Stedman v. State Highway Com'n
| Decision Date | 22 October 1935 |
| Docket Number | 24905. |
| Parties | STEDMAN v. STATE HIGHWAY COMMISSION. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. 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 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. 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 regard to the means by which the injury was effected.
3. Under the provisions of section 24, art. 2, of the Constitution, the state is prohibited from taking or damaging private property for public use without just compensation.
4. By the provisions of sections 11931-11934, O. S. 1931, the state has provided an adequate remedy for the determination of damages to private persons for property taken or damaged by the state for public use, and such remedy is exclusive.
5. The issues in an action by a landowner to recover consequential damages to property arising solely by the construction and maintenance of a state highway are not res adjudicata by reason of a former condemnation proceeding where an award was made and accepted by the owner for damages, which award included the value of the land taken and the damages to the remainder of the tract occasioned by said taking.
6. The rule that an owner must recover in one proceeding all the damages which have resulted or are reasonably liable to result from the taking or damaging private property for public use has no application to damage caused by a separate and distinct taking or damaging by construction of public works.
Appeal from District Court, Murray County; W. G. Long, Judge.
Action by Frank P. Stedman against the State Highway Commission. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Charles Hill Johns, Harold Thweatt, and Houston Hill, all of Oklahoma City, for plaintiff in error.
Mac Q Williamson, Atty. Gen., Randell S. Cobb, Asst. Atty. Gen and Claude Weaver, Jr., of Oklahoma City, for defendant in error.
This is an appeal from a judgment in favor of the state highway commission in an action by plaintiff in error to recover consequential damages alleged to have resulted from the taking of a portion of plaintiff's land for highway purposes and the construction of a bridge and roadway thereon.
Plaintiff's land is described as the southeast 1/4 of the northeast 1/4 of section 19, township 1 south, range 2 east, in Murray county.
The Washita river crosses United States highway No. 77, state highway No. 4, a short distance south and west of the southwest corner of plaintiff's land. The highway runs north and a little east from the river and cuts off a small portion of plaintiff's land at the northwest corner. During the year 1929, a bridge was constructed across the river and the roadway was graded and graveled. In constructing the grade for the road, a relief opening of some 300 feet was made in the grade for the purpose of caring for overflow waters in flood times.
In the spring of 1930, the state highway commission decided to pave the highway and for some reason decided that it was necessary to have a strip off of plaintiff's land some 90 feet wide at the north end running to a point some 300 feet south containing about .69 of an acre. Being unable to secure same by purchase, the state, by the Attorney General, about March 10, 1930, commenced an action in the district court of Murray county to condemn the same. Commissioners were appointed to view the property and consider and appraise the injury to the owner caused by the appropriation sought. They filed their report on April 12, 1930, assessing the damages at: Value of land taken, $28; damage to remainder of tract, $30; total, $58.
The condemnation money was paid to the court clerk May 10, 1930, and by the clerk to Frank Stedman and Marie Stedman, on October 16, 1930.
On October 27, 1931, this action was commenced.
Plaintiff alleged the construction and maintenance of the bridge, culverts, drain-ways, and abutments; that as a consequence of the construction and maintenance plaintiff's premises had been damaged by the diversion of the overflow waters from said river in such a way as to wash away part of plaintiff's land and work great holes in the surface remaining, thereby diminishing the value of his premises to the extent of $2,500.
The plaintiff prayed for the appointment of commissioners to inspect the premises and appraise the injury so caused.
Notice of the application for appointment of appraisers was given, and on November 6, 1931, an order was made appointing three commissioners, and on November 12 the commissioners made their report assessing the damage at $1,800.
The state highway commission filed its exceptions to the report of the commissioners. The grounds of objection set up were that the petition for appointment of appraisers is insufficient at law and does not allege that any part of plaintiff's property was taken for public use, nor that it is necessary to appropriate any portion of plaintiff's property for public use; that plaintiff was seeking only damages claimed to have resulted from the construction of a public highway upon lands belonging to the state; that the action is in form an attempted condemnation proceeding, but in fact an action for damages prohibited by the Eleventh Amendment to the Constitution of the United States; that the action is one against the state to which the state had not consented, and that the matters involved had theretofore been adjudicated in the proceedings theretofore brought by the state to condemn the strip of plaintiff's land for highway purposes, and that no exceptions to the report of the commissioners in that action were ever filed, and no appeal taken therefrom whereby said report had become final as to all compensation and damages resulting from the construction and maintenance of said state highway, bridge, and culverts. Copies of the petition and report of appraisers in the former action were attached.
Plaintiff responded to the objection and moved the court to confirm the award upon the grounds that the action was a proceeding under the powers of eminent domain as provided by the Constitution and laws of the state, and that the defendant had taken such possession of plaintiff's property as to constitute a taking for public use.
The objections of defendant were overruled, and defendant was given time to file its answer, and its request for a jury trial was granted.
Defendant then answered by general denial, plea of res adjudicata, and alleged in substance that the action was to all intents and purposes an ordinary action for damages prohibited by the Eleventh Amendment to the Constitution of the United States, and that the state had not consented to being sued.
As the issues were joined, the cause was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.
The plaintiff presents four propositions, the first three of which we pass for the moment. The fourth proposition is that the court erred in giving instructions 1, 2, 3, 4, 6, and 8.
By the instructions 1 and 2, the court completely ignored the theory upon which plaintiff predicated his action. That is, that said action was a proceeding in condemnation and not one for damages based upon negligence in the construction and maintenance of the highway, bridge, drains, and culvert.
Instruction No. 1 is: "You...
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