¶ 1 I respectfully dissent from the Majority's Opinion, not because I disagree with the discussion of the law that will ultimately decide this case, but because I do not find an appealable order before this Court and would dismiss the appeal on that basis. *Page 1223 BACKGROUND FACTS ¶ 2 The Oklahoma Department of Transportation (ODOT) filed its petition in this action on September 28, 2001, pursuant to 69 O.S. 2001 § 1203[69-1203], seeking to condemn property owned by Kishor and Jyotsna Mehta. ODOT's petition identified two parcels of land to be condemned. The first parcel, described in the trial court pleadings as Property A, is a 3.69-acre tract of land in Lot 1, Magic Circle South addition, Tulsa County, Oklahoma. Property B in the trial court pleadings is a .31-acre parcel to be used for a temporary construction easement and which abuts part of the south border of Property A. Both parcels are located in a 6.51-acre tract of land in Lot 1 owned by the Mehtas. The property condemned is to be used for improvements to Interstate 44 at the intersection of Highway 169 in Tulsa. The relevant procedural history not discussed in the Majority Opinion is as follows.
¶ 3 Before it began the improvement project, ODOT hired Walton Property Services, L.L.C., to conduct an appraisal of the property condemned. That appraisal determined that the value of the property being taken was $306,000, itemized as follows: (1) $3,206 for the temporary easement (Property B); (2) $35,000 for the reproduction cost of an outdoor sign; (3) $65,369 for the value of the land taken for the permanent right of way (Property A); (4) $108,555 for the uneconomic value of the remainder of the Mehtas' property not taken as part of Property A; and (5) $94,231 for the loss of ground rent due to removal of the outdoor sign.
¶ 4 The sign is owned by Eller Media Company and is located on a triangular piece of land that abuts part of the north border of Property A. The sign is described in the trial court pleadings as Property D and the triangular property is described as Property C. It appears that Property C is part of the 6.51-acre tract owned by the Mehtas and is located within the north fence line of the Mehtas' property. The Walton appraisal value was the amount of a pre-condemnation offer tendered by ODOT to the Mehtas and Eller. When that offer was rejected, ODOT filed its condemnation petition. The legal description of Property C, the legal description of the Mehtas' property south of Property A and any reference to the Eller sign are not included in ODOT's petition. Nonetheless, ODOT named Eller as a defendant in this condemnation proceeding.
¶ 5 Commissioners were appointed and their February 6, 2002, Report determined that the value of the property taken was $710,000. This Report is on a form provided by ODOT, which has one blank space for the Commissioners to record their valuation. On March 29, 2002, ODOT paid the $710,000 to the Court Clerk. All three parties filed demands for jury trial in April 2002.
¶ 6 The Mehtas and Eller filed exceptions to the Commissioners' Report because the amount of each party's damages was not segregated.1 ODOT responded, arguing that the Mehtas and Eller had talked to the Commissioners, discussed their respective damages theories, and provided supporting documentation before the $710,000 valuation had been determined. Consequently, ODOT argued that the Mehtas and Eller had not shown good cause for a new report. ODOT also argued that separate valuation of Eller's leasehold interest from the Mehtas ownership interest was not permitted by applicable law because it would violate the "unit Rule," which requires the unitary valuation of all interests being condemned. In its response, ODOT also informed the Trial Court for the first time that Eller's sign was not located on the property being condemned and that it would be filing a motion for summary judgment to establish Eller's lack of interest in the condemned property. ODOT described its "mistaken belief" when its petition was filed that the sign was located on the Mehtas' property but explained that it had subsequently discovered an easement to Property C granted to ODOT in 1962 from the Mehtas' predecessor in interest. *Page 1224
¶ 7 On July 29, 2002, the Trial Court denied ODOT's motion for summary judgment, granted the Mehtas' and Eller's exceptions and ordered that new instructions be submitted. New instructions to the Commissioners were finally approved on January 28, 2003, directing them to separately value four property interests, Properties A, B, C, and D. The Commissioners filed their Second Report on April 8, 2004, which was corrected on May 4, 2004. The Second Report reached the same $710,000 total value determined by the Commissioners in their First Report. The four Properties, and their respective values assigned by the Commissioners in their Second Report, are described as:
Property A. The 3.69 acres taken by ODOT ($587,000).
