PERRY v. GRAND RIVER DAM AUTHORITY

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PERRY v. GRAND RIVER DAM AUTHORITY

2015 OK CIV APP 12

344 P.3d 1

Case Number: 109714 Consol w/109715; 109716

Decided: 12/31/2013

Mandate Issued: 02/13/2015

DIVISION IV

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

Cite as: 2015 OK CIV APP 12 , 344 P.3d 1

ROBERT and BRENDA PERRY, DAVID and STACY PRYOR, and JOHN and

JANET SHAW, Plaintiffs/Appellees; Counter-Appellants,

and

ROBERT ASBELL

and TERESA ASBELL, et al., Plaintiffs,

v.

GRAND RIVER DAM AUTHORITY,

Defendant/Appellant; Counter-Appellee.

APPEAL FROM THE DISTRICT COURT OF

OTTAWA COUNTY, OKLAHOMA

HONORABLE ROBERT E. REAVIS, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION

N. Larry Bork, Mary E. Christopher, GOODELL, STRATTON, EDMONDS & PALMER,

L.L.P., Topeka, Kansas, and Scott R. Rowland, Renee DeMoss, GABLE GOTWALS,

Tulsa, Oklahoma, for Plaintiffs/Appellees

Joseph R. Farris, Belinda Aguilar,

Millicent L. Hughes, FELDMAN, FRANDEN, WOODWARD, FARRIS & BOUDREAUX, Tulsa,

Oklahoma, and Phil R. Richards, Whitney R. Mauldin, Randy Lewin, RICHARDS &

CONNOR, Tulsa, Oklahoma, for Defendant/Appellant

JERRY L. GOODMAN, JUDGE:

¶1 Grand River Dam Authority (GRDA) appeals the trial court's orders awarding

damages in inverse condemnation to Robert and Brenda Perry (Perrys), David and

Stacy Pryor (Pryors), and John D. and Janet M. Shaw (Shaws). Perrys, Pryors, and

Shaws counter-appeal the court's ruling denying their request for damages for

personal property. 1

FACTS

¶2 The Grand River Dam Authority (GRDA) was created by the State of Oklahoma

for the purpose of constructing the Pensacola Dam on the Grand River to create

the Grand Lake O' the Cherokees (Grand Lake) which is an impoundment of waters

flowing from the Neosho and Spring Rivers and their tributaries into Grand

River. The dam and resulting lake provide flood control, electricity, water,

recreation, and irrigation for the affected watersheds. GRDA is regulated by the

Federal Energy Regulatory Commission (FERC) and from its inception has possessed

the power of eminent domain. Pursuant to this power, GRDA obtained flowage

easements on real property to an elevation of 760 feet NGVD, an elevation

related to sea level. 2

¶3 Perrys, Pryors, and Shaws (collectively "Landowners") own real property

above 760 feet NGVD on Grand Lake. In October 1986 (1986 flood), Shaws' property

sustained flooding. 3 Subsequently, Perrys, Pryors, and Shaws' properties

flooded in September 1993 (1993 flood), April 1994 (1994 flood), and June 1995

(1995 flood). On October 5, 2001, Perrys, Pryors, and Shaws, as well as a number

of other landowners, filed suit against GRDA for inverse condemnation. 4 GRDA denied any

taking had occurred.

¶4 GRDA subsequently filed a motion for summary judgment, asserting

Landowners' claims for damage to real and personal property were time-barred by

12 O.S.2011, § 95. Landowners disagreed, asserting issues of limitations,

damages and causation had been resolved in Dalrymple, et al. v. Grand River

Dam Authority , CJ-94-444 ( Dalrymple ), wherein 100 landowners filed

suit against GRDA for injury to their property resulting from flooding from the

Pensacola Dam. Therein, the trial court adopted the findings of the court

appointed referee, hydrologist Dr. Forrest Holly, Jr., who determined, inter

alia , that "the existence and operation of Pensacola Dam caused a

quantifiable increase in the magnitude and duration of flooding above 760 feet

NGVD. ." (Holly Report.) In the present case, the trial court adopted the Holly

Report, finding the same recurring floods at issue in Dalrymple are at

issue in the present case.

¶5 On May 14, 2010, the trial court granted GRDA partial summary judgment,

finding Landowners' personal property claims were time-barred by 12 O.S.2011, §

95(A)(3). Subsequently, by order filed on June 28, 2011, the court made separate

findings of fact as to each Landowner's inverse condemnation claim.

With respect to the Perrys, the court found:

The property was subject to flooding in 1993, 1994, and 1995. All of the

flooding above 760 feet NGVD was caused by the existence and operation of

the GRDA Dam. After each flood, Perrys cleaned and restored their residence.

Perrys sold the property in 2001.

GRDA interfered with the use and enjoyment of the property and thereby

took a flowage easement upon all of the Perrys' property to an elevation of

771 feet NGVD. The court established the date of taking as April 7, 1994,

finding the 1994 flood reached the highest elevation. The court awarded just

compensation of $32,990.00 for diminution in value, restoration costs as to

all floods, and for the flowage easement taken.

With respect to the Pryors, the court found:

The property was subject to flooding in 1993, 1994, and 1995. All of the

flooding was caused by the existence and operation of the GRDA Dam. On each

occasion, Pryors cleaned and restored their property.

The property also flooded in 1986 to a depth of five feet. The court

accepted the Mussetter Report, which attributed three and one-half feet of

that flood to natural causes and the balance to the GRDA Dam operation. 5 However,

Pryors did not acquire the property until 1989. Pryors sold the property in

2005.

A temporary taking from 1993 to 1995 and awarded just compensation of

$60,850.00 for restoration costs and diminution in value of the

property.

For the Shaws, the trial court found:

The property was subject to flooding in 1993, 1994, and 1995, and the

flooding was caused by the existence and operation of the GRDA Dam. The

property was also flooded in 1986 to a depth of four feet. The court

accepted the Mussetter Report, which found 50% of the flooding was due to

natural causes and 50% to the GRDA Dam operation.

Shaws' restored their property after each flood. However, after the 1995

flood, the Shaws abandoned the property, retaining title to the

property.

A fee title was taken on June 2, 1995, and awarded just compensation of

$114,850.00 for restoration costs and diminution in value of the

property.

¶6 GRDA appeals the judgments awarding Landowners damages of just

compensation. Landowners counter-appeal the court's ruling that their personal

property claims were barred by the two-year statute of limitations under 12

O.S.2011, § 95(3).

STANDARD OF REVIEW

¶7 In inverse condemnation cases, whether there is a taking and the amount of

damages are questions of fact for the trier of fact. Therefore, the judgment of

taking and amount of damages will be affirmed if supported by any competent

evidence. Material Serv. Corp. v. Rogers Cty. Bd. of Comm'rs , 2012 OK CIV APP

17, ¶ 5 , 273

P.3d 880, 883 .

