Board of County Commissioners v. Lowery , 2006 Okla. LEXIS 26 ( 2006 )

OPALA, J.,

concurring.

¶ 1 “No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes in such manner as may be prescribed by law.” [Emphasis supplied] Art. 2 § 23, Okl. Const.

¶ 2 Private property may be taken (or damaged) for public use only upon payment of just compensation. Art. 2 § 24, Okl. Const.

¶ 3 The question before us is whether Muskogee County may exercise its power of eminent domain to acquire for Energetix rights in land upon which a rural pipeline will be laid to convey water for generation of electricity. Energetix is a private for-profit corporation that is not a public utility. I agree with the court and with Taylor, J., writing separately, that the land is not sought for public but rather for private use in violation of Art. 2 § 24, Okl. Const., which disallows condemnation of private property for nonpublic use.

¶ 4 When the government proposes to take a person’s property to build streets, jails, government buildings, libraries or public parks that the government will own or operate, the anticipated use is unquestionably public. If the government proposes to take property and then convey it to private developers for private commercial use, a significant question is presented by the intended disposition of the property to be taken. The Oklahoma Constitution requires that the anticipated public benefits substantially outweigh the private character of the end use so that it may truly be said that the taking is for use that is “really public”. The state constitutional requirement which limits the exercise of eminent domain power to “public use” is satisfied only when the public benefits and characteristics of the intended use substantially predominate over the private value of that use. Bailey v. Myers, 206 Ariz. 224, 76 P.3d 898, 904. The essential element of predominance is absent from this record.

¶ 5 Because the intended taking has not been shown to be for public use, I concur in the court’s opinion and in the pertinent part of Taylor, J.’s separate writing.