Williams v. State ex rel. Dept. of Transp.

• Citation: 998 P.2d 1245,2000 OK CIV APP 19
• Decision Date: 04 February 2000
• Docket Number: No. 91,605.,91,605.
• Parties: Peggy J. WILLIAMS and Douglas A. Williams, Sr., husband and wife, Plaintiffs/Appellees, v. The STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

998 P.2d 1245

2000 OK CIV APP 19

Peggy J. WILLIAMS and Douglas A. Williams, Sr., husband and wife, Plaintiffs/Appellees, v. The STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Defendant/Appellant.

No. 91,605.

Court of Civil Appeals of Oklahoma, Division No. 3.

February 4, 2000.

Morris Bell, William J. Rinehart, Department of Transportation, Legal Division, Oklahoma City, Oklahoma, For Appellant.

Leonard M. Logan, Logan & Lowry, L.L.P. Vinita, Oklahoma, For Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. JOPLIN, Judge:

¶ 1 Defendant/Appellant The State of Oklahoma, ex rel. Department of Transportation (ODOT), seeks review of the trial court's order granting judgment to Plaintiffs/Appellees Peggy J. Williams and Douglas A. Williams, Sr., husband and wife (hereinafter, the Williams), on the Williams' reverse¹ condemnation claim. In this appeal, State alleges the trial court erred in granting judgment to the Williams without a trial by jury or any other factual adjudication of the prerequisite issue of a compensable "taking."

I. Statement of the Case and Facts

¶ 2 On November 18, 1996, the Williams filed their petition, alleging, inter alia, substantial interference with the use and enjoyment of their two separate tracts of property,² and damage to their business, as a result of ODOT's "taking" abutting property for street and/or highway improvements, and demanded a jury trial. On December 10, 1996, ODOT entered a general appearance, reserving time to further plead or answer, but filed no other pleadings within the reserved period.

¶ 3 Upon notice to the parties, on February 24, 1997, the trial court appointed commissioners to appraise the allegedly affected property. On October 3, 1997, the commissioners filed two reports,³ determining damages to both of the Williams' tracts in the total sum of $120,000.00. On October 6, 1997, the Williams filed a separate objection to each of the commissioners' reports as inadequately determining damages, and demanded jury trial on the issue of damages. ODOT filed neither objections to the reports of the commissioners, nor a request for jury trial.

¶ 4 On December 8, 1997 — two days after expiration of the sixty (60) day period to demand a jury trial pursuant to 66 O.S.1991 § 55(A) — the Williams filed a "Withdrawal of Demands for Jury Trial." On the same date, they also filed a "Motion to Enter Judgment Pursuant to Reports of Commissioners," to which ODOT objected.

II. Trial Court's Dilemma

¶ 5 Williams argued that the constitutional and statutory procedures applicable for regular condemnation actions, were the only procedures available in an reverse condemnation action.⁴ In support of this position, the Williams relied primarily on Rummage v. State ex rel. Department of Transportation, 1993 OK CIV APP 39, ¶ 16, 849 P.2d 1109, 1112, where we held:

It is well established that condemnation proceedings, initiated for the purpose of exercising the sovereign right of eminent domain (footnote omitted), are special statutory proceedings (footnote omitted) and are to be carried out in accordance with the specific procedures prescribed by the Legislature. (Citation omitted.)

An inverse condemnation action is similarly statutory, with constitutional origins. Section 24, Article II of the Oklahoma Constitution provides that:

Private property shall not be taken or damaged for public use without just compensation. . . .

This constitutional provision also mandates procedures for determining compensation of such private property owners. The procedures have been codified and expanded at 66 O.S.1991 § 51 et seq. (Footnote omitted.) Section 57 of Title 66 contains a proviso clause which makes procedures contained in that chapter applicable where an entity authorized to exercise the right of eminent domain:

. . . shall have taken and occupied, for purposes for which it might have resorted to condemnation proceedings, . . ., any land, without having purchased or condemned the same, . . . (emphasis added). (Footnote omitted.)

We therefore find the procedures for an inverse condemnation action to be the same as those for eminent domain condemnation in accordance with 66 O.S.1991 §§ 51 et seq.

1993 OK CIV APP 39, ¶ 16, 849 P.2d at 1112. Finding the procedures to be identical, Rummage then refers to a condemnation case, Board of County Commissioners of Creek County v. Casteel, 1974 OK 31, 522 P.2d 608, for the proposition that there are only three pleadings authorized by statute in condemnation proceedings: the petition, an objection to the report of the commissioners, and a demand for jury trial. The Supreme Court essentially so concluded in an earlier reverse condemnation case. Incorporated Town of Pittsburg v. Cochrane, 1948 OK 121, 200 Okla. 497, 197 P.2d 287.

