Sweeney v. Dierstein

• Decision Date: 19 February 1935
• Docket Number: Case Number: 23183
• Parties: SWEENEY et al. v. DIERSTEIN et al.
• Court: Oklahoma Supreme Court

1935 OK 168

41 P.2d 673

170 Okla. 566

SWEENEY et al. v. DIERSTEIN et al.

Case Number: 23183

Supreme Court of Oklahoma

Decided: February 19, 1935

Syllabus

¶0 1. Eminent Domain--Highway Commission and not State Held Proper Party Defendant in Condemnation Proceedings.

The Highway Commission of the state of Oklahoma is the only proper party defendant, and the sovereign state should not be sued in such actions.

2. Process--Amendment of Petition by Adding Necessary Parties--Necessity of Proper Service on New Parties.

Express authority to amend a petition by adding parties necessary to adjudicate the claims or injuries therein complained of is given by section 251, O. S. 1931, but such emendation does not obviate the necessity of proper service on such added parties.

3. Eminent Domain--Statutory Proceedings to Condemn Land for Highway Purposes Applicable Though Land Already Taken.

In sections 10093 and 10094, O. S. 1931, the state has given its consent that its Highway Commission be sued in condemnation proceedings to ascertain the amount of damages suffered by landowners when their property is taken or traversed for highway purposes; and such proceedings are applicable whether the property has already been taken or traversed.

4. Same--Remedy of Landowner Where Easement for Highway Purposes Obtained by Fraud or Mutual Mistake.

An easement for highway purposes obtained by fraud or mutual mistake is, in contemplation of law, no easement at all; and if the Highway Commission takes possession of property and begins the construction of a road on or over it by virtue of such easement, fraud or mutual mistake in obtaining such easement may be pleaded against the Highway Commission in ascertaining the damages caused and the compensation due in an action against it in condemnation proceedings.

5. Same--Necessity for Service of Summons or Appearance by Highway Commission.

The State Highway Commission, when sued in condemnation proceedings authorized by sections 10093 and 10094, O. S. 1931, must be served with summons or enter its appearance in such action as any other defendant.

6. Same--Statute Authorizing County Attorney to Represent Highway Commission Repealed.

That part of section 10092, O. S. 1931, empowering the county attorney of the county where condemnation proceedings are brought to ascertain the compensation for land taken and the damages to property owners incident to the construction of a highway across their property, to represent and appear for the State Highway Commission is repealed, it being in conflict with sections 10093 and 10094, O. S. 1931.

7. Same--Authority of Attorney General to Appear for Highway Commission.

Only the Attorney General or his assistant may appear for the State Highway Commission in condemnation proceedings against the State Highway Commission, authorized by sections 10093 and 10094, O. S. 1931, and then only when ordered by the Governor or requested by the Commission.

8. Same--Invalidity of Default Judgment Against Highway Commission in Absence of Notice to Attorney General Pursuant to Statute.

In condemnation proceedings against the State Highway Commission, authorized by sections 10093 and 10094, O. S. 1931, no default judgment against the Commission is valid unless notice of the trial of such case be given the Attorney General or his assistant by the court clerk of the county where the action is pending as provided in sections 419, 420, and 421.

9. State--Compliance With Statutes Authorizing Suit Against State.

Acts of the Legislature giving the consent of the state to be sued must be substantially followed.

10. Eminent Domain--Highways--Validity of Easement Granted State for Highway Purposes.

An easement granted the state for highway purposes is taken in consideration, both of the value of the land taken and of the consequential damages to adjacent property of the grantor, unless the Highway Commission make such use of the tract occupied by the highway as could not reasonably have been contemplated and expected by the grantor, resulting in unanticipated injury to the adjacent property.

Error from District Court, Greer County; T. P. Clay, Judge.

Action by F. G. Dierstein and Lee Dierstein against Dan Sweeney and others. From judgment overruling motion for new trial, defendants bring error. Reversed and remanded, with directions.

J. Berry King, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for plaintiffs in error.

Herman S. Davis, of Mangum, for defendants in error.

PER CURIAM.

¶1 The parties will be referred to herein as they appeared in the lower court, i. e., defendants in error will be referred to as plaintiffs, and plaintiffs in error as defendants.

