noting that only a timely filed objection to the commissioners' report will preserve a challenge to the necessity of the taking
How later courts described this case
- noting that only a timely filed objection to the commissioners' report will preserve a challenge to the necessity of the taking
- property owners' answer was insufficient and they waived right to hearing on necessity of the taking by not filing an objection to commissioners report within the statutorily prescribed time
- noting that only a jury demand preserves a challenge to the amount of compensation awarded
- we do not approve of filing answers, rather only an objection to the report of the commissioners and demand for a jury trial meets the statutory requirement necessary for bringing forth the issue of the necessity of the taking
Written by the judges who cited it.
The opinion
HODGES, Justice
(dissenting).
The statute, 66 O.S.1971 § 55, and the Oklahoma Constitution Art. 2 § 24, relied on by the majority opinion, provide an exception to the report of commissioners only in so far as the amount of appraisement is concerned. They are silent as to what time limitations or procedures are applicable when the condemnee raises the question of the necessity of taking. A landowner may agree that the commissioners assessment of damages is correct, but disagree that there is a necessity for the taking of his land. The only duties of the commissioners are to inspect the property and submit a report showing the boundaries, quantity and value of the property taken, and to assess the damages for the taking. The commissioners have nothing to do with the judicial question of the necessity of taking.
Inasmuch as there are no statutory guidelines, the landowner’s objection to the. taking should have been treated as continuing. The trial court then should have set the matter for a hearing from which a judicial determination could have been made. I do not believe the condemnee should be deprived of his right to object to the necessity of taking by the assertion that his objection was prematurely filed.
I would affirm the opinion of the Court of Appeal. As stated in the opinion 44 OBJ 1453, 1456:
“The failure of the trial court upon proper request to grant a hearing on the necessity of taking, and to make a determination thereon, prior to the trial as to the amount of damages constitutes a denial of equal protection of the laws, and was both fundamental and reversible error.”
I respectfully dissent.
I am authorized to state that Justice LAVENDER concurs in the views herein expressed.