STATE EX REL. DEPT. OF TRANSP. v. HOEBEL

STATE EX REL. DEPT. OF TRANSP. v. HOEBEL
1979 OK 63
594 P.2d 1213
Decided: 05/08/1979
Supreme Court of Oklahoma

STATE OF OKLAHOMA EX REL. DEPARTMENT OF TRANSPORTATION, PETITIONER,
v.
PATRICIA HOEBEL, JUDGE OF THE DISTRICT COURT IN AND FOR TULSA COUNTY, STATE OF OKLAHOMA, RESPONDENT.

Original proceeding on application to assume original jurisdiction and petition for writ of prohibition.

¶0 In this action, we are asked to assume original jurisdiction and issue a Writ of Prohibition, prohibiting the Respondent Trial Judge from further proceeding in a reverse condemnation action brought by a landowner seeking compensation for a taking of her land, which allegedly resulted from continuous flooding of her land brought about by the construction of a limited access highway adjacent to her property.

Finding that flooding of land may constitute a taking, and that where a plaintiff in an action in the nature of inverse condemnation alleges such a taking, the citizen suing the State is not required to secure legislative permission to sue the sovereign, we assume original jurisdiction and refuse to issue the Writ of Prohibition requested.

ORIGINAL JURISDICTION ASSUMED, AND WRIT OF PROHIBITION DENIED.

Spencer W. Lynn, State Dept. of Transp., Oklahoma City, for petitioner.

Richard L. Blanchard, Tulsa, for respondent.

BARNES, Justice:

[594 P.2d 1214]

¶1 The issue presented in this case is whether a plaintiff, who brings an action in the nature of inverse condemnation, alleging a taking of his or her land by virtue of continual flooding caused by the construction of a public highway, may bring such an action without first obtaining legislative permission to sue the State.

¶2 The question is raised by the State of Oklahoma in an original action, in which it asks us to assume original jurisdiction and issue a Writ of Prohibition, prohibiting the Respondent Trial Judge, the Honorable Patricia Hoebel, from further proceeding in an action in the nature of inverse condemnation brought in the District Court of Tulsa County by Pauline A. Smittle.

¶3 In her petition below, Ms. Smittle alleges that by virtue of the construction of the Mingo Valley Expressway adjacent to her property, her land has been continually flooded, constituting the taking of her property without just compensation.

¶4 Article II, Section 24, of the Oklahoma Constitution, provides in part that:

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

¶5 Through case law developed over the years, a distinction has been made between suits brought against the State seeking compensation by virtue of the above quoted constitutional provision - this Court has made a distinction between those suits in which a taking is present, and those in which only damages are present. This dichotomy has been held to have jurisdictional significance. In cases in which a taking is present, a citizen may sue the sovereign State in inverse condemnation without first [594 P.2d 1215] obtaining permission from the sovereign.

¶6 In the original action before us, the State argues that Ms. Smittle's suit is in reality one for damages, and no taking is present, and that permission from the sovereign to sue is necessary, and that without such permission the trial court lacks jurisdiction to further proceed in the matter. While we agree that a citizen must obtain permission prior to suing the State for damages, and that a trial court lacks jurisdiction to consider such a suit in the absence of such permission, we cannot agree with the State's position.

¶7 The weakness in the State's argument is its assertion that the alleged flooding does not and cannot constitute a taking. In making this argument, the State calls our attention to prior decisions in which we held that flooding did not constitute a taking.

¶8 The majority rule in this country is that flooding, whether permanent or recurring, may constitute a taking if the flooding is severe enough so as to effectively destroy or impair the land's usefulness.

¶9 In Henthorn v. Oklahoma City, Okl., 453 P.2d 1013 (1969), this Court, in a unanimous opinion, held that frequent aircraft flights over a citizen's land may constitute a taking, as that word is used in Section 24, Art. II of this State's Constitution. In so holding, we stated in syllabus 2 of our opinion:

"Ordinarily, the question of whether a continuing interference is substantial enough to constitute a `taking' under Section 24, Art. 2, Constitution, is one for the jury."

¶10 Similarly, we believe that flooding, if serious enough to constitute substantial interference with the use and enjoyment of the property, may constitute a taking, and that whether such a taking is present is a question for the trier of fact. This being the case, it would be inappropriate for this Court to issue a Writ of Prohibition, prohibiting the trial court from further proceeding in the action below, for facts which may constitute a taking have been plead, and it is for a jury, not this Court, to decide, under the facts presented below, whether a taking is present.

¶11 For this reason, we refuse to grant the Writ of Prohibition requested.

¶12 ORIGINAL JURISDICTION ASSUMED AND PETITION FOR WRIT OF PROHIBITION DENIED.

¶13 WILLIAMS, HODGES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

¶14 LAVENDER, C.J., IRWIN, V.C.J., and OPALA, J., dissent.

Footnotes:

1 E.g., State ex rel. Dept. of Highways v. Cook, Okl., 542 P.2d 1405, 1406 (1975); State v. Keen, Okl., 354 P.2d 399, 400 (1960); Hawks v. Walsh, 177 Okl. 564, 61 P.2d 1109, 1111 (1936); and State Highway Commission v. Brixey, 178 Okl. 118, 61 P.2d 1114, 1115-16 (1936).

2 Id.

3 State v. Keen, Okl., 354 P.2d 396 (1960) (an inverse condemnation case in which this Court, in an original action, considered the merits of an objection to jurisdiction filed after the Commissioners' Report had been filed.); State Highway Commission v. Adams, 178 Okl. 270, 62 P.2d 1013 (1936); and State Highway Commission v. Brixey, 178 Okl. 118, 61 P.2d 1114 (1936).

4 See, 2 Nichols on Eminent Domain, § 6.23(3), and 26 Am.Jur.2d, Eminent Domain, § 65.

IRWIN, Vice Chief Justice, dissenting:

[594 P.2d 1216]

¶1 I would not assume original jurisdiction and respectfully dissent.

¶2 I am authorized to state that Lavender, C.J., and Opala, J. concur in this view.