ANALYSIS AND REVIEW

A. Condemnation

¶8 Condemnation, also known as eminent domain, is the power to take private

property for the public good. Williams v. State ex rel. Dept. of Transp .,

2000 OK CIV APP

19, ¶ 13 , 998

P.2d 1245, 1248 (citing Harn v. State ex rel. Williamson , 1939 OK 40 , 87 P.2d 127 ). The

right of condemnation is a fundamental attribute of the sovereign state. City

of Tahlequah v. Lake Region Elec., Co-op., Inc ., 2002 OK 2, ¶ 7 , 47 P.3d 467, 471 . Eminent domain

generally refers to legal proceedings in which the state or other authorized

entity asserts its authority to condemn property for public use.

Williams , 2000 OK CIV APP 19, at ¶ 15 , 998 P.2d at 1249 . Conversely, "[i]nverse condemnation

is an action brought by a property owner seeking just compensation for land

taken for a public use, against a government or private entity having the power

of eminent domain. It is a remedy peculiar to the property owner and is

exercisable by him where the taker of the property does not bring eminent domain

proceedings." Drabek v. City of Norman , 1996 OK 126, ¶ 4 , 946 P.2d 658, 659 (citing Black's

Law Dictionary 825 (6th Ed.1990)) .

¶9 In the present case, Landowners filed an inverse condemnation proceeding

against GRDA asserting a series of floods resulted in a taking of their private

properties without just compensation in violation of Oklahoma Constitution,

Article II, § 24. Article II, § 24 provides, in relevant part:

Private property shall not be taken or damaged for public use without

just compensation. Just compensation shall mean the value of the property

taken, and in addition, any injury to any part of the property not

taken....

Landowners contend the trial court's finding of a taking and the

determination of the date of taking should not be disturbed on appeal as there

is competent evidence to support the court's findings.

¶10 GRDA disagrees, contending originally on appeal that: 1) the intermittent

flowage of water for temporary periods of time on Landowners' properties cannot

be considered a taking, 6 and 2) the undisputed facts show the Shaws and

Pryors' properties were flooded and taken by naturally-occurring floods, not

flooding resulting from the operation of the Dam. 7 At oral arguments held on July 10,

2013, however, GRDA conceded a taking of Landowners' properties for purposes of

inverse condemnation had occurred. 8 GRDA asserted that for the Shaws and Pryors, a

taking occurred in 1986, and for the Perrys, a taking occurred in 1993. 9

¶11 Article II, Section 24 of the Oklahoma Constitution does not define what

actions constitute a taking. Case law has found a taking where land is

physically taken and occupied, where government action substantially interferes

with the use and enjoyment of property, or where government overtly exercises

dominion and control over property. Material Serv. Corp. , 2012 OK CIV APP

17, at ¶ 5 , 273 P.3d at 883 . "The ultimate

question is whether there is a sufficient interference with the landowner's use

and enjoyment to constitute a taking by a sovereign." Henthorn v. Oklahoma

City, 1969 OK

76, ¶ 10 , 453

P.2d 1013, 1015 . The sufficiency of interference is equated to "substantial"

interference. State ex rel. Dept. of Transp. v. Hoebel , 1979 OK 63, ¶¶

9-10 , 594 P.2d

1213, 1215 . Moreover, the trier of fact decides the question of substantial

interference. Henthorn, 1969 OK 76, at ¶ 15 , 453 P.2d at 1016 ; Mattoon v. City of Norman , 1980 OK 137, ¶ 11 ,

617 P.2d 1347,

1349 . Conversely, "[a]cts done in the proper exercise of the police power which

merely impair the use (or value) of property do not constitute a 'taking.'"

April v. City of Broken Arrow , 1989 OK 70 , ¶ 14, 775 P.2d 1347,

1351 .

¶12 With respect to flooding, the Oklahoma Supreme Court has held that

continual flooding caused by the construction of a public highway, if serious

enough to constitute substantial interference with the use and enjoyment of the

property, may constitute a taking. Hoebel , 1979 OK 63, at ¶ 10 , 594 P.2d at 1215 . The majority rule is that flooding

may constitute a taking if the flooding is severe enough so as to effectively

destroy or impair the land's usefulness. Id . at ¶ 8, 594 P.2d 1215 (citing 2 Nichols on Eminent

Domain , § 6.23(3), and 26 Am.Jur.2d, Eminent Domain , § 65). See also

Henthorn , 1969 OK 76 , 453 P.2d 1013 (Syl. 2)(holding

frequent aircraft flights over a landowner's property may constitute a taking).

"Ordinarily, the question of whether a continuing interference is substantial

enough to constitute a 'taking' under Section 24, Art. 2, Constitution, is one

for the jury." Id.

¶13 The U.S. Supreme Court recently reiterated requirements for determining

whether there has been a taking under the Fifth Amendment to the U.S.

Constitution in Arkansas Game and Fish Comm'n. v. U.S ., __ U.S. __, 133

S.Ct. 511 (2012). The Court noted "[t]he Takings Clause is 'designed to bar

Government from forcing some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as a whole.'" Id . at

518 (quoting Armstrong v. United States , 364 U.S. 40 (1960)). In

addition, "[w]hen the government physically takes possession of an interest in

property for some public purpose, it has a categorical duty to compensate the

former owner." Id . (quoting Tahoe-Sierra Preserv. Council, Inc. v.

Tahoe Reg. Planning Agency , 535 U.S. 302 (2002)).

¶14 The issue in Arkansas Game and Fish was "whether government

actions that cause repeated floodings must be permanent or inevitably recurring

to constitute a taking of property." Id . at 518. The Court concluded that

government-induced "recurrent floodings, even if of a finite duration, are not

categorically exempt from Takings Clause liability." Id . at 515. The

temporary nature of the flooding did not automatically exclude it from being a

compensable event under the Takings Clause. While time or duration was the

relevant factor in determining the existence of a compensable taking, the Court

held "[a]lso relevant to the takings inquiry is the degree to which the invasion

is intended or is the foreseeable result of authorized government action."

Id . at 522. Thus, the duration of a physical invasion is not

determinative of whether or not the government may be held liable for a taking.

Regardless of whether the invasion is temporary or permanent, takings liability

under the Takings Clause can attach to any federal government action that

constitutes a substantial interference with the use and enjoyment of the

property. Although not controlling, we find Arkansas Game and Fish

persuasive. 10

¶15 The majority rule in this country is that flooding may constitute a

taking if the flooding is severe enough so as to effectively destroy or impair

the land's usefulness. See Hoebel , 1979 OK 63, ¶ 8 , 594 P.2d at 1215 . In the present case, Landowners'

properties were subject to a series of recurring floods in varying degrees in

1986, 1993, 1994, and/or 1995. The trial court found the floods were caused by

the existence and operation of the Pensacola Dam and that the floods constituted

a sufficient interference with Landowners' use and enjoyment of their properties

to constitute a taking. Based on our review of the record, we find competent

evidence from which the trial court, as the trier of fact, could conclude that a

taking of Landowners' properties has occurred.

