Park View Hospital Trust Authority v. State Ex Rel. Oklahoma Department of Labor
925 P.2d 541
Okla.
1996
Check Treatment

*1 541 249, superior right” Patrick, and when 252 does not show v. Loris owner. (Okla.1966). stringent explain more how [the use] The burden is is no “evidence by pre- claiming Duke, 336, person an easement for a v. 206 Okla. 243 began.” Cookson one lands than scription (1952); unenclosed 706, over 28 C.J.S. Easements P.2d 709 claiming enclosed land. an easement over (1941). case, present Holley In the 68 Nelson, 243, 107, 249 Okla. P.2d v. 207 Irion superior right, and there is evidence shown (1952). 108 initially permissive and the use was that Here, Irion, permissive. as in continued as possession by acquire prescrip To presumption that the use was adverse the visible, open, “possession the must did, it clear not arise. Even if the does exclusive, continuous, of with claim and that the initial use weight of the evidence is notify parties seeking ownership, as will such permissive road and continued of the was premis that upon the the information record, this the permissive. On because title not in subordination es are permissive, could not be denied others, use was all and titles or claims of Furthermore, not ac- and the Willises could have posses adverse Id. the claimants.” Irion, actual, notorious, by prescription. hos an quired must easement sion also If Id. P.2d at 109-10. the owner tile. 249 the to the use of acquiesces in or consents conclusion, the evidence was In because land, adverse and title then the use is not always of road that the use the clear acquired. Board

prescription cannot be of acquire did not permissive, the Willises County v. County Comm’rs Jackson opinion The by prescription. easement Owen, 766, 196 Okla. judg- vacated. The the Court reversed, the the trial court is ment of presented All in the the evidence remanded with instructions to enter cause is the that use of road was present case is Holley. judgment quieting title in Wanda In not permissive and adverse owner. APPEALS’ OPINION VA- COURT OF fact, was introduced which evidence CATED; TRIAL OF COURT JUDGMENT suggest that the use of road was even REVERSED; AND REMANDED CAUSE However, posit that adverse. the Willises INSTRUCTIONS. WITH many years use of road creates that the use was adverse presumption All Justices concur. Holley is on to show other burden agree. wise. We do rejected argument this same This Court Nelson, P.2d 107 v. Okla.

Irion Irion, a over the In road defendant’s years many by the had used for land PARK TRUST VIEW HOSPITAL plaintiff argued public. The plaintiff and the AUTHORITY, a Public use, a length of the that because Trust, Appellant, presumption arose that the use was adverse. Holcombe, Citing v. Okla. Friend (1945), recognized this Court Oklahoma, rel. ex OKLA The STATE of open, of land rule “an continuous use LABOR; OF DEPARTMENT HOMA period presumed will be prescriptive Renfro, Commissioner David Re right” or adverse. to be under claim Appellees. argument, Court jecting plaintiffs No. presumption creating rule noted that the that, the use is elastic and where adverse use Supreme Court of Oklahoma. showing initially burden of permissive, Oct. ceased is on permissive use adversely. party claiming creating presumption rule

The only “against anyone who arises adverse use *2 Fogg, Kelley Cornelius,

Richard M. L. Reno, Fogg Handley, Fogg, Appel- & El lant. Sykes, Department

Michael M. Oklahoma Labor, Edmondson, W.A. Drew Attorney Oklahoma, General James Robert John- son, General, Attorney Assistant Oklahoma City, for Appellees.

LAVENDER, Justice. learning After the then Oklahoma position Commissioner of Labor took the contemplated building project enlarge update hospital its facilities to the Minimum Wages on Public Act, O.S.1991, (the seq. § Works et Act), appellant, Little Davis-Bacon Park Hospital Authority, appel- View Trust sued Department lees—the Oklahoma of Labor Commissioner —for a declaration it public body subject was not a Act and injunction enjoining appellees from enforcing the Act it. On counter- summary judgment motions for the trial granted summary court judgment appel- lees ruled body, was a O.S.1991, as that term is defined at 40 196.2(6), proposed hospital and that project construction would fall under the Act. unpublished The Court of in a 2-1 Opinion appel- Memorandum affirmed and Court, sought lant certiorari which we previously granted. In view of our recent State, decisions (Okla.1995), regard contemplated project and Prime Electric 918 P.2d 26 Department Appellees v. Oklahoma State “to-date”.1 take the Inc. been entered (Okla.1996), we now however, 921 P.2d 363 position, apply that we should not Opinion of the vacate Memorandum City, but that we instead judgment of Appeals, reverse the Court of *3 appeal only the on the should decide issue that with the court and remand to court trial (i.e. appellant previously raised whether the to dismiss action. a direction Act) body primarily under the because pending previously in this that this matter was has not raised con- In City the time of our decision in challenge Court at to the Act. stitutional of and at City of October Oklahoma City, In City Oklahoma we held the of Supplemental Opinion on the of our time Act Little Davis-Bacon unconstitutional be- City Rehearing City [918 in Oklahoma of delegated power gov- it to federal cause the 14, 1996, May of this Court issued 31] P.2d at wage prevailing ernment to determine rates directing parties to briefs an the file Order setting a of without standard for exercise effect, if detailing what positions their on power. entirety that 918 P.2d at 29-30. The City any, in this Court’s decisions Okla of the was City disposition the of Act held unconstitutional. homa have on Co., appeal. appeal Both to instant sides this at In Prime Inc. 30-31. Electric positions regard. in such filed their uneonstitutionality applied ruling our of we appeal the pending a case on at time of to taking position Appellant responded, the (October 1995) in City our initial decision City City applied should be to Oklahoma of Co., Inc., City. Prime Oklahoma Electric application such should appeal this and that of 921 P.2d at 365. We held that where em- judg- of trial court’s result in reversal the rights wages to rose or fell ployees’ certain to court against it and remand that ment In of the Little Davis-Bacon Act was support with instruction to dismiss. on whether constitutional, position appellant pending informs this Court and the was matter begun contemplat- no work on the actual appeal City our in on at the time of decision nego- project, that no contracts have been ed City, ruling our of unconstitu- Oklahoma of expenses into no tiated or entered tionality applied hold to void In labor or services have been incurred. of Commissioner Labor’s determination essence, position appellant’s line bottom by failing to employer had violated the Act longer is no a viable con- that because there the wages specified as in Act. pay certain project Act enforced and stitutional to be the Co., Inc., 921 P.2d 364- Prime Electric actually by yet implemented has not agreement, is no Act which contractual can we present appeal of Labor now enforce In the likewise believe Commissioner justiciable longer no uneonstitutionality it and there is determination of our in involved this matter. City City handed down of applied appeal. this can see to We should response, admit that no Appellees, in their which would call for principled no distinction by appellant prior was entered into contract our of unconstitution application of sentence action in the district court. initiation Co., ality on one in Prime Electric Inc. response acknowledge in the They also apply to the instant hand and a refusal to appellant has advised that no contract them Inc., employer At such time did Appellees’ response text was referenced issue, requested on June filed in this Court not brief constitutional petition to do so. Both an extension time Co., Electric Inc. v. Oklahoma State In Prime rehearing request for extension of time (Okla.1996), Department by Appeals. An the Court of Id. were denied employer challenged time the constitu- the first tionality by the Court application to vacate these denials Act was in of the Little Davis-Bacon day filed after our rehearing Ap- petition for peals about filed in the Court of decision also denied the Court of prior weeks to our October two of Appeals. Co., Inc., State, 921 P.2d at Prime Electric City v. decision in (Okla.1995). Prime Electric other, given appeal on the present pos meaning the Act —was mooted City’s nullity and, once, ture of this case.3 ceased lively controversy. to be the of a Accordingly, we VACATE the Memoran- would hence direct that action dis- Opinion Appeals, dum of the Court of we missed because no can be effective relief judgment REVERSE the trial court granted Authority on this issue and other summary granted judgment appel- litigated. issues remain to be lees we REMAND to the trial court with direction dismiss action.

I.

KAUGER, HODGES, V.C.J., and THE TEACHINGS OF CITY LAVENDER, HARGRAVE, SUMMERS *4 AND ITS PROGENY WATT, JJ., and concur. City4 teaches that the nullity WILSON, C.J., ALMA concur in result. pronounced in govern shall case all con ALA, JJ., and in SIMMS OP concur challenges stitutional prevailing-wage to con judgment. clauses, by tract interposed public construc builders, claims, whose counterclaims or OPALA, Justice., SIMMS, with whom pending litigation cross-claims were in the Justice, joins, concurring in judgment. 10, 1995. pipeline on October In Prime Elec (a) tric Inc. v. Today Dept. the court State reverses the trial Labor,5 the central summary City court’s issue was whether declaration that Park View applied retrospectively to certain Hospital Authority [Authority] Trust laborers’ is a claims on a public body subject prevailing-wage based contract Oklahoma Mini (b) clause. The court Wages , mum on held that Public Works the laborers’ [Act]1 Act (cre in claims that case in pipeline remands the cause were and directs the trial court (c) by City’s supplemental ated Authority’s action, opinion on dismiss re vacates hearing) and hence Appeals’ opinion. fell under that Court The decision’s court’s axe of pronouncement constitutional on its in invalidation.6 City rests decision State,2, which condemns , We are not upon called to test here the as unconstitutional the Act’s prevailing-wage validity any public construction contract (effective 1995) provisions October by prospectivity yardstick in City crafted prospective opinion.3 settles the reach of the byor the standards of Prime. There is no join in judgment, While the court’s I must executed contract tendered our review. for pronouncement. recede from its The solely focus in this ease is on whether I would hold central issue our pronouncement City ten- in rendered Author- declaratory dered below for judgment— ity’s quest by for declaratory judgment relief Authority public body whether ais moot. within assuming reach, 3.We also note that City’s prospective no contract For supra see note 2 negotiated expenses been or entered into no (supplemental opinion rehearing). 32-33 on pres- or labor services have been incurred ent, any by concerning decision us the issue of City, supra note 2 at 32-33. public body whether ais under the meaningless Little Davis-Bacon Act would be Okl., light of our unconstitutionality determination of City. regard, In such we are aware noof doctrine and none has been cited to Prime, J., supra (Opala, See note 5 at 366 dis appellees presently us require which would senting), join where I refused the court's hold appellant to enter into contract which would be ing that a laborer's could claim not withstand the controlled an Act that has been declared un- employer-subcontractor’s constitutional attack constitutional. clause, prevailing-wage although on the the chal lenge invalidity rested on (the 1. 40 O.S.1991 so-called Little general question job contract and was Act). Davis-Bacon rehearing stage launched in the Court first Okl., Appeals. 918 P.2d 26 below, this action was initiated When Authori- justiciable

