Rueb v. Oklahoma City, 41153

• Decision Date: 14 November 1967
• Docket Number: No. 41153,41153
• Citation: 1967 OK 233,435 P.2d 139
• Parties: Cleo W. RUEB and Barbara Jean Rueb, Plaintiffs in Error, v. OKLAHOMA CITY, a municipal corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 139

435 P.2d 139

1967 OK 233

Cleo W. RUEB and Barbara Jean Rueb, Plaintiffs in Error, v. OKLAHOMA CITY, a municipal corporation, Defendant in Error.

No. 41153.

Supreme Court of Oklahoma.

Nov. 14, 1967.

Syllabus by the Court

1. The introduction in evidence of a resolution of necessity by a condemning authority establishes a prima facie case, whereupon the burden shifts to the condemnee to show that the taking was not necessary or for a public use.

2. A future hope based on speculation is not sufficient to justify the taking of private property in a condemnation proceeding, but a condemning authority may consider those demands which may be fairly and reasonably anticipated in the future.

3. In condemnation cases, while the particular property sought to be condemned must be necessary for the proposed project, the condemnor's decision as to the necessity for taking the property will not be disturbed in absence of fraud, bad faith or abuse of discretion.

Appeal from District Court of Oklahoma County; William L. Fogg, Judge.

An appeal by the condemnee in an eminent domain proceeding, from the judgment of the trial court overruling exceptions and objections to the commissioners' report and from the judgment of the trial court overruling motion for a new trial. Judgment affirmed.

Berry & Berry, Oklahoma City, for plaintiffs in error.

Roy H. Semtner, Robert D. Epperson, Charles E. Halley, Oklahoma City, for defendant in error.

PER CURIAM.

The City of Oklahoma City, Oklahoma, seeks in this action to condemn land owned by the defendants for expansion of the Wiley Post Airport.

By a pleading so designated, the defendants excepted and objected to the Report of Commissioners. A hearing was commenced before the trial judge and evidence received on the issue of the public necessity of the condemnation. The trial court overruled the defendants' motion to vacated the Report of Commissioners without prejudice to the defendants' right to a jury trial on the question of damages. From this judgment the defendants appeal upon the single issue that the evidence shows no necessity for the taking of their land.

The only evidence presented by the City was its Resolution of Necessity. However, it is well settled that the introduction of a Resolution of Necessity by a condemning authority establishes a prima facie case of necessity whereupon the burden to proceed with the evidence shifts to the condemnee. Bush v. Oklahoma City, 194 Okl. 504, 154 P.2d 960; Delfeld v. City of Tulsa, 191 Okl. 541, 131 P.2d 754; City of Oklahoma v. Shadid.

The property of the defendants that the City seeks to condemn, contains approximately five acres. It is located south of the present and proposed runways and south of the other facilities of the Wiley Post, Airport, and is bisected by 50th street, which is a through municipal street.

The City proposes to construct an additional runway parallel to the present runway. The City contends that the defendants' property, which lies south of these runways, is needed to eliminate a traffic hazard. The evidence shows that this is the only necessity for the defendants' property and that no buildings, hangars, runways or other physical structures will be constructed on the defendants' property.

A small portion of the defendants' property is located within an area necessary for a clearance for the existing runway. A larger portion of the property lies within an area necessary for a clearance for the proposed runway. Also, there is a small portion of the defendants' property along the western edge that is located outside both clearance zones. There was no testimony as to the footage in these areas.

The defendants did not argue or submit any evidence to the trial court that the area designated for the proposed clear zone and the area outside the clear zones could be divided in kind or that the two areas should be considered separately. In view of the fact that the defendants considered their property as one tract and not separately in the trial below, we shall only consider those arguments that are applicable to the tract as a whole.

The defendants concede that the area designated as the present clear zone for the now existing runway may justify the taking of that portion of the defendants' property lying within that area. But they argue that as to the remainder of the defendants' property there is no...