1. Date of Taking and Interest Taken

¶16 The date of taking establishes not only the date of transfer, but also

the date on which just compensation is to be determined. The date of taking in a

condemnation case is the date when the condemnor pays the amount of the

commissioners' award into court. State ex rel. Dept. of Transp. v. Post ,

2005 OK 69 , ¶

9, 125 P.3d

1183 , 1186-87. Unless a party makes a timely request for a jury trial, the

commissioners' report establishes compensation. Conversely, in an inverse

condemnation proceeding, the commissioners' report serves no purpose and just

compensation, along with whether and the date a taking has occurred, are

questions of fact for the trier of fact. Id. at ¶ 7, at 1186. 11

¶17 At oral arguments, GRDA asserted the Shaws and Pryors' date of taking was

the 1986 flood and the Perrys' date of taking was the 1993 flood. 12 GRDA

maintains the taking occurred upon the first substantial governmental

interference with the properties and that any subsequent damage to the

properties simply constitutes further evidence that the governmental

interference was indeed substantial. GRDA contends there is only a single,

permanent taking for each Landowner because the need for the properties has not

ceased as flooding will inevitably recur again, citing Perkins Whistlestop,

Inc. v. State ex rel. Dept. of Transp. , 1998 OK CIV APP 7, ¶ 7, fn. 4 , 954 P.2d 1251,

1254 , (stating there is only one taking). Thus, GRDA maintains: 1) any damages

before the date of taking are time-barred; 2) any damages after the date of

taking are barred because the property had previously been taken; and 3) the

only damages that may be properly awarded are those for the value of the

property interest taken.

¶18 Landowners disagree, asserting their properties were subject to a series

of recurring flooding and that the trial court correctly determined the dates

and interests taken.

¶19 In the present case, the court determined the dates and interests taken

as follows:

Perrys: April 7, 1994: the beginning date of the flood in the series of

floods which reached the highest elevation on their property; a flowage

easement

Pryors: a temporary taking from September 1993 through June 1995

Shaws: June 2, 1995: the beginning date of the last flood in the series

of floods; a fee title

¶20 In an inverse condemnation proceeding involving a series of floods,

i.e. , intermittent and inevitably recurring flooding , as in

the present case, we conclude the date of taking is not the date the first flood

substantially interferes with the landowner's use and enjoyment of the property.

Rather, the date of taking is that date when it becomes clearly apparent that

the series of flooding is caused by the government or governmental entity having

the right of eminent domain, is of a permanent nature i.e. , although

intermittent and temporary in duration, is inevitably recurring, and

substantially or sufficiently interferes with the landowner's use and

enjoyment of the property. 13 See Henthorn, 1969 OK 76, at ¶ 10 , 453 P.2d at 1015 . The determination of these questions

by the trier of fact will not be disturbed on appeal if supported by competent

evidence.

¶21 With respect to the interest taken, GRDA initially asserted the proper

remedy was a flowage easement. A flowage easement is the right to overflow the

land of another in the accumulation and maintenance of an artificial body of

water. 78 Am. Jur. 2d Waters § 261 (2011). In its supplement briefing after oral

argument, however, GRDA asserted granting a flowage easement may be unrealistic

and that the transfer of a fee simple interest may be the only rational remedy

in this case.

¶22 The determination of the appropriate interest taken is a question of fact

for the trier of fact. If Landowners are capable of making valuable uses of

their property despite the recurring flooding, a flowage easement may be the

appropriate interest taken. However, if the trier of fact determines a

Landowner's property is no longer useful for any purpose, GRDA's actions may

constitute a complete taking. This is a question of fact for the trier of

fact.

¶23 Accordingly, we reverse and remand to the trial court for a

redetermination of the dates of taking and interests taken, either a flowage

easement or fee simple interest, in accordance with this opinion. The

determination of these issues is a prerequisite to the determination of an award

of just compensation. However, the Court notes that pursuant to Art. II, § 24 of

the Oklahoma Constitution, Landowners are entitled to recover just compensation

for all property taken or damaged for public use whether the damages are direct

or consequential. "[T]he required payment for 'just compensation' is not limited

to property 'taken,' but extends also to property 'damaged.'" Williams ,

2000 OK CIV APP

19, at ¶ 14 , 998 P.2d at 1249 . "The essential

consideration in determining compensation for a taking of a property interest is

to put the property owner in as good a position as it would be if no taking had

occurred." Material Serv. Corp. , 2012 OK CIV APP 17, at ¶ 13 , 273 P.3d at 887 . 14

B. Statute of Limitations

¶24 Landowners counter-appeal, asserting the trial court erroneously applied

the two-year statute of limitations in 12 O.S.2011, § 95(A)(3) to their personal

property losses. Landowners contend the fifteen-year inverse condemnation

limitation period applies to all property taken, asserting personal property

taken by flooding is an element of the total value of a landowner's award of

just compensation. Landowners maintain that subjecting real and personal

property to differing statute of limitations is arbitrary and inconsistent with

the underlying policy of Article II, § 24 of the Oklahoma Constitution and fails

to make the landowner "whole" and, in reality, collapses the entire action to a

two-year statute of limitation whenever personal property is taken. Finally,

Landowners assert that rules of statutory construction require rejection of the

two-year provision, noting § 95 sets forth the limitations periods to bring

"[c]ivil actions other than for the recovery of real property" and generally

pertains to a list of tort actions.

¶25 GRDA disagrees, asserting Oklahoma statutes clearly provide that a

fifteen-year limitations period applies to "an action for the recovery of real

property . " and a two-year limitation period for damages to personal property,

citing 12 O.S.2011, § 95(3). GRDA asserts that personal property is not "taken,"

i.e. , the government does not take title to the property as it does with

real property, but is merely damaged or injured, citing State ex rel Dept. of

Transp. v. Little , 2004 OK 74, ¶ 19 , 100 P.3d 707, 717

("A condemnee is entitled to compensation for 'damages to personal property

incident and necessarily caused by the exercise of the power of eminent domain

in taking land.'") Thus, GRDA contends the statute of limitations for personal

property is properly two years.

¶26 Article 2, § 24 of the Oklahoma Constitution does not contain a

limitations period, nor does it distinguish between real and personal property,

but extends just compensation to all private property taken or damaged. 15 In

Drabek v. City of Norman, 1996 OK 126, at ¶ 4 , 946 P.2d at 660 , the Oklahoma Supreme Court noted that

"[n]either statute nor constitution establishes a limitation period for bringing

a suit in inverse condemnation. Case law has determined limitations periods

based on whether there has been a taking." The Court subsequently held the

fifteen-year prescriptive period was appropriate where there was a taking of

real property without just compensation. Id. , 1996 OK 126 , at ¶ 5 & 16, 946 P.2d at 660 & 61-62 ("Early case law

established the fifteen-year period governing adverse possession to be the

appropriate limitation period in an inverse condemnation proceeding where there

was a taking of plaintiff's property for public use without compensation.") The

applicable limitation period for personal property in an inverse condemnation

action has not been addressed in Oklahoma.

¶27 Condemnation proceedings, including inverse condemnation, do not involve

a tort and are not, strictly speaking, civil actions or suits. Inverse

condemnation is a special statutory proceeding for the purpose of ascertaining

just compensation. Drabek , 1996 OK 126, at ¶ 8 , 946 P.2d at 660 ; Oklahoma City v. Wells, 1939 OK 62 , 91 P.2d 1077 . In an

inverse condemnation proceeding, the claim for "just compensation" includes all

taken or damaged property, whether real and personal. The proceeding is designed

to determine in a single action all compensation for property taken from private

persons for public use.

¶28 If the Court applies the two-year limitation period as GRDA asserts,

widely divergent limitations' periods to recover just compensation for the same

governmental action in the same inverse condemnation proceeding would be

applicable. "The underlying purpose of statutes of limitations is to prevent the

unexpected effort at enforcement of stale claims concerning which persons

interested have been thrown off their guard by want of prosecution for a long

time." Wing v. Lorton , 2011 OK 42, ¶ 11 , 261 P.3d 1122,

1125 (citing Seitz v. Jones, 1961 OK 283, ¶ 11 , 370 P.2d 300, 302 ).

It is designed to end stale claims and compel parties to diligently pursue their

claim before relevant facts are obscured through the passage of time.

Id .

¶29 In the present case, a party could be deprived of a component of just

compensation, i.e. , personal property damages, through application of

multiple statutes of limitations even though recovery of just compensation for

real property and associated damages remains viable. Article II, § 24 of the

Oklahoma Constitution provides that "Private property shall not be taken or

damaged for public use without just compensation. . " "The term 'property' as

used in our Constitution regarding the taking of private property for public use

for which just compensation must be paid includes not only real estate held in

fee, but also easements, personal property and every valuable interest which can

be enjoyed and recognized as property." Little , 2004 OK 74, at ¶ 22 , 100 P.3d at 718 .

This court should never be unmindful that a landowner is entitled to be

compensated fully when the latter's property is taken by the government in

the exercise of the eminent domain power. The mandate of both the state and

federal constitutions strongly supports full indemnification by just

compensation. The command requires that the condemnee be placed as fully as

possible in the same position as that occupied before the government's

taking.

Id. at ¶ 23, 100 P.3d at 718 (citing

Oklahoma Turnpike Auth. v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶ 12 , 870 P.2d 762, 766 ).

Furthermore, a limitations period should not become an instrument of injustice.

See 54 C.J.S. Limitations of Actions § 2 (2013). 16

¶30 Accordingly, we decline to impose such a result and find the appropriate

statute of limitations period applies to the claim and not to the individual

components of relief in an inverse condemnation proceeding. Thus, we hold the

appropriate limitations period is fifteen years for an inverse condemnation

proceeding for the taking or damaging of all private property, including real

and personal. This result avoids divergent limitations periods for components of

a single claim and does not require the owner to resort either to piecemeal or

premature litigation to ascertain just compensation. Thus, the trial court erred

in applying the two-year statute of limitations to Landowners' personal property

claims, and this portion of the trial court's order is reversed.

¶31 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS

OPINION.

THORNBRUGH, P.J., concurs and and RAPP, J., concurs in part and dissents in

part.

FOOTNOTES

1 By

order dated August 15, 2011, the Oklahoma Supreme Court ordered Appeal Nos.

109,714, 109,715, and 109,716 consolidated under surviving Appeal No. 109,714.

In addition, this Court declines to strike the amended designation of

record.

2 A

flowage easement permits GRDA to flood privately-owned property, if necessary,

for the operation of the project.

3 Pryors'

property also sustained flooding in 1986, although they were not the owners of

the property. Apparently, the previous owner abandoned the property after the

1986 flood.

4 Perrys,

Pryors, and Shaws' claims were severed for procedural reasons and are the only

landowners involved in the current appeal.

5 Dr.

Robert A. Mussetter was another expert in the Dalrymple case.

6 GRDA

asserted no taking occurred because Landowners restored and returned to their

homes and continued to live on the property. Thus, the properties usefulness was

not destroyed or seriously or substantially impaired to the point Landowners

could not exercise dominion and control.

7 For

example, GRDA asserted a taking of the Shaws' property did not occur because the

property was flooded by four feet of water in 1986 and 50% of this was due to

naturally-occurring flooding. Thus, the additional flooding caused by GRDA's

operation of the dam affected a house already flooded and "taken" by

naturally-occurring flooding.

8 This

Court granted GRDA's motion for oral arguments by order dated June 3,

2013.

9 GRDA's

concession, rejected by Landowners, is only a statement against interest. Its

concession cannot usurp the functions of the court to decide questions of law

and the trier of fact to decide issues of fact. In inverse condemnation

proceedings, whether there is a sufficient interference with the landowner's use

and enjoyment to constitute a taking, and the date of taking, is a question of

fact for the trier of fact. See Henthorn v. Oklahoma City , 1969 OK 76 , 453 P.2d

1013 .

10 The

parties dispute the applicability of Arkansas Game and Fish to the

present case. GRDA asserts it is inapplicable because a permanent condition

exists in the present case that will inevitably recur. Landowners disagree,

asserting the case supports its positions of multiple temporary takings. GRDA

further asserts the federal and state takings clauses are distinct as held in

Board of Cty. Comm'rs of Muskogee Cty v. Lowery , 2006 OK 31 , 136 P.3d 639 . In Lowery , the

Oklahoma Supreme Court held the Oklahoma Constitution provides private property

protection to Oklahoma citizens beyond that which is afforded them by the Fifth

Amendment to the U.S. Constitution. Thus, Oklahoma's constitutional eminent

domain provisions place more stringent limitations on governmental eminent

domain power than the limitations imposed by the Fifth Amendment to the U.S.

Constitution. Lowery did not hold as GRDA asserts.

11 In

an inverse condemnation proceeding, issues regarding whether a taking has

occurred, the date of taking, and the measure of damages are all questions of

fact for the trier of fact. See e.g., State ex rel. Dept. of Transp.

v. Post , 2005

OK 69 , 125 P.3d

1183 (In an inverse condemnation proceeding, the commissioners'

report is irrelevant and does not decide the issue of a taking); Williams v.

State ex rel. Dept. of Transp. , 2000 OK CIV APP 19, ¶ 13 , 998 P.2d 1245

(determination of a taking must be made by the trier of fact). Conversely,

regular condemnation proceedings are governed by legislatively-prescribed

procedures which are ordinarily designed to resolve only the issue of just

compensation. These procedures are not designed to deal with the issue of

whether there has been a taking since an actual taking must occur before the

process can begin. Thus, condemnation procedures, including the appointment of

commissioners, are not followed in inverse condemnation proceedings.

12

Again, it is axiomatic that only persons with a valid property interest at the

time of the taking are entitled to compensation. Almota Farmers Elevator

& Warehouse Co. v. United States, 409 U.S. 470, 473-74 .

13

This rule should not be read to exclude a temporary flood invasion from takings

liability. This rule only applies to those situations involving intermittent and

inevitably recurring flooding.

14 In

the present case, GRDA chose not to condemn Landowners' properties despite

recurrent flooding. Following each flood, Landowners restored and repaired their

properties, not knowing that their properties would be subject to recurring

flooding caused by operation of the Pensacola Dam. Landowners were required to

file for inverse condemnation and are entitled to be fully compensated under the

law as a result of the taking. See also fn. 18, infra .

15 A

plaintiff may recover for personal property in an inverse condemnation case. The

wording of Art II, § 24 of the Oklahoma Constitution does not distinguish the

type of property covered in the Article. State ex rel. Dept. of Transp. v.

Little, 2004 OK

74 , 100 P.3d

707 ; Blincoe v. Choctaw Oklahoma & Western R.R. Co. , 1905 OK 120 , 83 P. 903 ; see

Broward County v. Rhodes , 624 So.2d 319 (Fla. Dist. Ct. App. 1993)

(recognizing that personal property may be the subject of inverse condemnation);

Hawkins v. City of La Grande , 843 P.2d 400

(Or. 1992). This Court notes the case of Pete v. U. S., 569 F.2d 565 (Cl. Ct. 1978), where the

plaintiffs were held to be entitled to recover litigation expenses in a

successful inverse condemnation action for the taking by a federal agency of

their personal property. In State ex rel. Dept of Transp., 2004 OK 74, at ¶

22 , 100 P.3d at 718 , the Court stated:

[Art II, § 24] is not by its terms limited to real property nor does it

exclude from compensable injury damage to personal property when an entire tract

of land is taken. "The term 'property' as used in our Constitution regarding the

taking of private property for public use for which just compensation must be

paid includes not only real estate held in fee, but also easements, personal

property and every valuable interest which can be enjoyed and recognized as

property.".

16 The

federal court applies the stabilization doctrine in flooding cases. In United

States v. Dickinson, 331 U.S. 745, 749 (1947), the U.S. Supreme Court held

"[w]hen a taking is caused by a continuous process, it is not complete, for

purposes of determining when the claim arose, 'until the situation becomes

stabilized.'" In Dickinson , the government took property through a

"continuing process of physical events." The landowners filed an inverse

condemnation proceeding alleging the flooding was a taking. The Court ruled that

under such circumstances, because the government had put the "onus of

determining the decisive moment in the process of acquisition by the United

States" on the landowner, the landowner was permitted to postpone filing suit

"until the situation [became] stabilized." Id. at 748-49 . "The Fifth

Amendment expresses a principle of fairness and not a technical rule of

procedure enshrining old or new niceties regarding 'causes of action'--when they

are born, whether they proliferate, and when they die." Id. at 748 . Thus,

Dickinson warned against applying an excessively rigid rule when the

government takes property through a gradual physical process. Id. at 749 .

"[W]hen the Government chooses not to condemn land but to bring about a taking

by a continuing process of physical events, the owner is not required to resort

either to piecemeal or to premature litigation to ascertain the just

compensation for what is really 'taken.'" Id. Although not controlling in

Oklahoma, we find the stabilization doctrine persuasive in determining the

applicable statute of limitations in the present case.

RAPP, J., concurring in part and dissenting in part:

¶1 While I agree that all of the Grand River Dam Authority's (GRDA) appeal

must be reversed, I dissent from the resolution of these appeals by the

Majority.

¶2 I concur with the Majority's Decision that the fifteen-year Statute of

Limitations applies to each of the individual landowner's claims for just

compensation for taking of personal property. However, because there are issues

about the taking and dates of taking, I would have the trial court apply the

fifteen-year limitation only after the takings issues are resolved.

I.GRDA Appeals.

¶3 My point of departure from the Majority begins with its direction to the

trial court to re-determine the dates of takings and interests taken, either of

a flowage easement or fee simple interest. The Majority's directive to the trial

court does not comport with the facts of the case as to each individual

landowner and omits consideration of a temporary taking along with the separate

measure of damages where the taking is temporary.

¶4 Although each landowner suffered from flooding caused by GRDA, there are

material facts unique to each case. Thus, a review of the facts and the trial

court's dispositions are in order.

¶5 Flooding occurred in 1986, September 1993, April 1994 and June 1995. The

1986 flood affected the Shaws' property. The trial court's finding that about

one-half of the flood water depth in 1986 was due to GRDA has not been disputed

in this appeal. The 1986 flood also affected the Pryors' property, but Pryors

did not own the property at that time, having purchased it in 1989 with

knowledge of the 1986 flood. Each flood in 1993, 1994 and 1995, above a

pre-existing flowage easement, was caused by GRDA for all of the properties.

A. Perrys' Property Facts.

¶6 Perrys' property was flooded in September 1993, along with the crawl space

of the residence. The residence and property were subject to flooding in April

1994, and June 1995. On each occasion, the Perrys' cleaned and restored their

residence and moved back into it. The trial court itemized a list of damages on

each occasion including value of time and the costs of cleaning and restoring.

The Perrys were deprived of the use and enjoyment of the home on each flood

event ranging from forty hours in 1993 and 1995 to three months in 1994. The

April 1994 flood was the flood that reached the highest elevation and the court

ruled that this flood constituted a taking of the flowage easement on Perrys'

property and established the date of taking as April 7, 1994. Damages were

awarded for clean-up time and costs as to all floods and for the easement.

B. Pryors' Property Facts.

¶7 Pryors' property was subject to flooding in September 1993, but not the

residence. The floods of April 1994, and June 1995, also affected the residence.

The property also flooded in 1986 to a depth of five feet, with three and

one-half feet of that flood due to natural causes and the balance the GRDA Dam

operation. The owners in 1986 abandoned the property and Pryors acquired the

property in 1989, after being informed of the 1986 flood history.

¶8 On each occasion during their ownership, the Pryors' cleaned and restored

their property and moved back into the residence. The 1993 flood did not enter

their home. The 1994 flood resulted in two feet of water in the home. The 1995

flood had water in the duct work under the house. The trial court itemized a

list of damages on each occasion including value of time and the costs of

cleaning and restoring.

