STATE ex rel. DEPT. OF TRANSPORTATION v. EVANS

STATE ex rel. DEPT. OF TRANSPORTATION v. EVANS
2010 OK CIV APP 107
Case Number: 106733
Decided: 03/25/2010
Mandate Issued: 10/14/2010
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

STATE OF OKLAHOMA, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee,
v.
HAZEL LORRAINE EVANS, Defendant/Appellant,
and
THE ROGERS COUNTY TREASURER, Defendant.

APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA

HONORABLE J. DWAYNE STEIDLEY, JUDGE

AFFIRMED

Kelly F. Monaghan, Lori Gilliard, John M. Folks, HOLLOWAY & MONAGHAN, Tulsa, Oklahoma, for Plaintiff/Appellee,
K. Ellis Ritchie, Ryan M. Roberts, David F. DuVall, K. ELLIS RITCHIE, P.C., Pryor, Oklahoma, for Defendant/Appellant.

Kenneth L. Buettner, Presiding Judge:

¶1 Plaintiff/Appellee, the Oklahoma Department of Transportation (ODOT), filed a petition June 17, 2005, to acquire a portion of Defendant/Appellant Hazel Lorraine Evans' (Evans or Landowner) property, through eminent domain for the purpose of improvement and expansion of Highway 20 in Rogers County. Evans filed an exception to the Commissioners' Report on the grounds that it was in derogation of 27 O.S.2001 § 13(9). The overarching question before the trial court, and on review is whether, in an eminent domain proceeding, the landowner may except to the commissioners' report and force the State to find a parcel of the land in question to be an uneconomic remnant pursuant to 27 O.S.2001 § 13(9). We hold that § 13(9) is an expression of policy directed to the condemning authority concerning uneconomic remnants which is unenforceable by a private party. The trial court did not abuse its discretion when it denied Defendant/Evan's exception and we therefore affirm.

¶2 Evans' property consists of 4.30 acres on the south side of Highway 20. She has a home on the property, a barn, and a gravel driveway. According to ODOT's Brief-in-Chief, it acquired .47 acre in fee simple, a .03 acre perpetual utility easement, and a .03 acre temporary easement. Evans' Brief-in-Chief alleges the taking to be 105.10 feet in total from the right-of-way line, consisting of 70.8 feet in fee and 5 feet in easement, resulting in a setback, nonconforming to zoning requirements. Evans based her exception to the Commissioners' Report on this allegation: that ODOT abused its discretion when it failed to declare the remainder of her property to be an uneconomic remnant. She claims ODOT should have been required to acquire her home and provide her with relocation assistance.1

¶3 Title

Any person, acquiring agency or other entity acquiring real property for any public project or program described in Section 9 of this title shall comply with the following policies:

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9. If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire that remnant shall be made. For the purposes of this section, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the property of the owner which has little or no value or utility to the owner.

¶4 Section 15 of Title 27 is apposite to Section 13, and describes the circumscription of landowners: "The provisions of Section 5 [Title 27, § 13] create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation." In Western Farmers Electrical Co-Operative v. Willard,

¶5 Eminent domain proceedings are "... special statutory proceedings and are to be carried out in accordance with the specific procedures prescribed by the Legislature." State ex rel. Department of Transportation v. Kelly,

¶6 In general, there is no "cause of action" in eminent domain proceedings. "The presence of a civil wrong is a critical identifying characteristic of a 'cause of action' since 'causes of action' are to remedy civil wrongs which are threatened or committed." City of Tahlequah v. Lake Region Electric, Co-Operative, Inc.,

¶7 The Commissioners returned a damages report to the Evans property in the total amount of $98,000. Evans timely demanded a jury trial. The parties dispute the point of measuring the taking - either from the home's foundation or the front porch, a fact question to be argued to the jury. Evans has the opportunity to prove her home worthless because of zoning violations at a jury trial. However, § 13(9) does not provide a mechanism for a landowner to challenge ODOT's determination that the remaining property is an "uneconomic remnant."

¶8 With respect to Evans' challenge to ODOT's abuse of discretion vis- -vis § 13(9), we find State ex rel. Board of Regents v. McCloskey Brothers, Inc.,