*1 orderly just functioning statutory Inasmuch there are no special proceed- hearing guidelines, objection when these 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 have complied utes are reasonable and must be hearing ju- matter a from which a right his a with. landowner waived to dicial determination been could have made. hearing necessity taking on of the I do not believe condemnee should object report deprived he right object when did of his to the ne- statutorily pre- cessity commissioners taking 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 stated O.S.Supp. formity with the terms of 66 1456: OBJ O.S.Supp.1970, § § “The failure of the trial court 16, S.L.1971, p. Amended 40 and 69 S.B. proper request grant hearing on the O.S.Supp.1970, as amended S.B. § necessity taking, deter- and make a 15, S.L.1971, 61, p. approved the Court thereon, prior mination to the trial as to condemnation, form of no- notice a de- damages amount of constitutes objections required necessity tice laws, equal protection nial days filed following filing within 30 er- was both fundamental and reversible Report. Commissioners 2633. OBJ ror.” Appeals Court of 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 opinion, provide an ex- report 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- procedures limitations or time Supreme of Oklahoma. Court question ble when the condemnee raises the necessity taking. landowner A 1973. Oct. may agree assess- that the commissioners Rehearing May Denied correct, damages disagree ment of but necessity taking that there is a for the only 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 have
commissioners
judicial necessity taking. question of the
on a They request street. building be removed and the street restored original condition, its that title to the building quieted city because allege that the street is held trust city for the use and benefit of its citizens. They also asserted that the decree vaca- tion entered the district court void by reason practiced upon of fraud court. Under their second cause of action they seek to recover for the the land building, and the claimed to Fidelity owned American and to have *4 penalty against appellees assessed to be paid appellants attorneys pur- and their statute, taxpayers O.S.1961, suant to the 372, 373. §§ building idea of the Two Thousand Lee, Connolly, Thomas Okla- Building part Classen across a of North- J. for John City, appellants. homa 20th west Street had been conceived C. (Cameron), W. Cameron the President of Crowe, Bratcher, Monty Crowe, V. P. L. the Two Thousand Corporation Classen Thweatt, Swinford, Dunlevy, & Johnson and Chairman of the Board of American Burdick, City, appellees Oklahoma for Fidelity associates, and his one or two Co., Fidelity Fidelity American Assurance years before began. construction Cameron Co., National Bank and Trust The Two testified that it was more convenient Corp. Thousand Building Classen and C. join buildings together. One of the W. Cameron. reasons for this was that heating the same Semtner, Roy Ratcliffe, H. K. Giles and cooling system could be utilized. City, appellees Oklahoma for of City, Norick, Oklahoma H. Mrs. Pa- lawyer James Cameron to “prac- talked Franklin, Cook, Latting, tience Ben Rowe tically” every member Council Smith, Sturm, George M. A. Dow- L. John carry an effort plan. out his ell, D., Keller, O. Nelson E. Bish- Bill H. discussions with the members of op and Robert H. Oldland. “simple Council concerned the question” of possibility closing of N.W. 20th Street HODGES, between Western Avenue and Justice. Classen joining Boulevard and building all of the The Two Thousand Building Classen complex together. He queried also Fidelity was constructed American As- council as to whether there would be Company (American surance Fidelity) this, objection serious or should the new across and Northwest 20th be- Street building be built North 20th N.W. tween Classen Boulevard and Western Av- Street and existing the then buildings. enue in City, (N.W. Oklahoma Oklahoma 20th). This street was dedicated to 25, 1968, On attorneys, Cameron’s June was, however, use of public. pur- It filed notice portion of intention to vacate a portedly grounds vacated on the that it had plat University This Addition. occupied adversely public been to the for published notice was Daily in the Law years. more than five 27, 1968, and an Journal-Record June Appellants, Posting under their first cause of ac- Affidavit of was executed. On tion, damages day seek 29th resulting June, purported ap- from the con- plication portion struction of a nuisance vacate that of Univer- was entered of vacation The decree Boule- Classen lying between sity Addition August 1968. court on the district with filed Avenue was vard Western “having examined Wherein of Oklahoma Court Clerk the District the evi- having file and heard pleading and stated that application County. The prem- fully in the being advised dence and abutting the sole applicants were had finding that the street made the ises” the street and that the street owners public for occupied adversely to the public been adversely occupied had been years. more than five years. the same more than five On by the defend- was filed day, an Answer day September, about the 1st orOn ant, City. City of Oklahoma Thousand of the Two construction July Building commenced. Classen attempt by city council There was no with this action was commenced 20th power to vacate to exercise its N.W. parties plaintiff additional and defendant O.S.1961, provisions under Street joined in December 1969. permits vacation of This statute 6S9. it by the council when streets proceeded The cause to trial on the 18th However, expedient. necessary or deemed day May, continued permit of a vacation does day May, Defendants’ De- Hedrick v. Pa- private use. See street for plaintiffs’ sus- murrer evidence was Instead, don, (Okl.1958). judge the trial dis- tained and the case municipal directing the counsel- resolution defendants, Norick, missed as to the Lat- pur- approve as to the form of the toor *5 Sturm, Oldland, ting, Keller with the & vacating Northwest posed decree Also, plaintiff’s of concurrence counsel. Avenue and Clas- between Western Street the trial sustained demurrers of the court by adopted the Council Blvd. was sen defendants, City of and in- Oklahoma approved Mayor of the of by and the Smith, defendants, Franklin, Cook, dividual Oklahoma, July Bishop. Dowell and attempted et al. the Cameron to have A day further trial was held on the 4th provisions street vacated under the of June, 1971 and thereafter on June O.S.1961, provides pertinent 524. It § the Court Findings entered his part: Fact, and conclusions of law. He found “ * * * allegation that the application of the and application by If the shall be finding the of the court to the effect that portion the owner owners of occupied adversely N.W. 20th had been platted such tract for the vacation of public years for more than five portion only, appear such and it shall false allegation and the inclusion portion that the desired to be vacated application and decree was known to actually has never been used for town or they false Cameron at the time were city purposes, platted streets or that the made. He in his stated of law conclusions alleys portion and on or across such that: public, have never been used or public
that the
has for more than five
“The
allegation
known
appli-
false
in the
non-user,
years
abandoned
or
finding
cation and
in the Decree vacat-
that the same has been
and oc-
enclosed
ing
subject portion
of Northwest
cupied adversely
public
for more
urged upon
Twentieth Street
years,
may
than five
then the court
va-
applicants
who
defendants in
”
*
* *
portion
plat.
cate such
of said
this case constituted a
of a
falsification
jurisdictional
upon
fact and a fraud
allegation
finding
and
that
court sufficient
justify
vacating
street had been
occupied
enclosed and
ad-
proper
that
decree
case.”
versely
public
years
for 5
was mate-
jurisdiction
rial to the
However,
the court to va-
the court concluded as a mat-
cate the street.
ter of law
appellants
that
guilty
were
thereby estopped
laches and
from obtaining
statute, O.S.1961,
The Oklahoma
equitable
relief they sought.
doWe
is in accord with
provides:
this rule. It
agree.
plat map
“When the
or
shall have been
certified,
made out and
acknowledged
defendants,
The court
found
and
Article,
as required by
recorded
this
Two Thousand
Building,
Classen
* * * the land intended to be used
Fidelity
Company
American
Assurance
and
streets,
for the
alleys, ways,
or
commons
responsible
resulting
C. W. Cameron
other
uses in
town
or
or
damages for the
diminution
value
addition thereto shall be held in the cor-
of Hali
Wells Wil-
Jean
porate name thereof in trust to and for
Byron
Hayes,
liam
P.
Rhoda
purposes
use and
set forth and ex-
$7,000.00
amount of
each. The court held
pressed or intended.”
Myrta
compensi-
sustained no
Rorem
The plat
damage.
appellants
ble
dedication
judgment
of the trial
which
rely
regard
court in
states:
this
is affirmed.
“ * * *
plat
the annexed
which
Appellees complain
appellants,
Burk
hereby adopted as the plat of the above
Ray,
longer parties
are no
first
land,
described
under the
name
‘Uni-
They
cause of action.
assert that the trial
Place’,
versity
in addition to Oklahoma
a demurrer
sustained
amended
City, and
hereby
do
dedicate all of the
petition
them,
as to
and that
did not
streets and
plat
avenues shown
said
assign
this
error in their motion for
city.”
use of said
trial,
petition
new
nor in their
in error.
