

The decision of the trial court must be affirmed, as it is the well-settled rule of this court that an order granting a new trial will not be reversed here, unless it is apparent that the court erred upon some question of law. It is not so apparent upon this record, as it may be that the trial court was of the opinion that the judgment was not supported by the evidence. It is stated by the plaintiffs in error that the trial court's reason for granting a new trial was because of error which he thought had been committed in giving an instruction to the jury; but the defendant in error does not concede this statement, and the record does not disclose the exact reason which moved the court, and, as we cannot say that the court erred on any pure question of law, the judgment must be affirmed. Sharp v Choctaw Ry. & Lighting Co., 126 P. 1025, not yet officially reported, and the cases therein cited.

As the case, however, is here, and as it must be tried again, and as the correctness of the instruction complained of is argued at length by counsel for both sides, we will examine it. The instruction is as follows: "When only a part...