*1 Thе BOARD OF COUNTYCOMMISSION- COUNTY, ERS OF CREEK Oklahoma, Appellees,
Billy Margie Casteel, V. CASTEEL and Appellants.
No. 45306.
Supreme Oklahoma.
March
Rehearing Denied June Young, Atty., Sapulpa,
David Dist. appellees. *2 14, Also, 1970, Sellers, September the owners Fitzsimmons, Sap- on B. Guy Jack Jury: following Demand for filed the Ayers, Tul- appellants; L.
ulpa, for James sa, appellants brief. of for counsel defendants, Billy V. “Comes now the Casteel, ob- Margie L. and and Casteel ject commission- made the award SIMMS, Justice: is in in this said award ers cause because appeal is from a condemnation This of the less than the value amount proceeding in the of District Court Creek damaged by plaintiff prоperty taken and County. The action the trial court was by in said cause in jury and demand trial by County commenced Commissioners damages sus- order that the amount of County taking of for the Creek be assessed tained defendants power of eminent domain оf 6.57 acres be- county.” jury of the a Billy Margie longing to Casteel and V. answer, petition, jury for and demand edge Sapulpa, Casteel on of Oklahoma. only pleading constitute the purpose of taking was for the case. straightening county building a roаd par-
bridge. Reference will be made to the 28, September 1971, pretrial con- On at ties as and owners. condemnor ference, necessity of of the taking the acres was whole 6.57 raised. stating passed
Condemnor a resolution Judge The District hеld that the issue had necessity taking the 6.57 acres and prematurely been raised in the answer and unsuccessfully attempted negotiate on declined to consider evidence it. purchase of the from the owners. 10, 1970, July The suit and on was filed on jury The cаse set for trial on was Octo- 10, 1970, August the owners filed an an- 7, date, ber that the owners filed 1971. On consisting general special swer of a Disqualify Judge, a Motion to the District containing following allegations: denial disqualification certified. was answer, “For further defеndants these Also, 1971, owners October deny, specifically, necessity taking filed a Motion to the Case from Strike any part particular property all Jury grounds ques- Setting on the that the sought appropriated and to be con- taking had to necessity tion of the public demned for use. first. be determined answer, For further these defendants jury The case called to trial before was particular that state to the Court Judge an Associate District on October property sought appropriаted is called, jury and before the coun- entire land tract of owned these de- request for sel for oral owners made an challenge fendants. The defendants taking: hearing on the taking the entire tract of “Now we asked for a determination rеquest plaintiff land and that be held to use, necessity, a determination proof strict in the actual amount of this we are forced to enter into the trial public system tract needed for the road this case on the issue of the value action.” еxcluded from this taken, land if in it because fact 18, 1970, August Judge On the District judicial question, the termination of a County appointed of Creek commis- in one necessity and the are resolved use damages. sioners to assess the The com- way, way if it’s got then one we’ve August filed a missioners way, then we have resolved another 1970, setting the amount of the at something respect this val- else with $4,600.00. deposited by correct, This amount was If it uation. the defendants September 1, 1970, the condemnor on will necessitate—I mean if the Court Septem- was withdrawn the owners on should or the na- find that the ber ture of that it’s not nec- the use is such County taking this their entire tract for to have all
essary for the repeatedly de- roadway purpose, highway purposes then land manded on the issue.” new have to be Commissioners there will re-appraisal made. appointed So fact that the landowners have motion this purpose our that is be heard on the ne- constitutional say strike the case morning and when we unquestioned. It is strike it setting, mean jury from the we raised the manner in which the landowners *3 morning.” setting from the this hearing that is objection sought their and appeal. issue in this the the aft- court overruled motion er argument and the case was tried before proce- legislature set forth the has jury of A damages. the on the issue ver- by landowner that is to be followed dure per of acre” returned. dict “$1250. provided judicial hearing seeking in the 2, 24, of for Art. for a determination by petition prop- in urges
Owners
error
two
§
proce-
of
That
the
оsitions for reversal:
O.S.1971,
in
is set forth
66
dure
§
by
in
(1)
refusing
“Error
the trial court
provides
part:
in
upon
judicial
a hearing
ques-
owners
report
of
“The
the commissioners
tion
of
of
the entire
court,
by the district
on
be reviewed
highway
tract of owners
purposes
for
exceptions
by
party,
written
filed
either
after owners had raised such
in
issue
thirty (30)
their
the Clerk’s office within
answer
filed in
in
the trial court
days
report;
thereby
filing
after the
of such
and
denying owners their substantial
rights
the court shall make
order therein
process
and
such
equаl
due
and
protec-
justice may
right
require,
tion
as
either
provided
as
by
laws
the Con-
confirmation,
by
rejection
by ordering
or
stitution and
of
laws
of Okla-
appraisement
good
homa
on
by
new
cause
the Constitution of the
shown;
party may
sixty
United
or eithеr
within
States.”