¶2 On May 13, 1931, plaintiffs began an action in the district court of Greer county against the defendants, Dan Sweeney, C. P. Smith, and J. D. Jenkins, engineers of the state highway commission of the state of Oklahoma, by filing their petition alleging that said defendants, over their protest, went upon a tract of land of which they were owners, for the purpose of appropriating it to the use and benefit of the state of Oklahoma as a right of way for a part of state highway No. 9, in violation of their rights, for the reason that no compensation had been paid, awarded, or agreed upon for the tract, and sought to enjoin the defendants, their servants, agents, and employees from going upon the land until just compensation for the tract and consequential damages had been awarded. All three of said defendants, represented by the county attorney of Greer county, responded to said petition on May 16, 1931, stating that they were employees of the state of Oklahoma in the construction of state highway No. 9 upon the tract of land described in plaintiffs' petition by virtue of an easement dated August 26, 1930, granted by plaintiffs, as husband and wife, to the state of Oklahoma, authorizing it to construct the highway thereon in consideration of the sum of $42.50; a copy of the easement was attached to the response; the easement states that it is perpetual for the purpose of enabling the state, its officers, agents, contractors, and employees to go upon, construct, build, and at all times maintain a public road through, along, and over the tract of land described.

¶3 Plaintiffs filed reply on May 18, 1931, admitting the execution of the easement, but alleging fraud on the part of the agents of the highway commission in its procurement.

¶4 On the same day the defendants, Sweeney, Smith, and Jenkins, engineers of the highway commission, filed motion to dismiss the action on the grounds: (1) That whereas the suit was brought against them as engineers of the highway department, the reply of plaintiffs revealed that the action was in fact against the state of Oklahoma; (2) that it was necessary that plaintiffs have the consent of the state of Oklahoma to bring suit against it, and the state had not granted such consent; (3) that plaintiffs had not alleged fraud on the part of these three defendants.

¶5 The motion to dismiss was heard by the court the day it was filed; the three defendant engineers appearing by the county attorney of Greer county, "acting for and on behalf of the Attorney General's office." The court overruled the motion of the three above-named defendants to dismiss, and entered a temporary restraining order against them, forbidding them from going upon the land in question on the execution by plaintiffs of a bond of $300, if it should be finally decided that such restraining order should not have been issued or granted. The plaintiffs furnished such bond on the 19th day of May, 1931.

¶6 On the 19th day of May, 1931, the court heard evidence of plaintiffs tending to sustain the allegations of their petition and of the defendants tending to controvert them, including the easement executed by plaintiffs granting authority to the state of Oklahoma to construct the highway.

¶7 At the conclusion of the evidence, the court entered judgment that the easement was sufficient for the state to proceed with the work upon the land in question so as not to impede the public improvement, but that the easement was granted under a mistake of facts as to the amount of damages and injury done. The judgment also allowed the plaintiffs, over the objection of the county attorney, to amend their petition, making the state highway commission and the state of Oklahoma parties defendant in order to institute condemnation proceedings. The county attorney agreed that if the court were going to allow the plaintiffs to amend their petition, he would waive notice of the time and place of the appointment of commissioners to assess the damages.

¶8 Thereupon, plaintiffs filed their amended petition against the three state engineers above mentioned, and added as defendants the state highway commission and the state of Oklahoma, alleging therein the ownership in plaintiffs of the tract of land in question, and that the easement alleged by defendants to have been executed by plaintiffs was given under a mistake of facts and circumstances connected therewith. The commissioners to appraise the damage and injury were thereupon appointed, and their report was filed the following day, May 20, 1931, finding the damages to be $250.

¶9 On May 20, 1931, the county attorney, acting for all the defendants, filed a special appearance and motion to dismiss the action on the grounds: (1) That it was conclusively shown that the defendants, Dan Sweeney, C. P. Smith, and J. D. Jenkins, were acting as engineers of the highway department of the state and in no wise in an individual capacity; (2) that the highway department and the state of Oklahoma could not be sued without consent, and that such consent had not been given; (3) that there was no authority of law for the purported condemnation proceedings, and that the district court of Greer county was without jurisdiction of the matter.

¶10 Thereafter, and on the 6th day of July, 1931, plaintiffs filed application for a...