(cid:127)
conclude,
mere fact that the
Appellees,
vacation of
therefore
that Burk
the street
Ray
a valuable proper
have
their first cause
abandoned
ty
granted
petition
on the
of action.
of a
We have examined the record
individual
corporation
who
proposition
and find merit in this
owns abut
no
ting property who will
concerns the
thus be
appellees, the Two Thousand
enabled to
use the
business,
vacated street
Building Corporation,
Classen
American
*6
city
that the
Fidelity
compensation
received no
Company,
Assurance
C. W.
for
it,
not
indeed,
does
of itself
any
invalidate the
Cameron.
If
there was
aban-
vaca
tion nor
City
constitute such
present,
donment
it
as
a fraud or
was
abuse
of discretion
in
as
Oklahoma
and the named defendant
absence of further
showing will
councilmen,
authorize
we find the
by
and inasmuch as
intervention
court to declare the
sustaining
trial court’s order
their demur-
vacation void. Feld
man
Omaha,
v.
prop-
226,
rer
to be
as
both causes of action
184 Neb.
166
421,
er,
N.W.2d
423
explained,
(1969);
the conse-
as hereinafter
Thomas v. Jul
immaterial,
tak,
198,
Wyo.
974,
any
68
231
quence of
is
P.2d
(1951).
abandonment
981
However, it is held
it
that
is un
general
The
rule is that title to
jurisdiction
lawful in this
pub
to vacate a
municipali
alleys
by
streets and
is
held
lic street or highway which has not been
ty
public,
pro
in
and not in a
trust
occupied
abandoned or
adversely to the
municipality
prietary capacity. The
is
public for
years, merely
more than five
power
cityA
without
to alienate them.
serve the
private
convenience
individ
public
give away
rights in
cannot
its
corporation.
ual or
City of Stillwater v.
streets,
away any
nor
it sell or barter
Lovell,
214,
12,
159 Okl.
15
16 (Okl.
P.2d
it
for the benefit of
streets
holds
trust
1932).
public.
Blanken
Town of
v.
Choteau
case,
In this
ship,
152 P.2d
383
in the
194 Okl.
case of Hed-
Hill,
Padon,
rick
699
v.
(1944),
(Okl.1958),
v.
street therefore The court was to such facts. The vacation by the vacation. subserved subject matter. jurisdiction of the right and without destroy public attempted initio. was void ab purpose The decree of vacation public for the sole use of the Starke, P. 155 Kan. v. person who owned See Starke enabling (1942). See also 46 2d occupy street to abutting the Am.Jur. p. Judgments 24 permanent street with a portion of the p. supra, Padon structure. Hedrick v. deceived the court has been Where municipal by the au- holds that vacation misconduct, and the court by fraud or ultra vires and in such a case is thorities injustice, thereby instrument of made an void. prevent perpe equity will intervene uncontroverted that The stands evidence ad reaping the benefit of trator from application allegation in the to vacate unfairly gained. vantage which was between Western Northwest 20th Street case, the fraud the manner which portion that this and Classen which stated The significance. little is effected adversely occupied of the street had been the act and will to the effect of look years was false and all for more than five consequence of is the inquire if the result During the parties knew it to be false. Snyder, 121 fraud. Okl. Jones attempted years prior to the vacation five 249 P. street, used, only by the it was appellees that if It is contended general, but also Cameron perpetrated upon the fraud was indeed Depart- members of the council. fraud; court, not extrinsic at the direction of ment of Traffic Control against a grant will not relief counselor, municipal conducted a sur- except in through fraud judgment obtained approximately vey which showed fraud is extraneous where such cases street daily. automobiles used the foreign Equity record. has inherent department let- director of the stated judgment power grant relief from a that “from a traf- ter to the counselor prac it has been obtained fraud when a rea- standpoint, carrying fic all streets in wrongfully ticed the court which traffic are useful.” He sonable amount of jurisdiction. Especially it to assume duced then comment further concern- declined to rights is this so where the ing the closing of Street. N.W. present involved as in the case. procedure to be followed Petty, 118 Okl. case Johnson prescribed by of a street is an vacation 848,849, (1925) 246 P. holds: statutory requires exclusive method which *7 by perjury as means or "Where of fraud compliance. substantial Town of Choteau im- jurisdictional facts, to the a court is 401, 379, Blankenship, v. 194 Okl. 152 P.2d posed upon juris- induced to assume and (1944). 