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Full Opinion
The BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff/Appellee,
v.
Edward L. LOWERY and Mary L. Lowery, Husband and Wife, Defendants/Appellants and
Rural Water District No. 5, and the Muskogee County Treasurer, Defendants.
The Board of County Commissioners of Muskogee County, Plaintiff/Appellee,
v.
Jack E. Whitten and Doris M. Whitten, Husband and Wife, Defendants/Appellants and
Rural Water District No. 5, and the Muskogee County Treasurer, Defendants.
The Board of County Commissioners of Muskogee County, Plaintiff/Appellee,
v.
Richard Hyslope, Defendant/Appellant and
The Farm Credit Bank of Wichita Rural Water District No. 5, and the Muskogee County Treasurer, Defendants.
The Board of County Commissioners of Muskogee County, Plaintiff/Appellee,
v.
Paul Hobbs and Diann Hobbs, Husband and Wife, Defendants/Appellants and
Mary Murl Barrett, Bank of Cherokee County, Rural Water District No. 5, and the Muskogee County Treasurer, Defendants.
Supreme Court of Oklahoma.
C. Bart Fite of Wright, Stout, Fite & Wilburn, Muskogee, OK, Mark James Caywood of Mark James Caywood, P.L.L.C., Oklahoma City, OK, for Plaintiff/Appellee, County.
Harlan Hentges of Mulinix, Ogden, Hall, Andrews, & Ludlum, Oklahoma City, OK, for Defendants/Appellants, Landowners.
Stephen J. Scherer of Muskogee, OK, for Defendants/Appellants, Landowners Edward L. Lowery and Mary L. Lowery.
Jo Nan Allen of Tahlequah, OK, for Defendants/Appellants, Landowners Paul Hobbs and Diann Hobbs.
Tina Jordan of Tahlequah, OK, for Defendants/Appellants, Landowners Paul Hobbs and Diann Hobbs.
Eric J. Groves of Groves & Associates, Oklahoma City, OK, for The Institute for Justice, Amicus Curiae.
Dana Berliner of The Institute for Justice, Washington, DC, admitted pro hac vice, for The Institute for Justice, Amicus Curiae.
Daniel P. Muino of Gibson, Dunn & Crutcher LLP, San Francisco, CA, admitted pro hac vice, for The Institute for Justice, Amicus Curiae.
*642 LAVENDER, J.
¶ 1 The issues in the present cause are as follows: (1) whether the County's exercise of eminent domain in the instant cases is for public use in accordance with Article 2, § 23 and Article 2, § 24 of the Oklahoma Constitution and (2) whether the County's taking for purposes of economic development of Muskogee County constitutes "public purposes" within the meaning of 27 O.S.2001 § 5 to support such a taking.
I
FACTS AND PROCEDURAL HISTORY
¶ 2 Plaintiff/Appellee County initiated condemnation proceedings against Defendant/Landowners[1] for the purpose of acquiring temporary and permanent right-of-way easements for the installation of three water pipelines. Two of the proposed water pipelines (referred to by the parties and hereinafter collectively referred to as "the Eagle Pipeline") would solely serve Energetix, a privately owned electric generation plant, which was proposed for construction in Muskogee County. By way of the Eagle Pipeline, Energetix's proposed operations would require a maximum of 8,000,000 gallons of water daily for use in cooling towers associated with the operation of an 825 megawatt natural gas-fired power plant. The Eagle Pipeline would extend from the plant site to the Arkansas River with one of the two pipelines designated for carrying water to the plant and the other pipeline designated for return of the water to the Arkansas River.
¶ 3 Energetix proposed to build the third water pipeline (hereinafter "the Water District *643 Pipeline") on behalf of the Rural Water District No. 5 (hereinafter "Water District")[2] pursuant to a contract entitled "Rural Water District Number 5, Muskogee County: Water Pipeline Construction Agreement,"[3] which expressly provided for Energetix's agreement to build this pipeline at no cost to the Water District "as part of the consideration to induce certain property owners to grant private easements for the Eagle Pipeline." The Water District Pipeline was intended to serve residents of the Water District who were not currently being served and to enhance current water service to residents of the Water District, who were receiving it. This contract expressly specified that Energetix's duty to construct the Water District pipeline arises only on the conditions precedent that Energetix first succeeds in obtaining all rights-of-way needed to construct the private Eagle Pipeline and Energetix begins construction of the Eagle Pipeline.[4] Under the terms of this contract, the Water District would be responsible for supplying the necessary materials for construction of the pipeline, but Energetix would pay all construction costs. Energetix additionally contracted to provide and install up to six (6) fire hydrants at its expense during the construction of the Eagle Pipeline and the Water District Pipeline (with Energetix's duty to construct the hydrants likewise tied to the same conditions precedent above).
¶ 4 Landowners filed an answer and counterclaim in each case seeking declaratory and injunctive relief on the basis that the County's proposed taking was an unlawful taking of private property for private use and private purpose of the private company, Energetix, in violation of 27 O.S.2001 § 5 and the eminent domain provisions contained within both the Oklahoma Constitution and the U.S. Constitution.
¶ 5 County filed a motion to strike Landowners' answer and counterclaim on the basis that Landowners failed to comply with the statutory procedure applicable to condemnation proceedings. The Report of Commissioners[5] was thereafter filed, which provided *644 the takings were for a public purpose and established the amount of just compensation to be awarded to Landowners for their respective properties.[6] Landowners filed their respective Exceptions to the Commissioners' Report,[7] objecting primarily on the basis that the takings were not for a valid public purpose, but rather an unlawful taking of private property for private purpose.
¶ 6 The trial court ultimately agreed with the County and entered an Order confirming the takings in these cases. The trial court's order further provided the County properly exercised the power of eminent domain pursuant to 27 O.S. § 5 in furtherance of the following public purposes: 1) enhancing the economic development of Muskogee County; 2) providing for temporary and permanent jobs for Muskogee County residents; and 3) for the operation of a pipeline to be used in conjunction with the construction of an electricity generation plant to be owned and operated by a private company and located in Muskogee County. Additionally, the trial court order concluded "the land acquired is necessary for the installation and maintenance of certain water lines. These water lines are necessary for the private electricity generation plant to operate, for the benefit of Muskogee County residents and the general public." The trial court determined that this order affected a substantial part of the merits of the controversy and certified the matter for immediate appeal pursuant to 12 O.S. 2001 § 952(b)(3).
¶ 7 Landowners appealed, and the COCA reversed and remanded the trial court's determination with instructions to enter a judgment sustaining Landowners' Exceptions to the Commissioners' Report on the basis that the takings in the instant cases were unlawful in that they were for the direct benefit of a private company and not for "public purposes" as required for the County's exercise of condemnation pursuant to 27 O.S.2001 § 5. The COCA reached its determination primarily *645 upon the conclusion that the economic development or enhancement of a community fails to meet the statutory "public purposes" requirement to support the County's exercise of eminent domain in these cases.
¶ 8 County filed its Petition for Certiorari, arguing that the COCA incorrectly determined that the County's exercise of eminent domain for the purpose of economic development does not constitute "public purpose" under Art. 2, § 24 of the Oklahoma Constitution. Landowners' Answer to the Petition for Certiorari urged the correctness of the COCA opinion, noting the COCA reached its determination solely on statutory grounds. Upon Landowners' showing of good cause for the filing of additional briefs on certiorari, we ordered the parties to submit supplemental briefs on certiorari.[8] Additionally, we granted the Institute for Justice leave to file a brief amicus curiae and heard oral argument en banc.
II
THE LAW APPLICABLE TO THIS CONDEMNATION PROCEEDING
The Oklahoma General Eminent Domain Statute and Constitutional Eminent Domain Provisions
¶ 9 The County sought to condemn Landowners' private property pursuant to its general eminent domain power granted by 27 O.S.2001 § 5, which provides as follows:
Any county, city, town, township, school district, or board of education, or any board or official having charge of cemeteries created and existing under the laws of this state, shall have power to condemn lands in like manner as railroad companies, for highways, rights-of-way, building sites, cemeteries, public parks and other public purposes.
Id. (emphasis added). Additionally, we are guided by the applicable general federal constitutional[9] and state constitutional eminent domain provisions, including and perhaps most notably our special provision concerning the taking of private property. Article 2, § 23 provides as follows:
No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.
