# PERRY v. GRAND RIVER DAM AUTHORITY

> Court of Civil Appeals of Oklahoma · December 31, 2013 · 344 P.3d 1

URL: https://www.frixlaw.com/law-library/cases/2832458

## Case

- **Court:** Court of Civil Appeals of Oklahoma
- **Decided:** December 31, 2013
- **Citations:** 344 P.3d 1; 2015 OK CIV APP 12
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2832458

## How later opinions describe it (automated extraction)

- recognizing that personal property may be the subject of inverse condemnation

## Opinion text

OSCN Found Document: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
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Court of Civil Appeals Cases
Cite Name Level
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2832458. Public record. Not legal advice.