Opinion
No. 39135.
July 19, 1960. As Amended August 5 and 8, 1960.
Appeal from the District Court of Beckham County; W.P. Keen, Judge.
Original proceedings in the Supreme Court by the State of Oklahoma ex rel. Department of Highways for a writ of prohibition to prevent a district judge from proceeding with the trial of an action arising out of the "four-laning" of U.S. Highway No. 66. Writ granted.
Roland A. Walters, Jr., Max Cook, Oklahoma City, for petitioner.
Wise Ivester, Sayre, for respondent.
The present original action has been treated as a companion case, State of Oklahoma ex rel. Department of Highways v. Keen, 354 P.2d 396.
In both cases, the same petitioner seeks the same relief against the same respondent Judge, and the issues are the same, though there are immaterial differences in their facts.
The case, which petitioner seeks by the present action to prevent being tried, is Beckham County District Court's Cause No. 13,446, entitled: "Thurman Howard, Plaintiff, vs. State of Oklahoma, ex rel Department of Highways of the State of Oklahoma, Defendant". It involves damages to Howard's land from the same cause as the Blackmons' farm injuries in the companion case; and his alleged cause of action is described as arising from a "taking" of his land by the river's flooding as the Blackmons' cause of action was there described, though Howard's land does not abut on the new U.S. Highway No. 66 right-of-way, nor has the State, through its highway department, taken or acquired any land from him for the construction of said road. In the situation presented herein, however, we think the fact that the State has never given its consent to being sued by Howard, has identical import and effect as such absence of consent had in the companion case. Accordingly, for the same reason enunciated in that case, we grant petitioner's application and petition in the present case, and issue the writ of prohibition herein sought.
DAVISON, C.J., WILLIAMS, V.C.J., and JOHNSON, JACKSON and BERRY, JJ., concur.