State ex rel. Department of Highways v. Keen

• Decision Date: 19 July 1960
• Docket Number: No. 39152,39152
• Parties: STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Petitioner, v. W. P. KEEN, Judge of the District Court in and for the Second Judicial District of the State of Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 396

354 P.2d 396

1960 OK 169

STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the

State of Oklahoma, Petitioner, v. W. P. KEEN, Judge of the District Court in and for the

Second Judicial District of the State of Oklahoma,

Respondent.

No. 39152.

Supreme Court of Oklahoma.

July 19, 1960.

Syllabus by the Court.

This State's Condemnation Statutes and Constitution do not give its consent to be sued in an action in the nature of reverse condemnation proceedings for damages that do not include compensation for property directly taken, or to be taken, for the construction of a highway.

Appeal from the District Court of Beckham County; W. P. Keen, Judge.

Original proceedings in the Supreme Court by the State of Oklahoma ex rel. Department of Highways for a writ of prohibition to prevent a district judge from proceeding with the trial of an action arising out of the 'four-laning' of U. S. Highway No. 66. Writ granted.

Roland A. Walters, Jr., Max Cook, Oklahoma City, for petitioner.

Wise & Ivester, Sayre, for respondent.

BLACKBIRD, Justice.

In the present action the above named petitioner has applied to this court to take original jurisdiction and to grant its petition for a writ of prohibition to prevent the Respondent Judge from proceeding with the trial of Cause No. 13447, in the District Court of Beckham County, entitled 'C. H. Blackmon and Lina Blackmon, husband and wife, Plaintiffs, vs. State of Oklahoma, ex rel Department of Highways of the State of Oklahoma, Defendants.'

Plaintiffs in that action, hereinafter referred to merely as the 'Blackmons', owned and resided on a farm near the North Fork of the Red River, south of Sayre, Oklahoma, when the defendant therein, hereinafter referred to both as the 'Department' and the 'Petitioner', commenced execution of its plan to convert U. S. Highway No. 66, in that area, into a 4-lane highway. To have right-of-way wide enough to thus add two more lanes to said highway as it then extended alongside the Blackmons' farm, the Department purchased from them a 100-foot strip of land off one side of said farm, and constructed certain new land fills and grades in creating a base for the new 2-lane portion of the highway's approach to a new bridge across the above-mentioned stream. It seems to be conceded, for the purpose of the present original action, that this new construction has caused the North Fork, in periods of heavy rains since it was completed, to flood certain remaining portions of the Blackmons' farm; and, it was to recover their damages from this flooding that they instituted Cause No. 13447, supra. In their petition filed therein, the Blackmons referred to the effect of this flooding on their farm as 'taking' it, and after more specifically alleging that the value of said property had been 'totally destroyed by certain unlawful taking', they prayed (as in a condemnation proceeding) for the respondent District Judge to appoint three commissioners to appraise their injury '* * * by reason of the taking * * *'.

Instead of answering the Blackmons' said petition in said cause, the Department filed a pleading entitled: 'Special Appearance and Motions to Quash and Dismiss', setting forth therein the following grounds therefor:

'1. That there is nothing in the laws of the State of Oklahoma whereby provision is made for service of notice or process upon the State of Oklahoma in actions of this kind and nature.

'2. That the court has no jurisdiction in this action for the reason that this is a suit against the sovereign State of Oklahoma without the sovereign's consent.

'3. That plaintiff(s) * * * (have) * * * adequate remedy at law by proceeding according to the Constitution and the Statutes of the State of Oklahoma, rather than attempting to obtain damages by way of a reverse condemnation proceeding, as is being done in this action.'

After the respondent Judge had overruled the above-quoted pleading, the Blackmons, not being satisfied with the appraisal of $4,000 set forth in the Commissioners' report, demanded a jury trial. The Department then re-challenged the Court's jurisdiction and manner of proceeding, by filing its 'Exceptions and Objections To Report of Commissioners', in which it again prayed for dismissal of the action. After this pleading had been overruled, the Department instituted the present original action in this court, stating the above facts, among others less material, and alleging, inter alia, that unless prohibited, the respondent Judge will proceed with a jury trial (as demanded by the Blackmons), and asserting that, in so doing, he is assuming 'to exercise judicial power not granted by law and is assuming jurisdiction over the sovereign State of Oklahoma without there having been the proper legislative permission granted and further is attempting to make unauthorized application of * * * judicial force and power. * * * when as a matter of law, he is wholly without jurisdiction to so act.'

In support of its position herein that respondent should be prohibited from taking any further action in Cause No. 13447, supra (which is conceded to be in the nature or a reverse condemnation proceeding) except to sustain their aforesaid exceptions and objections and to dismiss the action, petitioner cites, among other authorities, the cases of State ex rel. Oklahoma State Highway Commission v. Alford, Okl., 347 P.2d 215; State v. Adams, 187 Okl....