# MacY v. Oklahoma City School District No. 89

> Supreme Court of Oklahoma · June 16, 1998 · 69 O.B.A.J. 2254

URL: https://www.frixlaw.com/law-library/cases/9542529

## Case

- **Full name:** Robert H. MACY, Et Al., Plaintiff/Appellants, v. OKLAHOMA CITY SCHOOL DISTRICT NUMBER 89, and Ron Bogle, Frank Kellert, Wayne Dempsey, Thelma R. Parks, Tom Yeargain, Terri Silver, and Michael Carter, in Their Official Capacities as Members of the Board of Education of Oklahoma City School District No. 89, Defendants/Appellees
- **Court:** Supreme Court of Oklahoma
- **Decided:** June 16, 1998
- **Citations:** 69 O.B.A.J. 2254; 961 P.2d 804; 1998 OK 58; 1998 Okla. LEXIS 64; 1998 WL 345289
- **Precedential status:** Published
- **Opinion:** Concurrence by Ala
- **Judges:** Summers, Ala, Kauger, Hargrave, Watt, Garrett, Goodman, Hodges, Lavender, Simms, Opala, Wilson
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9542529

## How later opinions describe it (automated extraction)

- explaining that private individuals do not possess a legally cognizable interest to challenge the creation of a school district in a quo warranto proceeding
- stating that "the question of whether an agency relationship exists is one of fact"

## Opinion text

OP ALA, Justice,
concurring in judgment.
¶ 1 The court today pronounces that a declaratory-judgment action will not lie to challenge the validity of two school district annexation elections when there has been no showing that the statutory remedy for waging such contests was inadequate.
*811 ¶ 2 Although I concur in the court’s judgment, I must recede from the analytical underpinnings of its pronouncement. The short and simple answer to this controversy is that the plaintiffs’ claim for de-annexation of a school district, brought some thirty years after the district had acquired its present-day boundaries, is barred by prescription. The district’s continued and uninterrupted control of the annexed area for more than fifteen years gives it a legally unassailable title to its current territorial integrity. In sum, the contest sought to be pressed is time-barred. 1
I
THE ANATOMY OF LITIGATION
¶ 3 The Arcadia School District 1-5 [Arcadia District] became incorporated in 1966 into the Oklahoma School District 1-89 [District]. First to be annexed, by election held in July 1966, was a quarter section of land situated in the Arcadia District. The remainder of the territory now in contest here was annexed by an election held in September of that year. Residents of the former (now defunct) Arcadia District challenge in this lawsuit the validity of the two critical elections.
II
¶ 4 THE ROMAN-LAW CONCEPT OF PRESCRIPTION — EMBODIED IN THE TEXT OF 60 O.S.1991 § 333 2 — CONFERS UPON THE DISTRICT UNASSAILABLE PRESCRIPTIVE RIGHTS IN THE ANNEXED ARCADIAN TERRITORY IN DISPUTE HERE
The District qua Territorial Entity
¶ 5 A school district is a territorial entity, 3 which embraces a defined geographical area that may be enlarged or diminished through consolidation or annexation of land area. 4 The lawfulness of the Arcadian territory’s incorporation is challenged — some thirty years after that land area’s annexation — for flaws in the two critical boundary-shaping elections. In my view, the District is no longer required to justify the legitimate origin of its control over the annexed territory. This is so because it has been continuously operating as a district within the entire land area of which it is now constituted for longer than the prescriptive period of fifteen years. 5 Its occupancy of the land area has been adverse, open (visible), exclusive and *812 peaceable. 6 Moreover, even if the critical annexation elections are in fact facially void, as the plaintiffs’ urge, an even shorter (five-year) prescriptive period might have been triggered. 7
Prescription
¶ 6 Lapse of time that brings about a transfer of rights from the true title holder to the adverse claimant comes to us from the Roman-law doctrine known as prescription. 8 Prescription provides a mode of acquiring an interest in the pi’operty of another through long-continued period of nonconsensual pos-sessory dominion or nonpossessory use (or enjoyment). 9 Prescriptive occupancy (or use) must be nec vi nec clam nec precario 10 —-peaceable, open (visible) and without the true titleholder’s consent or permission. In Oklahoma jurisprudence the quoted Latin-language maxim of the common law, which characterizes the qualifying attributes of adverse holding, is often translated as “actual, open (visible), notorious, exclusive and continuous.” 11 The precise genre of possessory interest we are dealing with here is managerial control of government schools in a defined land area.
Prescription — A Foreign Legal Concept— Comes To Oklahoma’s Legal System Partly Through The Common Law, Though Its Core Concept Is Derived From Explicit Legislative Adoption
¶ 7 Prescription came to Oklahoma law from two different sources. It was first applied to the acquisition of incorporeal interests in land, such as easements, as part of the state’s common-law heritage. 12 But insofar as prescription is invocable for acquisition of title by lapse of time in the property of another, the concept entered our legal system through the enactment of 60 O.S.1991 § 333. 13 The outer reach of the doctrine is not restricted to contests over title to land. It stands extended — and this application is *813 founded on sound historical antecedents — to a variety of land-based rights that resemble common-law franchises. 14 Included in the latter class of interests are governmental entities charged with providing school services within a legally defined territory. 15
Adverse Possession Distinguished
¶ 8 Prescription is best understood by its comparison with the doctrine of adverse possession. While as a common-law doctrine adverse possession could be used only defensively 16 — to bar the true owner’s recovery of land — prescription confers title on the adverse occupant and allows lapse of time to be used offensively. 17 When read in conjunction with the provisions of 60 O.S.1991 § 333, the terms of 12 O.S.1991 § 93 18 not only extinguish the true owner’s remedy but also confer upon the adverse occupant title to the premises by prescription. 19 By force of § 333 the limitations in § 93(1) and (6) stand transmogrified into a right-conferring time bar on whose lapse title to the land (or territory) becomes vested in the adverse holder.
The Prescriptive Period
¶ 9 The prescriptive period was initially known at common law as time immemorial— i.e., the time of human memory. 20 The date of legal memory was later fixed as the year of Richard I’s coronation in 1189. 21 To avoid the necessity of proving such long duration a *814 custom arose of allowing a presumption of a grant on proof of usage for a long term of years. 22 The time span for acquisition of a prescriptive title is in Oklahoma governed by statute. 23 The terms of 60 O.S.1991 § 338, which confer that title upon one who has occupied land adversely for the requisite period, abrogate the common law. 24
¶ 10 The District has been functioning within the annexed territory qua school district for over fifteen years. Its open (visible), adverse, notorious, exclusive and continuous “occupancy” 25 of the annexed land area for the requisite period confers upon it title by prescription to the administrative integrity of the territory sought to be de-annexed by the plaintiffs’ lawsuit. 26 Even if the District’s title was acquired through two flawed annexation elections, it has become impervious to challenge by lapse of time.
Ill
SUMMARY
¶ 11 Inasmuch as the District has been occupying for over fifteen years the annexed area as a school district — continuously and sans interruption — in a manner that has been adverse, open (visible), notorious and exclusive, its territorial integrity is no longer assailable. Because the instant dispute presents a public-law controversy, this court may change the theory tendered by the parties at nisi prius and followed by the trial court. 27
In sum, although I join in affirming the trial court’s judgment, I recede from today’s opinion. I would rest this court’s pronouncement solely on the operation of prescription rather than on inappropriateness of the invoked declaratory-judgment remedy. The vice I find in the court’s text is that it places a needless and legislatively unwarranted 28 restriction on the availability of judicial declaration for testing school-district boundaries drawn by facially void means.
. The terms of 60 O.S.1991 § 333 are:
"Occupancy for the period, prescribed by civil procedure, or any law of this state as sufficient to bar an action for the recovery of the property, confers a title thereto, denominated a title by prescription, which is sufficient against all.” (Emphasis mine.)
. For the terms of 60 O.S.1991 § 333, see supra note 1.
. A "school district” is regarded as a legal division of territory, created by the state for educational purposes. The terms of 70 O.S.1991 § 1-108 provide:
"A school district is defined as any area or territory comprising a legal entity, whose primary purpose is that of providing free school education, whose boundary lines are a matter of public record, and the area of which constitutes a complete tax unit.” (Emphasis mine.)
. 70 O.S.Supp.1997 §§ 7-101 et seq.
. The terms of 12 O.S.1991 § 93 provide in pertinent part:
"Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter:
(1) An action for the recovery of real property sold on execution, or for the recovery of real estate partitioned by judgment in kind, or sold, or conveyed pursuant to partition proceedings, or other judicial sale, or an action for the recovery of real estate distributed under decree of district court in administration or probate proceedings, when brought ... within five (5) years after the date of the recording of the deed made in pursuance of the sale or proceeding, or within five (5) years after the date of the entry of the final judgment of partition, in kind where no sale is had in the partition proceedings; or within five (5) years after the recording of the decree of distribution rendered by the district court in an administration or probate proceeding....
(2) An action for the recovery of real property sold by executors, administrators, or guardians, upon an order or judgment of a court directing such sale, brought ... within five (5) years after the date of recording of the deed made in pursuance of the sale.
(3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed,....
*812 (4) An action for the recovery of real property not hereinbefore provided for, within fifteen (15) years.
⅝ S[C % ⅝ Jfc ⅝
(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; ...” (Emphasis mine.)
. See discussion of prescription and adverse possession in Part II infra.
. A void conveyance will, in some instances, serve as a muniment of title. See U.S. Through Farmers Home Admin, v. Hobbs, 1996 OK 77 , 921 P.2d 338, 343 (the court held that the terms of 12 O.S.1991 § 93(6), supra note 5, bar an attack on an adverse claimant's void (or voidable) deed (or judgment), brought by suit commenced after the lapse of the five-year period prescribed by § 93(1), (2) and (3). The shorter period runs in favor of persons in possession under a void tax deed.) Morris v. Wells, 1963 OK 113 , 381 P.2d 882, 887-888 .
. Prescription is a term of Roman law with a telling etymology. It is a derivative of Latin "praescriptio", meaning an earlier writing. Opala, Praescriptio Temporis and Its Relation to Prescriptive Easements in the Anglo-American Law, 7 TULSA LJ. 107, 112 (1971). Prescription was a stranger to the ancient Anglo-Saxon law. Sherman, Acquisitive Prescription — Its Existing World-Wide Uniformity, 21 Yale L.J. 149 (1912). The precise time of its entry into post-Conquest England cannot be fixed with any degree of accuracy. The best estimate is that English judges began to apply it in the twelfth or thirteenth century. Id. at 268 .
. Prescription governs both possessory and non-possessoiy interests in real as well as personal property. Opala, supra note 8 at 108-110.
. Opala, supra note 8 at 115, 120, 124, 125 (citing Bracton, De Legibus Angliae 221, 222b (Woodbine ed.1932)); see also David V. Snyder, Possession: A Brief For Louisiana’s Rights of Succession to The Legacy of Roman Law, 66 Tulane L.Rev. 1874-75 (1992) (citing The Institutes of Justinian, 4.15.4a).
. For example, to acquire an easement by prescription, a claimant must show that the use or enjoyment was hostile, actual, open, notorious, exclusive, continuous, and for the full statutory' period. Willis v. Holley, 1996 OK 107 , 925 P.2d 539, 541 ; Irion v. Nelson, 207 Okl. 243 , 249 P.2d 107, 109 (1952).
. Oklahoma applies prescription to acquisition of incorporeal interests in land, such as easements, as part of the State's common-law tradition. Winterringer v. Price, 1961 OK 135 , 370 P.2d 918, 922 ; Irion, supra note 11 at 109; Telford v. Stettmund, 205 Okl. 86, 235 , P.2d 692, 694-95 (1951).
. For the terms of 60 O.S.1991 § 333, see supra note 1.
. "Franchise”, as used by Blackstone, has reference to a royal privilege (or branch of the king's prerogative subsisting in the hands of the subject). It must arise from the king's grant or be held by prescription. State v. Fernandez, 106 Fla. 779, 143 So. 638, 639 (1932); Omaha & Council Bluffs St. Ry. Co. v, City of Omaha, 114 Neb. 483 , 208 N.W. 123, 125 (1926); Unger v. Landlords' Management Corporation, 114 N.J. Eq. 68 , 168 A. 229, 230 (1933); Greene Line Terminal Co. v. Martin, 122 W.Va. 483 , 10 S.E.2d 901, 903 (1940); Inland Waterways Co. v. City of Louisville, 227 Ky. 376 , 13 S.W.2d 283, 285 (1929).
. See in this connection Harvey Aluminum v. School District No. 9, Wasco County, 239 Or. 571 , 399 P.2d 149 (1965), a declaratory judgment action to establish the boundary between two school districts. The dispute arose because the boundary lines between two school districts, established in 1916, were overlapping. Until the action was pressed, nearly fifty years later, neither of the overlapping boundary lines described in the county’s records was treated as the boundary by the county officials or the school districts themselves. The court opined that the boundary "should be drawn along the line relied upon for a long period of time by the two school districts and by other county agencies. ” (Emphasis supplied.) By analogy to boundary disputes between two states, the court invoked " 'a principle of public law, universally recognized, that long acquiescence in the possession of territory, and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority.’ ” Id. at 575 , 399 P.2d 149 (quoting from State of Michigan v. State of Wisconsin, 270 U.S. 295, 319 , 46 S.Ct. 290, 298 , 70 L.Ed. 595 (1926)). The court concluded that a similar principle is applicable to establish the boundary between lesser governmental units such as school districts.
. As a common-law concept, unaided by 60 O.S.1991 § 333 (supra note 1), adverse possession would deprive the true title only of a remedy — the land’s recovery by ejectment. Adverse possession is at common law but a defense against true title. It does not operate to transfer title to the adverse claimant. Stolfa v. Gaines, 140 Okl. 292 , 283 P. 563 , 568 (1930).
. To establish title by prescription, a claimant must show that possession of the land was adverse, actual, open, visible, notorious, exclusive, continuous and for the statutory period. Shanks v. Collins, 1989 OK 115 , 782 P.2d 1352, 1354 ; Loris v. Patrick, 1966 OK 79 , 414 P.2d 249, 252 . If occupancy of premises beyond one’s true boundary line is actual, open, visible, notorious, exclusive, and continuous, it may be "adverse" although occupants may have been unaware, or under misapprehension, as to the true location of the line. Leach v. West, 1972 OK 162 , 504 P.2d 1233, 1237-38 ; Hammer v. Bell, 1964 OK 57 , 390 P.2d 492, 498 . Title so acquired is a corporeal right (as distinguished from an incorporeal hereditament in land).
. For the pertinent terms of 12 O.S.1991 § 93, see supra note 5.
. Stolfa, supra note 16 , 283 P. at 567-570 (the court recognized that the provisions of 60 O.S. 1991 § 333, supra note 1, which confer title by prescription upon one who has occupied land adversely for the required period, abrogate the common law).
. The right claimed must have been enjoyed beyond the period of the memory of man. 7 Holdsworth, A History Of English Common Law 347 (1926).
. In The King v. Breaux, 29 Selden Society, 180, it was established that the time of human memory required for founding an immemorial user reached as far back as September 3, 1189, the *814 date of Richard I's coronation. Opala, supra note 8 at 125.
. Scallon v. Manhattan Ry. Co., 185 N.Y. 359, 363 , 78 N.E. 284, 285 (1906).
. As the notion of a fixed time for bringing an action was unknown to the common law, the power to extinguish a remedy by lapse of years is regarded as exclusively legislative. Lake v. Lietch, 1976 OK 45 , 550 P.2d 935, 937 . The only limitation of time developed by the common law (sans statutory aid) was its so-called "immemorial prescription." Not until the 17th century did Parliament begin passing legislation prescribing fixed time limits within which an action must be brought in order to prevent the remedy’s extin-guishment. See Resolution Trust Corp. v. Greer, 1995 OK 126 , 911 P.2d 257 , 263 n. 26; Opala, supra note 8 at 111-113, 124.
. Stolfa, supra note 16 at 567-70 (when the bar of the statute becomes complete, a title by prescription arises in the adverse holder whose occupancy was adverse, actual, visible and continuous, regardless of how destitute that occupancy may have been of any color of title).
. In this sense occupancy means exercise of governmental control within an affected land area over all institutions subject to the District’s official management.
. Harvey, supra note 15 at 151.
. When resolving a public-law controversy, the reviewing court is generally free to grant corrective relief upon any applicable legal theory dispos-itive of the case and supported by the record. Russell v. Board of County Com'rs, 1997 OK 80 , 952 P.2d 492, 497 ; Jackson v. Oklahoma Memorial Hosp., 1995 OK 112 , 909 P.2d 765, 768 ; North Side State Bank v. Board of County Com'rs of Tulsa County, 1994 OK 34 , 894 P.2d 1046 , 1050 n. 8; Schulte Oil Co., Inc. v. Oklahoma Tax Com'n, 1994 OK 103 , 882 P.2d 65 , 69 n. 8; Strelecki v. Oklahoma Tax Com'n, 1993 OK 122 , 872 P.2d 910 , 920 n. 66; Simpson v. Dixon, 1993 OK 71 , 853 P.2d 176 , 187 n. 55; McNeely, Matter of, 1987 OK 19 , 734 P.2d 1294, 1296 ; Reynolds v. Special Indem. Fund, 1986 OK 64 , 725 P.2d 1265, 1270 ; Burdick v. Independent Sch. Dist. No. 52 of Oklahoma County, 1985 OK 49 , 702 P.2d 48 , 54 n. 10; McCracken v. City of Lawton, 1982 OK 63 , 648 P.2d 18 , 21 n. 11; Application of Goodwin, 1979 OK 106 , 597 P.2d 762, 764 ; Special Indemnity Fund v. Reynolds, 199 Old. 570, 188 P.2d 841, 842 (1948).
. Relief by judicial declaration of legal status is a statutory creature. See the terms of 12 O.S. 1991 § 1651. The pertinent provisions of § 1651 are:
"District courts may, in cases of actual controversy, determine rights, status, or other legal relations....’’ (Emphasis mine.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9542529. Public record. Not legal advice.