¶9 The Pryors were deprived of the use and enjoyment of the home for six

months after the 1994 flood. On the occasions of the 1993 and 1995 floods, they

spent a number of hours in cleaning and restoration. The trial court found that

this series of floods "significantly impacted and interfered with" Pryors' use

and enjoyment of their property. However, they continued to live there until

2005, when they sold the property. No flowage easement was taken, but the trial

court awarded damages for clean-up time and costs and diminished value of the

property.

C. Shaws' Property Facts.

¶10 Shaws' property was subject to flooding in September 1993, April 1994,

and June 1995. The property and residence was also the subject of flooding in

October 1986 to a depth of four feet, of which about one-half of the depth of

the flood water was due to natural causes and the balance due to the GRDA Dam

operation.

¶11 On each occasion until 1995, the Shaws' cleaned and restored their

property and moved back into the residence. After the 1995 flood, Shaws

abandoned the property due to the series of floods from 1986 to 1995, but

retained title to the property.

¶12 Damages were incurred for cleaning and restoring the property after the

floods, until 1995. The trial court itemized these damages and awarded Shaws

damages for clean-up time and costs attributed to the 1986, 1993, and 1994

floods. The trial court prorated the 1986 damages based upon natural cause.

¶13 The fair market value of Shaws' property before the 1993 flood was

$54,600.00 and the value of the real property was $500.00 after the 1995

flood. Approximately, one-half of the property was subject to the existing

flowage easement, but the home was on the one-half above the flowage

easement.

¶14 The sum of $54,600.00 was awarded for the diminished value of their

property caused by the series of floods from 1993 to 1995. The trial court

established June 2, 1995, as the date of taking and that the fee was taken, so

GRDA was awarded the fee title as of that taking date.

II. Analysis of the Taking Claims.

¶15 "Inverse condemnation" is not a means of property acquisition but,

rather, is the landowner's remedy for uncompensated takings of property for

public use. The Majority correctly observes that whether a taking has occurred

and the date of the taking present questions of fact in inverse condemnation

cases. 1

¶16 Moreover, a taking may result from a series of actions, either continual

or continuous in nature. Arkansas Game and Fish Comm'n v. U.S. , __ U.S.

__, 133 S. Ct. 511 (2012 ); State ex rel. Dep't. of Transp. v. Hoebel , 1979 OK 63 , 594 P.2d 1213 ;

Henthorn v. Oklahoma City, 1969 OK 76 , 453 P.2d 1013 .

¶17 In addition, a taking may be permanent or temporary. Material Service

Corp .v. Rogers County Bd. of Comm'rs , 2012 OK CIV APP 17 , ¶ 9, 273 P.3d 880, 885 .

The measure of compensation is not the same for a permanent taking as for a

temporary taking.

¶18 A permanent "taking" of property, or an interest in property, consummates

a transfer of the property, or an interest in property, to the taker on the date

of taking. The date of taking establishes not only the date of transfer, but

also the date on which the value of the transfer is to be calculated. This rule

is self-evident in cases of a single action resulting in a taking. This rule

provides for full compensation to an inverse condemnation claimant. Also, the

rule establishes a reasonable and efficient criterion in cases of ongoing or

repeated action. Thus, damages can be made certain and bear a reasonable

relationship to the responsibility of the taker to pay compensation.

¶19 In the case of a temporary taking, the cases reflect different approaches

to achieve the just compensation result. One method is to determine the rental

value of the property for the period it was taken plus any actual damage

sustained as a result of that taking. Another method would compensate based upon

the loss of the economic use of the property. "It has been said that, in cases

involving a temporary taking, the best approach is a flexible approach that will

compensate for losses actually suffered while avoiding the threat of windfalls

to plaintiffs at the expense of substantial government liability." Material

Service Corp. , 2012 OK CIV APP 17 at ¶ 10 n.5,

273 P.3d at 886 n.5.

¶20 Restoration costs may be awarded in temporary taking cases instead of

diminution in value. Fowler Irrevocable Trust 1992-1 v. City of

Boulder , 17 P.3d 797, 805-06 (Colo. 2001); Sunburst Sch. Dist. No. 2 v.

Texaco , 2007 MT 183, ¶ 38 , 165 P.3d 1079 ,

1087-88 (Mont. 2007) (pointing out that a residence is the type of property that

the owner would wish to repair).

¶21 I would hold that, in cases of a temporary taking of real property, the

measure of compensation is the rental value for the temporary period of the

taking plus any actual damages and restoration costs. In cases of a permanent

taking of any type of property, the measure of compensation is the fair market

value of the property interest taken on the date of taking, plus any actual

damages and restoration costs.

III. Application to Each Landowner.

A. Perrys' Property.

¶22 The trial court's damage determinations for each of the three flood

years, 1993-1995, included: (1) restoration costs, including personal time; (2)

losses related to personal property; and (3) accumulated diminution of value of

the real property over repairs and restoration, with that sum apparently being

awarded for the flowage easement granted to GRDA. However, there was a single

taking of a flowage easement only in 1994.

¶23 The trial court found that the taking by GRDA amounted to a flowage

easement, with the date of taking of April 7, 1994. There is a fact-dependent

point at which a substantial interference with the landowner's use and

enjoyment of the property constitutes a taking. Here, in Perrys' case, the trial

court made a single finding of a taking. Given a single taking, the trial court

erred in assessing damages over a three-year period.

¶24 In a single taking case, with a taking date in April 1994, the damages

for personal property losses, restoration and cleaning incurred prior to or

after that date of taking do not represent just compensation for the taking in

April 1994. It is true, under the facts here, that the Perrys sustained losses

in 1993 and 1995 and that GRDA is responsible for those losses. However, in a

single taking case, the claims for the 1993 and 1995 losses are not supported by

a taking theory and would then be ordinary damage claims. 2

¶25 However, the trial court also made findings that the 1993 and 1995 floods

constituted interference with the Perrys' use and enjoyment of their property.

This finding is a predicate to the ultimate conclusion that a taking, temporary

or permanent, has also occurred in those two years. Nevertheless, the trial

court did not specifically find either a permanent or temporary taking

attributed to these two floods.

¶26 Therefore, I would rule that the trial court must specifically determine

from the evidence whether the 1993 and 1995 floods also constituted takings, and

if so to define the nature of the takings of the Perrys' real property as

temporary or permanent. The existence of these takings is a necessary

requisite to an award of compensation for these events and the method of

calculation of compensation. 3

¶27 In the event the trial court determines that a taking occurred as a

result of any of these other floods, then I would have the trial court determine

whether any personal property was also taken and award compensation, if any, for

the personal property taken. If the trial court finds that there was not a

taking, then the acknowledged losses do not become losses to be compensated in

an inverse condemnation proceeding.

¶28 All compensation for any taking must be calculated as of the date of

taking. At first, it would appear that recovery of compensation associated with

restoration after the 1994 flood is inconsistent with recovery of compensation

associated with diminution of value as a result of the flowage easement.