days
filing
report
of such
(60)
after
(2)
by
“Error
the trial court in over-
a written
for
file with the clerk
demand
ruling the owners’ Motion to Strike Case
by jury,
a trial
in which case the amount
Jury Setting
from
non-jury
until
damages
jury,
of
shall be assessed
could
held.”
shall
and the trial
be conduсted and
The issue to be determined is whether
judgment
in
entered
the same manner as
precluded
the owners are
from a hearing
civil actions in the district court
.
.”
of the taking
they
unless
objection
file an
of the com-
Only three pleadings are authorized
missioners.
in
proceedings:
statute
condemnation
Constitution,
Oklahoma
Petition,
Trial,
Article
Jury
Objection
Demand for
§
part:
states in
Report
O.S.1971,
to
of Commissioners. 66
proceedings
53 and 55. Condemnation
§§
“.
.
.
In all cases of condemnation
special рroceedings
and must be carried
private
public
private
for
or
out in
pre
accordance with legislatively
use, the determination of character of
procedure.
City
scribed
Graham v.
use shall
question.”
be a
Duncan, Okl.,
(1960).1
612 orderly just functioning statutory Inasmuch there as are no special proceed- hearing guidelines, objection when these
court landowner’s to the. set ings. procedural requirements taking should have been treated as continu- ing. forth for condemnation cases the stat- The trial court then should set complied utes are reasonable and must be hearing ju- matter from which a right his with. landowner waived to dicial determination been could have made. hearing taking I do not be believe condemnee should object deprived he not object when did of his to the ne- statutorily pre- commissioners within the assertion that his objection scribed prematurely time. filed. opinion For benefit of Bench and Bar in future affirm the of the Court I would 8, 1971, in proceedings, Appeal. opinion on October con- of As 44 stated O.S.Supp. formity with the terms of 66 1456: OBJ O.S.Supp.1970, as § § upon “The failure of the trial court 16, S.L.1971, p. Amended 40 and 69 S.B. proper request grant on the O.S.Supp.1970, as amended S.B. taking, deter- and make a 15, S.L.1971, 61, p. approved the Court thereon, priоr mination to the trial as to condemnation, form of no- notice amount of constitutes objections required tice laws, equal protection nial days following filing within 30 er- was both fundamental and reversible Report. Commissioners OBJ ror.” *5 Appeals Court оf reversed. Trial Court respectfully I dissent. affirmed. state that I am authorized to Justice herein concurs the views LAVENDER DAVIDSON, WILLIAMS, J.,C. V. C. expressed. BERRY, DOOLIN, J., and BARNES JJ., concur.
HODGES, IRWIN, LAVENDER and
JJ., dissent.
HODGES, (dissenting). Justice statute, and the 66 O.S.1971 § ex rel. Gil BURK STATE of Oklahoma Oklahoma Constitution Art. relied al., Appellants, et majority oрinion, provide an ex- only ception to the of commissioners corporation, CITY, municipal OKLAHOMA appraisement as the amount of so far al., Appellees. et They concerned. are silent as what No. 45102. applica- proсedures limitations or time Supreme of Oklahoma. ble when the condemnee raises the taking. landowner A Oct. may agree assess- that the commissioners Rehearing May Denied correct, disagree ment of but that there is a for the only
his land. The duties of commis- inspect property and sub-
sioners are to boundaries, quan- report showing
mit taken,
tity and to and value of the taking. The damages for the
assess the nothing do with the
commissioners question of the