State v. Adams

Some years ago the defendants in error sought and secured an award for compensation for damage to their lands occasioned by the public use as contemplated by section 24, art. 2, Constitution, providing:

"Private property shall not be taken or damaged for public use without just compensation."

And resort was had to the procedural statute, section 10094, O. S. 1931 (construed in the case of State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002, to be "a legislative enactment providing the manner in which compensation for the taking or damaging of private property for public use by the State Highway Commission shall be ascertained." See State Highway Commission v. Brixey,178 Okla. 118, 61 P.2d 1114). But the award was reversed, State Highway Commission v. Adams, 178 Okla. 270, 62 P.2d 1013, and I think erroneously so.

These landowners, whose property was so damaged, have secured permission by an act of the Legislature, art. 4, ch. 65, S. L. 1935, to institute an action in damages against the state, and so their rights in property have been finally protected, but it is well known that with construction of modern roads and highways great numbers of landowners have and will suffer damages directly caused by highway construction. It is utterly impossible that the Legislature, meeting only at intervals for limited sessions, can consider individual cases of this nature, and in proper cases grant permission that the state may be sued. If this be so, then, in order that justice be administered equally, it is imperative that this court revert to the rule stated in Steadman v. State Highway Commission,174 Okla. 308, 50 P.2d 657 (overruled in the Brixey Case); Sweeney v. Dierstein, 170 Okla. 566, 41 P. 673; and State Highway Commission v. Smith, 146 Okla. 244, 293 P. 1002, i.e., that section 11931, O. S. 1931, prescribing procedure to be followed for recovery of loss of property taken or damaged for state highway construction, gives consent of the state to the recovery by the landowner for such damage to land by resort to condemnation proceedings, and that these proceedings may be instituted by "either party."

In the event this court does not revert to that rule, the injustice can only be corrected by an additional legislative act.

I concur in the majority opinion under the view that justice though long delayed has been done in an isolated case and express the hope that the courts or the Legislature will act to extend the constitutional right to all people of the state equally and without favor.