OKLA. CONST. art. 2, § 23. Our Constitution further generally provides "private property shall not be taken or damaged for public use without just compensation." OKLA. CONST. art. 2, § 24. That constitutional provision additionally states "[in] all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question." Id. The law is clear that "[p]rivate property may not be taken or damaged by the condemning agency unless the taking or damage is necessary for the accomplishment of a lawful public purpose." Luccock v. City of Norman, 1978 OK 66, 578 P.2d 1204, 1206 (citing Art. 2, §§ 23 & 24 of the Oklahoma Constitution).[10]Luccock demonstrates that *646 we have used the terms "public use" and "public purpose" interchangeably in our analysis of our state constitutional eminent domain provisions, and we therefore view these terms as synonymous. See id.; see also Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954)(noting the narrow role of the judiciary in determining whether the power of eminent domain is being exercised for a "public purpose" in a case construing a federal statute containing the term "public use"); Kelo v. City of New London, 545 U.S. 469, ___, 125 S.Ct. 2655, 2662, 162 L.Ed.2d 439 (2005) (explaining that in its application of the Fifth Amendment to the States at the close of the 19th Century, the U.S. Supreme Court rejected the "use by the public test" and "embraced a broader and more natural interpretation of public use as public purpose").
The Constitutional Limitations and the Framers' Intent
¶ 10 It is settled law that the constitutional eminent domain provisions "are not grants of power, but limitations placed upon the exercise of government power." City of Pryor Creek v. Pub. Serv. Co., 1975 OK 81, 536 P.2d 343, 345 (citation omitted). The constitutional limitations on the power of eminent domain "serve to protect `the security of Property,' which Alexander Hamilton described to the Philadelphia Convention as one of the `great ob[jects] of Gov[ernment].'" Kelo v. City of New London, 545 U.S. 469, ___, 125 S.Ct. 2655, 2671, 162 L.Ed.2d 439 (2005) (O'Connor, J., dissenting) (alteration in original) (quoting 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed., 1934)). The framers of the Oklahoma Constitution likewise recognized "that to protect both life and property is the first duty of government." ALBERT H. ELLIS, A HISTORY OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF OKLAHOMA, p. iv. (Introduction and Endorsement by William H. Murray, President of the Constitutional Convention) (1923). In keeping with these principles, we have determined the government's power of eminent domain "lies dormant in the state until the Legislature by specific enactment designates the occasion, modes and agencies by which it may be placed in operation." City of Pryor Creek, 536 P.2d at 345-46. A governmental body subordinate to the state (i.e., local governments such as a city, town, municipality or county) may not exercise, create, extend or expand a power of eminent domain in the absence of statutory authority. Id.; City of Midwest City v. House of Realty, Inc., 2004 OK 56, ¶ 19, 100 P.3d 678, 685.
"Public Purpose" in the Context of Eminent Domain
¶ 11 In determining whether economic development alone[11] constitutes a "public purpose" within the meaning of 27 O.S. § 5, as a starting point, we are guided by the longstanding general rule of strict statutory construction of eminent domain statutes. See City of Cushing v. Gillespie, 1953 OK 121, 256 P.2d 418. Further, as a general rule, we construe our state constitutional eminent domain provisions "strictly in favor of the owner and against the condemning party." Stinchcomb v. Oklahoma City, 1921 OK 154, 198 P. 508, 508 (First Syllabus by the Court). Additionally, Oklahoma eminent domain statutes must conform to the restrictions placed on the exercise of such power by the Oklahoma constitutional eminent domain provisions. See Allen v. Transok Pipe Line Co., 1976 OK 53, 552 P.2d 375. Since we must strictly construe the term "public purpose" as set forth in the applicable eminent domain statute, we acknowledge *647 the distinction of our construction of that term outside the context of eminent domain and specifically in the context of constitutional provisions restricting the use of public funds to expenditures for public purpose. See State ex rel. Brown v. City of Warr Acres, 1997 OK 117, ¶ 18, 946 P.2d 1140, 1144 (determining the term "public purpose" "should not be construed `in a narrow or restrictive sense.'") (citations omitted).[12] We adhere to the strict construction of eminent domain statutes in keeping with our precedent, mindful of the critical importance of the protection of individual private property rights as recognized by the framers of both the U.S. Constitution and the Oklahoma Constitution. If we were to construe "public purpose" so broadly as to include economic development within those terms, then we would effectively abandon a basic limitation on government power by "wash[ing] out any distinction between private and public use of propertyand thereby effectively delet[ing] the words `for public use' from [the constitutional provisions limiting governmental power of eminent domain.]" Kelo v. City of New London, 545 U.S. 469, ___, 125 S.Ct. 2655, 2671, 162 L.Ed.2d 439 (2005) (O'Connor, J., dissenting). In our view, the power of eminent domain should be exercised with restraint[13] and we therefore construe the term "public purpose" narrowly specifically in this context.
