State ex rel. Burk v. Oklahoma City

• Decision Date: 30 October 1973
• Docket Number: No. 45102,45102
• Citation: 1973 OK 134,522 P.2d 612
• Parties: The STATE of Oklahoma ex rel. Gil BURK et al., Appellants, v. OKLAHOMA CITY, a municipal corporation, et al., Appellees.
• Court: Oklahoma Supreme Court

Page 612

522 P.2d 612

The STATE of Oklahoma ex rel. Gil BURK et al., Appellants, v. OKLAHOMA CITY, a municipal corporation, et al., Appellees.

No. 45102.

Supreme Court of Oklahoma.

Oct. 30, 1973.

Rehearing Denied May 14, 1974.

Thomas J. Lee, John Connolly, Oklahoma City, for appellants.

V. P. Crowe, Monty L. Bratcher, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for appellees American Fidelity Assurance Co., Fidelity Mational Bank and Trust Co., The Two Thousand Classen Building Corp. and C. W. Cameron.

Roy H. Semtner, Giles K. Ratcliffe, Oklahoma City, for appellees The City of Oklahoma City, James H. Norick, Mrs. Patience Latting, Ben Franklin, Rowe Cook, John M. Smith, George Sturm, A. L. Dowell, O. D., Nelson E. Keller, Bill H. Bishop and Robert H. Oldland.

HODGES, Justice.

The Two Thousand Classen Building was constructed by American Fidelity Assurance Company (American Fidelity) across and upon Northwest 20th Street between Classen Boulevard and Western Avenue in Oklahoma City, Oklahoma (N.W.20th). This street was dedicated to the use of the public. Ti was, however, purportedly vacated on the grounds that it had been occupied adversely to the public for more than five years.

Appellants, under their first cause of action, seek damages resulting from the construction of a public and private nuisance on a public street. They request that the building be removed and the street restored to its original condition, or that title to the building be quieted in the city because they allege that the street is held in trust by the city for the use and benefit of its citizens. They also asserted that the decree of vacation entered by the district court was void by reason of fraud practiced upon the court. Under their second cause of action they seek to recover for the city the land and the building, which claimed to be owned by American Fidelity and to have a penalty assessed against the appellees to be paid to appellants and their attorneys pursuant to the taxpayers statute, 62 O.S.1961, §§ 372, 373.

The idea of building the Two Thousand Classen Building across a part of Northwest 20th Street had been conceived by C. W. Cameron (Cameron), the President of the Two Thousand Classen Corporation and Chairman of the Board of American Fidelity and his associates, one or two years before construction began. Cameron testified that it was more convenient to join the buildings together. One of the reasons for this was that the same heating and cooling system could be utilized.

Cameron and his lawyer talked to 'practically' every member of the City Council in an effort to carry out his plan. The discussions with the members of the City Council concerned the 'simple question' of the possibility of closing N.W. 20th Street between Western Avenue and Classen Boulevard and joining all of the building complex together. He also queried the council as to whether where would be any serious objection to this, or should the new building be built North of N.W. 20th Street and the then existing buildings.

On June 25, 1968, Cameron's attorneys, filed notice of intention to vacate a portion of the plat of University Addition. This notice was published in the Daily Law Journal-Record on June 27, 1968, and an Affidavit of Posting was executed. On the 29th day of June, 1968, a purported application to vacate that portion of University Addition lying between Classen Boulevard and Western Avenue was filed with the District Court Clerk of Oklahoma County. The application stated that the applicants were the sole abutting property owners of the street and that the street had been occupied adversely to the public for more than five years. On the same day, an Answer was filed by the defendant, City of Oklahoma City.

There was no attempt by the city council to exercise its power to vacate N.W. 20th Street under the provisions of 11 O.S.1961, § 659. This statute permits vacation of streets by the city council when it is deemed necessary or expedient. However, it does not permit vacation of a public street for private use. See Hedrick v. Padon, 333 P.2d 552 (Okl.1958). Instead, a resolution directing the municipal counselor to approve as to the form of the purposed decree vacating Northwest 20th Street between Western Avenue and Classen Blvd. was adopted by the City Council and approved by the Mayor of the City of Oklahoma, July 23, 1968.

Cameron et al. attempted to have the street vacated under the provisions of 11 O.S.1961, § 524. It provides in pertinent part:

'* * * If the application shall be by the owner of owners of a portion of such platted tract for the vacation of such portion only, and it shall appear that the portion desired to be vacated has never been actually used for town or city purposes, or that the platted streets and alleys on or across such portion have never been used by the public, or that the public has for more than five years abandoned such by non-user, or that the same has been enclosed and occupied adversely to the public for more than five years, then the court may vacate such portion of said plat. * * *'

The allegation and finding that the street had been enclosed and occupied adversely to the public for 5 years was material to the jurisdiction of the court to vacate the street.

The decree of vacation was entered by the district court on August 8, 1968. Wherein the court 'having examined the pleading and file and having heard the evidence and being fully advised in the premises' made the finding that the street had been occupied adversely to the public for more than five years.

On or about the 1st day of September, 1968, construction of the Two Thousand Classen Building was commenced. In July of 1969, this action was commenced with additional parties plaintiff and defendant joined in December 1, 1969.

The cause proceeded to trial on the 18th day of May, 1971, and continued to the 19th day of May, 1971. Defendants' Demurrer to plaintiffs' evidence was sustained by the trial judge and the case dismissed as to the defendants, Norick, Latting, Sturm, Keller & Oldland, with the concurrence of plaintiff's counsel. Also, the trial court sustained demurrers of the defendants, City of Oklahoma City and individual defendants, Frankin, Cook, Smith, Dowell and Bushop.

A further trial was held on the 4th day of June, 1971 and thereafter on June 7, 1972, the Court entered his Findings of Fact, and conclusions of law. He found that the allegation of the application and the finding of the court to the effect that N.W. 20th had been occupied adversely to the public for more than five years was false and the inclusion of the allegation in the application and decree was known to be false by Cameron at the time they were made. He stated in his conclusions of law that:

'The known false allegation in the application and finding in the Decree vacating the subject portion of Northwest Twentieth Street urged upon the court by the applicants who are defendants in this case constituted a falsification of a jurisdictional fact and a fraud upon the court sufficient to justify the vacating of that decree in a proper case.'

However, the court concluded as a matter of law that appellants were guilty of laches and thereby estopped from obtaining the equitable relief they sought. We do not agree.

The court found the defendants, the Two Thousand Classen Building, the American Fidelity Assurance Company and C. W. Cameron responsible for resulting damages for the diminution of the value of the property of Hali Jean Wells and William Byron and Rhoda P. Hayes, in the amount of $7,000.00 each. The court held that Myrta Rorem sustained no compensible damage. The judgment of the trial court in this regard is affirmed.

Appellees complain that appellants, Burk and Ray, are no longer parties to the first cause of action. They assert that the trial court sustained a demurrer to the amended petition as to them, and that they did not assign this as error in their motion for new trial, nor in their petition in error. Appellees, therefore conclude, that Burk and Ray have abandoned their first cause of action. We have examined the record and find no merit in this proposition as it concerns the appellees, the Two Thousand Classen Building Corporation, American Fidelity Assurance Company, or C. W. Cameron. It indeed, there was any abandonment present, it was as to the City of Oklahoma City and the named defendant councilmen, and inasmuch as we find the trial court's order sustaining their demurrer as to both causes of action to be proper, as hereinafter explained, the consequence of any abandonment is immaterial.

The general rule is that title to streets and alleys is held by the municipality in trust for the public, and not in a proprietary capacity. The municipality is without power to alienate them. A city cannot give away its rights in public streets, nor may it sell or barter away any streets it holds in trust for the benefit of the public. Town of Choteau v. Blankenship, 194 Okl. 401, 152 P.2d 379, 383 (1944), Lindauer v. Hill, 262 P.2d 697, 699 (Okl.1953); City of Shawnee v. Thompson, 275 P.2d 323, 324 (Okl.1954).

The Oklahoma statute, O.S.1961, § 515 is in accord with this rule. It provides:

'When the plat or map shall have been made out and certified, acknowledged and recorded as required by this Article, * * * the land intended to be used for the streets, alleys, ways, commons or other public uses in any town or city or addition thereto shall be held in the corporate name thereof in trust to and for the use and purposes set forth and expressed or intended.'

The plat dedication on which appellants rely states:

'* * * the annexed plat which is hereby adoped as the plat of the above described land, under the name of 'University Place,' in addition to Oklahoma City, and do hereby dedicate all of the streets and avenues shown upon said plat to the public use of said city.'

The mere fact that the vacation of the...