State ex rel. Department of Transp. v. Post, 102,101.

• Decision Date: 11 October 2005
• Docket Number: No. 102,101.,102,101.
• Parties: STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Petitioner, v. Honorable Dynda R. POST, Respondent, and Jonnie Lee Biswell and Bessie M. Biswell, husband and wife; Bessie A. Biswell, LLC; and Dick York; The Kallay Group, Inc., Real Parties in Interest.
• Court: Oklahoma Supreme Court

125 P.3d 1183

2005 OK 69

STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Petitioner, v. Honorable Dynda R. POST, Respondent, and Jonnie Lee Biswell and Bessie M. Biswell, husband and wife; Bessie A. Biswell, LLC; and Dick York; The Kallay Group, Inc., Real Parties in Interest.

No. 102,101.

Supreme Court of Oklahoma.

October 11, 2005.

Application to Assume Original Jurisdiction and Petition for Writ of Mandamus or Writ of Prohibition.

¶ 0 The petitioner, State of Oklahoma, ex rel. Department of Transportation (condemner/Department), seeks to enjoin the respondent, Honorable Dynda R. Post (trial judge), from enforcing an order finding the "date of taking" in a condemnation proceeding occurs when two conditions are established: 1) once the commissioners' award is paid into court or to the land owners; and 2) when the condemner takes complete physical possession of the property. Because the Department has not taken possession of the property,

the real parties in interest, Jonnie Lee Biswell and Bessie M. Biswell, husband and wife, Bessie A. Biswell, LLC, Dick York and The Kallay Group, Inc. (collectively, condemnees/land owners), argue that no taking has occurred. We assume original jurisdiction and determine that the "date of taking" was established when the condemner paid the commissioners' award into court.

ORIGINAL JURISDICTION ASSUMED; WRIT OF MANDAMUS ISSUED.

Kelly F. Monaghan, Holloway & Monaghan, Tulsa, OK, for Petitioner, State of Oklahoma, ex rel., Department of Transportation.

K. Ellis Ritchie, K. Ellis Ritchie, P.C., Pryor, OK, for Real Parties In Interest, Jonnie Lee Biswell, Bessie M. Biswell, Bessie A. Biswell, LLC, Dick York, and The Kallay Group, Inc.

WATT, C.J.

¶ 1 The original action involves the petitioner's, State of Oklahoma, ex rel. Department of Transportation's (condemner/Department), condemnation of real property owned by the real parties in interest, Jonnie Lee Biswell and Bessie M. Biswell, husband and wife, Bessie A. Biswell, LLC, Dick York and The Kallay Group, Inc. (collectively, condemnees/land owners). Although the condemner paid the commissioners' award into court and it was disbursed to the condemnees, the land owners were successful in receiving a ruling from the trial judge that no taking had occurred in the proceeding because the Department had not taken complete physical possession of the property.

¶ 2 Original jurisdiction is assumed and a writ of mandamus issued.¹ We hold that the "date of taking" was established when the condemner paid the commissioners' award into court. Our determination is supported by the Oklahoma Constitution art. 2, § 24,² statutory provisions³ and this Court's jurisprudence.⁴

FACTS

¶ 3 Pursuant to 69 O.S.1991 § 1203,⁵ the Department instituted a condemnation proceeding against the land owners in December of 2000. After proper notice, commissioners were appointed returning a report, filed on May 25, 2001, setting just compensation at $4,300,000.00. On June 6 and 11, 2001, respectively, the land owners and the Department filed demands for jury trial.

¶ 4 The condemner paid the commissioners' award into court for the benefit of the land owners on July 12, 2001. The following day, the land owners filed an application for disbursement and the court clerk was ordered to disburse the $4,300,000.00. The actual disbursal was made on July 18, 2001, to the land owners' attorney in trust for his clients.

¶ 5 On January 28, 2005, the land owners filed a motion to judicially determine the date of taking asserting that there had been no taking because the Department was not in complete physical possession of the property. Although the condemner argued that the date of taking was established by the payment of the commissioners' award into court, the trial judge sustained the land owners' motion. She determined that the date of taking had yet to occur. The ruling was based on a finding that taking could be established only when two conditions were met: 1) payment of the commissioners' award into court or to the land owners; and 2) the condemner taking actual physical control of the property.

¶ 6 The Department filed an application to assume original jurisdiction and petition for writ of mandamus, or in the alternative, writ of prohibition on May 11, 2005. On the last day of May, the land owners' filed their response.