Property B. The .31 acres taken for a temporary easement ($8,000).
Property C. A triangular lot adjacent to Property A ($80,000).
Property D. An outdoor advertising sign ($35,000).
¶ 8 ODOT filed its Exception to the Second Report on May 10, 2004, asserting essentially the same position argued in its original response to the Mehtas' and Eller's exceptions to the first Report. The Mehtas and ODOT again filed demands for jury trial in May 2004. On August 25, 2004, the Trial Court denied ODOT's Exception to the Second Report in the order that is the subject of this appeal. However, prior to this ruling, Eller repaid the $35,000 previously distributed to it by the Court Clerk, ODOT and Eller resolved their differences, and on February 26, 2003, ODOT filed a dismissal with prejudice and release of claims terminating this litigation as to Eller.
DISCUSSION ¶ 9 In my view, this appeal involves one issue: Was the Trial Court's order denying ODOT's Exception to the Commissioners' Second Report an appealable order? To determine that question it is first necessary to analyze the substance of ODOT's argument in its Exception.
¶ 10 First, ODOT's argument that Eller's leasehold interest could not be separately valued is moot. I agree with the Majority's analysis of applicable law and the "unit rule." Even though the Mehtas do not claim any interest in the sign or the $35,000 the Commissioners assigned to the value of that sign, valuation of the Eller sign located on Property C should not have been separately stated. Nonetheless, the dismissal of Eller by ODOT with prejudice precludes any future litigation with respect to Eller's interest in any property condemned or damaged, including the value of its sign. Consequently, that issue is not before this Court just as it was not before the Trial Court when it denied ODOT's Exception to the Second Report and entered the order that is the subject of this appeal.
¶ 11 Second, although ODOT's "unit rule" argument is generally presented, the specific argument is directed to the separate valuation of Eller's leasehold interest in Property C. I do not read ODOT's Exception to argue that separate valuation of Property A and Property B was improper, and the specific issues in ODOT's Petition in Error identify only the separate valuation of Properties C and D as appellate issues.
I. The Substance of ODOT's Appeal ¶ 12 Consequently, in my view, the only issue for this Court to decide relates to Property C. ODOT asserts that it "owns" Property C. ODOT argues that it was improper for the Trial Court to order the valuation of Property C because ODOT cannot condemn what it already owns and that the only properties described in its condemnation petition are Properties A and B. ODOT's "ownership" argument is based on the 1962 permanent easement. ODOT does not claim to have acquired fee simple title to Property C by virtue of this easement. ODOT does appear to argue that it acquired all of the interest to this property that might be affected by its taking of Properties A and B.
¶ 13 The Mehtas assert that they own some interest in Property C. First, the Mehtas challenge the existence of the 1962 easement contending that ODOT has abandoned the easement. Second, they claim adverse possession of Property C as evidenced by their continued use of the property and its *Page 1225 their fence line and their claim some ownership interest in Property C inclusion within lease with Eller for use of the space occupied by the outdoor sign. Finally, the Mehtas claim ownership of Property C subject to the 1962 easement, a claim which ODOT does not dispute.2
¶ 14 In this appeal, ODOT seeks to have the original Commissioners' Report reinstated. That request, in effect, challenges the Trial Court's July 2002 order granting the Mehtas' and Eller's exceptions. ODOT did not appeal from that order and it does not list as an appellate issue in this appeal an error regarding that order. For the reasons discussed herein, ODOT, in my view, could not have appealed that order. Although there is much yet to be determined in this case, particularly the nature and extent of the Mehtas' ownership interest in Property C, it is clear that ODOT's inclusion of Property C and the Eller sign in its pre-condemnation offer and negotiations, as well as its naming of Eller in its condemnation petition, created confusion regarding the scope of this condemnation and caused the Commissioners to include the value of Properties C and D in their original Report. In my view, even if the confusion had not been caused by ODOT, this fact constituted good cause for the Trial Court to have issued new instructions.
