Rogers v. Oklahoma City

• Decision Date: 13 January 1942
• Docket Number: 30235,30236.
• Parties: ROGERS v. OKLAHOMA CITY (two cases).
• Court: Oklahoma Supreme Court

120 P.2d 997

190 Okla. 78, 1942 OK 11

ROGERS v. OKLAHOMA CITY (two cases).

Nos. 30235, 30236.

Supreme Court of Oklahoma

January 13, 1942

Syllabus by the Court.

1. Where a city, vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, without consent of the owner, encloses appropriates and devotes same to public use as a public park such appropriation and use will be treated as equivalent to title by condemnation.

2. Where a city, having the power of eminent domain, has entered into actual, open and notorious possession of land necessary for its corporate purposes whether with or without the consent of the owner of such land, a subsequent vendee of the latter takes the land subject to the burden of the city, and the right to payment from the city, if the entry was unauthorized, belongs to the owner at the time the city took possession, unless such right has been specifically assigned or otherwise transferred to such subsequent purchaser.

Appeal from District Court, Oklahoma County; Frank P. Douglass and Clarence Mills, Judges.

Two proceedings by J. T. Rogers against the City of Oklahoma City, a municipal corporation, for the assessment of compensation for the taking of property. From a judgment dismissing the petitions, plaintiff appeals.

Affirmed.

ARNOLD J., dissenting.

J. T Rogers and D. W. Eaton, both of Wichita, Kan., and Arthur H. Dolman, of Oklahoma City, for plaintiff in error.

A. L. Jeffrey, Municipal Counselor, Warren W. Connor, Asst. Municipal Counselor, and W. H. Brown, Sp. Asst. Municipal Counselor, all of Oklahoma City, for defendant in error.

RILEY Justice.

The parties are in the same relation as in the trial court and will be referred to here as plaintiff and defendant respectively.

Case No. 30235 involves the south forty feet of Lots 30, 31 and 32 in Block 36, original townsite of the City of Oklahoma City, and a strip of land ten feet wide extending the width of and adjoining said lots on the south, being a part of the north half of what was formerly the alley running through said block.

Case No. 30236 involves Lot 8 in Block 21, original townsite of said City.

The Choctaw Coal and Railway Company acquired a right-of-way across the property involved in both cases in 1891, and thereafter transferred its title to the Chicago, Rock Island and Pacific Railroad Company. The Railroad Company used the same until about December 4, 1930, at which time, it abandoned use of same and conveyed its title to the defendant herein. The city took possession, incorporated same into its Public Park system and has ever since devoted the same to public use as a part of a public park.

On December 4, 1930, when defendant went into possession of the parts of Lots 30, 31 and 32, J. D. Crellin was the owner of said parts of lots. On April 11, 1931, Crellin, by quitclaim deed, conveyed to W. L. Missimore, and April 14, 1931, Missimore, by quitclaim deed, conveyed to plaintiff.

In case No. 30236, G. F. Walrath, J. A. Walrath, N.E. Walrath, Viola Della Walrath Hood, Ada Lee Walrath Ford and Arminta Walrath, heirs at law of Martin Luther Walrath, deceased, the original owner of the lot involved, were the owners. April 16, 1931, said heirs, by quitclaim deed conveyed to W. L. Missimore and April 20, 1931, Missimore, by quitclaim deed, conveyed to plaintiff.

Plaintiff alleges that about May 1, 1931, he commenced action in the District Court of Oklahoma County to quiet his title and for ejectment; that said causes were pending in said court until shortly before February, 1940, when they were dismissed, and these proceedings were instituted in lieu thereof.

These proceedings are for the assessment of compensation for the taking of said property, in condemnation commenced by plaintiff, authorized by statute, where defendant having the right to exercise the power of eminent domain, failed or refused so to do, but seized and took possession and devoted the property to public use, without resorting to condemnation or without payment of compensation.

The pleadings as finally amended were such as to show that the city took possession of said premises on December 4, 1930, claiming by its deed from the C. R.I. & P. Ry. Co.; that plaintiff did not own or claim any interest in said property until April, 1931, four months or more after the city took possession.

In this connection plaintiff alleged: "Plaintiff further states that the action of the City in so seizing said property and appropriating the same to its own use was wrongful and without right or authority in law, but that the said City without right or authority did, on or about December 4, 1930, seize said property and since such time has placed valuable and lasting improvements thereon with full notice and with full knowledge that plaintiff was resisting such appropriation and such use by said City."

Upon the petition of plaintiff, appraisers were appointed to assess the damages. After their report was filed, defendant contested and demanded a jury trial. Thereafter plaintiff's petitions were amended and defendant filed its demurrers. The demurrers were sustained, and plaintiff announced that he would stand upon his petitions as amended and judgment was entered dismissing the petitions and plaintiff appeals. The two cases are consolidated.

The sole question raised is whether the quitclaim deeds from the owners to Missimore and like deeds from Missimore to plaintiff, all executed after defendant City took exclusive possession of the property and devoted it to public use, convey the right to recover compensation for the value of said lots. Plaintiff asserts the affirmative and defendant contends to the contrary.

Plaintiff first cites Sec. 24, Art. 2 of the Okl.St.Ann. Constitution, which provides that private property shall not be taken or damaged for public use without just compensation. Plaintiff contends that under that part of said section which provides that "until the compensation shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner divested," no title passes until compensation has been paid or deposited. It is contended that since neither Crellin, Missimore, the Walrath heirs nor plaintiff have been paid compensation, the defendant has acquired no title whatever, and that plaintiff now being the owner is entitled to have the City's title determined by condemnation proceedings and compensation paid to him.

The contention that the City has acquired no title whatever under the facts pleaded cannot be sustained. In City of Seminole v. Fields, 172 Okl. 167, 43 P.2d 64, 65, it is held: "Where a city, vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, with or without the consent of the owner, and the owner remains inactive while valuable improvements are being constructed in close proximity to the property, the use of which improvements require a continued use of land, and the owner thereafter brings an action for damages to recover the total value of the land, the appropriation will be treated as equivalent to title by condemnation."

Therein it was pointed out that there was no contest concerning the fact that the city had appropriated the land and constructed a lake thereon.

In the instant case, it is conceded and plaintiff alleged in his petition: "That the defendant, City of Oklahoma City, having the right to purchase real property for public purposes, and also having the power of eminent domain and the right to condemn real property for such purposes, did, on or about December 4th, 1930, without having purchased said property or made any effort or offer to do so, and without any right or authority on its part, but unlawfully and wrongfully, enter into possession of said real estate for the declared purpose of appropriating and using it for a public park of said City, and then enclosed it and appropriated, applied and devoted it to use as a public park of said City, and ever since has held possession of it and now holds possession of it for that purpose, and is now appropriating, applying and devoting it to the use and purpose of a public park, and as a part of the public park system of said City; ***"

Under the rule stated in City of Seminole v. Fields, supr...