Opinion
No. 26376.
December 1, 1936.
(Syllabus.)
1. States — State not Liable to Suit Without Consent by Legislative Enactment.
A sovereign state cannot be sued except by its consent granted by express legislative enactment.
2. Same — Eminent Domain — After State Has Constructed Permanent Highway on Properly Acquired Right of Way, Landowner not Authorized to Sue State for Consequential Damages by Resorting to Condemnation Proceedings Provided by Statute.
When the state, through the Highway Commission, has properly acquired a right of way, and has constructed permanent highway improvements thereon, there is no authority of law for an abutting landowner, or the owner of the land over which the right of way was acquired, upon his claim of resulting or consequential damages, to sue the state and recover such damages by resorting to the procedure of appointing commissioners as in the case of condemnation proceedings authorized by section 21, art. 2, of the Constitution, and Sections 10093, 10094, 11931, and 11935, O. S. 1931.
3. Same — Action None the Less Suit Against State Though Procedure in Condemnation Cases Followed.
Where plaintiff seeks to sue the state to recover such damages, the action is none the less a suit against the state, though plaintiff proceed, not upon praecipe and summons, but by an attempted resort to the procedure in condemnation cases, by appointment of commissioners to estimate the amount of his damage.
Appeal from Superior Court, Pottawatomie County; Paul C. Thorn, Judge.
Action by James Adams against the State Highway Commission for damages resulting from highway construction. From a judgment for plaintiff, the defendant appeals. Reversed and remanded.
Mac Q. Williamson, Atty. Gen., Houston E. Hill, Atty. Gen., and L.V. Orton, Right-of-Way Attorney, for plaintiff in error.
Reily Reily, for defendant in error.
The essential facts in this case are quite similar to the facts in Hawks et al. v. Walsh, 177 Okla. 564, 61 P.2d 1109, and State Highway Commission v. Brixey, No. 25986, 178 Okla. 118, 61 P.2d 1114, decided by this court October 6, 1936. Here there were no former condemnation proceedings to determine the damage payment to the landowner plaintiff, but there was right-of-way grant executed by plaintiff after agreement as to the damage. There was also a subsequent and additional right-of-way grant for the widening of the road, for which also the agreed damage was paid. The highway was constructed, and some years later the plaintiff, Adams, instituted this action to recover resulting or consequential damages, alleged to have been caused by flood water cast upon his land and injuring and damaging his crops and land, and all caused by or resulting from alleged faulty highway construction. There was no attempt to proceed by praceipe and issuance of summons, but instead the plaintiff attempted to proceed through the appointment of commissioners, as in the Walsh and Brixey Cases, above referred to.
The commissioners' report purported to assess the damage at $3,000. The state filed motion to dismiss and objections to the report of the commissioners, and motion to vacate the report, while the plaintiff sought confirmation of the report and judgment for the sum reported.
The trial court overruled defendant's motion and sustained plaintiff's motion and confirmed the report of the commissioners and rendered judgment against the defendant for the sum of $3,000 and costs. From this judgment this appeal is prosecuted.
The views expressed in the Walsh and Brixey Cases are applicable here, and the conclusion there reached is controlling here. And upon the authority of that decision we hold that this is a suit against the state which cannot be maintained.
Therefore, the judgment rendered in the trial court is reversed, and the cause remanded, with directions to dismiss.
OSBORN, V. C. J., and BAYLESS, BUSBY, and CORN, JJ., concur. GIBSON, J., concurs by reason of the binding effect of the rule of the Hawks and Brixey Cases. RILEY, J., dissents. McNEILL, C. J., and PHELPS, J., absent.