III
AS A MATTER OF OKLAHOMA CONSTITUTIONAL AND STATUTORY LAW, ECONOMIC DEVELOPMENT ALONE IS NOT A PUBLIC PURPOSE TO JUSTIFY THE EXERCISE OF COUNTY'S POWER OF EMINENT DOMAIN.
¶ 12 The County's primary argument is that the general eminent domain statute, 27 O.S. § 5 authorizes its exercise of eminent domain for the sole purpose[14] of *648 economic development (i.e., increased taxes, jobs and public and private investment in the community) because economic development constitutes a "public purpose" within the meaning of the statute as well as the state constitutional eminent domain provisions found in Art. 2, §§ 23 & 24 of the Oklahoma Constitution.[15]
*649 ¶ 13 In arguing the term "public purposes" in § 5 includes the purpose of economic development of the community, the County urges our adoption of the more expansive definition of the term "public purpose" as provided in State ex. rel. Brown v. City of Warr Acres, 1997 OK 117, 946 P.2d 1140, which construed that term in the context of public funding pursuant to Art. 10, §§ 14, 17 and 26 of the Oklahoma Constitution. As previously noted in this Opinion, we adhere to the rule of strict statutory construction of eminent domain statutes and reject the County's proposed application of the broader definition of "public purpose" as set forth in Brown.[16]
¶ 14 We recognize the general rule that where legal relief is available on alternative, non-constitutional grounds, we avoid reaching a determination on the constitutional basis. See State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 12, 66 P.3d 432, 439. However, the circumstances of this case lead us to the conclusion that it is necessary for us to reach a constitutional determination in addition to our statutory determination. Here, the two determinations are intertwined. The analysis under both the applicable eminent domain statute and under the state constitutional provisions turns on the identical determination of the meaning of the term "public purpose," which we have previously noted in ¶ 9 of this Opinion, is synonymous with "public use" as provided in the Oklahoma Constitution.
¶ 15 Considering the fact that the proposed Eagle Pipeline would be solely dedicated to the purpose of serving a private entity to enable its construction and operation in energy production, it is clear that the County in this case urges a broad interpretation of "public purposes." While arguing the construction of the plant will serve a public purpose by significantly enhancing the economic development of Muskogee County through increased taxes, jobs and public and private investment, County urges our adoption of a rule, which has been applied in other jurisdictions that the exercise of eminent domain for purposes of economic development alone (in the absence of blight) satisfies the constitutional "public use" or "public purpose" requirement.[17] We recognize that the U.S. Supreme Court recently upheld a city's exercise of eminent domain power in furtherance of an economic development plan, holding that economic development satisfied the "public use" restriction in the Fifth Amendment's Takings Clause and finding the city's economic development plan served a "public purpose." Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005).
¶ 16 In Kelo, the city of New London, Connecticut, a city that had experienced "decades of economic decline,"[18] developed a plan for economic development of the area, *650 which included the acquisition of private property owners' land. The city in Kelo condemned the properties pursuant to Connecticut's Municipal Development Statute, which expressly authorized the use of eminent domain as part of an economic development project. See Conn. Gen.Stat. § 8-186 et seq. In reaching its determination, the Court in Kelo applied its "broader and more natural interpretation of public use as public purpose" pursuant to the Fifth Amendment and noted its cases have defined "public purpose" broadly as a reflection of "[the Court's] longstanding policy of deference to legislative judgments in this field." Id. at 2662-63. The majority in Kelo emphasized its public use jurisprudence has afforded legislatures "broad latitude in determining what public needs justify the use of the takings power." Id. at 2664. Additionally, the Kelo majority declined to "second-guess the City's considered judgments about the efficacy of its development plan" as well as "the City's determinations as to what lands it needs to acquire in order to effectuate the project," and deferred to the legislature as to the amount and character of land to be taken for the project. Id. at 2668 (citation omitted).