¶ 15 ODOT's right to condemn Property A and Property B is not in dispute. Therefore, determination of the taking issue, which the majority correctly notes may result in an appealable order, was not an issue before the Trial Court when it ruled on ODOT's second exception. The jury demanded by both parties will be asked to determine only the just compensation due the Mehtas for the property taken. However, because the Mehtas and claim injury to that property as a result of the taking of Properties A and B, the jury may be asked to consider the just compensation for that property as well as for the damage to the remainder of the Mehtas' property located south of Property A. Because there is no issue regarding the taking of Properties A and B, in my view, the Trial Court's order of August 25, 2004, denying ODOT's Exception to the valuation of Property C is not an appealable order.3 II. The Lack of an Appealable Order ¶ 16 For its authority to bring this appeal, ODOT relies on 69 O.S. 2001 § 1203[69-1203](f), which provides that a party aggrieved by the "decision of the district court on exceptions to the report of the commissioners, or jury trial" may appeal to the Supreme Court. The Mehtas argue that the issues raised in this appeal can and should be first resolved in the Trial Court as part of the jury trial requested by both parties. The Mehtas did not file a motion to dismiss this appeal. Nonetheless, the question of this Court's jurisdiction is fundamental and may neither be waived by the parties nor overlooked by the Court. Barrett v. Barrett,1994 OK 92, ¶ 13, 878 P.2d 1051, 1054.
¶ 17 Despite the general statement of authority to appeal set out in section 1203(f), this Court has jurisdiction to decide only those appeals from the Trial Court's judgments, final orders and certain interlocutory orders. See 12 O.S. 2001 § 952[12-952]; 20 O.S. 2001 § 30.1[20-30.1]. "A judgment is the final determination of the rights of the parties in an action." 12 O.S. 2001 § 681[12-681]. The order appealed in this case is not a judgment; it is an interlocutory *Page 1226 determination of some, but not all, issues. ODOT did not ask the Trial Court to certify its order for interlocutory appeal, see 12 O.S. 2001 § 994[12-994], and it is not an interlocutory order appealable by right, see 12 O.S. 2001 § 993[12-993]. The question is, therefore, whether the Trial Court's order denying ODOT's Exception is a final order over which this Court has jurisdiction.
A. Appealable Condemnation Orders ¶ 18 There are only three pleadings authorized to be filed in a condemnation proceeding: (1) the petition, (2) objections to the report of the commissioners, and (3) a demand for jury trial. Board of County Comm'rs of Creek County v.Casteel, 1974 OK 31, ¶ 15, 522 P.2d 608, 611. The filing of an answer to join the issues raised by the petition is not permitted, and the issue of the propriety of the taking can only be joined by filing an objection to the commissioners' report. Id. at ¶¶ 16, 20, 522 P.2d at 611. Where the necessity of the taking is an issue, "it must be finally determined judicially, prior to a final determination of any question concerning the amount of damages." Id. at ¶ 18, 522 P.2d at 611.
¶ 19 Condemnation is a special proceeding. Id. at ¶ 15, 522 P.2d at 610. "An order affecting a substantial right, made in a special proceeding . . . is a final order." 12 O.S. 2001 § 953[12-953]. The decision of a district court regarding the condemning authority's right to take affects a substantial right and, therefore, constitutes a final order. McMillianv. Holcomb, 1995 OK 117, ¶ 3, 907 P.2d 1034, 1035-36. A final order is an appealable order. 12 O.S. 2001 § 952[12-952](b)(1). And the taking issue "must be finally determined judicially, prior to a final determination of any question concerning the amount of damages." Casteel, 1974 OK 31 at ¶ 18, 522 P.2d at 611.
¶ 20 In this case, however, ODOT's right to take Property A and Property B is not an issue.
Biles v. Oklahoma Gas Elec. Co., 1956 OK 84, ¶ 6, 294 P.2d 817, 818. In Biles, the Court dismissed the appeal of an order that refused to disqualify the commissioners appointed and denied a request for appointment of new commissioners. In dismissing the appeal, the Court noted: "[A]n order setting aside the report of commissioners in condemnation proceedings, and directing a new appraisement is interlocutory and not final, and an appeal will not lie therefrom." Id. at ¶ 3, 294 P.2d at 818 (quotingOwens v. Oklahoma Turnpike Auth., 1954 OK 345, ¶ 1, 283 P.2d 827, 828).[W]here there is no attack upon the right to take the property and the objection is to the assessment of the value of the property an order made by the trial court in a proceeding on the appointment and report of the commissioners is not a final order and cannot be brought to this court prior to a final determination of the proceeding.
¶ 21 The cases cited by the Majority for the proposition that the issue of taking must be decided before trial of just compensation are, in my view, consistent with the holding inBiles and do not establish a right to appeal from a decision of the trial court prior to the conclusion of the jury trial unless that decision decides the issue of taking. The Majority cites McMillian v. Holcomb, wherein the Oklahoma Supreme Court recognized that "an order adjudicating a right to condemn is appealable pursuant to 12 O.S.[2001] § 952(b)(1) as a final order." 1995 OK 117 at ¶ 3,907 P.2d at 1035. In footnote 1 of McMillian, the Supreme Court cited several cases supporting this general proposition, all of which the Majority also cites in its Opinion. These cases areJerry Scott Drilling Co., Inc. v. Scott, 1989 OK 131, n. 3, 781 P.2d 826, 828 n. 3; Oklahoma Gas Elec. Co.v. Chez, 1974 OK 99, ¶ 6, 527 P.2d 165, 167;Watchorn Basin Ass'n v. Oklahoma Gas Elec. Co.,1974 OK 27, ¶ 12, 525 P.2d 1357, 1359; Delhi GasPipeline Corp. v. Swanson, 1974 OK 26, ¶ 13,520 P.2d 670, 671; Town of Ames v. Wybrant, 1950 OK 197, ¶ 13, 203 Okla. 307, 220 P.2d 693, 695; and Wrightsman v.Southwestern Natural Gas Co., 1935 OK 724, ¶ 43,173 Okla. 75, 46 P.2d 925, 932.
¶ 22 Except for Scott, none of the cited cases involved circumstances where a party appealed from a trial court's ruling on exceptions to the report of appraisersafter having demanded a jury trial. Scott is a Surface Damages Act case wherein the Supreme Court found the situation to be "analogous to *Page 1227 instances that have been presented in condemnation cases."1989 OK 131 at ¶ 9, 781 P.2d at 828. Scott dealt with a party's ability to simultaneously demand a jury trial and seek appellate review of a trial court's order confirming an appraisal. The Supreme Court dismissed the appeal as premature, stating:
Id. at ¶¶ 6, 8, 781 P.2d at 828 (emphasis added).See also Wrightsman, 1935 OK 724 at ¶ 0,46 P.2d at 925 (Syllabus 2) ("The decision of the district court in condemnation proceedings on questions relating to the right to condemn may be brought to this court for review on appeal provided the appeal is taken from an appealable order."). Division IV of this Court relied on Scott, when explaining that "one must appeal either from the decision of the court on the exceptions to the report or from the judgment entered on the jury verdict." Stephens Prod. Co.v. Taylor, 1997 OK CIV APP 70, ¶ 6, 949 P.2d 301, 302.[T]he Legislature never intended an appeal to lie from the ruling of a trial court on exceptions unless said order could be deemed to be a final order. Primarily because of a demand for jury trial the order appealed from is not imbued with the attributes of finality such that it is subject to immediate appeal to this Court.
. . . .
Although the order of a trial court on exceptions may in certain instances be a final order subject to appeal, such as when no demand for jury trial has been made, when a timely demand for jury trial has in fact been filed the report of appraisers and a trial court order confirming it do not end the litigation. The appropriate amount of damages must still be fixed by a jury as allowed in the statutory scheme. Thus, in the normal situation where a jury assessment has been demanded, only where the jury has finally determined the amount of compensation will the case be in a posture for appeal to this Court.
B. The Order Denying ODOT's Exception Is Not Appealable ¶ 23 In this case, ODOT's Exception to the Second Report does not, for obvious reasons, challenge the right to take Properties A and B, and that issue is not raised by any pleading filed by the Mehtas. The extent of the Mehtas' ownership interest in Property C does not raise a taking issue. ODOT's interest in that property was not acquired by condemnation but by an easement voluntarily granted by the Mehtas' predecessor in interest. Therefore, the issue decided in Elliott v. City of Guthrie, 1986 OK 59,725 P.2d 861, is not before this Court. Elliott determined that the nature of the estate taken in a condemnation proceeding is the proper subject of judicial determination. Here, the estate taken by ODOT in Property C is defined by the 1962 easement, and what remains for determination is the value of the interest the Mehtas ultimately prove that they own.
¶ 24 In my view, therefore, the Majority incorrectly construes the Trial Court's Amended Instructions to Commissioners as a judicial determination that ODOT's condemnation proceeding constitutes a taking of Property C. The Majority's construction is not without foundation. The Trial Court included Property C and Property D in its description of "Properties condemned." It also described Property C as being taken in fee simple. Nonetheless, the Trial Court's reference to the "taking" of Property C is clearly and repeatedly qualified. The Commissioners were instructed that ODOT disputed taking Property C and the Commissioners were specifically instructed that they were not to decide whether a taking of Property C had, or had not occurred. While I agree with the Majority that the Trial Court could not expand the scope of the taking described in ODOT's petition, I do not agree that is the effect of the Trial Court's instructions.
¶ 25 As a result of ODOT's dismissal of Eller, there is only one issue to be tried regarding Properties A and B and that is the amount of just compensation due the Mehtas for the taking of that property. That issue properly considers not only the value of the property taken but also any "impairment or depreciation of value done to the remainder." Oklahoma Gas Elec. Co. v. Kelly, 1936 OK 427, ¶ 0,177 Okla. 206, 58 P.2d 328. See also Okla. Const. art. 2, § 24. If unqualified, the *Page 1228 Trial Court's description of the property taken was in error. In my view, the Trial Court properly instructed the Commissioners to consider both the value of the property taken and any damage to the remainder. The Commissioners' separate listing of values for these properties, other than with respect to Property D, does not violate the unit rule. As the Trial Court noted at the conclusion of the hearing of August 17, 2004, on ODOT's Exception to the Second Report:
[T]hey've broken it down; how bound I have to be to that, I don't think-To me they're just showing me how they came to the grand total and we know what the grand total is so I'm not saying that I'm going to pay that much attention to all these little, separate numbers, we know what the grand total is, and let's just go with that.
¶ 26 Regarding these separate valuations, the controlling authority, Grand River Dam Auth. v. Gray, 1943 OK 219,192 Okla. 547, 138 P.2d 100, is relied on by all parties and the Majority. In that case, two tracts of land were at issue, a 70-acre tract, of which 52.6 acres were taken, and a 60-acre tract operated with the 70-acre tract as a single farm. The Oklahoma Supreme Court found no error and no violation of the unit rule in the admission of evidence that the taking of the 52.6 acres rendered the remainder of the 70-acre tract practically worthless and evidence that loss of the 52.6 acres seriously impaired the value of the 70-acre tract. The Court also found no error in instructing the jury to separately state that portion of the total damage that was caused to the holder of a life estate in the two tracts. Id. at ¶ 8,138 P.2d at 103.
¶ 27 Here, we deal with only one 5.61-acre tract of land on which Properties A, B and C are located. The Mehtas' ownership interest in Property C may be different than it is in Property A or the remainder of their property south of Property A, but that does not mean that interest is necessarily devoid of value. Further, the Mehtas may prove that ODOT abandoned the 1962 easement or that they now own Property C in fee simple by virtue of adverse possession. While ODOT disputes that it abandoned the easement or that the Mehtas have acquired title by adverse possession, it concedes that the Mehtas own some interest in Property C.
