*1 unlawfully in viola- of her son prived process of law. It is right her to due
tion of of this court that
accordingly the order granted and she be prayer be
Petitioner’s
immediately custody care restored son, Dexter. Jeremiah
of her ISSUE. THE WRIT
LET THOMAS, McGuire, James E.
Harold C. Inc., Utopia Interprises,
Indian Festival, Petitioners,
Mountain HAMPTON, Don H. District
Honorable
Judge, Judicial
Respondent.
No.
Supreme Oklahoma. 30, 1978.
Aug.
507 August year, Hall, On 4th of this William Attorney for Osage County, filed an action on behalf of the seeking enjoin petitioners from holding the festival. hearing matter, After a on the respondent Judge, Trial the Honorable Don H. Hamp- ton, issued a permanent injunction restrain- ing from operating, super- to, vising, maintaining, consenting advertis- ing or promoting fashion the Utopia Festival, Mountain function, on or about the 1978, 3rd of September, on petitioner or about McGuire’sland. appeal procedure, As the usual because of time involved, limitation not offer a remedy to petitioners, they petitioned asking have this us to as- original jurisdiction, arguing sume that the Court, presented, Trial under facts discretion, by enjoining its abused of the music in its entirety. injunction As the was issued on Au 11th, gust being enjoined activity is place 3rd, scheduled to September it is Maner, Tulsa, petitioners. for C. Jack appeal procedure, axiomatic that Hall, Atty., Osage County, Dist. William ordinary only remedy at law available Pawhuska, respondent. for petitioners, inadequate. is For reason, jurisdiction this assume original we BARNES, Justice: to consider the case. 1978, Mr. Howard C. spring O’Laughlin City Gibson, of Fort 389 began Mr. James E. McGuire Thomas and (Okl.1964), 506 a P.2d which involved suit to festival, a music preparations to conduct enjoin proposed construction of a sani- Festival, on be- Utopia Mountain land sewage tary facility, treatment stated: McGuire, a few miles longing to Mr. located enjoin nuisance, “To a threatened Pawhuska, outside Oklahoma. appear the injury must would be festival, which to feature enter- irreparable damages, David Allan Coe and Black tainers such as convincing, must be clear and a not of Arkansas, was to start noon Oak possibility apprehension, but of reason- 3,1978, and conclude at Sunday, September probability, injury able that the will be m., p. day. prepara- the same 11:00 [Quoting Syllabus done.” from No. 3.] festival, petitioners have for the tion Similarly, Sunray Oil v. Cortez Co. Oil of Mr. land fenced had 30 acres McGuire’s Co., (1941), 188 112 792 Okl. P.2d fence, link in with 7-foot chain injunction Court set aside an services, catering have ar- arranged for Court, by the Trial granted stated: facilities, toilet ranged portable for facilities, liquid right injunc- solid “It is that the to the removal of both said waste, staging equipment, tion must ‘with certainty’; as well as be established ‘clear’, date, To that the evidence ‘clear the entertainers. must be lights, and $23,000.00 convincing’, satisfactory’; 'clear and spent excess tioners great right supported by deal spend are committed proof, ‘clearest’ etc. 32 C.J. more. Shaffer, Larry up, the various statements as who has
“Summed necessary, as shown the cases proof this type, shows of and has been involved in text, are in substance that cited the production of approximately five hun- every material essential to authorize fact dred outdoor He testified .concerts. *3 injunction issuance of an the the injury most serious at any show he ever certainty, reasonable established to a produced ankle, was a broken and that in clear, probability, by a at least reasonable all the shows he has largest the evidence, convincing satisfactory and and of spectators number that ever needed injunction should be denied where the the approximately medical attention was twen- in is such as to leave doubt the evidence ty, that any and no individual at concert necessary fact to any of autho- existence required hospitalization. ever light of injunction.’’ the the rize issuance of testimony, only testimony the which [Emphasis added] purely speculative nature, was not in the provided, medical facilities a us, the to In the case before mobile station, first-aid prohibition by the total of the mu manned a doctor supporting being intern, nurses, fell short of clear and and three registered sic festival far fact, convincing. most the evidence appear adequate.1 of nature, speculative in presented highly was complained The also State that the not warrant the issuance of an and did of the festival would create undue injunction, preventing petitioners fire surrounding hazards in the vicinity. producing from First, witnesses for the State testified that State, injunction, seeking the the the parking of automobiles upon in fields Hall, Attorney speaking through would, petitioner’s land because of the heat the argued production of festival converters, catalytic of create a hazard of hazards, safety create health and would fire, particularly light the fact of at the festival site and the sur- both grass in those Countering fields. this testi- rounding community. mony was of the testimony petitioners, that they intended to graze first allow cattle to registered pro- a Armstrong, Mr. John H. involved, on blade, the land then mow and by the employed sanitarian State fessional area, then rake the that grass so the would Health, that Department of testified the possible be as as on low of the toilets, facilities, portable waste removal Additionally, festival. petitioners indicated catering accommodations were they that would have six cattle-spraying adequate provide more than the num- trucks filled with water to help available possible holders ber of ticket at festival. control fire that should occur. Al- $22,000.00, Additionally, at the cost of complete though plans to man six trucks security have hired one hundred tioners been at control, trial, not the time of guards to aid in crowd man the petitioners indicated that if desired such and order. gates, maintain would be done. Likewise, emergency medical facili- Secondly, the barring major argues petition- a that planned, catastrophe, ties ers’ use of water highly unlikely which is from the lines of the the occurrence of highly speculative, were said to be ade- Pawhuska Water District will lower and testify water quate. only person pressure areas, The who had in two residential making experience fight fire, with outdoor music festivals was thus more a difficult to show, Shaffer, initially promoters acting Mr. who two Thomas a The as consult- ant, McGuire, initially responsibili- production later and Mr. had the but had been hired as a ty attempting acquire manager, easily provide aid of local testified that he could provide planned, the medical serv- the medical facilities has doctors nurses as he devel- However, arrange- oped working relationship involved. the initial ices with doctors and by during many years Mr. ments made Mr. Thomas and McGuire nurses in Tulsa area his trial, adequate. producer not At no were the time as that area. made, arrangements had been but Mr. definite planned festival as possibility of loss of creating congested total would cause water, consumption highways the festival surrounding vicinity. should injunction attending an were There can be doubt that Even if those heavy. festival, as danger, attending possible of this because called for games, events such football do cause measures could prohibitive less certainly Court, congestion highways. Although by the taken have been department local not be may Sheriff’s continue allowed the have both equipped congestion, to handle such lessened the hazards the same time and at Patrol, Highway security person- aided out point we would Additionally, involved. desired, provided promoters, nel if they could, testified problems could minimize the inherent through adequate water necessary, provide heavy highways. testimony use trucks, the use of tanks indicated that the Patrol had re- *4 drinking install- already facilities utilize the quested forty-five troopers to in traffic aid the Pawhuska water ed connected to and festival, the control for and that other se- lines. curity personnel would be available to aid argued any Additionally, the that State Highway Although the Patrol. at the time might consti- campfires vicinity in the also trial, of the Patrol know did not Testimony indicated tute a fire hazard. many troopers how assigned would be to expected specta- that some that it could be area, testimony the the indicated that the prior to festi- arrive the the might tors intended as many Patrol to furnish officers camp wish to in the fields on val and as could. We also that it note here adjacent the festi- tioner’s land to fenced-in congestion, though perhaps not as anticipated that val As could be site. times, heavy in recent has been tolerated cook, campers might these wish to some of vicinity many years. of the Pawhuska would create a fire camping activities example, year each both For the Cavalcade case, Assuming any be the that to hazard. Roping bring Ben Johnson Contest could have been eliminated and/or hazard participants of to the Pawhuska thousands totally prohibiting greatly reduced without area. simply The could have conjunction issue, with this there was be and all land involved to bladed required great speculation testimony regard- cut; required Court could have other many might attend the ing spectators how taken, and/or the Court precautions to The testimony festival. indicated that thir- no provided camping that could have ty printed, thousand were tickets but that allowed. many tickets to printed were enable all Similarly, any health hazards which selling in various parts tickets of the might campers, such as have confronted adequate supply. State to maintain an One water, could lack toilet facilities and of promoters of that num- explained if the by lesser restrictions corrected been printed only equal ber of tickets was of the festival. prohibition total than spectators expected, of reasonably number toilet, connection, that all we note necessary keep it would be for them to by promot- provided and facilities water shuffling those tickets from to site as site perimeters of ers inside fenced-in were and one ticket seller ran out would have was and none grounds, actual his with from an- replenish supply tickets fields, camp- where outside planned other seller who had not sold tick- as would, allowed, place. Again, ing only of the ets. The estimate crowd any hazards involved could health any probative by value was had re- greatly reduced been eliminated Shaffer, who, Larry as Mr. mentioned toilet water facilities be quiring that above, great experience had a with deal campers. provided for part that it was such festivals. He testified argued presented fairly his business be able to Lastly, the State make showing production of the accurate estimate of the at his attendance The and festivals. evidence of- concerts Due to the time,2 shortness that Mr. at the trial indicated Shaffer fered will not remand the Trial Court for impo not, he had years sition of measures, less restrictive but will concerts, attendance at underestimated impose following as a conditions prereq mind, “track With this record” concert. uisite to the petitioners’ permitted being that Mr. indicated that it we note Shaffer proceed production with the festival: professional opinion that the festi- was his petitioner 1. All land of upon which au- possibly peo- ten val would attract thousand tomobiles will park, drive or or upon fifteen ple, and no more than thousand. He which camping permitted, is prior also testified that traffic conditions cut and/or bladed possible, as low as similar festivals did constitute sub- raked, then between the date of this hazard, though he admitted that stantial order prior opening to the festival, each giving traffic conditions at festival facilities. surroundings, different varied from festival 2. Because of the loss pressure of water to festival. evidence offered in surrounding water residential suggesting tie-ups massive traffic occur, areas which would should the highly speculative, and based little petitioners be tap allowed to into the fact, experience. past the evidence line, Pawhuska water require large past, indicated that crowds in the drinking furnish by such attracted events the Cavalcade *5 by means other than the use of the Contest, Roping and the Ben Johnson had Pawhuska water system. In deter- hazard, major not constituted a traffic al- mining the amount of water neces- they precipitated though certainly con- sary anticipated crowd, for the some gested highways and inconvenience. tioners are to consult the State only non-speculative damage As Health Department and furnish the shown, arising from the volume of quality and quantity of water re- which be might traffic attracted quired by Department. festival, was short-term inconvenience to That petitioners 3. either not allow attending those the concert and camping land, or, on their they do, surrounding vicinity, we cannot on an say, they provide are to sufficient water basis, equitable jus- that such inconvenience and toilet facilities for two hundred. injunction imposed. tified the Additionally, should camping per- be evidence, none of the Since which was mitted, open fires are to be al- non-speculative, demonstrated that the lowed. festival would result seri- 4. Should the decision be made not to irreparable damages, compensa- ous and allow camping, require that all money damages, ble in we hold that advertising promotional materi- Trial Court abused its discretion in als, distributed or aired after that enjoining However, the Trial decision, clearly indicate that camp- justified taking have been ing will not be allowed. reviewing less restrictive measures. We require 5. that at least one medical testimony, we find that most State’s doctor present be in the first-aid sta- complaint urgent petitioners was that the tion, and that he aided at arrangements least had not final for three registered nurses. they Additional- the facilities indicated would ly, petitioners provided, such are arrangements required as final to have hand, staff three drivers, medical and for cattle ambulances and three sprayers, personnel to man full them to be on hand from the time the gates time. open until dispenses. the crowd Here, place days, 2. time allow does not us to remand the uled within a few and if the petitioners hope case to Trial Court for consideration of less completing are measures, preparations, they begin immediately. restrictive as the is sched- must
5H ef- are to coordinate their 6. Petitioners MUNSON, Appellant,
forts with Oklahoma Orville Oscar Patrol, cooperate with the Patrol inconvenience minimizing Oklahoma, Appellee. The STATE of heavy caused use of the roads No. M-77-270. vicinity of the festival. are petitioners, planned, 7. The Court of Appeals Criminal of Oklahoma. security at least one hundred 31, May 1978. on hand from the time the personnel Rehearing July Denied gates open until the crowd is dis- persed.
8. Because of the traffic hazards inher- unusually heavy
ent in the use of the
local, winding, highways two-lane
night, require m., p.
end the festival at 8:00 so as to
depart during sunlight hours.
9. That the fenced-in area have at least
. emergency ten marked exits. reasons, judg-
For the above stated
ment of the Trial Court is modified as set above, and the cause is remanded to the
out harmony
Trial Court for enforcement opinion.
with this ASSUMED,
ORIGINAL JURISDICTION MODIFIED,
INJUNCTION AND CASE
REMANDED.
HODGES, J., LAVENDER, J., C. V. C.
WILLIAMS, DOOLIN, JJ., IRWIN and REYNOLDS," Justice, Special
LESTER con-
cur.
SIMMS, J., part concurs in and dissents in
part.
CORNISH, Justice, Special dissents.
The Honorable TOM CORNISH was as- case,
signed Special to act as Justice in this
filling vacancy on the Court. The Honor-
able LESTER REYNOLDS was also as-
signed Special to act as a Justice in this
case, serving instead of Mr. Justice BER-
RY, disqualification. who certified his