DocketNumber: No. 32377.
Citation Numbers: 174 P.2d 244, 198 Okla. 22
Judges: BAYLESS, J.
Filed Date: 9/24/1946
Status: Precedential
Modified Date: 1/13/2023
This appeal from the district court of Oklahoma county by O. H. Fischer et ux. questions the correctness of the judgment of that court in favor of the City of Oklahoma City, a municipal corporation, et al. Fischers brought the action to recover certain real estate, which City had earlier taken from them by the exercise of the power of eminent domain.
Fischers first contend that city had no power under Oklahoma law to condemn a fee-simple title to this property. At the outset they are familiar with our decisions in Ramsey v. Leeper,
City argues at length concerning the effect of the conduct of the parties during the condemnation proceedings, saying that the grounds of attack now being urged by Fischers actually should have been used by Fischers in that proceeding as objections to the necessity for taking and to question the nature of the estate needed by City but were not so used, thereby bringing into operation the rule of res adjudicata; and that Fischers are estopped to question now the title of City and the use it makes of the land since they proved to the best of their ability the fee-simple value of the land taken as of the time of the taking, that they took City's money and still retain it, and sat idly by while City improved this property and altered its position in all respects.
The better rule seems to be to regard the transfer of title that takes place under eminent domain as being a sale, even though in a sense forced. The initiation and prosecution of the proceedings by the condemnor forces the owner into the matter. The owner may not contest the grant by the Legislature to the condemnor of the power of eminent domain, but he may contest the fact of the necessity of the taking, City of Tulsa v. Williams,
Need for taking the particular land and the estate therein to be taken, like the issue of compensation for the taking, is judged by the conditions existing at the time of the taking. Where limited estate is taken, there remains in abeyance, always ready to be asserted and protected, the reversionary interest. These give rise to the only instances known to us when subsequent events or conditions may be interposed. Abandonment deliberately, or by nonuser or by misuser, is well recognized, 30 C.J.S. 216, sec. 455 et seq. A study of the cases cited in the footnotes of the foregoing citation reveals that they all relate to the loss of the right to limited estates only. It is to be noted that in section 460, above, it is pointed out that where condemnation has vested a fee in condemnor, there is no reversion as occurs in the instances of limited estates.
This is logical. The condemnation of a fee estate, without objection from the owner, vests the same type of fee estate, insofar as the owner is concerned, that a voluntary grant would convey. Conceding the grant of power to the state and its municipal subdivisions to condemn a fee estate in land, we know of no case, and are not cited any, wherein the owner has been permitted later to attack and modify a title taken from him by condemnation on the basis of subsequent events. The binding effect of the judgment in the earlier proceedings and Fischers' waiver in that trial of their permissible objections support City's contentions that res adjudicata and estoppel apply.
It is also argued by Fischers that the taking of this property by City for airport purposes makes City a public service corporation or public utility or transportation company within the meaning of section 6, art. 18, Constitution of Oklahoma, and its corollary sections and aiding statutes; and, by reason of this, the title which the City, as such public utility exercising the power of eminent domain, can take is limited similar to a railroad right of way, section 24, art. 2, Constitution of Oklahoma. Section 24, supra, reads in part as follows:
"The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it was taken."
Fischers offer no convincing analogy between a railroad right of way and an airport. To us, the airport presents a close analogy to a railroad station and surrounding yards and facilities. It is proper to observe that there is no constitutional limitation on the title to be acquired by a railroad for its purposes other than right of way. In addition, the weight of authority, including our opinion in Travis v. Dickey,
The next argument that the purpose of the acquisition of this property under the record shown violates section 17, art. 10, Constitution of Oklahoma, is answered in the negative by our opinions in the Ruth and Schmoldt Cases, supra, and by Delfeld v. City of Tulsa,
It is argued that Oklahoma City has no power to acquire property for park purposes, but such power rests in the park board of said city. Whether this is true or not is of no concern to Fischers. They have been paid for this land by Oklahoma City and if the title should rest in the park board, one of its agencies, instead of the city itself, those corporate entities and the citizens of the municipality only can raise the issue. But this would be for the purpose of adjusting title as between the municipal bodies and not for the purpose of destroying their title and revesting it in Fischers.
The judgment is affirmed.
GIBSON, C.J., HURST, V.C.J., and OSBORN and DAVISON, JJ., concur. WELCH, J., concurs in conclusion. RILEY, J., dissents.
B. Willis, C.P.A., Inc. v. BNSF Railway Corp. , 531 F.3d 1282 ( 2008 )
Arechiga v. Housing Authority of City of Los Angeles , 159 Cal. App. 2d 657 ( 1958 )
Seba v. Independent School Dist. No. 3 , 208 Okla. 83 ( 1953 )
Oklahoma City v. Cooper , 420 P.2d 508 ( 1966 )
Sublett v. City of Tulsa , 405 P.2d 185 ( 1965 )
Graham v. City of Duncan , 354 P.2d 458 ( 1960 )
Elliott v. City of Guthrie , 725 P.2d 861 ( 1986 )
STATE EX REL. DEPT. OF TRANSP. v. Mehta , 180 P.3d 1214 ( 2008 )
Ex Parte Houston , 93 Okla. Crim. 26 ( 1950 )
Meriwether v. Gulf Oil Corporation , 298 P.2d 758 ( 1956 )
City of Pryor Creek v. Public Service Co. of Oklahoma , 536 P.2d 343 ( 1975 )
Delhi Gas Pipeline Corporation v. Swanson , 520 P.2d 670 ( 1974 )