Grand River Dam Authority v. Jarvis ( 1942 )

PHILLIPS, Circuit Judge

(dissenting in part).

Sections 55 and 56, Title 66, Okl.St.Ann., §§ 11933 and 11934, O.S.1931, were originally a part of the statutes of the Territory of Oklahoma, Ch. 17, Art. 9, § 28, St. of Okl.1893, and by Art. 2 of the Schedule to the Oklahoma Constitution, Okl.St.Ann., they were extended to and continued in force in the state of Oklahoma, except to the extent they are repugnant to the Constitution.

Section 55 provides for the review by the district court of the report of the commissioners on written exceptions filed by either party, or in the alternative for a jury trial on demand of either party, and that if a jury trial is demanded, that the damages shall be assessed by the jury. It provides further that if the “party demanding such [jury] trial does not recover a verdict more favorable to him than the assessment of the commissioners, all costs in the district court may be taxed against him.” (Italics mine.)

Section 56 provides for an appeal from the decision of the district court to the Supreme Court by either aggrieved party and that “in no case shall said corporation [condemnor] be liable for the costs on such review or appeal, unless the owner of such real property shall be adjudged entitled, upon either review or appeal, to a greater amount of damages than was awarded by said commissioners. The corporation shall in all cases pay the costs and expenses of the first assessment.”

It will be observed that § 55 provides for a review and § 56 for an appeal and the latter provides that on review or appeal, costs shall not be assessed against the condemnor unless the award of the commissioners is increased; and § 55 provides as an alternative to a review that either party may demand a jury trial and if the party demanding a jury trial does not receive a more favorable verdict than the assessment of the commissioners, all costs in the. district court may be taxed against him. It is, therefore, my conclusion that the statute provides that the condemnor shall! pay the costs and expenses of the first assessment; that on a review or appeal, but not in case of trial by jury, the costs shall not be adjudged against the condemnor, unless on such review or appeal the award of the commissioners is increased; and! that on trial by jury if the demanding-party does not recover a verdict more favorable to him than the assessment of the commissioners, the costs in the discretion of the court may be assessed against him.

I find no conflict in the two sections to be reconciled, if we apply them as written. Section 56 covers costs of the original assessment and on review and appeal; and § 55 covers costs in the event of a jury trial and leaves their assessment to the sound discretion of the court.

Here, the Authority sought condemnation and caused an award to be fixed by the commissioners. The landowner made no objection to the award, and took no steps to have it reviewed either by the court or by a jury. The Authority was not satisfied. It sought further proceedings and demanded a jury trial.' The jury assessed the owner’s damages at a specific amount, which was less than the award of the commissioners. To deduct from that amount which the jury found to be just compensation, the costs of the jury trial, a proceeding which the landowner neither demanded nor initiated, would result not in the landowner receiving the amount fixed by the jury as just compensation, but that amount decreased by the costs of the jury trial. Under such circumstances, the court was justified, I think, under the discretion which § 55 gave it, to assess the costs of the jury trial against the Authority.

Section 24 of Art. II of the Oklahoma Constitution provides:

“Private property shall not be taken or damaged for public use without just compensation. Such compensation, irrespective of any benefit from any improvements proposed, shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation.”

This provision is self-executing. In Missouri, K. & T. Ry. Co. v. State, 107 Okl. 23, 229 P. 172, 175, the court said:

“Section 24, article 2, of the state Constitution, provides specifically:

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

“The section then goes on to prescribe the manner in which damage to same may be ascertained and compensation awarded. The section is self-executing in its provisions.”

In Stinchcomb v. Oklahoma City, 81 Okl. 250, 198 P. 508, Syl. 1, the court held that the constitutional provision must be strictly construed in favor of the landowner and against the condemnor.

; In proceedings for the appropriation of land to the .public use, the owners of the land are entitled to full compensation without deduction for any part of the costs incurred in the ascertainment of the amount. These must be borne by the condemnor in whatever court he institutes proceedings for that purpose. If the condemnor is dissatisfied with the assessment and seeks to reduce the amount by an appeal to another tribunal, such appeal is but a continuation of his effort to have the compensation to be paid the owner for his property ascertained, and his costs on such appeal are in the same category as costs in the original proceeding. When the compensation has once been ascertained by a competent tribunal at the expense of the condemnor, the constitutional requirement is met. If the owner is given a right of appeal or review, it may be upon such terms as to costs as the legislature may deem just. But if the condemnor avails himself of a statute giving him the right of appeal, he cannot cast the costs upon the owner if the assessment is reduced.¹

Three cases are cited in the majority opinion as supporting the contrary view. Music v. Big Sandy & K. R. R. Co., 163 Ky. 628, 174 S.W. 44, 46, 47, Ann.Cas.1916E, 689, supports the view herein expressed. Douglas v. Indianapolis & N. W. Traction Co., 37 Ind.App. 332, 76 N.E. 892, does not discuss the constitutional question. It is true that Moffat v. City and County of Denver, 57 Colo. 473, 143 P. 577, sustained an assessment of costs against the landowner where the appeal was taken by the condemnor. However, Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378, supports the view herein expressed, and Keller v. Miller, 63 Colo. 304, 165 P. 774, 777, cites Dolores No. 2 Land & Canal Co. v. Hartman, supra; Lewis on Eminent Domain; City of Oakland v. Pacific Coast Lumber & Mill Co., 172 Cal. 332, 156 P. 468, Ann.Cas.1917E, 259; and Petersburg School Dist. v. Peterson, 14 N.D. 344, 103 N.W. 756, with approval.

I think the statute, properly construed, permitted the assessment of the costs in the instant case against the Authority. However, if it may not be so construed, it is my opinion that it is clearly unconstitutional, and that we should not hesitate to so hold.

1 Lewis on Eminent Domain, 3d Ed., Vol. II, § 812, 815;

18 Am.Jur., p. 1020, § 378;

City of Oakland v. Pacific Coast Lumber & Mill Co., 172 Cal. 332, 156 P. 468, 470, Ann.Cas.l917E, 259;

Music v. Big Sandy & K. R. R. Co., 163 Ky. 628, 174 S.W. 44, 47, Ann.Cas.1916E, 689;

Peoria, B. & C. Traction Co. v. Vance,

251 Ill. 263, 95 N.E. 1081, 36 L.R.A.,N.S., 624, Ann.Cas.1912C, 532;

Matter of New York, West Shore & Buffalo Ry. Co., 94 N.Y. 287, 294;

Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378;

Petersburg School Dist. v. Peterson, 14 N.D. 344, 103 N.W. 756, 759.

See, also, Broadway Coal M. Co. v. Smith, 136 Ky. 725, 125 S.W. 157, 163, 26 L.R.A.,N.S., 565.