The learned trial court approved the verdict of a jury in this cause allowing recovery in the sum of $500, on account of consequential damages resulting to land from the construction of a state highway adjacent to the land.
The State Highway Commission, in road construction, excavated a cut ten feet deep in front of the Brixey place. The Brixeys owned a farm in Lincoln county and operated a country store and filling station thereon and derived a substantial profit therefrom prior to the construction of the road, the excavation of which obstructed the approach of patrons as well as the ingress and egress of the Brixeys. A dirt fill was also constructed, approximately half a mile long, adjacent to and along the place, by the same agency of the state. It ran through the lowlands along the main channel of Dry Fork creek, and obstructed the natural flow of water with the result that Brixey's land, devoted to agriculture, was thereby rendered subject to overflow.
The Constitution of this state declares as a principle of just government, section 24, art. 2:
"Private property shall not be taken or damaged for public use without just compensation."
The majority opinion defeats this principle by erroneously denying and converting the remedial procedure provided by the Legislature, whereas the Constitution in plain words as to such a taking or damage provides that "compensation irrespective" of any benefits proposed, "shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law."
Section 11931, O. S. 1931, prescribes by law that upon application "of either party" commissioners shall be appointed, and these commissioners "shall inspect said real property andconsider the injury * * * and they shall assess the damages which said owner will sustain by such appropriation of his land, irrespective of any benefits from any improvement proposed." See, also, to and inclusive, section 11934, O. S. 1931. State Highway Commission v. Smith, 146 Okla. 243,293 P. 1002; Stinchcomb v. Oklahoma City, 81 Okla. 250, 198 P. 508; Watkins v. Board of Com'rs of Stephens County, 70 Okla. 305,174 P. 523; City of Tulsa v. Hindman, 128 Okla. 169,261 P. 910.
No one disputes the rule stated by the majority that the "state cannot be sued without its consent." National Surety Co. v. State Bank Board, 49 Okla. 184, 152 P. 389.
It is clear, however, that the state of Oklahoma not only has given its consent to this action for the adjustment of such a wrong as committed in the case at bar, but it has provided the procedure for liquidating damages occasioned by such an injury.
Section 10094, O. S. 1931, provides that "Whenever theconstruction or location of any state highway, * * * or maintenance of such road shall require that private property be taken or damaged," the Highway Commission in the name of the state of Oklahoma shall have the right to purchase or lease the necessary land, and if compensation therefor cannot be agreed upon, just compensation may be ascertained and the property may be acquired and paid for under the provision of law relating to the exercise of the powers of eminent domain applicable to railroad corporations.
It has been pointed out that the statute, section 10094, O. S. 1931, provides when in the construction of any state highway private property is taken or damaged, either party may institute condemnation proceedings. That is exactly what the plaintiffs in the case at bar did. The case of State v. Fletcher, 168 Okla. 538, 34 P.2d 595, relied on by the majority, is not applicable, for that action did not concern the taking or damaging of private property for road construction, nor the taking or damaging of private property by the Highway Commission. It involved consequential damages resultant from the location of a sewer serving the Western Oklahoma Tuberculosis Sanitorium at Clinton. There was no existing provision of law allowing a suit for damages against such an agency of the state as represented by the board of control of the eleemosynary *Page 123 Institution. Consequently the Thirteenth Legislature enacted House Joint Resolution No. 20, art. 2, ch. 65, S. L. 1931, permitting the action to be brought. Had the action in the Fletcher Case been based on the taking or damaging of private property for road construction, there would have been no necessity for additional legislative action granting consent to sue the state.
