State v. Alford , 1959 Okla. LEXIS 511 ( 1959 )

BLACKBIRD, Justice.

This is an appeal on original record in reverse condemnation proceedings. Defendants in error instituted the action as plaintiffs, against plaintiff in error, as defendant. The parties will hereinafter be referred to as they appeared in the trial court.

According to the allegations of their petition, plaintiffs’ cause of action was based, not upon any wrongful taking of their land, but upon consequential damages said to result from defendant’s destruction of part of a two-lane paved highway extending along the west boundary of their land, after supplanting it with a new four-lane paved highway farther west of said land. Plaintiffs’ damages were alleged to arise from interference with ingress and egress to and from their land on the old two-lane highway.

After commissioners had been appointed and, in their report, had fixed plaintiffs’ damages at $1,000, defendant filed its exceptions and objections to the report, averring, among other things, that the court was without jurisdiction in the action because it was against the State, which had never given its consent to such suit, or, in any manner waived its sovereign immunity thereto. In said pleading, the defendant prayed that the action be dismissed.

The trial court overruled said pleading and, from said ruling defendant has perfected the present appeal. In support of its position that the trial court erred, defendant cites the cases of State Highway Comm. v. Brixey, 178 Okl. 118, 61 P.2d 1114; Hawks v. Walsh, 177 Okl. 564, 61 P.2d 1109; and State Highway Comm. v. Adams, 178 Okl. 270, 62 P.2d 1013. Plaintiffs attempt to distinguish these cases from the present one and rely upon the earlier cases of Sweeney v. Dierstein, 170 Okl. 566, 41 P.2d 673; Morse v. Board of County Com’rs, 169 Okl. 600, 38 P.2d 945; and Wentz v. Potter, 167 Okl. 154, 28 P.2d 562, citing State Highway Comm. v. Smith, 146 Okl. 243, 293 P. 1002. In Stedman v. State Highway Comm., 174 Okl. 308, 50 P.2d 657, 659, as in the present case, the defendant contended that said action for consequential damages could not be maintained because the “state had not consented to being sued.” On appeal, this court, quoting from State Highway Comm. v. Smith, supra, held in accord therewith, and with other cases cited by plaintiffs, that such action could be maintained. However, the later cases of State Highway Comm. v. Brixey, and Hawks v. Walsh, both supra, expressly overruled the Sted-man case and set the pattern since followed. In this connection, notice the discussion of the cases in the Annotations at 2 A.L.R.2d 677, 696-699. Plaintiffs attempt to distinguish this case from those two cases on the ground that, in them, the construction of the highway, for which consequential damages were therein sought,, had taken land from the defendants in error, the value of which had already been paid them through previous condemnation proceedings; while here none of plaintiffs’ land was ever needed, or taken, for the new highway. This difference in facts, might have some bearing if asserted in connection with res judicata, but there is. no such issue in this case; and plaintiffs fail to demonstrate how such facts are-related to the only issue involved here,, namely: May individuals use condemnation procedure to maintain an action solely-for consequential damages against the State? In all three of the foregoing oases cited by defendant, this court held [177 Okl. 564, 61 P.2d 1109] :

“When the state, through the highway commission, has properly acquired a right of way, and has constructed permanent highway improvements thereon, there is no authority of law-for an abutting landowner, or the owner of the land over which the right of way was acquired, upon his claim of resulting or consequential damages, to sue the state and recover such damages by resorting to the procedure of appointing commissioners as in the case of condemnation proceedings authorized by section 24, article 2 of the Constitution, and sections 10093, 10094, 11931, and 11935, O.S.1931.”

As the quoted rule is clearly determinative of the only issue presented in this appeal and it is contrary to the view apparently entertained by the trial court, said court’s order and/or judgment is hereby reversed and this cause is remanded to said court with directions to sustain defendant’s objections and exceptions to the Commissioners’ Report, and dismiss the action, as therein prayed.

WILLIAMS, V. C. J., and WELCH, HALLEY, JACKSON and IRWIN, JJ., concur. JOHNSON and BERRY, JJ., dissent.