¶ 28 Neither ODOT nor the Majority contend that the Commissioners should not, in addition to determining the value of the 3.69 acres taken in fee simple, also determine the damage to the portion of the Mehtas' land south of Property A that was not taken in this proceeding. And, as the Walton appraisal notes, that property and Property C will no longer be contiguous after the taking of Property A or have access from the taken property. For these reasons, Walton concluded these properties should be considered "uneconomic remainders" and valued them accordingly in its pre-condemnation appraisal. I see no difference between the Mehta's property south of Property A and Property C located north of Property A, with one exception. Because of the 1962 easement issue, the Mehtas may not be entitled to any compensation for Property C because the interest they own in Property C is not damaged by the taking of Property A. In the alternative, they may be entitled to some compensation but not the full compensation to which the holder of the property free of the ODOT easement would be entitled. Finally, they may be entitled to full compensation if they prevail on either their abandonment or adverse possession claims. Regardless, those issues remain to be decided. None of those issues relates to ODOT's right to take Property A or Property B. All of those issues relate only to the just compensation due the Mehtas for the taking of Properties A and B and the "impairment or depreciation to the remainder."
¶ 29 The issue of damages is joined by filing the third pleading available in a condemnation proceeding, a demand for jury trial. Casteel, 1974 OK 31 at ¶ 16,522 P.2d at 611. As stated, both parties have demanded a jury trial. With ODOT's dismissal of Eller, there is no issue raised in ODOT's Exception that does not relate to the just compensation due the Mehtas for the taking of Properties A and B. ODOT asked the Trial Court to reinstate the Commissioners' first Report. That Report values Properties A and B, and the damage to the Mehtas' property *Page 1229 located north and south of Property A at $710,000.4 The Second Report values those properties and damage at $675,000, assuming the Mehtas' ownership interest in Property C is the same as it is in Property A or the property south of Property A.
¶ 30 As stated, ODOT did not and could not have appealed the Trial Court's decision granting the Mehtas' and Eller's Exceptions to the Commissioners' First Report. "An order setting aside the report of commissioners in condemnation proceedings, and directing a new appraisement is interlocutory and not final, and an appeal will not lie therefrom."Owens, 1954 OK 345 at ¶ 0, 283 P.2d at 827 (syllabus 1). Likewise, the Trial Court's adverse ruling on the issue raised by ODOT's Exception to the Commissioners' Second Report, that the value of Property C should not have been separately stated, is interlocutory. In my view, that order does not determine the action, prevent a judgment, or affect a substantial right. See 12 O.S. 2001 § 953[12-953]. Consequently, it is not a final order. Finally, in a condemnation proceeding, a jury's verdict supersedes the commissioners' award, rendering the issue of the correctness the Second Report moot. Owens, 1954 OK 345 at ¶ 9, 283 P.2d at 831.
CONCLUSION ¶ 31 Although any issue regarding the public's right to take must be resolved before the issue of damages can be tried, we are beyond that point in this case. ODOT's reading of section 1203(f) would authorize a simultaneous appeal of non-taking issues related to the commissioners' reportand the conduct of a jury trial. That interpretation is inconsistent with: (1) "the plain and ordinary meaning" of the word "or," see World Publ'g Co. v. Miller,2001 OK 49, ¶ 7, 32 P.3d 829, 832; (2) the alternative nature of the appellate procedure provided in subsections (e)(1) and (2) of section 1203; and (3) the finality of appealable orders required by 12 O.S. 2001 § 952[12-952]. More importantly, ODOT's interpretation of section 1203(f) is unsupported by, and contrary to, the holdings in Biles, Owens and other controlling case law. I would find that the Trial Court's order of August 25, 2004, from which ODOT appeals, is not an appealable order and dismiss this appeal.