However, the facts show that Perrys returned to the residence after the 1994

flood that resulted in the taking of the flowage easement, thereby not

foreclosing any cleaning and restoration costs.

¶29 The trial court incorrectly aggregated all three flood years to determine

the diminution in value of Perrys' real property. The measure of damages in the

Perrys' case for the taking of a flowage easement is the diminution of the

market value of their property, with the valuation date being the date of

taking, April 7, 1994. Moreover, it is necessary to consider the effect of any

determination of a permanent taking in 1993. Thus, I would also reverse the

judgment for Perrys for compensation for the flowage easement on this

ground.

¶30 Personal property taken is subject to compensation and the claim

therefore is not time barred. Nevertheless, there must be a determination that

the personal property was taken and a date of taking. The trial court's judgment

denying recovery for personal property compensation must be reversed and this

aspect of the case is remanded for the required takings determinations.

B. The Pryors' Property.

¶31 The trial court found that the Pryors sustained temporary takings as to

each of the floods in 1993, 1994 and 1995. 4 The judgment does not specifically

find a date, or dates, of taking.

¶32 The trial court's separation of compensation for the restoration and

clean-up suggests three takings dates, one for each flood year. However, the

aggregation of the three years for purposes of calculating diminished value,

suggests that the last flood year culminated in a permanent taking.

Nevertheless, the Pryors' journal entry is that the trial court made a finding

of a temporary taking.

¶33 Thus, the judgment is internally inconsistent and its findings do not

resolve the issue of compensation. The trial court's assessment of both

restoration and diminution of value damages was inconsistent in light of the

conclusions that: (1) restoration costs were incurred to restore the property to

its condition prior to each flood; and (2) takings in each case were

temporary.

¶34 Ordinarily, "restoration" and "diminution of value" are mutually

inconsistent as measures of damages. 5 Property that is "restored" would not lose its

pre-restoration value. On the other hand, property that is not, or cannot be,

fully restored would diminish in value and, to that extent, the entity using the

property has taken a property interest. Here, the Pryors' judgment is

inconsistent as drafted because it finds both a restoration to original

condition and a diminution of value.

¶35 However, the trial court's award of damages for restoration associated

costs for the 1993, 1994 and 1995 floods amounted to sums "to restore the

property to its condition immediately before the flood." 6 This conclusion is not

consistent with a partial restoration case where both restoration costs and

diminution of value could be considered to make the property owner whole for a

permanent taking.

¶36 Next, the trial court used the measure of compensation applicable to a

permanent taking. As shown above, the measure of compensation for temporary

takings is the rental value for the temporary period taken plus any actual

damages and restoration costs. Therefore, I would reverse the judgment for fair

market value and remand for redetermination of compensation for the temporary

taking of the Pryors' real property. The denial of their claim for personal

property compensation would also be reversed to determine whether personal

property was taken on the date, or dates, of takings as found by the trial court

and to award just compensation for such takings, if any.

¶37 Therefore, I would reverse the trial court's judgment as to the amount of

compensation awarded to the Pryors for restoration and associated costs and for

diminution of value and remand to decide the date, or dates, on which a

temporary taking occurred and to award compensation for the temporary

taking.

C. The Shaws' Property.

¶38 The trial court awarded the Shaws cleaning and restoration damages due to

the 1993 and 1994 floods. The trial court awarded a prorated sum for the 1986

flood based upon the finding that one-half of that flooding of their property

was naturally caused. In each instance, the trial court found that the Shaws

expended the sums to restore their property to its original condition.

¶39 Shaws abandoned their property after the 1995 flood. The trial court

established the June 2, 1995, flood date as the date of taking and determined

that the extent of the taking was the entire fee interest as of that date. The

trial court's selection of this date as the taking date, rather than one of the

other three flood dates, and the extent of the taking, is inconsistent with an

award of compensation for the other flood events absent a finding of a taking,

temporary or permanent, on those prior occasions.

¶40 The trial court did not use a market value immediately before the 1995

flood as the beginning value for the Shaws' real property. However, GRDA

specifically does not contest the calculation of damages. Therefore, GRDA waived

any error in the selection of a beginning valuation date. Therefore, I would not

disturb the finding of $54,200.00, as the value of the real property before the

onset of the 1995 flood.

¶41 The selection of the 1995 flood date as the taking date results in

similar legal issues as those in the other two cases. 7 Thus, absent a date of taking

corresponding to the earlier floods in 1986, 1993 and 1994, the damages

associated with these events become claims not based upon inverse condemnation.

As a result, GRDA is responsible for the damages for restoration associated

costs and personal property losses, but the Shaws' claim for these pre-1995

events would be time-barred if there were no earlier takings.

¶42 This Court should require that the trial court must specifically

determine whether the 1986, 1993 and 1994 floods also constituted separate

takings of Shaws' property, and, if so, to define the nature of the takings and

fix just compensation, if any, in accord with those findings. The existence of

those takings is a necessary requisite to an award of just compensation for

these events. After making these findings and awarding any compensation, the

trial court should then be directed to adjust the fee taking, if appropriate, to

account for prior permanent takings of the real property. In the event the trial

court determines that a taking occurred as a result of any of these earlier

floods, then the court should further be directed to determine whether any

personal property was also taken and award compensation, if any, for the

personal property taken.

D. Statute of Limitations.

¶43 The Majority correctly rules that the appropriate limitation period is

fifteen years for the inverse condemnation claim for taking personal property.

This result is consistent with the case authority where the claim involved only

real property and is consistent with the "transactional approach" in civil

actions. The result avoids having divergent limitations periods for components

of a single claim. However, I would further rule that whether the plaintiffs may

avail themselves of the fifteen-year period in this instance depends upon

whether a taking has occurred, and whether a taking occurred is also an issue

for the real property parts of the case.

IV. Summary

¶44 When, as here, a government entity damages real or personal property by

its actions, the injured party might seek compensation either under a theory

from ordinary civil litigation, or under a special proceeding, termed inverse

condemnation. The injured party must establish the fact of taking in order to

recover.

¶45 The taking occurs when the governmental action has resulted in the

substantial interference with the use and enjoyment of the injured party's

property. The fact of taking may be permanent or temporary and may include

personal property. In inverse condemnation cases, whether there is a substantial

interference with the use and enjoyment of property, the extent of the taking

and the compensation for the taking are questions for the trier of fact.

¶46 A taking might result from a series of acts, here a series of floods. In

such cases, the trier of fact determines the date (or dates if more than one

taking is found) on which the substantial interference occurred. However, the

trial court must determine: (1) whether the taking is permanent or temporary,

and, if permanent the extent thereof; and (2) a date, or dates, of taking. Then,

when a decision is reached that a taking has in fact occurred and its scope,

together with the date of taking, the trier of fact can proceed to the question

of just compensation.