The majority opinion recites that the case of State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002, is not directly in point. The plaintiffs in error in that case, represented by the Attorney General, assert that it is, and request that it be overruled. It appears to be in point. As here, it was based on consequential damages arising from construction of a state highway. It Was brought by the landowner, and the procedure followed was in condemnation, reverting to the powers of eminent domain. The issue stated in that case was, "May a landowner resort to condemnation proceedings to ascertain damages to his land caused by the construction of a highway upon land of another?" It was held that chapter 118, S. L. 1927, "is a legislative enactment providing the manner in which compensation for the taking or damaging of private property for public use by the State Highway Commission shall be ascertained," and paragraph 1 of the syllabus reads:
"Under section 24, art. 2, of the Constitution, providing that 'private property shall not be taken or damaged for public use without just compensation,' a recovery may be had in all cases where private property is damaged in making an improvement that is public in its nature. It is not required that the damages shall be caused by trespass, or an actual physical invasion of the owner's real estate, but if the construction is the cause of the damage, though consequential, the owner of the property damaged may recover."
If a landowner in the cited case could resort to the procedure provided for condemnation of private property for public use in order to ascertain his damages resulting from road construction by the state, then right and justice demand the same relief for another citizen similarly situated, and no court of justice can properly reverse such a judgment and remand such a cause with directions to dismiss.
In the advisory opinion of Hawks v. Walsh, No. 23235 (adopted Oct. 22, 1935), rehearing granted March 3, 1936, and opinion dismissing promulgated as a companion case herein), the special master, and this court prior to the last action, deemed it:
"Well settled that an award in a condemnation proceedings is presumed to include all damages naturally and reasonably resulting from the taking, present and future. However, where in constructing the improvement such a plan is pursued that damages result to the remainder of the property, which damages could not have been foreseen, anticipated or contemplated at the time of the original proceedings, the owner of the property is not precluded from recovering additional damages" (by resorting to condemnation proceedings provided) and "to say that the landowner is precluded from recovering subsequent damages which no one contemplated would be inequitable to say the least. The question is no longer at large in this state."
The case of Sweeney v. Dierstein, 170 Okla. 566,41 P.2d 673, was cited as foreclosing and concluding the proposition of law in this state. Therein we held:
"Acts of the Legislature giving the consent of the state to be sued must be substantially followed."
And:
"An easement granted the state for highway purposes is taken in consideration, both of the value of the land taken and of the consequential damages to adjacent property of the grantor, unless the Highway Commission make such use of the tract occupied by the highway as could not reasonably have been contemplated and expected by the grantor, resulting in unanticipated injury to the adjacent property."
Therein this court propounded to itself this query of law:
"Can the Highway Commission be sued by an individual to ascertain the damages and injury he may suffer by the construction of a highway over his premises?"
Therein this court solemnly and finally answered the inquiry affirmatively and said:
"The Legislature has given the express consent of the state that its Highway Commission be sued to ascertain such damages and injuries in sections 10093 and 10094, O. S. 1931. Both these statutes refer to the provisions of law for the exercise of the right of eminent domain by railroad corporations in this state for the ascertainment of compensation for, and acquirement of, property needed in the construction or location of a state highway or any part thereof. * * * The condemnation proceedings are applicable whether the property has already been taken for highway purposes or not. * * * To hold otherwise would leave the property owner, who had actually been misled and imposed upon by agents of the Highway Commission, without remedy."
Now the court holds otherwise and to the *Page 124 contrary, without so much as mentioning, to say nothing of overruling, its own words that so severely castigate and condemn the damage or destruction of property rights, with the relegation of the citizen to a remediless position, contrary to fundamental law expressed in the Constitution. 20 C. J. 1070; Stevens v. City of Worcester (Mass.) 106 N.E. 587; Martenis v. city of Tacoma (Wash.) 118 P. 882; Cassassa v. City of Seattle (Wash.) 119 P. 13.
On October 22, 1935, this court promulgated a decision in the case of Stedman v. State Highway Commission, No. 24905, mandate issued November 7, 1935, 174 Okla. 308, 50 P.2d 657, which decides the exact issues now decided to the contrary, Incorporated Town of Sallisaw v. Priest, 61 Okla. 9,159 P. 1093; Smith v. Board of Com'rs, etc., (Kan.) 214 P. 104.
Therein the objection was:
"That plaintiff was seeking only damages claimed to have resulted from the construction of a public highway upon lands belonging to the state; that the action is in form an attempted condemnation proceeding, but in fact an action for damages prohibited by the Eleventh Amendment to the Constitution of the United States; that the action is one against the state to which the state has not consented, and that the matters involved had theretofore been adjudicated. * * *"
The objections of the Attorney General were overruled and the defendant answered further, stating the objections.
