Southwestern Natural Gas Co. v. Vernor
| Decision Date | 08 December 1936 |
| Docket Number | 27488. |
| Citation | 62 P.2d 1262,178 Okla. 344,1936 OK 790 |
| Parties | SOUTHWESTERN NATURAL GAS CO. v. VERNOR, Judge. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Mandamus will not be granted to control a district court in actions between private parties where the party complaining has an adequate remedy at law.
2. A final order as defined by section 529, O.S.1931, means an order affecting a substantial right in an action. A final order is one that determines the action or prevents a judgment.
3. An order dismissing a cause is a final order, and an order overruling a motion to vacate such dismissal is a final order from which a proceeding in error may be prosecuted to this court. Avery v. Jayhawker Gasoline Co., 101 Okl 286, 225 P. 544.
4. Where the remedy of appeal is available to a litigant, such remedy will not be declared inadequate merely because of inconvenience, expense, or delay. Halliburton v Williams, 166 Okl. 248, 27 P.2d 360.
Original proceeding by the Southwestern Natural Gas Company against Enloe V. Vernor, judge of the district court of Muskogee county, state of Oklahoma, for writ of prohibition and writ of mandamus.
Writ denied.
Underwood Canterbury, Pinson & Lupardus, of Tulsa, for petitioner.
Benjamin B. Wheeler, of Muskogee, for respondent.
This is an original proceeding brought in this court by petitioner Southwestern Natural Gas Company, wherein it seeks an order, under the supervisory powers of this court, directing respondent, Enloe Vernor, as judge of the district court of Muskogee county to permit petitioner to proceed to trial in three certain actions heretofore commenced in said court by petitioner as plaintiff against George W. Sterling.
A rule to show cause was entered. Response has been filed.
Epitomized the facts are:
On and prior to 1930, petitioner was a public utility company engaged in the business of transporting natural gas by pipe line. As such, it was authorized to exercise the power of eminent domain. It laid a pipe line in and through Muskogee county. The pipe line was laid diagonally across a twenty-acre tract of land owned by George W. Sterling.
Sterling refused permission for entry and construction upon his land. Without his knowledge or consent petitioner entered upon the Sterling premises and laid thereon the pipe line. Likewise it erected a telephone line along and near the pipe line.
Thereafter the company commenced condemnation proceedings. Whether the right of plaintiff to construct the telephone line was included in the proceedings does not appear. Sterling appeared and filed in the company's proceedings an answer and cross-petition. Therein Sterling alleged an unlawful entry and trespass in and upon his premises; he sought damages on account thereof in the sum of $1,500 and possession of the strip of land held by the gas company. He sought an injunction against the gas company enjoining it from interfering with him in the use and occupancy of his land. Sterling filed what was termed, "objection to appointment of commission." Therein, among other things, he objected to the appointment of commissioners to assess his damages (1) because the builders of said pipe line and telephone line were mere trespassers, and they were liable in damages, and an action to recover damages was then pending; (2) because under section 24, art. 2, of the Constitution of Oklahoma, and under the provisions of the Constitution of the United States, condemnation proceedings cannot be legally had at the instance of the aggressor after private land has been taken and used against the will of the owner; (3) because the Southwestern Gas Company did not then own and operate said lines, but same were owned and operated by the Oklahoma Natural Gas Company, and said plaintiff was no longer interested in the right of way; and (4) because he had been informed, and upon such information believed that the Southwestern Gas Company was insolvent and was not then engaged in the transportation of gas.
For some reason, not explained, the determination of said matters was delayed until February 6, 1935, at which time the contentions made by Sterling were overruled and an order was entered by Hon. E. A. Summers, one of the judges of the district court, appointing commissioners to view the premises and assess the damage.
On February 19, 1935, the commissioners filed their report, assessing damages in the sum of $2,000.
The Southwestern Gas Company in due time filed their demand in writing for a jury trial as to the amount of damages.
The gas company did not pay said sum to Sterling or into court, whereupon on April 13, 1935, Hon. O. H. P. Brewer, another judge of said court, upon motion of defendant Sterling, entered an order wherein, "It is ordered and adjudged that the plaintiff S.W. Nat. Gas Co., be and it is hereby adjudged and ordered to pay to the defendant the sum of Two Thousand ($2,000.00) Dollars, said payment to be made by said plaintiff within Twenty (20) days from this date, to which the plaintiff excepts."
The plaintiff company declined to pay said sum, but insisted upon its right to a jury trial.
No jury trial was ever had, and said matters appear to be now pending as cause No. 22,819 in the district court of Muskogee county.
In the meantime, as contended and asserted by petitioner herein, and during June, July, and August, 1935, George W. Sterling, defendant in said cause No. 22,819, willfully and maliciously destroyed the telephone line, to the damage of the Southwestern Natural Gas Company in the sum of $52.72; in September, 1935, while the Southwestern Natural Gas Company was engaged in the removal of certain pipe lines which it had theretofore utilized, from lands other than that owned by Sterling, but near same, Sterling wrongfully obtained a restraining order in case 22,819, restraining the Southwestern Natural Gas Company from taking up or removing any of its gas pipe lines in Muskogee county. Upon hearing for an injunction, relief was denied and the restraining order expired. On or about September 10, 1935, the Southwestern Natural Gas Company, desiring to remove its line from Sterling's premises and establish same elsewhere, employed contractors, but when the crew of the contractor so employed approached the land of Sterling, he, by force, prevented the crew from coming upon his premises, and then asserted, and has ever since asserted, control, ownership, and possession of the pipe line under his land, all to the damage of the pipe line company in the sum of $472.80.
Thereafter on June 3, 1936, the Southwestern Natural Gas Company, petitioner herein, filed the three separate actions for damages against said George W. Sterling, which are here involved. One action was based upon the alleged wrongful destruction of the telephone line. One was based upon the alleged wrongful procurement of the restraining order, and one was based upon the alleged wrongful act of Sterling in refusing to permit the removal of the pipe line from his premises, and assertion of ownership thereof as by conversion. In two of the actions the corporate plaintiff prayed for actual and exemplary damages, and in the other it prayed for actual damages and attorney's fee.
In each case Sterling filed a motion to strike the petition and dismiss the case for failure of the plaintiff therein, plaintiff in the condemnation case, to comply with the order of Judge Brewer, and pay to Sterling the sum of $2,000.
On September 25, 1936, these motions came on for hearing before Hon. Enloe Vernor, judge of the district court of Muskogee county (respondent herein), plaintiff and defendant appearing by their attorneys, and the orders now presented at bar were entered, whereby the three actions heretofore described were dismissed.
These orders, after reciting the introduction in evidence of the principal orders in the condemnation case, including the order by Judge Brewer dated April 13, 1935, provide:
"And it was admitted in...
To continue reading
Request your trial