¶ 6 Consequently, argued the Williams, in any condemnation case, regular or inverse, failure to object to the commissioners' report or demand a jury trial requires the trial court to enter judgment based upon the commissioners' report:

The report, if allowed to stand without objection, serves to pass the use or title condemned. Though the report is not the pronouncement of a judicial body or tribunal, it has the force and effect of a judgment in such case under the statute.

Harn v. State ex rel. Williamson, 1939 OK 40, 184 Okla. 306, 87 P.2d 127, 129. This is true, said the Williams, even though the landowner may have previously, as here, filed a demand for a jury trial then subsequently withdrawn it; the opponent, having failed to request a jury trial, could not rely on landowner's earlier request, now withdrawn:

The defendants had no right to base their demand for a jury to determine the sufficiency of this compensation upon the plaintiff's demand for a jury. The fair inference is that defendants were satisfied with the award of the commissioners, and, when defendants filed no demand for a jury, plaintiff should have been permitted at any stage of the proceedings before a final submission of the same to a jury to waive her demand for a trial by the jury, to dismiss her demand for a trial by jury on the question of the insufficiency of said compensation, and to accept the award of the commissioners.

Short v. State Highway Commission, 1931 OK 352, 151 Okla. 85, 1 P.2d 676, 677. ¶ 7 Therefore, argued the Williams, since procedures are identical in regular and inverse condemnation proceedings, and since ODOT had filed neither objections to the commissioners' reports, nor a jury trial demand, the trial court could only enter judgment for the Williams pursuant to the commissioners' reports determining damages.

¶ 8 ODOT's view of the law was considerably different. ODOT argued that regular and inverse condemnations are inherently different, and necessarily have different procedures. First, said ODOT, while both regular and inverse condemnation claims involve the question of amount of damages, inverse condemnation uniquely requires a determination of whether a taking has occurred. That is, ODOT pointed out, in regular condemnation proceedings, the question of a taking is a given, but whether there has been a taking is always a critical issue in inverse condemnation proceedings, and must be determined by a jury. Carter v. City of Oklahoma City, 1993 OK 134, ¶ 15, 862 P.2d 77, 81; Richardson v. State, ex rel. Department of Transportation, 1991 OK CIV APP 100, 818 P.2d 1257. The Oklahoma Supreme Court has indeed held that the question of a "taking in inverse condemnation under Article 2, § 24 of the Oklahoma Constitution, is for the jury." See, e.g., Henthorn v. Oklahoma City, 1969 OK 76, ¶ 14, 453 P.2d 1013, 1016

.

¶ 9 In addition to an absolute right to a jury trial, ODOT pointed to other differences in procedures between regular and inverse condemnation. In Carter, the Supreme Court said that, unlike in regular condemnation proceedings "it is not critical that commissioners be appointed in an action for inverse condemnation." 1993 OK 134, ¶ 15, 862 P.2d at 81. "It is therefore not necessary that commissioners be appointed in an action for inverse condemnation." Richardson, 1991 OK CIV APP 100, ¶ ___, 818 P.2d at 1258. Accordingly, maintained ODOT, because it is not necessary to appoint commissioners in inverse condemnation actions, and because the taking question is always for the jury, whether ODOT complied with the procedures prescribed by 66 O.S. § 55 or not, ODOT nevertheless had a right to jury trial and the trial court could not grant judgment to the Williams absent jury trial on the taking issue.

¶ 10 The trial court agreed with the Williams. ODOT moved for reconsideration, which the trial court denied.

III. Issues

¶ 11 ODOT now appeals, arguing that procedures in regular condemnation differ from inverse condemnation cases, and consequently there must be a determination of a taking by a jury. We therefore are confronted with these issues:

1) whether a right to a jury trial exists in inverse condemnation if statutory procedures in 66 O.S. §§ 51 et seq. are not followed;

and

2) does failure to object to the commissioners' report or demand a jury trial waive the right to a determination of a taking.

¶ 12 We first hold the right to jury trial in inverse condemnation cases is invoked only by following the statutory procedures in 66 O.S. § 51 et seq. However, we further hold failure to comply with the statutory procedure does not waive the right to a judicial determination of the issue of a taking.

IV. Development of the Law of Inverse/Reverse Condemnation

¶ 13 The power to take private property for the public good is a fundamental attribute of a sovereign state.⁵ The state may delegate this power to local municipalities, to private persons or to corporations authorized to exercise functions of a public character.⁶ This right, which since the 17th Century has been known as eminent domain,⁷ does not arise from a constitutional grant of power; rather,...