State Highway Comm'n v. Brixey

• Decision Date: 06 October 1936
• Docket Number: Case Number: 25986
• Citation: 178 Okla. 118,61 P.2d 1114,1936 OK 595
• Parties: STATE HIGHWAY COMMISSION v. BRIXEY et al.
• Court: Oklahoma Supreme Court

1936 OK 595

61 P.2d 1114

178 Okla. 118

STATE HIGHWAY COMMISSION v. BRIXEY et al.

Case Number: 25986

Supreme Court of Oklahoma

Decided: October 6, 1936

Syllabus

¶0 1. STATES - State not Liable to Suit Except by Its Consent.

A sovereign state cannot be sued except by its consent granted by express legislative enactment.

2. SAME - Eminent Domain - After State Has Constructed Permanent Highway on Properly Acquired Right of Way, Landowner not Authorized to Sue State for Consequential Damages by Resorting to Condemnation Proceedings Provided by Statute.

When the state, through the Highway Commission, has properly acquired a right of way, and has constructed permanent highway improvements thereon, there is no authority of law for an abutting landowner, or the owner of the land over which the right of way was acquired, upon his claim of resulting or consequential damages, to sue the state and recover such damages by resorting to the procedure of appointing commissioners as in the case of condemnation proceedings authorized by section 24, article 2, of the Constitution, and sections 10093, 10094, 11931, and 11935, O. S. 1931.

3. SAME - Action None the Less Suit Against State Though Procedure in Condemnation Cases Followed.

Where plaintiff seeks to sue the state to recover such damages, the action is none the less a suit against the state, though plaintiff proceed, not upon praecipe and summons, but by an attempted resort to the procedure in condemnation cases, by appointment of commissioners to estimate the amount of his damage.

4. SAME - Former Decision Overruled.

The opinion and decision of this court in Stedman v. State Highway Commission, No. 24905, decided October 22, 1935, 174 Okla. 308, 50 P.2d 657, is expressly overruled.

Appeal from District Court, Lincoln County; Hal Johnson, Judge.

Action by Samuel Brixey and another against the State Highway Commission for damages resulting from highway construction. From a judgment for plaintiffs, the defendant appeals. Reversed and remanded.

J. Berry King, former Atty. Gen., Robert D. Crowe, former Asst. Atty. Gen., R.A. Keller, Mac Q. Williamson, Atty. Gen., Houston R. Hill, Asst. Atty. Gen., and L.V. Orton, Right-of-Way Atty., for plaintiff in error.

Embry & Embry, for defendants in error.

WELCH, J.

¶1 In the trial court Samuel Brixey and Della Brixey instituted this action, number 11305, against the State Highway Commission for the recovery of damages to real property resulting from the method of construction of highway improvements, and alleged to cause the destruction of plaintiffs' filling station and grocery business, and to cause certain of plaintiffs' lands to be subject to overflow from backwater, which was forced across the lands of others and onto plaintiffs' land.

¶2 In a former action, numbered 10937, the state, in exercise of the power of eminent domain, had maintained condemnation proceedings and taken 1.44 acres of land owned by the Brixeys for highway purposes, paying the sum of $250, which was the sum therein awarded, as damages to the entire tract of land. The highway was constructed. There was then a reconstruction project with federal aid, followed several months later by this action for alleged resulting damages to plaintiffs as above set out.

¶3 Following trial to a jury there was a verdict for plaintiffs, fixing their recovery at $500, and a judgment rendered for said sum "against the defendant, State Highway Commission of Oklahoma, Sam R. Hawks, Chairman, J.F. McKeel, and L.H. Wentz, as members of the State Highway Commission of the State of Oklahoma, and their successors in office." From that judgment this appeal is prosecuted.

¶4 At the outset there is presented a question which we view as controlling. That is, the contention that this is such a suit against the state as cannot be maintained without consent of the state.

¶5 In National Surety Co. v. State Banking Board, 49 Okla. 184. 152 P. 389, this court, speaking through Chief Justice Kane, stated the rule in these words:

"It is a long-established and well-recognized principle of sovereignty that the state cannot be sued without its consent granted by direct legislative enactment."

¶6 That rule has been followed with complete consistency.

¶7 In State v. Fletcher, 168 Okla. 538, 34 P.2d 595, we considered an action for private consequential damages following construction of public improvement, and the maintenance thereof; but that action was preceded by specific consent granted by direct legislative enactment.

¶8 It is not contended that any such character of consent has been granted here. The plaintiffs contend that this is not such an action against the state as to require such consent. And that sections 10093, 10094, 11931, and 11935, O. S. 1931, contain sufficient consent to the maintaining of this action. That contention is apparently based upon the method of procedure adopted by the plaintiffs in this action. There was no praecipe filed and summons issued as in the ordinary action for damages, but instead the plaintiffs elected to proceed by and through the appointment of commissioners to estimate the amount of damages as in the case of strict condemnation cases. That was, of course, the procedure followed by the state in the former case, No. 10937, in maintaining proper condemnation proceedings before the highway construction. Section 24, article 2, of the Constitution and the sections of the statute above mentioned outline that method of procedure in such a case. But there is nothing contained therein which could be construed as consenting or authorizing the maintainance of a damage suit against the state by the use of that procedure to recover consequential or resulting damages following prior road construction over right of way properly acquired. If such procedure may be relied up on to maintain such an action for such damages, then it might well be argued that the claim involved in State v. Fletcher, supra, could have been sued on in a similar manner without waiting for the legislative consent to sue the state.

¶9 It is wholly clear in the case at bar from the plaintiffs' petition, and from the judgment rendered, as well as from the evidence incorporated in the case-made, that this is nothing more nor less than an action for consequential damages alleged to have resulted from prior road construction work of the state, and is an effort to recover those damages from the public funds of the state, after the amount of the unliquidated claim is determined by trial upon the damage claim. We find no difficulty in concluding that it is a suit against the state, and that the status of the suit as an action against the state is not changed by the plaintiffs' effort to proceed through the appointment of commissioners as in condemnation proceedings. If the state had originally proceeded with its highway construction without obtaining the right of way or without maintaining condemnation proceedings, then the landowner might have instituted the action which the state had failed to institute, such original condemnation being expressly authorized by the statutes cited, but no such situation is presented. We see here nothing more than an attempt to maintain an unauthorized damage suit against the state by an attempted resort to the initial procedure of condemnation.

¶10 Our attention is directed to City of Tulsa v. Hindman, 128 Okla. 169, 261 P. 910, and C., R.I. & P. R. Co. v. Larwood. 175 Okla. 96, 51 P.2d 508, and other cases where we upheld the right to recover consequential damages. But in each of those cases we found a defendant capable of being sued for such damages. Those cases did not involve any immunity from suit, which is one of the attributes of the sovereign state and is the controlling question here.

¶11 Our attention is directed to State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002, with the contention that the ruling there should be held to justify this suit. Some criticism of that opinion is presented. We neither approve nor disapprove that opinion here. It is not directly in point. That opinion points out and emphasizes the fact that the case does not involve or present the question of the maintenance of a suit against the state. That question is presented here, and is the controlling question, and therefore the opinion in the Smith Case is not directly in point. In that opinion there are expressions which might be construed as approving the appointment of commissioners to estimate consequential damages. Those expressions would be wholly incorrect as applied to a suit seeking and obtaining judgment against the state, as this one, where that question is properly presented as it is here. We, therefore, in this case cannot follow plaintiffs' construction of the rule in the Smith Case.

¶12 Our attention is directed to Wentz v. Potter, 167 Okla. 154, 28 P.2d 562; Morse v. Board of County Commissioners, 169 Okla. 600, 38 P.2d 945, and Sweeney v. Dierstein, 170 Okla. 566, 41 P.2d 673, and plaintiff contends they support his right to so sue the state. However, those cases involve or refer to an original taking by the state, in each case without consent of the landowner plaintiff, and without a condemnation by the state against the owner plaintiff. In such case the statutes authorize the landowner to commence the condemnation proceedings which the state should have commenced against him, but did not do so. The right of the plaintiff in each of those cases to so proceed depended on the fact that no such prior proceeding against him had been conducted by the state. Neither of those cases involved a subsequent action for consequential damages alleged to result from prior road construction on right of way properly purchased or condemned by the state in a former action against the same party. Those cases, therefore, do not support plaintiffs in bringing this second so-called condemnation proceeding to recover judgment for consequential damages.

¶13 In Stedman v. State Highway...