Oxley v. City of Tulsa Ex Rel. Tulsa Airport Authority

SUPPLEMENTAL OPINION ON REHEARING

SIMMS, Justice.

This cross-appeal by the City of Tulsa (City) was dismissed for failure to provide a complete record for review. See: page 742 supra. Subsequently the Court allowed the record to be corrected by amendment based upon affidavit of the Court Clerk regarding the omission.

Rehearing on cross-petition was granted to consider whether the trial court erred in assessing the commissioner’s fees to City and denying recovery of City’s court costs. We find no error and affirm. 1

*749 In his petition in inverse condemnation against Tulsa, Oxley requested the trial court to appoint three disinterested landowners in Tulsa County, Oklahoma, to inspect the property allegedly taken by City and determine its value. The trial court appointed three commissioners who executed their duties and submitted a bill for their services in the sum of $3,500.00 each. The proceedings went to trial, and the jury returned a verdict for City. Soon thereafter, City moved for the trial court to assess the commissioners’ fees to Oxley. The trial court ordered City to pay the commissioners’ fees since City was the con-demnor in the action and added pre-judgment and post-judgment interest to the $3,500.00 fee for each commissioner. City also moved to recover court costs from Oxley. This request too was denied.

The constitutional and statutory provisions relating to eminent domain must be strictly construed in favor of the landowner and against the condemning party. State, ex rel., Southwestern Natural Gas Co. v. Brewer, 184 Okl. 129 , 87 P.2d 954 (1939). One such provision is article 2, § 24 of the Oklahoma Constitution which provides:

“Private property shall not be taken or damaged for public use without just compensation. Such compensation, irrespective of any benefit from any improvements proposed, shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law....”

The parties are entitled to object to the finding of the commissioners and submit the case to a jury for resolution of the compensation issue. 66 O.S.1981, §§ 53-55. Regardless of this statutory entitlement, the state constitution grants Oxley the right to have three freeholders determine the value of his land in order to compensate him before or after it is taken. City would have Oxley pay for his constitutional right to a board of commissioners solely because he requested them. Such a rule contradicts the statutes governing condemnation proceedings in Oklahoma.

The trial court based its decision on 28 O.S.1981, § 152.3 which provides, in pertinent part, as follows:

“Every condemnor, be it the state, a political subdivision thereof, or a private entity, shall be liable for poundage fee and court costs in a condemnation proceeding.”

City’s only argument is that it is not a “condemnor” as the statute contemplates the term, and, therefore, cannot be held liable for court costs. City cites 66 O.S. 1981 , §§ 53, 57 and 58 as its authority. First, it argues that Section 53 implies that “condemnor” refers to the party which initiates a condemnation proceeding, and that since Oxley initiated the inverse condemnation action, City cannot be the condemnor. City next asserts that Section 57 implicitly defines “condemnor” as the entity that actually takes and occupies the land of a private party. Since City did not take nor occupy Oxley’s land, it argues it cannot be the condemnor. City concludes that the procedures of Section 58 should be followed in taxing the commissioners’ fees as costs against Oxley.

We disagree that “condemnor” must be defined by either Section 53 or 57. Neither provision clearly defines the term. Rather, the statutes describe the rights and duties of the condemnor and condemnee in condemnation proceedings. Moreover, Section 58 does not apply because it relates to the fees owed to substitute commissioners where one of the commissioners appointed cannot act due to death, absence, refusal or neglect.

Oxley cites Southern Ry. Co. v. Jennings, 130 Tenn. 450 , 171 S.W. 82 , 83 (1914) for the definition of “condemnor.” However, the Court in Jennings derived its definition from a Tennessee statute which makes the holding less persuasive since Oklahoma does not have a similar statute. Moreover, the few cases that have defined the term “condemnor” relate the definition to specific statutes or uses of the term in statutes. However, all point to the con-demnor as being the party with the power *750 to exercise the right of eminent domain or the party actually taking the realty of others.

The Tenth Circuit, in Grand River Dam Authority v. Jarvis, 124 F.2d 914, 916 (1942), construed the constitutional rights of Oklahoma landowners under Article 2, § 24, supra:

“Without exception, the decisions hold that in an original proceeding for the condemnation of land the costs arising in the proceeding fall on the condemnor. The reason therefor is that to take the land against the landowner’s wishes and then charge him for the cost of taking would violate the constitutional prohibition against the taking of private property without just compensation [Okla. Const. art. 2, § 6]_ As the property cannot be taken until the compensation is paid, and as it cannot be paid until it is ascertained, the duty of ascertaining the amount is necessarily cast upon the party seeking to condemn the property, and he should pay all the expenses which attach to the process. Any law which casts this burden upon the owner should, in our opinion, be held to be uncostitu-tional.”

Implicit in this holding is the understanding that the condemnor is the party taking the property. Moreover, the court in Grand River Dam Authority appears to hold that expenses arising as a result of the condemnation proceeding are more naturally and equitably placed upon the taking party because the land is going to the taking party for their use. As the Tenth Circuit court sees it, the costs of the proceeding are a part of the compensation a landowner is entitled to receive under art. 2, § 24. We agreed with this rationale in Oklahoma City Urban Renewal Authority v. Lindauer, Okl., 534 P.2d 682, 685 (1975). Moreover, in countless eminent domain cases handed down by this Court since statehood, we have referred to the parties as condemnor and condemnee in the same way as the Tenth Circuit Court did in Grand River Dam Authority . City directs us to no cases which refer to or consider a landowner who institutes an inverse condemnation action as the condemn- or. We conclude that the term “condemn- or” refers to the entity condemning or taking property from a landowner, in this case, the City of Tulsa. We find no legislative guidance suggesting otherwise, and refuse to define the term to include individuals or entities other than a condemning party. Any definition of “condemnor” to include a landowner bringing an inverse condemnation action must be supplied by the legislature and not by this Court.

As we noted in the merits opinion, landowners in the area surrounding the airport, including Oxley, were contacted about possible condemnation of their property and informed of their rights under the law of eminent domain. Under these facts, City is the condemning party, and, therefore, the “condemnor” in the condemnation proceeding. As such, City must pay the costs of the action under 28 O.S.1981, § 152.3, supra. Therefore, we find that under 28 O.S. 1981 , § 152.3 and 66 O.S.1981, §§ 53-58, the trial court did not abuse its discretion or commit error in assessing the commissioners’ fees to City.

City next asserts error by the trial court in denying it’s motion to recover court costs. City maintains that this denial was in derogation of its right to recover costs as the prevailing party pursuant to 12 O.S.1981, § 929 which states that “[cjosts shall be allowed of course to any defendant, upon a judgment in his favor in the actions mentioned in [12 O.S.1981, § 928].” (Emphasis added) The actions mentioned in Section 928 are those “for the recovery of money only, or for the recovery of specific, real or personal property.” These provisions allow costs to to the prevailing party in a civil action. They do not apply to condemnation proceedings because “[condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity, but are special statutory proceedings.” Graham v. City of Duncan, Okl., 354 P.2d 458, 461 (1960).

Furthermore, condemnation proceedings have separate statutes which specifically provide for the reimbursement of costs and expenses. 66 O.S.1981, § 152.3 and 27 O.S. *751 1981 , §§ 9-12. Long-standing rules of statutory construction require us to apply the specific provisions which clearly include the matter in controversy rather than the general civil procedure provisions. City of Tulsa v. Smittle, Okl., 702 P.2d 367, 371 (1985). Title 27 O.S.1981, § 12 provides for judgments in favor of a plaintiff in an inverse condemnation proceeding to include reasonable costs and expenses. However, no provision is made for the reimbursement of expenses to a condemnor who prevails in an inverse condemnation proceeding. Hence, the trial court’s reliance on 66 O.S. 1981 , § 152.3 is proper. Therefore, we find 12 O.S.1981, § 929, does not apply to condemnation proceedings, and the trial court did not err in denying City’s motion for costs.

For the above reasons, the orders of the trial court are AFFIRMED.

HARGRAVE, C.J., and LAVENDER, DOOLIN and SUMMERS, JJ., concur.

OPALA, V.C.J., and HODGES, ALMA WILSON and KAUGER, JJ., concur in Opinion On Rehearing.

. Appellant Oxley sought certiorari to the Supreme Court of The United States in the principal opinion. This opinion on rehearing awaited disposition of that writ by the Supreme Court. *749 Certiorari was denied February 26, 1990, — U.S. -, 110 S.Ct. 1128 , 107 L.Ed.2d 1034 .