State Highway Comm'n v. Smith
| Decision Date | 28 October 1930 |
| Docket Number | Case Number: 19601 |
| Citation | 293 P. 1002,1930 OK 480,146 Okla. 243 |
| Parties | STATE HIGHWAY COMMISSION v. SMITH. |
| Court | Oklahoma Supreme Court |
¶0 1. Eminent Domain--Right to Recover for Consequential Damages to Property by Reason of Public Improvement Though None of Property Taken.
Under section 24, art. 2, of the Constitution, providing that "private property shall not be taken or damaged for public use without just compensation," a recovery may be had in all cases where private property is damaged in making an improvement that is public in its nature. It is not required that the damages shall be caused by trespass, or an actual physical invasion of the owner's real estate; but if the construction is the cause of the damage, though consequential, the owner of the property damaged may recover.
2. Same--Constitutional Provision Construed--"Taken or Damaged."
The use of the words "or damaged," in addition to the word "taken," in section 24, art. 2, of the Constitution, indicates a deliberate purpose not to confine a recovery to cases where there is a physical invasion of the property affected, but to make the test of liability the fact that private property has been "damaged" for the public use, without regards to the means by which the injury was effected.
3. Same--Elements of Damage.
The elements of damages where private property is taken or damaged for public use includes all damages or injuries arising from the exercise of the right of eminent domain which cause a diminution of the value of private property, whether this results directly to the property or is but an interference with the right which the owner has to the legal and proper use of the same.
4. Same--Statutory Procedure for Ascertaining Damages from Construction of State Highways.
Under the provisions of chapter 118 of the Session Laws of 1927, section 5501, C. O. S. 1921, prescribes the manner by which the three freeholders provided for in section 24, art. 2, of the Constitution shall ascertain the compensation to be awarded for consequential damages to private property caused by the construction of a public highway by the State Highway Commission and the procedure to be followed by the freeholders and the court with reference thereto.
Error from District Court, Grady County; Will Linn, Judge.
Petition by C. E. Smith against the State Highway Commission to determine damages to land from construction of highway. From judgment holding petition sufficient, the Highway Commission appeals. Affirmed.
J. Berry King, Atty. Gen., for plaintiff in error.
Melton & Melton, for defendant in error.
¶1 This case was commenced by the defendant in error filing a petition in the district court of Grady county alleging consequential damage to his land from the construction by the plaintiff in error of a public highway on adjoining land. After the freeholders had made their return, plaintiff in error filed its exceptions and included therein the statement that the petition of the plaintiff for appointment of the freeholders was insufficient in law to warrant and authorize the district judge of Grady county to appoint them and prayed the court to set aside, vacate, and hold for naught their report and to dismiss the petition. This was overruled by the trial court, and the appeal is from that order.
¶2 The plaintiff in error presents but one proposition: A landowner may not resort to condemnation proceedings to ascertain damages to his land caused by the construction of a highway upon the land of another.
¶3 A review of the authorities cited in 20 C. J., under the heading, "Eminent Domain," construing the various constitutional and legislative provisions, reveals that three conditions are presented: First, cases where private property is taken for public use; second, where a part of a tract is taken and the residue of the tract suffers a direct physical damage as a result of the taking of a part; and third, where a property, no part of which was taken for public use, sustains a consequential damage by reason of the making of a public improvement.
¶4 Under constitutional and statutory provisions prohibiting the taking of private property for public use, the courts uniformly hold that damages sustained from the actual taking of a portion of the property may be recovered. Almost all of the courts hold that where a part of the property is taken and the residue suffers direct physical damages as a result of the taking of a part, the damage to the residue constitutes a taking within the meaning of those provisions. Almost all of the courts formerly held that construction did not extend to property no part of which had been taken for public use but which had been consequentially damaged by reason of the making of a public improvement. The injustice of the last class of holdings was generally recognized and as a result thereof many of the constitutional and legislative provisions were changed so as to prohibit both the taking and the damaging of property for public use. Those changes were generally made prior to the adoption of the Constitution of Oklahoma, and we think that the inclusion in our Constitution of the prohibition against the taking or damaging of private property for public use was due to the opinion of its makers that the consequential damage resulting from public improvements on other land should be compensated. That has been the consistent holding of this court.
¶5 In Page v. Oklahoma City, 129 Okla. 28, 263 P. 448, the suit was for damages against the city caused by the discharge of sewage upon the premises and offensive odors arising therefrom. This court said:
¶6 In City of Tulsa v. Hindman, 128 Okla. 169, 261 P. 910, the action was for damages, and the court held:
¶7 In Oklahoma City v. Vetter, 72 Okla. 196, 179 P. 473, a suit was brought against the city to recover damages sustained from a depreciation of the market value of certain city real estate, alleged to have been suitable for residential and home purposes, by reason of the erection on adjoining property of a pesthouse or hospital for the confinement and treatment of diseases. The question was whether the location of the pesthouse damaged the property in the sense in which the term is used in the Constitution. This court held:
"Depreciation of the value of real property caused by establishing a hospital for contagious diseases, commonly known as a pesthouse, on adjacent land, although under statutory authority, constitutes a damaging of private property for public use, for which compensation must be made, within the meaning of section 24, art. 2, of the Constitution"
--following the rule announced in City of Muskogee v. Hancock, 58 Okla. 1, 158 P. 622. In that case this court held:
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