¶47 In the cases under review, the trial court made findings consistent with

takings on each flood event. However, as to the Landowners Shaws and Perrys, the

trial court also fixed only single date of taking. Nevertheless, the trial court

awarded compensations covering the entire series of floods affecting these

Landowners. The trial court erred and must find also that a taking occurred on

each occasion in order to provide an inverse condemnation basis for an award of

compensation as to each occasion.

¶48 The trial court's judgment contains inconsistent measures of compensation

for the Shaws and the Perrys. Recovery for total restoration and diminution of

value of the same property are mutually inconsistent. Here, the trial court's

judgment and findings reached inconsistent results by awarding both types of

recovery. In an appropriate set of facts and findings, an injured party might be

entitled to recover restoration associated costs and diminution of value when

the restoration was not to original condition after the taking. However, the

trial court must make findings consistent with both types of compensation, which

it did not do here.

¶49 In the case of the Landowner Pryors, the trial court found temporary

takings, but did not define the extent of the takings or any dates of taking.

Nevertheless, the trial court awarded the Pryors diminution of value and

restoration to original condition costs. Here also the trial court must

establish takings, dates of taking, and compensations appropriate to the nature

and extent of the taking. In addition, the trial court must determine whether

the 1986 flood constituted a taking, and if so, the nature of the taking and

account for that it in its consideration of the 1993, 1994 and 1995 floods.

FOOTNOTES

1 At oral

argument, GRDA conceded that a taking occurred, but did not concede the dates as

found by the trial court.

2 I do not

agree with GRDA's position that the award o+f a 1994 flowage easement precluded

damages occurring within the easement in 1995. Perrys had not been paid for the

easement in 1995 and it did not then exist by virtue of a court decree. It would

be unfair to impose a constructive notice of the easement on them.

3 The

final determination may affect the compensation calculation for a subsequent

event, and the trial court can make such adjustment as the case

warrants.

4 Thus,

they had no interest in 1986 subject to a taking and compensation. The trial

court did not account for whether the 1986 flood also amounted to a taking, and,

if so, the extent of the 1986 taking. GRDA would have the taking occur in 1986,

apparently to deprive Pryors of some or all of the compensation. However, this

position was taken for the first time on appeal.

It is noted that the trial court did award compensation to the Shaws for the

1986 flooding. Initially, this would appear to be an inconsistent outcome,

resulting in a windfall recovery to the Pryors for failure to account for a

taking prior to their ownership of the property.

However, I would conclude otherwise. First, assuming a permanent taking in

1986, GRDA had not paid compensation for the taking and it would be unfair to

charge the Pryors with constructive notice of an undefined, uncompensated taking

even though they were aware of the 1986 flooding.

Second, all of the takings in Pryors' case are temporary. Unless GRDA were

awarded a fee taking retroactively, the temporary taking would still be

supported by the evidence and a reduction of compensation would result in a

windfall for GRDA.

5 The

market value approach is the usual means of measuring damages, but not always.

See Fowler Irrevocable Trust 1992-1 , 17 P.3d at

803 ; City of Tulsa v. Mingo Sch. Dist. No. 16, 1976 OK CIV APP 27 , 559 P.2d 487 (in a

partial taking case, the restoration costs are appropriate measure of damages

where property has special use).

The case of State v. Levick , 1961 OK 215 , 365 P.2d 141 , is distinguished. The

Court held that the before and after market value was the correct measure of

damages where the State sought a temporary right to remove sand and gravel.

There, unlike here, the State physically removed, took possession and used

materials from the owner's property.

6 A total

restoration would authorize consideration of damages measured by rental value or

costs of alternative living arrangements during the restoration period. See

Gledhill v. State , 243 N.W. 909 (Neb. 1932) (the damages for property taken

temporarily is not the market value, but the value of the use for the period

damaged).

7 However,

the trial court made no award for personal property losses from the 1995 flood

and there were no restoration associated costs for that flood .

Citationizer © Summary of Documents Citing This Document

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Oklahoma Court of Civil Appeals Cases

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1998 OK CIV APP 7 , 954 P.2d 1251 , 9 OBJ 517, PERKINS WHISTLESTOP, INC. v. STATE ex rel. DEPT. OF TRANSPORTATION Discussed

2012 OK CIV APP 17 , 273 P.3d 880 , MATERIAL SERVICE CORPORATION v. ROGERS COUNTY BOARD OF COMMISSIONERS Discussed at Length

1976 OK CIV APP 27 , 559 P.2d 487 , CITY OF TULSA v. MINGO SCH. DIST. NO. 16 Discussed

2000 OK CIV APP 19 , 998 P.2d 1245 , 71 OBJ 1208, WILLIAMS v. STATE ex rel. DEPT. OF TRANSPORTATION Discussed at Length

Oklahoma Supreme Court Cases

Cite Name Level

1989 OK 70 , 775 P.2d 1347 , 60 OBJ 1133, April v. City of Broken Arrow Discussed

1939 OK 40 , 87 P.2d 127 , 184 Okla. 306 , HARN v. STATE ex rel. WILLIAMSON Discussed

1939 OK 62 , 91 P.2d 1077 , 185 Okla. 369 , OKLAHOMA CITY v. WELLS Discussed

1994 OK 9 , 870 P.2d 762 , 65 OBJ 283, Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks Discussed

1961 OK 215 , 365 P.2d 141 , STATE v. LEVICK Discussed

2002 OK 2 , 47 P.3d 467 , 73 OBJ 359, CITY OF TAHLEQUAH v. LAKE REGION ELECTRIC, CO-OP, INC. Discussed

1969 OK 76 , 453 P.2d 1013 , HENTHORN v. OKLAHOMA CITY Discussed at Length

2004 OK 74 , 100 P.3d 707 , STATE ex rel. DEPT OF TRANSPORTATION v. LITTLE Discussed at Length

2005 OK 69 , 125 P.3d 1183 , STATE ex rel. DEPT. OF TRANSPORTATION v. POST Discussed at Length

2006 OK 31 , 136 P.3d 639 , BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY v. LOWERY Discussed

1996 OK 126 , 946 P.2d 658 , 67 OBJ 3630, Drabek v. City of Norman Discussed at Length

2011 OK 42 , 261 P.3d 1122 , HAWK WING v. LORTON Discussed

1979 OK 63 , 594 P.2d 1213 , STATE EX REL. DEPT. OF TRANSP. v. HOEBEL Discussed at Length

1980 OK 137 , 617 P.2d 1347 , Mattoon v. City of Norman Discussed

1961 OK 283 , 370 P.2d 300 , SEITZ v. JONES Discussed

1905 OK 120 , 83 P. 903 , 16 Okla. 286 , BLINCOE v. CHOCTAW OKLAHOMA & WESTERN R.R. CO. Discussed