The opinion
I dissent to the opinion adopted by the majority of the court.
I am of the opinion the rule announced in the fifth paragraph of the syllabus is erroneous and will be particularly unfortunate in its effect upon the political subdivisions of the state in their efforts to perform the functions assigned to them under our Constitution.
The modern rule, and certainly the better rule, is that municipalities have the power, under general grants of the right to exercise eminent domain, to condemn, for the use of the public, property already devoted to a public use.
The court's opinion lays stress upon the lack of power of Oklahoma City to acquire the property involved for park purposes. This is an obvious misconception of the legal purpose clearly shown by this record to have been intended by Oklahoma City. It is an admitted fact that the purpose Oklahoma City had in mind in acquiring this property was to relocate the railroads then using it. Its motive was to end an almost intolerable condition that had arisen within the city by reason of the existence of this busy line railroad in the very heart of the city. Here a city of upwards two hundred thousand people had its very business and civic body cut in half by a line of railroad that was in hourly use. This railroad ran parallel to, less than two blocks away from, Main street, the most congested street in Oklahoma City, and also crossed at least four of the main business streets of the city running north and south. The moving of trains across these streets and other streets at all hours of the day and night constituted a threat to the lives of the people, seriously interfered with and congested traffic, and created a continued annoyance to the business district. The fundamental purpose for voting over four million dollars in bonds to acquire this property arose from a desire, and a positive necessity, to relieve this situation. That the property so acquired might afterwards be used by the city for park purposes, or any other purpose, was wholly incidental. To deny Oklahoma City the power to *Page 200
condemn for such a purpose on the assumption that the city was in reality acquiring this property for park purposes is to overlook the primary purpose of Oklahoma City. The authorities cited and relied on by the court to deny Oklahoma City this power are not analogous when the substantial objective of the city is considered.
I am further of the opinion that the things done by Oklahoma City in this matter amounted to an exercise of the power of eminent domain and a taking thereunder. This being so, the general rule is that a mere possibility of reverter or expectancy such as Bassett claims in this instance had no allowable value in such taking in Oklahoma City, and the vesting of the prospective interest was merely postponed.