was a over body DOCTRINE public as that would be ty’s THE MOOTNESS status prevailing-wage provisions is a state or condition which Mootness very pending be- the Act.13 This issue was rendering appellate court from prevents the fore us on certiorari when Where, here, as after relief.7 effective public construction post-October commenced, conditions arise appeal has been longer governed by were no to be contracts appellate from preclude an decision City’s pro- prevailing-wage clause. relief, appeal will affording effective fully mooted the core of nouncement A contro- for mootness.8 viable be dismissed yet controversy. no contract had Since versy stages all of review—both must exist at into, negotiated or contest over entered will appeal and certiorari.9 This court on Authority’s body within the status as hypothetical ques- abstract or neither decide longer presents Act meaning of the affording re- from actual tions disconnected legally controversy. viable prac- nor make when no lief determinations SUMMARY possible.10 This is the essence tical relief simply I would hold that the central issue doctrine. Oklahoma of the law’s mootness Authority’s pub- as “escape status recognizes but two tendered jurisprudence below— *5 af- entity mooted this court’s public-in- lic hatches” from its strictures —the —stands jurisprudence. ter-promulgated No effective likelihood-of-recurrence12 terest11 and the a present is For exception is relief can afforded or needed. exceptions. Neither (or declaratory judgment to issue City’s nullity un- here. makes lively controversy), must as a there likely, impossible, future to review if not indeed calls, advisory dispute which not for an our review. recurrence that would evade Funis, 9, 316, controversy appel supra at 94 at note 416 U.S. S.Ct. A is one which an 7. viable Iowa, 393, 402, 95 grant v. In Sosna v. 419 U.S. can effective relief. Morton late court 559, Bd., Okl., 707, 553, (1975), County 711 42 532 the Court Excise 780 P.2d S.Ct. L.Ed.2d Adair (1989); County, Rogers lively controversy only Board Greer v. Excise must be Okl., 754, (1984). complaint brought, P.2d 761 also 701 at time but appeal or case reached review on when the issue, County v. Home Loan declaratory judgment 8. Lawrence Cleveland certiorari. “For Auth., Okl., 314, (1981) 'calls, v. 626 P.2d 315 Hamilton dispute not for an there must be a Okl., Corporation, basis, P.2d Investment Towers 489 advisory opinion upon hypothetical Bakeries, Inc., 488, (1971); v. 490 Hart's upon adjudication present right estab- for an Wolfe Okl., 950, (1969); 9, P.2d 952 Edwards v. Han 460 Ashcroft, supra U.S. lished facts.'" note 431 Co., Okl., 980, (1966); 981 na 415 P.2d Lumber 172, (quoting 1740 from Aetna at 97 S.Ct. at Life v. Farm Mutual Automobile Ins. Haworth, 242, Carlton Co., Okl., State 227, U.S. 57 S.Ct. Ins. Co. v. 300 286, (1957); Duncan 309 P.2d 289-290 461, 465, (1937)). 81 617 L.Ed. Sims, Okl., 145, (1954); City P.2d 146 v. 277 796, Chamblee, 94, 188 P.2d Tulsa v. Okl. 106 Westinghouse Corp. Dam Elec. v. Grand River (1940); Westgate v. 798 Oil Co. Produc Refiners Lawrence, Auth., Okl., 713, (1986); 720 720 P.2d 260, 993, (1935); 172 994 Okl. 315-316; supra Application 8 at Good note 5, Against Petition No. In re Protest Referendum win, 762, Okl., (1979); Special P.2d 764 597 393, 374, (1939); v. P.2d 375 Ham 185 Okl. 92 570, Reynolds, Indemnity 188 v. 199 Okl. Fund 773, (1911). McNeil, 207 27 Okl. 117 P. 841, (1948); Refining Peppers v. Co. P.2d 842 451, Commission, Corporation 198 Okl. Mattis, 171, 172, v. 431 U.S. 97 S.Ct. 9. Ashcroft 899, (1947); Payne, supra 10 note at 901 1739, 1740, (1977); DeFunis v. 52 L.Ed.2d 219 1704, 312, 316-317, Odegaard, 416 94 S.Ct. U.S. Morton, 711; Lawrence, supra supra note 7 at 1705-1706, 40 L.Ed.2d 164 Okl., 315-316; D.B.W., In re 616 note 8 1151 lively dispute present or A ceases to "case controversy” the tendered issues are ab- when Author- of Labor informed stract, Rog- 13. The Commissioner hypothetical moot. or have become that, building program costs ers, 761; Lawrence, ity if in 1991 supra supra note 7 at note $600,000, required pay Edwards, 981; 315; Westgate, exceeded supra .was note 8 at 994; Jones, Authority challenged prevailing wage. that view Payne supra v. 193 Okl. note body subject (1944); denying it was a v. Wallace McClendon, (1930); prevailing-wage provisions. P. De- the Act's 144 Okl. basis, opinion upon hypothetical but for an

adjudication present rights upon estab- lished facts. hold moot and declaratory judgment

order the action dis- missed for that reason. SHARP, Jr., Miles,

Jack Bert Glen Harris, Jerry Long, Jack Hill and Louvier, Appellees,

Allen LANDFILL, INC., 251ST STREET Corporation, an Oklahoma Appellant.

No. 83027. *6 Supreme Court of Oklahoma.

Oct.