CONDEMNATION ACTIONS VERSUS INVERSE CONDEMNATION PROCEEDINGS

¶ 7 Condemnation proceedings, such as the one here, differ significantly from inverse condemnation actions. In a condemnation action, the government, as plaintiff, proceeds against the landowner, as defendant. The landowner, as plaintiff, proceeds against the government, as a defendant, for its encroachment in an inverse condemnation proceeding. In an inverse condemnation case, the commissioners' appraisal is irrelevant to and does not decide the issue of taking. Rather, unless confessed, critical in an inverse condemnation cause is the taking issue which remains a fact question.⁶

¶ 8 In condemnation, the fact of a taking is not the issue — an entity is exercising its right of eminent domain. Commissioners assess the value of the condemned property and, unless one of the two parties challenges the award, the commissioners' determination governs.⁷ Furthermore, reimbursement for expenses in condemnation proceedings and inverse condemnation actions are governed by different statutory procedures. While 27 O.S.2001 § 11, governs expenses which may be recovered in a regular condemnation proceeding, § 12 provides the reimbursement schedule for expenses in an inverse condemnation proceeding.

DISCUSSION

¶ 9 The "date of taking" is established when the commissioners' award is paid into court or to the property owner.

¶ 10 The Department argues that only one condition must be met to accomplish a taking — the commissioners' award must be paid — either into the court or directly to the property owner. The land owners assert that two actions must take place — payment of the commissioners' award and actual physical control of the property — before a taking occurs. We disagree.⁸

¶ 11 The Oklahoma Constitution art. 2, § 24 does not support the land owners' arguments. It provides in pertinent part:

"Private property shall not be taken or damaged for public use without just compensation.... 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. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation...." [Emphasis added.]

The constitutional provision sets up only one condition a condemner must meet before a land owner's rights may be disturbed — payment of compensation to the owner or into court for the owner's benefit. It is the payment of just compensation that allows the taking.⁹ Actual physical possession is not a condition of determining whether the property is "taken". Rather, it is the factor which triggers the land owner's right to demand compensation if not previously paid. This interpretation of art. 2, § 24 is consistent both with the applicable condemnation provisions and with Oklahoma jurisprudence.

¶ 12 Pursuant to 69 O.S.2001 § 1203(d), a condemner has the absolute right to possession and to enter condemned property when the award is paid either into court or to the property owner.¹⁰ Subsection (e)(1) of the statute mandates that although the adequacy of the commissioners' award may be reviewed by exception or litigated at a later date, the Department has a continuing right of possession under the original appraisal.¹¹ Furthermore, subsection (f) provides that if the cause is appealed, the Department's work on the condemned property will not be interrupted if the award of the commissioners, or jury, as the case may be, has been deposited with the court clerk for the owner.¹² Clearly, the applicable statutory provisions establish that the rights of the Department versus the protection of the land owners hinge — not on the Department's having taken possession — but on its having paid compensation to, or for the benefit of, the land owners.

¶ 13 Rogers v. Oklahoma City, 1942 OK 11, 120 P.2d 997 involved a taking for purposes of a public park. At the time of the taking, the land owner was not compensated for the disturbance of property rights. The land was sold and the Rogers Court was asked to determine which of the two property owners would be entitled to damages. It held that a city could obtain title to real property through one action pursuant to art. 2, § 24 — the actual physical control of the property.

¶ 14 However, Rogers was specifically overruled in Allen v. Transok Pipe Line Co., 1976 OK 53, 552 P.2d 375. The Court in Allen recognized that Rogers was contrary to art. 2, § 24's provision requiring payment of compensation before a taking can occur in a condemnation proceeding. In overruling Rogers, the Court relied on Stinchcomb v. Oklahoma City, 1921 OK 154, 198 P. 508. In Stinchcomb, the Court determined that failure to instruct the jury that damages are fixed when compensation is paid constituted a substantial violation of the landowners' rights under the Okla. Const. art. 2, § 24. Further, under Stinchcomb, the legal taking occurs when compensation, as fixed by the commissioners, is paid to the owner of the property or into court for the owner's benefit.¹³

¶ 15 In Oklahoma, the clearly established policy in condemnation actions is to allow the condemnee to be compensated for the taking as soon as possible after the taking occurs.¹⁴ It is important for the land owner and the condemner to understand the date from which compensation is to be measured. A condemnee's damages are judged by...