383 diction, and reality where in none exists juris The district court is without which never could have been exercised if public diction to vacate and close streets known, is such truth had been fraud public use which have been dedicated to extrinsic, so judgment or order and being by public for and which are used in obtained be annulled and vacated purpose for which were dedicated. equi- proper proceeding in a court of a Mounts, 85, City of Frederick v. 159 Okl. ty.” (Emphasis ours). 14 P.2d (1932). 237 p. say at 850 that The court went on to representations ju- given to hearing in false establish At the initial which vacated, imposed which the court purportedly street was the court risdiction jurisdiction upon and induced to exercise was deceived the fraudulent material requires exists that “In such that the street had where none jurisdictional allegation relief, equity grant only occupied cases courts of adversely been for more than five
619 O.S.1961, provided by It that: injured party, 50 prevent wrong a 7 to attempt make but ‘to frustrate an lapse legalize public of “No time can a in oppression aid of instrument of court an amounting nuisance actual to an obstruc- wrongful surreptitious founded on a sham public right.” tion of ” artifice.’ Norman, Updegraff See also of 287 v. P.2d (Okl.1955); 912 Town of Chou Harris, 104 230 P. v. Okl. Cone p. supra. Blankenship, teau v. 152 P.2d 380 the court cited rule (1924) 723 that: that The trial court found enemy equity, is the of and
“Fraud arch court perpetrated upon fraud had been against a will a equity court relieve street, vacated the but he refused to by imposition judgment obtained ap declare the He vacation void. instead * * * It matters fraud. little as plied the doctrine of laches. The doctrine in mode manner which fraud is application laches has no case. this effect, A effected. court looks jurisdictional The allegation material consequence if is a and asks the result adversely occupied street had been for any description the fraud. For of mala years more than five which the decree practiced obtaining fides judgment false, was vacation was based equity grant will relief. If fraud and This parties. known to false all gained misconduct one has an unfair ad- allegation deprived fraudulent the court of law, whereby vantage proceedings at jurisdiction and resulted in vacation has been made an instrument pri being street void ad initio. of injustice, equity pre- will public trespass interfere vate use of the street was a vent him reaping inception. from benefit from its construction of advantage unfairly thus gained.” permanent structure thereon constituted per se unlawful nuisance and was upon by appellees, cases relied day Equity each it continued. abhors Metzger Turner, Okl. diligently prevent it or fraud and seeks (1945) Sadberry Hope, 444 P.2d Mochy, redress it where found. Buford v. did not (Okl.1968) involve fraud N.C. S.E.2d court, but parties. How- between A ex equity assist will not one ever, case, Metzger page at 158 P.2d tricating himself from circumstances which 704, supra general states the rule that the Keller, he has 423 P. created. Sautbine v. authority to judgments set aside for fraud 2d general rule (Okl.1966). is limited to cases where the com- fraud party participated that where a has plained was practiced very act of fraud, re equity party no grant will obtaining judgment. precisely This is State, lief. Becker v. 312 P.2d what occurred in this case. Only (Okl.1957). inter the most distorted pretation equitable principles per
The principle that
would
for
streets
their
one,
full
mit
length
deliberately
has
who
deceived
width are
use
court,
any permanent
misled the
and who bases his claim
structure en
on an
croaching
original
wrong,
thereon is a
and continued
per
nuisance
se is
*8
of
origin
successfully
equitable
ancient
utilize
and of
the
defense of
almost universal
application.
laches
City
to sanction
Emporia
of
and enforce his
fraudu
Hem
lent
phrey,
132
claim.
Kan.
297
P.
;
(1931) M. Radford Grocery
City
v.Co.
J.
Appellants also
pro-
seek to enforce the
Abilene,
of
(Tex.Civ.
S.W.2d
visions of
“taxpayers statutes”,
the
62 O.S.
App.1929);
McDowell,
Smith v.
148 Ill.
372, 373, under their
cause
second
§§
35 N.E.
See
also
They
of action.
are endeavoring
re-
O.S.1961,
1, 2.
§§
cover
building
the land and
for the use
O.S.1961,
City
authority
under the
of 11
City
and Street
of Oklahoma
the
benefit of
support the
the defendants.
Nor does the evidence
against
penalty
a
to assess
§
any property was trans-
conclusion that
O.S.1961,
by 62
provided
§
It
un-
ferred,
paid pursuant
any
money
or
city
who orders
every
of
officer
that
Although the council con-
lawful contract.
payment of
knows of the
or who
or directs
the street
sented
the vacation of
belong-
any property
of
money
transfer
or
Cameron,
by passing the resolution
et al.
any
pursuance
of
unau-
city
ing to .the
vacation,
approving
it did not
the decree of
thorized,
agreement
unlawful or fraudulent
actively participate in the
of
vacation
any
penalized
the value of
double
shall be
street.
be
property transferred to
money paid or
problem
then remains: since the va-
of
proper
suit of
officers
at the
recovered
initio;
of
ab
cation
the street was void
taxpayer.
city
any
or
resident
City
in trust
holds the street
Council
O.S.1961,
373, states that
Title
barter,
transfer,
it
trade
and cannot
or
in-
proper
of
officers to
upon the refusal
away
private individu-
for the benefit of a
or
property
suit to recover
a
stitute
of
corporation;
al
and the doctrine
of
on them to do
demand
money after written
inap-
taxpayers
are
laches and the
statute
city,
taxpayers of the
resident
ten
so
quag-
plicable;
what
the solution
city
affected
any
taxpayer of
resident
mire?
may bring suit
payment or transfer
by the
requiring
precedent for
removal
There is
of Oklahoma
in the name of
State
City
of the
In Dozier
structure.
property.
In such
recovery
Austin,
(Tex.Civ.App.
253 S.W.
defendant,
event,
municipality is made
1923) the court stated:
money
and one-half
and one-half the
“
**
*
ex-
property
at the
permanent
recovered
struc-
value
it is a
[I]f
'taxpayer shall
pense
the resident
rights
ture
should be abated. Public
paid
impaired by
as a
destroyed
to him
reward.
or
cannot be
selfish
who
desires of
individual
payment
require the
The statutes
ends,
regardless
seek to advance
own
property belonging
money
or transfer
equity.
justice
of the dictates of
applicable.
they
are
before
forming
improvement
The costliness of
allegation
any money was
There is no
that
no
on
can offer
encroachments
a street
City
held the
exchanged. The
Council
defense to an action to remove the ob-
sell,
property
trust and was unable
struction,
improvement
was
because
use.
barter or transfer
it for
knowingly
no
willfully
made with
proceedings
vacation
before
posses-
basis but the
extend the
desire to
jurisdiction.
because of lack of
were void
sory
right
prop-
of the citizen to
Therefore,
actually
property
never
was
* * *
erty.
abating
nuisances
legally vacated.
transferred nor the street
streets, equity
measure its ac-
does not
O.S.1971,
provisions
of 62
§§
damage
tion
that
the amount of
inapplicable.
the trial court’s
We find
would be inflicted
the abatement
City of
sustaining
order
the demurrer
author
the nuisance.”
City
Oklahoma
and the named councilmen
sustaining
all de
Appellants suggest
the demurrer
that since
fendants on the second cause of action was
building
on which the
proper and correct.
also find no evi
We
constructed
held
trust that the build
defendants, City
ing
dence
of Okla
is a
business fixture affixed
City,
quieted
homa
created
and named councilmen
land and that title to it should be
nuisance,
guilty
City
Although,
were
in the
this
Oklahoma.
legal
fraud
or collusion.
could
and technical consideration
done,
Oklahoma
did
is an
and the
Council
we believe the best solution
*9
attempt
attempt
quo.
not
vacate
An absolute
N.W. Twentieth
restore status
parties
City
as
This payment
literal restoration of the
shall be
trustees.
is
position
feasible,
annually
long
building
is
nor
made
as
as the
re-
their former
not
city
is
mains on the
required.
property.
it
restoration as
reason
The annual
Such
equities
payments
ably possible
taking,
and demanded
lease
from
date
Au-
8,
gust
1968,
Equity
not
of the case
sufficient.
will
until the value of the annual
payment
insist
an absolute and literal restoration
is determined
the trial
court
quo
per
to status
where it would shall bear interest
parties
at
rate of 10%
purposeless,
be
useless
foolish.
annum.
he
principle
rule
founded on the
wish to
por-
We
make it clear that the
equity.
equity
who seeks
must do
Where
tion of
appellees
the street which
fraudu-
complete
parties
to their
restoration of
lently sought
in
to vacate
held
trust.
former condition is
essential to
not
imposed by
This trust is
law.
owners
justice
complete
between
administration of
building
option
have the
of remov-
parties,
required. The
not be
will
ing
building
restoring
20th street
equitable
regard
in
to the matter is
rule
public street,
as a
paying
or
annual lease
the actions of one of
technical. Where
payments
long
to the
for as
as
parties
renders the restoration of status
building encroaches on
N.W.
