Date: 02-04-2013

Case Style: Oklahoma Gas and Electric Company v. Joetta Clay

Case Number: CJ-2012-7040

Judge: Lisa T. Davis

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Dennis R. Box, Richard D. Forshee, Keith R. Gibson, David M. Box

Defendant's Attorney:

Description: Oklahoma Gas and Electric Company sued Joetta Clay, Lavarene Hilliard and others on eminent domain theories 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 U.S. 2011, §7 to exercise the right of eminent domain within this State,

3. J.H. Cooper, deceased, also known as Joseph Herman Cooper, and Dorothy V. Cooper, deceased, also known as Dorothy Vera Cooper (collectively, “Landowner”), are the record owners 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 Fourteen (14) in Block Fourteen (14) in Phillips and Meade East Side Addition, to Oklahoma City, Oklahoma County, Oklahoma (the “Property”), as evidenced by that certain Joint Tenancy Warranty Deed recorded on August 19, 1946 in book 828, page 18 in the office of the Oklahoma County Clerk.

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 plats 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 1.

8. The Easement shall include and confer upon OG&E the following fights and authorizations: (z) 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; (10 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 frees 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 (vQ 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.

9. OG&E does not seek through acquisition of the Easement to acquire title to any part 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, OG&13 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 running 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. JoEtta Clay, also known as JoEtta Cooper Clay, through her relationship to the said J.H. Cooper and the said Dorothy V. Cooper, may have or claim some right, title or interest in and to the Property. Further, LaVarene Hilliard, through her relationship to the said J.H. Cooper, may also have or claim some right, title or interest in and to the Property. There may also be other heirs, devisees, successors and/or assigns of the said J, H. Cooper or the said Dorothy V. Cooper unknown to OG8LE who have or claim some right, title or interest in and to the Property.
13.. The Board of County Commissioners of Oklahoma County and/or 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 will 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; (iii) 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.

ORDER APPOINTING COMMISSIONERS

THIS MATTER comes on for hearing before the Honorable Lisa T. Davis, Judge of the District Court of Oklahoma County, Oklahoma, on January 3, 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. Defendants Oklahoma County Treasurer and Board of County Commissioners of Oklahoma County appear by and through their counsel, Gretchen Crawford, 320 Robert S. Kerr, Suite 505, Oklahoma City, OK 73102. Defendant, Joetta Clay, (“Clay”), appeared not. Defendant, Lavarene Hilliard, (“Hilliard”) appeared not. Defendant, Unknown Heirs, if any of J.H. Cooper and Dorothy V. Cooper, (“Cooper”) appeared not.

The Court finds that the real property identified in Plaintiff’s Petition as the subject of this condemnation action (the “Easement Tract”), is owned by Defendants and such real property is located in Oklahoma County, Oklahoma; that the notice regarding this hearing provided to all Defendants in this cause complies with statutory requirements; and that Commissioners should be appointed in accordance with OG&E’s Petition and as provided by law.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT

Tim Strange
101 Park Aye, St 1010
Oklahoma City, OK 73102
Telephone: (405) 602-3040

John Cohlmia
John Cohlmia Real Estate
1601 NW Expressway
Oklahoma City, OK 73118
Telephone: (405) 879-4773

Patrick Glenn
Patrick Glenn & Company
2723 NW 50th Street
Oklahoma City, OK 73112-8001
Telephone: (405) 943-3393

disinterested freeholders in Oklahoma County, Oklahoma, not interested in a like question, are hereby appointed as Commissioners to inspect the property subject of this condemnation action and consider the injury to which the owners thereof may sustain by reason of the appropriation of the easement by OG&E, and assess the just compensation to which the owners are entitled. Such Commissioners are hereby empowered, authorized and directed to forthwith take the oath prescribed by law; enter upon and inspect the property subject of this condemnation action;
assess the just compensation due pursuant to written instructions by this Court; and file with the Oklahoma County Court Clerk a written report as provided by law.

Outcome: The records for this case are not complete.

Plaintiff's Experts:

Defendant's Experts:

Comments: