Date: 08-16-2013

Case Style: Oklahoma Gas and Electric Company v. P & M Land Partners, LLC

Case Number: CJ-2012-7026

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Richard D. Forshee

Defendant's Attorney: James M. Chaney and Collin R. Walke

Description: Oklahoma Gas and Electric Company sued P & M Land Partners, LLC on an eminent domain theory seeking to acquire by condemnation certain rights, title and interests in and to real property owned by the Defendant claiming:

1. Oklahoma Gas and Electric Company (“OG&E”), a corporation, having been duly organized and incorporated under the laws of the State of Oklahoma, is authorized to conduct its business in this State, including the business of furnishing light, heat and power by electricity.

2. With such authority, OG&E is also authorized and empowered by and pursuant to 27 O.S. 2011, §7 to exercise the right of eminent domain within this State.

3. P&M Land Partners, LLC (“Landowner”) is the record owner of that certain tract of real property in a part of the Southeast Quarter (SE/4) of Section 34, Township 12 North, Range 3 West of the Indian Meridian, Oklahoma County, Oklahoma, more particularly described as Lot Twenty (20) in Block Fifteen (15) of Phillips and Mead East Side Addition to Oklahoma City, Oklahoma County, Oklahoma, as evidenced by that certain Warranty Deed recorded on February 22, 2008 in book 10736, page 178 in the office of the Oklahoma County Clerk (the “Property”).

4. For purposes of constructing, operating and maintaining an electric transmission line through parts of Oklahoma County that will facilitate expansion and improvement of the supply and delivery of electricity it is necessary that OG&E acquire a permanent easement (the “Easement”), as hereinafter described with more particularity, upon, over, under and across a certain defined part of the Property (the “Easement Tract”) described on the survey plat attached hereto, marked as Exhibit 1 and incorporated herein by reference.

5. On July 17, 2012, the OG&E board of directors considered, approved and adopted a certain resolution of necessity (the “Resolution”) titled “A RESOLUTION DECLARING THE NECESSITY FOR ACQUIRING EASEMENTS ON, OVER, UNDER AND ACROSS CERTAIN REAL PROPERTY LOCATED IN OKLAHOMA COUNTY, OKLAHOMA, AND AUTHORIZING ACQUISITION OF SUCH EASEMENTS BY NEGOTIATION, AND IF NECESSARY, BY THE EXERCISE OF THE POWER OF EMINENT DOMAIN”, therein and thereby recognizing and declaring the necessity and advisability of constructing the said electric transmission line and the necessity of acquiring certain easements and authorizing the acquisition of such easements. The Resolution expressly authorizes acquisition of the Easement described in this petition.

6. Prior to filing this petition, OG&E sought to purchase and acquire the Easement for fair consideration through negotiations with Landowner that culminated in a purchase offer to Landowner, As of the date of filing hereof, OG&E and Landowner have not been able to reach a mutual understanding and agreement as to the terms on which the Easement can be purchased. Consequently, it has become necessary that OG&E institute this eminent domain proceeding to acquire the Easement by condemnation and justly compensate the defendants named in this petition, according to their respective interests in the Property, for such acquisition of the Easement.

7. The Easement Tract shall be located on the Property and configured as described and depicted on Exhibit I.

8. The Easement shall include and confer upon OG&E the following rights and authorizations: (i) the right and authority to enter and re-enter upon the Easement Tract for purposes of siting, erecting, constructing, operating and maintaining thereon an electric transmission line consisting of a system of poles, towers and/or other vertical structures, wires, cables, anchors, supports, footings, guy wires, other fixtures and equipment (collectively, the “System”) to be used for transmission and/or distribution of electric current at such voltages as OG&E may from time to time determine and transmission of communication messages; (ii) the right and authority to enter and re-enter upon the Easement Tract for purposes of inspecting, performing maintenance on and making repairs to the System and/or removing, reconstructing, resetting and refitting the System in whole or in part and/or making alterations or improvements to the System; (iii) the right and authority to enter and re-enter upon the Easement Tract for purposes of trimming and keeping trimmed and/or cutting and permanently removing and/or treating with selective herbicides and controlling the growth of all brush and trees located within the boundaries of the Easement Tract, as determined by OG&E; (iv) the right and authority to enter and re-enter upon the areas of the Property immediately surrounding and adjacent to the Easement Tract for purposes of trimming and keeping trimmed away from the Easement Tract and/or cutting and permanently removing and/or treating with selective herbicides and controlling the growth of any brush and trees on such areas of the Property, as determined by OG&E, to the extent such brush and trees encroach onto, upon or over the Easement Tract or, in the sole judgment of OG&E, interfere with or endanger the construction, operation or maintenance of the System or impair the safety or security of the System as situated on the Easement Tract; (v) the right and authority to prohibit within the boundaries of the Easement Tract, unless otherwise first consented to in writing by OG&E, the planting or cultivation of any tree or brush, the erection of any building, sign, billboard, tower or other structure, or the construction of any dam, pond, pool, ditch, berm or other barrier to mobility on, across or along the Easement Tract; and (vi,) the right and authority to prohibit within the boundaries of the Easement Tract, unless otherwise first consented to in writing by OG&F., any excavation, including any removal of rock or soil or addition of rock or soil, that will alter the grade or elevation of the Easement Tract.

