NOVEMBER 2022 | 35 THE OKLAHOMA BAR JOURNAL court’s inquiry on any exception to the report of commissioners.32 Additionally, failing to timely file a demand for jury trial eliminates either party’s constitutional right for a jury to determine the amount of just compensation owed to the landowner for the taking.33 Upon the condemnor paying the amount of the commissioners’ award into the district court, the condemnor is entitled to possession of the acquired land.34 Once the award is paid into the court, the landowner is entitled to immediately withdraw the award for their use.35 The condemnor has no interest in the apportionment of damages between the landowner and remaining defendants.36 EXCEPTIONS TO THE REPORT OF COMMISSIONERS Although the condemnor is authorized to take possession of the acquired property, the landowner has the right to challenge the taking by filing an exception to the report of commissioners. Should the condemnor fail to establish the right to condemn, the landowner shall be restored to possession and paid for any damages caused by the condemnor by its possession.37 In Bd. of County Comm’rs of Creek County v. Casteel,38 the Oklahoma Supreme Court held, “Only an objection to the report of commissioners meet the statutory requirements necessary for bringing forth the issue of the necessity of the taking.”39 Should either party fail to bring a written objection to the report of commissioners within 30 days of the filing of the report of commissioners, either party thereby waives “any constitutional or other challenge to the plaintiff’s right of eminent domain … on the necessity of the taking.”40 Upon a party filing an exception to the commissioners’ report, a hearing is set, and the district court shall confirm, reject or for good cause order a new appraisement by the appointed commissioners.41 The character of the use of the condemned property is a judicial question as set forth in Article II Section 24 of the Oklahoma Constitution. In eminent domain proceedings, the condemnor has the initial burden of proof to show it has the power to condemn, and the taking is necessary.42 The condemnor meets the initial burden of proof and makes a prima facie case of necessity by introducing into evidence a resolution of necessity or affidavit of necessity from the condemning authority.43 Thereafter, the burden of proof then shifts to the condemnee to prove that the taking is not necessary.44 In accordance with the Oklahoma Supreme Court’s holding in Public Serv. Co. of Okla. v. B. Willis,45 the conditions at the time of the taking determine whether the taking of private property for public purposes is necessary.46 The B. Willis court discussed the meaning of necessity, declaring that the necessity of the eminent domain power is not absolute but reasonable necessity and may properly be used unless there is a showing of “fraud, bad faith or an abuse of discretion.”47 General public policy and statute govern the necessity, expediency and propriety of the power to condemn private property for public use.48 It is a question of fact whether it is necessary to take a particular piece of property for a lawful purpose.49 Once the trial court rules on the necessity, it will not be disturbed on appeal where evidence exists to support its findings.50 A condemning authority’s valid declaration of necessity “will be viewed as conclusive by the courts in the absence of showing of actual fraud, bad faith, or an abuse of discretion by the condemning authority.”51 Furthermore, the B. Willis court stated in reviewing a challenge of the condemning authority right to condemn, the court examines two conjoined concepts: 1) the character of use of the proposed taking as a public use and 2) the necessity of the taking to carry out the proposed use.52 Upon the condemnor paying the amount of the commissioners’ award into the court, the condemnor is entitled to possession of the acquired land.53 Although the condemnor is authorized to take possession of the acquired property, the landowner has the right to challenge the taking by filing an exception to the report of commissioners. Should the condemnor fail to establish the right to condemn, the landowner shall be restored to possession and paid for any damages caused by the condemnor by its possession.54 Once the award is paid into the court, the landowner is entitled to immediately withdraw the award for their use.55 The condemnor has no interest in the apportionment of damages between the landowner and remaining defendants.56 MOVING TOWARD JURY TRIAL Once either party seeks a demand for jury trial, the next step is assembling your team for trial. As each eminent domain case presents unique challenges, significant time and thought must be given to each aspect of your case. There are two types of eminent domain cases: a total taking or a partial taking. A total taking is just as it sounds – the condemning authority is acquiring all the land the landowner owns in a given area. This includes any and all improvements associated with the land and any possible relocation costs. In a total taking case, the landowner is entitled to relocation,
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