The trial court was reversed by this court for giving instructions 1 and 2, and committing the error now committed by the majority opinion, to wit, having "completely ignored the theory upon which plaintiff predicated this action. That is, that said action was a proceeding in condemnation and not one for damages based upon negligence in the construction and maintenance of the highway. * * *" As in Sweeney v. Dierstein, supra, "No summons was served upon the State Highway Commission," nor was a summons necessary (Citizens State Bk. of Vici v. Gettig, 77 Okla. 48, 187 P. 217), for "sections 419, 420, and 421, O. S. 1931, also govern the court in actions of this kind. They provide that the Attorney General or his assistant shall have ten days' notice in writing from the court clerk of the trial of actions against the state, and provide that judgment rendered against the state by default shall be void unless such notice be given. As stated above, the state has given its express consent to be sued in actions of this kind, but the laws giving such consent must be substantially followed." Sweeney v. Dierstein, supra.
In the opinion in Stedman v. State Highway Commission, supra, the rules of law applicable to that case, and equally and fully applicable to the cases at bar, were stated:
"Under section 24, art. 2, of the Constitution, providing that 'private property shall not be taken or damaged for public use without just compensation,' a recovery may be had in all cases where private property is damaged in making an improvement that is public in nature. It is not required that the damages shall be caused by trespass, or an actual physical invasion of the owner's real estate; but if the construction is the cause of the damage, though consequential, the owner of the property damaged may recover.
"The use of the words 'or damaged' in addition to the word 'taken' in section 24, art. 2, of the Constitution, indicates a deliberate purpose not to confine a recovery to cases where there is a physical invasion of the property affected, but to make the test of liability the fact that private property has been 'damaged' for public use, without regard to the means by which the injury was effected.
"Under the provisions of section 24, art. 2, of the Constitution, the state is prohibited from taking or damaging private property for public use without just compensation.
"By the provisions of sections 11931-11934, O. S. 1931, the state has provided an adequate remedy for the determination of damages to private persons for property taken or damaged by the state for public use, and such remedy is exclusive.
"The issues in an action by a landowner to recover consequential damages to property arising solely by the construction and maintenance of a state highway are not res adjudicata by reason of a former condemnation proceeding where an award was made and accepted by the owner for damages, which award included the value of the land taken and the damages to the remainder of the tract occasioned by said taking.
"The rule that an owner must recover in one proceeding all the damages which have resulted or are reasonably liable to result from the taking or damaging private property for public use has no application to damage caused by a separate and distinct taking or damaging by construction of public works."
Recurrence should be had to cases cited herein, and especially the decision in State Highway Commission v. Smith, supra, followed with approval in C., R.I. P. v. Larwood.175 Okla. 96, 51 P.2d 508; Public Service Co. of Oklahoma v. Raburn, 162 Okla. 81, 19 P.2d 167; Morse v. Board of Com'rs of Marshall Co., 169 Okla. 600, *Page 125 38 P.2d 945, and Wentz v. Potter, 167 Okla. 154, 28 P.2d 562, holding:
"Section 11, ch. 488, S. L. 1923-4, as amended by ch. 118, S. L. 1927, has placed into effect section 11931, O. S. 1931 (5501, C. O. S. 1921), which grants to plaintiff herein the right to file a petition in the district court, requesting the appointment of three freeholders to act as commissioners to assess the damages which will be sustained by the construction of the public improvement. Section 11933, O. S. 1931, provides for a jury trial, and section 11934, O. S. 1931, provides for an appeal to this court. This is the procedure against the state to which the state has given its consent, which procedure provides ample redress for any wrong or damage suffered by plaintiff."
These cases are so violently antagonistic to the statements of law and the conclusion now reached by the majority opinion. I have thought it not amiss to call attention to previous decisions in order that applications of the law may be made uniform, for uniformity of decisions promotes justice.