9. OG&E does not seek through acquisition of the Easement to acquire title to any pad of the Property in fee or to obtain any right, title, estate or other interest in or to any oil, gas, coal or other minerals underlying the surface of the Property. Furthermore, O(i&E does not seek through acquisition of the Easement to impose any burden or encumbrance upon the mineral interests of any defendants named in this petition or of any other persons having any mineral interest in and relating to the Property.

10. OG&E will design, construct, operate and maintain the System in accordance with applicable industry construction and safety standards.

11. The Easement, as described and depicted in this petition and on any exhibit attached hereto, shall constitute and continue in effect as a covenant runrnng with the land, enforceable against all defendants named in this petition and their respective successors and assigns, together with all other persons and entities now or hereafter acquiring, owning, having or claiming any right, title or interest in the Property, or any part thereof, and their respective successors and assigns, until the Easement has been abandoned or released and surrendered by OG&E.

12. Vicky K. Terry, Linda M. Peterson and Michael B. Shroyer, Co-Trustees of the Shroyer Family Revocable Trust dated March 14, 2008, may claim some right, title or interest in and to the Property.

13. The Board of County Commissioners of Oklahoma County, and Forrest Freeman, Oklahoma County Treasurer, may also claim some right, title, lien, encumbrance, assessment or other interest in and to the Property.

WHEREFORE, OG&E prays (z) that the Court enter its order appointing and summoning three (3) disinterested freeholders of Oklahoma County to serve as commissioners; (ii) that the Court instruct the said commissioners to inspect the Property and the Easement Tract for the purposes of considering and assessing the damages, if any, the defendants wil [ sustain by reason of the appropriation of the Easement for the uses and purposes described herein and to determine and report the just compensation due to the defendants; a’v that, upon payment by OG&E to the Clerk of this Court the sum so assessed, determined and reported by the commissioners, the Easement vest in OG&E; and (iv) that OG&E thereupon have the right and authority to enter upon the Easement Tract for all the uses and purposes and by all means described in this petition.

The Court entered the following order appointing commissioners to appraise the value of the property being taken:

THIS MATTER comes on for hearing before the Honorable Patricia G. Parrish, Judge of the District Court of Oklahoma County, Oklahoma, on December 21, 2012, pursuant to a Petition and Notice of Hearing previously entered herein, requesting the appointment of Commissioners in this condemnation action. Plaintiff, Oklahoma Gas and Electric Company, an Oklahoma corporation (“OG&E”), appeared by and through its counsel, Keith R. Gibson of Williams, Box, Forshee & Bullard, P.C. Defendant, P & M Land Partners, LLC (“P & M Land”), appeared by and through its counsel, James M. Chaney of Kirk & Chaney, 101 Park Avenue, Suite 800, Oklahoma City, OK 73102-7202.

The Commissioners appointed by the court appraised the property and filed the following report:

COMES NOW the undersigned Commissioners heretofore appointed by the Court to inspect the real property described on Exhibit 1 attached hereto and made a part hereof (the “Property”) and to consider the injury which Defendant, P & M Land Partners, LLC, as the owners of said Property, may sustain by reason of the appropriation of permanent easement across said Property for the purposes stated in the Petition filed herein, and respectfully submit the following report: We, the undersigned Commissioners, are disinterested freeholders of Oklahoma County, State of Oklahoma, not interested in this and any like question, and we, and each of us, did on the 18th day of July, 20J13 appear before the Court Clerk of Oklahoma County and took the Oath as required by law in the above styled and numbered cause, and thereupon proceeded to personally inspect said Property.

We further report that giving consideration to the value of said Property so taken, including, if any, the value of any and all improvements thereon, together with the damage to that portion, if any of the Defendant’s property not taken; and we hereby assess the damage to the owners, lessees or any claiming to have any right, title or interest in said Property as follows:

Damages Assessed: $5,250.00.

Outcome: This matter comes on for hearing in Oklahoma County, Oklahoma, before Patricia G. Parrish, District Judge, upon agreement of the parties. Plaintiff Oklahoma Gas and Electric Company (“OG&E”) appears by its counsel, Dennis R. Box, Richard D. Forshee and Keith R. Gibson of Williams, Box, Forshee & Bullard, P.C. Defendant P&M Land Partners, LLC (“Landowner”) appears by its counsel, James M. Chaney of Kirk & Chaney. Defendants Forrest Freeman, Oklahoma County Treasurer, and Board of County Commissioners of Oklahoma County (collectively, the “County Parties”) appear by their counsel, David Prater, District Attorney, and Gretchen Crawford, Assistant District Attorney. Defendants Vicky K. Terry, Linda M. Peterson and Michael B. Shroyer, Co-trustees of the Shroyer Family Revocable Trust dated March 14, 2008 have been dismissed from this proceeding. The Court, having been advised by counsel, finds and orders as follows:

1. Service of process has been perfected according to law on all defendants having any compensable interests in the subject real property and all defendants having any lien or mortgage claims or claims of title against the subject property. Any defendant who has not heretofore appeared, pled or otherwise responded to the OG&E petition in this proceeding has defaulted and thereby waived any right to contest the appropriation of the easement herein described or object to the award of just compensation to be paid for the said easement as herein provided.

2. OG&E commenced this proceeding on November 7, 2012 by filing its petition seeking, through the exercise of its statutory right of eminent domain, to condemn and appropriate from Landowner and the other defendants named herein having any interest in the subject real property a permanent easement (the “Easement”) upon, over, under and across that certain tract of real property (the “Easement Tract”) lying in a part of the Southeast Quarter (SEI4) of Section 34, Township 12 North, Range 3 West of the Indian Meridian, Oklahoma County, Oklahoma, more particularly described as Lot Twenty (20) in Block Fifteen (15) of Phillips and Mead East Side Addition to Oklahoma City, Oklahoma County, Oklahoma, (the “Property”), as described and depicted with more particularity on the survey plat attached to the OG&E petition and hereto attached, marked Exhibit 1. As set forth in the OG&E petition, the Easement is sought by OG&E for the purposes of expanding and improving the supply and delivery of electricity through the transmission of electric current and communication messages.

3. The Easement, as described in the OG&E petition, includes and confers upon OG&E the following rights and authorizations: (i) the right and authority to enter and re-enter upon the Easement Tract for purposes of erecting, constructing, operating and maintaining thereon an electric transmission line consisting of a system of poles, towers and/or other vertical structures, wires, cables, anchors, supports, footings, guy wires, other fixtures and equipment (collectively the “System”) to be used for transmission and/or distribution of electric current at such voltages as OG&E may from time to time determine and transmission of communication messages; (ii) the right and authority to enter and re-enter upon the Easement Tract for purposes of inspecting, performing maintenance on and making repairs to the System and/or removing, reconstructing, resetting and refitting the System in whole or in part and/or making alterations or improvements to the System; (iii) the right and authority to enter and re-enter upon the Easement Tract for purposes of trimming and keeping trimmed and/or cutting and permanently removing and/or treating with selective herbicides and controlling the growth of all brush and trees located within the boundaries the Easement Tract, as determined by OG&E; (iv) the right and authority to enter and re-enter upon the areas of the Property immediately surrounding and adjacent to the Easement Tract for purposes of trimming and keeping trimmed away from the Easement Tract and/or cutting and permanently removing and/or treating with selective herbicides and controlling the growth of any brush and trees on such areas of the Property, as determined by OG&E, to the extent such brush and trees encroach onto, upon or over the Easement Tract or, in the sole judgment of OG&E, interfere with or endanger the construction, operation or maintenance of the System or impair the safety or security of the System as situated on the Easement Tract; (v) the right and authority to prohibit within the boundaries of the Easement Tract, unless otherwise first consented to in writing by OG&E, the planting or cultivation of any tree or brush, the erection of any building, sign, billboard, tower or other structure, or the construction of any dam, pond, pool, ditch, berm or other barrier to mobility on, across or along the Easement Tract; and (vi) the right and authority to prohibit within the boundaries of the Easement Tract, unless otherwise first consented to in writing by OG&E, any excavation, including any removal of rock or soil or addition of rock or soil, that will alter the grade or elevation of the Easement Tract.

