Fischer v. Oklahoma City , 198 Okla. 22 ( 1946 )

Herein the City sought, by the exercise of the powers of eminent domain, to acquire the fee-simple title to land. The issue presented is whether such a title was acquired. If so, the City was within its right to subsequently convey the land and the City's grantee or lessee had right to exploit the land's natural resources and petroleum. Otherwise, such grant and exploitation constituted an invasion of original owner's rights in land.

I cannot follow the majority view that the owner of land condemned "may not contest the grant (of the power of eminent domain) by the Legislature to the condemnor" but can follow the statement of the majority that such an owner of land may contest "the nature of the estate taken, 30 C.J.S. 195 et seq". These rules seem to me inconsistent.

In Ramsey v. Leeper, 168 Okla. 43, 31 P.2d 852, much consideration was given to the landowner's contest of the legislative grant of the power to the city.

The fact that the value of a fee-simple title to land condemned by exercise of the power is proved has little, if anything, to do with the extent of the title taken or the grant of the power to take, for when land is condemned for public use, a perpetual use is contemplated. The respective values of a perpetual use of land and a fee-simple title to land vary little, if any. The variation, if any, does not establish the law applicable nor the extent of the title taken. Heyward. v. Mayor, cited in Brooklyn Park Com'rs v. Armstrong, 45 N.Y. 234, 6 Am. Rep. 7.

"The possibility that the land may at some future time revert . . . by the cessation of the public use is too remote and contingent to be considered."

The individual's rights in lands are to be liberally construed. The condemnor's power is subject to strict construction. The individual's property rights may not be properly divested by estoppel. Equity abides with him even to the extent of strict construction of the law governing the powers of eminent domain.

The foundation of the majority opinion is the landowner's failure in the proceedings to object. The law made that objection for him. However, the landowner continually objected; he was in no wise satisfied; otherwise, he would have sold and conveyed the land. I cannot agree that "condemnation of the fee estate without objection from the owner, vests . . . fee estate . . . that a voluntary grant would convey". The maximum title, fee simple absolute, may be voluntarily granted by the owner of land, but the mere fact that a municipality seeks to condemn for public use the fee-simple estate in land does not vest it with authority to do so. The issue is one of the extent of title authorized by the legislative delegation of power to the City. If the statute authorized the City to acquire by condemnation merely the use of land, a fee-simple title was not by the City acquired.

Ordinarily, when the public use of land so acquired ceases, the lands revert to the original owner. "It is the interest which the City acquires by condemnation proceeding which vests" and nothing more. Skelly Oil Co. v. Kelly, 134 Kan. 176, 5 P.2d 823; State v. Lowry,166 Ind. 372 77 N.E. 728, 4 L.R.A. (N.S.) 528.

Plaintiffs in error are entitled to all rights in the land not taken by the City for public purposes. It cannot be logically said that the statute vested in the City the power to acquire for park purposes, by condemnation, the fee-simple estate in the land nor more than the perpetual public use thereof for that purpose. Ramsey v. Leeper, 168 Okla. 43,31 P.2d 852, should be overruled. An equal number of the present Justices dissented to that erroneous rule of law.