State v. Adams

• Decision Date: 18 June 1940
• Docket Number: Case Number: 28761
• Citation: 1940 OK 320,105 P.2d 416,187 Okla. 673
• Parties: STATE v. ADAMS et al.
• Court: Oklahoma Supreme Court

1940 OK 320

105 P.2d 416

187 Okla. 673

STATE v. ADAMS et al.

Case Number: 28761

Supreme Court of Oklahoma

Decided: June 18, 1940

Syllabus

¶0 1. EMINENT DOMAIN--Conveyance of part of tract for highway purposes--Scope of compensation for "all damages and building of fences."

Where part of a tract of land is conveyed for highway purposes, and the written easement recites that it includes "all damages and building of fences," the consideration paid therefor compensates the owner only for the land taken, and such damage to the remaining part as might reasonably be anticipated to result from the taking and use of the portion granted by the easement.

2. SAME --Consequential damages arising by reason of construction of public improvement recoverable under constitutional provision.

Consequential damages arising by reason of the construction of a public improvement may be recovered under section 24, art. 2, of the Constitution.

3. SAME-- Action to recover consequential damages to land caused by method of construction of highway over part thereof not necessarily predicated on negligence.

Action to recover consequential damages to land, caused by the method of construction of a highway over a part thereof, is not necessarily predicated on negligence.

4. STATES--STATUTES-- Special act authorizing individual to sue state for damages to property resulting from method of construction of public improvement not violative of constitutional provisions.

A special legislative enactment which grants permission to an individual to sue the state for damages to property resulting from the method of construction of a public improvement does not violate the provisions of sections 46 and 59, art. 5, of the Constitution.

5. STATUTES--NEW TRIAL--Offer on motion for new trial to prove act waiving state's immunity from suit was not advertised as required of special bills held properly rejected.

Offer by state, on motion for new trial, to prove that act waiving immunity from suit as to plaintiff was not advertised as required by section 32, art. 5, of the Constitution, held properly rejected.

6. EMINENT DOMAIN--Action by landowner, pursuant to act waiving immunity of state, for consequential damages resulting from construction of highway across part of homestead--Joinder of wife as party plaintiff not fatal to jurisdiction.

Where landowner, pursuant to act of the Legislature waiving immunity of state, brings an action against the state for consequential damages resulting from construction of highway across a part of his homestead, joinder of his wife as party plaintiff in the action held not fatal to the jurisdiction of the trial court.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Action by Lewis Adams and wife against the State. Judgment for plaintiffs, and defendant appeals. Affirmed.

Mac Q. Williamson, Atty. Gen., Houston W. Reeves, Asst. Atty. Gen., and Claude Weaver, Jr., of Oklahoma City, for plaintiff in error.

Thos. G. Andrews, Andrews & Andrews, and James D. Fellers, all of Oklahoma City, for defendants in error.

HURST, J.

¶1 Plaintiffs, Lewis Adams and Amelia A. Adams, brought this action against the state, pursuant to authority of article 4, ch. 65, S. L. 1935, for damages to land occasioned by the overflow of surface water due to the construction of a highway across a portion thereof. The trial court overruled defendant's demurrer to plaintiffs' petition, demurrer to plaintiffs' evidence, and motion for a directed verdict, and submitted the case to a jury, which found for plaintiffs. Defendant's motion for judgment non obstante veredicto and motion for new trial were denied, and judgment was rendered on the verdict. Defendant appeals.

¶2 The material facts from which the controversy arose are as follows: Plaintiffs were the owners of 80 acres of land in Lincoln county. In the spring of 1928, by two instruments in writing, they conveyed to defendant a perpetual easement for highway purposes over the northwest portion of their land, upon which strip defendant constructed a paved road. The total consideration for the two easements was $77, and the instruments recited that they included "all damages and building of fences." Prior to the construction of this paved highway a state road had been maintained north of and adjoining plaintiffs' premises. Plaintiffs' evidence tended to prove that while the old road was in existence the surface water on lands north of such road was conducted by certain ditches under a wooden bridge which was a part of the old road, and thence to a larger itch on the west line of their property, and that this arrangement adequately protected their land from overflow and damage; that when the paved highway was constructed the provision made to care for such surface waters proved inadequate, and some 25 acres of their land was rendered practically worthless by the depositing thereon of sand carried by such overflow waters. This evidence was to some extent contradicted by witnesses for the defendant. Plaintiffs brought an action for the damages against the State Highway Commission, and after an adverse decision by this court in that case (State Highway Commission v. Adams [1936] 178 Okla. 270, 62 P.2d 1013), commenced this action under authority granted by the above-cited statute.