4. On February 19, 2013, the commissioners appointed by the Court filed their report in this proceeding, therein assessing and awarding just compensation and damages for the appropriation of the Easement in the amount of Five Thousand Two Hundred Fifty and No/l00 Dollars ($5,250.00) (the “Commissioners’ Award”).

5. Thereafter, OG&E deposited the Commissioners’ Award with the Clerk of this Court, together with poundage.

6. Thereafter, OG&E and Landowner negotiated and entered into a mutual compromise and settlement of the amount to be paid by OG&E as just compensation and damages for appropriation of the Easement (the “Settlement”).

7. In accordance with the Settlement, OG&E and Landowner have agreed to withdraw their respective demands for a jury trial previously filed in this proceeding and to waive and relinquish any and all rights to demand and have a trial by jury to determine just compensation for the appropriation of the Easement.

8. Neither of the County Parties is asserting any right, claim or interest in or to the Commissioners’ Award or the Settlement.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that OG&E shall have the Easement, as herein described, for the purposes of expanding and improving the supply and delivery of electricity through the transmission of electric current and communication messages.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Easement Tract shall be situated and configured within the boundaries of the Property as described and depicted on the survey plat attached hereto as Exhibit 1.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Easement shall include and confer upon OG&E the following rights and authorizations: (i) the right and authority to enter and re-enter upon the Easement Tract for purposes of erecting, constructing, operating and maintaining thereon an electric transmission line consisting of a system of poles, towers and/or other vertical structures, wires, cables, anchors, supports, footings, guy wires, other fixtures and equipment (collectively the “System”) to be used for transmission and/or distribution of electric current at such voltages as OG&E may from time to time determine and transmission of communication messages; (ii) the right and authority to enter and re-enter upon the Easement Tract for purposes of inspecting, performing maintenance on and making repairs to the System and/or removing, reconstructing, resetting and refitting the System in whole or in part and/or making alterations or improvements to the System; (iii) the right and authority to enter and re-enter upon the Easement Tract for purposes of trimming and keeping trimmed and/or cutting and permanently removing and/or treating with selective herbicides and controlling the growth of all brush and trees located within the boundaries the Easement Tract, as determined by OG&E; (iv) the right and authority to enter and re-enter upon the areas of the Property immediately surrounding and adjacent to the Easement Tract for purposes of trimming and keeping trimmed away from the Easement Tract and/or cutting and permanently removing and/or treating with selective herbicides and controlling the growth of any brush and trees on such areas of the Property, as determined by OG&E, to the extent such brush and trees encroach onto, upon or over the Easement Tract or, in the sole judgment of OG&E, interfere with or endanger the construction, operation or maintenance of the System or impair the safety or security of the System as situated on the Easement Tract; (v) the right and authority to prohibit within the boundaries of the Easement Tract, unless otherwise first consented to in writing by OG&E, the planting or cultivation of any tree or brush, the erection of any building, sign, billboard, tower or other structure, or the construction of any dam, pond, pool, ditch, berm or other barrier to mobility on, across or along the Easement Tract; and (vi) the right and authority to prohibit within the boundaries of the Easement Tract, unless otherwise first consented to in writing by OG&E, any excavation, including any removal of rock or soil or addition of rock or soil, that will alter the grade or elevation of the Easement Tract.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the demands for jury trial previously filed in this action by OG&E and Landowner are, in conjunction with the issuance and entry of this order, withdrawn and dismissed by the said parties and that the rights of all parties hereto to demand and have a trial by jury to determine just compensation for the appropriation of the Easement are hereby waived and foreclosed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Landowner shall have the Settlement as just compensation for the Easement and that the Settlement shall be the total of compensation and damages due and payable by OG&E to Landowner and the other defendants herein for the appropriation of the Easement.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court Clerk shall disburse the Commissioners’ Award to Landowner in the amount of $5,250.00, payable and delivered as follows:

P&M Land Partners, LLC and James M. Chaney

c/o James M. Chaney

Kirk & Chaney

101 Park Avenue, Suite 800

Oklahoma City, Oklahoma 73102-7202

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that OG&E shall mail a file-stamped copy of this to all other parties.

Plaintiff's Experts:

Defendant's Experts:

Comments: