The Oklahoma Bar Journal November 2022

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.

an eminent domain proceeding, there are only three recognized pleadings that may be filed: petition, exception to the commissioners’ report and demand for jury trial. 20 Thereafter, the trial court has the discretion whether additional pleadings may be filed. 21 An eminent domain case starts by the condemning entity filing a petition in the district court where the land is located that it desires to take. The petition requests the district court to appoint three disinterested freeholders to value the property being taken. A legal description is either incorporated into the petition or attached as an exhibit to the petition. Additionally, a resolution or affidavit of necessity is typically included, stating the need for the real property, although it is not required by Oklahoma law. A summons is not required in an eminent domain action. Rather, Oklahoma Statute requires 10 days advance notice to the landown ers before the district court will appoint commissioners to appraise the land being acquired. 22 Notice may be served in person, by mail and/or publication. 23 At the hearing to appoint commissioners, the district court selects three disinterested freehold ers of the county who “shall not be interested in a like question.” 24

As used by the statute, the term “freeholder” means an individual who possesses real property in the county of which the eminent domain action is pending. How the district court chooses the commis sioners is completely discretionary. When selecting commissioners, the district court is acting in a ministerial role, not a judicial role. 25 There is no formal proce dure in selecting commissioners in an eminent domain action. If the parties cannot reach an agreement on the commissioners, typically the commissioners are selected one of two ways. The first method is for the district court to solely select the commissioners. The second, and more common method, is for the condemnor to select one commissioner, the landowner to select a second commissioner and the third commissioners is selected by the district court. It is the established practice for the dis trict court to set forth instructions to the commissioners for their assessment of the real property, however, it is not mandatory. The court-appointed commis sioners do not decide whether the taking is proper, rather they are to inspect the property, assess the just compensation due to the landowner and file a report of their findings with the clerk of the district court. 26

The report of commissioners is an estimate of just compensation for the condemned property. The report of commissioners is undivided and is an estimate of just compensation for all ownership interests, includ ing those of a tenant, mortgagee or tax commission. 27 Within 10 days of the report of commissioners being filed, the court clerk of the county is required to forward to the attorneys of record and all unrepresented par ties a copy of the filed report. 28 The notice from the court clerk shall set forth the time limits for challeng ing the necessity of the taking and the amount of damages assessed. 29 The filing of the report of com missioners is the measuring stick for both parties and their respec tive cases. The assessment made by the court-appointed commissioners allows both parties time to review the estimate of just compensation placed on the condemned land. Either party has 30 days of the report of commissioners being filed to file an exception to the commis sioners’ report. 30 Further, either party must file a written demand for jury trial within 60 days of the commissioners’ report to secure that the ultimate decision on just compensation is determined by a jury. 31 Failure to file a proper exception, thereupon perfecting the appeal, forever bars the district

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THE OKLAHOMA BAR JOURNAL