1. Defendant's first contention is that the consideration paid by it for the two casements is presumed to have been full payment for all damages to the remainder of the land, and therefore it is not liable to plaintiffs. It relies on Poston v. City of McAlester (1928) 132 Okla. 4, 268 P. 1110, and cases from other states' holding that such consideration is presumed to cover all the damages to which the landowner would have been entitled in case that portion of his land embraced in the easement was taken by a regular condemnation proceeding. We consider that a correct statement of law. But in condemnation proceedings, only such damages will be awarded as may be reasonably anticipated to result from the use of the portion taken for the purposes for which it is condemned. The constitutional provision (section 24, article 2) cannot be carried out, in its letter and spirit, by anything short of a just compensation for all the direct damages to the owner of the land taken or damaged, confined to that tract, occasioned by the taking of his land. Lewis Eminent Domain (3d Ed.) sec. 686. In section 714 of the same work the author says:

"Damages are to be assessed on the basis that the works will be constructed and operated in a skillful and proper manner. Thus in case of railroads it must be assumed that they will construct necessary and proper culverts, and that, in bridging streams, they will make waterways of sufficient capacity and so place the piers and abutments as not to do any unnecessary injury to the adjacent lands. All damages resulting from neglect in construction or from negligence in the use of the property or works may be recovered by appropriate actions by the parties damnified when such damages occur, and nothing should be allowed on the theory that such negligences may happen."

¶3 The anticipated damage where part of a tract is condemned must be such as is "reasonably incident to the construction or operation of the work to be considered in awarding compensation, and if there is nothing in the matter of economy or safety which seems to require an extensive change in natural conditions, such as the diversion of a stream, damages for possible injury on that account will not be awarded." 18 Am. Jur. 905; 10 R. C. L. 152. This general rule has been followed by this court. Oklahoma Gas & Electric Co. v. Miller Bros. 101 Ranch Trust (1935) 173 Okla., 101, 46 P.2d 570; Sweeney v. Dierstein (1935) 170 Okla. 566, 41 P.2d 673. See, also, Illinois Power & Light Corporation v. Peterson (Ill. 1926) 153 N. E. 577, 49 A. L. R. 692, and note VI; Lewis and Clark County v. Nett (Mont. 1928) 263 P. 418.

¶4 The authorities cited by defendant do not, in our opinion, conflict with the general rule above announced. In fact, defendant relies on the rule stated in 20 C. J. 1068, to the effect that the owner must recover in one action "all damages which have resulted, or are reasonably liable to result in the future, from a proper construction or operation of the improvement, and that no subsequent action will lie to recover for items which were or might have been considered in the original proceeding."

¶5 The injustice of a contrary rule is readily apparent. It would result, in many instances, in the condemnor being required to recompense the landowner for injuries he might never sustain, or in the landowner suffering injuries to his property without hope of redress, depending upon the views of the commissioners, or the jury on appeal, as to the probable nature and extent of damages remote and speculative, and incapable of ascertainment prior to the actual construction of the work. In the present case the land of plaintiffs had been adequately protected by the plan of construction of the old highway. They had no reason to expect a different result from the construction of the new. If, in a condemnation proceeding, an award for the value of 25 acres of their remaining land had been made, based on the remote possibility that the construction of the new road might damage plaintiffs' land to that extent, no court would have sustained such an award. We hold that the damage sued for in this action was not such as would be awarded had the right of way been condemned, and was not covered by the price paid for the easements. Also, such consequential damage comes within the purview of section 24, art. 2, of the Constitution. Oklahoma City v. Collins-Dietz-Morris (1938) 183 Okla. 264, 79 P.2d 791; State v. Fletcher (1934) 168 Okla. 538, 34 P.2d 595; Page v. Oklahoma City (1928) 129 Okla. 28, 263 P. 448. In Stedman v. State Highway Commission (1935) 174 Okla. 308, 50 P.2d 657 (overruled on other grounds in State Highway Commission v....