¶ 17 The U.S. Supreme Court expressly limited its holding in Kelo as follows: "[t]his Court's authority, however, extends only to determining whether the City's proposed condemnations are for a `public use' within the meaning of the Fifth Amendment to the Federal Constitution." Id. Notably, the Court in Kelo additionally expressly provided as follows:
We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many states already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.
Id. (footnotes and citations omitted).
¶ 18 Contrary to the Connecticut statute applicable in Kelo, which expressly authorized eminent domain for the purpose of economic development, we note the absence of such express Oklahoma statutory authority for the exercise of eminent domain in furtherance of economic development in the absence of blight. The statute at issue in the instant cases is a general grant of power that permits condemnation "in like manner as railroad companies, for highways, rights-of-way, building sites, cemeteries, public parks and other public purposes." 27 O.S. § 5; see City of Midwest City v. House of Realty, Inc., 2004 OK 56, ¶ 1, 100 P.3d 678 (characterizing the power in § 5 as a general power of eminent domain and holding that municipality may not use this general power of eminent domain for the purpose of economic development and blight removal when acting jointly with a public trust). County here seeks a broad, expansive interpretation of the term "public purpose" to permit the exercise of eminent domain pursuant to the County's general statutory power of eminent domain. However, we have already rejected such a broad interpretation of "public purpose" as set forth in 27 O.S. § 5 in City of Midwest City, where we noted "a municipality is not possessed with an unfettered discretion to condemn property for economic redevelopment projects outside of the scope of statutory schemes that the Legislature has provided for removal of blighted property." Id. at ¶ 20, 100 P.3d at 685. In that case, we additionally noted the distinction between blight removal and economic development, with "[t]he former [constituting] the public purpose that constitutionally justifies the subsequent sale of the property for private use." Id. at ¶ 22, 100 P.3d at 686. Accordingly, we hold that economic development alone does not constitute a public purpose and therefore, does not constitutionally justify the County's exercise of eminent domain. Pursuant to our own narrow requirements in our constitutional eminent domain provisions found at Art. 2, §§ 23 & 24 of the Oklahoma Constitution, we view the transfer of property from one private party to another in furtherance of potential economic development or enhancement of a community in the absence of blight as a purpose, which must yield to our greater constitutional obligation to protect and preserve the individual fundamental *651 interest of private property ownership.
¶ 19 To the extent that our determination may be interpreted as inconsistent with the U.S. Supreme Court's holding in Kelo v. City of New London, today's pronouncement is reached on the basis of Oklahoma's own special constitutional eminent domain provisions, Art. 2, §§ 23 & 24 of the Oklahoma Constitution, which we conclude provide private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution. In other words, we determine that our state constitutional eminent domain provisions place more stringent limitation on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the U.S. Constitution.[19] We join other jurisdictions including Arizona, Arkansas, Florida, Illinois, South Carolina, Michigan, and Maine, which have reached similar determinations on state constitutional grounds.[20] Other states have similarly restricted the government's eminent domain power through state statute.[21]
*652 ¶ 20 While the Takings Clause of the U.S. Constitution provides "nor shall private property be taken for public use without just compensation," the Oklahoma Constitution places further restrictions by expressly stating "[n]o private property shall be taken or damaged for private use, with or without compensation." OKLA. CONST. art. 2, § 23 (emphasis added). That constitutional provision additionally expressly lists the exceptions for common law easements by necessity and drains for agricultural, mining and sanitary purposes. The proposed purpose of economic development, with its incidental enhancement of tax and employment benefits to the surrounding community, clearly does not fall within any of these categories of express constitutional exceptions to the general rule against the taking of private property for private use. To permit the inclusion of economic development alone in the category of "public use" or "public purpose" would blur the line between "public" and "private" so as to render our constitutional limitations on the power of eminent domain a nullity. If property ownership in Oklahoma is to remain what the framers of our Constitution intended it to be, this we must not do.
IV
LANDOWNERS' MOTION FOR APPEAL-RELATED ATTORNEY FEES AND COSTS
¶ 21 Landowners in each of the four instant cases seek an award of their appeal-related attorney fees and costs pursuant to Okla.Sup.Ct.R. 1.14(a) and (b), 27 O.S. § 5 and 66 O.S.2001 § 55. County subsequently filed its Objection to Assessment of Attorney's Fees, arguing that Landowners have incurred no actual attorney fees and expenses in this condemnation proceeding because the Landowners' cost of defense was "defrayed from the land owner by a private organization who [sic] is opposed to the county's authority to acquire this easement." County cites no legal authority in support of its objection to the assessment of attorney fees in this matter.
¶ 22 The general rule is "[a]ppeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court." Casey v. Casey, 2002 OK 70, ¶ 26 58 P.3d 763, 772 (footnotes omitted). Further, the right to recover attorney fees in a condemnation proceeding must be provided by statute. Carter v. City of Oklahoma City, 1993 OK 134, 862 P.2d 77, 79; see Root v. Kamo Elec. Coop., Inc., 1985 OK 8, 699 P.2d 1083 (permitting condemnees' recovery of attorney fees against a rural electric cooperative pursuant to 66 O.S.1981 § 55(D)). Title 27 O.S. § 5 provides in pertinent part, "[a]ny county . . . shall have power to condemn lands in like manner as railroad companies.. . ." Id. Title 66 O.S.2001 § 51 et seq. is the statutory scheme applicable in condemnation proceedings instituted by railroad companies and provides the applicable method of procedure for eminent domain proceedings brought pursuant to 27 O.S. § 5. See Harn v. State ex rel. Williamson, 1939 OK 40, 87 P.2d 127, 129. We hold that 66 O.S. 2001 § 55(D)[22] applies to the instant cases to permit reimbursement to the prevailing Landowners for their reasonable appeal-related *653 attorney fees upon a requisite showing before the trial court on remand that attorney fees have been actually incurred by Landowners because of the condemnation proceeding. See 12 O.S. Supp.2004 § 696.4(C.) (providing that "[t]he appellate court shall decide whether to award attorney fees for services on appeal, and if fees are awarded, it shall remand the case to the trial court for a determination of their amount."). Therefore, Landowners' Motion for Appeal-Related Attorneys' Fees is GRANTED to the extent the Landowners have demonstrated the requisite statutory authority for the recovery of appeal-related attorney fees and we hereby REMAND to the trial court for a determination of "such sum as in the opinion of the court will reimburse [Landowners] for [their] reasonable attorney . . . fees actually incurred because of the condemnation proceeding" in accordance with 66 O.S. § 55(D).
¶ 23 Landowners' Motion for Appeal-Related Costs was "separately filed and labeled" and included an attached verification including taxable cost items[23] in accordance with Okla.Sup.Ct.R. 1.14(a). Landowners are entitled to recover "costs on appeal" pursuant to 12 O.S.2001 § 978, since the trial court's judgment against them was reversed in this case. Sunrizon Homes, Inc. v. American Guar. Inv. Corp., 1988 OK 145, 782 P.2d 103, 109.
¶ 24 Landowners seek recovery of the $100.00 fee for designation of the record, which is a fee paid to the district court and is not recoverable in this court. See Spears v. Shelter Mut. Ins. Co., 2003 OK 66, ¶ 15, 73 P.3d 865, 871. Otherwise, Landowners seek recoverable review-and-certiorari-related costs. Thus, Landowners' Motion to tax review-and-certiorari-related costs shall be GRANTED IN PART in the amount of $288.16 to the Lowery Landowners in matter # 98,361, $288.16 to the Whitten Landowners in # 98,362 and $288.16 to the Hyslope Landowner in # 98,363 respectively, and in the amount of $200.00 to the Hobbs Landowners in # 98,531.
V
SUMMARY
¶ 25 Although we recognize the COCA correctly determined that economic development alone did not constitute "public purpose" within the meaning of 27 O.S. § 5, we vacate the COCA's opinion in order to make a determination of first impression. We hold the takings in the four instant cases are unlawful takings of Landowners' private property to confer a private benefit on a private party, Energetix, in violation of Article 2, §§ 23 & 24 of the Oklahoma Constitution. We further hold that takings for the purpose of economic development alone (not in connection with the removal of blighted property) do not constitute a public use or public purpose to support the exercise of eminent domain as a matter of Oklahoma constitutional *654 law, nor does it satisfy the public purpose requirement of 27 O.S.2001 § 5. Further, we grant Landowners' Motion for Appeal-Related Attorneys' Fees. Appellants' Motion for Appeal-Related Costs is granted in part.
¶ 26 Upon certiorari previously granted,
THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE DISTRICT COURT'S JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT; APPELLANTS' MOTION FOR APPEAL-RELATED ATTORNEYS' FEES IS GRANTED; APPELLANTS' MOTION FOR APPEAL-RELATED COSTS IS GRANTED IN PART.
¶ 27 LAVENDER, HARGRAVE, OPALA, KAUGER, JJ., and CHAPEL, S.J. (sitting by designation in lieu of COLBERT, J.), concur.
¶ 28 TAYLOR, J., concurring in result.
¶ 29 WATT, C.J., concurs in part, dissents in part.
¶ 30 WINCHESTER, V.C.J., and EDMONDSON, J., dissent.
¶ 31 COLBERT, J., disqualified.
OPALA, J., concurring.
¶ 1 "No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes in such manner as may be prescribed by law." [Emphasis supplied] Art. 2 § 23, Okl. Const.
¶ 2 Private property may be taken (or damaged) for public use only upon payment of just compensation. Art. 2 § 24, Okl. Const.
¶ 3 The question before us is whether Muskogee County may exercise its power of eminent domain to acquire for Energetix rights in land upon which a rural pipeline will be laid to convey water for generation of electricity. Energetix is a private for-profit corporation that is not a public utility. I agree with the court and with Taylor, J., writing separately, that the land is not sought for public but rather for private use in violation of Art. 2 § 24, Okl. Const., which disallows condemnation of private property for nonpublic use.
¶ 4 When the government proposes to take a person's property to build streets, jails, government buildings, libraries or public parks that the government will own or operate, the anticipated use is unquestionably public. If the government proposes to take property and then convey it to private developers for private commercial use, a significant question is presented by the intended disposition of the property to be taken. The Oklahoma Constitution requires that the anticipated public benefits substantially outweigh the private character of the end use so that it may truly be said that the taking is for use that is "really public". The state constitutional requirement which limits the exercise of eminent domain power to "public use" is satisfied only when the public benefits and characteristics of the intended use substantially predominate over the private value of that use. Bailey v. Myers, 206 Ariz. 224, 76 P.3d 898, 904. The essential element of predominance is absent from this record.
¶ 5 Because the intended taking has not been shown to be for public use, I concur in the court's opinion and in the pertinent part of Taylor, J.'s separate writing.
TAYLOR, J., concurring in result.
¶ 1 Although I agree with the majority opinion's result, my agreement is not unqualified. I agree that title 27, section 5 does not give Muskogee County the authority to take the plaintiffs' property in this case. See Majority Op. at ¶¶ 12-14. Because Muskogee County's exercise of eminent domain is not authorized by title 27, section 5, it is unnecessary to resort to a constitutional analysis and such analysis is "deemed precluded by a self-erected `prudential bar' of restraint." See State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 12, 66 P.3d 432, 439. Only because a majority of this Court has relied on Oklahoma's Constitution *655 as a basis for its decision, I write separately on the issue of whether Muskogee County's use of eminent domain is valid under Article 2, Section 23 of the Oklahoma Constitution.
¶ 2 Article 2, Section 23 provides:
No private property shall be taken or damaged for private use. . . . The test under this provision is whether the primary reason for the exercise of the power of eminent domain serves a public purpose. If so, the condemnation complies with this provision of article 2, section 23 of the Oklahoma Constitution, even if an ancillary private benefits enures. See Isaacs v. Oklahoma City, 1966 OK 267, 437 P.2d 229. On the other hand, if the primary reason for the exercise of the power of eminent domain is to serve a private interest and the public purpose is incidental, then the taking of private property is constitutionally invalid. Midwest City v. House of Realty, Inc., 2004 OK 56, ¶ 22,