State of Okla. v. EVANS

• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: KENNETH L. BUETTNER, Presiding Judge.
• Citation: State ex rel. Dep't of Transp. v. Evans, 2010 OK CIV APP 107, 241 P.3d 273 (Okla. Civ. App. 2010)
• Decision Date: 04 October 2010
• Docket Number: Division No. 1.,733. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,No. 106,106
• Parties: STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee, v. Hazel Lorraine EVANS, Defendant/Appellant, and The Rogers County Treasurer, Defendant.

241 P.3d 273

2010 OK CIV APP 107

STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee,

v. Hazel Lorraine EVANS, Defendant/Appellant,andThe Rogers County Treasurer, Defendant.

No. 106,733. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma,Division No. 1.

March 25, 2010.

Rehearing Denied April 23, 2010.

Certiorari Denied Oct. 4, 2010.

Appeal from the District Court of Rogers County, Oklahoma; Honorable J. Dwayne Steidley, Judge.

AFFIRMED.

Kelly F. Monaghan, Lori Gilliard, John M. Folks, Holloway & Monaghan, Tulsa, OK, for Plaintiff/Appellee.

K. Ellis Ritchie, Ryan M. Roberts, David F. DuVall, K. Ellis Ritchie, P.C., Pryor, OK, for Defendant/Appellant.

KENNETH L. BUETTNER, Presiding Judge.

¶ 1 Plaintiff/Appellee, the Oklahoma Department of Transportation (ODOT), filed a petition June 17, 2005, to acquire a portion of Defendant/Appellant Hazel Lorraine Evans' (Evans or Landowner) property, through eminent domain for the purpose of improvement and expansion of Highway 20 in Rogers County. Evans filed an exception to the Commissioners' Report on the grounds that it was in derogation of 27 O.S.2001 § 13(9). The overarching question before the trial court, and on review is whether, in an eminent domain proceeding, the landowner may except to the commissioners' report and force the State to find a parcel of the land in question to be an uneconomic remnant pursuant to 27 O.S.2001 § 13(9). We hold that § 13(9) is an expression of policy directed to the condemning authority concerning uneconomic remnants which is unenforceable by a private party. The trial court did not abuse its discretion when it denied Defendant/Evan's exception and we therefore affirm.

¶ 2 Evans' property consists of 4.30 acres on the south side of Highway 20. She has a home on the property, a barn, and a gravel driveway. According to ODOT's Brief-in-Chief, it acquired .47 acre in fee simple, a .03 acre perpetual utility easement, and a .03 acre temporary easement. Evans' Brief-in-Chief alleges the taking to be 105.10 feet in total from the right-of-way line, consisting of 70.8 feet in fee and 5 feet in easement, resulting in a setback, nonconforming to zoning requirements. Evans based her exception to the Commissioners' Report on this allegation: that ODOT abused its discretion when it failed to declare the remainder of her property to be an uneconomic remnant. She claims ODOT should have been required to acquire her home and provide her with relocation assistance. ¹

¶ 3 Title 27 O.S.2001 § 13 Policies states:

Any person, acquiring agency or other entity acquiring real property for any public project or program described in Section 9 of this title shall comply with the following policies:

* * *

9. If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire that remnant shall be made. For the purposes of this section, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the property of the owner which has little or no value or utility to the owner.

¶ 4 Section 15 of Title 27 is apposite to Section 13, and describes the circumscription of landowners: “The provisions of Section 5 [Title 27, § 13] create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.” In Western Farmers Electric Cooperative v. Willard, 1986 OK CIV APP 5, 726 P.2d 361, this Court held that the trial court was correct in denying landowners' objections based on the condemning authority's failure to comply with § 13 because it is a statement of policy only.

[1] ¶ 5 Eminent domain proceedings are “... special statutory proceedings and are to be carried out in accordance with the specific procedures prescribed by the Legislature.” State ex rel. Department of Transportation v. Kelly, 2007 OK CIV APP 25, ¶ 13, 156 P.3d 734, 738. “Once sworn, the commissioners are obligated to ‘inspect the real property and consider the injury which the owners may sustain by reason of the condemnation, and ... assess the just compensation to which the owner is entitled; ... reporting in writing to the clerk of the court, setting for the quantity, boundaries and just compensation for the property taken. 69 O.S.Supp. § 1203(c).’ ” Id. In the Kelly case, the landowners sought replacement housing payments. The Court of Civil Appeals held that those payments were not recoverable as direct or consequential harm caused to property taken (just compensation) pursuant to our statutory scheme.

[2] [3] [4] ¶ 6 In general, there is no “cause of action” in eminent domain proceedings. “The presence of a civil wrong is a critical identifying characteristic of a ‘cause of action’ since ‘causes of action’ are to remedy civil wrongs which are threatened or committed.” City of Tahlequah v. Lake Region Electric, Cooperative, Inc., 2002 OK 2, ¶ 8, 47 P.3d 467, 471. “Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity.” Id. at ¶ 8, p. 471. Landowner cannot force ODOT to re-evaluate its taking through the use of § 13(9).

[5] ¶ 7 The Commissioners returned a damages report to the Evans property in the total amount of $98,000. Evans timely demanded a jury trial. The parties dispute the point of measuring the taking-either from the home's foundation or the front porch, a fact question to be argued to the jury. Evans has...