Street.
only
quo impossible,
need
be
restoration
payment
amount of
annual
set
per
nearly
made as
as the circumstances
court shall remain
years
effective for 5
Ill,
Meyer,
mit. Shields v.
183 Kan.
from the date the district court determines
29, 34, 35
Rou
(1958);
P.2d
O’Keefe v.
the amount of the
time,
lease. At that
138,
307,
ledge, 110 Mont.
103 P.2d
310 every
years
five
thereafter,
the trustees
481,
Proper
Proper,
(1940);
v.
183 Minn.
may reassess the circumstances and condi-
Maupin Mis
(1931);
N.W.
tions,
landlord,
any
and as
may adjust the
Co.,
souri
State Life Ins.
S.W.
days
rent.
rampant
inflation
al
This means that
(Mo.App.1919).
what is adequate today may
grossly in-
though
parties
be re
themselves cannot
sufficient in the future.
before,
existing
stored to the situation
cognizant
We are
City
of Green v.
respect
property
their
in
rights
Norman,
if there trans- had never been It is well ordinarily settled that action.” court in the equitable jurisdic exercise of The cause is re- therefore reversed and tion attorney award fees when the manded with for the trial directions performed services result in a successful question assess the value of the land suit preservation, for the increase of and the annual rental value thereof. This common fund or a common for always street is and has been held persons benefit of a class of entitled to Appel- public. Council trust property. fund or See State v. Okla pay lees are directed to an annual lease Commission, homa Tax 194 Okl. payment Council of Oklahoma 798 (1944); Pensioners Protec- *10 622 allowing ample authority for is 535, “There Davis, P.2d 150 Colo. Ass’n v.
tive the fund paid from Wewoka, attorneys fees to be v. Okl. City of (1944); State, Board rel. is ex recovered. (C.A. 10th Cir. Banker, 117 F.2d of Harmon County Commissioners 1386; Attor- 1941); 38 A.L.R.3d C.J.S. Commission, 194 County Tax v. Oklahoma p. 193 1098. ney and Client § P.2d Okl. the au- directly from springs The rule par- equity thority of the Court do judg portion That of this Court’s un- applied been and had ticular situation Appellant’s requiring Appellee pay ment wherever der variant circumstances remanded and attorneys fees is reversed justice. United required right and attorneys Appellant’s pay with directions to Stevenson, F.2d Anglin v. & States payments. payment or fees out of lease 1944). (C.A. Cir. and part part, Affirmed reversed from Ordinarily attorney are assessed fees remanded with directions. is recovered. property or fund which in all Re-Hearing is The Petition for equity, how- plenary powers Under respects other denied.” ever, adopted to the granted relief exigencies of the Oil & Gas case. Sinclair HODGES, LAVENDER, BARNES Bishop, 441 Company v. DOOLIN, JJ., concur. peculiar genius (Okl.1968). It is the DAVISON, BER- and IRWIN and J.,C. equity judgment in which fashioned RY, JJ., dissent. justice “Equity delights full to do done. justice, and that not halves.” Meredith Ramsdell, 384 P.2d 945 (Colo.1963). flagrant
Because of the actions of Camer- unjust
on et al. enrichment which thereby appellees
would inure to if the payment
trust imposed were to be with fees,
attorney equity justice demand attorney appellees pay be ordered to Norma MOSS and Kenneth Moss, appellant’s lawyers fees to in an amount Appellants, which is to be trial determined court. et POLYCO, corporation al., INC., part, part Affirmed in reversed Appellees. remanded with directions. No. 46134. Supreme Court Oklahoma. LAVENDER, BARNES, SIMMS and April 23, 1974. DOOLIN, JJ., concur. May 10, As Amended 1974. DAVISON, J.,C. and IRWIN and Rehearing Denied June BERRY, JJ., part concur in and dissent in part.
ON REHEARING
SIMMS, Justice.
Rehearing hereby Granted for the purpose striking
limited all of lan-
guage in original opinion, beginning
at line 35 from bottom of page page
all following and the is sub-
stituted therefor: